Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course Table of Contents speakers
topic Thursday, June 24, 2021
Mark Thiessen Hon. Bert Richardson & Hon. David Newell Jani Maselli Wood Eric Davis Richard Anderson
DWI During the Prohibition CCA Update Including Watkins and Discovery in Texas Preservation of Error Cross Examination Ethics
Friday, June 25, 2021 - Track I: Regency Ballroom Technology Jeep Darnell Eric Devlin Lisa Gonzalez
Technology in Today's Practice Cell/Computer Porn Office Management & Ethics
Track II: Rio Grande Ballroom Forensics and Trial Tactics Nicholas Hughes Michael Gross
DNA Expert Witnesses
Patty Tress
Closing Arguments
Chris Abel
Storytelling
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course Table of Contents speakers
topic Track III: Regency Ballroom Federal & Drugs
F.R. Buck Files Jose Gonzalez-Falla
Federal Law Update Guns, Drugs, Aliens
Mike Heiskell
Litigating Sentencing Issues
David Guinn
Search and Seizure Track IV: Track IV - Ethics, Family & Juvenile
Kameron Johnson
Defending Juveniles
Catherine Burnett
Sex Offender Registration
Betty Blackwell
Family Violence Saturday, June 26, 2021
Gerry Goldstein
The New Supreme Court
Drew Findling
Intersection of Hip Hop in the Criminal Justice System When Your Art Form Can and Will be Used Against You
Barry Scheck
In the Shadow of Mass Incarceration and the Death of George Floyd
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course Table of Contents
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Course Directors: Adam Kobs Dwight McDonald Stan Schneider Patty Tress
Cle
Start
End
2:30 PM 5:30 PM
7:00 PM 7:00 PM
CLE: 17.75 including 3.00 Ethics
WEDNESDAY - June 23, 2021 - Ballroom Early-Bird Check-In Members and Family Reception
THURSDAY - June 24, 2021 - Ballroom
Daily CLE Hours: 7.25 Ethics: 1.0 7:30 AM 5:30 PM 7:30 AM 8:30 AM 8:00 AM 8:05 AM 0.75 8:05 AM 8:50 AM 0.75 8:50 AM 9:20 AM 1.00 9:20 AM 10:20 AM 10:20 AM 10:35 AM 0.75 10:35 AM 11:20 PM 1.00 11:20 AM 12:20 PM 11:30 AM 12:20 PM 1:40 PM 1:40 PM 1:45 PM 0.75 1:45 PM 2:30 PM 1.00 2:30 PM 3:35 PM 0.75 3:35 PM 4:20 PM 1.00 4:20 PM 5:20 PM 5:20 PM 5:20 PM 6:30 PM 9:00 PM
Registration Continental Breakfast President's Message & Opening Remarks ~ Grant Scheiner and Adam Kobs DWI During the Prohibition ~ Mark Thiessen CCA Update Including Watkins and Discovery in Texas ~ Hon. Bert Richardson & Hon. David Newell #metoo Jurors and the Defense of Sexual Assault Cases ~ Lisa Wayne Break Needed Reform of Our System of Justice ~ Congressman Beto O’Rourke Voir Dire ~ Robert Hirschhorn Golf at the Quarry ~ Tee Time 12 noon Lunch On Your Own President-Elect Message & Opening Remarks ~ Michael Gross and Dwight McDonald Preservation of Error ~ Jani Maselli Wood Legislative Update ~ David Gonzalez Cross Exam ~ Eric Davis Ethics ~ Richard Anderson Adjourn Affiliate and Local Defense Meeting in Pecan, TCDLEI Fellows Reception, New Lawyers Pachanga at the Goldstein's
Daily CLE: 6.50 Ethics: 2.0
FRIDAY - June 25, 2021
Town Hall Discussions Women's Caucus 8:30 am - 9:30 am Moderator: Cynthia Orr The Healthy Practice Paradigm 10 am - 11 am Moderator: Rick Wardroup Board Specialization Review 1:30 pm - 2:30 pm Moderator: Susan Anderson
7:45 AM 7:00 AM 7:45 AM
5:30 PM 8:00 AM 8:45 AM
0.75
8:00 AM 8:05 AM
8:05 AM 8:50 AM
Opening Remarks ~ Adam Kobs Technology in Today's Practice ~ Jeep Darnell
Opening Remarks ~ Patty Tress DNA ~ Nicholas Hughes
0.75
8:50 AM
9:35 AM
Cell/Computer Porn ~ Eric Devlin
Expert Witnesses ~ Michael Gross
0.75
9:15 AM 9:35 AM 9:55 AM 9:55 AM 10:40 AM
TCDLEI Annual Board Meeting in Chula Vista Break Zooming into the Future ~ Grant M. Scheiner Closing Arguments ~ Patty Tress
1.00
10:40 AM
Office Management & Ethics ~ Lisa Gonzalez
11:40 AM
11:00 AM 11:40 AM 1:10 PM
Registration Hill Country Bike Ride with Gerry Goldstein and Tony Vitz Continental Breakfast Track I - Regency Ballroom Track II - Rio Grande Ballroom Technology Forensics and Trial Tactics
Storytelling ~ Chris Abel
CDLP Committee Meeting in Chula Vista Lunch On Your Own Track III - Regency Ballroom Track IV - Rio Grande Ballroom Federal & Drugs Ethics, Family & Juvenile
1:10 PM
1:15 PM
Opening Remarks ~ Stan Scheiner
Opening Remarks ~ Dwight McDonald
1.00
1:15 PM
2:15 PM
Federal Law Update ~ F.R. Buck Files
Race in the Courtroom & Ethics ~ Hon. Audrey Moorehead
0.75
2:15 PM
3:00 PM
Guns, Drugs, Aliens ~ Jose Gonzalez-Falla
Juvenile ~ Kameron Johnson
0.75
3:00 PM 3:20 PM 3:15 PM 3:20 PM 4:05 PM
0.75
4:05 PM
4:50 PM
4:50 PM 5:00 PM 6:00 PM 6:30 PM 8:00 PM 8:00 PM 12:00 PM
Daily CLE Hours: 4.0 Ethics: 1.0
1.00 1.00 1.00 1.00
7:45 AM 8:45 AM 8:00 AM 8:05 AM 8:05 AM 9:05 AM 9:05 AM 10:05 AM 10:05 AM 11:05 AM 11:05 AM 12:05 PM 12:05 PM 12:15 PM 1:30 PM 2:00 PM
Break - Family Ice Cream Social Executive Committee Meeting in Chula Vista Litigating Sentencing Issues ~ Mike Heiskell Sex Offender Registration ~ Catherine Burnett Search and Seizure ~ David Guinn
Family Violence ~ Betty Blackwell
Adjourn Friends of Bill (Pecan Room, Hill Country level) TCDLA Anniversary Dinner and Awards Banquet (ticket needed) TCDLA Annual Membership Party —Hyatt Regency Ballroom (ticket needed)
SATURDAY - June 26, 2021 Registration & Continental Breakfast Opening Remarks ~ Stan Schneider The New Supreme Court ~ Gerry Goldstein Intersection of Hip Hop in the Criminal Justice System When Your Art Form Can and Will be Used Against You ~ Drew Findling Trial Tactics ~ Mark Lanier In the Shadow of Mass Incarceration and the Death of George Floyd ~ Barry Scheck Adjourn 50th Annual TCDLA Members' Meeting and Swearing in of Officers and Board Members Rosario's Celebration Lunch
Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course June 24-26, 2021 Hyatt Regency San Antonio, TX
Topic: DWI During the Prohibition
Speaker:
Mark Thiessen
733 E 12th Street Houston, TX 77008 (713) 864-9000 office (832) 654-3058 cell (713) 864-9006 fax mark@thetexastrialattorney.com email www.thetexastrialattorney.com website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
BACK TO THE BASICS; Attacking SFSTs, Not the Officer By: Mark Ryan Thiessen and Frank Sellers
In the heat of trial, every trial attorney fights vigorously for their DWI client. In that fight, it’s understandable that you want to destroy the officer, destroy the Standard Field Sobriety Tests (SFSTs) and vindicate your client. Often times, however, juries end up feeling sorry for the bumbling police officer and will hold it against the client if the attorney berates or embarrasses an officer. This article will explore a trial tested, proven method that educates a jury on the complexities and meticulous grading system of the SFSTs, rather than attacking the officer. Attack the system, not the officer. In the end, if done properly, the jury will empathize with the client. This empathy will assist the jury in finding the client not guilty—without leaving jurors feeling guilty for voting against law enforcement. The Officer Is a Human Being We can all agree there are good and bad officers. Just like attorneys. And contrary to popular belief, even “bad” officers are people too. Just because an officer may be “bad” or incompetent at his job, doesn’t mean they are evil. Somewhere, to someone, they are human with all the emotions, positive attributes, negative attributes, good days, bad days, highs and lows that we all enjoy and suffer. Someone out there loves them. They are someone’s family member. Once upon a time, they took an oath to protect and serve the community we live in. Most of the time, they may still be trying to do their best, but their best is sub-par. Remember this—seriously. You must think like an average juror. How many clients are shocked that the officer “is bold-faced lying” on the stand? We can’t let our daily experiences jade and warp us. Put yourself in the shoes of your family or friends that have minimal police contact. Most respect police and admire their sacrifice. Growing up we were all probably taught to respect and trust the police. And honestly, most of us still do, for the most part. Hell, even criminal defense lawyers introduce their kids to their police friends and teach their kids to respect and honor the police. Most of our jurors were raised the same and probably raise their own kids this way. Only in roughly the last seven years did police misconduct and abuse of power really start making the news. In the past couple years, the pendulum has swung—giving jurors cause to be wary or even scared of the police in certain situations. The world is slowly recognizing the magnitude of the problem and the catastrophic consequences when police lie, hide evidence, destroy evidence, collude, or make “honest” mistakes. To conclude this diatribe about the humanity of police officers, just try your best to remember the jury starts out thinking they are a good officer. Being one of the biggest offenders of the scorched earth cross examination, we understand the eye rolls. But, it’s not about what we know, it’s how we convey it to the jury. In the famous words of Dalton from Roadhouse: “Be nice. I want you to be nice, until it’s time not to be nice.”
Standard Field Sobriety Test Hard Truths The Standard Field Sobriety tests were developed around 1975 when National Highway Traffic and Safety Administration (NHTSA) performed research with South California Research Institute (SCRI) to determine which roadside field sobriety tests were the most accurate.1 SCRI published three reports: 1. California 1977 (Lab); 2. California 1981 (Lab and Field); and 3. Maryland, D.C., V.A., N.C. 1983 (Field).2 SCRI originally travelled around the United States with six tests, but narrowed it to the three tests we know today: Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT), and the One Leg Stand (OLS).3 Twenty years later, three validation tests were undertaken between 1995 and 1998: 1. Colorado 1995; 2. Florida 1997; 3. San Diego 1998.4 Many other articles examine the pitfalls and biases of these validation studies. Concocted in the 70s and validated in the 90s, these tests are now 40+ years old and haven’t been revalidated in the last 20 years. SFSTs are not a law of physics or science, meaning it’s not like they are indisputable. These are simply coordination exercises created by police and “scientists” in the 70s. How the Officer is Trained to Administer the SFSTs Before we dive into the actual SFSTs it’s important to educate the jury on just how this officer was trained and who trained them. Set the stage to illustrate the difference between how they were graded on their SFST proficiency test and how they now grade people on the SFSTs. “Before we get into the tests, can we just explore how you learned to give these tests?” Officers are usually happy to boast about their training. Start by establishing when the Officer was first certified to administer the tests. It’s usually in the academy. • • • •
And how long was your course? (Usually 24-40 hours, around a week.) Who trained the officer? (Other officers.) When you were trained, did you come in the first day and did your police officer teacher tell you how to administer the tests and then just grade you on administering them? No, you were provided a textbook - the SFST manual? You still have it? Did you bring it today?
At this point, if not done prior, establish the NHTSA student SFST manual is a learned treatise under Texas Rules of Evidence 803(18). Rule 803(18) clearly states that a learned treatise may be read into evidence, but not received as an exhibit.5
1
NHTSA Student Manual HS 178 R2/06; VIII-1 (February 2006). Id. 3 Id. 4 Id. at VIII-2. 5 Texas Rules of Evidence 803(18). 2
Be ready for the State’s objections when you begin reading from the manual. Many untrained prosecutors will try to prohibit you from reading a document not in evidence or try to admit the manual. “Your honor, I would love to admit this manual, but unfortunately under TRE 803(18) it’s specifically prohibited.” The prosecutor may also object to defense counsel reading it in to evidence and not the officer. Nowhere in 803(18) does it say who is allowed to read the learned treatise. And, who do you think puts more inflection and importance in reading the necessary language? The defense attorney should read it and is absolutely allowed to—once it’s established as a learned treatise. •
Officer, you were trained according to the NHTSA student manual? authoritative on how to administer these tests? BAM! 803(18)
And you agree it’s
If the officer gets shifty with what year manual, all of the manuals can be found online and you can find most on the TCDLA app. Prior to trial, it helps to establish either with the State or the officer on which edition of the manual they were trained on and will accept to agree is authoritative. If the Officer is really difficult and wants to use his manual, ask for a continuance for the Officer to go get his manual or send the officer a subpoena duces tecum to bring their SFST manual prior to trial. Most judges are very familiar with the NHTSA SFST manual and will not tolerate the officer’s games. Back to examining their training: • • • • • • • • • •
When you were trained, you got to practice administering these tests? You were allowed to study the entire week? You were allowed to practice the entire week? You knew at the end of the week you would be tested? You knew that you would be tested on the clues, the definitions, and administration? And you had to get a 70, 75, 80% grade to pass? (Most don’t know the actual passing percentage.) Now when graded, you got credit for the answers you got right? Just like in school and every test you’ve ever taken? On a 100-question multiple choice test, you miss 6, what’s your grade? (94) That’s because you get credit for every answer you got right? If your kid came home from school missed 6 and had an F written next to that 94, what would you do? (Most say march down to that school. Agree. And welcome the sidebar objection.)
“Officer, I’m Not Here to Bust Your Chops” Say it 10 times during your cross. Do not attack the officer—attack the tests. “Officer, I know these aren’t your tests. You didn’t design them. You are just following what you’re were trained to do. So, I’m not busting your chops.” Repeat this over and over. Let the jury know we are not attacking this officer. We are not complaining about the officer. We don’t hate the player; we hate the game. “But officer, if someone admits to drinking or you think they might be intoxicated, you are going to give them these tests in this same standard way.” Start putting the jurors’ minds in the shoes of the client. Many times, I’ve even gestured around the entire courtroom and stated “so everyone in this entire courtroom, as long as they are not intoxicated should be able to pass these tests? Judge, reporter, bailiffs, people in the gallery, everyone in this whole courtroom?” Purposefully leave out the jurors to avoid any potential objection. Some officers may pause because they know there are certain limitations on the SFSTs. “Well, I mean there are certain people that may have difficulty with these tests naturally, right? Those over 65 years old, 50 pounds or more overweight, leg, back or neck injuries, head injuries or trauma,
and lots of other ailments?” Remind the jury the officer has no medical training and wasn’t trained by any doctors or nurses. Most officers were told to just take the client’s age, weight, or injuries “into consideration” when determining intoxication. Yeah, right! “But again, officer, I’m not here to bust your chops, let’s examine these tests so that if anyone wanted to try them out, they could know what to look for and how to grade them.” What’s the officer going to say? Before examining the SFSTs, it’s helpful for the jury to visually understand the tests and clues. Whether you bring an easel and butcher paper, your tablet on the screen, or even a dry erase board, make sure it’s a large and colorful demonstration. Imagine a CLE with no PowerPoint versus one with colorful displays. Like us, jurors appreciate, learn better from, and remember colorful presentations. Horizontal Gaze Nystagmus (HGN) Most jurors have seen some sort of advertisement or illustration of an officer waiving a pen in front of the eyes. Before getting into the HGN, dive a little deeper into their training. Explore their range of knowledge. “Officer, you know there are many different types of nystagmus, 88 actually?” It’s unimportant how many types of nystagmus the officer knows, but he will always agree there are many. Only a few are listed in the NHTSA student manual. Most officers have only read about these other types, or maybe seen them on video, very few have actually seen them in person or done testing and seen these. It’s important to educate the jury that there are so many different ways the eyes can jerk and for a variety of medical, environmental, or natural conditions. Additionally, the jury needs to know who trained the police officer to distinguish the minute jerks of the eye. • • • • • • • • • • •
Now, Officer, I’m not busting your chops, but were you trained by an ophthalmologist? Optometrist? Nurse? Person who worked for Lens Crafters? Anyone wearing a white lab coat? The police officer that trained you, he didn’t show you the other types? Have you ever heard of Bruns, latent, pendular, vestibulo ocular, spasmus, or rebound nystagmus? Has anyone showed you the difference between those and horizontal gaze nystagmus? In your manual, you have optokinetic, rotational, post rotational, caloric, and positional alcohol? Have you ever even seen those? And those look just like horizontal gaze, but for non-intoxicated reasons?
Now start demonstrating the HGN main points for the jury to see. Write HGN in black on the top the pad on your easel. “How far do the eyes have to jerk in order to be counted as a jerk?” Most officers get confused and hesitate. “If we wanted to put a ruler underneath the human eye, the jerk of the eye is millimeters, right? Maybe a centimeter? Maybe 1/32 of an inch?” “So how far does the NHTSA manual say the eye must jerk in order to be counted as a jerk? How many millimeters?” If the officer continues to hesitate, rescue him: “Sorry, officer, I’m not busting your chops, there is no definition, right?” Write: No Def. of How Far Jerk (mm). “How many times does the NHTSA manual say the eye must jerk in order to be counted as a clue of intoxication?” Write: No Def of # of Jerks. Some officers may try and get cheeky and say it just has to be distinct and sustained. Break it down for the officer, gently. “Distinct means you clearly see it. And sustained means it must be continual. And that’s just for the second pass
when you are holding it out for at least 4 seconds. What about in the first clue – lack of smooth pursuit? How many times does it have to jerk when you are just going side to side? And then in the third clue – onset prior to forty-five degrees, how many times does it have to jerk before forty-five degrees for you to stop your pen before you get to their shoulder?” Most officers will state just once. If they are still being evasive, rely back on the learned treatise NHTSA manual. “Show me in this manual, where it says once, twice, three times a lady that it had to jerk?” Even writing this type of evasive answering makes me want to destroy this officer. Repeat to yourself, this officer is human, he is loved by someone, somewhere. Get back to your center. “Officer, I’m not trying to bust your chops, this is not your test, you did not design these tests. Nowhere in this manual, did anyone ever state how far or how many times the eyes had to jerk?” Most prosecutors have already bored the judge and jury to death with the timing of the HGN. Usually the officer has been properly woodshedded by the state and knows the HGN timing. If he doesn’t, or did it grossly wrong on the video, you may want to show the jury the difference between NHTSA standardized and how the officer administered. But this article suggests a different tactic in attacking the HGN, one that is not based on breaking down the timing. The HGN is not a divided attention test like the Walk and Turn (WAT) or the One Leg Stand (OLS). The officer will agree. If not, the NHTSA manual defines the WAT and OLS as divided attention tests.6 The manual defines HGN as an involuntary jerking of the eyes as they gaze toward the side.7 Nothing about HGN or Nystagmus says divided attention. Remember to be careful with your words here, “nystagmus does not measure mental or physical faculties?” No, it doesn’t. Inexperienced officers will try and argue that it does. To combat this simply illustrate that nystagmus is an “involuntary” jerking and cannot be controlled by our eye muscles, as much as we may want to. And, we cannot make our brains through the neurons to control this involuntary jerking, as much as we want to. Some persistent officers will continue to argue, at which point you may need to distinguish where the loss of mental or physical faculties come into the WAT and OLS and how that’s not possible in the HGN. Nowhere in the NHTSA manual does it say loss of mental or physical for HGN. Depending on the remarks in the video, if the officer just will not agree nystagmus doesn’t measure mental or physical, ask them about the client’s performance, try this: • • • •
He had no problem following your stimulus? Never had to tell him to not move his head? So, he displayed good mental faculties is following your instructions? He displayed good physical faculties in watching your stimulus and not moving his head.”
The jury will be turned off and the officer will damage credibility by continuing to argue. Under your HGN heading, write: Does Not Measure Mental or Physical Faculties. After this amount of cross, the officer has already established a reputation with the jury. Discuss the findings on the HGN. “You found 6 out of 6 clues on my client? That’s all of them, maxed out?” Write: 6/6 on the board in the top left in red. We will come back to this at the end of all the SFSTs. “There is no way that I can prove you didn’t see those little jerks? Stimulus is 12-15 inches from their face, your face is about another 1215 inches from your hand. That’s 24-30” from his eye, at night, looking for millimeters of jerks.” The jury 6 7
Id. at 2. Id. at 1.
gets it. “You never stated out loud when you saw these clues on camera? You never said lack of smooth pursuit, maximum, onset into your mic while you were doing them? In fact, you wrote down how many clues you saw when writing you report? You wrote your report after you had determined he was intoxicated? After you had arrested him? After you towed his car?” Some officers may say they are prohibited from stating the clues on the video by law, which is correct under Fischer.8 “Well you could have said them and then we just would have muted it, but it could serve to remind you which clues you actually saw? But you remembered later, you saw all of them? We just got to trust you?” Write: Trust Me in big red letters on the tope right of the board. “You didn’t arrest him after the HGN test did you? Even though you got all 6 out of 6 clues? The next test you administered was the Walk and Turn?” The Walk and Turn (WAT) The WAT is a divided attention test meaning that it is supposed to measure your mental faculties and physical faculties. In plain English, they want to see how well you can listen to instructions (mental) and then perform (physical) what you just heard. The WAT is a test where the video will actually show us the client’s performance. There is no “trust me” in the WAT. The overall intent in dissecting this test is honestly for the jury to go home, try it, and realize how absolutely ridiculous this test is and how strictly it’s graded. Slowly break down this test to the jury using the officer and the NHTSA manual. Turn to a new page on your easel and write: WAT in big black letters at the top of your display. Then lay out the eight clues of intoxication NHTSA established. Know them by heart, it’s your profession. Start writing them down the board as you recite them. “The first two clues come in the Instruction Phase, meaning they have to stand like this while you give the instructions and demonstrate. 1. Can’t Maintain Balance; 2. Starts too Soon. The next six come during the Walking Phase. 3. Steps Off Line. 4. Misses Heel to Toe. 5. Raises Arms. 6. Stops While Walking. 7. Incorrect Number of Steps. 8. Improper Turn.” Now the jury can clearly see what the test is graded on. Next, show the jury how the test is really administered. Ask the judge to stand up and demonstrate portions. •
8
“Officer, this test has 18 unique instructions? Don’t worry, I’m not quizzing you, let’s go through them together: (count these out on your fingers as you go so that the jury can follow along) o 1. Place your feet on a line, o 2. In a heel-to-toe manner, o 3. Left foot behind right foot, o 4. With arms at sides and give a demonstration. Tell subject o 5. Not to begin until instructed to so do and asks if subject understands. Tell subject to take o 6. Nine, o 7. Heel-to-toe steps, o 8. On the line and demonstrates. Explain and demonstrate the turning procedure: o 9. Lead foot planted, o 10. Take a series of small steps,
Fischer v. State, 252 S.W.3d 375 (Tex.CrimApp. 2008).
o o o o o o o o
11. To the left direction. Tell the subject to 12. Return on the line, 13. Taking nine, 14. Heel-to-toe steps. 15. Count out loud. 16. Look at feet while walking. 17. Not raise arms from their sides. And 18. Do not stop once they have started. Do they understand?9
Write: 18 Instructions on the board top left in red. “How many times did you demonstrate the test?” Write: 1x Demo or whatever they say. “How many times did you allow him to practice this test before grading him?” Write: 0 Practice. “Did you tell him the clues you would be grading him on?” Write: 0 Clues Given “Did you give him credit for all the good stuff he did right?” Some may argue or be confused. Circle back to their training and their testing and how they were given credit for all the answers they got right. Hell, every test anyone has ever taken they got credit for the stuff done right! “You agree, age, weight, leg, back or neck injuries may affect an individual’s performance on this test?” Write: whatever issue your client has. “Now tell the jury how many clues equals failure or the decision point?” Write: 2= Intox. Next show the jury how meticulous the test is scored. Go through each of the clues and define them. When you get to heel-to-toe, ask the officer to show the jury with his fingers just how far someone has to miss heel-to-toe in order to be counted as a clue of intoxication. And, make sure to ask if that half inch is between his fingernails or finger beds, on just one step. Write: the measurements of ½” and >6” next to heel-to-toe and raises arms. Be sure to put green check marks next to all the clues your client didn’t exhibit. When you get to improper turn you should slow down and explain to the jury that there are three ways you can get that clue: series of small steps, leave the lead foot planted, and turn to the left. Let the jury see all of the ways there are to get a clue of intoxication. Bring it home for the jury. Ask the officer how many clues your client exhibited. Write 4/8 or whatever it was. “So, you’re telling me that every single sober person in here has to get a 0 or 1 on this test? Cause 2 equals intoxication?” Look at the jury after the officer admits this. Share that common ground with them. “So you’re telling me, if someone were to go home and try this test, not that anyone would, but now knowing all of the clues and how it’s graded (optional sidebar: which is something my client didn’t know), they should be able to get a 0 or a 1 on it?” You have to love the zealous officer that will not only agree, but add that the tests are easy or that he sees plenty people pass them. Finish off the cross with a final blow. “Officer, is this a normal or abnormal way to walk?” Most officers will never admit it’s “abnormal.” Ask them: who else walks like that? Most either can’t think of it or don’t want to say it: gymnast on a balance beam, but they get to balance with their arms to the side; and tight rope walkers, but they get that long bar. Write: Abnormal in the top left in red. “Now I’m not busting your chops, these aren’t your tests, but you’re supposed to judge whether someone has lost the normal use of their mental and physical faculties on an abnormal test? And, you still didn’t arrest my client after this test?”
9
NHTSA Student Manual XV-1 test at end.
The One Leg Stand (OLS) Very similar to the WAT, lay out the OLS. Start with the clues: 1. Sways, 2. Hops, 3. Drops, and 4. Raises Arms. Count out the instructions: 1. Stand straight, 2. Place feet together, and 3. Hold arms at sides. 4. Tell subject not to begin until instructed to do so and if they understand. 5. Raise one leg, either leg, 6. Approximately 6 inches from the ground, 7. Keeping the raised foot parallel to the ground and give a demonstration. Tell subject 8. Keep both legs straight and 9. Look at the elevated foot. 10. Count out loud, in the following manner: 11. One thousand and one, one thousand and two, one thousand and three, 12. Until told to stop. And give demonstration.10 Follow the pattern in the WAT and write: 12 Instruction, 1x Demo, 0 Practice, 0 Clues Given, 0 Credit given, age, weight, back, leg or neck injuries may affect. 2= Intoxicated. When examining each clue be sure to establish there is no distance for sway as defined by NHTSA. No definition of how many inches or how long someone must sway. Write: ?” You don’t need to save the abnormal surprise, the jury gets it. “Is this a normal or abnormal way to stand? Even the Karate Kid got to raise his arms for balance?” And then bring it home, “so everyone in this room better be able to get a 0 or 1 on this test? And all humans have a natural sway when standing on one leg? So that’s one clue already with no definition of how far or how long one must sway? That means everyone should be able to stand on one leg for 30 seconds without dropping it, and not raise their arms or hop the entire time? Not that anyone would ever try that at home.” Before you wrap up your cross, come back around to the HGN. “My client got 4/8 on the WAT and 2/4 on the OLS, right? Never maxed out any of these tests as we can clearly see on video. But after you arrested him, towed his car, and got to write your report you wrote 6/6 on the HGN?” The jury sees where you are going. The officer sees where you are going. It’s a rhetorical question, let the jury ask it and answer it in their heads. “So, we just have to trust you that he failed that miserably, but on the video, he looked good (we probably are not in trial if he doesn’t look good)?” Lastly, bring the fear home. “Not to bust your chops officer, cause these aren’t your tests, but if someone is pulled over on the way home from dinner and smells like alcohol or admits to drinking at dinner, they could have to do these tests? And then if they do these tests, you will have to administer it in the standardized manner only and grade it just like we saw? 0 or 1 to go home?” This will resonate with everyone. As you can tell, breaking down these tests, they are next to impossible. We as defense lawyers know these tests and on any given day with the weather, nerves, and our conditioning, we couldn’t pass these. To assume regular, everyday people who don’t know these tests are capable of passing . . . Let’s be honest: it’s whether the officer wants to arrest you or not. They are purely subjective. CONCLUSION This article is not suggesting that no tests should be given to suspected drunk drivers. Rather, it breaks down the simple reality of how stringently and subjectively these tests are graded. Unfortunately, many people who “fail” these tests will not have the ability to fight these tests; be it for financial reasons, time constraints, or hiring an attorney who doesn’t want or care to fight it.
10
Id.
We as trial lawyers must know these tests better than the officers. Only once you truly understand these tests can you simplify their basic elements and effectively communicate their unfairness to a jury. Many times, at the end of a trial, jurors will remark how they are never drinking and driving again because there is no way they can pass these tests. These are normal people, just like our clients. And it’s not about the officer; don’t bust his chops. It’s an unfair testing system. Jurors can feel confident in a not guilty verdict for standing up for natural human error in coordination exercises. Break the SFSTs down to the basics make it about the tests, not the officer. Jurors can still respect law enforcement while finding the client not guilty even after “failing” these unfair “tests.”
Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course June 24-26, 2021 Hyatt Regency San Antonio, TX
Topic: DNA Defense
Speaker:
Nicolas Hughes
1201 Franklin St., 13th Floor Houston, TX 77002 (713) 274-6700 phone nicolas.hughes.law@gmail.com email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
DNA DEFENSE IN THE ERA OF PROBABILISTIC GENOTYPING I.
Author’s note This document is a first attempt to capture in words one suggested approach to
considering and selecting a range of evidence-focused defenses in DNA cases. While forensic biologists have presented DNA evidence in courtrooms for over three decades and forensic serologists have presented blood type evidence long before that, the defense bar does not currently have a cohesive strategy to combat this form of evidence. Rather than speculate about what might work before a jury, this document attempts to challenge DNA evidence on its own terms, using science and inherent limitations in the methodology to advance the defensive theory of the case. This document reflects a work in progress, and will hopefully be soon eclipsed by new strategies that combine experience, psychological research, and scientific limitations to better challenge DNA evidence. As most of Texas has already adopted or is moving towards Probabilistic Genotyping (software-driven) DNA analysis for mixtures, this paper focuses on these systems over legacy systems. Probabilistic genotyping systems are designed to fix one of the critical shortcomings of DNA analysis: the difficulty of separating different profiles in a DNA mixture. These systems pose unique challenges to defense lawyers and are seen as less vulnerable to attack. However, probabilistic genotyping systems do not solve any of the underlying limitations of DNA as evidence. This paper seeks to
dispel the myth of “invulnerability” and provide areas where lawyers can both challenge and side-step the perceived strength of probabilistic genotyping evidence. II.
The reality of DNA defense There is a sentiment among many practitioners that “DNA is different,” meaning
juries and judges treat DNA evidence differently. Studies seem to confirm this perception. There is evidence that juries treat DNA evidence as a “gold standard,” believing that DNA evidence is more reliable than other forensic evidence, and DNA evidence is proven to have a greater effect on guilty verdicts than other forms of evidence.1 To make matters worse, there is evidence that juries do not differentiate between valid and invalid scientific evidence, are relatively insensitive to competing claims by a defense expert, are relatively insensitive to cross examinations that point out methodological flaws, and instead juries focus on experts’ perceived qualifications and experience.2 There is no evidence that judges perceptions are any better than jurors when confronted with forensic evidence.3 To the contrary, evidence suggests that the vast majority of judges struggle with and misunderstand the Kelly/Daubert factors of falsifiability/testability and error rate. All of this research is pretty dim and leads to the conclusion that judges and jurors are probably ill-equipped to handle scientific evidence.
1 Shuchun Ling, Jacob Kaplan, and Colleen M. Berryessa, The importance of forensic evidence for decisions on criminal guilt, Science & Justice (in press) available at https://doi.org/10.1016/j.scijus.2020.11.004. 2 See Margaret Bull Kovera and Lora M. Levett, Jury Decision Making, 2 APA HANDBOOK OF FORENSIC PSYCHOLOGY 271311 (APA 2015). Note that though most of the article is cautionary in nature, Kovera suggests that experts may be beneficial to the defense team where they are able to help jurors understand problems in scientific experiments or offer visual demonstrations. 3 Margaret Bull Kovera and Bradley D. McAuliff, The Effects of Peer Review and Evidence Quality on Judge Evaluations of Psychological Science: Are Judges Effective Gatekeepers?, 83 J. Applied Psychology at 574-586 (2000).
Just like a doctor needs to understand the risks of a dangerous surgery before advising a patient how to proceed, a lawyer needs to set realistic expectations about how the Courts and jurors will receive DNA evidence. This is not to say that all hope is lost or that DNA is a surefire path to conviction. While the good criminal defense lawyer is aware of what is likely to happen in Court, the great criminal defense lawyer should be equipped to predict where and how the legal landscape might change in the future, and should advocate for that change. Cases like Gissantaner4 and Criner5 demonstrate that DNA evidence, even modern DNA evidence using probabilistic genotyping technology, may be successfully challenged given the right circumstances. In these cases, lawyers were able to take advantage of mistakes made in establishing the reliability of probabilistic genotyping testimony and in-court testimony to their clients’ benefits. But what the vast majority of the cases where the laboratory’s testimony will be admitted without any meaningful limiting instructions? Unlike the highly organized and active DWI bar, lawyers defending DNA are only starting to collaborate and more widely share strategies for DNA cases. This article seeks to present a framework for defending this type of case, regardless of whether DNA evidence is admitted at trial. While there is no empirical evidence supporting this framework (or any other approach,
United States v. Gissantaner, 417 F. Supp. 3d 857 (W.D. Mich. 2019). Pretrial Hearing on the Admissibility of DNA Evidence, State v. Criner, No. D-1-DC-18-904027 (167th Dist. Ct., Travis Cty., Tex., Jun. 18, 2018). 4 5
for that matter), hopefully this approach and thought process can help both young and experienced attorneys who are called to swim in the deep end of criminal casework. III.
Understanding the limitations of DNA as evidence
There are two important limitations of DNA evidence: the type of information DNA can provide in a criminal case and the complexities of DNA transfer. As it is currently employed in laboratories across the state (January 2021), forensic DNA analysis only provides one piece of case-relevant information: who may have contributed to the DNA found on a piece of evidence.6 Absent additional information, forensic DNA analysis does not provide information about what type of cells it came from, how long it has been sitting on an object, or what was happening when the DNA was transferred to an object. Most defense lawyers are keenly aware that DNA evidence is irrelevant to a defense of consent in a sexual assault case, but this may be true in any
Graham Jackson and Alex Biedermann, “Source” or “activity” What is the level of issue in a criminal trial?, 16 SIGNIFICANCE at 26-29 (2019).
6
case where the accused has some connection to the location or person where the DNA evidence was found and the relevant questions are how or when. In cases involving multiple profiles or potential transfer, DNA may not address who had access to the item. When DNA evidence does not address the important issues in the case, it may be possible
to
challenge
DNA
evidence without challenging the accuracy of the expert’s analysis or the expert’s credibility. In these cases, it may be possible to co-opt the State’s expert to lend plausibility to the defensive theory. The second main limitation of DNA evidence is the unpredictability of DNA transfer. In cases involving low levels of DNA, coupled with sensible theories of how or why the DNA may have transferred to an item without any involvement of the accused, the State’s expert should concede the possibility of indirect DNA transfer. In these cases, the defense lawyer may also be able to use evidence within the DNA casefile and crime scene investigator’s report to bolster the defense.
10 questions that are hard or impossible for any DNA analyst to answer 1. Was the DNA deposited on the surface before, after, or during the incident? 2. If you sampled the evidence at a different place, would you get the same profile? 3. If the item was swabbed all over and where the DNA was found is important to the case, do you know where specifically on the item the DNA came from? 4. If there are multiple profiles on an item, which profile was deposited on the item last? 5. If there is a major and a minor profile, who touched the item last? 6. Is it possible that the perpetrator touched the object, but didn’t leave a detectable DNA sample? 7. If the DNA is “touch” DNA, how was that DNA deposited on the surface? 8. If the DNA is “touch” DNA, can you be sure that the person of interest deposited the DNA on the surface? 9. Before the object was packaged and your laboratory took custody of the object, do you know whether anyone with access to the scene accidentally or intentionally transferred the DNA onto the surface you tested? 10. If you didn’t perform serology, is there a validated methodology you can use to determine whether the evidence you sampled contained sperm or blood? A. The pathway from DNA to evidence profile can be very complex Though numerous studies have tried to quantify and understand “touch” DNA transfer, a great amount of uncertainty and variability occurs in the processes that lead to DNA transfer.7 DNA transfer is the transfer of cells containing DNA and/or cell-
7 For a review several articles discussing the complexities of DNA transfer, see John M. Butler & Sheila Willis, Interpol review of forensic biology and forensic DNA typing 2016-2019, 2 FORENSIC SCIENCE INTERNATIONAL: SYNERGY at 355357 (2020).
free DNA onto some surface, be that surface an object or another person’s skin. “Touch” DNA is a term of art that distinguishes invisible DNA, generally from skin cells, from DNA found in visible bodily fluids or tissue. A person’s ability to deposit “touch” DNA, in the field of forensic biology termed a person’s “shedder status,” varies not only person to person, but reportedly varies even at different times the same person comes into contact the same way with the same item.8 In different instances even within the span of the same day, the same person may leave behind a relatively small amount of DNA, no detectable DNA, or a relatively high amount of DNA. DNA transfer issues are made even more complicated when multiple people handle the same object. To make this matter worse, DNA can be indirectly transferred, meaning that DNA can be deposited onto one surface and then be transferred to another surface that the person who deposited the DNA never came into contact with. If a person’s DNA is transferred onto a third party’s hand, the deposited DNA could be transferred onto a crime scene the person never visited.9 IV.
Research on the intricacies of DNA transfer
One of the first and foremost researchers in DNA transfer, Professor Roland van Oorschot, recently published a fairly comprehensive review of DNA transfer research that provides a recommended starting point for understanding transfer. The
8 Lydie Samiea, Franco Taronia, and Christophe Champod, Estimating the quantity of transferred DNA in primary and secondary transfers, 60 SCIENCE & JUSTICE at 128-135 (2020). 9 This is not a merely theoretical concern. For an example of a case where transfer DNA wrongfully implicated a person in a murder investigation, see Katie Worth, Framed for Murder by His Own DNA, WIRED (Apr. 19, 2018).
following section is drawn from the studies cited in Professor van Oorschot’s comprehensive review of the state of researchers’ understanding of transfer in 2018.10 A. Direct transfer, indirect transfer, contamination, and background DNA DNA can be transferred directly or indirectly. An example of direct transfer is when person A touches a surface, and person A’s DNA can be detected on that surface. An example of indirect transfer is when person A shakes hands with person B, person B touches a surface, and person A’s DNA can be detected on the surface that person A never touched. Indirect transfer can happen multiple times and can occur in very complicated routes. Studies have shown that indirect transfer can occur in situations where a person might be wrongfully incriminated by the transferred DNA – for instance, person A might transfer DNA to person B, and person B might touch a knife and deposit person A’s DNA on that knife. To make matters more complicated, the person who deposits more DNA onto a surface (the major contributor) may not be the last person to handle an object or might have never handled the object at all. Samples can be contaminated by DNA transfer occurring in the time period after a crime occurs by officers, dirty tools, analysts, and even the instruments or consumables (reagents) needed for DNA analysis. Transfer can be bi-directional (from person A to person B and from person B to person A), can occur in complex pathways, and can persist on surfaces. DNA and sperm cells can even transfer during laundry.
Roland van Oorschot et al., DNA transfer in forensic science: A review, 38 FORENSIC SCIENCE INTERNATIONAL: GENETICS at 140-166 (2019). 10
DNA transfer is also impacted by the type of surfaces involved and the manner in which the DNA is transferred. Generally, DNA transfers better to a porous surface, transfers better as a wet fluid (like blood or semen) than a dried fluid, varies with a person’s “shedder status”, is transferred better when contact occurs with greater amounts of pressure or friction, and can even vary by the part of the hand used to touch an object. These variables are not accounted for during typical forensic DNA analysis. DNA can persist on surfaces long after the DNA is transferred to that surface. One consequence of this property is background DNA. Background DNA is defined as DNA present on a surface that was deposited during some previous use or contact. Background DNA can vary in complexity and can yield both single source profiles and DNA mixtures. “Touch” DNA in particular can lead to complex mixtures. Background DNA can be observed both on inanimate objects as well as humans. Surprisingly, foreign DNA has been detected on various body parts of people going about their day in a usual manner. In some of the people studied, more foreign DNA was detected than DNA from the person providing the DNA sample. Background DNA can be detected on personal items and clothing. In most cases, background DNA detected on these personal items and clothing is from the person who uses the item or wears the clothing, but in some cases, other contributors were detected. Traditional DNA analysis techniques cannot distinguish background DNA from more recently deposited DNA. B. DNA persistence
The persistence of DNA evidence, or ability to detect DNA after the passage of time, varies greatly. Some environmental factors affecting the persistence and quality of DNA evidence include UV exposure, temperature, wind, rain, humidity, and presence of micro-organisms to decompose biological material. Other factors include the type of contact (persistent use versus incidental contact), subsequent contacts that can deposit and remove DNA from a surface, and whether the surface has been washed after the DNA transfer. DNA persistence can vary depending on the type and pattern of use of the item. Modern studies suggest that spermatozoa do not persist in the vagina more than 96 hours after intercourse (an author reported that spermatozoa could be detected 12 days after intercourse in 1972). Additional studies suggest that using nylon swabs, male STR DNA can be detected up to 60 hours after sexual intercourse while male YSTR DNA can be detected up to 84 hours after sexual intercourse. C. Synthesis While it is generally folly to assume as a lawyer, one understands more about forensic biology than an analyst who spent at least four years learning about the subject and is immersed in the topic every day, a lawyer can certainly learn enough about DNA transfer to undermine the value of DNA evidence, and can potentially surpass the understanding of the typical analyst.11 Professor van Oorschot’s review provides a great starting point by outlining the relevant variables necessary to understand and predict 11 It is a common trap to overestimate one’s knowledge in a domain where one has relatively little understanding. Justin Kruger and David Dunning, Unskilled and Unaware of It: How Difficulties in Recognizing One's Own Incompetence Lead to Inflated Self-Assessments, 77 J. PERSONALITY AND SOCIAL PSYCHOLOGY at 1121-1134 (1999).
DNA transfer. By supplementing this research with more recent studies, a lawyer can enhance the power of a cross-examination on transfer.12 Many of the relevant variables will be unknown or never considered by a DNA analyst performing routine DNA analysis. Even when all the variables are known, DNA transfer is unpredictable. While many trial lawyers who deal with DNA evidence already know about transfer, offensive use of scientific studies on transfer can lend credibility and precision to the defense team’s claims, and can often be offered through the State’s analyst. V.
The limitations of forensic biology instrumentation This section aims to provide a better, clearer understanding of what forensic
biology can currently achieve and where its limitations lie. In order to do so, it is important to highlight some of the common forensic biology methodologies used in Texas laboratories and the potentially important questions these methodologies cannot answer. A. Forensic DNA analysis methodologies There are a range of different forensic DNA techniques that are commonly used in casework.13 Traditional DNA profiling (STR DNA analysis) looks to see what genetic information (alleles) is present in a limited number of specific locations (loci) on different
A pre-print version of the article and the outline in question is available at https://opus.lib.uts.edu.au/bitstream/10453/136611/4/DNA%20transfer%20in%20forensic%20science%20A%20revi ew.pdf 13 For an overview of the types of forensic DNA analysis, see Alexandre Angers et al., Study on DNA Profiling Technology for its Implementation in the Central Schengen Information System, EU JOINT RESEARCH CENTRE (2019) available at https://publications.jrc.ec.europa.eu/repository/bitstream/JRC116742/sis_dnajrc_science_for_policy_report_with_identifiers.pdf 12
chromosomes. Traditional DNA analysis distinguishes different types of genetic information (alleles) by looking at the length of each genetic sequence. Traditional DNA profiling is not able to detect variations in the genetic information (sequence variants), but only differences in length. Traditional DNA analysis would treat the sequence “CAGA” the same as “TAGA” because they both have the same length. Y-STR DNA analysis is similar to traditional DNA analysis, but instead only looks at information on a limited number of sites (loci) on the Y chromosome. While traditional DNA analysis looks at DNA information inherited from both parents, Y-STR DNA analysis only looks at DNA inherited from the biological paternal line (in most cases, a Y chromosome must come from the biological father).14 Mitochondrial DNA analysis (mtDNA analysis) looks at an even more limited number of sites in the specialized DNA from cells’ powerhouses (mitochondria). The powerhouses (mitochondria) are part of the egg cell, and therefore are in most cases from the biological maternal line. Traditional analysis (STR DNA analysis) provides relatively powerful ability to identify DNA contributors; Y-STR DNA analysis is male specific and can be useful and more sensitive in sexual assault cases; mitochondrial DNA analysis (mtDNA analysis) is able to provide results in harsher conditions where traditional analysis fails. Next
Always take blanket statements about genetics with a grain of salt. Genetic and/or chromosomal abnormalities can lead to complex results like tri-allelic variations (instead one copy of genetic information at a particular location from each parent, a person might get an extra copy), null alleles (mutations in the site that the genetic analysis looks at might make the genetic information invisible during analysis), biological sex (there are a lot of factors that can affect one’s sex chromosomes and sex characteristics at birth, including Swyer Syndrome, Androgen Insensitivity Syndrome, and genetic abnormalities), and other variations. These variations might be important in the right case and are usually glossed over during DNA analyst’s testimony. 14
Generation Sequencing, also called Massively Parallel Sequencing, if available, is uncommonly used in forensic casework. Next Generation Sequencing can perform several types of sequencing simultaneously and can distinguish different same-length genetic information (sequence variants) that would be invisible to other types of forensic DNA analysis (STR DNA analysis, Y-STR analysis, or mtDNA analysis). Next Generation Sequencing provides all the benefits of the other types of current forensic DNA techniques, as well as additional benefits not mentioned here. In the right case, it might be worthwhile to highlight the failure of the prosecution to avail itself of the best technology for the job. B. Serology methodologies While DNA analysis seeks to answer “who contributed the DNA found on this item of evidence”, serology seeks to answer “what bodily fluid is this?” The two most widely encountered types of serological testing are to determine whether a substance is blood or semen, but some laboratories may test for other substances like saliva or feces. Serological tests can be grouped in two categories – presumptive tests and confirmatory tests.15 Presumptive tests are usually sensitive tests that are used for screening purposes and are treated as an indication that an evidence sample may contain a particular bodily fluid. Confirmatory tests are more specific tests that attempt to reduce or eliminate false positive results. Common presumptive tests for blood include luminol (crime scene),
Guidelines for the Collection and Serological Examination of Biological Evidence, Scientific Working Group on DNA Analysis Methods(2015). 15
phenolphthalein, leucomalachite green, and the use of alternate light sources.16 Common confirmatory tests for blood include the ABAcard® Hematrace® test and the RSIDTM-Blood test. Common presumptive tests for semen include the acid phosphatase test and alternate light sources.17 Common confirmatory tests for semen include the Christmas Tree Stain and the RSID test for semen. While the p30 test for the poorly-named “Prostate Specific Antigen” (PSA) is deemed a confirmatory test, the manufacturer of the test acknowledges that PSA has been detected in a wide variety of bodily fluids, including vaginal fluids.18 More sensitive tests exist that detect the intermediate product that translates DNA into proteins (RNA) or changes to the DNA which impact how it is read (methylation), however these tests are not widely available. Several laboratories have decided to “streamline” their forensic biology workflows and no longer perform forensic serology as a matter of course. The failure to perform serology can be exploited in court, particularly in cases involving claims of sexual assault. On the other hand, where the prosecution requests that serology be performed, the defense team may wish to highlight this decision and any subsequent negative results. Defense lawyers must keep in mind that these requests – as well as detailed documentation reflecting what the serologists actually tested – are rarely found
16 Shanan S. Tobe et al., Evaluation of Six Presumptive Tests for Blood, Their Specificity, Sensitivity, and Effect on High MolecularWeight DNA, 52 J. FORENSIC SCI. at 102-109 (2007). 17 Maher Noureddine, Forensic Tests for Semen: What you should know, FORENSIC RESOURCES (Oct. 19, 2011) available at https://forensicresources.org/2011/forensic-tests-for-semen-what-you-should-know/ 18 PSA in Bodily Fluids, SERATEC available at https://www.seratec.com/docs/user_instructions/psa_in_body_fluids
in the laboratory report, but are usually in the laboratory casefile, which must be separately subpoenaed or requested. C.
What DNA analysis and serology cannot say
Current thinking about forensic biology and other forensic disciplines divides the type of questions that may be potentially answered by forensic evidence into at least four different categories:19 1) sub-source level propositions help address the question of who is the source of the DNA detected in a sample; 2) source level propositions help address what type of bodily fluid or tissue the DNA came from; 3) activity level propositions help address what activity occurred when the DNA was transferred to the surface where it was detected; and 4) offense level propositions help address the legal implication of the activity or activities that occurred. DNA analysis is typically viewed by analysts as sub-source level evidence, indicating that a particular person of interest – usually the accused or the complainant – can be associated with a particular DNA sample. Serological evidence may help address source level questions, but has some substantial limitations. For example, a blood stain from Person A has been exposed to sunlight and harsh conditions that destroy the DNA in 19 Peter Gill et al., DNA commission of the International society for forensic genetics: Assessing the value of forensic biological evidence Guidelines highlighting the importance of propositions. Part II: Evaluation of biological traces considering activity level propositions, 44 FSI: GENETICS 102186 (2020).
the stain. Long after the stain is left, Person B touches the stain and transfers DNA evidence to the stain. In this case, DNA analysis may reveal Person B’s profile as a single source profile and serology may report the presence of blood. It would be a mistake to associate Person B’s profile with the blood stain. Combining source and subsource level propositions should generally be done only with careful reference to the scientific literature and specific characteristics of the sampled evidence. Prosecutors will often try to argue that forensic biology can answer activity level or offense level questions, but a properly cross-examined forensic analyst or defense expert may help hedge against this predictable risk. Within the realm of activity level questions are issues of when and how the DNA was transferred onto a surface. Activity level questions can address competing theories of what happened during an event. Guidelines suggest that forensic biologists should only provide activity level conclusions when the conclusions are supported by research and validated methodology.20 For instance, unless a laboratory has performed its own testing involving similar scenarios, an analyst should not report that the detection of a complainant’s DNA underneath the accused’s fingers was the result of vaginal penetration versus coming in contact with her as he tended to her while she vomited in the toilet and then helped her into bed. It is unlikely that the forensic laboratory has performed this sort of testing. VI.
20
The limitations of probabilistic genotyping
Assessing the value of forensic biological evidence, 44 FSI: GENETICS 102186 (2020).
Probabilistic genotyping is a powerful tool for mixture deconvolution – the process of looking at a DNA mixture and trying to separate out the different contributions (e.g. this mixture is 9 parts Profile A and 1 part Profile B). When performed correctly, probabilistic genotyping is a more powerful tool for separating DNA profiles in mixtures than manual techniques, which generally relies upon simplistic rules over complex calculations and advanced models. However, the reliability of probabilistic genotyping still relies upon analyst performance – for instance, the analyst must properly condition the data in order to report results that are relevant to a particular case.21 Additionally, probabilistic genotyping cannot solve problems involving DNA transfer or transcend the fundamental limitations of DNA analysis – it can only help separate mixtures. A. Where probabilistic genotyping programs rely on human input Before an analyst sends data to several probabilistic genotyping programs (including STRMix), the analyst must still process the data and make certain important decisions about the data. The analyst must determine whether the data reflects genetic information (allelic peaks) or various imperfections during laboratory DNA processing (artifacts) that frequently occur during the complex chemistry of genetic analysis.22 Sending incorrect data to the software – including incorrectly removed artifacts or genuine data removed as an artifact – could result in erroneous output. In most 21 See e.g. Meng-Han Lin et al., The interpretation of mixed DNA profiles from a mother, father, and child trio, 44 Forensic Science International: Genetics 102175 (2020). 22 See e.g.Biology/DNA Manual, TEXAS DEPARTMENT OF PUBLIC SAFETY at 5.3(A) (Nov. 13, 2020)
laboratories, the analyst will additionally have to determine how many contributors are involved in a mixture. In certain mixtures, particularly mixtures where the profile of interest is compared to a trace or minor profile supplying the number of contributors could be the difference between inconclusive or exclusion.23 Finally, the analyst must review the report and check it for sanity. Where the analyst fails to perform a meaningful review, particularly when the reported value reflecting the relative strength of the DNA association (likelihood ratio / LR) is low, there is a risk of inaccurate testimony.24 Modern DNA mixture interpretation requires a “defense hypothesis” and a “prosecutor’s hypothesis.” The standard hypothesis compares whether it would be more likely to observe an evidence profile if the evidence is better explained by a combination that includes the accused’s profile (the “prosecution hypothesis”) or a combination that includes the profile of some random contributor (the “defense hypothesis”). When the “defense hypothesis” does not actually explain the defensive theory or the evidence – for example, if the defense team believes a relative committed an offense and contributed to the DNA mixture or if the sample is taken from a known complainant alleging sexual assault, failing to appropriately condition the data creates a risk of false inclusion or of ignoring available data that better explains the mixture.25 In
Klaas Slooten and Make Caliebe, Contributors are a nuisance (parameter) for DNA mixture evidence evaluation, 37 FORENSIC SCIENCE INTERNATIONAL: GENETICS at 116-125(2018) 24 See e.g. Discussion on Complaint 19.04, Texas Forensic Science Commission Meeting (May 3, 2019) available at https://www.youtube.com/watch?v=15VKBSUHe3Q&feature=youtu.be (starting around 1:09 in the video). 25 Joel Sutton et al., The Dangers of Not Assuming Contributors – Why the Goal of “Conservative” in Forensic DNA Statistics Should be Dropped in Favor of Being “Informative”, 26TH INTERNATIONAL SYMPOSIUM ON HUMAN IDENTIFICATION (2015) 23
these cases, it may be appropriate to create hypotheses that include the relative’s profile or complainant’s profile. If you have a defense expert with access to probabilistic genotyping software, the expert may be able to produce results that are more appropriately tailored to the case than the laboratory’s “defense” and “prosecution” hypothesis. B. Where probabilistic genotyping software encounters difficult data Analyzing DNA is something like the story of Goldilocks and the three bears. If there is too much DNA analyzed, the genetic analyzer will often have trouble measuring the relative amounts of genetic information (alleles) in a sample and may actually bleed through, causing false peaks to be reported (pull-up). If there is too little DNA in the sample sent for analysis, unpredictable random effects, including missing data (drop-out) and contamination data (drop-in) become dominant. While you can dilute a sample containing too much DNA, samples containing low amounts of DNA (low template samples) cannot be fixed. Samples that have been improperly stored or exposed to environmental factors may be degraded, and harder to analyze. Samples with multiple contributors, particularly multiple low-level contributors, are more complicated to analyze than other samples. There is some evidence that complex samples, particularly samples involving low amounts of DNA, degradation, and multiple low-level contributors may lead to false inclusions in probabilistic genotyping systems.26 In
Kristen Newland, Thesis: Evaluation of the Performance of Probabilistic Genotyping Software on Complex Mixture Samples Software on Complex Mixture Samples, West Virginia Research Repository (2020). 26
addition, mixtures involving multiple family members can be particularly misleading and can lead to false inclusions. The likelihood ratios reported in DNA cases involve a group of assumptions called the Hardy-Weinberg assumptions. Put succinctly, these assumptions are used to treat the distribution of the genetic information used for forensic analysis as random. These assumptions include assuming that sexual reproduction occurs at random and that there is a very large population size. These assumptions are not always valid – a good example is when considering isolated populations like the Mennonites or the Amish.27 Another common mistake made is that the “defense hypothesis” is that an unrelated individual contributed the DNA.28 However, this is not always the case – if the defense claims that a family member contributed the DNA, there may be a drastic change in the reported value. When a mixture includes contributions from multiple family members, this can make matters even worse. In cases where family members are involved, properly setting up the hypotheses (conditioning) is absolutely critical and failure to do so can impact the reliability and integrity of the reported results. Finally, different probabilistic genotyping programs can have vastly different reported values (likelihood ratios) when looking at the same data.29
27
See e.g. Van Hout et al., Extent and Distribution of Linkage Disequilibrium in the Old Order Amish, 34 GENETIC EPIDEMIOLOGY
AT 146-15 (2010).
28 Meng-Han Lin et al., The interpretation of mixed DNA profiles from a mother, father, and child trio, 44 Forensic Science International: Genetics 102175 (2020). 29 Paolo Garofano et al., An Alternative Application of the Consensus Method to DNA Typing Interpretation for Low Template-DNA Mixtures, FORENSIC SCI. INT’L: GENETICS SUPP. SERIES 5 (2015) e422–e424.
VII. Challenges to the admissibility of DNA evidence For several decades, absent total laboratory failure or analyst malfeasance, courts have treated precedent as shielding forensic disciplines from serious review. The 2009 National Academy of Sciences report and the 2016 President’s Council of Advisors on Science and Technology challenged some of the naïve assumptions about the reliability and validity of forensic science methodologies and have made slow ripples through the legal community.30,31 While most courts still cling unquestioningly to the notion that forensic disciplines are immune to challenge, more courts are seriously considering a growing number of challenges to forensic evidence. This section looks at technical challenges to DNA analysis, methodology, and interpretation and provides some recommendations to help lawyers find the right experts to help with these challenges.32 A. Mistakes in the testimony or analysis performed33 Like any other human process, there may be mistakes made during laboratory work and testimony. A great example of a highly meticulous, incredibly detailed human effort that went tragically awry is the Space Shuttle Challenger disaster. These mistakes may be obvious to an expert by reviewing the case, but the cases may also take
Committee on Identifying the Needs of the Forensic Sciences Community, Strengthening Forensic Science in the United States: A Path Forward, NATIONAL RESEARCH COUNCIL (2009) 31 President’s Council of Advisors on Science and Technology, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, EXECUTIVE OFFICE OF THE PRESIDENT (2016). 32 For a more in-depth guide to challenging the admissibility of probabilistic genotyping evidence, see the May 2018 edition of the National Association of Criminal Defense Lawyers “The Champion” magazine. 33 Pretrial Hearing on the Admissibility of DNA Evidence, Criner, No. D-1-DC-18-904027. 30
meticulous and time-consuming review of the laboratory’s procedures and data to attempt to reconstruct the analysis. 1. Type of expert recommended A former analyst with attention to detail and high-level understanding of the standard operating procedures employed by a laboratory or a forensic biology/genetic academic who frequently consults in forensic cases can help review evidence. You may want to ensure the analyst has the software needed to audit the raw data in the case. 2. Referral question In this scenario, the expert should conduct a full review of the serology, DNA analysis, instrument records, reagent logs, instrument maintenance logs, relevant standard operating procedures, chain of custody, photos, and any bench notes in the case. The expert will likely need to review the allegations and offense report in the case as well. B. Analysis performed outside laboratory’s validation studies34 Validation studies provide evidence that a laboratory can perform the testing it claims it can perform. Validation studies should cover all the relevant variables involved in the case, including the complexity of the sample, the amount of DNA in the sample, samples involving kinship, and the particular instrumentation (DNA kits, instruments, and software) used in the laboratory. Where the evidence involved in a case is outside
34
See e.g. Gissantaner, 417 F. Supp. 3d 857.
of the validation studies, a lawyer may be able to successfully argue that that portion of the evidence should be excluded. 1. Type of expert recommended A former analyst, laboratory consultant, or academic expert published in validation or experimental design can determine if the laboratory’s validation plan is sufficient proof that the laboratory meets scientific standards. The expert should understand the variables that affect DNA analysis and should have practical experience in designing a laboratory validation experiment in a crime laboratory context. 2. Referral question In this case, you want your expert to review the laboratory’s validation studies. This may entail reviewing the validation studies and experimental design of those studies. In more complicated cases, this may involve looking at the data behind the validation summaries. C. The testifying expert is not qualified to explain probabilistic genotyping35 Until the advent of probabilistic genotyping, DNA interpretation was performed by hand, using relatively simple math, the laboratory’s standard operating procedures, and the analyst’s subjective opinion. Now, DNA interpretation can be considered a multidisciplinary field, involving computer science, statistics, and mathematical biology.
It has long been recommended that analysts employing probabilistic genotyping understand the theory behind the methodology. See P. Gill et al., DNA commission of the International Society of Forensic Genetics: Recommendations on the evaluation of STR typing results that may include drop-out and/or drop-in using probabilistic methods, 6 FORENSIC SCI. INT’L: GENETICS at 679688 (2012).
35
As time progresses, DNA analysts may not be able to manually interpret moderately complex DNA evidence, and may become increasingly reliant on software. While most DNA experts have a strong understanding of biology and genetics, they may not be equipped to sponsor or reliably explain the computational methods used by probabilistic genotyping software. 1. Type of expert recommended An academic expert or well-regarded practitioner in bioinformatics can help the analyst’s credentials to explain or offer evidence involving probabilistic genotyping software. The expert should have an understanding of the published literature (and criticism) that explains the probabilistic genotyping software involved. 2. Referral question In this scenario, the expert would be expected to review the analyst’s credentials and assess whether the analyst’s training or experience was sufficient to establish qualification to testify regarding probabilistic genotyping. D. Challenging the use of probabilistic genotyping software36 Software is vulnerable to errors (often called “bugs”) that can impact the performance of the software. In the best cases, the problems are immediately obvious – the output is immediately recognizable as flawed or no output is produced at all. In the worst cases, erroneous output looks like valid output. Problems can be very hard to
36
See Nathaniel Adams, What Does Software Engineering Have to Do with DNA?, THE CHAMPION (May 2018).
detect, and software engineers and testers must design complicated test scenarios to ensure software performs as expected in a wide variety of conditions. The more complex and involved a piece of software, the errors it would be expected to contain. While programs are usually evaluated using software engineering standards, there is evidence that probabilistic genotypying software are “validated” using traditional laboratory methodologies, 37 which may fail to detect where bugs in the software exist. STRMix, the primary probabilistic genotyping system used in Texas jurisdictions, reports several “miscodes” as well as at least one flaw in the methodology used.38,39 Probabilistic genotying providers who fail to perform appropriate testing can be challenged as unreliable. 1. Type of expert recommended An expert in software engineering, particular in the field of bioinformatics software can help review software limitations involved in probabilistic genotyping software. One note of warning – there are very few of these experts nationwide. 2. Referral question The expert would be expected to audit and review the software and any documentation regarding the software vendor’s validation and verification process.
See e.g., SWGDAM Guidelines for Validation of Probabilistic Genotyping Systems, Scientific Working Group for DNA Analysis Methods (June 15, 2015). 38 Summary of miscodes, STRMIX.COM (Dec. 28, 2020) available at https://strmix.com/news/summary-ofmiscodes/?acceptCookies=5fff792347f68 39 The highest posterior density for the Monte Carlo effect in STRmix™, STRMIX.COM (July 2020) available at https://www.strmix.com/assets/STRmix/STRmix-PDFs/HPD_MCMC_Effect_July_2020.pdf. 37
E. Error rate and uncertainty40 Think of an audience member talking to a knife-thrower from a circus. The knife thrower tells the audience member that in the last 10,000 performances, only one person has been accidentally hurt. The knife thrower fails to mention that out of the 10,000 performances, in only ten of the performances was the knife thrower inebriated and in one of those performances, someone was injured. It just so happens that the knife thrower is inebriated tonight. Does the 1 in 10,000 number better reflect the chance of an injury, or would the audience member be wiser to consider the risk as closer to 1 in 10? Though laboratories report astronomically powerful results, sometimes teaching lawyers and jurors new language to describe enormous numbers completely irrelevant to daily life, the chances of the results being impacted by simple human error are much more sobering. While most laboratories do not have concrete evidence of laboratory error rates, many DNA analysts predict that false positive errors occur between 1 in 1,000 cases to 1 in 1,000,000 cases.41 As it is far more likely that a laboratory error occurred, putting your client at risk of a flawed DNA analysis, the numerical values associated with DNA evidence can be challenged as misleading. 1. Type of expert recommended
40 See Ate Kloosterman, Marjan Sjerps, Astrid Quak, Error rates in forensic DNA analysis: Definition, numbers, impact and communication, 12 FORENSIC SCIENCE INTERNATIONAL: GENETICS at 77-85 (2014). 41 See Daniel C. Murrie et al., Perceptions and estimates of error rates in forensic science: A survey of forensic analysts, CENTER OF STATISTICS AND APPLICATIONS IN FORENSIC EVIDENCE (2019).
An expert in statistics or laboratory quality, particularly forensic statistics, can help explain the problems likelihood ratios and the astronomical numbers reported in DNA cases. 2. Referral question The expert would be required to assess whether reported results adequately reflect the uncertainty inherent in laboratory processes. F. Other challenges While standards in the DNA world have become tighter, it is always possible that a laboratory has “slipped through the cracks.” Several DNA laboratories in Texas and orher laboratories consulting in Texas cases failed to conduct testing according to scientific standards.42,43 In the right case, a thorough expert audit and assessment of the qualifications of the quality and management teams may reveal major oversights in laboratory procedures. Additionally, a single case of analyst misfeasance or malfeasance can jeopardize the reliability of forensic evidence. Discovering analyst misfeasance or malfeasance can be as simple as obtaining personnel records or may require expert assistance and luck.44
See e.g. Michael R. Bromwich, Final Report of the Independent Investigator for the Houston Police Department Crime Laboratory and Property Room (June 13, 2007); The Austin Police Department DNA Laboratory, 2010-2015: Looking Back to Move Forward, Quattrone Center for the Fair Administration of Justice (Sept. 2020). 43 Rebecca Ellis, Private Utah DNA Lab Faces Scrutiny After Crime Evidence Said To Be Mishandled, KUER 90.1 (May 7, 2019). 44 See e.g. Final Report on Self-Disclosure by the Fort Worth Police Department Crime Laboratory regarding Amanda Schaffner (Forensic Biology/DNA), TEXAS FORENSIC SCIENCE COMMISSION (Aug. 16, 2019). 42
One of the most contentious areas in probabilistic genotyping is source code access.45 Source code are the (somewhat) human-readable instructions that are turned into a program, and by reviewing source code, it may be possible to detect problems within that software. For reasons ranging from protecting trade secrets to claiming that external experts would not understand what they are looking at, major probabilistic genotyping software vendors have fought source code access. While currently the major providers appear to be acceding to defense demands to inspect source code, failure to provide access to the source code may justify the exclusion of probabilistic genotyping evidence. VIII. Planning your defense The heart of any defensive strategy starts with client interviews, investigation, discovery, and trial preparation. This section discusses DNA-specific strategies during this crucial phase phase of representation. A. Client’s interview and statement It is important to understand your client’s version of events, not only to consider statutory defenses like consent or technical considerations like transfer, but to understand how your client may have interacted with the scene and how the State obtained your client’s DNA. For instance, in a complicated murder scene with many DNA samples, it can be useful to understand whether you can use DNA evidence as
See Stephanie J. Lacambra, Jeanna Matthews, and Kit Walsh, Opening the Black Box: Defendants’ Rights to Confront Forensic Software, THE CHAMPION (May 2018). 45
objective support your client’s testimony – it may show your client’s path through the scene better supports the defensive theory of the case than the prosecution’s theory of the case. It can be useful to have your client disclose what happened at the scene before being informed of the DNA results to rebut claims of recent fabrication.46 Additionally, consider whether there may be constitutional concerns connected with how the State obtained your client’s DNA. In many cases, the collection may be automatic under statute,47 but it is important to verify whether collection is automatic and whether any DNA warrants adhere to the Fourth Amendment and the Code of Criminal Procedure.48 B. Obtaining additional information from the laboratory Discovery in scientific cases is currently relatively simple in Texas due to the Michael Morton Act, changing attitudes in forensic laboratories, and because quality systems and accreditation requirements mean that laboratories have to maintain certain categories of records.49 Standard discovery requests in DNA cases should include: 1) THE CASEFILE, ALL BENCH NOTES, ALL PHOTOS, RAW DATA, AND INSTRUMENT DATA
See TEX. R. EVID. 801(e)(1)(B). See TEX. GOV’T CODE § 411.1471 – 411.149. 48 DNA is falls into the category described by TEX. CODE CRIM PROC. art. 18.02(10) and is governed by two specific procedural rules that differ from other types of evidence. TEX. CODE CRIM PROC., arts 18.065, 18.07(A). 49 Many of these categories of evidence must be maintained as part of the FBI QAS. See Quality Assurance Standards for Forensic DNA Testing Laboratories, FBI (2020). 46 47
This is the data that supports the DNA report, the trail of actions that occurred in the case, what your expert will review, and contains important context to understand what the laboratory did and did not do in a particular case 2) STANDARD OPERATING PROCEDURES These are the instructions that dictate both the performance and scope of analysis 3) SCIENTIFIC LITERATURE SUPPORTING THE ANALYST’S CONCLUSIONS Particularly when dealing with opinions not supported by validation data or Standard Operating Procedures, it is useful to pin down why the analyst claims the ability to report certain data 4) CHAIN OF CUSTODY RECORDS 5) INSTRUMENT MAINTENANCE RECORDS 6) CONTROLS AND CALIBRATION RECORDS These records should demonstrate that the instrument was operating correctly near the time of analysis or may indicate problems occurring during the analysis 7) THE
ANALYST’S QUALIFICATIONS, TRAINING RECORDS, PUBLICATIONS, AND
PERSONNEL FILE
8) DATA ABOUT THE REAGENTS USED IN THE CASE Reagents often have expiration dates, after which they are not intended for use in forensic analysis 9) CORRESPONDENCE ABOUT THE CASE
10) VALIDATION SUMMARIES These should dictate what methods and testimony the DNA analyst can provide. Be very careful when an analyst claims the ability to report data not supported by their validation process 11) ACCREDITATION DOCUMENTATION These records may reflect problems at the laboratory exposed by the accreditation audit 12) CORRECTIVE ACTIONS AND INCIDENT REPORTS These records reflect known problems occurring at the laboratory. All laboratories make mistakes and should be expected to generate corrective actions. Too many reported incidents may indicate serious problems at the laboratory, too few reported incidents may indicate a weak quality program, and a lack of appropriate corrective actions may indicate the laboratory fails to properly investigate and determine the root cause of an incident 13) BRADY EVIDENCE C. Investigating outside the DNA report There are several aspects of defending a DNA case that can be enhanced through investigation. When it is useful to the case, consider integrating data from multiple sources – for instance, typically DNA reports, crime scene diagrams, and SANE diagrams are separate and lack visual impact. It can be helpful to combine the information into a single diagram that can help jurors visually understand the spatial
relationships that may be relevant to your defense. It can be incredibly helpful to conduct scientific research. Google Scholar, your local university, and the TexShare databases are viable options to conduct research.50,51 Currently, Forensic Science International: Genetics is one of the most prolific journals containing helpful research on DNA analysis. Additionally, particularly when challenging the methodology used by laboratories, it can be important to understand what the best practices in the discipline are. Best practices that have gone through a formal review process are issued by the Organization of Scientific Area Committees.52 Additionally, all American laboratories that participating in the CODIS DNA database network must adhere to FBI quality assurance standards and all Texas laboratories must adhere to Texas Forensic Science Commission regulations.53,54 Other relevant organizations to follow include the Scientific Working Group on DNA Analysis Methods and European standards organizations.55,56 D. Interviewing the analyst
Google Scholar, Google (visited Jan. 22, 2021), https://scholar.google.com/ TexShare Card Program, Texas State Library (visited Jan. 22, 2021), https://www.tsl.texas.gov/texshare/card 52 See Biological Data Interpretation & Reporting Subcommittee, NIST (visited Jan. 22, 2021), https://www.nist.gov/topics/organization-scientific-area-committees-forensic-science/biological-data-interpretation and Biological Methods Subcommittee, NIST (visited Jan. 22, 2021), https://www.nist.gov/topics/organization-scientific-areacommittees-forensic-science/biological-methods-subcommittee 53 Quality Assurance Standards for Forensic DNA Testing Laboratories, FBI (2020). 54 37 Tex. Admin Code § 651 et seq. 55 Publications, SWGDAM (visited Jan. 22, 2021), https://www.swgdam.org/publications 56 See Forensic Guidelines, ENFSI (visited Jan. 22, 2021), https://enfsi.eu/documents/forensic-guidelines/; see e.g. Codes of Practice and Conduct: DNA Analysis, UK Forensic Science Regulator (2020) available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/917727/108_DNA_analysis_codes_Issue_2_Final.pdf 50 51
Perhaps the most important piece of a pre-trial investigation is conducting an interview of the State’s DNA analyst. This is the chance you have to evaluate how the witness will testify and determine whether the analyst will testify in a manner that may be favorable to your defense. As with any witness, it is critical to record the interview when possible, and to have an investigator present during the interview. To get the most out of the interview, the lawyer should understand the laboratory casefile, should know whether there are certain scientific premises the analyst may concede, and should conduct the interview as quickly as possible, giving time to hire a defense expert to rebut questionable claims. Additionally, where evidence may help advance defensive theories – for instance, police officers mishandling evidence and increasing the risk of DNA transfer – it may be useful to prepare this evidence to show the analyst. It is probably safer to assume any conversations with the DNA analyst may eventually work their way to the prosecution team, and to focus on clear scientific research and “facts beyond change.” E. Preparing for trial 1. Anticipating the Prosecution It behooves every defense lawyer to prepare for the “prosecutor’s fallacy” – a logical fallacy important enough to be featured in a Supreme Court case.57 The fallacy plays out as follows – the DNA report will include extremely enormous numbers – say
57
McDaniel v. Brown, 558 U.S. 120 (2009).
likelihood ratios of 1,000,000,000,000,000. The prosecutor may say that these results mean that there an astronomically small chance – 1 in 1,000,000,000,000,000 – that the accused is innocent. However, it is important to remember that DNA does not answer the offense level question of guilt or innocence. DNA only helps answer questions at the subsource level, or who might be the source of a particular DNA profile. Where transfer, background DNA, or failure to properly condition the propositions occurred, the reported value might be gross overstatement of the value of the evidence. Consider using expert testimony, motions in limine, taking witnesses on voir dire, and preparing to object at trial whenever you hear the prosecutor trying to equate the reported statistics/frequencies/likelihood ratios with the chance of guilt or innocence in the case. Defense lawyers should be wary other common ways that prosecutor’s may misuse DNA evidence at trial. For instance, absent serology and confirmatory results, attempts to mention sperm or blood should be anticipated and should face objection. Any mention of CODIS, results of a genetic genealogy search, or any local DNA database, absent the requisite witnesses needed to satisfy the accused’s confrontation rights, should face objection both on constitutional and evidentiary grounds. Understanding the methodology and limitations of the methodology, examining the casefile to better understand exactly what the DNA analysts did or did not do, and carefully interviewing the testifying analyst can help a lawyer both plan objections as well as plan to inoculate a jury from the prosecutor’s improper questions and misuse of DNA evidence.
2. Planning for cross and direct examination The full amount of discovery involved in DNA cases may be too unwieldy to manage in physical form. It can take a lot of pain out of cross and direct examination to bookmark and highlight the PDF files.58 For a lawyer with a laptop or tablet device, using the bookmarks while approaching a witness can make examination a snap, keeping your examination brisk and the jurors’ attention on your questioning. It can be incredibly helpful to create exhibits from the DNA casefile. Always consider making your points visually where possible. The laboratory casefile often contains annotated photos and diagrams that can be used to show the jury precisely where a DNA sample came from. These can often be contrasted with sloppy crime scene investigation work or body camera video depicting police officers mishandling evidence. With the help of an expert, parts of the laboratory casefile can be used to support your main points. Specifically, an expert could potentially demonstrate how low the amount of DNA detected was, to show the date where the sexual report was alleged to have occurred, or to show where the true perpetrator’s profile may be in the data. Creative analogies and visual aids can help jurors better understand and accept the defense’s theory. IX.
Where to get further help
There are many software packages that allow you to bookmark and highlight PDF files. Instructions on how to bookmark and highlight PDF files (for software that is capable) are easy to find with a simple internet search. 58
Though some of the books in the series are aging and out of date, Dr. John Butler’s series on Forensic DNA is still used to educate future forensic DNA analysts.59 Given the prevalence of STRMix software, it may also be worthwhile to attend the same STRMix workshop that DNA analysts attend.60 Beyond this, it is useful to look outside the jurisdiction for assistance. Organizations that have dedicated units to evaluate and challenge DNA evidence include the national Innocence Project, New York Legal Aid, Brooklyn Defender Services, Cook County Public Defender’s Office, and the LA County Public Defender’s Office. Staff from these organizations regularly provide training in DNA defense and are at the cutting edge of the practice. Particularly when looking for specific experts to help with narrow challenges, these organizations may have very useful recommendations and helpful transcripts.
John M. Butler, Fundamentals of Forensic DNA Typing, Academic Press (2010); John M. Butler, Advanced Topics in Forensic DNA Typing: Methodology, Academic Press (2012); John M. Butler, Advanced Topics in Forensic DNA Typing: Interpretation, Academic Press (2015); 60 Training and Events, STRMIX (visited Jan. 25, 2021), https://www.strmix.com/training-and-events/ 59
Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course June 24-26, 2021 Hyatt Regency San Antonio, TX
Topic: Expert Witness
Speaker:
Michael C. Gross Gross & Esparza, P.L.L.C. 1524 North Alamo Street San Antonio, Texas 78215 (210) 354-1919 phone (210) 354-1920 Fax lawofcmg@gmail.com email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
EXPERT WITNESSES
Michael C. Gross Gross & Esparza, P.L.L.C. 1524 North Alamo Street San Antonio, Texas 78215 (210) 354-1919 (210) 354-1920 Fax lawofcmg@gmail.com
34th Annual Rusty Duncan Advanced Criminal Law Course Texas Criminal Defense Lawyers Association San Antonio, Texas – June 25, 2021
GROSS & ESPARZA, P.L.L.C. 1524 North Alamo Street San Antonio, Texas 78215 lawofcmg@gmail.com www.txmilitarylaw.com (210) 354-1919 MICHAEL C. GROSS CURRICULUM VITAE EDUCATION B.A., Trinity University, San Antonio, Texas, 1984 J.D., St. Mary’s University, San Antonio, Texas, 1987 PROFESSIONAL ACTIVITIES AND RECOGNITIONS Judge Advocate, U.S. Marine Corps, 1988-1992 Associate, Zimmermann & Lavine, P.C., Houston, Texas, 1992 - 1996 Law Office of Michael C. Gross, P.C., San Antonio, Texas, 1996 - 2012 Gross & Esparza, P.L.L.C., San Antonio, Texas, 2012 - Present Board Certified, Criminal Trial Advocacy, National Board of Trial Advocacy, 1997 Board Certified, Criminal Law, Texas Board of Legal Specialization, 1995 Board Certified, Criminal Appellate Law, Texas Board of Legal Specialization, 2011 President-Elect, Texas Criminal Defense Lawyers Association, 2020-2021 President, San Antonio Criminal Defense Lawyers Association, 2011 Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2008 Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2009 Named in Best Lawyers in America, 2005 - 2021 Named in Best Lawyers as San Antonio Non-White-Collar Lawyer of the Year - 2015, 2017 Named in Texas Super Lawyers in Texas Monthly Magazine, 2004 - 2021 Named Top 50 Texas Super Lawyers in Central and West Texas Region, 2010 - 2012, 2014 Named in Best Lawyers in San Antonio by Scene in San Antonio Magazine, 2004 - 2021 Named Top 10 Criminal Defense Attorneys in San Antonio by Scene Magazine - 2013 AV rated by Martindale Hubble COURT ADMISSIONS Supreme Court of the United States, 1991 Supreme Court of the State of Texas, 1987 United States Court of Appeals for the Armed Forces, 1990 United States Court of Appeals for the Fifth Circuit, 1990 United States Court of Appeals for the Tenth Circuit, 1998 United States District Court for the Northern District of Texas, 1990 United States District Court for the Southern District of Texas, 1991 United States District Court for the Eastern District of Texas, 1991 United States District Court for the Western District of Texas, 1992
TABLE OF CONTENTS I.
II.
Getting defense experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Consulting experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. Testifying experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 C. Have your own forensic expert appointed or retained . . . . . . . . . . . . . . . . . . . . . . 1 1. Right to expert assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2. Right to independent expert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 D. Send an engagement letter to your expert along with all documents . . . . . . . . . . . 2 E. Limit what your expert sees and does . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 F. May the State contact your expert pretrial? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 G. Lagrone issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Handling State experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. Types of experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1. Psychiatrists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2. Psychologists. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3. Rape crisis counselors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 4. Pediatricians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5. Psychotherapists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 6. Social workers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 7. CPS workers and reason to believe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 B. What will the State’s expert be used for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1. CSAAS - Child sexual abuse accommodation syndrome. . . . . . . . . . . . . . 4 2. The complainant was abused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3. Battered child syndrome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 4. Why the outcry was delayed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 5. Grooming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 C. Obtain records and research the State’s expert . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1. Immediately request notice of the State’s experts. . . . . . . . . . . . . . . . . . . . 7 2. Review the State’s file . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3. Obtain a court order for the State expert’s entire file . . . . . . . . . . . . . . . . . 8 4. Obtain a subpoena for the State expert’s entire file . . . . . . . . . . . . . . . . . . 9 5. Interview the State expert and obtain the expert’s entire file . . . . . . . . . . . 9 6. Do a background check on the State’s expert . . . . . . . . . . . . . . . . . . . . . . . 9 D. May you contact the State’s expert pretrial?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 E. Get the State’s expert to testify pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 1. A hearing using TRE 705(b) coupled with expert’s qualifications . . . . . 10 2. Determine the admissibility of the expert testimony . . . . . . . . . . . . . . . . 12 a. TRE 702 inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 i. Qualification inquiry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 ii. Reliability inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 b. TRE 705(b) checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 F. Is the expert really an expert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 1. When a CPS social worker is unqualified. . . . . . . . . . . . . . . . . . . . . . . . . 15 2. When a SANE is unqualified . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 G. Motions in limine are vital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 iii
I.
subject matter on which he will testify. Also subject to discovery in civil cases are ‘the facts known by the expert that relate to or form the basis of the expert’s mental impressions and opinions formed or made in connection with the case in which the discovery is sought, regardless of when and how the factual information was acquired;’ as well as ‘the expert’s mental impressions and opinions formed or made in connection with the case in which discovery is sought, and any methods used to derive them[.]’ Thus, in civil cases, there is no work-product protection for that potential testifying expert’s data, tests, reports, or opinions.” Pope v. State, supra.
Getting defense experts A.
Consulting experts
“Under Texas civil law, the world of experts is divided into two parts: consulting experts and testifying experts. ‘The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable.’ The Texas Supreme Court has stated that ‘[t]he policy behind the consulting expert privilege is to encourage parties to seek expert advice in evaluating their case and to prevent a party from receiving undue benefit from an adversary’s efforts and diligence.’ But that protection ‘is intended to be only “a shield to prevent a litigant from taking undue advantage of his adversary’s industry and effort, not a sword to be used to thwart justice or to defeat the salutary object” of discovery.’” Pope v. State, 207 S.W.3d 352 (Tex. Crim. App. 2006). A consulting expert is not designated as a defense expert witness under Article 39.14 of the Texas Code of Criminal Procedure. Id. Information regarding a consulting expert is subject to the attorney-client privilege and work product privilege. Id. If you designate a consulting expert as an expert under Article 39.14, the expert’s identify 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. Id. B.
C.
Have your own forensic expert appointed or retained
Indigent defendants in criminal cases have a due process right to state-provided expert assistance when an ex parte showing is made to the trial judge. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). If the state has an expert witness, you need your own defense expert witness to at least consult with you, if not testify for the defense, about the forensic evidence the state seeks to use at trial. The motion should be filed ex parte and sealed. The state has no business hearing about the motion, being present for the motion, or knowing who are your experts at this point. Make sure your are seeking your own defense expert. Do not ask the trial judge, for instance, to have a court expert conduct a competency evaluation of your client. Such evaluations are not privileged since it is not your expert who is conducting the evaluation.
Testifying experts
“If a party might call an expert whom he has consulted as a witness at trial and the opposing side has requested designation of any potential experts, the party must designate that person as a testifying expert. A party who has designated a person as a potential testifying expert must be willing to divulge his name, address, telephone number, resume, and the
1.
Right to expert assistance
The Supreme Court has held that, “without the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine 1
whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high.” Ake v. Oklahoma, supra. Due process requires that “when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Id.
2005). If your client cannot afford experts, you have three options: (1) subpoena to testify at trial the experts who treated your client, introduce at trial the records through these experts, and have these experts provide their expert opinions; (2) withdraw from the case after proving to the judge your client’s indigence, and request appointment of new counsel; or (3) remain on the case and take a reduced fee but request an investigator and experts from the trial judge for a now-indigent client pursuant to Ake. Id. at 468.
If insanity will be an issue at trial, due process requires that the accused be given the means to advance that claim at trial. De Freece v. State, 848 S.W.2d 150 (Tex. Crim. App. 1993). “[T]he trial court abuses its discretion in failing to appoint, or to give ‘prior . . . approval’ to ‘reasonable expenses incurred’ by counsel for the accused to obtain, a competent psychiatrist to assist in the evaluation, preparation[,] and presentation of his insanity defense.” Id. In DeFreece, the Court of Criminal Appeals relied on Ake, supra.
An appointed defense expert must be independent from the state. The defense 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 De Freece 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.”
2.
D. According to the Court of Criminal Appeals, Ake also applies to non-psychiatric experts. Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. 1995). If an indigent defendant establishes a substantial need for an expert, without which the fundamental fairness of the trial will be called into question, Ake requires the appointment of an expert, regardless of the field of expertise. Id.
Right to independent expert
Send an engagement letter to your expert along with all documents
You should always send an engagement letter to your expert so your expert understands what is it you want the expert to do for you. You do not, for example, want your expert to conduct tests that could be adverse to your defense. In a case where psychological testimony about your client is anticipated, you do not want an MMPI conducted by your expert because this could result in a finding that your client is antisocial which the prosecution will then use against your client at trial if your expert testifies. You should also use the
As retained counsel, you may not put off investigating medical issues or put off consulting with necessary experts until your client pays you money for experts. Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2
engagement letter to remind the expert that all information the expert receives in your case is privileged and confidential.
representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Comment 3 to this rule states as follows: “Paragraph (b) of this Rule provides that unless authorized by law, experts employed or retained by a lawyer for a particular matter should not be contacted by opposing counsel regarding that matter without the consent of the lawyer who retained them. However, certain governmental agents or employees such as police may be contacted due to their obligations to the public at large.” (Emphasis added).
In keeping with Pope v. State, supra, once you have an appointed or retained expert, send the expert an engagement letter which describes the expert as a consulting expert or testifying expert and describes what exactly you want the expert to do for you.
E.
Limit what your expert sees and does
G. Be careful what information you send to your client. TRE 705 allows the opponent to inquire into the facts or data upon which your expert relies in forming an opinion. You also do not want your expert to be caught unawares at trial by being confronted with information the expert was never provided by you and which affects the expert’s opinion. You also want to be careful about what testing is performed by your expert such as an MMPI or PCL. The individual answers given by your client to some tests may be used against your expert and client. Check with your expert to see what is best for your client’s defense and case. F.
Lagrone issues
“[W]hen the defendant initiates a psychiatric examination and based thereon presents psychiatric testimony on the issue of future dangerousness, the trial court may compel an examination of appellant by an expert of the State’s or court’s choosing and the State may present rebuttal testimony of that expert based upon his examination of the defendant; provided, however, that the rebuttal testimony is limited to the issues raised by the defense expert.” Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997), citing Soria v. State, 933 S.W.2d 46 (Tex. Crim. App. 1996). A trial judge may order criminal defendants to submit to a state-sponsored psychiatric exam on future dangerousness when the defense introduces, or plans to introduce, its own future dangerousness expert testimony.” Id.
May the State contact your expert pretrial?
Rule 4.02(b) of the Texas Disciplinary Rules of Professional Conduct discusses “Communication with One Represented by Counsel” and states as follows: “In representing a client a lawyer shall not communicate or cause another to communicate about the subject of representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the
If you run into a Lagrone situation, it is best to ask the judge to strictly limit the State’s expert to the exact same testing performed on the defendant by the defense expert. It is also best to ask the judge to allow the defense expert to attend the testing so the defense expert may see first-hand how the testing was performed.
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II.
Handling State experts A.
Types of experts
1.
Psychiatrists
5.
Psychotherapists have been recognized as expert witnesses in sexual abuse cases. Kipp v. State, 876 S.W.2d 330 (Tex. Crim. App. 1994).
Psychiatrists have been recognized as expert witnesses in sexual abuse cases. Farris v. State, 643 S.W.2d 694 (Tex. Crim. App. 1982); Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993) (psychiatrist testified as to the demeanor and emotion children typically have following an instance of sexual abuse).
6.
Psychologists
Psychologists have been recognized as expert witnesses in sexual abuse cases. Gonzales v. State, 831 S.W.2d 347 (Tex. App. San Antonio 1992, pet. ref’d) (court did not err in admitting the testimony of a child psychologist); Nolte v. State, 854 S.W.2d 304 (Tex. App. - Austin 1993, pet. ref’d). 3.
CPS workers and reason to believe
CPS workers have been recognized as expert witnesses in sexual abuse cases. Johnson v. State, 970 S.W.2d 716 (Tex. App. Beaumont 1998) (caseworker’s testimony was in reference to the investigation that resulted in the reasonable belief that a sexual assault had occurred and, therefore, the testimony did not constitute an improper conclusion as to the guilt of defendant but merely assisted the jury in their deliberations).
Rape crisis counselors
Rape crisis counselors have been recognized as expert witnesses in sexual abuse cases provided they do not testify that the child is telling the truth. Black v. State, 634 S.W.2d 356 (Tex. App. - Dallas 1982, no pet.); Miller v. State, 757 S.W.2d 880 (Tex. App. - Dallas 1988, pet. ref’d). 4.
Social workers
Social workers have been recognized as expert witnesses in sexual abuse cases. Harnett v. State, 38 S.W.3d 650 (Tex. App. - Austin 2000, pet. ref’d). 7.
2.
Psychotherapists
B.
What will the State’s expert be used for
1.
CSAAS - Child sexual abuse accommodation syndrome
In Duckett v. State, 797 S.W.2d 906 (Tex. Crim. App. 1990), overruled on other grounds, Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993), the court recognized that commentators have stated that, “The accommodation syndrome has a place in the courtroom. The syndrome helps explain why many sexually abused children recant allegations of abuse and deny that anything
Pediatricians
Pediatricians have been recognized as expert witnesses in sexual abuse cases provided they do not testify that such children are truthful. Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993).
4
occurred. If use of the syndrome is confined to these rehabilitative functions, the confusion clears, and the accommodation syndrome serves a useful forensic function.” In Duckett, an expert in the field of child sexual abuse was allowed to testify that, because of CSAAS, the child-complainant understandably appeared confused and changed her testimony. Such testimony is admissible as long as the doctor does not testify that the child was telling the truth or could be believed.
sound trial strategy, and it was an unreasonable application of Strickland for the County Court to hold otherwise.” Id. at 611. 2.
The complainant was abused
The court in United States v. Charley, 189 F.3d 1251 (10th Cir. 1999), gave an excellent breakdown of how courts have handled the issue of whether or not a doctor may testify that, in the doctor’s opinion, the child complainant was abused. In Charley, the doctor testified that, based solely upon the statements of the children to the doctor and to other people, the doctor concluded that the children had been abused. There was no physical evidence of sexual abuse found by the doctor. The court held that this testimony was inadmissible.
It has been suggested, however, that CSAAS has no scientific validity. Gersten v. Senkowski, 426 F.3d 588 (2nd Cir. 2005) (conviction reversed and writ granted based on counsel’s failure to investigate and consult with expert psychologist witnesses). In Gersten, Dr. Yuille, an expert forensic psychologist, confirmed for the court post-conviction that what is known as CSAAS is no longer accepted in the child sexual abuse research community. Id. at 600-601, 611. Dr. Yuille explained that the inventor of the theory has retreated from his position of classifying it as a syndrome, and CSAAS “and its alleged five components has no validity and is not regularly accepted in the scientific community.” Id. The writ was granted and this decision was upheld on appeal: “. . . even a minimal amount of investigation [by trial counsel] into the purported [CSAAS] would have revealed that it lacked any scientific validity for the purposes for which the prosecution utilized it: as a generalized explanation of children’s reactions to sexual abuse, including delayed disclosure and blurred memory, and that had counsel investigated the possibility of challenging the prosecution’s psychological expert he would have discovered that exceptionally qualified experts could be found . . . Defense counsel’s lack of preparation and failure to challenge the credibility of the key prosecution witness could not be based on
“The opinion offered by Dr. Ornelas falls under Fed. R. Evid. 702. Among other things, that Rule imposes a special gatekeeping obligation on the trial judge to ensure that an opinion offered by an expert is reliable. See Kumho Tire, 119 S. Ct. at 1176. Indeed, ‘where [expert] testimony’s factual basis, data, principles, methods, or their application are called sufficiently into question . . . the trial judge must determine whether the testimony has ‘a reliable basis in the knowledge and experience of [the relevant] discipline.’ Id. at 1175 (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592, 125 L.Ed.2d 469, 113 S.Ct. 2786 (1993)). The trial judge has broad discretion, reviewable for its abuse, ‘to determine reliability in light of the particular facts and circumstances of the particular case.’ Kumho Tire, 119 S. Ct. at 1179. The trial judge is granted great latitude in deciding which factors to use in evaluating the reliability of expert testimony, and in deciding whether to hold a formal hearing. Id. at 1176.” 5
“Here, no reliability determination was made at all with respect to Dr. Ornelas’ unconditional opinion that D.J. and J.J. were sexually abused. As a practical matter, that issue might have been disposed of simply by sustaining the objection, on foundation grounds, to the question seeking to elicit Dr. Ornelas’s opinion. At that point, government counsel might have approached the subject in a more acceptable way, and if not, a bench conference could have ended the line of questioning. Or, the subject could have been explored and passed on prior to trial, in the sound discretion of the trial judge. See Kumho Tire, 119 S. Ct. at 1176. But, as it happened, nothing was adduced here which demonstrates that the testimony had an adequate foundation. The record does not disclose, for example, what data would support ruling out all causes except sexual abuse for the girls’ physical complaints, or to what degree Dr. Ornelas relied on her purely subjective views. Cf. id. at 1177. Indeed, Dr. Ornelas herself, as indicated above, ordered a work-up to determine if an anatomical problem (rather than sexual abuse, presumably) was causing the girls to wet the bed. III R. at 324-25. Thus, if Dr. Ornelas’s unqualified opinion was based on the girls’ medical history, there is insufficient support in this record for the district court’s decision to admit it. See Gier v. Educational Serv. Unit No. 16, 845 F. Supp. 1342 (D. Neb. 1994) (conducting a reliability inquiry and determining that expert opinion testimony that sexual abuse in fact occurred was, in that particular case, not reliable), aff’d, 66 F.3d 940 (8th Cir. 1995).”
encroaches upon the jury’s vital and exclusive function to make credibility determinations, and therefore does not “assist the trier of fact” as required by Rule 702. See United States v. Azure, 801 F.2d 336, 339-40 (8th Cir. 1986); see also United States v. Shay, 57 F.3d 126, 131 (1st Cir. 1995); Whitted, 11 F.3d at 785-86; Weinstein’s Federal Evidence § 702.03[5] (1998). Indeed, the government concedes that, in this case, testimony to the effect that D.J. and J.J. were ‘telling the truth . . . would be impermissible.’ Appellee’s Br. at 26. Most courts that have considered the issue have concluded that expert testimony, based on the statements of the alleged victim, that sexual abuse in fact occurred is inadmissible under Fed. R. Evid. 702 (or similar military or state evidentiary rules) because, in such cases, the expert offering the opinion is merely vouching for the credibility of the alleged victim. Thus, if Dr. Ornelas largely based her opinion on the statements of the girls, then under the foundation (or lack thereof) presented in this case, we consider it inadmissible. Therefore, regardless of whether Dr. Ornelas’s conclusion was based on the girls’ medical history or on their allegations of abuse, its admission was erroneous.” In Salinas v. State, 166 S.W.3d 368 (Tex. App. - Fort Worth 2005, pet. ref’d), a pediatrician testified she diagnosed sexual abuse based solely upon the history provided by the child-complainant. The appellant claimed that such evidence was improperly admitted expert testimony that directly commented on the credibility of the complainant. The appellate court held that because there was no physical evidence of digital penetration, the doctor’s “testimony could only be seen as an attempt to directly bolster the credibility of the complainant and a direct comment on the complainant’s truthfulness.” “The trial court
“On the other hand, if Dr. Ornelas’ opinion was largely based on crediting the girls’ account, whether disclosed to her or others, she was essentially vouching for their truthfulness. In general, expert testimony which does nothing but vouch for the credibility of another witness 6
abused its discretion in admitting the pediatrician’s testimony that she had diagnosed sexual abuse based on the child’s medical history.” 3.
enforcement, as in the current case. Virtually all of the testimony at issue found support in the cases: that grooming was an attempt by the offender to create a compliant victim, involved an escalation of conduct over time, could involve spending intimate time alone with the child, was like dating, was designed to desensitize the child, often began with innocuous touches, and could involve supplying the child with alcohol or pornography, giving gifts, giving back rubs or massages, engaging in games or horseplay, or talking about the adult’s own prior sexual experiences.” Morris v. State, 361 S.W.3d 649 (Tex. Crim. App. 2011).
Battered child syndrome
It has been held to not be an abuse of discretion to allow an expert to testify as to the behavioral characteristics of sexually abused children. Perez v. State, 113 S.W.3d 819 (Tex. App. - Austin 2003, pet. ref’d), overruled on other grounds, Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008). 4.
Why the outcry was delayed
In a child abuse case “where the child waited some five years to report the alleged assault, the credibility of the child is a fact directly at issue. Therefore, [expert’s] testimony regarding symptoms of child abuse victims in general, including the frequent existence of the delayed outcry, tends to make the existence of a fact of consequence to the determination of the action more probable: that is, that the victim is telling the truth.” Vasquez v. State, 819 S.W.2d 932 (Tex. App. - Corpus Christi 1991, pet. ref’d). 5.
C.
Obtain records and research the State’s expert
1.
Immediately request notice of the State’s experts
Article 39.14(b) of the Texas Code of Criminal Procedure states, “On a party’s request made not later than the 30th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin, the party receiving the request shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence. Except as otherwise provided by this subsection, the disclosure must be made in writing in hard copy form or by electronic means not later than the 20th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin. On motion of a party and on notice to the other parties, the court may order an earlier time at which one or more of the other parties must make the disclosure to the requesting party.”
Grooming
“Grooming” of children for “sexual molestation was a legitimate subject of expert testimony under Tex. R. Evid. 702 and was useful to the jury. The subject matter was within the scope of the field of studying the behavior of people who sexually victimized children. Cases referring to the subject were legion, and recognition of the concept extended far beyond Texas. Grooming evidence had been received by courts from numerous types of expert, including people who working in law 7
You should immediately request, pursuant to Art. 39.14 the State’s list of experts with a letter to the State filed with the court clerk. The longer your request is pending and the closer to trial the State provides you with its witness list, the better chance you have of keeping its witnesses off the stand. By analogy, cases addressing the notice provision of TRE 404 (b) are informative. If the request for 404(b) notice was made months before trial, notice is insufficient if given Friday before trial starting on Monday even if the defense received the notice that Friday afternoon. Hernandez v. State, 914 S.W.2d 226, 234 (Tex. App. - Waco 1996, no pet.); Neuman v. State, 951 S.W.2d 538, 540 (Tex. App. - Austin 1997, no pet.). Such notices are not, however, per se unreasonable. Sebalt v. State, 28 S.W.3d 819 (Tex. App. - Corpus Christi 2000, no pet.). Courts look to the totality of the circumstances such as the length of time the defense request had been pending, but the primary consideration is whether notice was given in sufficient time to prevent unfair surprise. Id. Notice provided on Thursday regarding a pivotal witness for trial to begin on Monday allowed only one business day to prepare, so such notice was insufficient given the importance of the extraneous act to the case. Webb v. State, 36 S.W.3d 164, 177178 (Tex. App. - Houston [14th Dist.] 2000, pet. ref’d). The longer before trial notice was requested, the more likely notice given a few days before trial is likely to be found unreasonable. Id. Naming on a subpoena witness list the name of the complainant in an extraneous offense is insufficient notice since it fails to give the defense notice of the State’s intention to introduce evidence of a particular extraneous offense. Id. at 178-179. 2.
encountered a case where we confronted a State’s expert witness. This paper is designed to assist you in preparing for that confrontation. Once you are appointed or retained to represent your client, you should immediately review the prosecution file. In the file, you will find the specific case numbers for the medical examiner, crime lab, or any other entity used by the state such as CIL # 05-00249 or BCME # 04-2081. These specific case numbers will be used by you to obtain further information from the State expert. Request from the prosecutor a copy of the crime lab reports, medical examiner’s reports, and any other expert reports. Sometimes prosecutors will provide you with these copies if you just ask for them. Take accurate notes of any diagrams made by the police. The distances indicated in the diagrams may be useful in your crossexamination, for instance, of the bloodstain pattern analysis expert. Your expert will need this information to better provide you with an opinion regarding your case or with crossexamination points for the state expert. 3.
Obtain a court order for the State expert’s entire file
Article 39.14 of the Texas Code of Criminal Procedure allows, in pertinent part, defense counsel to file a discovery motion for the state to produce and permit the inspection and copying by the defense of any designated documents which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the state or any of its agencies. You should file a discovery motion to obtain the entire file of the state expert. Once the judge has signed the order, take a file stamped copy to the state expert to obtain a copy of the expert’s
Review the State’s file
All of us at one time or another have 8
entire file. You go get the file - do not rely upon the prosecutor to provide you with a copy. 4.
Obtain the subpoena from the district clerk and take the discovery motion, the court order, and the subpoena to the state expert. There can now be no objection from the state expert in providing you with everything the expert has in the expert’s file.
Obtain a subpoena for the State expert’s entire file
Obtain a subpoena application from the office of the district clerk. Determine the name of the custodian of records for the state expert’s office and their fax number and complete the duces tecum portion of the subpoena application (to include all tests, notes, test results, raw data, and any other information regarding the scientific testing) for instanter compliance with the subpoena and file it with the district clerk.
5.
Interview the State expert and obtain the expert’s entire file
Do not rely solely upon the prosecution file. Almost always, the state expert will have more information in the state expert’s file than the prosecution will have in its file. Go to the state expert’s office and physically look at the originals to ensure you have everything the expert has in the expert’s file. Have the state expert explain the entire file to you. State experts have informed me that very few defense counsel ever interview the state experts or obtain copies of their files.
The fax number for the records custodian should appear on the subpoena so you may fax the subpoena to the state expert as proper service of the subpoena if the state expert or custodian requires service rather than personal delivery. Article 24.01(b) of the Texas Code of Criminal Procedure states that service may not be by a participant in the proceeding for which the appearance is sought. To get around this limitation, Article 24.04(a)(3) of the Texas Code of Criminal Procedure states that a subpoena may be properly served by electronically transmitting a copy of the subpoena, acknowledgment of receipt requested, to the last known electronic address of the witness. Article 24.04(c)states that a subpoena served in this manner must be accompanied by notice that an acknowledgment of receipt of the subpoena must be made in a manner enabling verification of the person acknowledging receipt. All you need do to satisfy this requirement is type this notice and acknowledgment on the fax cover letter and fax the subpoena along with the cover letter to the state expert.
6.
Do a background check on the state’s expert
Use the internet to see what information is available regarding the state expert. When you meet with the state expert, ensure you obtain a copy of the expert’s curriculum vitae which should have a list of articles the expert has written. Look at these articles to see if any of them apply to the subject matter of your case. Another valuable tool is Lexis or Westlaw. Enter the name of the expert and conduct a case search for that expert. Once you determine in which cases the expert has testified, see which cases involved the same subject matter as your case. You can then go to the office of the district clerk, appellate section, and order the transcript of the trial testimony for your review. You can then read the testimony of the expert and, if helpful to your case, obtain 9
a copy of the testimony along with the cover page and court reporter’s certificate page to impeach the expert at trial. D.
outside the jury’s hearing.” You should always request this hearing to test the admissibility of the expert’s opinion, to obtain discovery, to ensure you have copies of everything the state expert has used to form an opinion, and to get a record of what the expert has to say.
May you contact the State’s expert?
Rule 4.02(b) of the Texas Disciplinary Rules of Professional Conduct discusses “Communication with One Represented by Counsel” and states as follows: “In representing a client a lawyer shall not communicate or cause another to communicate about the subject of representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Comment 3 to this rule states as follows: “Paragraph (b) of this Rule provides that unless authorized by law, experts employed or retained by a lawyer for a particular matter should not be contacted by opposing counsel regarding that matter without the consent of the lawyer who retained them. However, certain governmental agents or employees such as police may be contacted due to their obligations to the public at large.” (Emphasis added). E.
Get the State’s expert to testify pretrial
1.
A hearing using TRE 705(b) coupled w i th ex p ert’s qualifications
Be careful to state on the record exactly what is your intent with the hearing – i.e., use this hearing to obtain/explore all documents and other information/facts/data on which the expert is basing the expert’s opinion, and also use this hearing to challenge the expert’s qualifications and the relevance/reliability of the expert’s proposed testimony as discussed in the next section of this paper. Expert testimony must be based upon specialized knowledge/skill/ education that is not in possession of the jurors – e.g., that red liquid coming from a body is blood is knowledge commonly held by most people and such opinion is lay and subject to TRE 701, Opinion Testimony by Lay Witnesses. The following case law should be considered in preparing for and litigating this hearing. Remember that the analysis in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 125 L.Ed.2d 469, 113 S.Ct. 2786 (1993) (drugs caused birth defects) deals with scientific evidence whereas the analysis in Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 143 L.Ed.2d 238, 119 S.Ct. 1167 (1999) (tire inflation expert testimony not allowed) deals with non-scientific expert testimony. The gatekeeper function in Daubert considers a 5-factor flexible test under FRE 702 for “validity” of scientific evid: (1) if technique or theory can be or has been tested; (2) if theory/technique has been subject to peer review/publication; (3) known or potential rate of error; (4) existence/maintenance of
TRE 705(b) states, “Before an expert states an opinion or discloses the underlying facts or data, an adverse party in a civil case may – or in a criminal case must – be permitted to examine the expert about the underlying facts or data. This examination must take place 10
standards/controls; and (5) degree to which theory/technique is accepted in scientific community. This test requires counsel to determine if there is an insufficient connection between the expert’s opinion and the facts of case – i.e., the expert must connect the proper methodology with the facts of the case. In applying the 5-step test, a judge should not be a “super-expert” or scrutinize an expert in such a way as to exclude all but the perfect expert testimony. A judge should not apply too stringent a reliability test. United States v. 14.38 Acres, 80 F.3d 1074 (5th Cir. 1996) (court’s gatekeeper role not intended to replace adversary system). The task of the judge/ gatekeeper after Daubert is to ensure an expert reached an opinion by the same avenues the expert uses in the expert’s day-to-day work.
by the ipse dixit (a dogmatic and unproven statement) of the expert. Id. The expert must show the expert used the same intellectual rigor in reaching his conclusion as would be expected of him in his professional life outside the courtroom. For example, a judge should not exclude an expert on auto repair merely because the expert is not published in a peer-review journal or sociologist who cannot be definitive about a possible rate of error in his findings. Tyus v. Urban Search Mgt., 102 F.3d 256 (7th Cir. 1996). It is Improper to exclude expert testimony because the testimony was too general to be helpful because the expert “would have given the jury a view of the evidence well beyond their everyday experience.” Id. “. . . [D]oubts about whether an expert’s testimony will be useful should generally be resolved in favor of admissibility.” Fox v. Dannenberg, 906 F.2d 1253 (8th Cir. 1990). If a juror, without assistance, is as capable as an expert of answering a question, the expert’s opinion on that issue is not helpful and should be excluded as expert testimony. See Scott v. Sears, Roebuck & Co., 789 F.2d 1052 (4th 1986) (women in high heels tend to avoid sidewalk grates – witness is merely repeating what’s common knowledge/common sense). Prejudice occurs if an expert merely bolsters the credibility of a fact witness by restating that testimony in expert garb. United States v. Cruz, 981 F.2d 659 (2d Cir. 1992) (government agent defined “broker” in drug transaction which merely corroborated government’s main fact witness who said accused was intermediary; prejudice because strongly suggested to jy that govt agent believed govt fact witness was credible and D guilty). An expert is not required to have encyclopedic knowledge about the field in question or to be published. Ellis v. K-Lan Co., 695 F.2d 157 (5th Cir. 1983) (expert’s lack of familiarity with statutory standard affects the weight and not admissibility of his testimony);
Under the test in Kuhmo, a judge ensures the reliability and relevancy of expert testimony by making certain that the expert employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. Id. The Daubert 5-factor test is meant to be helpful with non-scientific evidence, but not definitive. Id. A judge should consider the specific Daubert factors where they are reasonable measures of the reliability of expert testimony. A challenge to an expert is not routine but is for the unusual case where it is apparent an expert has underresearched issues, seriously misapplied a methodology, or acted clearly inconsistently with professional standards. Not every accountant/electrician/plumber should be the subject of a Daubert hearing. In Kumho, the expert’s opinion was subjective and unsupported by any other tire failure expert, and more important, the expert discounted evidence that under his own test indicated the tire had been improperly inflated. Daubert and the FRE do not require a judge to admit opinion evidence that is connected to existing data only 11
United States v. Dysart, 705 F.2d 1247 (10th Cir. 1983) (osteopathy doctor qualified testify about competency stand trial where he received 1 year training in psychiatry even though he’d never published on such matters). 2.
education may testify thereto in the form of an opinion or otherwise.’ Id. at 702. Finally, Rules 401 and 402 render testimony admissible only if it ‘tend[s] to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ Id. at 401, 402. ‘These rules require a trial judge to make three separate inquiries, all of which must be satisfied before admitting expert testimony: “(1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case.” Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006). ‘These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance.’ Vela, 209 S.W.3d at 131.” Escamilla v. State, 334 S.W.3d 263 (Tex. App. - San Antonio 2010, pet. ref’d) (emphasis added).
Determine the admissibility of the expert testimony
TRE 705(c) states, “An expert’s opinion is inadmissible if the underlying facts or data do not provide a sufficient basis for the opinion.” TRE 702 states, “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” TRE 703 states, “An expert may base an opinion on facts or data in the case that the expert has been made aware of, reviewed, or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.”
a.
TRE 702 inquiry
Under TRE 702, the trial court must be satisfied that three conditions are met 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 actually assist the jury in deciding the case. Malone v. State, 163 S.W.3d 785 (Tex. App. - Texarkana 2005, pet. ref’d).
“‘The Texas Rules of Evidence set out three separate conditions regarding admissibility of expert testimony.’ Vela v. State, 209 S.W.3d 128, 130 (Tex. Crim. App. 2006). Rule 104 requires that ‘[p]reliminary questions concerning the qualification of a person to be a witness . . . be determined by the court . . . .’ TEX. R. EVID. 104(a). Under Rule 702, ‘[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
TRE 702 contains two initial hurdles that must be overcome before expert testimony will be admissible. Roise v. State, 7 S.W.3d 225 (Tex. App. - Austin 1999, pet. ref’d). The proponent of the testimony must establish: (1) 12
that the scientific technical, or other specialized knowledge will aid the trier of fact; and (2) that the expert is qualified to testify on the subject. Id., citing Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim. App. 1995).
must be into the actual qualification. That is, there must be a “fit” between the subject matter at issue and the expert’s familiarity therewith.” Broders, 924 S.W.2d at 153. The proponent must establish that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the trial court which would qualify the expert to give an opinion on that particular subject. Id.
Unlike the common-law requirement, a trial court under Rule 702 may admit an expert’s testimony on a matter within most jurors’ understanding if the testimony concerns some type of technical or specialized knowledge and would assist the jurors in their fact-finding function. Glasscock v. Income Prop. Serv., Inc., 888 S.W.2d 176, 179-81 (Tex. App. - Houston [1st Dist.] 1994, writ dism’d). i.
The proponent of the expert has the burden to first establish that the expert is qualified to testify about scientific, technical, or other specialized matters. Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim. App. 1995). Pursuant to TRE 104(a), the trial judge makes a preliminary determination about whether the witness is sufficiently knowledgeable to be considered an expert. Id.
Qualification inquiry
The inquiry regarding whether or not an expert is qualified is “a flexible one.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 594, 125 L.Ed.2d 469, 113 S.Ct. 2786 (1993). No rigid formula exists for determining whether a witness is qualified to testify as an expert. 2 Steven Goode, Olin Guy Wellborn, III, & M. Michael Sharlot, Guide To The Texas Rules of Evidence: Civil and Criminal § 702.3, at 54 (Texas Practice Supp. 2000). The expertise must be measured against the particular opinion the expert is offering. Roise v. State, 7 S.W.3d 225 (Tex. App. - Austin 1999, pet. ref’d). While the proponent of the testimony has the burden of establishing the expert’s qualifications, the trial court has the responsibility to ensure that the experts truly have expertise concerning the actual subject about which they are offering an opinion. Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996).
The qualifications of a witness to testify as an expert is within the discretion of the trial judge. See TRE 104(a); Ventroy v. State, 917 S.W.2d 419 (Tex. App. - San Antonio 1996, pet. ref’d). A judge’s decision to permit a witness to testify as an expert will not be disturbed on appeal absent a showing of an abuse of discretion. Id. “‘It is almost impossible to lay down any definite guidelines for determining knowledge, skill or experience required in a particular case or of a particular witness.’ Rogers v. Gonzales, 654 S.W.2d 509, 513 (Tex. App. - Corpus Christi 1983, writ ref’d n.r.e.). ‘Special knowledge’ may be acquired by virtue of the witness’s experience. Reece v. State, 878 S.W.2d 320, 325 (Tex. App. - Houston [1st Dist.] 1994, no pet.). Moreover, contrary to appellant’s trial objection, licensure, or certification in the particular discipline is not a per se requirement. Southland Lloyd’s Ins. Co. v. Tomberlain, 919 S.W.2d 822, 827 (Tex. App. - Texarkana 1996, writ denied); Guentzel v.
A degree alone is not enough to qualify a purported expert to give an opinion, as the case may be, on every conceivable medical question, legal question, or psychological question. Roise, 7 S.W.3d at 234. “The inquiry 13
Toyota Motor Corp., 768 S.W.2d 890, 897-99 (Tex. App. - San Antonio 1989, writ denied). ii.
S.W.2d at 573.” Gregory v. State, 56 S.W.3d 164 (Tex. App. - Houston [14th Dist.] 2001, pet. granted).
Reliability inquiry A trial judge’s gate keeping obligation under Rule 702 – to insure that the expert witness’s testimony rests upon a reliable foundation and is relevant to the task at hand applies to all expert testimony not just scientific expert testimony. Roise, 7 S.W.3d at 235-36 (citing Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 143 L.Ed.2d 238, 119 S.Ct. 1167 (1999)); see also Jackson v. State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000).” Harnett v. State, 38 S.W.3d 650 (Tex. App. - Austin 2000, pet. ref’d).
The proponent of scientific evidence must show, by clear and convincing proof, that the evidence is sufficiently reliable and relevant to assist the jury in understanding other evidence or in determining a fact issue. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Salazar v. State, 127 S.W.3d 355, 359 (Tex. App. - Houston [14th Dist.] 2004, pet. ref’d). In Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), the court stated “an appropriately tailored translation of the Kelly test” for expert testimony outside the hard sciences. When the expert is from a discipline which involves technical or other specialized knowledge, experience, and training as opposed to the scientific method, the test for reliability is: (1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert's testimony is within the scope of that field, and (3) whether the expert's testimony properly relies on and/or utilizes the principles involved in the field. Weatherred, 15 S.W.3d at 542; Nenno, 970 S.W.2d at 561.
Before an expert may give an opinion in a case, three criteria must be met: (1) the witness must be competent and qualified to testify; (2) the subject must be one upon which the aid of an expert’s opinion will be of assistance to the jury; and (3) his testimony may not state a legal conclusion. Sattiewhite v. State, 786 S.W.2d 271 (Tex. Crim. App. 1989). To be admissible, expert testimony must assist the jury on a matter in which the jury is not qualified to intelligently determine the matter without the help of the expert. Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997). The expert testimony, however, must aid – not supplant – the jury’s decision. Id.
“To be considered reliable, evidence based on a scientific theory must satisfy three criteria: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Hartman v. State, 946 S.W.2d 60, 62 (Tex. Crim. App. 1997) (citing Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992)); see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 125 L.Ed.2d 469, 113 S.Ct. 2786 (1993). Under Texas Rule of Evidence 104(a) and (c) and Rule 702, the proponent must establish all three criteria outside the presence of the jury, before the trial court may admit the evidence. Kelly, 824
An expert’s testimony regarding scientific evidence is admissible if three criterion are met: (1) the underlying scientific theory is valid; (2) the technique applying the theory is valid; and (3) the technique was properly applied. Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992). With nonscientific expert testimony involving technical or other specialized knowledge, experience, or training, the expert may testify if three criterion are met: (1) whether the field of expertise is a legitimate one; (2) whether the subject matter of the 14
expert’s testimony is within the scope of that field; and (3) whether the expert’s testimony properly relies on or utilizes the principles involved in the field. Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), overruled in part on other grounds, State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999). b.
Behavioral Health at the Spring Branch Medical Center. However, Wright testified that she worked on only 15 to 25 cases of child abuse while at Child Protective Services in 1990-1991, and that she had worked on only 20 to 30 child-abuse cases during her private practice for the last five years. Wright’s private practice does not concentrate solely on children, and at the time of trial, she did not have any child- abuse victims as clients. Wright testified that she had never conducted independent scientific studies on sexually abused children or on the proper techniques used to interview abused children. Moreover, Wright had not published any articles on sexually abused children or the protocols for interviewing abused children. See, e.g., Perez v. State, 25 S.W.3d 830, 837 (Tex. App. - Houston [1st Dist.] 2000, no pet.) (expert had never written an article regarding her area of testimony as a factor in finding expert unqualified).” The trial judge refused to allow the expert to testify and the appellate court affirmed. “Appellant did not satisfy his burden of establishing that Wright was qualified to testify as an expert in the areas stated above. We find that, because Wright had so little experience in dealing specifically with abused children and little experience in the techniques typically used to interview abused children, the trial court did not abuse its discretion in finding her not qualified to testify as an expert witness.”
TRE 705(b) checklist
Given the above, you should cover the following areas in your 705(b) hearing: 1. 2. 3. 4. 5. 6.
7.
the expert’s qualifications; the validity of the underlying scientific theory used by the expert; the technique used by the expert to apply the theory; how the expert applied the technique; the legitimacy of the field of expertise; whether the subject matter of the expert’s testimony is within the scope of that field; and whether the expert’s testimony properly utilizes the principles involved in the field. F.
Is the expert really an expert
1.
When a CPS social worker is unqualified
In Fox v. State, 115 S.W.3d 550 (Tex. App. - Houston [14th Dist.] 2002, no pet.), a CPS social worker who worked with abused children had a master’s degree in social work and a degree in psychology. The defense called the expert to testify regarding: (1) the proper protocols for interviewing a child who has been abused; (2) developmental stages of a child; and (3) behavioral patterns of an abused child. The expert “had been a social worker in the public sector for ten years and in private practice for five years; and [] had been the Director of
2.
When a SANE is unqualified
In Escamilla v. State, 334 S.W.3d 263 (Tex. App. - San Antonio 2010, pet. ref’d), the State called a SANE as an expert witness. The SANE testified that her examination of the child “revealed two symptoms consistent with sexual abuse: a tear close to D.A.E.'s anus and the wide dilation of D.A.E.'s anus within seven seconds after retraction of the child's buttocks.” The appellant claimed the trial judge “erred in allowing Garza to testify regarding the dilation 15
of D.A.E.'s anus because her opinion was not based on a valid scientific theory, the technique applying the theory was not valid, and the technique was not correctly applied.” Id.
technique or methodology was generally accepted in the medical community, she stated, ‘Our trainings through the Office of the Attorney General.’” Id.
“Garza stated that in 2009, the year of the underlying trial, she had conducted close to 100 sexual assault examinations. Following her examination of D.A.E., Garza said she found a tear close to D.A.E.'s anus that was consistent with sexual abuse, either by manipulation or forcible penetration. She also stated that the wide dilation of D.A.E.'s anus within seven seconds after retraction of the child’s buttocks was consistent with sexual abuse. According to Garza, it takes at least one minute for a normal anus to start to dilate, but it took only seven seconds for D.A.E.'s anus to dilate.” Id.
“We conclude the State established Garza’s qualifications and Garza was able to explain her methodology with sufficient clarity. However, Garza could not elaborate on the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community; she could make only vague references to literature supporting her underlying scientific theory and technique; and she did not appear to understand the concept of ‘the potential rate of error of the technique.’ Therefore, we must conclude the State did not carry its burden to ‘establish some foundation for the reliability of [Garza’s] opinion.’ Vela, 209 S.W.3d at 134. Thus, the trial court erred by allowing into evidence her opinion that the quick dilation of D.A.E.'s anus was consistent with sexual abuse.” Id.
“When asked to explain the reasoning or methodology she used in reaching her opinion about dilation, Garza could not be any more specific than to state ‘based on my training,’ ‘my readings and stuff,’ the conferences she attends, and ‘research and the peer reviews.’ Garza explained that by ‘peer review’ she meant ‘where . . . SANE nurses . . . are able to share information, learn from each other. We’re able to review cases . . . see slides, pictures.’ When asked if she knew the known or potential rate of error for the application of the theory on anus dilation, Garza could only state ‘we base ourselves on what the patient tells us, the history and our findings.’ Although Garza said she based her opinion on literature by Dr. Nancy Kellogg, Garza could not name a specific article written by or a study conducted by Dr. Kellogg. Garza also said she based her opinion on literature by Dr. John McCann, but she could only reference a magazine article possibly written in 2008. When asked whether the technique or methodology she used in formulating her opinion was generally accepted in the medical community, Garza responded, ‘It is accepted.’ However, when asked why her
G.
Motions in limine are vital
Motions in limine do not preserve error. Webb v. State, 760 S.W.2d 263 (Tex. Crim. App. 1988); Maynard v. State, 685 S.W.2d 60 (Tex. Crim. App. 1985). This is true whether the motion is granted or denied. Willis v. State, 785 S.W.2d 378 (Tex. Crim. App. 1989); Webb. The remedy for a violation of a ruling on a motion in limine rests with the trial court. Brazzell v. State, 481 S.W.2d 130 (Tex. Crim. App. 1972). The trial court may hold the litigant or attorney in contempt or use other remedies or sanctions. Id. To preserve error for appeal regarding a motion in limine issue, you must object to the admission or exclusion of evidence or other action. Id. Use motions in limine to incorporate all caselaw, statutes, and reasoning for your appellate issue. Number the motion in limine 16
and refer to the number when that issue arises during trial and have the judge overrule the grounds stated in that motion in limine. This helps you to code your objections before the jury and not sound obstructionist.
17
Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course June 24-26, 2021 Hyatt Regency San Antonio, TX
Topic: Closing Arguments
Speaker:
Patty A. Tress
222 E. McKinney Street, Suite 210 Denton, Texas 76201 (972) 325-1758 office (972) 922-5498 cell planyourdefense@yahoo.com email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
34TH ANNUAL RUSTY DUNCAN CLOSING ARGUMENTS
SPEAKER: PATTY A. TRESS 222 E. McKinney Street, Suite 210 Denton, Texas 76201 (972) 325-1758 (Office) (972) 922-5498 (cell)
Closing arguments are the final part of the trial. Your last chance to say anything to the jury. You must not waste this opportunity to continue to advocate for your client by just merely summarizing the evidence presented at trial. Remember they sat through the trial too and don’t really need a summary. What they need is a connection to your client through you. That final positive impression before they go back and deliberate. Your closing should grab the jurors’ attention and cause them to listen intently. Make your closing a persuasive as possible to help a jury connect and invest in your client’s story. FIRST THINGS FIRST: Do not start your closing argument or deciding what you want to say while the State is giving their closing. It is too late. You will appear unprepared and uninterested in your client’s story. This will turn a jury off to what you have to say. And what you have to say is very important. Gerry Spence once said, “The only cases that can be won in the final argument are those that have not bee previously lost. On the other hand, a good case can be lost in those fatal, final moments.” So what does that mean? It means to make sure you are not unprepared for your closing arguments. You need to start your closing argument preparation very early on. Starting your closing before your opening in preparation of trial seems strange. However, this will help you to develop your theme for trial. Your closing argument will tie directly into your opening when you have a theme. You will then be able to carry that throughout the entire trial. Preparing your closing first will help you develop your theme, formulate a story, and help you have well developed and unified arguments throughout trial. So how do you start developing a closing argument? There is a science to creating a persuasive closing argument that ties directly into your opening statement and is carried through the trial. This is the creation of a theme for
your case. You must practice persuasive closing arguments before jury selection starts. I know all of this seems a little counterintuitive. I felt the same way when I was told to start with my closing when preparing for trial. BUT it works!!! Just give it a try. How do you develop a theme? You want to consider several things when thinking about a theme for your case that you will then use in closing. Start by telling a jury what verdict you want and why. Do not make it confusing for the jury. Meaning stay away from complicated legal technicalities. Concentrate on what parts of evidence are/were important to your case. If you feel comfortable use visual aides such as a power point. Explain why you are right and the State is wrong. Make sure your argument is logical and consistent with common sense. By the time you make it to closing argument, your argument should not be used to try and get new jurors to go your way. What you are trying to do is give those on your side already ammunition to use in the jury room. In your argument, you should try to accomplish six goals: 1. Reiterate your theory of the case and make sure the jurors understand it. Your theory must be clear in order to provide direction to the jurors; 2. Emphasize favorable evidence, but do not waste time rehashing every single detail; 3. Use your story to rebut your opponent’s allegations. Weave your rebuttal through your own story and theme. Do not spend all of your time on the prosecutions version of events; 4. Give the jury suggestions on how to resolve conflicts in your favor by giving them affirmative reasons why your position is right, and negative reasons why your opponent’s position is wrong;
5. Explain the law and show them how the law and evidence requires a verdict in your favor; and 6. By far the most important, make your case into a good story--include a plot, motives, adventure, battles between good and evil, human weaknesses, temptation, drama and a moral at the end. Make your argument effective When constructing your closing argument, make sure you are communicating with the jury correctly. Here are some tips for making your argument effective—a little Dos and Don’ts: 1. Do not make the closing argument about you. Remember this is not about you!! This is about your client and their story. 2. Do not talk down to a jury. This can happen both verbally in your tone and non-verbally in your mannerisms. Remember a lot of human communication is done through visual non-verbal cues. 3. Do not just tell them what to do. Show them how to get where you want them to go. Some people shut down when being told what to do. This is not what you want to happen with a jury. 4. Do not get bogged down in reviewing uncontested or trivial matters during your closing. 5. Do not have too many points in your closing. This complicates things and jurors will lose interest. 6. Do no call your client DEFENDANT. Your client has a name, use it.
7. Do use the same theme from your opening statement. You do not want to switch gears and change your theme up in your closing argument. Aha moments are few and far between during trial and often do not help us. During your closing, you are driving home the theme seeds you planted during your opening statement. 8. Do keep your closing simple. What is meant by this is to keep your argument uncomplicated. Focus your argument on what the real disputes are and resist offering several alternative theories. 9. Do keep your argument specific. Keep it about factual points that are corroborated by details from the case. 10. Do explicitly draw conclusions. While in an opening statement you may have left a hook for a jury to listen for or watch for, in closing, you need to draw the conclusion and bring it home. Do not leave it for a jury to draw their own conclusion. 11. Do have an organized argument. Jumping back and forth between ideas will make your argument confusing. In addition, it will make it seem like you are not sure about what you are saying. 12. Do practice primacy and recency. Jurors remember what they hear at the beginning of your argument and the end. Getting up and saying “May it please the court, counsel” if it is not required by your jurisdiction is a waste of your time, the jurors time and a great opportunity to come our swinging. 13.
Do focus on your story and not attacking the State’s case.
14. Do use visual aids. The obvious ones are exhibits. But you can use demonstrative exhibits, charts, power point, ELMO, or flip
board. Remember people all retain information differently. Some of your jurors may need visual help. 15. Do weave the jury instructions into your arguments. Do not do like the State and just go over the instructions. It’s boring. 16. Do HUMANIZE AND PERSONALIZE. I use caps on this one because it is so very important. If a jury does not see your client as human, you are sunk. This needs to be carried out throughout the entire trial. Make sure you use your clients name and tell the jury personal things throughout your story about your client. 17. Do use analogies. If there is a difficult legal concept, use common experience analogies to help them understand. 18. Do use positivity. Argue your own case not the other sides case. Only discuss as necessary THE LAW The scope of your closing argument will generally fall within 4 catagories: (1) summation of the evidence (2) reasonable deductions drawn from the evidence (3) the response of counsel to opposing counsel’s arguments and (4) a plea for law enforcement. See Alejandro v. State, 493 S.W.2d 230 (Tex. Cr. App. 1973). You can use this as a guideline in developing your closing and for any objections needed during the State’s closing. Obviously, the fourth category does not apply to the defense closing. The first three categories will be used in ways to make your argument compelling once you have your theme and strategy set. An attorney has the right to explain the evidentiary problems with the evidence, and the issues and circumstances surrounding the case. See Pittman v. State, 9 S.W.3d 432 (Tex. App.—Houston [14th Dist.] 1999, no pet.). When you argue about evidentiary problems in the State’s case, you
must incorporate it into your theme and strategy. When done well, you will be able to argue the evidence relied upon by the State is in fact not reliable or credible and therefore does not establish proof beyond a reasonable doubt. When using this tactic, you can limit the effectiveness of how the State can argue and you are offering other scenarios or plausible explanations. You are allowed to argue matters of common knowledge without having express evidence in support of such a claim. See Wright v. State, 178 S.W. 3d 905 (Tex. App. –Houston [14th Dist.] 2005, pet. ref’d). This is an excellent area to allow you in your argument to humanize your client. This where you can let the jury know they are allowed to use their common sense and apply it to the evidence. Using common knowledge in your argument can help develop a connection between the jury and your client. Attorneys may not argue facts outside of the record. Make sure you pay close attention during the State’s closing argument. Object if they argue outside the record. If possible, approach the bench and ask for the court to instruct the jury that this evidence was not presented and they should disregard. Request a mistrial. An attorney may not give an incorrect explanation of the law, which injects new and improper material into trial, as this improper. See Arnold v. State, 234 S.W.3d 664 (Tex. App. –Houston [14th Dist.] 2007, no pet.). Make sure during your closing you are not interjecting unnecessary issues into trial. When the Defense does this, the court does not hesitate (in most circumstances) to admonish us in front of the jury, this can diminish your standing with the jury. There are very limited circumstances in which you can argue outside of the record. An attorney may argue outside of the record, in response to and answering the arguments of opposing counsel, but argument cannot exceed the scope of the invitation. See Threadgill v. State, 146 S.W.3d 654 (Tex. Cr. App. 2004). If you are arguing in response to an answering the arguments of opposing counsel in this manner and they object, make sure to let the
court know that restricting your argument will be a violation of due process and due course of law. Finally, the State cannot attack defense counsel. A closing argument that strikes at the defendant over the shoulder of defense counsel is improper. Harris v. State, 122 S.W. 3d 871 (Tex. App.—Fort Worth 2003, pet. ref’d). Now you are armed with all you need for a great closing argument.
Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course June 24-24, 2021 Hyatt Regency San Antonio, TX
Topic: Storytelling
Speaker:
Chris Abel
4315 Windsor Centre Trl Ste 300 Flower Mound, TX 75028 (972) 584-7837 phone cabel27@gmail.com email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
STORYTELLING FOR LAWYERS WITH EMPHASIS ON THE USE OF THE TWICE-TOLD TALE FORMAT By: Chris Abel, Attorney At Law
It is a distinct honor to be asked to speak at Rusty Duncan, especially on such a lofty topic. However, this topic proves to be difficult to write about and lends itself better to a live presentation / demonstration. So, let the script be derived from the oral and not vice versa. I do not want at all for my informality on the paper to be taken as any less respectful on this distinguished CLE but to be more respectful to you as the listening audience. My goal at Rusty Duncan this year will be to talk about what I am doing and do what I am talking about. I apologize upfront if all you got was this paper and no presentation. Gerry Spence described trial in this vivid passage: “Of course it is all storytelling nothing more. It is the experience of the tribe around the fire, the primordial genes excited, listening ... the shivers racing up your back to the place where the scalp is made, and then the breathless climax, and the sadness and the tears with the dying of the embers, and the silence.” Our job as lawyers is to persuade. One of the principal techniques of persuasion comes through understanding the art of storytelling. Storytelling is primal. It can show the way to a common ground that ties in to the basic values of the listener. Obviously, it helps to find a good theme, and convey that theme with story-telling techniques in order to win the case. This paper and presentation, however, will not only touch on the importance of crafting and conveying the theme but also the painful situation of how to handle the case when the facts do not lend themselves well to a good story about the client. Finding Your Theme
How does one find an appropriate theme, a short powerful statement that sums up the entire case? Start from the facts as you know them. Try putting them together in chronological order and see if anything on the order of principle emerges. Work through them with different starting points and variable sequences. See what emerges as a simple explanation of why you should win based on the facts as you know them. If working from the ground up doesn't produce anything that seems right, you might then go to external sources. A book of quotes is a good place to start. Try Shakespeare anthologies. Never forget the client as a source for the theme. Get their story down. Speak to them over and over again, and not just about the case. Where are they from, where were they born, went to high school, what did their parents do for a living? What was their first job, favorite subject in school? Listen for the story. If you have the luxury of time, then do the same for the witnesses. Listen for the story. Get the details down, relevant and irrelevant. Now, look for a familiar theme. Why? Because there are certain forms, certain patterns to human experience, which if honored in the form and pattern of the story will cause the listener to feel familiar, at home, even with a strange and new message and therefore be more inclined to listen, perhaps favorably, toward acceptance. Herman Melville once wrote to Nathaniel Hawthorne: “I find your stories wild and fanciful. But when I am well into them, I have a shock of recognition; for you have draped your wild and fanciful stories over the most common experiences and thoughts.” Learn your facts, listen to your client, and look into which of the universal patterns it belongs. Universal Themes The Seven Basic Plots: Why We Tell Stories is a 2004 book by Christopher Booker containing a Jung-influenced analysis of stories and their psychological meaning. Booker worked
on the book for thirty-four years. Here are some examples of the Sevan Basic Plots outlined by Booker: Overcoming the monster Definition: The protagonist sets out to defeat an antagonistic force (often evil) which threatens the protagonist and/or protagonist's homeland. (Most often used by the Prosecution) Examples: Perseus, Theseus, Beowulf, Dracula, The War of the Worlds, Nicholas Nickleby, The Guns of Navarone, Seven Samurai (The Magnificent Seven), James Bond, Jaws, Star Wars, Attack on Titan. Rags to riches Definition: The poor protagonist acquires power, wealth, and/or a mate, loses it all and gains it back, growing as a person as a result. Examples: Cinderella, Aladdin, Jane Eyre, A Little Princess, Great Expectations, David Copperfield, The Prince and the Pauper, Brewster's Millions, The Jerk. Quest Definition: The protagonist and companions set out to acquire an important object or to get to a location. They face temptations and other obstacles along the way. Examples: The Iliad, The Pilgrim's Progress, The Lord Of The Rings, King Solomon's Mines, Six of Crows, Watership Down, Lightning Thief, Raiders of the Lost Ark, Monty Python and the Holy Grail. Voyage and return
Definition: The protagonist goes to a strange land and, after overcoming the threats it poses or learning important lessons unique to that location, they return with experience. Examples: Ramayana, Odyssey, Alice's Adventures in Wonderland, Goldilocks and the Three Bears, Orpheus, The Time Machine, Peter Rabbit, The Hobbit, Brideshead Revisited, The Rime of the Ancient Mariner, Gone with the Wind, The Third Man, The Lion King, Back to the Future, The Midnight Gospel, Gulliver, Coming To America. Comedy Definition: Light and humorous character with a happy or cheerful ending; a dramatic work in which the central motif is the triumph over adverse circumstance, resulting in a successful or happy conclusion. Examples: A Midsummer Night's Dream, Much Ado About Nothing, Twelfth Night, Bridget Jones's Diary, Music and Lyrics, Sliding Doors, Four Weddings and a Funeral, The Big Lebowski. Tragedy Definition: The protagonist is a hero with a major character flaw or great mistake which is ultimately their undoing. Their unfortunate end evokes pity at their folly and the fall of a fundamentally good character. Examples: Anna Karenina, Bonnie and Clyde, Carmen, Citizen Kane, John Dillinger, Jules et Jim, Julius Caesar, Macbeth, Madame Bovary, Oedipus Rex, The Picture of Dorian Gray, Romeo and Juliet, Hamilton, The Great Gatsby. Rebirth
Definition: An event forces the main character to change their ways and often become a better individual. Examples: Pride and Prejudice, The Frog Prince, Beauty and the Beast, The Snow Queen, A Christmas Carol, The Secret Garden, Peer Gynt, Groundhog Day.
My list of Archetypal Twice-Told Themes: Judas (Betrayal) Cinderella (Rags to Riches), Ugly Duckling (Doubt and Adversity Bring About Great Change), Prince and the Pauper (Riches to Rags Brings About Humility), Cain and Abel (Greed Kills Even In Families), Moby Dick (Revenge is a Powerful Motive), Romeo Juliet (Love Can Kill, Especially When Forbidden), Sacrificial Lamb (Love Is The Greatest of Emotions), Prodigal Son (We Are All Worthy of Forgiveness), Odyssey (Men Do Stupid Things on Journeys) Don Quixote (Opposites Attract), Dr. Jekyll and Mr. Hyde (People Can Be Good And Bad), Anything with 7 deadly sins (All Relatable), Robin Hood (The Righteous Criminal). The search for a theme that will resonate with the listener's own values must be tied to the facts so as to support the storyteller's credibility. Do not succumb to the temptation of stretching the facts to fit the theme or stretching the theme to fit the facts. It must be a natural, not a contrived, fit. In addition, the fit can come undone as the case evolves during fact investigation and discovery. Never commit to a theme too early, lest you be hesitant to adopt a better fitting theme later on. Help: My Client’s Story Sucks, My Case Sucks, I Have No Theme If you are in this spot, then just tell a good entertaining story that kind of works and will make the jury like you. I have won many cases because the jury liked me, not my client. So
think of a good story. A good story is tailored to the audience. It is never repeated exactly. It is fitted in. It is a different experience each time, depending on the audience. There is no instant replay. A different condition calls for a reshaping of the story so that it will appropriately address the new condition. You have to put the grease where the squeak is. Therefore, the story isn’t just said the same way. Do not replace the story with an instant replay. Good story tellers use and reuse the basics of the story in different ways. Don’t think that unrelated stories have no power. We all too often think that a concept or a defense is too important to just explain it with a story, so what do we do? We replace it with exhortations and commands to the jury. We fill the room with “shalls” “oughts” and “shoulds”. These are important concepts and legal rules, so how do we convey the seriousness with a story? It is a difficult assignment because storytelling is difficult. It is difficult because it is communication, and communication is difficult. How do we bridge the gap between someone who is learned and knows the material and texts and someone who we only get a few minutes to talk to? The distance is great. Make sure to remember where the person is who is listening. To take what is profoundly important to me and then take it into a public setting is difficult. The first thing to go must be our own glibness. You must reexperience the story as you are telling it. Good storytellers are reluctant storytellers. You have to trust the story to carry the bridge. Sometimes we are afraid of the power of the story, and we pull back from it. There is at times a lack of trust in the story. The story is a seed. It must be planted. The farmer does not put the seed in the ground and then scream over it; he leaves it alone. We must trust in what we are saying. We plant the seed with the jury and leave it alone; we do not force the story. Do not hesitate with the story.
How do we overcome the hesitation? Don’t tell them what they want to hear; tell them what they want to say. The power of storytelling is that all of those jurors have a story to tell themselves, but they are not given a venue or an opportunity. Try to give them one during voir dire and they will say, “Oh, I don’t know…” They cannot speak for themselves, but you can speak for them. You want them to be thinking to themselves, “yeah, that happened to me.”, etc. You are invoking all of their stories, and the mark of a good story is that when it is over, people will say, “you know when you were talking, I was thinking about when I was a boy working on my family farm.” Stir their stories. Don’t just put more in, draw more out. Good story telling tells their stories and draws them out. Nothing is more powerfully persuasive than for you to call up the most important experiences of my life. This happens if your stories are realistic. Unrealistic stories cannot be related to. Do not bend stories to fit. Your story needs to have the smell and taste of life or else nothing is invoked. A story should be relaxing. There is no challenge. Once relaxation takes place, people become receptive, and they begin to identify. No one said, “I challenge you, or I have six things I want to say today.” In the process of storytelling, things that have long been in the head begin to move to the heart and we become what we know. It can be a long trip from the head to the heart. When you’re telling a story and it’s a grand story and someone is identifying, they are on that trip from the head to the heart. We are not transferring information; we are creating an experience of that information. You must decide what the nature of the experience to be created is. For instance, if you are speaking about freedom, you must determine what it is going to sound like, taste like, look like, smell like. You can speak about freedom and it can be as loud as 76 trombones on the 4th of July parade down main street. You can also speak about freedom and it is as quiet as a few
female voices humming outside a jailhouse door or as quiet as a whisper at a cabin door saying, “Mr. Lincoln says we’re free.” Creation of the experience of the content of the case. Most of the power of a story is not in the particular talent of the storyteller but in the appropriateness of the story. What makes a story powerful is the taking of the time to build a context from which it is told. You need to let the jury know where you are going before you start the story. If you tell them what direction you are going, they will get on the bus. To come up with a good introduction to the story, you have to start by creating the story in total. You can’t introduce something properly if you don’t know where it is going to go. So craft the story first, then you can craft the introduction to the story. Placement is key. Don’t throw a story out at the beginning in the hope to try and captivate the audience. A powerful story comes at the end. Where do we get stories? From each other and from ourselves. The best place to get stories is from our own personal observations; what we smell, hear, think, feel. We see and observe plenty. The problem is that we do not record and do not remember what we observe, so that it can be filed away and properly resurrected for the constriction of a story later on. You need to write enough to recall the event later on. Should I tell things about myself in trial? The question is to what extent is your experience relatable. You must determine if you were an “every person” in that situation. If it was a unique experience to you in your role as an attorney, it will not be relatable. Go back and read the old classics. Read Shakespeare. Read Twain and Faulker. Use stories that the vast majority of people will relate to. Universal Themes Again. We all cherish the innocence of children. We mostly all have fond memories of our elders. We relate to stories of great historic, heroic figures.
When telling the story, use economy of words. Leave something for the listeners. Don’t tell them what you want them to do. It is insulting. You do not need to describe everything. It is insulting to describe everything and dictating to the listener the conclusion they are about to reach. If you throw in too many adjectives, you are telling the listener how to feel and think about what is being said. Use images. People’s minds are like galleries. Can we see it when it is told? In sum, words and emotion matter. Remember what Lord Halifax said about Winston Churchill, “He mobilized the English Language and sent it to war.” Think as much about what stories, anecdotes, quotes, and rhetoric you will use as much as you think about what objections you will make. I am convinced that you can win your case in opening, maybe even voir dire with the use of a powerful story. Thank you for your time!
Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course June 24-26, 2021 Hyatt Regency San Antonio, TX
Topic: Federal Law Update
Speaker:
Buck Files
Files Harrison, P.C. 109 West Ferguson Tyler, Texas 75702 (903) 595-3573 phone (903) 597-7322 fax bfiles@filesharrison.com email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
“FEDERAL LAW UPDATE”
BUCK FILES Files Harrison, P.C. 109 West Ferguson Tyler, Texas 75702 903-595-3573 Fax 903-597-7322 E-mail: bfiles@filesharrison.com
34TH ANNUAL RUSTY DUNCAN ADVANCED CRIMINAL LAW COURSE June 24 – 26, 2021 San Antonio, Texas
Table of Contents I.
INTRODUCTION TO PART I OF THE PAPER................................................................... 3 A. The Problem With the Topic ....................................................................................... 3 B. The Criminal Cases of the 2020-2021 Term of the Supreme Court ........................... 3
II. THE SUPREME COURT CASES OF THE 2020-2021 TERM ............................................ 4 A. Life Sentence Without Parole for a Juvenile Defendant ............................................. 4 B. The AEDPA Cases ...................................................................................................... 7 C. The Uniform Code of Military Justice’s Statute of Limitations for Rape................. 12 III. CASES PENDING A DECISION OF THE SUPREME COURT AS OF APRIL 30, 2021 16 A. The Sixth Amendment Right of Confrontation ......................................................... 16 B. Exigent Circumstances for an Entry Into a Home ..................................................... 16 C. The Authority of a Police Officer of an Indian Tribe to Detain and Search a Non-Indian................................................................................................................. 17 D. Pre-Indictment Delay Alleged to Have Been Caused by the State in Order to Gain an Advantage .................................................................................................... 18 E. Right to a Public Trial Without Limitation ............................................................... 19 F. Rehaif Error ............................................................................................................... 20 G. A Court of Appeals’ Review of Matters Outside the Record of Trial ...................... 21 H. Re-Sentencing in a Crack Cocaine Case Under the First Step Act ........................... 22 I. Computer Fraud by One Authorized to Have Access to the Information on the Computer ................................................................................................................... 23 J. Offenses Requiring a Mens Rea of Mere Recklessness as Predicate Offenses Under The Armed Career Criminal Act .................................................................... 24 K. The Requirement of a Unanimous Jury Verdict in Criminal Cases .......................... 24 IV. INTRODUCTION TO PART II OF THE PAPER ............................................................... 25 A. Limitations on the Topic ........................................................................................... 25 B. The Cornucopia of Criminal Cases ........................................................................... 25 V. THE RESTITUTION CASES ............................................................................................... 26 A. Individual Retirement Accounts Are Subject to Garnishment .................................. 26 B. Waiver of Appeal Does Not Preclude a Defendant from Appealing a Restitution Order in Excess of the Statutory Minimum ............................................ 27 C. Restitution Is Not Appropriate for Damages Not Caused by the Specific Conduct That Was the Basis of the Offense of Conviction ...................................... 28 VI. WHEN JUDGES MAKE A LAWYER’S LIFE DIFFICULT .............................................. 29 A. Imposing a Trial Penalty ........................................................................................... 29 B. A Coerced Withdrawal of Objections ....................................................................... 32 C. A Court’s Procedurally Unreasonable Upward Adjustment ..................................... 34
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VII. CONDITIONS IMPOSED BY THE COURT ...................................................................... 37 A. Pre-Trial Conditions of Release ................................................................................ 37 B. Conditions of Supervised Release ............................................................................. 38 VIII.PRE-TRIAL ISSUES ............................................................................................................ 40 A. Speedy Trial Delay Caused by the Defendant........................................................... 40 B. Sequestering of a Case Agent .................................................................................... 42 IX. TRIAL ISSUES ..................................................................................................................... 43 A. Rule 701 Lay Opinion ............................................................................................... 43 B. Jury Instructions ........................................................................................................ 44 C. Obstruction of Justice by Giving Perjurious Testimony at Trial (U.S.S.G. § 3C1.1) .................................................................................................... 47 X. POST-TRIAL ISSUES .......................................................................................................... 49 A. Confrontation at a Revocation of Supervised Release Hearing ................................ 49 A. Denial of a Request for an Evidentiary Hearing ....................................................... 51 B. Consecutive Sentences – Stacking a Federal Sentence and a State Sentence ........... 52 XI. THE SORNA ISSUE............................................................................................................. 53 XII. CONCLUSION……………………………………………………………………………..53
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FEDERAL LAW UPDATE PART I: THE OPINIONS OF THE UNITED STATES SUPREME COURT FOR THE 2020-2021 TERM – DECIDED AND PENDING AND PART II: SOME OF THE OPINIONS OF THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT SINCE JUNE 30, 2020 I. INTRODUCTION TO PART I OF THE PAPER A. The Problem With the Topic In order to have the course materials prepared for the attendees to have at the 34th Annual Rusty Duncan Advanced Criminal Law Course, Melissa Schank and Stanley Schneider gave the authors/speakers a deadline of May 1st to have their papers in and ready to print. In its 2020-2021 term of Court, the Supreme Court agreed to hear 63 cases; of these, 14 are criminal cases. This is a comparatively light docket for the Court. As of April 30th, the Supreme Court had only decided 4 of these criminal cases, with 10 still pending. It is certainly possible that some of those will not have been decided even by the beginning of the seminar. For those cases that are still pending, I have set out the question presented for the Supreme Court, a very brief statement of the case and a reference to the latest opinion of the state or federal court below. B. The Criminal Cases of the 2020-2021 Term of the Supreme Court 1. The cases that have been decided by the Court have these issues: • The propriety of a life sentence without parole for a juvenile; • Whether two Courts of Appeal complied with the Antiterrorism and Effective Death Penalty Act in granting habeas relief; and, • Whether the statute of limitations for rape under the Uniform Code of Military Justice was five years or fifteen years. 2. The cases that are pending before the Court have these issues: • Whether the defendant was denied his Sixth Amendment Right to Confront the pathologist who authored an autopsy report; • Whether there were exigent circumstances that would permit an officer to enter a home after observing the commission of a misdemeanor offense; • Whether a police officer of an Indian tribe could detain and search a non-Indian; 3
• • • • • • • •
Whether pre-indictment delay was caused by the State in order to gain an advantage; Whether the defendant was denied his right to a public trial without limitation when the judge closed the court for preliminary matters; Whether Rehaif error requires a case to be reversed; Whether a Court of Appeals review of matters outside the record of trial is appropriate; Whether a defendant in a crack cocaine case is entitled to resentencing under the First Step Act; Whether a defendant who was authorized to have access to the information on a computer can be convicted of computer fraud; Whether an offense requiring a mens rea of mere recklessness can be a predicate offense under the Armed Career Criminal Act; and, Whether there is a due process requirement for a unanimous verdict in state criminal cases.
II. THE SUPREME COURT CASES OF THE 2020-2021 TERM A. Life Sentence Without Parole for a Juvenile Defendant 1. BRETT JONES, Petitioner, v. STATE OF MISSISSIPPI, ____S.Ct.____, 2021 WL 1566605 (April 22, 2021)
Respondent.
Offense of conviction: Murder under the laws of the State of Mississippi. QUESTION PRESENTED: WHETHER THE EIGHTH AMENDMENT REQUIRES THE SENTENCING AUTHORITY TO MAKE A FINDING THAT JUVENILE IS PERMANENTLY INCORRIGIBLE BEFORE IMPOSING A SENTENCE OF LIFE WITHOUT PAROLE. [Background of the Case] After affirmance, 938 So.2d 312, of defendant’s state-court conviction as juvenile homicide offender and sentence of life without parole (LWOP), affirmance, 122 So.3d 725, of denial of state postconviction relief, and vacation of defendant’s sentence and remand for resentencing, 122 So.3d 698, the Mississippi Circuit Court, Lee County, Thomas J. Gardner III, J., determined that defendant was not entitled to relief under Miller v. Alabama, which prohibited mandatory life sentences for juvenile homicide offenders. Defendant appealed. The Mississippi Court of Appeals, Wilson, J., 285 So.3d 626, affirmed, and the Mississippi Supreme Court, 2018 WL 10700848, dismissed defendant’s certiorari petition. The United States Supreme Court granted certiorari.
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The Supreme Court, Justice Kavanaugh, held that [1] a sentencer is not required to make a separate factual finding of permanent incorrigibility before imposing a discretionary sentence of life without parole on a juvenile homicide offender, abrogating Malvo v. Mathena, 893 F. 3d 265, Commonwealth v. Batts, 640 Pa. 401, 163 A. 3d 410, and Veal v. State, 298 Ga. 691, 784 S. E. 2d 403; and, [2] a sentencer is not required to provide an on-the-record sentencing explanation with an implicit finding of the offender’s permanent incorrigibility. Result: Affirmed. Justice Thomas filed an opinion concurring in the judgment. Justice Sotomayor filed a dissenting opinion, in which Justices Breyer and Kagan joined. Justice Kavanaugh’s opinion reads, in part, as follows: [An Overview of the Opinion] Under Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), an individual who commits a homicide when he or she is under 18 may be sentenced to life without parole, but only if the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment. In this case, a Mississippi trial judge acknowledged his sentencing discretion under Miller and then sentenced petitioner Brett Jones to life without parole for a murder that Jones committed when he was under 18. The Mississippi Court of Appeals affirmed, concluding that the discretionary sentencing procedure satisfied Miller. Jones argues, however, that a sentencer’s discretion to impose a sentence less than life without parole does not alone satisfy Miller. Jones contends that a sentencer who imposes a life-without-parole sentence must also make a separate factual finding that the defendant is permanently incorrigible, or at least provide an on-the-record sentencing explanation with an implicit finding that the defendant is permanently incorrigible. And Jones says that the trial judge did not make such a finding in his case. Jones’s argument that the sentencer must make a finding of permanent incorrigibility is inconsistent with the Court’s precedents. In Miller, the Court mandated ‘only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing’ a lifewithout-parole sentence. Id., at 483, 132 S.Ct. 2455. And in Montgomery v. Louisiana, which held that Miller applies retroactively on collateral review, the Court flatly stated that ‘Miller did not impose a formal factfinding requirement’ and added that ‘a finding of fact regarding a child’s incorrigibility ... is not required.’ 577 U.S. 190, 211, 136 S.Ct. 718, 193 5
L.Ed.2d 599 (2016). In light of that explicit language in the Court’s prior decisions, we must reject Jones’s argument. We affirm the judgment of the Mississippi Court of Appeals. [Jones’ Argument] According to Jones, a sentencer’s discretion to impose a sentence less than life without parole does not alone satisfy Miller. In Jones’s view, a sentencer who imposes a life-without-parole sentence must also either (i) make a separate factual finding of permanent incorrigibility, or (ii) at least provide an on-therecord sentencing explanation with an ‘implicit finding’ of permanent incorrigibility. Tr. of Oral Arg. 32; see id., at 6, 14. [The Court’s Response] As we will explain, the Court has already ruled that a separate factual finding of permanent incorrigibility is not required. In Montgomery, the Court unequivocally stated that ‘Miller did not impose a formal factfinding requirement’ and added that ‘a finding of fact regarding a child’s incorrigibility ... is not required.’ 577 U.S., at 211, 136 S.Ct. 718. In a case involving an individual who was under 18 when he or she committed a homicide, a State’s discretionary sentencing system is both constitutionally necessary and constitutionally sufficient. [Juveniles Commit Homicide] In 2004, the year that Jones murdered his grandfather, about 16,000 individuals committed a homicide in the United States. See Dept. of Justice, Federal Bureau of Investigation, Crime in the United States 2004, Murder Offenders by Age, Sex, and Race 17 (Table 2.5). About 850 of the individuals who committed a homicide were known to be under 18—meaning that, on average, more than two homicides were committed every day by individuals under 18. Ibid. *** [Miller and Montgomery] The problem for Jones is that Miller and Montgomery squarely rejected such a requirement. Miller mandated ‘only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics— before imposing’ a life-without-parole sentence. 567 U.S. at 483, 132 S.Ct. 2455. Montgomery then flatly stated that ‘Miller did not impose a formal factfinding requirement’ and that ‘a finding of fact regarding a child’s incorrigibility ... is not required.’ 577 U.S. at 211, 136 S.Ct. 718. ***
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Even if a separate factual finding of permanent incorrigibility is not required, Jones alternatively contends that a sentencer must at least provide an on-therecord sentencing explanation with an ‘implicit finding’ of permanent incorrigibility. *** We reject Jones’s alternative argument because an on-the-record sentencing explanation with an implicit finding of permanent incorrigibility (i) is not necessary to ensure that a sentencer considers a defendant’s youth, (ii) is not required by or consistent with Miller, (iii) is not required by or consistent with this Court’s analogous death penalty precedents, and (iv) is not dictated by any consistent historical or contemporary sentencing practice in the States. *** [Response to the Dissent] The Court’s decision today carefully follows both Miller and Montgomery. The dissent nonetheless claims that we are somehow implicitly overruling those decisions. We respectfully but firmly disagree: Today’s decision does not overrule Miller or Montgomery. Miller held that a State may not impose a mandatory life-without-parole sentence on a murderer under 18. Today’s decision does not disturb that holding. Montgomery later held that Miller applies retroactively on collateral review. Today’s decision likewise does not disturb that holding. *** [The Court Takes No Position on Jones’ Sentence] To be clear, our ruling on the legal issue presented here should not be construed as agreement or disagreement with the sentence imposed against Jones. *** [It Is Up to the States to Set Their Procedures] Importantly, like Miller and Montgomery, our holding today does not preclude the States from imposing additional sentencing limits in cases involving defendants under 18 convicted of murder. States may categorically prohibit life without parole for all offenders under 18. Or States may require sentencers to make extra factual findings before sentencing an offender under 18 to life without parole. Or States may direct sentencers to formally explain on the record why a life-without-parole sentence is appropriate notwithstanding the defendant’s youth. States may also establish rigorous proportionality or other substantive appellate review of life-without-parole sentences. All of those options, and others, remain available to the States. B. The AEDPA Cases [Note: Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, a federal court may grant habeas relief only when a state court’s decision 7
on the merits was ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by’ decisions from this Court, or was ‘based on an unreasonable determination of the facts.’ 28 U.S.C. § 2254(d). Woods v. Donald, 575 U.S. 312 (2015)] 1. DAVID SHINN, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS, Petitioner v. GEORGE RUSSELL KAYER, Respondent. 141 S.Ct. 517 (2020) Offense of conviction: Murder under the laws of the State of Arizona. QUESTION PRESENTED: DID THE NINTH CIRCUIT VIOLATE 28 U.S.C. 2254’S DEFERENTIAL STANDARD, AND EMPLOY A FLAWED METHODOLOGY THIS COURT HAS REPEATEDLY CONDEMNED, WHEN IT GRANTED HABEAS RELIEF BASED ON A DE NOVO FINDING THAT A SIXTH AMENDMENT VIOLATION HAD OCCURRED? [Background of the Case] Following affirmance, 194 Ariz. 423, 984 P.2d 31, of state prisoner’s murder conviction and death sentence, prisoner petitioned for federal habeas relief, alleging that appointed counsel were ineffective in failing, at outset of proceedings, to investigate mitigating circumstances for penalty phase. The United States District Court for the District of Arizona, David G. Campbell, J., 2009 WL 3352188, denied the petition, and denied, 2009 WL 3756495 and 2016 WL 3254165, prisoner’s motions for reconsideration. Prisoner appealed. The United States Court of Appeals for the Ninth Circuit, Fletcher, Circuit Judge, 923 F.3d 692, affirmed in part, reversed in part, and remanded, and denied rehearing and rehearing en banc, 944 F.3d 1147. State petitioned for writ of certiorari. The Supreme Court, per curiam, held that fair minded jurists could not disagree with state court’s determination that counsel’s allegedly deficient performance was not prejudicial. Result: Certiorari granted; judgment vacated and remanded. Justices Breyer, Sotomayor, and Kagan dissented. The per curiam opinion reads, in part, as follows: Respondent George Kayer murdered Delbert Haas in 1994. … After a jury trial before Judge William T. Kiger, Kayer was found guilty of premeditated first-degree murder and related offenses.
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After being found guilty, Kayer ‘made clear his desire to expedite the sentencing process.’ Id., at 429, 984 P.2d at 37. He refused to fully cooperate with a mitigation specialist. When Kayer’s counsel stated that the specialist needed more time to evaluate Kayer’s case, Kayer refused to agree to a continuance, and the trial court ruled him competent to make that choice. At sentencing, the judge again asked Kayer whether he would like more time for investigation, but Kayer ‘refused the offer and stated he would not cooperate with [the specialist] no matter how long sentencing was delayed.’ Id., at 429– 430, 984 P.2d at 37–38. The court proceeded to sentencing. At that time, Arizona law required a judge, not a jury, to determine whether certain aggravating circumstances had been established, and a judge was authorized to impose a sentence of death only if at least one such aggravating circumstance was shown and there was no mitigating circumstance that was sufficient to call for leniency. … Weighing the aggravating and mitigating factors, Judge Kiger sentenced Kayer to death, and the Arizona Supreme Court affirmed his conviction and sentence. *** Kayer subsequently filed a petition for postconviction relief in Arizona Superior Court. Among his many claims, Kayer argued that he received ineffective assistance of counsel because his attorneys failed to investigate mitigating circumstances at the outset of the criminal proceedings. The sentencing judge held a 9-day evidentiary hearing. *** The court denied relief after applying the familiar two-part test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The court found that trial counsel’s performance was not deficient because Kayer had refused to cooperate with his mitigation team’s efforts to gather more mitigation evidence. And, in the alternative, the court held that ‘if there had been a finding that the performance prong of the Strickland standard had been met, ... no prejudice to the defendant can be found.’ … The Arizona Supreme Court denied Kayer’s petition to review the denial of postconviction relief. *** Kayer then filed an unsuccessful habeas petition in Federal District Court. See 28 U.S.C. § 2254. Relevant here, the District Court rejected Kayer’s ineffective-assistance claim for failure to show prejudice. As an initial matter, the court concluded that Kayer could not ‘show prejudice because he waived an extension of the sentencing date and thereby waived presentation of the full-scale mitigation case.’ *** A divided Ninth Circuit panel reversed. On the question of trial counsel’s performance, the panel rejected the state court’s judgment because, in the judgment of the panel, Kayer’s attorneys should have begun to pursue 9
mitigation evidence promptly after their appointment. And on the question of prejudice, the court conducted its own review of the evidence and found that trial counsel’s alleged failings likely affected Kayer’s sentence. Based on a ‘comparison of Kayer’s case with other Arizona cases,’ the panel drew two conclusions: first, that ‘the evidence he presented to the [state postconviction] court was sufficient to establish a statutory mitigating circumstance’ of mental impairment, 923 F.3d at 718, and second, that there was a reasonable probability that the Arizona Supreme Court would have vacated Kayer’s death sentence on direct review had it been presented with the mitigating evidence offered at the state postconviction relief hearing. *** Arizona then sought, and the Ninth Circuit denied, rehearing en banc. *** When an ineffective-assistance-of-counsel claim is presented in a federal habeas petition, a state prisoner faces additional burdens. Among other things, no relief may be granted ‘with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim,’ as relevant here, ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’ 28 U.S.C. § 2254(d). Here, the state court applied ‘the correct governing legal principle ... to the facts of the prisoner’s case,’… *** We have recognized the special importance of the AEDPA framework in cases involving Strickland claims. Ineffective -assistance claims can function ‘as a way to escape rules of waiver and forfeiture,’ Richter, 562 U.S. at 105, 131 S.Ct. 770, and they can drag federal courts into resolving questions of state law. *** The Ninth Circuit resolved this case in a manner fundamentally inconsistent with AEDPA. Most striking, the panel ‘essentially evaluated the merits de novo, only tacking on a perfunctory statement at the end of its analysis asserting that the state court’s decision was unreasonable.’ … In other words, it appears ‘to have treated the unreasonableness question as a test of its confidence in the result it would reach under de novo review.’ *** Applying the proper standard of review, we vacate the Court of Appeals’ judgment. *** Under AEDPA, state courts play the leading role in assessing challenges to state sentences based on federal law. A state court heard Kayer’s evidence and concluded that he failed to show prejudice. The court below exceeded its 10
authority in rejecting that determination, which was not so obviously wrong as to be ‘beyond any possibility for fairminded disagreement.’ Id., at 103, 131 S.Ct. 770. Under § 2254(d), that is ‘ “the only question that matters.” ’ Id., at 102, 131 S.Ct. 770. We grant the petition for a writ of certiorari, vacate the judgment of the United States Court of Appeals for the Ninth Circuit, and remand the case to that court for further proceedings consistent with this opinion. 2. TONY MAYS, WARDEN, Petitioner v. ANTHONY DARRELL DUGARD HINES, Respondent, 141 S.Ct. 1145 (2021) QUESTION PRESENTED: WHETHER THE SIXTH CIRCUIT’S DECISION CONFLICTS WITH THE COURT’S PRECEDENTS GOVERNING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996. Offense of conviction: Murder under the laws of the State of Tennessee. [Background of the Case] Following affirmance of petitioner’s Tennessee conviction for first-degree murder, 758 S.W.2d 515, affirmance of his death sentence after remand for resentencing, 919 S.W.2d 573, and the denial of postconviction relief, 2004 WL 1567120, petitioner filed federal habeas petition. The United States District Court for the Middle District of Tennessee, William Joseph Haynes, J., 2015 WL 1208684, granted respondent’s motion for summary judgment and granted certificate of appealability (COA). Petitioner appealed. The United States Court of Appeals for the Sixth Circuit remanded for individualized determination as to whether COA was warranted. On remand, the District Court, Haynes, J., 2015 WL 5715453, narrowed scope of claims certified for appeal. Petitioner appealed, and certification was expanded. The Court of Appeals, 814 Fed.Appx. 898, reversed. The Supreme Court, per curiam, held that postconviction court’s determination, that trial counsel was not ineffective in not trying harder to blame another man for fatal stabbing of motel employee, was not unreasonable view of the facts or law. Result: Certiorari granted; reversed. Justice Sotomayor dissented without filing an opinion. [An Overview of the Opinion]
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A Tennessee jury found Anthony Hines guilty of murdering Katherine Jenkins at a motel. Witnesses saw Hines fleeing in the victim’s car and wearing a bloody shirt, and his family members heard him admit to stabbing someone at the motel. But almost 35 years later, the Sixth Circuit held that Hines was entitled to a new trial and sentence because his attorney should have tried harder to blame another man. In reaching its conclusion, the Sixth Circuit disregarded the overwhelming evidence of guilt that supported the contrary conclusion of a Tennessee court. This approach plainly violated Congress’ prohibition on disturbing state-court judgments on federal habeas review absent an error that lies ‘“beyond any possibility for fairminded disagreement.” ’ *** [The Sixth Circuit Did Not Consider the Entire Record] Had the Sixth Circuit properly considered the entire record, it would have had little trouble deferring to the Tennessee court’s conclusion that Hines suffered no prejudice regarding his conviction or sentence. Again, the critical question was not whether the Sixth Circuit itself could see a ‘ “substantial” ’ ... likelihood of a different result” had Hines’ attorney taken a different approach. Cullen, 563 U.S., at 189, 131 S.Ct. 1388. All that mattered was whether the Tennessee court, notwithstanding its substantial ‘latitude to reasonably determine that a defendant has not [shown prejudice],’ still managed to blunder so badly that every fairminded jurist would disagree. Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009). *** [The Sixth Circuit Had No Reason to Grant Relief] The Sixth Circuit had no reason to revisit the decision of the Tennessee court, much less ignore the ample evidence supporting that court’s conclusion. We grant the petition for a writ of certiorari and respondent’s motion to proceed in forma pauperis, and we reverse the judgment of the Court of Appeals. C. The Uniform Code of Military Justice’s Statute of Limitations for Rape 1. UNITED STATES v. BRIGGS; UNITED STATES v. COLLINS; UNITED STATES v. DANIELS, 141 S.Ct. 467, 208 L.Ed.2d 318 (2020) Offense of conviction: Rape under the Uniform Code of Military Justice. QUESTION PRESENTED: WHETHER THE COURT OF APPEALS FOR THE ARMED FORCES ERRED IN CONCLUDING – CONTRARY TO ITS OWN LONGSTANDING PRECEDENT – THAT THE UNIFORM CODE OF MILITARY JUSTICE ALLOWS PROSECUTION OF A RAPE THAT OCCURRED BETWEEN 1986 AND 2006 ONLY IF IT WAS DISCOVERED AND CHARGED WITHIN FIVE YEARS. 12
[Background of the Case] In one case, accused was convicted of rape by general court-martial, … at arraignment, and … at trial. The United States Air Force Court of Criminal Appeals, Mayberry, J., 2016 WL 3682568, affirmed. Review was granted. The United States Court of Appeals for the Armed Forces affirmed. The Supreme Court, 139 S.Ct. 38, 201 L.Ed.2d 1112, granted certiorari, vacated the judgment, and remanded. On remand, the United States Court of Appeals for the Armed Forces, Maggs, J., 78 M.J. 289, reversed. In a second case, accused was found guilty by general court-martial, Tiffany M. Wagner, J., of rape, and he appealed. The United States Air Force Court of Criminal Appeals, Johnson, Senior Judge, 78 M.J. 530, set aside the findings of guilt and the sentence. Review was granted. The United States Court of Appeals for the Armed Forces, 2019 WL 1581470, affirmed. In the third case, accused was convicted by general court-martial of negligent dereliction of duty, rape, and conduct unbecoming an officer and gentleman, and he appealed. The United States Air Force Court of Criminal Appeals, Huygen, Senior Judge, 2019 WL 2560041, set aside the findings of guilt for rape and negligent dereliction of duty. Review was granted. The United States Court of Appeals for the Armed Forces, 2019 WL 3562148, affirmed. Certiorari was granted, and the cases were consolidated. The Supreme Court, Justice Alito, held that phrase ‘punishable by death,’ in Uniform Code of Military Justice (UCMJ) provision stating that an offense ‘punishable by death’ could be tried and punished at any time without limitation, is a term of art that is defined by the provisions of the UCMJ specifying the punishments for the offenses it outlaws, abrogating U.S. v. Mangahas, 77 M.J. 220. Justice Gorsuch filed a concurring opinion. Justice Barrett took no part in the consideration or decision of the cases. Result: Reversed and remanded *** Justice Alito’s opinion reads, in part, as follows: [The Issue Before the Court] We must decide in these cases whether, under the Uniform Code of Military Justice (UCMJ), a prosecution for a rape committed during the period from 1986 to 2006 had to be commenced within five years of the commission of the charged offense or whether such a prosecution could be brought at any time, as is the rule at present. The Court of Appeals for the Armed Forces (CAAF), reversing its prior decisions on this question, held that the statute of limitations was five years and that it therefore barred the rape convictions of
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respondents, three military service members. See 78 M.J. 289 (2019); 78 M.J. 415 (2019); 79 M.J. 199 (2019). We granted certiorari, … and now reverse. *** [What Does “Punishable by Death” Mean?] During the period at issue, Article 120(a) of the UCMJ provided that rape could be ‘punished by death,’ 10 U.S. C. § 920(a) (1982 ed.); § 920(a) (1994 ed.), and Article 43(a), which was amended in 1986, provided that an offense ‘punishable by death’ could be tried and punished ‘at any time without limitation,’ National Defense Authorization Act for Fiscal Year 1987, 100 Stat. 3908; see 10 U.S. C. § 843(a) (1988 ed.). The crux of the question before us is the meaning of the phrase ‘punishable by death’ in the latter provision. Respondents contend—and the CAAF held—that the phrase means capable of punishment by death when all applicable law is taken into account. See United States v. Mangahas, 77 M.J. 220, 224 (2018). Because this Court held in Coker v. Georgia, … that the Eighth Amendment forbids a death sentence for the rape of an adult woman, respondents argue that they could not, in fact, have been sentenced to death, and therefore the statute of limitations for their crimes (committed in 1998, 2000, and 2005) was the 5-year statute that generally governed non-capital offenses. See 10 U.S. C. § 843(b)(1) (1994 ed.); § 843(b)(1) (2000 ed.). … the Government argues that Article 43(a)’s reference to ‘punishable by death’ means capable of punishment by death under the penalty provisions of the UCMJ, and since Article 120(a) provided (despite Coker) that rape could be punished by death, it follows that there was no time limit for filing rape charges against respondents. *** [The Supreme Court Agrees With the Government’s Interpretation] On balance, we find the Government’s interpretation more persuasive. The meaning of a statement often turns on the context in which it is made, and that is no less true of statutory language. … And in these cases, context is determinative. The phrase ‘punishable by death’ appears in a statute of limitations provision for prosecutions under the UCMJ, and for at least three reasons, that context weighs heavily in favor of the Government’s interpretation. *** [Statutes of Limitations] First, a natural referent for a statute of limitations provision within the UCMJ is other law in the UCMJ itself. The UCMJ is, after all, a ‘uniform code,’ one that reformed and modernized the old system of military justice ‘from top to bottom.’ … No one would read Article 43’s references to ‘offense[s]’ to include those under state law, for example. Rather, the UCMJ establishes the jurisdiction of general courts-martial ‘to try persons subject to this chapter for 14
any offense made punishable by this chapter.’ 10 U.S. C. § 818 (1982 ed.). Courts-martial may then ‘adjudge any punishment not forbidden by this chapter, including the penalty of death when specifically authorized by this chapter.’ Ibid. ‘[T]his chapter’ is the UCMJ, § 801 et seq., and during the relevant time period, provisions within that chapter like Article 120 specifically authorized the death penalty for certain serious offenses,… *** Second, one principal benefit of statutes of limitations is that typically they provide clarity, … *** If ‘punishable by death’ in Article 43(a) means punish-able by death under the penalty provisions of the UCMJ, the rule regarding the latest possible date for commencing a rape prosecution is clear: The prosecution may be brought “at any time without limitation.” By contrast, if “punishable by death” meant punishable by death after all applicable law is taken into account, the deadline for filing rape charges would be unclear. *** Third, the factors that lawmakers are likely to take into account when fixing the statute of limitations for a crime differ significantly from the considerations that underlie our Eighth Amendment decisions. *** [The Statute of Limitations in the UCMJ is Not Tied To the Eighth Amendment] Accordingly, since the ends served by statutes of limitations differ sharply from those served by provisions like the Eighth Amendment or Article 55 of the UCMJ, it is unlikely that lawmakers would want to tie a statute of limitations to judicial interpretations of such provisions. *** [The Respondents’ Prosecutions Were Timely Under The Statute of Limitations Provisions of the UCMJ] Viewing Article 43(a) in context, we are convinced that ‘punishable by death’ is a term of art that is defined by the provisions of the UCMJ specifying the punishments for the offenses it outlaws. And under this interpretation, respondents’ prosecutions were timely. The judgments of the CAAF are reversed, and the cases are remanded for further proceedings consistent with this opinion.
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III. CASES PENDING A DECISION OF THE SUPREME COURT AS OF APRIL 30, 2021 A. The Sixth Amendment Right of Confrontation 1. CHRISTOPHER TAYLOR, Petitioner v. PEOPLE OF THE STATE OF ILLINOIS, Respondent Petition for Writ of Certiorari to the Appellate Court of Illinois Offense of conviction: Murder under the laws of the State of Illinois. QUESTION PRESENTED: WHETHER A DEFENDANT IS DENIED HIS SIXTH AMENDMENT RIGHT TO BE CONFRONTED WITH THE WITNESSES AGAINST HIM WHERE A COURT ADMITS INTO EVIDENCE A CERTIFIED AUTOPSY REPORT, WITHOUT REQUIRING THE STATE TO PRESENT THE TESTIMONY OF THE AUTHOR, AND THE STATE THEN RELIES ON THE AUTHOR’S OBSERVATIONS, NOT JUST TO SHOW CAUSE OF DEATH, BUT AS THE SOLE EVIDENCE SUPPORTING ITS ARGUMENT THAT THE DEFENDANT FIRED TWO SHOTS, WHERE THE DEFENDANT CONSISTENTLY DENIES FIRING TWO SHOTS, WHERE HIS DENIAL IS SUPPORTED BY EACH EYEWITNESS AND THE PHYSICAL EVIDENCE, AND WHERE THE STATE’S TWO-SHOT THEORY IS CRUCIAL TO ITS ARGUMENT THAT THE DEFENDANT COMMITTED KNOWING MURDER AND NOT A LESSER OFFENSE. Brief Statement of the Facts Taylor was charged with the offense of murder. The medical examiner who performed the autopsy was not called by the State; rather, another pathologist who had reviewed his report testified. Whether one shot was fired or two was of importance in the case. The medical examiner’s report stated that there were two shots fired. Taylor voiced a confrontation objection that was denied. The appellate court of Illinois held that the autopsy report was non-testimonial and was properly admitted into evidence. In addition, there was no error in permitting another pathologist to testify to the autopsy report authored by the medical examiner. Result: Affirmed. The Appellate Court of Illinois’ opinion is at (2019 IL App (1st) 150628-U. B. Exigent Circumstances for an Entry Into a Home 1. ARTHUR GREGORY LANGE, Petitioner v. STATE OF CALIFORNIA, Respondent. Petition for a Writ of Certiorari to the Court of Appeals of the State of California, First Appellate Division. Offense of conviction: Driving While Intoxicated with Prior Conviction under the laws of the State of California. 16
QUESTION PRESENTED: DOES PURSUIT OF A PERSON WHO A POLICE OFFICER HAS PROBABLE CAUSE TO BELIEVE HAS COMMITTED A MISDEMEANOR CATEGORICALLY QUALIFY AS AN EXIGENT CIRCUMSTANCE SUFFICIENT TO ALLOW THE OFFICER TO ENTER A HOME WITHOUT A WARRANT? Brief Statement of the Facts Lange was driving his vehicle and “playing music very loudly, honking his horn when there were no other vehicles in the area and driving erratically.” A law enforcement officer attempted to stop Lange by activating his overhead lights, but Lange continued driving into his garage and started to close the garage door. The officer stuck his foot in front of the sensor and this kept the door from closing. The officer went into the garage, had a recorded conversation with Lange and arrested him for driving while intoxicated, with a prior offense. Lange filed a motion to suppress which the trial court denied. The Court of Appeals of the State of California’s First Appellate Division held that because the officer was in hot pursuit of Lange, whom he had probable cause to arrest for a misdemeanor violation, the officer’s warrantless entry into Lange’s driveway and garage was lawful. Result: Affirmed. The Court of Appeals of the State of California’s First Appellate Division’s opinion is found at No. A157169, 2019 WL 5654385 (Cal.Ct.App. Oct. 30, 2019) C. The Authority of a Police Officer of an Indian Tribe to Detain and Search a Non-Indian 1. UNITED STATES OF AMERICA, Petitioner v. JOSHUA JAMES COOLEY, Respondent. Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit. Offenses of conviction: 21 U.S.C. §841(a)(1) – Possession with intent to distribute methamphetamine and 18 U.S.C. § 924(c)(1)(A) – Possession of a firearm in furtherance of a drug trafficking crime. QUESTION PRESENTED: WHETHER THE LOWER COURTS ERRED IN SUPPRESSING EVIDENCE ON THE THEORY THAT A POLICE OFFICER OF AN INDIAN TRIBE LACKED AUTHORITY TO TEMPORARILY DETAIN AND SEARCH RESPONDENT, A NONINDIAN, ON A PUBLIC RIGHT-OF-WAY WITHIN A RESERVATION BASED ON A POTENTIAL VIOLATION OF STATE OR FEDERAL LAW. Brief Statement of the Facts 17
At about 1:00 a.m., Cooley and his young child were parked on the shoulder of United States Route 212 within the Crow Indian Reservation in southern Montana. Highway Safety Officer Saylor of the Crow Police Department came up to the truck and knocked on the side of the truck. The rear driver’s side window briefly lowered and then went up again. Saylor shined his flashlight in the front window. Saylor asked Cooley to lower his window. When he did, Saylor could see that Cooley had, “watery bloodshot eyes,” and “seemed to be non-native.” Saylor continued his contact with Cooley, asking him questions and eventually finding a pistol, two rifles, a glass pipe and methamphetamine. In the district court, Cooley moved to suppress the evidence arguing that Saylor was acting outside the scope of his jurisdiction as a Crow Tribe law enforcement officer when he seized Cooley in violation of the Indian Civil Rights Act of 1968. The court granted the motion because Saylor had identified Cooley as a non-Indian when Cooley initially rolled his window down. A tribal officer cannot detain a nonIndian on a state or federal right-of-way unless it is apparent at the time of the detention that the non-Indian has been violating state or federal law. On appeal, the United States Court of Appeals for the Ninth Circuit concluded that Saylor acted outside his authority as a tribal officer and, further, affirmed the district court’s grant of the motion to suppress evidence. Result: Affirmed. The Ninth Circuit’s opinion is found at 919 F.3d 1135 (9th Cir. 2019). D. Pre-Indictment Delay Alleged to Have Been Caused by the State in Order to Gain an Advantage 1. LLOYD HARRIS, Petitioner v. STATE OF MARYLAND, Respondent. Petition for Writ of Certiorari to the Court of Special Appeals of Maryland. Offense of conviction: Murder under the laws of the State of Maryland. QUESTION PRESENTED: WHERE PREINDICTMENT DELAY HAS CAUSED ACTUAL PREJUDICE TO THE ACCUSED’S ABILITY TO DEFEND HIMSELF, DOES THE DUE PROCESS CLAUSE REQUIRE THE DEFENDANT TO PROVE THAT THE DELAY WAS DRIVEN BY AN IMPROPER PROSECUTORIAL MOTIVE; OR, THAT COURTS BALANCE THE PARTICULAR PREJUDICE TO THE DEFENDANT AGAINST THE PARTICULAR REASONS (OR LACK THEREOF) FOR THE DELAY? Brief Statement of the Facts On October 2, 1996, a fifteen-year-old girl was reported missing by her mother. Over two months later, her body was discovered in a wooded area of Frederick, 18
Maryland. Harris resided at a “campsite” near this wooded area and, during the course of the investigation became the primary suspect. The investigation appeared to be concluded in 2000. Sixteen years later, a Maryland grand jury indicted Harris for first degree murder, first degree rape and a third-degree sex offense. After being convicted at a jury trial, the judge sentenced Harris to life imprisonment for the murder and rape and the sex offense conviction. Prior to trial, Harris filed a motion to dismiss complaining of pre-indictment delay. He argued that two witnesses, who could have given favorable testimony, were deceased and two others were unavailable. Further, that some recordings of police interviews of Harris and the victim’s brother were lost or destroyed. He also argued that scientific evidence in the case had been destroyed. The trial judge recognized that the State would be faced with similar issues. The trial judge noted that Maryland does not have a statute prescribing the time in which a prosecution for felony must be commenced and that what was before the court was the result of an ongoing investigation. On appeal, Harris did not argue that the State purposely delayed his indictment to gain a tactical advantage over him; rather, he contends that the abundance of prejudice resulting from the delay was sufficient to require dismissal. The Court of Special Appeals of Maryland held that the trial judge did not err in denying Harris’ motion to dismiss on the basis of a pre-indictment delay. Result: Affirmed. The Court of Special Appeals of Maryland’s opinion is found at 242 Md.App. 655 (2019). E. Right to a Public Trial Without Limitation 1. BYRON DAVID SMITH, Petitioner v. JEFF TITUS, WARDEN, MINNESOTA CORRECTIONAL FACILITY, OAK PARK HEIGHTS, Respondent. Petition for Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit. Offense of conviction: Murder under the laws of the State of Minnesota. QUESTION PRESENTED: WHETHER THE SIXTH AMENDMENT’S PUBLIC TRIAL GUARANTEE, WITHIN THE REVIEW APPARATUS IMPOSED BY THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996 (AEDPA) APPLIES (1) TO ALL PHASES OF A DEFENDANT’S CRIMINAL TRIAL; OR, (2) ONLY TO PRETRIAL SUPPRESSION HEARING AND JUROR VOIR DIRE. Brief Statement of the Facts In 2012, Smith shot and killed two people, Nicholas Brady and Haile Kiefer, who had broken into his home in Little Falls, Minnesota. At trial, Smith argued that he used reasonable force in defense of himself and his home. He attempted to present evidence that Brady participated in a series of burglaries of his home weeks before 19
the shooting. Although there was no evidence that Smith knew or suspected Brady before the date of the shooting, Smith wanted to call witnesses to testify about Brady’s involvement in the shootings. After holding two hearings open to the public, the trial court filed a public order ruling that evidence to the prior burglaries was relevant, but that Brady’s involvement in those burglaries was not. At the second hearing, Smith argued that the court should allow him to call three witnesses to testify about Brady’s involvement in the burglaries: Brady’s mother and two of his alleged co-participants. Defense counsel identified the potential witnesses by name at the hearing, and their full names appeared in the public record of the proceedings. When Smith’s case was called for trial, the court cleared all spectators from the courtroom over the objection of Smith’s counsel. The court overruled the objection and restated his earlier ruling. He then explained that he did not want the media present when he announced his ruling because, otherwise, it would be printed and getting to the jury. After the exchange, the trial court filed a public order reiterating that evidence of prior bad acts by Brady or Kiefer of which Smith was unaware of at the time of the shooting would be inadmissible. The jury found Smith guilty of two counts of murder and the court sentenced him to two terms of life imprisonment. Smith appealed to the Minnesota Supreme Court on several grounds, including that the trial court denied his Sixth Amendment right to a public trial. The Minnesota court affirmed Smith’s conviction, finding that “the trial court’s non-public proceeding was administrative in nature and did not constitute a closure implicating Smith’s Sixth Amendment right to a public trial.” Smith then sought habeas relief under 28 U.S.C. § 2254. Noting that it is an open question whether a defendant’s right to a public trial encompasses the sort of non-public proceeding issue here, the United States Court of Appeals for the Eighth Circuit held that it was not objectionably unreasonable for the Minnesota Supreme Court to deem it constitutional under the Sixth Amendment for the trial court to explain the parameters of an earlier public order on evidentiary issues in a brief nonpublic proceeding before the jury was sworn. Result: Affirmed. The Eighth Circuit’s opinion is found at 958 F.3d 687 (2020). F. Rehaif Error 1. UNITED STATES OF AMERICA, Petitioner v. MICHAEL ANDREW GARY, Respondent. Petition for Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit. Offense of conviction: 18 U.S.C. §§ 922(g)(1) and 924(a) – Felon in possession of a firearm. QUESTION PRESENTED: WHETHER A DEFENDANT WHO PLEADED GUILTY TO POSSESSION OF A FIREARM AS A FELON, IN 20
VIOLATION OF 18 U.S.C. 922(G)(1) AND 924(A), IS AUTOMATICALLY ENTITLED TO PLAIN-ERROR RELIEF IF THE DISTRICT COURT DID NOT ADVISE HIM THAT ONE ELEMENT OF THAT OFFENSE IS KNOWLEDGE OF HIS STATUS AS A FELON, REGARDLESS OF WHETHER HE CAN SHOW THAT THE DISTRICT COURT’S ERROR AFFECTED THE OUTCOME OF THE PROCEEDINGS. Brief Statement of the Facts Gary pled guilty to violations of 18 U.S.C. § 922(g)(1) [Felon in possession of a firearm or ammunition.] During his Rule 11 plea colloquy, the district judge did not inform Gary that an additional element of the offense was that “he knew he had the relevant status when he possessed the firearm.” Gary argued that such an admonition was required by the Supreme Court’s opinion in Rehaif, 139 S.Ct. 2191 (2019). The United States Court of Appeals for the Fourth Circuit held that a standalone Rehaif error satisfies plain error review because such an error is structural, which per se affects a defendant’s substantial rights; and, that the error seriously affected the fairness, integrity and public reputation of the judicial proceedings and therefore must exercise their discretion to correct the error. Result: Remanded to the district court for further proceedings. The Fourth Circuit’s opinion is found at 954 F.3d 194 (2020) G. A Court of Appeals’ Review of Matters Outside the Record of Trial 1. GREGORY GREER, Petitioner v. UNITED STATES OF AMERICA, Respondent. Petition for Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit. Offense of conviction: 18 U.S.C. § 922(g)(1) – Felon in possession of a firearm. QUESTION PRESENTED: WHETHER WHEN APPLYING PLAINERROR REVIEW BASED UPON AN INTERVENING UNITED STATES SUPREME COURT DECISION, A CIRCUIT COURT OF APPEALS MAY REVIEW MATTERS OUTSIDE THE TRIAL RECORD TO DETERMINE WHETHER THE ERROR AFFECTED A DEFENDANT’S SUBSTANTIAL RIGHTS OR IMPACTED THE FAIRNESS, INTEGRITY, OR PUBLIC REPUTATION OF THE TRIAL? Brief Statement of the Facts After a jury trial, Greer had been convicted of a violation of 18 U.S.C. § 922(g)(1) [Felon in possession of a firearm]. After the United States Court of Appeals for the Eleventh Circuit affirmed his conviction, the Supreme Court decided Rehaif and granted Greer’s Petition for Writ of Certiorari, vacated the Sixth Circuit’s judgment and remanded the case for reconsideration in light of Rehaif. 21
At trial, Greer stipulated that when he allegedly possessed the firearm, he already had been “convicted in a court of a crime punishable by imprisonment of a term of more than one year, that is, a felony offense” and he had “not received a pardon, [had] not applied for clemency and [had] not been authorized to own, possess, or use firearms.” During the trial, the district court read the stipulation to the jury. At sentencing, Greer’s presentence investigation report described his five prior felony convictions. The United States Court of Appeals for the Eleventh Circuit held that the record establishes that Greer knew of his status as a felon, he cannot prove that he was prejudiced by the errors or that they affected the fairness, integrity or public reputation of his trial. Result: Affirmed. The Eleventh Circuit’s opinion is found at 798 F.Appx. 483 (11th Cir. 2020) H. Re-Sentencing in a Crack Cocaine Case Under the First Step Act 1. UNITED STATES, Petitioner-Appellant v. TARAHRICK TERRY, DefendantAppellee. Petition for Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit. Offense of conviction: 18 U.S.C. § 841(b)(1)(C) – Possession of crack cocaine. QUESTION PRESENTED: WHETHER PRE-AUGUST 3, 2010 CRACK OFFENDERS SENTENCED UNDER 21 U.S.C. § 841(b)(1)(C) HAVE A “COVERED OFFENSE” UNDER SECTION 404 OF THE FIRST STEP ACT. Brief Statement of the Facts Terry pled guilty to possession of 3.9 grams of crack cocaine. Although the punishment under 18 U.S.C. § 841(b)(1)(C) provided a statutory range of 0-20 years, because he had a previous drug conviction, the high end of the range was increased to 30 years. As a career offender, he was enhanced to an Advisory Guideline range of 188-235 months and sentenced to the low end of that range. In 2019, Terry filed a motion for reduced sentence, pursuant to Section 404 of the First Step Act asserting that he had a “covered offense” and was eligible for relief. The district court denied relief and the United States Court of Appeals for the Eleventh Circuit affirmed. The Eleventh Circuit’s opinion is found at 828 Fed.Appx. 563 (11th Cir. 2020).
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I. Computer Fraud by One Authorized to Have Access to the Information on the Computer 1. NATHAN VAN BUREN, Petitioner v. UNITED STATES OF AMERICA, Respondent. Petition for Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit. Offense of conviction: 18 U.S.C. § 1030(a)(2)(C) – Intentionally accessing computer without authorization or exceeding authorized access. QUESTION PRESENTED: WHETHER A PERSON WHO HIS AUTHORIZED TO ACCESS INFORMATION ON A COMPUTER FOR CERTAIN PURPOSES VIOLATES SECTION 1030(A)(2) OF THE COMPUTER FRAUD AND ABUSE ACT IF HE ACCESSES THE SAME INFORMATION FOR AN IMPROPER PURPOSE. Brief Statement of the Facts Van Buren was a sergeant with the Cummings, Georgia, police department. In his capacity as a police officer, he came to know Andrew Albo, a recent widower who allegedly fancied younger women – including minors and prostitutes. Van Buren arrested him for providing alcohol to a minor and then began to handle disputes between Albo and various women. Albo would pay them to spend time with him then accuse them of stealing the money he gave to them. Van Buren asked Albo for a loan, falsely claiming that he needed the money to settle his son’s medical bills. Albo recorded their conversations and complained to a sheriff’s deputy that Van Buren was “shaking him down for his money.” Eventually, the FBI became involved. In a sting operation, Albo told Van Buren that he met a woman that he liked at a strip club, but he needed to know if she was an undercover officer before he would pursue her further. He gave Van Buren a fake license plate number created by the FBI and asked him to run a check on it. Van Buren searched for the license plate number in the Georgia Crime Information Center database, an official database maintained by the Georgia Bureau of Investigation and connected to the National Crime Information Center maintained by the FBI. Van Buren texted Albo to tell him he had the information for him. The next day, the FBI and the Georgia Bureau of Investigation agents showed up at Van Buren’s doorstep and conducted an interview with him. Van Buren confessed. After being convicted, Van Buren argued on appeal that he was innocent because “he only accessed databases that he was authorized to use,” even though it was for inappropriate reasons. Result: Affirmed. The Eleventh Circuit’s opinion is found at 930 F.3d 1192 (11th Cir. 2019). 23
J. Offenses Requiring a Mens Rea of Mere Recklessness as Predicate Offenses Under The Armed Career Criminal Act 1. CHARLES BORDEN, JR., Petitioner, v. UNITED STATES OF AMERICA, Respondent. Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit. Offense of conviction: 18 U.S.C. § 922(g)(1) – Felon in possession of a firearm. QUESTIONS PRESENTED: DOES THE “USE OF FORCE” CLAUSE IN THE ARMED CAREER CRIMINAL ACT (THE “ACCA”), 18 U.S.C. § 924(E)(2)(B)(I) ENCOMPASS CRIMES WITH A MENS REA OF MERE RECKLESSNESS? DID THE DISTRICT COURT VIOLATE MR. BORDEN’S DUE PROCESS RIGHTS WHEN IT APPLIED TO HIS SENTENCING A NEWER, MORE PUNITIVE INTERPRETATION OF LAW THAN THAT WHICH WAS IN FORCE AT THE TIME OF HIS FEDERAL OFFENSE, SUCH THAT HIS GUIDELINES WERE ENHANCED FROM 77 TO 96 MONTHS TO A MANDATORY MINIMUM SENTENCE OF 15 YEARS TO LIFE IN PRISON? Brief Statement of the Facts Borden pleaded guilty to possessing a firearm as a felon and was sentenced as an armed career criminal to 115 months’ imprisonment. At sentencing, the government relied on three prior Tennessee aggravated assault convictions as predicate offenses. Borden argued that one of his prior aggravated assault convictions did not qualify as a predicate “crime of violence” (see USSG § 4B1.2(a)) because it involved reckless conduct. In the United States Court of Appeals for the Sixth Circuit’s opinion in United States v. Verwiebe, 874 F.3d 258 (6th Cir. 2017), Borden argued that applying Verwiebe to his case would violate ex post facto and due process principles because Verwiebe was decided six months after his arrest in this case. Since Verwiebe, Sixth Circuit cases have consistently held that Tennessee’s reckless aggravated assault qualifies as a crime of violence. The Court held that reckless aggravated assault is a crime of violence and, further, that Borden was not denied due process of law. Result: Affirmed. The Sixth Circuit’s opinion is found at 769 Fed.Appx.266 (6th Cir. 2019). K. The Requirement of a Unanimous Jury Verdict in Criminal Cases 1. THEDRICK EDWARDS, Petitioner v. DARREL VANNOY WARDEN, LOUISIANA STATE PENITENTIARY, Respondent. Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit. Offense of conviction: Armed Robbery, Attempted Armed Robbery, Aggravated Kidnapping, and Aggravated Rape under the laws of the State of Louisiana 24
QUESTION PRESENTED: WHETHER LOUISIANA’S NONUNANIMOUS JURY REQUIREMENT FOR CRIMES REQUIRING LIFE SENTENCES VIOLATES THE SIXTH AMENDMENT AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION? Brief Statement of the Facts Edwards was convicted of five counts of armed robbery, one count of attempted armed robbery, two counts of aggravated kidnapping and one count of aggravated rape. He was sentenced to 30 years on each armed robbery count and life imprisonment on the aggravated kidnapping and aggravated rape counts. Edwards was unsuccessful in seeking appellate relief and habeas relief from the Louisiana courts. Under the Louisiana law, criminal convictions in non-capital cases are appropriate. As to each charged offense, Edwards had at least one person voting for an acquittal. He would not have been convicted in a federal court or in the courts of 48 other states except on the unanimous verdict of each juror. Edwards was unsuccessful seeking relief in the United States District Court for the Middle District of Louisiana. The United States Court of Appeals for the Fifth Circuit denied a certificate of appealability. The Fifth Circuit’s opinion is not reported in the Federal Reporter. 2019 WL 8643258 [Note: Edwards did not raise this issue in his habeas filing.] IV. INTRODUCTION TO PART II OF THE PAPER: SOME OF THE OPINIONS OF THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT SINCE JUNE 30, 2020 A. Limitations on the Topic In order for the attendees to get as broad a coverage of our topics as possible, Melissa and Stanley encouraged each author/speaker to stay on his or her topic and not step on the topics of other speakers. For this reason, I have stayed away from “Guns, Drugs, and Aliens” which will be covered by Jose Gonzalez-Falla (a topic that he has spoken on for some 23 years) and “Search and Seizure” which will be covered by David Guinn (a topic that is a favorite of his). These cases made up over 64 percent of the Fifth Circuit’s criminal docket. B. The Cornucopia of Criminal Cases The cases that I have included in this paper range from important topics to scary topics to old topics re-visited and to some new topics. I found each case to be interesting and instructive. I may have unintentionally left out a case that you participated in or that happens to be a favorite of yours. Unintentional, but mea culpa. So, on to the cases.
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V. THE RESTITUTION CASES [Note: In my opinion, except for this year’s search cases, these are the most important cases decided by the Fifth Circuit. Why? Because restitution may be a component of sentencing in every single case. Each United States Attorney’s Office has a Financial Litigation Unit. Discussing these issues with a FLU attorney – and with your client – early on will prevent bad surprises at a later date.] A. Individual Retirement Accounts Are Subject to Garnishment 1. United States v. Clark, ___F.3d___, 2021 WL 822647 (5th Cir. 2021) [Panel: Circuit Judges Higginbotham, Costa, and Oldham. (Opinion by Costa)] As matters of first impression, the Court of Appeals, Costa, Circuit Judge, held that: (1) ‘other income,’ with meaning of MVRA’s garnishment exemption for salary, wages, or other income necessary to comply with child-support orders, means money akin to salary or wages, and (2) defendant’s retirement accounts, i.e., a revocable living trust and an Individual Retirement Account (IRA), were not ‘other income.’ Offense of conviction: 18 U.S.C. § 1347 – Health care fraud. Result: Affirmed. [Excerpts from the Opinion] Government, in order to satisfy defendant’s restitution obligation under Mandatory Victims Restitution Act (MVRA), sought to garnish retirement accounts that defendant maintained with brokerage firms and life insurance companies. The United States District Court for the Northern District of Texas, Sidney A. Fitzwater, Senior District Judge, issued writs of garnishment. Defendant appealed. *** The MVRA generally permits the government to garnish assets held in a retirement account, including an IRA, to satisfy a restitution order. See United States v. Berry, 951 F.3d 632, 636 (5th Cir. 2020). But we have not decided whether retirement account assets otherwise subject to garnishment may qualify as ‘salary, wages, or other income’ exempt from seizure under section 6334(a)(8) when needed for child support. … Clark, who was incarcerated and had no source of income when he challenged the garnishment, likely needed at least some of the money in his retirement accounts to meet his child-support obligations. To determine whether retirement account assets constitute ‘other income’ beyond the government’s reach, we start with the law’s text. *** One familiar canon instructs us to view ‘other income’ more narrowly in the context of section 6334(a)(8). When confronted with a list of specific terms that ends with a catchall phrase, courts should often limit the 26
catchall phrase to ‘things of the same general kind or class specifically mentioned.’ ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 199 (2012). Section 6334(a)(8) offers a textbook example of this ejusdem generis principle, indicating that we should read ‘salary, wages, and other income’ as ‘salary, wages, and other [similar] income.’ See United States v. Koutsostamatis, 956 F.3d 301, 308 (5th Cir. 2020). The Sixth Circuit did just that, concluding that an inheritance was not protected from an IRS levy as ‘other income’ under section 6334(a)(8) because ‘an inheritance is not in the same category as salary and wages.’ Woods v. Simpson, 46 F.3d 21, 24 (6th Cir. 1995). The Woods court held that ‘other income’ must instead be limited to ‘items received by individuals for services rendered, such as bonuses, tips, commissions, and fees.’ *** We thus agree with the Sixth Circuit that the child-support exemption only applies to money akin to salary and wages—meaning amounts received directly for labor such as ‘bonuses, tips, commissions, and fees.’ Woods, 46 F.3d at 24. That does not describe Clark’s retirement accounts, so the judgment garnishing those accounts is AFFIRMED. B. A Waiver of Appeal Does Not Preclude a Defendant from Appealing a Restitution Order in Excess of the Statutory Minimum 1. United States v. Kim, ___F.3d___, 2021 WL 650180 (5th Cir. 2021) [Panel: Circuit Judges Dennis, Southwick, and Ho. (Opinion by Dennis). The Court of Appeals, Circuit Judge Dennis, held, inter alia, a defendant was not precluded from appealing a restitution order in excess of the statutory maximum, even though he had broadly waived his right to appeal; … Offenses of conviction: 17 U.S.C. § 506(a)(1)(A) and 18 U.S.C. § 2319(b)(1) – Copyright fraud. Result: Vacated and remanded. [Excerpts from the Opinion] The Mandatory Victims Restitution Act of 1996 (MVRA), 18 U.S.C. § 3663A, requires the payment of restitution to victims of certain offenses, including offenses committed by fraud or deceit, ‘in which an identifiable victim or victims has suffered a physical injury or pecuniary loss.’ *** Kim next challenges the amount of restitution awarded to Scientific Games. He argues that because the restitution amount was based on speculation as to the number of motherboards that Muraki might have purchased from Ozz, the Government failed to prove the requisite proximate cause and that therefore his restitution order exceeds the 27
statutory maximum. The Government again argues that this appeal is barred by Kim’s appeal waiver. Kim responds that he is permitted to appeal the restitution order regardless of whether he expressly reserved the right to bring such an appeal because the restitution amount exceeds the maximum authorized by statute. *** This court has held that a defendant may bring a challenge to a restitution order in excess of that which is authorized by statute where his appeal waiver expressly reserves the right to appeal a sentence in excess of the statutory maximum. See United States v. Chem. & Metal Indus., Inc. (C&MI), 677 F.3d 750, 752 (5th Cir. 2012). Kim’s plea agreement contains no such express reservation. The precise question before us, then, is whether a defendant may appeal a restitution order in excess of the statutory maximum where he has broadly waived his right to appeal and his appeal waiver contains no provision requiring his sentence to be within the statutory maximum. In accordance with our prior case law, he can. C. Restitution Is Not Appropriate for Damages Not Caused by the Specific Conduct That Was the Basis of the Offense of Conviction 1. United States v. Penn, 969 F.3d 450 (5th Cir. 2020) [Panel: Circuit Judges Stewart, Clement and Costa (Opinion by Clement)] The Court of Appeals held, inter alia, [5] district court lacked authority to order restitution as a condition of supervised release for felon-in-possession conviction. Affirmed in part and reversed in part. Offense of conviction: 18 U.S.C. § 922(g)(1) – Felon in possession of a firearm and 18 U.S.C. § 751 – Escape from federal custody. Result: Affirmed, in part; reversed, in part. [Excerpts from the Opinion] Defendant was convicted in the United States District Court for the Northern District of Texas, Sam A. Lindsay, J., 2018 WL 3207429, of escape from federal custody and possession of a firearm by a convicted felon, and was sentenced to 168 months’ imprisonment, followed by three years of supervised release, and ordered to pay restitution to two victims, the owner of a car that was struck by a bullet during shootout between defendant and rival and owner of apartment building and wrought-iron fence that defendant crashed into during police chase. Defendant appealed conviction and sentence for felon-in-possession charge. *** …Penn contends that the district court lacked authority to order restitution for damages that occurred during the shootout and police chase because those losses weren’t caused by his felon-in-possession conviction. A 28
district court can order restitution only “when authorized by statute.” United States v. Espinoza, 677 F.3d 730, 732 (5th Cir. 2012)… *** In sum, restitution imposed as a condition of supervised release can compensate only for losses caused by the specific conduct that is the basis for the offense of conviction. Hughey, 495 U.S. at 413, 110 S.Ct. 1979. For that reason, even if the district court intended to order restitution as a condition of supervised release, the court lacked authority to do so. See Espinoza, 677 F.3d at 733–34; West, 646 F.3d at 751. We thus reverse the district court’s restitution order. *** For the foregoing reasons, we reverse the district court’s restitution order and affirm Penn’s conviction and sentence in all other respects. VI. WHEN JUDGES MAKE A LAWYER’S LIFE DIFFICULT [Note: These are three scary cases. In two of them, the Fifth Circuit affirms and, in the third, remands with a “how-to-do-it-right-next-time” tutorial.] A. Imposing a Trial Penalty [Note: I first heard about trial penalties some 40 years ago. United States District Judge William Steger sat in Tyler and loved to try cases. When he came back from a Fifth Circuit conference, he told us that the circuit judges were suggesting that district judges start charging the lawyers for “using the theater.” He assured us that he would never do this. Neither the Supreme Court nor the Fifth Circuit has had this issue before.] 1. United States v. Gozes-Wagner, 977 F.3d 323 (5th Cir. 2020) [Panel: Circuit Judges Stewart, Dennis and Haynes. (Opinion by Stewart)] The Court of Appeals held, inter alia, that as a matter of apparent first impression, sentencing court did not impose trial penalty on defendant by imposing harsher sentence because she went to trial, as would violate due process;… Offense of conviction: 18 U.S.C. §§ 1347, 1956(a)(1) – Conspiracy to commit health care fraud and conspiracy to commit money laundering. Result: Affirmed. [Excerpts from the Opinion] Daniela Gozes-Wagner worked as a mid-level manager for a Russian-led conglomerate that stole millions from Medicare and Medicaid. *** The PSR calculated Gozes-Wagner’s Guidelines range as 324 to 360 months (27 to 30 years). Probation recommended a sentence of 324
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months, the low end of the Guidelines. Gozes-Wagner sought a significant downward variance. … the prosecutor…asked ‘for 240 months…’ *** The district court…sentenced her to 240 total months imprisonment: 120 months on each count of conviction, to run consecutively. The 20-year sentence amounted to a 7-year downward variance from the low end of her Guidelines range. Gozes-Wagner also was ordered to pay $15,283,985 in restitution. But it is how the court reached its sentence that is primarily at issue in this appeal. *** The Government presented its case-in-chief through the testimony of fourteen witnesses over three days. *** ‘All right. We’re here for sentencing in this case. The defendant, she was the only defendant to plead not guilty, I believe; is that correct, Counsel?’ This was the first of several instances in which the district court noted Gozes-Wagner’s decision to go to trial during the hearing. *** [THE COURT:] Now, my understanding is the other defendants pled guilty; is that correct, Counsel? *** THE COURT: They are capped the max because they pled to one count. And here there are two counts. By the way, I want the record to reflect any defendant has an absolute right to plead not guilty in federal or state court. It’s an absolute right. It’s not meant as any kind of a criticism either to the government or to the system. This marked the second time that the district court noted Gozes-Wagner’s decision to go to trial during the sentencing hearing. *** … the court noted during a discussion about Gozes-Wagner’s attempt to cooperate with the Government: ‘I mean, the government didn’t file a downward departure because she — you know, your client pled not guilty, which was her absolute right.’ This was the third time the court referenced Gozes-Wagner’s decision to go to trial. ***
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After discussing a few more issues, Gozes-Wagner’s counsel moved on to his ‘sentencing disparity’ argument. *** THE COURT: I’m just saying they pled guilty. That was their option. Once again, all I want to do is try cases. So I’m not saying anyone has waxed the right to a jury trial because I’ll give them a jury trial. But that was their option. They pled guilty, and they accepted because their guidelines may be higher than this, which the guidelines in this case is up to 30 years with no parole. So, yeah. So they must have pled, what, to two five-year counts and another one to a ten-year count. *** This was the fourth time the district court referenced Gozes-Wagner’s decision to go to trial compared to her co-conspirators’ decisions to plead guilty. *** THE COURT: But again, bottom line, Counsel, she exercised the constitutional rights that she has in the United States to plead not guilty. This marked the fifth and final time the district court referenced GozesWagner’s decision to go to trial during the sentencing hearing. *** Gozes-Wagner’s sentence is by far the lengthiest among her coconspirators. Shiforenko was sentenced to 72 months (six years). Voronov was sentenced to the statutory maximum 60 months (five years). And Brodsky has not been sentenced yet. But given that he faces a 60-month statutory cap, his sentence will be significantly shorter than GozesWagner’s. *** Gozes-Wagner’s primary argument on appeal is that the district court violated her constitutional rights by improperly sentencing her more severely than her ‘more culpable’ co-conspirators simply because she exercised her right to go to trial and they did not. *** … a defendant who cooperates with the Government is not similarly situated to one who refuses to do so. Devine, 934 F.2d at 1338–39. Nor are defendants similarly situated when they are convicted under different statutes that carry different maximum sentences. *** 31
We are aware that the district court judge in this case presided over a fourday jury trial before sentencing the defendant. This gave the court a full appreciation of Gozes-Wagner and the conduct that led to her conviction. *** … we cannot help but observe the tension created by the fact that the court here was much more informed than most sentencing courts, which usually lack the benefit of a full-fledged trial before sentencing. B. A Coerced Withdrawal of Objections 1. United States v. Angeles, 971 F.3d 535 (5th Cir. 2020) [Panel: Circuit Judges Smith, Willett and Duncan. (Opinion by Duncan)] The Court of Appeals held that District Court did not engage in improper coercion. Offense of Conviction: 21 U.S.C. §§ 846, 841(a)(1) – Conspiracy to possession with intent to distribute 50 grams or more of methamphetamine and 21 U.S.C. § 841(b)(1)(B) -- Conspiracy to possess with intent to distribute 50 grams or more of methamphetamine. Result: Affirmed. [Excerpts from the Opinion] Defendant pled guilty in the United States District Court for the Northern District of Texas, … John H. McBryde, Senior District Judge, … conspiracy to possession with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B) to conspiracy to possess with intent to distribute 50 grams or more of methamphetamine. Defendant appealed. *** Her criminal history category of I resulted in a guidelines range of 324 to 405 months. Angeles raised numerous objections to the PSR. *** The day before the sentencing hearing, the district court issued this order: After having considered the presentence report pertaining to defendant, Natalie Angeles, and the other sentencing items, the court tentatively has concluded that the objections made by defendant to the presentence report are without merit. Also, the court tentatively has concluded that defendant should not receive any reduction in her offense level based on acceptance of responsibility.... The parties should take such tentative conclusions into account in making decisions as to the presentations to be made at the sentencing hearing. 32
At the hearing, the court began by asking whether Angeles intended to pursue any objections to the PSR besides those already withdrawn. Angeles’s counsel answered that she would pursue her objection to the drug-premises enhancement but would otherwise defer to the court’s ruling. The court responded that it had reached only ‘tentative’ conclusions and urged counsel to specify which objections Angeles wished to pursue. After briefly consulting with Angeles, counsel stated that Angeles would withdraw all objections. The court proceeded to the acceptance-of-responsibility reduction. It noted its ‘tentative conclusion’ that the reduction was unmerited, but invited counsel to present evidence. *** … Angeles’s counsel argued that—notwithstanding her specific objections to the PSR—Angeles had ‘never denied what her behaviors were with regard’ to the basic facts of the crime. At that point the court relented, stating ‘I’m not going to deny her acceptance of responsibility.’ The court then accepted the PSR’s calculations with the resulting guideline range of 324 to 405 months. After hearing statements from one of Angeles’s children and from Angeles herself, however, the court imposed a below-guidelines sentence of 280 months, combined with a five-year term of supervised release. Angeles timely appealed. *** Angeles’s sole argument on appeal is that the district court ‘effectively coerc[ed]’ her into withdrawing her objections to the PSR by threatening to withhold an acceptance-of-responsibility reduction. We disagree. We have before rejected similar coercion arguments in unpublished opinions, and we follow the same course now. See United States v. Schenck, 697 F. App’x 422, 423 (5th Cir. 2017) (unpublished); United States v. Medina, 432 F. App’x 349, 352 (5th Cir. 2011) (unpublished). ‘The spectre of judicial coercion ... [may] arise where the court tells the defendant that he must withdraw the objection or lose the possibility of gaining a reduction for acceptance of responsibility.’ … We see no such strong-arming here, however. Rather, the court treated withdrawal separately from acceptance. The court first explained that Angeles could persist in her objections if she wished. See, e.g., id. (noting the court ‘allowed Medina the opportunity to persist in the objection or withdraw it’). Only after Angeles withdrew her objections did the court analyze acceptance of responsibility. ***
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Finally, the court did not pressure Angeles into abandoning her objections by conveying before the hearing its ‘tentative conclusion’ that her objections were ‘without merit.’ ‘[I]t would be absurd for a detrimental legal ruling on an objection to be construed as the court’s coercing a defendant to withdraw that objection.’ Id. To the contrary, it is appropriate for a district court to ‘express concern that a defendant is frivolously denying relevant conduct and explain this could be a reason to deny an acceptance reduction.’ Schenck, 697 F. App’x at 423 (cleaned up) C. A Court’s Procedurally Unreasonable Upward Adjustment 1. United States v. Bostic, 970 F.3d 607 (5th Cir. 2020) [Panel: Circuit Judges Dennis, Southwick and Ho. (Opinion by Southwick; dissent by Ho)] The Court of Appeals held that: [1] claim that upward variance sentence of 235 months was procedurally unreasonable was reviewable for abuse of discretion, and [2] sentence of 235 months, which was significant upward departure from Guidelines range of 21 to 27 months, was procedurally unreasonable. Offenses of conviction: 21 U.S.C. §§ 841(a)(1) – Conspiracy to possess with intent to distribute methamphetamine. Result: Vacated; remanded for resentencing. [Excerpts from the Opinion] Defendant was convicted on guilty plea in the United States District Court for the Western District of Texas, David Counts, J., of conspiracy to possess with intent to distribute methamphetamine. Defendant appealed. *** The defendant entered an open plea of guilty. The Guidelines range was 21 to 27 months, but the district court imposed a 235-month sentence. The defendant here argues both the procedural and substantive unreasonableness of his sentence. We conclude that the district court needs to explain better its justification for such a sentence or impose a lesser one. We VACATE the sentence and REMAND for resentencing. *** Police officers responded to a 911 call of a possible drug overdose in Odessa, Texas. When they arrived, they discovered AF, a 24-year old female, who was not breathing. According to a witness, AF had been given heroin by her boyfriend Braxton Hudgens the previous evening. AF complained of the effects of the heroin, and Hudgens contacted Corey Reeves Bostic to obtain methamphetamine. Bostic arrived at the scene, saw that AF was in the midst of an overdose, and provided Hudgens with methamphetamine. Hudgens administered the drug to AF. AF was pronounced dead at a hospital. At the time of her death, AF was under treatment for an enlarged heart and had previously undergone heart surgery. When she died, her heart was 34
enlarged to four times its normal size. According to the medical examiner, while it was likely that drug use contributed to AF’s death, her preexisting health condition prevented a showing of but-for causation. A federal grand jury for the Western District of Texas did not charge Bostic with AF’s death, but he was indicted for conspiracy to possess with intent to distribute methamphetamine pursuant to 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. Bostic pled guilty without a plea agreement. In the Presentence Investigation Report (‘PSR’), the probation officer calculated an offense level of 10 and a criminal history category of V, producing a United States Sentencing Guidelines range of 21 to 27 months. The PSR recognized the findings of the medical examiner regarding causation, stating there was no identifiable victim as defined in Burrage v. United States, 571 U.S. 204, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014), where the Supreme Court held: At least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury. *** The district court expressly found the PSR’s Guidelines range of 21 to 27 months was ‘wanting,’ and noted that ‘if the government had been able to charge [Bostic] with distribution of methamphetamine which resulted in death, [Bostic] would have faced a mandatory minimum term of imprisonment of 20 years and a minimum of ten years of supervised release.’ The district court sentenced Bostic to 235 months of imprisonment and 3 years of supervised release. Bostic’s counsel objected to the sentence as procedurally and substantively unreasonable. *** Bostic argues on appeal that the district court did not provide an adequate explanation to ‘support[ ] the court’s 770 percent upward variance from the high end of the Guidelines range.’ *** If a district court imposes a sentence outside the Guidelines range, it must state on the record ‘the specific reason for the imposition of a sentence different from that described’ in subsection (a)(4). § 3553(c)(2). This explanation must ‘allow for meaningful appellate review and ... promote the perception of fair sentencing.’ Gall, 552 U.S. at 50, 128 S.Ct. 586. The district court ‘must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.’ Id. Further, ‘a major departure should be supported by a more 35
significant justification than a minor one.’ Id. For such a non-Guidelines sentence, a district court must more thoroughly articulate fact-specific reasons for its sentence, and ‘[t]he farther a sentence varies from the applicable Guideline sentence, the more compelling the justification based on factors in section 3553(a) must be.’ United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (quotation marks omitted). We have held a district court made a procedural error by not adequately explaining the chosen sentence where the only supporting reasons were a recitation of the Guidelines calculation, accompanied by a brief colloquy with defense counsel that did not squarely address the defendant’s sentencing arguments, and where the district court overruled the defendant’s objection without explanation. United States v. MondragonSantiago, 564 F.3d 357, 363–64, 364 n.5 (5th Cir. 2009). … *** The Statement of Reasons form incorrectly indicated that Bostic was sentenced within the Guidelines range, and offered no explanation as to the district court’s reasoning under Section 3553(a). We are not informed of the factors that led the district court to impose its sentence or informed whether it took into consideration Bostic’s arguments regarding the Section 3553(a) factors. The sentence imposed here was nearly eight times longer than the Guidelines range and quite similar to an appropriate sentence for someone who was responsible for a death in these circumstances. *** With respect, the district court procedurally erred by offering an inadequate explanation, which was an abuse of its discretion. There is no need for us to address Bostic’s arguments regarding substantive unreasonableness. *** Our ruling should not be interpreted as taking a position on whether this same sentence could be justified by a more fulsome explanation. See United States v. Johnson, 648 F.3d 273, 280 (5th Cir. 2011). *** James C. Ho, Circuit Judge, dissenting: Corey Reeves Bostic is no ordinary drug dealer. When he saw a 24-yearold woman overdosing on heroin, he did not try to help save her life. He sold her methamphetamine instead. She died shortly thereafter. And the medical examiner later stated the obvious: Although there was no conclusive proof of but-for causation, it was likely that the meth contributed to her death, along with her taking heroin and her underlying heart condition. *** 36
That said, I take heart in the majority’s invitation to the district court to issue precisely the same sentence on remand. After all, there is nothing substantively unreasonable about sentencing Bostic to less than half the maximum 40-year prison sentence set by Congress. And ‘[a]ppellate review of the substantive reasonableness of a sentence is highly deferential.’ United States v. Hoffman, 901 F.3d 523, 554 (5th Cir. 2018) (cleaned up). VII.
CONDITIONS IMPOSED BY THE COURT
[Note: Federal judges have great latitude in the conditions that they impose for pre-trial release and probation/supervised release. The Fifth Circuit has not been hesitant, however, to change conditions of probation/supervised release when they were overly broad – and this year, two cases were sent back to the district court.] A. Pre-Trial Conditions of Release 1. United States v. Emakoji, ___F3d___, 2021 WL 871201 (5th Cir. 2021) [Panel: Circuit Judges Jones, Smith and Elrod. (Opinion by Smith; Elrod filed an opinion concurring in part and dissenting in part.) Judge Smith held, inter alia, a district court’s imposition of housing requirement, as additional condition of release, to ensure defendant would comply with orders to appear was calculated to assure his present; … Offense of conviction: 18 U.S.C. § 1957 – Engaging in monetary transactions in property derived from specified unlawful activity and 18 U.S.C. § 2 – Aiding and abetting. Result: Affirmed. [Excerpts from the Opinion] Defendant entered into plea agreement after he was charged with engaging in monetary transaction in property derived from specified unlawful activity. The United States District Court for the Northern District of Texas, Reed O’Connor, J., ordered defendant to obtain housing in Northern District of Texas. Defendant appealed. *** The district court ordered Emakoji ‘to obtain housing within the Northern District of Texas within thirty days.’ Emakoji contends that the order violates his (A) Eighth Amendment right to be free from excessive bail and (B) Fifth Amendment due process right. We disagree. *** First, the district court employed the housing requirement to ‘ensure the Court that [Emakoji] will comply with orders to appear.’ The court thus imposed the additional condition of release to ensure Emakoji’s presence.
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*** …As part of his conditions of release, Emakoji agreed to ‘appear at all proceedings as required ....’ (Emphases added.) But, after agreeing to plead guilty, he requested two continuances within the span of three days, both based on fears about COVID. He asserted his fear of ‘traveling between at least three states, and through so many different counties ....’ He averred that the United States is ‘affirmatively trying to avoid’ such travel ‘at all costs.’ Emakoji’s reluctance to appear in-person gave the court reason to believe that he might not comply with his release conditions by ‘appear[ing] at all proceedings as required ....’ *** Emakoji contends that the housing requirement violates procedural due process. To comply with due process, the argument goes, the district court needed to (1) ‘conduct[ ] a hearing’ or (2) ‘find[ ] a violation of existing release conditions ....’ Both claims fail. B. Conditions of Supervised Release 1. United States v. Martinez, 987 F.3d 432 (5th Cir. 2021) [Panel: Circuit Judges Elrod, Duncan and Wilson (Opinion by Elrod). The Court of Appeals held, inter alia, that as matter of first impression, district court abused its discretion by giving defendant’s probation officer the option to choose between inpatient and outpatient drug treatment. Offense of conviction: 18 U.S.C. § 751 – Escape from a halfway house. Result: Vacated and remanded. [Excerpts from the Opinion] Defendant appealed from decision of the United States District Court for the Southern District of Texas, Andrew S. Hanen, J., which modified the conditions of supervised release for defendant to include the provision that defendant participate in an inpatient or outpatient substance-abuse treatment program supervised by his probation officer. *** The district court modified the conditions of supervised release for Appellant Abran Martinez to include the provision that Martinez ‘participate in an inpatient or outpatient substance-abuse treatment program’ supervised by Martinez’s probation officer. Because the option to require inpatient rehabilitation delegates to the probation officer the judicial decision to significantly restrict Martinez’s liberty during treatment, we VACATE that condition of supervised release and REMAND to the district court for further proceedings consistent with this opinion. *** 38
In November 2018, Martinez’s probation officer petitioned the district court to modify the conditions of Martinez’s supervised release because Martinez tested positive for cocaine use. *** Martinez’s probation officer once more petitioned the court for a modification in August of 2019 because Martinez continued to engage in drug use. *** After a hearing, the district court imposed the following written condition: You must participate in an inpatient or outpatient substance-abuse treatment program and follow the rules and regulations of that program. The probation officer will supervise your participation in the program, including the provider, location, modality, duration, and intensity. You must pay the costs of the program, if financially able. *** The district court abused its discretion by giving Martinez’s probation officer the option to choose between inpatient and outpatient drug treatment. While probation officers may ‘manage aspects of sentences’ and oversee the conditions of supervised release, a probation officer may not exercise the ‘ “core judicial function” of imposing a sentence, “including the terms and conditions of supervised release.”’ United States v. Barber, 865 F.3d 837, 839 (5th Cir. 2017) (quoting Franklin, 838 F.3d at 568). This duty belongs to the court and may not be delegated. 2. United States v. Becerra, 835 Fed.Appx.751 (5th Cir. 2021) [Panel: Circuit Judges King, Stewart and Southwick. Per curiam.] Offense of conviction: 18 U.S.C. §§ 2252(a)(2) and (b)(1); 2252(a)(4)(B) and (b)(2) – Visual depiction involving sexual exploitation of a minor and possession of a visual depiction of a minor under 12 years of age. The Court of Appeals held, inter alia, that (1) sentencing court erred by imposing special conditions of supervised release, restricting the use of computers and the Internet for ten years following defendant’s initial sentence, that were not narrowly tailored either by scope or by duration; and (2) sentencing court’s error in imposing absolute, ten-year bans on defendant’s computer and Internet use as special condition of supervised release seriously affected the fairness, integrity or public reputation of judicial proceedings, and thus, case warranted exercise of appellate court’s discretion to correct the error. [Excerpts from the Opinion]
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Defendant pled guilty in the United States District Court for the Western District of Texas, David Briones, Senior District Judge, to childpornography charges, and he appealed. *** On January 17, 2019, Becerra pled guilty to receipt and distribution of a visual depiction involving the sexual exploitation of a minor, in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1), and to possession of a visual depiction involving sexual exploitation of a minor under 12 years of age, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2). … the PSR recommended that ‘[t]he defendant shall not possess and/or use computers (as defined in 18 U.S.C. § 1030(e)(1)) or other electronic communications or data storage devices or media,’ and ‘[t]he defendant shall not access the Internet.’ *** As part of Becerra’s supervised release, the district court imposed, inter alia, the above-referenced special conditions. Becerra did not object to these conditions of supervised release at sentencing and now appeals. *** …this court requires conditions restricting the use of computers and the Internet to be ‘narrowly tailored either by scope or by duration.’ Id. at 399. *** In this case, the district court erred by imposing restrictions on computer and Internet use that were not ‘narrowly tailored either by scope or by duration.’ Duke, 788 F.3d at 399. The ten-year bans in this case are absolute and would not even begin until after a 151-month term of imprisonment. We have repeatedly emphasized that ‘access to computers and the Internet is essential to functioning in today’s society.’ Sealed Juvenile, 781 F.3d at 756; … *** We therefore find that the district court erred in imposing conditions of supervised release that fail to ensure no greater deprivation of liberty than is reasonably necessary. VIII.
PRE-TRIAL ISSUES
[Note: As always, we have a speedy trial issue this year and an issue that I haven’t seen before – requesting that a case agent be sequestered.] A. Speedy Trial Delay Caused by the Defendant The district court had granted relief in this case but the Fifth Circuit reversed and remanded. 1. United States v. Duran-Gomez, 984 F.3d 366 (5th Cir. 2020) 40
Panel: Circuit Judges Barksdale, Elrod, and Ho (Opinion by Elrod) The Court of Appeals held that: (1) approximate nine-year delay between indictment and defendant’s motion to dismiss weighed heavily against the government, under Barker analysis for determining whether defendant’s Sixth Amendment right to speedy trial was violated; (2) defendant’s conduct in either moving or joining co-defendants in moving for continuances on 17 occasions weighed heavily against defendant under Barker analysis; (3) defendant did not diligently assert his right to speedy trial; (4) approximate nine-year delay did not give rise to presumption of prejudice; (5) defendant failed to prove that he was actually prejudiced by the approximate nine-year delay; (6) defendant’s Sixth Amendment right to speedy trial was not violated; and (7) defendant’s Fifth Amendment due process rights were not violated in the pre-indictment period. Offense of conviction: 18 U.S.C. § 1111 – Capital murder. Result: Reversed and remanded. [Excerpts from the Opinion] In July 2010, Wilmar Duran-Gomez was indicted on capital charges stemming from a 2006 double homicide in southern Texas. Over the subsequent years, Duran-Gomez moved to continue his trial on numerous occasions and never objected to his co-defendants’ or the government’s requests for delay—until August 2019, when he claimed that his Sixth Amendment right to a speedy trial had been violated. The district court agreed, dismissed all charges with prejudice, and ordered Duran-Gomez released. Our court granted the government’s emergency motion to stay the district court’s order and expedited this appeal. Under the Supreme Court’s balancing test in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we conclude that Duran-Gomez’s speedy trial right was not violated and therefore REVERSE and REMAND the case for a prompt trial. *** Since his original indictment in 2010, Duran-Gomez moved to continue his trial or various deadlines on ten different occasions. His counsel certified that he was unopposed to seven of his co-defendants’ motions for continuance, bringing the total continuances to which he either sought or explicitly consented to seventeen. On appeal, Duran-Gomez nevertheless 41
argues that his motions for continuance should weigh against the government because, he says, the government’s negligence forced him to seek continuances. *** In this case, Duran-Gomez contributed substantially to the delay. He requested a slew of continuances. He represented that he needed those continuances to investigate the issues, prepare his defense and mitigation, attempt to make a plea deal with the government, and ‘wait and see’ if his co-defendants could serve a helpful purpose in his own defense. *** The judgment of the district court is REVERSED and the case is REMANDED for a prompt trial. B. Sequestering of a Case Agent 1. United States v. Arayatanon, 980 F.3d 444 (5th Cir. 2020) [Panel: Circuit Judges Dennis, Higginson, and Willett (Opinion by Higginson)] The Court of Appeals held, inter alia, that the district court did not abuse its discretion in denying defendant's motion to sequester one of government's two case agents;… Offense of conviction: 21 U.S.C. § 846 – Conspiracy to possess with intent to distribute cocaine. Result: Affirmed. [Excerpts From the Opinion] At the beginning of trial, Arayatanon invoked Rule 615 and requested that one of the government’s two agents be sequestered because both agents were identified as possible witnesses. The government responded that because both agents had acted as the case agents at different times, each was necessary in the presentation of its case. Based on the government’s representation, the district court overruled Arayatanon’s objection and permitted both agents to stay. At trial, only one of the case agents testified. Arayatanon has made no showing to overcome the government’s representation that both agents were essential. To the extent Arayatanon asserts that he had the right to have one of the case agents sequestered, this argument is unavailing. Rule 615 does not limit the district court’s discretion to excuse only one case agent from sequestration. See United States v. Alvarado, 647 F.2d 537, 540 (5th Cir. 1981) (‘[T]he decision as to how many will be excused from sequestration is just as discretionary with the trial judge as who will be excused.’); see also United States v. Payan, 992 F.2d 1387, 1394 (5th Cir. 1993) (finding no reversible error where district court permitted two case agents to both remain and testify). In any event, Arayatanon has not shown the resulting prejudice that is required to warrant reversal of his conviction. 42
IX. TRIAL ISSUES [Note: We have a non-issue: Objecting to the eyewitness’ in court identification of the defendant under F.R.E. 701. Next, there are two cases with excellent discussions of jury instructions. Lastly, there is an obstruction of justice case.] A. Rule 701 Lay Opinion 1. United States v. Masha, ___F.3d___, 2021 WL 857470 (5th Cir. 2021) [Panel: Circuit Judges Jones, Clement and Graves. (Opinion by Jones)] Judge Jones held, inter alia, a district court did not plainly err in allowing defendant’s friend, who was testifying against him in order to reduce his own sentence, to give lay opinion testimony that defendant was person in bank surveillance picture; … Offense of conviction: 18 U.S.C. § 5543 – False use of a passport. Affirmed, in part; vacated and remanded, in part. [Excerpts from the Opinion] Defendant was convicted in the United States District Court for the Southern District of Texas, No. 4:18-CR-00509-1, Kenneth M. Hoyt, Senior District Judge, of willful and knowing misuse of a passport issued to, or designed for, another, and of willfully and knowingly using instruments purporting to be passports to open accounts at different banks. He appealed. *** Furthermore, the jury heard the testimony of Balogun, a friend of Masha, who positively identified Masha as the person in the surveillance photo taken at the Bank of America branch, as well as the British passport. Although Balogun acknowledged that he was testifying in order to reduce his sentence, it was within the sole province of the jury to assess his credibility. *** Masha argues that Balogun gave inadmissible lay-opinion testimony when he identified him as the person in the surveillance picture from Bank of America and in the passport photos. *** Under Rule 701 of the Federal Rules of Evidence, a lay witness may testify as to opinions that are “(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of [Federal Rule of Evidence] 702.’ FED. R. EVID. 701. A lay witness may give an opinion that is based upon first-hand knowledge or observation. United States v. West, 22 F.3d 586, 591 n.15 (5th Cir. 1994). To be admissible, ‘a lay opinion must be based on personal perception, must be one that a normal 43
Result:
person would form from those perceptions, and must be helpful to the jury.’ United States v. Riddle, 103 F.3d 423, 428 (5th Cir. 1997) … *** The record reflects that the Government laid the foundation for the lay opinion by questioning Balogun about his relationship with Masha. … Accordingly, Masha has failed to show that the district court plainly erred in allowing the lay opinion testimony. B. Jury Instructions 1. United States v. Okpara, 967 F.3d 503 (5th Cir. 2020) [Panel: Circuit Judges Clement, Southwick and Higginson (Opinion by Higginson)] The Court of Appeals held [1] postal inspector’s testimony was extremely damaging to defendant, as required for a finding that district court’s failure to sua sponte issue an impeachment-only limiting instruction with respect to such testimony was plain error; [2] the need for an impeachment-only limiting instruction with respect to postal inspector’s testimony was obvious, as required for a finding of plain error; and [3] district court’s failure to sua sponte issue an impeachment-only limiting instruction affected defendant’s substantial rights, as required for a finding that such failure was plain error. Offense of conviction: 18 U.S.C. § 1343 – False use of a passport. Result: Vacated and remanded. [Excerpts from the Opinion] Defendant was convicted in the United States District Court for the Southern District of Texas, David Hittner, No. 4:18-CR-178-1, Senior District Judge, of two counts of knowingly using a counterfeit passport to open two bank accounts. Defendant appealed. *** In March 2018, Okpara, a Nigerian national, was indicted on two counts of knowingly using a counterfeit Republic of Ghana passport under the name Kuffor George to open bank accounts at Bank of America and JP Morgan Chase Bank. Okpara was tried before a jury on both counts. During trial, the government presented testimony from … Uzoma Ajaero, an acquaintance of Okpara’s who was also charged with—and convicted of—using fraudulent passports to open bank accounts; and (iii) testimony from United States Postal Inspector Matthew Boyden. For purposes of this appeal, the relevant testimony is that from Ajaero and Inspector Boyden. *** When asked whether Ajaero was “consistent and clear” across these various meetings, Boyden responded: 44
Yeah. He’s definitely reluctant to tell on his friend. He was unequivocal about that. But he was also unequivocal that it was his friend, Mr. Okpara, in the videos, on the passport, that he gave him the passport, that he provided him addresses to use for the fraud accounts, that he sent money to an account opened in the name of Mr. Kuffor. (emphasis added) When defense counsel objected to this testimony as improper narrative and non-responsive, the district court sustained the objection. However, counsel did not move to strike this testimony from the record. Boyden’s testimony concluded soon thereafter. *** During closing argument, the government summarized the evidence presented to the jury and identified the evidence tying Okpara to the charged crimes. The government characterized Ajaero’s testimony as “not answering the question” because “he didn’t want to testify against his friend.” The government then summarized Boyden’s testimony regarding Ajaero’s prior statements. *** During deliberations, which lasted about five and a half hours and spanned two days, the jury requested the transcripts of Ajaero’s and Boyden’s testimony. In response, the district court ordered an oral read-back of the testimony excluding any bench conferences or “give and take” between the attorneys. *** In United States v. Sisto, we found a district court’s failure to issue an impeachment-related limiting instruction sua sponte to be plain error. *** Reviewing for plain error, this court determined the agent’s testimony was “extremely damaging” to the defendant because it was the only evidence from which the jury could infer the defendant’s knowledge, which was the primary contested issue in the case. *** Adhering to our legal framework from Sisto, we hold that the district court’s failure to issue a limiting instruction consistent with its instruction to counsel regarding Boyden’s testimony was plain error. *** In sum, ‘we are in doubt as to what the jury’s verdict would have been had the proper instruction been given.’ Sisto, 534 F.2d at 624. 2. United States v. Lee, 966 F.3d 310 (5th Cir. 2020) 45
[Panel: Circuit Judges Dennis, Elrod and Costa (Opinion by Costa)] The Court of Appeals held, inter alia, that: … [6] error was harmless as to giving a deliberate ignorance instruction that was not supported by evidence; and … Offense of conviction: 21 U.S.C. § 846 – Conspiracy to prescribe controlled substances. Result: Affirmed. [Excerpts from the Opinion] In prosecution of spouses, who operated a pain-management medical clinic with husband serving as doctor and wife-nurse serving as office manager, for conspiracy to distribute controlled substances, the United States District Court for the Eastern District of Texas, Marcia A. Crone, J., … *** Taylor and Lee’s last claim of trial error is that the district court should not have instructed the jury on deliberate ignorance. This issue gives us déjà vu all over again. See Yogi Berra’s Most Memorable Sayings, MLB.COM (Sept. 23, 2015), https://www.mlb.com/news/yogisms-yogi-berras-bestsayings/c151217962. The instruction ‘should rarely be given,’ United States v. Araiza-Jacobo, 917 F.3d 360, 366 (5th Cir. 2019) (citation omitted), but what seems rare is a health care prosecution without the instruction. The deliberate ignorance instruction—also called the willful blindness, conscious avoidance, or ostrich instruction—'inform[s] the jury that it may consider evidence of the defendant’s charade of ignorance as circumstantial proof of guilty knowledge.’ United States v. Ricard, 922 F.3d 639, 655 (5th Cir. 2019) (citation omitted). It ensures that a defendant cannot bury his head in the sand to avoid liability. Id. *** The increasing use of ostrich instructions has prompted fears that ‘the jury might convict for negligence or stupidity.’ Ricard, 922 F.3d at 655 (citation omitted). We are not alone in our concern with their overuse. Similar to our admonitions, other courts use the words ‘rarely,’ ‘sparingly,’ and ‘caution’ when discussing the instruction. Alston-Graves, 435 F.3d at 340–41 (quoting cases from the First, Fourth, Fifth, Ninth, Tenth, and Eleventh Circuits giving these and similar warnings). *** The limitations we have emphasized are that a deliberate ignorance instruction should be given only ‘when a defendant claims a lack of guilty knowledge and the proof at trial supports an inference of deliberate ignorance.’ Ricard, 922 F.3d at 655–56 (citation omitted). To allow that inference, there must be evidence showing: ‘(1) subjective awareness of a 46
high probability of the existence of illegal conduct, and (2) purposeful contrivance to avoid learning of the illegal conduct.’ Id. at 656 (citation omitted). *** It is troubling that an instruction that should be given rarely has become commonplace. With someone’s liberty on the line, there must be a compelling justification for an instruction that runs the risk of ‘confus[ing] the jury’ and convicting a defendant who merely ‘should have been aware’ of criminal conduct. United States v. Cartwright, 6 F.3d 294, 301 (5th Cir. 1993). *** Nevertheless, we end up where we often do when the district court gives the instruction in a case with strong evidence of actual knowledge. The error in giving the instruction was harmless because ‘there is substantial evidence of actual knowledge.’ Id.; see also Alston-Graves, 435 F.3d at 342. As we have recounted, that evidence comes from a variety of sources: undercover agents, witnesses who raised concerns about patients’ drug abuse, the defendants’ practice of ignoring highly suspicious drug tests, the clinic’s odd pricing structure, and Taylor’s cursory medical examinations. In fact, it is hard to find another Fifth Circuit pill mill case with such overwhelming evidence of guilt. C. Obstruction of Justice by Giving Perjurious Testimony at Trial (U.S.S.G. § 3C1.1) [Note: Less than three percent of all federal criminal cases are resolved by jury trials. When we are discussing how to proceed with our clients, we point out that electing to have a jury trial may well result in the loss of acceptance of responsibility and in an upward adjustment for obstruction of justice. This case illustrates the danger of a defendant taking the stand in his/her own defense.] 1. United States v. Johnson, 822 F.Appx. 258 (5th Cir. 2020) [Panel: Circuit Judges Stewart, Clement and Costa. Per curiam.] The Court of Appeals held, inter alia, that: District Court’s factual findings were sufficient to support sentencing enhancement for obstruction of justice. Offense of conviction: 18 U.S.C. § 2113(a) – Bank robbery Result: Affirmed. [Excerpts from the Opinion] Defendant was convicted in the United States District Court for the Northern District of Texas of bank robbery, and sentenced to 132 months’ imprisonment. Defendant appealed. ***
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Johnson exercised his right to testify at trial and generally asserted that he could not remember what happened on the day of the bank robbery and that he was ‘not in [his] right mindset’ that day. *** The presentence report (PSR) assigned Johnson a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1 on the grounds that he committed perjury during his trial testimony by falsely stating that he could not remember the circumstances of the instant bank robbery. Specifically, the PSR provided that: [T]he defendant testified he could not recall the events of the instant offense. The government noted the defendant confessed to the events of the instant offense to law enforcement officials immediately following his arrest on July 9, 2016. The defendant also recounted the events, in detail, when he met with Dr. Tennille Warren-Phillips during multiple sessions for a Criminal Responsibility Report. Dr. Warren-Phillips indicated the defendant never expressed any problems recalling the instant offense during those sessions. *** … The district court overruled Johnson’s objections to the § 3C1.1 enhancement and adopted the PSR which provided for a guidelines range of 92-115 months. Because it found a guidelines sentence inadequate, the district court varied upward and imposed a sentence of 132 months, observing that the 115-month sentence imposed for a prior similar bank robbery that Johnson had committed in 2007 had not deterred him from committing a similar crime. Johnson filed this appeal. *** Johnson… argues that the district court reversibly erred by applying the § 3C1.1 obstruction of justice enhancement. *** Section 3C1.1 of the Sentencing Guidelines provides for a two-level enhancement if ‘the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction.’ Perjury is one example of conduct to which this enhancement applies. U.S.S.G. § 3C1.1, cmt. n.4(B). ‘[A] defendant commits perjury if he provides “false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.”’ United States v. Smith, 804 F.3d 724, 737 (5th Cir. 2015) (quoting United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993)); see § 3C1.1, cmt. n.2. 48
*** Johnson’s objection to the enhancement triggered a duty by the district court to ‘review the evidence and make independent findings necessary to establish a willful impediment to or obstruction of justice, or an attempt to do the same.’ United States v. Perez-Solis, 709 F.3d 453, 469 (5th Cir. 2013)… *** Here, the district court adopted the adequate factual findings set forth in the PSR, as it was permitted to do. See Perez-Solis, 709 F.3d at 470. The PSR in turn provided that Johnson committed perjury during his trial testimony by falsely stating that he could not remember the circumstances of the instant bank robbery. The PSR explained that Johnson’s testimony that he could not recall the events of the current offense were contradicted by his confession of the offense to law enforcement on July 9, 2016, as well as by his meetings with Dr. Warren-Phillips wherein he recounted the events of the offense in detail. Here, the ‘materiality is obvious’ so the district court was not required to make express findings that Johnson’s false testimony concerned a material matter. Id. Likewise, its reliance on the factual findings set forth in the PSR in support of the enhancement was appropriate. The district court did not reversibly err by applying a twolevel enhancement for obstruction of justice under U.S.S.G. § 3C1.1. X. POST-TRIAL ISSUES [Note: We have a case that illustrates that the right of confrontation can be limited in a revocation of supervised release proceeding. Another case reminds us that district judges do not have to have a hearing on a § 2255 motion to vacate, set aside or correct a sentence. Another case addresses the issue of stacking a federal sentence on a state sentence.] A. Confrontation at a Revocation of Supervised Release Hearing 1. United States v. McDowell, 973 F.3d 362 (5th Cir. 2020) [Panel: Circuit Judges Smith, Willett and Duncan. (Opinion by Jerry E. Smith)] The Court of Appeals held that district court’s failure to make a specific “good cause” finding for not allowing confrontation did not rise to level of plain error. Offense of conviction: 18 U.S.C. § 1956 Engaging in monetary transfers in property derived from specified unlawful activity. Result: Affirmed. [Excerpts from the Opinion] Releasee’s supervised release was revoked by order of the United States District Court for the Western District of Texas, No. 7:16-CR-119-1, David Counts, J., and he appealed based on alleged violation of his right to confront alleged eyewitness to his release violations. 49
*** In 2016, McDowell was sentenced to one year of imprisonment and three years of SR for distributing cocaine. Two years later, the government initiated revocation proceedings, alleging that McDowell had violated three conditions of SR by committing another crime, possessing a firearm, and associating with others engaged in criminal activity. *** Caid testified that he listened to the recording of the 911 call and that the victim identified McDowell, said that he and two others had assaulted and robbed him, and said that McDowell had a handgun. Caid also testified that the victim sounded ‘out of breath’ and ‘stressed out’ and told the 911 dispatcher he had fled the scene in fear that McDowell would return and shoot him. Caid then relayed two other instances of the victim’s telling his story. He testified that the victim came to the police department a few hours after the assault and made the same allegations. Finally, Caid testified that a few days later he interviewed the victim at his home, where the victim again stated that McDowell assaulted him and had a handgun. *** McDowell contends on appeal that the district court violated his due process rights by admitting hearsay testimony without making a specific finding of good cause to dispense with his right to confront the witness against him. Though the Confrontation Clause does not apply to revocation proceedings, ‘[b]ecause a person’s liberty is at stake,’ defendants have a due process right ‘to confront and cross-examine adverse witnesses’ United States v. Grandlund, 71 F.3d 507, 509−10 (5th Cir. 1995). ‘[U]nlike the Sixth Amendment’s unconditional right to confront witnesses at trial,’ that right is qualified. United States v. Jimison, 825 F.3d 260, 263 (5th Cir. 2016). The district court may deny confrontation if it specifically finds good cause for doing so. Id. *** For two reasons, the district court’s failure to make a specific good-cause finding is not plain error. First, it is neither clear nor obvious that a court is required to make such a finding where the defendant makes no hearsay or confrontation objection. *** Second, because of the nature of the particular hearsay at issue, McDowell cannot show the district court’s omission—were it a clear error—affected his substantial rights, i.e., ‘affected the outcome of the district court proceedings.’ Puckett, 556 U.S. at 135, 129 S.Ct. 1423 (quoting Olano, 507 U.S. at 734, 113 S.Ct. 1770). Had the court conducted a sua sponte 50
balancing test, it could have found good cause to consider, at the very least, the 911 call without confrontation. A. Denial of Requests for Evidentiary Hearing 1. United States v. Anderson, 832 Fed.Appx. 284 (5th Cir. 2020) [Panel: Circuit Judges Higginbotham, Elrod and Haynes. Per curiam.] The Court of Appeals held that the district court did not abuse its discretion in not holding an evidentiary hearing prior to denying motion to vacate, set aside, or correct sentence based on allegedly false testimony given by prosecution witness. Offenses of conviction: 18 U.S.C. § 956 – Money laundering and 18 U.S.C. § 846 – Conspiracy to possess and distribute methamphetamine. Result: Affirmed. [Excerpts from the Opinion] After convictions for money laundering and taking part in a methamphetamine conspiracy were affirmed, 493 Fed.Appx. 515, movant filed motion to vacate, set aside, or correct sentence based on allegedly false testimony given by prosecution witness at his trial. The United States District Court for the Northern District of Texas, John H. McBryde, Senior District Judge, 2014 WL 4978669, denied motion without an evidentiary hearing. Defendant appealed. The Court of Appeals, 712 Fed.Appx. 383, affirmed in part and reversed in part. On remand, the United States District Court for the Northern District of Texas, McBryde, Senior District Judge, 2018 WL 1947048, again determined movant was not entitled to evidentiary hearing, and appeal was taken. *** Anderson argues that the district court abused its discretion by not holding an evidentiary hearing. We reject this argument. A district court may forgo an evidentiary hearing in deciding a § 2255 motion ‘only if the motion, files, and records of the case conclusively show that the prisoner is entitled to no relief.’ United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992) (per curiam). When facts are at issue in a § 2255 proceeding, a hearing is required if (1) the record, as supplemented by the trial court’s personal knowledge or recollection, does not conclusively negate the facts alleged in support of the claim for § 2255 relief, and (2) the movant would be entitled to postconviction relief as a legal matter if his factual allegations are true. Friedman v. United States, 588 F.2d 1010, 1014–15 (5th Cir. 1979) (per curiam). *** …we have previously made clear that a district court does not have to assess evidence in a vacuum and can ‘use its own knowledge of the record, its observations from trial, its prior experience with the parties and 51
counsel, and clear contradictions between an affidavit and other record documents to determine whether the § 2255 movant is entitled to “no relief.” ’ United States v. Arledge, 597 F. App’x 757, 759 (5th Cir. 2015) (per curiam). This process was employed by the district court here. B. Consecutive Sentences – Stacking a Federal Sentence on a State Sentence 1. United States v. Bryson, ___Fed.Appx.___, 2020 WL 7391897 (5th Cir. 2020) [Panel: Circuit Judges Clement, Higginson, and Engelhardt. Per curiam.] The Court of Appeals held, inter alia, that a judgment imposing sentence consecutively to undischarged state-court sentences was not impermissibly ambiguous regarding which sentences were to be served consecutively. Offense of conviction: 18 U.S.C. § 922(g)(1) – Felon in possession of a firearm. Result: Affirmed. [Excerpts from the Opinion] Defendant pled guilty in the United States District Court for the Western District of Texas to possession of a firearm by a felon, and was sentenced to above-guidelines sentence of 60-months imprisonment. Defendant appealed sentence. *** Bryson next asserts that the district court failed to give adequate reasons for imposing his sentence consecutively to his undischarged state-court sentences. This is similarly unpersuasive. The record shows that the district court expressly considered the § 3553(a) factors in reaching Bryson’s sentence, and implicitly adopted the government’s argument that a consecutive sentence was warranted to address Bryson’s extensive, persistent criminal conduct. See United States v. Everist, 368 F.3d 517, 521 (5th Cir. 2004). Bryson does not argue that a consecutive sentence is substantively unreasonable, thereby abandoning any such argument on appeal. See United States v. Still, 102 F.3d 118, 122 n.7 (5th Cir. 1996); Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986). Inasmuch as Bryson contends that the judgment is ambiguous regarding which sentences are to be served consecutively, his argument is unavailing. Although the judgment does not cite the case numbers assigned to his undischarged state-court sentences in Williamson and Ellis County, Texas, the plain intention of the district court regarding which sentences should be stacked is apparent from the judgment and pertinent records. Bryson does not argue, must less demonstrate, that further clarification is necessary for the Bureau of Prisons to execute his judgment and thus fails to show that the judgment is impermissibly ambiguous. See United States v. Garza, 448 F.3d 294, 302 (5th Cir. 2006).
52
XI. THE SORNA ISSUE [Note: SORNA cases are often confusing to lawyers and judges. Here, we have a case that discusses the SORNA tiers.] 1. United States v. Montgomery, 966 F.3d 335 (5th Cir. 2020) [Panel: Circuit Judges Jones, Elrod and Higginson (Opinion by Higginson)] The Court of Appeals held that defendant’s underlying New Jersey conviction for second degree sexual assault was tier I sex offense, and so he only had to register for 15 years after release from custody. Offense of conviction: 18 U.S.C. § 2250(a) – Failure to register as a sex offender. Result: Conviction vacated. [Excerpts from the Opinion] Defendant was convicted in the United States District Court for the Southern District of Texas, David Hittner, Senior District Judge, of failing to register as a sex offender in violation of the Sex Offender Registration and Notification Act (SORNA). Defendant appealed. *** SORNA, 34 U.S.C. §§ 20901–20962, is a federal law establishing ‘a comprehensive national system for the registration’ of sex offenders. Id. § 20901. It requires qualifying offenders to register and update their registration upon a change in residence, with criminal penalties for knowingly failing to comply. Id. § 20913; 18 U.S.C. § 2250. SORNA classifies offenders into three tiers. 34 U.S.C. § 20911. A tier I offender must register for 15 years, a tier II offender must register for 25 years, and a tier III offender must register for life. Id. § 20915(a). Our court and others determine an offender’s SORNA tier by comparing the offense for which they were convicted with SORNA’s tier definitions using the categorical approach. See United States v. Escalante, 933 F.3d 395, 398 (5th Cir. 2019). To apply the categorical approach, courts ‘ “look only to the statutory definitions”—i.e., the elements—of [an offense], and not “to the particular facts underlying those convictions.”’ Descamps v. United States, 570 U.S. 254, 261, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (quoting Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). If the offense ‘sweeps more broadly’ than the SORNA tier definition, then the offense cannot qualify as a predicate offense for that SORNA tier regardless of the manner in which the defendant actually committed the crime. Id.; United States v. Young, 872 F.3d 742, 745 (5th Cir. 2017). *** 53
Thus, to be a tier III sex offender under SORNA, Montgomery’s New Jersey conviction must be ‘comparable to or more severe than ... aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242 of Title 18).’ 34 U.S.C. § 20911(4); see also Young, 872 F.3d at 745 (quoting United States v. Coleman, 681 F. App’x 413, 416–17 (5th Cir. 2017)). Because the New Jersey Supreme Court has interpreted the state crime of sexual assault in the second degree to cover conduct outside of the federal definitions given in 18 U.S.C. §§ 2241 and 2242, Montgomery does not qualify as a tier III offender. Aggravated sexual abuse, as defined in § 2241, requires ‘knowingly caus[ing] another person to engage in a sexual act’ using force or ‘by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping; or attempt[ing] to do so.’ … Conversely, the New Jersey Supreme Court has held that, although 1992 N.J. Stat. § 2C:14-2(c)(1) requires ‘physical force or coercion,’ a defendant may be convicted under the statute upon a showing of ‘any touching that occurs without permission.’ State in the Interest of M.T.S., 129 N.J. 422, 446, 609 A.2d 1266 (1992); … *** Because Montgomery does not meet the definition of a tier III offender, he must be classified as a tier I offender. 34 U.S.C. § 20911(2). As a tier I offender, he was required to register for only 15 years after his release in 1995. § 20915(a). Because this error is clear under current law and resulted in Montgomery serving additional time in prison, Montgomery has shown plain error. Rosales-Mireles, 138 S. Ct. at 1905–08. Accordingly, Montgomery’s conviction for failure to register as a sex offender is VACATED. XII.
CONCLUSION
I am honored to have been asked to participate in this 34th Annual Rusty Duncan Advanced Criminal Law Course. Brett Harrison is my law partner and is also a member of TCDLA. Our offices are 135 steps from the State courthouse and 165 steps from the United States Courthouse. Having been strangers in a foreign land, we understand what it is for a lawyer to need an office during the trial of a case. Please do not hesitate to call if we can be of assistance. Buck
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Table of Cases
Borden v. United States................................................................................................................. 24 Edwards v. Vannoy ....................................................................................................................... 25 Greer v. United States ................................................................................................................... 22 Harris v. Maryland ....................................................................................................................... 18 Jones v. Mississippi, ____S.Ct.____, 2021 WL 1566605 (April 22, 2021) ................................................................. 4 Lange v. California ....................................................................................................................... 17 Mays v. Hines, 141 S.Ct. 1145 (2021) ............................................................................................................... 11 Shinn v. Kayer, 141 S.Ct. 517 (2020) ................................................................................................................... 8 Smith v. Titus................................................................................................................................. 19 Taylor v. Illinois ............................................................................................................................ 16 United States v. Anderson, 832 Fed.Appx. 284 (5th Cir. 2020) ............................................................................................ 52 United States v. Angeles, 971 F.3d 535 (5th Cir. 2020) ..................................................................................................... 32 United States v. Arayatanon, 980 F.3d 444 (5th Cir. 2020) ..................................................................................................... 43 United States v. Becerra, 835 Fed.Appx.751 (5th Cir. 2021) ............................................................................................. 40 United States v. Bostic, 970 F.3d 607 (5th Cir. 2020) ..................................................................................................... 35 United States v. Briggs; United States v. Collins; United States v. Daniels, 141 S.Ct. 467, 208 L.Ed.2d 318 (2020) .................................................................................... 12 United States v. Bryson, ___Fed.Appx.___, 2020 WL 7391897 (5th Cir. 2020).............................................................. 53 United States v. Clark, ___F.3d___, 2021 WL 822647 (5th Cir. 2021) ......................................................................... 26 United States v. Cooley ................................................................................................................. 17 United States v. Duran-Gomez, 984 F.3d 366 (5th Cir. 2020) ..................................................................................................... 42 United States v. Emakoji, ___F3d___, 2021 WL 871201 (5th Cir. 2021) .......................................................................... 38 United States v. Gary .................................................................................................................... 21 United States v. Gozes-Wagner, 977 F.3d 323 (5th Cir. 2020) .................................................................................................... 30 United States v. Johnson, 822 F.Appx. 258 (5th Cir. 2020)................................................................................................ 49 United States v. Kim, ___F.3d___, 2021 WL 650180 (5th Cir. 2021) ......................................................................... 28 55
United States v. Lee, 966 F.3d 310 (5th Cir. 2020) ..................................................................................................... 47 United States v. Martinez, 987 F.3d 432 (5th Cir. 2021) ..................................................................................................... 39 United States v. Masha, ___F.3d___, 2021 WL 857470 (5th Cir. 2021) ......................................................................... 44 United States v. McDowell, 973 F.3d 362 (5th Cir. 2020) ..................................................................................................... 51 United States v. Montgomery, 966 F.3d 335 (5th Cir. 2020) ..................................................................................................... 54 United States v. Okpara, 967 F.3d 503 (5th Cir. 2020) ..................................................................................................... 45 United States v. Penn, 969 F.3d 450 (5th Cir. 2020) ..................................................................................................... 29 United States v. Terry ................................................................................................................... 22 Van Buren v. United States ........................................................................................................... 23
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Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course June 24-26, 2021 Hyatt Regency San Antonio, TX
Topic: Guns, Drugs, Aliens
Speaker:
Jose I. Gonzalez-Falla Assistant Federal Public Defender 504 Lavaca St., Ste. 960 Austin, Texas 78701 (512) 916-5025 phone jose_gonzalez-falla@fd.org email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
DRUGS, GUNS, AND ALIENS
A Survey of the Most Common Crimes in Federal Court
Jose I. Gonzalez-Falla Assistant Federal Public Defender 504 Lavaca St., Ste. 960 Austin, Texas 78701 (512) 916-5025
34th ANNUAL RUSTY DUNCAN Advanced Criminal Law Course San Antonio, Texas June 25, 2021
Table of Contents I.
INTRODUCTION .................................................................................................................................... 4
II.
DRUGS ..................................................................................................................................................... 4 A.
COMMON DRUG CRIMES ................................................................................................................ 4 1.
Conspiracy: 21 USC § 846 ............................................................................................................... 4
2.
Possession with Intent to Distribute: 21 USC § 841 ......................................................................... 8
3.
Communication Facility (Phone Count): 21 USC § 843 (b) ........................................................... 13
4.
Simple Possession: 21 USC § 844 .................................................................................................. 14
5.
Importation of Controlled Substances: 21 USC § 952(a)................................................................ 15
6.
Distribution or Manufacture of Drugs Near a School: 21 USC § 860 ............................................. 15
7.
Use of a Juvenile to Commit a Drug Trafficking Offense: 21 USC § 861 ..................................... 16
8.
Misprision of Felony: 18 USC § 4 .................................................................................................. 16
B.
PENALTY PROVISIONS .................................................................................................................. 17 1.
Drug Quantity and Type: Apprendi v. New Jersey & Alleyne v. United States ............................. 17
2.
Relevant Conduct ............................................................................................................................ 19
3.
Statutory Minimums........................................................................................................................ 23
4.
Safety Valve .................................................................................................................................... 25
5.
Multiple Object Conspiracies .......................................................................................................... 27
6.
Statutory Enhancements .................................................................................................................. 28
III. FIREARMS ............................................................................................................................................ 30 A.
COMMON FIREARMS CRIMES...................................................................................................... 30 1.
Felon in Possession: 18 USC § 922(g)(1) ...................................................................................... 30
2.
Unlawful User or Addict of Controlled Substance: 18 U.S.C. § 922(g)(3) .................................... 37
3.
Person under Protective Order: 18 USC § 922(g)(8)...................................................................... 38
4.
Person convicted of Misdemeanor Crime of Domestic Violence:18 USC § 922(g)(9) .................... 40
5.
Alien Illegally or Unlawfully in the United States:18 USC § 922(g)(5) ......................................... 42
6.
Receipt of Firearm by Person under Indictment: 18 USC § 922(n) ................................................ 43
7.
Carry or Use of Firearm During Violent or Drug Crimes: 18 USC § 924(c) .................................. 43
8.
Exporting Firearms Without A License: 22 USC § 2778(c) .......................................................... 48
9.
Dealing in Firearms Without a License: 18 U.S.C. § 922(a)(1)(A) ................................................ 49
10. Firearm with Removed, Altered, or Obliterated Serial Number: 18 USC § 922(k)……................ 49 11. False Statement to Firearms Dealer: 18 USC § 922(a)(6) ............................................................... 50 12. Unlawful Sale or Disposition of Firearm: 18 USC § 922(d) ........................................................... 51 13. Receiving or Possessing Unregistered Firearms: 26 USC § 5861(d) .............................................. 51 B.
SELECTED PENALTY PROVISIONS ............................................................................................. 52 1.
Armed Career Criminals: 18 USC § 924(e). ................................................................................... 52 2
2.
Carry or Use of Firearm During Violent or Drug Crimes: 18 USC § 924(c) .................................. 59
IV. IMMIGRATION ..................................................................................................................................... 61 A.
COMMON IMMIGRATION OFFENSES ......................................................................................... 61 1.
Illegal Reentry After Removal: 8 U.S.C. § 1326(a) ........................................................................ 61
2.
Bringing in Aliens Other than Point of Entry: 8 U.S.C. § 1324(a)(1)(A)(i) .................................... 68
3.
Bringing in Aliens at Point of Entry: 8 U.S.C. § 1324(a)(2) ........................................................... 69
4.
Unlawfully Transporting Aliens: 8 U.S.C. § 1324(a)(1)(A)(ii) ...................................................... 69
5.
Concealing or Harboring Aliens: 8 USC § 1324(a)(1)(A)(iii) ........................................................ 70
6.
Illegal Entry: 8 U.S.C. § 1325 (a).................................................................................................... 71
B.
V.
PENALTY PROVISIONS .................................................................................................................. 72 1.
Illegal Reentry ................................................................................................................................. 72
2.
Harboring, Transporting, Bringing Aliens Into the United States. ................................................. 75
CONCLUSION ....................................................................................................................................... 75
3
are required. The first - drug quantity and type - must be proven with respect to the “overall conspiracy.” Fifth Circuit Pattern Jury Instructions No. 2.97 (2019); See, Turner, supra (taped phone conversations about potential drug transactions that did not materialize supported inference that conspiracy involved at least five kilograms of cocaine). United States v. Hayes, 342 F.3d 385 (5th Cir. 2003) (evidence failed to support finding that defendant was guilty of conspiracy to distribute in excess of 50 grams of crack cocaine as no evidence proved ongoing conspiracy between brothers so as to connect separate drug sales to charged conspiracy); United States v. Daniels, 723 F.3d 562 (5th Cir. 2014)(evidence failed to support conviction for 5 kilogram cocaine conspiracy where only 1.535 kilograms of cocaine was purchased or seized did not reach threshold and evidence failed to establish that other amounts were delivered or purchased). Second, the government must prove that the defendant “knew or reasonably should have known that the scope of the conspiracy involved at least the type and amount of drug necessary to establish a mandatory minimum. Fifth Circuit Pattern Jury Instructions No. 2.97 (2019); United States v. Haines, 803 F.3d 713, 741-42 (5th Cir. 2015); United States v. Benitez, 800 F.3d 243, 250 (5th Cir. 2015); United States v. Koss, 812 F.3d 460, 465 n.3 (5th Cir. 2016). The Ninth Circuit rejected this drug type/quantity intent requirement in United States v. Collazo, 984 F.3d 1308 (9th Cir. 2020) (en banc). The Supreme Court will need to resolve this significant circuit split. Thus, in the Fifth Circuit, “the operative inquiry is whether a reasonable jury could find, beyond a reasonable doubt that [the defendant] knew or reasonably should have known” that the conspiracy involved at least the type and quantity of drug required for the enhanced penalty range. United States v. Staggers, 961 F.3d 745, 762 (5th Cir. 2020)
I. INTRODUCTION This outline surveys federal crimes involving drugs, guns and aliens. Why? Because these are the types of cases that federal prosecutors choose to be their bread and butter in federal court. The outline surveys the elements of proof for these common crimes, with attention to identifying the facts most consequential to good or bad outcomes. Hopefully, the paper will provide a quick reference guide and help lawyers appointed to defend persons accused of these crimes. II. DRUGS A. COMMON DRUG CRIMES 1. Conspiracy: 21 USC § 846 a. Elements of Proof. To prove a drug conspiracy, the government must show: (1) that an agreement existed between two or more people to violate narcotics laws; (2) that the defendant knew of the conspiracy and intended to join it; and (3) that the defendant voluntarily participated in the conspiracy. United States v. Inocencio, 40 F.3d 716, 725 (5th Cir. 1994); United States v. Fierro, 38 F.3d 761, 768 (5th Cir.) cert. denied, 115 S.Ct. 1431 (1994). Drug quantity and type, when alleged in the indictment to increase the statutory range, whether minimum or maximum, create a fourth element that must be proven beyond a reasonable doubt. Apprendi v. New Jersey, 120 S.Ct. 2348 (2000); United States v. Turner, 319 F.3d 716 (5th Cir.) cert. denied, 123 S.Ct. 1939 (2003) (discussing difference between drug quantity finding necessary for guilt versus sentencing); United States v. Doggett, 230 F.3d 160 (5th Cir. 2000) (applying Apprendi to drug cases); Alleyne v. United States, 133 S.Ct. 2151 (2013)(extending Apprendi to facts that trigger mandatory minimums). In drug conspiracy, two separate findings
4
(evidence sufficient to establish defendant’s conspiracy involved at least 1 kilo of heroin where 520 grams seized from stash house, another 461 grams found in codefendants home, and defendant and codefendant used code words, “gator meat” and “alligators” to discuss ongoing heroin sales, and defendant’s discussion with other about price of 1 kilo of heroin). Insufficient evidence to prove drug quantity only affects the penalty range and does not undermine the conspiracy conviction. Daniels, 723 F.3d at 572. If there is a fact dispute as to whether the amount is above or below a baseline, you may wish to submit the higher amount in as to the “overall” element, accompanied by an instruction regarding lesser included offenses. Fifth Circuit Pattern Jury Instruction No. 1.35 (2019). Alternatively, the court may submit a special interrogatory asking the jury to indicate the total amount of controlled substance it believes the government proved beyond a reasonable doubt. See United States v. Arnold, 416 F.3d 349, 356 (5th Cir. 2005) (approving use of special interrogatory). The jury’s finding as to the “overall” conspiracy establishes the minimum and maximum statutory range. United States v. Hinojosa, 749 F.3d 407, 412-13 (5th Cir. 2014)(jury must find a fact that triggers a mandatory minimum penalty or enhances the maximum penalty, but Alleyne did not imply that traditional fact-finding on relevant conduct, to the extent it increased discretionary sentencing range for district judge under the guidelines, must be made by jurors). If multiple objects of the conspiracy are charged in the indictment, the jury need not unanimously agree on the object of the conspiracy to convict, though the type of controlled substance will affect sentencing. United States v. Patino-Prado, 533 F.3d 304 (5th Cir. 2008). Unanimous agreement will,
however, be required to establish the mandatory minimum under Apprendi. To satisfy the intent element for a conviction for conspiracy with intent to distribute a specified controlled substance, the government is required to prove only that the defendant knowingly participated in a conspiracy involving a controlled substance, so long as the defendant directly or personally participated in the drug transaction underlying the conspiracy charge. United States v. Andino, 627 F.3d 41 (2d Cir. 2010) (defendant who retrieved package of drugs addressed to him and transported it to another building directly participated in underlying conspiracy). In contrast, where the defendant does not directly or personally take part in the drug transactions underlying the conspiracy, the government must prove that the drug quantity and type were reasonably foreseeable to the defendant. Id. United States v. Culbertson, 670 F.3d 183 (2d Cir. 2012) (defendant who recruited drug courier arrested with heroin and cocaine did not directly or personally take part in drug transaction rendering factual basis inadequate to support 5 kilos of cocaine where defendant only admitted knowing about 3 kilos of cocaine); United States v. Adams, 448 F.3d 492, 499-500 (2d Cir. 2006)(defendant who only allocated he participated in conspiracy to transport marihuana failed to admit involvement in cocaine conspiracy rendering factual basis inadequate). Drug quantities attributable to a defendant for relevant conduct purposes need only be proven by a preponderance of the evidence at sentencing where the drug amount does not trigger a statutory maximum or minimum. Turner, 319 F.3d at 723; United States v. Benitez, 809 F.3d 243, 250 (5th Cir. 2015). Proof of an overt act is not required to establish a violation of the drug conspiracy statute. United States v. Shabani, 5
offense. See United States v. GutierrezFarias, 294 F.3d 657 (5th Cir.) cert. denied, 123 S.Ct. 869 (2003) (large quantity and value of marihuana, as well as apparent difficulty of secreting drugs in tires, supported inference that defendant acted pursuant to an agreement to violate the narcotics laws). The Double Jeopardy Clause allows defendants to be convicted and sentenced for both conspiracy and an attempt to deal in the same drugs. United States v. Crowder, 588 F.3d 929 (7th Cir. 2009).
115 S.Ct. 382 (1994). Among the factors to be considered in determining whether the defendant is guilty of a drug conspiracy are: concert of action, presence among or association with conspirators, and evasive and erratic behavior; however, mere presence or association alone cannot suffice to establish that a person has voluntarily joined a drug conspiracy. United States v. Tenorio, 360 F.3d 491 (5th Cir. 2004) (evidence sufficient to show that persons who took possession of drug laden RV were guilty of conspiracy, including heat runs, false statements to police about prior actions in connection with RV, and implausible denials of observed events). United States v. Bermea, 30 F.3d 1539 (5th Cir.) cert. denied, 115 S.Ct. 1825 (1994); United States v. Menesses, 962 F.2d 420 (5th Cir. 1992). Courts say knowledge will not be lightly inferred. United States v. Rosas-Fuentes, 970 F.2d 1379 (5th Cir. 1992) (nervousness of passenger, as well as implausible explanation for purpose of trip through checkpoint, insufficient to sustain conspiracy conviction); United States v. Gardea-Carrasco, 830 F.2d 41, 45 (5th Cir. 1987) (reversing conviction of defendant who loaded suitcases containing marijuana onto an airplane but was not privy to conversations concerning the conspiracy or the contents of the suit cases); United States v. Jackson, 700 F.2d 181, 185-86 (5th Cir.) cert. denied, 104 S.Ct. 139 (1983) (reversing conviction of defendant who was present when the conspirators were exchanging money for drugs because evidence was insufficient to show either defendant’s presence when the conspiracy was discussed or his knowledge of the nature or purpose of the meeting, or even that a large amount of money was present....). Circumstantial evidence of the agreement and the involvement of others may be established at even though only a single defendant is charged and convicted of the
b. Pinkerton Liability and Withdrawal. Pinkerton liability holds a conspirator responsible for offenses committed by fellow conspirators if he was a member of the conspiracy when the offense was committed and if the offense was committed in furtherance of or as a natural consequence of the conspiracy. United States v. Elizondo, 920 F.2d 1308 (7th Cir. 1990). To support vicarious liability under Pinkerton, the jury must be properly instructed in this regard. Id. United States v. Thomas, 348 F.3d 78 (5th Cir. 2003) (charge properly given and correctly stated the law); United States v. Polk, 56 F.3d 613, 619 (5th Cir. 1995). A defendant is presumed to continue involvement in a conspiracy unless the defendant makes a substantial affirmative showing of withdrawal, abandonment, or defeat of the conspiratorial purpose. United States v. Puig-Infante, 19 F.3d 929, 945 (5th Cir. 1994). Withdrawal ends a defendant’s liability for postwithdrawal crimes of co-conspirators though a defendant remains guilty of conspiracy. Smith v. United States, 133 S.Ct. 714 (2013). Withdrawal also starts the time running on when a defendant must be prosecuted, providing a statutory of limitations defense if the withdrawal occurs beyond the statute-of-limitations period. Id. To withdraw, the defendant bears the 6
burden of showing that he acted inconsistent with the object of the conspiracy and communicated this in a way that was reasonably calculated to reach the coconspirators. Puig-Infante, 19 F.3d at 945. As Justice Scalia wrote in Smith, “Having joined forces to achieve collectively more evil than he could accomplish alone, [the defendant] tied his fate to that of the group. His individual change of heart (assuming it occurred) could not put the conspiracy genie back in the bottle. We punish him for the havoc wreaked by the unlawful scheme, whether or not he remained actively involved. It is his withdrawal that must be active, and it was his burden to show that.” Smith, 133 S.Ct. at 721.
1985); United States v. Lennick, 18 F.3d 814, 819 (9th Cir.) cert. denied, 115 S.Ct. 162 (1994) (proof of sales of drugs is not proof of agreement). But see, United States v. Moody, 564 F.3d 754 (5th Cir. 2009) (holding that knowingly directing customers to drug dealer was enough to support aiding and abetting and conspiracy conviction, cooperating co-conspirator testified defendant was member of conspiracy, and defendant accepted money for steering undercover officer to drug dealer). The underlying basis for the buyer-seller defense is the proposition that a single, ordinary act which, by definition, requires two or more participants, is not conspiratorial. United States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir.) cert. denied, 493 U.S. 832 (1989). That is, a buyer’s agreement to buy and a seller’s to sell to the buyer cannot be the conspiracy to distribute, for it has no separate criminal object. United States v. Parker, 554 F.3d 230 (2d Cir. 2009) (quoting, United States v. Wexler, 522 F.3d 194, 208 (2d Cir. 2008). This also protects mere recipients of drugs from being treated with the same severity as those who sell the drugs. Id. While an isolated sale will not suffice, more sales may. United States v. Jones, 969 F.3d 192 (5 th Cir. 2020)(affirming sufficiency of factual basis to support guilty plea in conspiracy to possess to distribute one kilo of heroin where sales of 1 gram quantities occurred over course of conspiracy that lasted nearly three years). An ongoing pattern of drug transactions can meet the agreement element. Compare, United States v. Turner,319 F.3d 716 (5th Cir.) cert. denied, 123 S.Ct.1939 (2003) (taped phone conversations of numerous requests for cocaine provided sufficient proof of illegal agreement and participation in it); with, United States v. Hayes, 342 F.3d 385 (5th Cir. 2003) (jury finding that drug distribution defendant was connected to his brothers second sale to informant, thus
c. The Agreement. The illegal agreement lies at the heart of a conspiracy. Often an array of substantive illegal acts are carried out in furtherance of the overall scheme or agreement. United States v. Pressley, 469 F.3d 63, 66 (2d Cir. 2007). Because a conspiracy is a single, unified crime, its violation can involve an aggregation of numerous subsidiary transactions. Id. Hence, an agreement that includes numerous drug deals can translate into a higher statutory penalty range. Id. The element of agreement is not satisfied by showing a mere buyer-seller relationship between the alleged coconspirators. See, United States v. Scroggins, 379 F.3d 233, 263 (5 th Cir. 2004); United States v. Brown, 726 F.3d 993 (7th Cir. 2013)(discussing issues related to buyer-seller jury charge and its use as a defense to conspiracy); United States v. Goines, 988 F.2d 750 (7th Cir.) cert. denied, 114 S.Ct. 241 (1993); United States v. Smith, 34 F.3d 514 (7th Cir. 1994). Moreover, merely helping a willing drug buyer locate a willing drug seller is insufficient to establish a conspiracy. See United States v. Tyler, 758 F.2d 66 (2d Cir.
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importance on a single fact may oversimplify the analysis. The Seventh Circuit issued a new jury instruction in 2012 advancing a totality of circumstances approach to aid jurors in drawing the line between an agreement to enter into a drug distribution conspiracy and an agreement to enter in a mere buyer seller relationship. United States v. Brown, 726 F.3d 993 (7th Cir. 2013). The instruction uses open ended phrases to encourage a totality of circumstances, case-specific analysis regarding the various factors to be considered. Finally, a conspiracy is not proven by mere, albeit intimate, association. Familial relationship, like mere knowing presence, alone, will not establish participation in a conspiracy; however, when combined with other circumstantial evidence, it may be enough. United States v. Broussard, 80 F.3d 1025, 1031 (5th Cir.) cert. denied, 117 S.Ct. 264 (1996).
aggregating sales to in excess of 50 grams, was not supported by evidence as there was no evidence that brothers had an ongoing conspiracy). Such an ongoing relationship shows that the transferor and transferee share an intent that further transfers occur, which is critical to proving the existence of a conspiracy between both. United States v. Hawkins, 547 F.3d 66 (2d Cir. 2008). Drawing a line between a single, large conspiracy (or agreement) and several smaller conspiracies can be vexing. Some courts look to whether the proof shows that the defendants intended to act together for their shared mutual benefit within the scope of the charged conspiracy. United States v. Caldwell, 589 F.3d 1323 (10th Cir. 2009). Such inter-dependence may be shown through a shared economic stake in the outcome of a drug deal. Id. Sharing a common supplier may not be enough to establish the interdependence necessary to prove that a conspiracy existed among all the parties. Id. See also, United States v. Pressler, 256 F.3d 144 (3d Cir. 2001). The Fifth Circuit does not require a buyer/seller instruction so long as the instruction given by the trial court accurately reflects the law of conspiracy. United States v. Asibor, 109 F.3d 1023, 1034-35 (5th Cir. 1997). Providing drugs on credit can suffice to establish a conspiracy between the two actors. United States v. Hamilton, 587 F.3d 1199, 1210-11 (10th Cir. 2009). In United States v. Long, 748 F.3d 322 (7th Cir. 2014), the court gave little weight to a cooperating defendant’s testimony for the government that two of the charged co-conspirators were really customers and not members of the drug distribution conspiracy, noting that the “legal definition of a conspirator is not the same as a street definition.” In Long, because the defendants enjoyed an ongoing wholesale relationship and benefitted from reduced prices, the relationship was deemed conspiratorial. The issue can be complicated and placing decisive
2. Possession with Intent to Distribute: 21 USC § 841 a. Elements of Proof. To prove possession with intent to distribute drugs, the government must show beyond a reasonable doubt the defendant knowingly possessed a controlled substance, constructively or actually, and that he knowingly intended to distribute it. United States v. Moreno-Hinojosa, 804 F.2d 845, 847 (5th Cir. 1986). To prove aiding and abetting, the government is required to show that the defendant (1) associated with a criminal venture; (2) purposely participated in that venture; and (3) acted in such a way as to make the venture successful. United States v. QuirozHernandez, 48 F.3d 858, 871 (5th Cir. 1995); United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir.) cert. denied, 115 S.Ct. 2014 (1995); United States v. Moody, 564 F.3d 754 (5th Cir. 2009) (knowingly directing customers to drug dealer was 8
enough to support conviction). One may “attempt” to aid and abet the possession of a controlled substance. United States v. Partida, 385 F.3d 546 (5th Cir. 2004) (conviction of corrupt police officers paid by informant to escort vehicle that contained fake drugs upheld as attempt). Proof of actual or constructive possession of a controlled substance is not required; “aiding and abetting merely requires that the defendant’s association and participation in the venture were calculated to bring about the venture’s success.” United States v. Scott, 892 F.3d 791 (5th Cir. 2018). Drug quantity and type provide a fourth element when the statutory range is affected. Apprendi v. New Jersey, 120 S.Ct. 2348 (2000) (this fourth element is discussed in the penalty section of the outline.); United States v. Doggett, 230 F.3d 160 (5th Cir. 2000) (applying Apprendi to drug cases); Alleyne v. United States, 133 S.Ct. 2151 (2013) (mandatory minimums). A fact dispute regarding drug type and quantity may require a lesser included offense instruction or a special interrogatory that calls for the jury to write in the total drug type and amount. United States v. Gonzalez, 841 F.3d 339, 353-54 (5th Cir. 2016): United States v. Arnold, 416 F.3d 349-356 (5th Cir. 2005) (approving use of special interrogatory). The government is not required to prove that a defendant had knowledge of the particular quantity and type of drug underlying the offense. United States v. Gamez-Gonzalez, 319 F.3d 695 (5th Cir) cert. denied, 123 S.Ct. 2241 (2003) (rejecting that Apprendi required proof of knowledge of drug type and quantity).
923. The defendant must act to advance the venture. United States v. Penaloza-Duarte, 473 F.3d 575 (5th Cir. 2006) (reversing conviction of passenger who, though admitting knowledge of methamphetamine in vehicle, claimed he was working undercover and did not want to divulge undercover role to arresting officer in presence of driver). Proof to establish a defendant aided and abetted a drug transaction often overlaps with proof that a defendant joined a conspiracy. See QuirozHernandez, 48 F.3d at 871. Both crimes require the defendant to knowingly and intentionally join a criminal venture whose purpose is to distribute narcotics. United States v. Flores-Chapa, 48 F.3d 156 (5th Cir. 1995)(evidence failed to prove aiding and abetting possession where defendants beeper contained phone numbers to codefendants motel room and pager, defendant was found in possession of 11.8 grams of cocaine [personal use], and only other evidence was a nine-year old prior conviction for possession, even though agent opined that defendant was overseer of ongoing delivery of 40 kilograms of cocaine). Awareness of the drug’s existence and location is not enough unless the defendant intended to possess them. United States v. Vasquez-Chan, 978 F.2d 546 (9th Cir. 1992) (house-keeper of stash house not guilty); United States v. Jenkins, 90 F.3d 814 (3d Cir. 1996) (insufficient where defendant was recent guest dressed in boxers next to table with scales). c. Possession. Possession is proven through demonstration of ownership or dominion or control over either the substance in question or the premises where they were found; the government must link the accused to the contraband. United States v. Benbrook, 40 F.3d 88 (5th Cir. 1994); United States v. Brown, 3 F.3d 673 (3d Cir.) cert. denied, 114 S.Ct. 615 (1993) (although evidence showed defendant lived at house
b. Association/Participation. A person associates with a criminal venture if he shares the principal actor’s criminal intent, and a person participates in the crime if he acts in an affirmative manner designed to aid in the venture. Jaramillo, 42 F.3d at
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and had some control over house and knew of drugs presence, it failed to support inference that she had dominion and control over the drugs); United States v. Glasgow, 658 F.2d 1036 (5th Cir. 1981) (failure to prove ownership, dominion, or control over plane or home, even though defendant’s personal papers found in residence where marihuana recovered). United States v. Hernandez-Bautista, 293 F.3d 845 (5th Cir. 2002) (evidence insufficient to support conviction for aiding and abetting possession of marihuana that was found stashed by border patrol agents three miles away from where defendants were arrested, given difficulty for defendants to have traversed rough terrain separating them from drugs, red marks on defendants backs were as consistent with marks that would have been left from similar bag in their possession that did not contain marihuana, and footprints near marihuana, though similar to defendants shoes, were common). Similarly, in cases involving passengers of motor vehicles, the government must establish the passenger’s power to control the drugs or the vehicle in which the drugs are concealed. United States v. Rosas-Fuentes, 970 F.2d 1379, 1382 (5th Cir. 1992); United States v. Moreno-Hinojosa, 804 F.2d 845 (5th Cir. 1986) (truck passengers conviction reversed even though defendant had $200 in cash and misrepresented relationship to driver after arrest because no evidence connected passenger to marihuana); United States v. MacPherson, 664 F.2d 69 (5th Cir. 1981)(conviction of passenger on board vessel carrying marihuana reversed).
(2003). Apprendi left this well-established interpretation of the intent element intact. Id. When the substance is an “analogue,” the knowledge requirement is met if the defendant knew that the substance was controlled under the Controlled Substance Act or the Analogue Act, even if he did not know its identity. McFadden v. United States, 135 S. Ct. 2298 (2015). The knowledge requirement is also met if the defendant knew the specific features of the substance that make it a “controlled substance analogue.” Id. Ordinarily, knowledge of the existence of drugs may be inferred from control over the location in which they are found. United States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999). Suspicious circumstances do not necessarily establish that a defendant knew a controlled substance was the object of the criminal transaction. See e.g., United States v. Cartwright, 359 F.3d 281 (3d Cir. 2004) (government failed to prove that defendant who appeared to be acting as a lookout during drug deal knew that deal involved drugs, even though defendant was seen conversing with one of the drug dealers prior to a transaction, possessed a firearm, a cell phone, and a two-way text messaging device identical to the sellers); United States v. Cruz, 363 F.3d 187 (2d Cir. 2004) (even though defendant knew some crime was being committed, evidence failed to establish defendant’s knowledge of drug deal, where he was hired to assault drug dealers enemy, then was asked to watch someone’s back when drug deal was to take place); United States v. Salmon, 944 F.2d 1106 (3d Cir.) cert. denied, 112 S. Ct. 1213 (1991) (even though defendant performed surveillance, spoke to codefendants, possessed surveillance equipment upon arrest, no evidence presented to show that defendant knew controlled substance was involved); United States v. Stewart, 145
d. Knowledge. The knowledge element requires proof that the defendant was aware he possessed a controlled substance, not that he knew the type or quantity of controlled substance possessed. United States v. Gamez-Gonzalez, 319 F.3d 695 (5th Cir.) cert. denied, 123 S.Ct. 2241
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F.3d 273 (5th Cir. 1998) (evidence failed to support finding of defendants knowing participation in driving companions possession with intent to distribute cocaine, even though defendant driver was nervous and police found two handguns under front seat, where nervousness did not exceed that expected during roadside encounter, vehicle did not belong to driver, guns were not in plain view, drugs were in companion’s underwear, and taped conversation between defendant and companion in back seat of patrol car was ambiguous). When the drugs are secreted in a hidden compartment, courts require additional circumstantial evidence that is suspicious in nature or demonstrates guilty knowledge. United States v. Ortega Reyna, 148 F.3d 540, 544 (5th Cir. 1998). The Fifth Circuit requires this additional evidence because it is at least a fair assumption that a third party might have concealed the controlled substance in the [compartment, luggage, vehicle...] with the intent to use the unwitting defendant as the carrier in a smuggling enterprise. Id. quoting, United States v. Diaz-Carreon, 915 F.2d 951, 953 (5th Cir. 1990)). In addition, the Fifth Circuit jury charge explains that when drugs are hidden in a vehicle, “The government may not rely only upon the defendant’s ownership and control of the vehicle to prove the defendant knew that he [she] possessed a controlled substance. While these are factors you may consider, the government must prove that there is other evidence indicating the defendant’s guilty knowledge of a controlled substance hidden in the vehicle. Fifth Circuit Pattern Jury Charge 2019, No. 1.33 (Note). This instruction follows United States v. Pennington, 20 F.3d 593, 598 (5th Cir. 1994). High anxiety and unusually suspicious circumstances may provide the proof. United States v. Martinez-Lugo, 411 F.3d 597 (5th Cir. 2005) (evidence sufficient
where 772 kilos of marihuana found hidden in tires of truck driven across Texas/Mexico border, driver looked scared and shocked, was nervous earlier when he acquired insurance for truck, possessed $800 at arrest, gave false documentation to insurance provider, and had altered vehicle’s appearance to make it seem to belong to a reputable business). The high value of drugs possessed can provide circumstantial evidence of knowledge, as a jury may infer that such expensive cargo would not be entrusted to a stranger in a drug trafficking scheme. United States v. Villareal, 324 F.3d 319 (5th Cir. 2003). The knowledge element must connect to drug trafficking. United States v. Cartwright, 359 F.3d 281 (3d Cir. 2004) (too much left to be inferred to prove that defendant who appeared to be acting as a lookout for a drug deal knew the deal involved drugs, even though he possessed a firearm, a cell phone, and a two-way text messaging device identical to the sellers); United States v. Cruz, 363 F.3d 187 (2d Cir. 2004) (not enough proof that defendant knew transaction involved drugs even though defendant was hired to watch someone’s back and fact/expert witness testified term was slang for being a lookout in drug deal). In United States v. Reveles, 190 F.3d 678 (5th Cir. 1999) the court found the evidence insufficient to establish that the defendant knew that drug-filled boxes he delivered for his brother to a shipping company contained marijuana. The court found compelling that 1) the shipment bore the defendant’s name, address, and phone number, 2) the shipment bore no outward indication that it contained marijuana, 3) the defendant did not avoid the presence of customs officials and their drug dogs, 4) no evidence was presented to show that the defendant knew his brother, a codefendant, was involved in drug trafficking, 5) the defendant gave a complete statement concerning his involvement in the brother’s 11
preparation, cross examination, and closing argument. Defense counsel can use the rule and its simple teaching to argue that the presumption of innocence prevails where competing reasonable inferences balance out and therefore fail to prove guilt beyond a reasonable doubt. Whether the equipoise rule’s disappearance in Vargas-Ocampo will impact on the precedential value of Reveles, Ortega-Reyna, Penaloza-Duarte, and Stewart remains to be seen. Would those cases have been decided differently without the equipoise rule formulation of reasonable doubt?
business, and 6) the brother only paid the defendant $50 per delivery, Aa sum clearly lacking in disproportion to the task at hand....Reveles, 190 F.3d at 686. The Reveles court found unconvincing the government’s argument that the suspicious in which the defendant handled the deliveries was sufficient to establish guilty knowledge. [“S]uspicion even if focused on narcotics -- is not enough; it does not tie [the defendant] to knowledge that drugs were involved beyond a reasonable doubt.” Id. At 688. The Reveles court noted that the suspicious shipments could easily have involved other contraband goods, such as illegally-imported ceramics....” Some of the cases cited above, Reveles, Ortega-Reyna, Penaloza-Duarte, and Stewart, now bear Westlaw’s red flag of abrogation as a result of United States v. Vargas-Ocampo, 747 F.3d 299 (5th Cir. 2014) (en banc), cert. denied, 135 S.Ct. 170 (2014). In Vargas-Ocampo, the Fifth Circuit decided it would no longer apply the “equipoise rule” when examining the sufficiency of evidence supporting a criminal conviction. The “equipoise rule” stated that “when the evidence is essentially in balance, a reasonable jury must entertain a reasonable doubt.” In Vargas-Ocampo, the Fifth Circuit found the rule unhelpful to applying the Supreme Court standard for sufficiency of evidence review set forth in Jackson v. Virginia, 99 S.Ct. 2781 (1979). The well-established Jackson standard, of which the “equipoise rule” was a formulation, called for appellate courts to affirm convictions “if, after viewing the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id., at 2789 (emphasis in original). The Fifth Circuit’s rejection of the equipoise rule formulation does not diminish its utility as a guide to trial
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e. Distribution. Sharing drugs with another may constitute distribution. United States v. Washington, 41 F.3d 917 (4th Cir. 1994). Possession of a quantity of narcotics that is so large that it could not be used by the possessor alone supports a conclusion that the drugs were possessed for distribution. United States v. Mendoza, 722 F.2d 96, 103 (5th Cir. 1983). Conversely, possession of small amounts of controlled substance will not sustain a conviction for possession with intent to distribute. Turner v. United States, 396 U.S. 398, 423 (1970) (small quantity of cocaine which could be for the defendants personal use as well as for sale does not support inference of distribution); United States v. Hunt, 129 F.3d 739 (5th Cir. 1997) (just 7.998 grams of cocaine base was insufficient to prove drugs possessed for distribution); United States v. Skipper, 74 F.3d 608 (5th Cir. 1996) (5th Cir. 1996) (as a matter of law, mere possession of 2.89 grams of crack cocaine insufficient to prove intent, despite testimony indicating that amount could suggest drug dealing, because it was not clearly inconsistent with personal use). The government must elicit testimony that the quantity of drugs possessed was consistent with an intent to distribute the drug or risk an affirmance of a trial court’s verdict of acquittal. United States v. Igbinosun, 528 F.3d 387 (5th Cir. 2008) (58 pellets of
United States v. Rivera, 775 F.2d 1559, 1562 (11th Cir.) cert. denied, 475 U.S. 1051 (1986). In Gonzalez-Rodriguez, supra, the Fifth Circuit concluded that informing another coconspirator about the arrest of another and the seizure of drugs, without more, did not constitute facilitation. Whether the defendant placed the call or received it makes no difference under the statute. United States v. Davis, 929 F.2d 554, 559 (10th Cir. 1991).
heroin in body carrier). 3. Communication Facility (Phone Count): 21 USC § 843 (b) a. Elements of Proof. The popular name for this charge is a phone count because telephones frequently serve as the communication facility involved. To prove a violation of § 843 (b), the government must show (1) knowing or intentional (2) use of a communication facility any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio, and all other means of communication (see § 843 (b))] (3) to facilitate the commission of a drug offense. United States v. Rey, 641 F.2d 222, 224 n. 6 (5th Cir.) cert. denied, 454 U.S. 861 (1981).
c. The Underlying Offense. The underlying offense need only be proven by a preponderance of evidence, even though not separately charged. United States v. Rey, 641 F.2d 222, 224 n. 6 (5th Cir.) cert. denied, 454 U.S. 861 (1981). The underlying offense must be a felony, so if the phone is used to obtain drugs for personal use the statute is not violated. United States v. Baggett, 890 F.2d 1095, 1097 (10th Cir. 1989).
b. Facilitation. The facilitation element is established by showing that the phone call satisfied the common meaning of facilitate - that is, to make easier or less difficult, or to assist or aid. United States v. Gonzalez-Rodriguez, 966 F.2d 918, 921 (5th Cir. 1992)(quoting, United States v. Phillips, 664 F.2d 971, 1032 (5th Cir. Unit B 1981) cert. denied, 457 U.S. 1136 (1982), superceded on other grounds). It is enough if the phone call facilitates the defendant’s or another’ s possession or distribution of drugs. Id. Directing a co-conspirator to act in furtherance of the conspiracy satisfies this element. United States v. Townsend, 924 F.2d 1385, 1414 (7th Cir. 1991) (husband telling wife to separate everything to prepare for drug sales). Even providing assurances about the security of a drug stash being guarded by underlings has been held to be sufficient. Phillips, 664 F.2d at 1032. Though broadly construed, the facilitation element does not include using a phone to ascertain the status of a drug transaction.
d. Charge Bargaining. In cases where the government may have proof problems or desire the defendant’s cooperation in exchange for a reduced charge, phone counts provide a useful way to limit exposure. The maximum penalty, regardless of the type or amount of drug involved, is four years custody, and only one year of supervised release. If the defendant has a prior federal drug conviction and the government serves an information prior to plea, pursuant to § 851, the maximum penalty is eight years custody. Section 2D1.6 of the Guidelines fixes punishment at the same level as drug distribution or conspiracy offenses. Thus, frequently, a defendant who is sentenced for a phone count will receive the four-year statutory maximum because the applicable guideline range cannot exceed the statutory maximum. U.S.S.G. § 5G1.1 (a). This assumes, of course, only one phone count conviction. Each use of a phone is a 13
separate violation of law and multiple convictions would expand the maximum punishment available to the sentencing judge, permitting the court to order consecutive sentences as necessary to achieve the total guideline punishment. U.S.S.G. §5G1.2(d). If § 5G1.1 (a) nullifies the 3E1.1 adjustment for acceptance of responsibility because even with the offense level reduction the guideline range still exceeds the statutory maximum, a downward departure is permissible to reduce the defendant’s sentence for pleading guilty. United States v. Rodriguez, 64 F.3d 638 (11th Cir. 1995) (reversing case because judge mistakenly believed a downward departure was impermissible).
States v. Lucien, 61 F.3d 366 (5th Cir. 1995), the Fifth Circuit found reversible error in the trial court’s failure to submit the lesser charge of simple possession. The facts in Lucien showed: 16.48 grams of cocaine base found in apartment in which defendant and another were found, officer’s testimony indicated that while such amount was distributable, it was not so large that it could not be for personal use, presence of plastic bag and foil wrappers in apartment was not inconsistent with possession for personal use, the $1,227 in cash found in apartment could have been earned other than from selling cocaine base, and defendant could have had numerous reasons for keeping the three guns found in the apartment. But see, United States v. Puckett, 404 F.3d 589 (7th Cir. 2005) (proper to refuse charge where defendant possessed 63 grams of powder cocaine and failed to present any direct evidence that he was a cocaine user). This issue may come up in meth cases, where the substance possessed, though meeting the statutory definition of Aa mixture or substance containing methamphetamine, is not consumable in its recovered form. United States v. Gentry, 555 F.3d 659 (8th Cir. 2009) (defendant entitled to simple possession instruction where meth was in toxic liquid solution in a pickle jar). Simple possession is not, however, a lesser included offense to conspiracy to possess with intent to distribute, 21 U.S.C. § 846, or distribution, 21 U.S.C. § 841. See United States v. Colon, 268 F.3d 367 (6th Cir. 2001); United States v. Horn, 946 F.2d 738 (10th Cir. 1991); United States v. Gore, 154 F.3d 34 (2d Cir. 1998) (noting that distribution statute can be violated without possession of drugs, such as arranging for transfer of drugs, or negotiating price).
4. Simple Possession: 21 USC § 844 a. Elements of Proof. The offense of simple possession, a misdemeanor, requires the government to prove only that the defendant knowingly or intentionally possessed a controlled substance. The penalty for violating this law is imprisonment for up to one year. If the controlled substance is flunitrazepam, the maximum punishment is three years imprisonment. A prior drug conviction, whether felony or misdemeanor, however, will trigger a minimum 15-day jail sentence and double the maximum punishment to two years. Two or more prior drug convictions will result in a 90-day minimum jail sentence and a three-year maximum term of confinement. The Fair Sentencing Act of 2010 did away with the 5-year minimum sentence that applied to simple possession of at least 5 grams of crack cocaine. b. Lesser Included Offense: Simple Possession. Simple possession under § 844(a) is a lesser included offense of § 841 (a)(1) when the intent to distribute is lacking. United States v. Hunt, 129 F.3d 739 (5th Cir. 1997). For example, in United
c. Special Probation. A person found guilty of violating 21 U.S.C. § 844, who has not, prior to the commission of the offense, been convicted of a controlled 14
substance crime (either State or Federal), and has not before been the subject of special probation under 18 U.S.C. § 3607, may be placed on probation for a term not exceeding a year without the court entering Aa judgment of conviction. See 18 U.S.C. § 3607(a). At any time before expiration of the term of probation, the court may dismiss the proceedings and discharge the person from probation. The records of this type of disposition are non-public and are maintained by the Department of Justice solely to determine if the person qualifies for this type of disposition. Moreover, if the person subject to this disposition was less than 21 years old at the time of the offense, the court shall enter an expungement order upon the application of such person. The effect of this order is to restore such person ... to the status he occupied before such arrest. The person can deny the arrest associated with the drug charge without fear of committing perjury or false swearing. 18 U.S.C. § 3607(c).
States was the final or intended point of distribution. United States v. Ojebode, 957 F.2d 1218 (5th Cir.) cert. denied, 507 U.S. 923 (1993). While evidence may be sufficient to show conspiracy and possession with intent to distribute, it may still remain insufficient concerning proof of intent to bring drugs into the United States. See, e.g., United States v. Paul, 142 F.3d 836 (5th Cir. 1998). 6. Distribution or Manufacture of Drugs Near a School: 21 USC § 860 a. Elements of Proof. The government must prove that the defendant violated §841(a) by (1) distributing, manufacturing, or possessing with intent to distribute, (2) a controlled substance, (3) within one thousand feet of (4) the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, or a playground, or housing facility owned by a public housing authority, or within 100 feet of a public or private youth center, public swimming pool, or video arcade facility. Evidence must be presented to establish the qualifying characteristics of the real property at issue. United States v. Alvarez, 451 F.3d 320 (5th Cir. 2006) (DEA agent’s testimony that residence where drug trafficking occurred was within 1000 feet of city park failed to show that park qualified as a playground as Congress defined term). A conviction under this statute doubles the penalties. It results in (1) twice the maximum punishment authorized for violating the underlying drug statute, (2) at least twice any term of supervised release, (3) a fine of up to twice that which would have been authorized, and (4) a one-year minimum term of imprisonment. Because this offense does not appear on the list of safety valve eligible crimes, see USSG § 5C1.2 (a), it does not allow for a reduced sentence under
5. Importation of Controlled Substances: 21 USC § 952 (a) a. Elements of Proof. This offense requires the government to prove that (1) the defendant intentionally brought a quantity of controlled substance into the United States from a place outside the United States; (2) that the defendant knew the substance he was bringing was a controlled substance; and (3) that the defendant knew the substance would enter the United States. United States v. Crooks, 83 F.3d 103, 106 (5th Cir. 1996); United States v. Casilla, 20 F.3d 600, 603 (5th Cir. 1994) cert. denied, 513 U.S. 892 (1994). b. Importation. The importation element sets this crime apart. It is satisfied upon a showing that the defendant knowingly entered the United States with the drugs, regardless of whether the United
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that an accomplice employed the juvenile. Id. at 562. In Lombardi, the Fifth Circuit reversed the defendant’s conviction because insufficient evidence demonstrated the defendant’s knowledge about a juvenile’s assisting a codefendant wrapping marihuana at a stash house. Id. In United States v. Alarcon, 261 F.3d 416 (5th Cir. 2001), the Fifth Circuit found evidence of the defendant’s use of a juvenile lacking, where drugs were found in a vehicle that contained minor children, even though the government presented expert testimony that drug smugglers use minors to try to avoid detection by appearing to be a family, and the explanation given by the driver when arrested was not plausible. The Alarcon court reversed only the conviction of the defendant who did not put on a case-inchief. Id. at 422-423. The remaining defendants did present a defense, with conflicting explanations for the child’s presence. Id. By doing so, the court found that the defendants filled the evidentiary gap and enabled the jury to conclude that the intent element was satisfied. Id. This offense does not qualify for safety-valve punishment below a mandatory minimum sentence. See U.S.S.G. § 5C1.2(a). Like the schoolyard distribution statute, this offense falls outside the reach of the safety valve guideline, USSG § 5C1.2 (a).
the safety-valve provision of the sentencing guidelines. United States v. Phillips, 382 F.3d 489 (5th Cir. 2004). b. Substantive Offense Not Penalty Enhancer. In United States v. Chandler, 125 F.3d 892 (5th Cir. 1997), the Fifth Circuit held that 21 U.S.C. § 860 was a separate substantive offense, rather than merely a sentencing enhancer of § 841(a)(1); United States v. Scott, 987 F.2d 261, 266 (5th Cir. 1993) (holding § 841(a) to be lesser offense included within § 860) Moreover, a defendant convicted under § 841(a)(1) cannot be sentenced under the schoolyard sentencing guideline, U.S.S.G. § 2D1.2, which provides for a 2-level increase. Chandler, 125 F.3d at 898. 7. Use of a Juvenile to Commit a Drug Trafficking Offense: 21 USC § 861 a. Elements of Proof. To establish the commission of this offense, the government must show that an adult, at least eighteen years of age, (1) knowingly and intentionally (2) employed, hired, used, persuaded induced, enticed or coerced, (3) a person younger than 18 years of age, (4) to violate federal drug laws or (5) avoid apprehension for such a violation. The law is also violated if an adult receives a controlled substance from a person younger than 18 years of age, other than an immediate family member. First offenders are punished by being subjected to twice the maximum punishment otherwise authorized for a first offense and face a minimum oneyear term of imprisonment. 21 U.S.C. § 861(b).
8. Misprision of Felony: 18 USC § 4 a. Elements of Proof. Rooted in the common law, which recognized a citizen’s duty to raise a hue and cry and report a felony to authorities, Branzburg v. Hayes, 408 U.S. 665, 696 (1972), misprision of felony was codified by Congress in 1909 and now, years later, serves as a useful plea-bargaining alternative to more serious drug charges. This is because the statutory maximum punishment for misprision is only three
b. Knowing Use of a Juvenile. The government must prove that the defendant sought to hire or employ the juvenile. United States v. Lombardi, 138 F.3d 559 (5th Cir. 1998). It is not enough, even under a theory of aiding and abetting,
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the statutory maximum punishment to three years, the misprision guideline, § 2X4.1, provides that the base offense level be 9 levels lower than the offense level for the underlying crime, but in no event less than 4 or more than 19. This added benefit, however, does not foreclose an upward departure where the defendant is deemed guilty of the underlying crime. Warters, 885 F.2d at 1275. This is because misprision is not normally committed by one of the perpetrators of the underlying offense. Id. In fact, at common law, one could not be guilty of misprision if he was accountable for the [underlying] felony as either a principal or accessory before the fact. Id. (quoting, 2 LaFave & Scott, Substantive Criminal Law, § 6.9 (b) at 175. A successful prosecution for misprision that targets one guilty of the underlying offense is almost impossible because of the defense that the failure to make known the crime was an exercise of the Fifth Amendment right to remain silent. Id. Even though this defense will be waived by a guilty plea, Davila, 698 F.2d at 719, its availability to defendants was used by the Fifth Circuit in Warters as support for finding that a defendant’s factual guilt of the concealed crime constituted an aggravating circumstance not accounted by the Guidelines. Id. Notwithstanding the risk of upward departure, the reward of a reduced statutory maximum will almost always make such a plea offer beneficial.
years. To prove the offense, the government must establish the following elements: (1) the defendant had knowledge that a felony was committed; (2) the defendant failed to notify authorities of the felony; and (3) the defendant took an affirmative step to conceal the felony. United States v. Adams, 961 F.2d 505 (5th Cir. 1992); United States v. Warters, 885 F.2d 1266 (5th Cir. 1989). b. Act of Concealment. Satisfying the third element, proof of a positive act of concealment, may be problematic when trying to arrange a plea to a reduced charge. See, e.g., Adams, 961 F.2d at 506 (criminal information which failed to allege specific facts of concealment was not adequate to sustain guilty plea, though error harmless in light of facts set forth in PSR which showed that defendant shielded drug trafficker’s true ownership of house bought with drug proceeds by making payments for house in her name). Courts held evidence of concealment sufficient in the following cases: United States v. Davila, 698 F.2d 715 (5th Cir. 1983) (defendant agreed to hold money that was to be used to pay off a perjurer); United States v. Hodges, 566 F.2d 674 (9th Cir. 1977) (defendant lied to authorities about whereabouts of child kidnap victim); United States v. Stuard, 566 F.2d 1 (6th Cir. 1977) (defendant lied to authorities about location where whiskey was stolen from truck which diverted suspicion from thief); United States v. Gravitt, 590 F.2d 123 (5th Cir. 1979) (defendant drove robbers to stash site where they recovered loot and clothing worn during crime); United States v. King, 402 F.2d 694 (9th Cir. 1968) (defendant possessed money stolen during a bank robbery).
B. PENALTY PROVISIONS 1. Drug Quantity and Type: Apprendi v. New Jersey & Alleyne v. United States Penalty ranges in federal drug cases are fixed by reference to the type and quantity of drugs. In Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), the Supreme Court held that [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a
c. Charge Bargaining. Like a phone count, misprision of a felony offers a helpful plea alternative to a conviction for a felony drug crime. In addition to lowering
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jury, and proved beyond a reasonable doubt. Id. at 2362-63. See United States v. Doggett, 230 F.3d 160 (5th Cir. 2000) (under Apprendi, drug quantity is element that must be alleged, proven and/or admitted, to set statutory maximum). The same holds true for facts that increase the mandatory minimum. Alleyne v. United States, 133 S. Ct. 2151 (2013). Influencing a favorable drug quantity finding plays a critical role in providing effective representation to a client. See United States v. Scroggins, 379 F.3d 233 (5th Cir. 2004) (witnesses inconsistent and contradictory testimonies about drug amounts involved required district court to explain rationale in the record for why one version, over another version, was relied upon to fix penalty). Apprendi violations occur only if the operative drug facts increase the penalty for a crime beyond the statutory maximum sentence for the crime alleged in the indictment. United States v. Meshak, 225 F.3d 556 (5th Cir. 2000) (remanding defendant’s life sentences). Such facts must be proven to the jury and treated as essential elements of the offense, to be proven beyond a reasonable doubt. Meshak, 225 F.3d at 577-78. The drug quantity need not be alleged with detail. An indictment that alleges a drug quantity range, as opposed to a precise amount of drugs, is sufficient to satisfy Apprendi. United States v. DeLeon, 247 F.3d 593 (5th Cir. 2001). Even indictments that are silent as to drug quantity are not fundamentally defective. United States v. Salazar-Flores, 238 F.3d 672 (5th Cir. 2001). An indictment’s silence about drug quantity caps the punishment available upon conviction for whatever would be the maximum punishment for possessing the smallest drug quantity cognizable for that drug. Doggett, 230 F.3d at 165. The Apprendi analysis extends to the identity of the controlled substance. United States v. Barbosa, 271 F.3d 438, 454 (3d Cir. 2001); Horton v. United States, 244 F.3d 546, 552 (7th Cir. 2001); United States v. Robinson, 250 F.3d 527, 529 (7th Cir. 2001). Drug identity therefore converts to an element when its changing nature results in a sentence
beyond the otherwise relevant statutory maximum. Barbosa, 271 F.3d at 457. It bears noting that drug identity would not be an element in those cases where the sentence imposed is below the lowest catchall maximum of one year found in § 841(b)(3), which covers unspecified amounts of Schedule V controlled substances. Id. Apprendi does not apply retroactively to cases that had become final when it was decided. United States v. Brown, 305 F.3d 304 (5th Cir. 2002) (holding that because Apprendi was not a watershed new rule that improved accuracy of determining guilt/innocence, it did not meet the Teague exception to retroactivity bar). Apprendi was extended to mandatory minimums in Alleyne, which overruled United States v. Harris, 122 S.Ct. 2405 (2002) (fact of brandishinga firearm which triggers a 7-year minimum sentence under 18 U.S.C. § 924(c) could be found by judge under preponderance of evidence standard without violating defendant’s constitutional rights). As Alleyne was an extension of the Apprendi doctrine, courts have been applying the same analysis and standards to Alleyne errors as have been applied to Apprendi errors. United States v. Delgado-Marrero, 744 F.3d 167, 185 (1st Cir. 2014). Alleyne’s new rule applies retroactively to all cases pending on direct review or not yet final. Id. (citing, Griffith v. Kentucky, 107 S. Ct. 708 (1987)). Juries must be instructed and find that the offense involved a drug that exceeded a particular quantity beyond a reasonable doubt to trigger the corresponding mandatory minimum sentence. Id. at 186. It makes no difference that the statutory minimum falls within the range of punishment that would otherwise be available under the guidelines. Id. Apprendi and Alleyne therefore make drug quantity an element for purposes of aggravating penalties under §§ 841 (b)(1)(A) and 841 (b)(1)(B), but not an element necessary for conviction for the “core” offenses under §§ 841 (a) and 846. Id. Alleyne thus draws a line between “core” crimes and “aggravated crimes.” United States v. Daniels, 723 F.3d 562 (5th 18
Cir. 2013) (holding evidence insufficient to support conviction for five-kilogram cocaine conspiracy and remanding for resentencing under lower statutory minimum). Successful challenges based on Alleyne deficiency therefore generally only entitle a defendant to resentencing under the default penalty provision. Id. Where a general verdict is returned in a conspiracy case involving two drugs, the shorter maximum sentence should be used. United States v. Dale, 178 F.3d 429 (6th Cir. 1999). See also, United States v. Taylor, 210 F.3d 311 (5th Cir. 2000) (error, if any, resulting from government’s failure to allege drug quantity in indictment did not rise to level of plain error). The factual resume produced at a defendant’s guilty plea hearing may be used to fix the drug quantity, regardless of the quantity of drugs seized. United States v. Arnold, 148 F.3d 515 (5th Cir. 1998) (citing, United States v. Miller, 910 F.2d 1321 (6th Cir.) cert. denied, 111 S. Ct. 980 (1991)); United States v. Pressley, 469 F.3d 63 (2d Cir. 2007) (defendant’s admission during guilty plea that over 11 year period he engaged in street level sales that aggregated over one kilo of heroin sustained § 841(b)(1)(A) penalty range); United States v. Randall, 595 Fed. Appx. 454 (5th Cir. 2015) (unpublished) (defendant’s admission at plea hearing that conspiracy involved more than 5 kilograms of cocaine barred his claim, raised for first time in motion to withdraw guilty plea, that he could only be sentenced for amount attributed to him individually).
drug quantity/type determination, § 2D1.1 (c), which in turn fixes the base offense level in drug cases. It allows the sentencing range to be based on drugs that exist beyond those alleged in a count of conviction. In determining a defendant’s drug quantity under § 1B1.3, the sentencing court must consider: (1)(A) All acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and (B) in the case of jointly undertaken criminal activity ... all reasonably foreseeable acts or omissions of others in furtherance of the jointly undertaken criminal activity that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense; (2) solely with respect to offenses [that would be grouped, such as drug offense] all acts and omissions described [above] that were part of the same course of conduct or common scheme or plan as the offense of conviction; (3) all harm that resulted from such acts and omissions; and (4) any other information specified in the applicable guideline. USSG § 1B1.3 (a) (emphasis added). Amendments to § 1B1.3(a)(1)(B) that went into effect November 1, 2015, restructured it to create a clearer, three-step process for determining whether a defendant should be held accountable for the conduct of others. Revised § 1B1.3(a)(1)(B) provides that in the case of “jointly undertaken criminal activity,” the defendant is responsible for the acts and omissions of others that were – - within the scope of the jointly undertaken criminal activity; - in furtherance of that criminal activity; and
2. Relevant Conduct Even though sentencing guidelines are advisory they remain a vital part of the federal sentencing process and thus require defense counsel to be adept at their application. A correctly calculated Guideline range provides the “initial benchmark” from which reasonableness review of a federal sentence will be measured. Gall v. United States, 128 S.Ct. 586, 596 (2007). In drug cases, the relevant conduct guideline, § 1B1.3, channels the
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for each defendant involved in jointly undertaken activity. To be clear, the criminal activity that a defendant agreed to jointly undertake, and the reasonably foreseeable conduct of others in furtherance of that criminal activity, must be tailored to fit each defendant. USSG 1B1.3, cmt. n. 2. For example, in United States v. Smith, 13 F.3d 860 (5th Cir. 1994), the Fifth Circuit affirmed the district court’s determination that Smith was responsible for 5.9 grams of crack where there was evidence that she agreed to jointly participate in drug sales with others and this amount was reasonably foreseeable to her. 13 F.3d at 864-865. Yet the evidence showed that the scope of the jointly undertaken activity by Smith’s codefendant, Phillips, was for only 2 grams. Id. at 866-68. The commentary to the relevant conduct guideline provides many helpful examples of how the Sentencing Commission intends for it to apply in drug cases. Relevant conduct is forward looking. Accordingly, the guideline does not hold a defendant responsible for conduct that occurred before the defendant joined the conspiracy, as such conduct cannot be considered foreseeable. USSG § 1B1.3 cmt. n.2; United States v. Carreon, 11 F.3d 1225 (5th Cir. 1994). In an unusual set of circumstances in which the exclusion of such conduct may not adequately reflect the defendant’s culpability, an upward departure may be warranted. USSG § 1B1.3, cmt. n.2. Where a defendant is incarcerated while a conspiracy continues, the incarcerated defendant will not be held accountable for the conspiracy’s unlawful acts unless the government can establish that the defendant committed an overt act in furtherance o f t h e c o n s p i r a c y d u r i n g o r after his incarceration. United States v. Puig-Infante, 19 F.3d 929, 944-45 (5th Cir. 1994). See also, United States v. Gentry, 941 F.3d 767 (5th Cir. 2019) (reversing district court drug finding that included drugs distributed while defendant incarcerated, which contradicted cooperators statement that defendant sold her drugs during this period- drug quantity finding lacked indicia of reliability).
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reasonably foreseeable in connection with that criminal activity. The defendant’s conduct must meet all three criteria. Id. comment. (n.3(A)). The Commission stresses that acts “that were not within the scope of the agreement,” are not considered even if they were “known or reasonably foreseeable” to the defendant. Id. comment. (n.3(B)). The commentary offers examples to illustrate this principle. By clarifying the limits of relevant conduct the Commission sought to prevent the continued misapplication of its rule. Cases interpreting the prior version of § 1B1.3(a)(1)(B) remain instructive. The change clarified rather than altered the Guideline. A conspiracy need not be charged for a defendant to be held responsible for all reasonably foreseeable acts of others in furtherance of jointly undertaken activity. USSG § 1B1.3, cmt. n.2; United States v. Aguilera-Zapata, 901 F.2d 1209, 1213 (5th Cir. 1990). Relevant conduct liability is more narrow than federal conspiracy liability under Pinkerton. USSG § 1B1.3, cmt. n. 1,2; United States v. Puma, 937 F.2d 151 (5th Cir. 1991). Pinkerton liability extends to any substantive offense committed by a coconspirator in furtherance of the conspiracy regardless of whether the defendant participated in the substantive offense or even knew of it. Pinkerton v. United States, 328 U.S. 640, 646-67 (1946). Yet to be held accountable under § 1B1.3 for drug quantities distributed by others, the government must establish both that the conduct was reasonably foreseeable and that it was within the scope of the defendant’s specific jointly undertaken activity. United States v. Evbuomwan, 922 F.2d 70, 74 (5th Cir. 1993); United States v. Maseratti, 1 F.3d 330, 340 (5th Cir. 1993). The focus thus is on acts, reasonably foreseeable to the defendant, even though committed by others, that furthered a criminal activity that the defendant had agreed to undertake jointly with those others. United States v. Davison, 761 F.3d 683 (7th Cir. 2014). The scope of accountability will vary
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A defendant can terminate liability by establishing withdrawal from the conspiracy. United States v. Schorovsky, 202 F.3d 727 (5th Cir. 2000). Guideline 1B1.3(a)(2) allows courts to include drug amounts that were possessed for distribution or distributed as part of the same course of conduct or common scheme or plan as the offense of conviction. The Commission explains that offenses that do not qualify as part of a common scheme or plan may nonetheless qualify as part of the same course of conduct if they are sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree or ongoing series of offenses. USSG § 1B1.3 cmt. n. 9. The Commission recommends that the court consider the similarity of offenses, regularity (repetitions) and the time interval. Id. When one fact is absent, Aa stronger presence of at least one of the other factors is required. Id. Compare, United States v. Booker, 334 F.3d 406, 414 (5th Cir. 2003) (marihuana and cocaine transactions not part of same scheme); United States v. Wall, 180 F.3d 641 (5th Cir. 1999) (insufficient connection with drug deals four years later); United States v. Miller, 179 F.3d 961 (5th Cir. 1999) (insufficient connection with drug deals more than two years earlier); United States v. Maxwell, 334 F.3d 1006, 1010-13 (11th Cir. 1994) (insufficient connection between drug deals); United States v. Ortiz, 613 F.3d 550 (5th Cir. 2010)(cocaine in suitcase in bedroom not part of common scheme or plan or same course of conduct as marijuana found in same apartment), with United States v. Hinojosa, 484 F.3d 337 (5th Cir.), cert. denied, 128 S. Ct. 212 (2007) (similar modus operandi and purpose though 4 years apart); United States v. Nava, 957 F.3d 581 (5th Cir. 2020)(although not part of same scheme, meth seized from pick up truck could have been plausibly viewed as same course of conduct as cocaine trafficking– noting trial court could have gone the other way and been affirmed). Post arrest admissions about drug amounts trafficked in the past can be relied upon at sentencing to establish drug
quantities for relevant conduct. United States v. Barfield, 941 F.3d 757 (5th Cir. 2019). To rebut this, the defendant must both object to the reliability of the information and introduce information to rebut it. Id. An equitable argument may still be raised that had the defendant asked for counsel a proffer agreement would have been obtained to keep the admissions from being used to increase the guideline range. See, USSG § 1B1.8 (a)(prohibiting use of self-incriminating information from being used if defendant agrees to cooperate and government agrees not to use information). Courts and probation officers often misapply the common scheme or plan or same course of conduct prong of relevant conduct so counsel must be watchful. Many cautionary tales arise from the caselaw. For example, in United States v. Rhine, 583 F.3d 878 (5th Cir. 2009), a defendant arrested with 1.89 grams of crack following a routine traffic stop was later held accountable at sentencing for at least 4.5 kilograms of crack. The probation officer used information taken from a cooperator a year and a half earlier that identified Rhine as a supplier of crack and powder cocaine into what was known as the “Fish Bowl,” a high crime neighborhood in Fort Worth that was the focus of a large-scale federal investigation. Rhine was never charged in that case because informants were unable to make a drug buy from him. The district court overruled Rhine’s objection, which took Rhine’s guideline range from 30 to 37 months to 292-360 months, and sentenced Rhine to 360 months. On appeal, the Fifth Circuit reversed, and the opinion provides good guidance to understanding what “common scheme or plan” and “same course of conduct” mean in § 1B1.3 (a)(2) in the drug trafficking context. The court observed that no evidence tied the Fish Bowl conspiracy to the 1.89 grams Rhine possessed. Neither were the two offenses Apart of a common scheme or plan, as there were no common participants, common modus operandi, nor common purpose. The court observed that a motivation to make a profit from distributing drugs is by itself insufficient to connect the offenses as separate parts of a common 21
quantity is irrelevant and the additional drugs must be excluded from the calculation. Id. Courts have held that drugs possessed for personal use in a possession with intent to distribute case are not relevant conduct to drugs possessed for distribution. Jansen v. United States, 369 F.3d 237 (3d Cir. 2004) (defense counsel’s failure to argue at sentencing that drugs found in defendant’s pants were for personal use, and could not be considered in calculating drug quantity, constituted deficient performance); United States v. Williams, 247 F.3d 353 (2d Cir. 2001) (case remanded for further findings where defendant, drug addict, caught with 68.7 grams of crack cocaine, contended that 19 grams was for personal use, notwithstanding jury verdict convicting defendant of possessing in excess of 50 grams of crack cocaine for distribution). This approach reasons that personal use drugs are not possessed as part of the same course of conduct or common scheme or plan as drugs possessed for distribution. Id. See also, United States v. Kipp, 10 F.3d 1463 (9th Cir. 1993); United States v. Wyss, 147 F.3d 631 (7th Cir. 1998). The Second Circuit in Williams rejected the apparent contrary view in the Eleventh Circuit, United States v. Antonietti, 86 F.3d 206 (11th Cir. 1996), on the ground that Antonietti involved an additional charge of conspiracy. Where ... there is no conspiracy at issue, the act of setting aside narcotics for personal consumption is not only not a part of a scheme or plan to distribute these drugs, it is actually exclusive of any plan to distribute them. Williams, 247 F.3d at 358; see also, United States v. Page, 232 F.3d 536, 542 (6th Cir. 2001) (drugs obtained by defendant from supplier for personal use were properly included by the court in determining the quantity of drugs that the defendant knew were distributed by the conspiracy); United States v. Fraser, 243 F.3d 473, 475-76 (8th Cir. 2001) (remanded for recalculation of amounts that were for personal use and must be excluded); United States v. Asch, 207 F.3d 1238, 1243-46 (10th Cir. 2000) (exclude personal use drugs from conspiracy offense penalty);
scheme or plan. Neither were the offenses connected under the same course of conduct prong. This refers to the degree of similarity of the offense, the regularity (repetitions) of the offenses, and the time interval between the offenses. The Fish Bowl drug trafficking occurred 17 months earlier. No evidence showed recurring drug trafficking by Rhine during this period. The court refused to accept the government’s contention that the absence of evidence was solely the result of the informant being locked up. The court rejected the argument t h a t Rhine was obliged to prove the negative fact of not dealing in drugs; instead, the government bore the burden to prove the positive fact of his drug dealing activity. Also, the two offenses, the court observed, varied substantially - in quantities of distribution, methods, participants, nature of transactions, and defendant’s role. Neither was their evidence that the cocaine came from a common source. The correct guideline range therefore was 30 to 37 months. But Rhine’s victory was shortlived. On remand, at re-sentencing, the court varied upward to a sentence of 120 months imprisonment on the drug case, reasoning that Rhine’s past involvement with the drug trafficking organization made the higher sentence appropriate. The sentence was affirmed. United States v. Rhine, 637 F.3d 525 (5th Cir. 2011). In an offense involving an agreement to sell a controlled substance, the agreed-upon quantity will be used to determine the offense level unless the defendant establishes that he did not intend to provide or purchase the drug quantity or was not reasonably capable of providing or producing the amount. U.S.S.G. § 2D1.1, comment. (n. 5). The defendant bears the burden of persuasion on excluding such drug amounts. United States v. Davis, 478 F.3d 266 (5th Cir. 2007) (PSR’s finding that defendant did not intend to provide agreed amount of crack cocaine excluded amount from sentencing). Once a defendant establishes that he lacked the intent to produce or purchase the additional quantity, whether the defendant is capable of producing or providing the additional
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Supp. 2d 1002 (D. Neb. 2008); United States v. Hubel, 625 F.Supp 2d. 845 (D. Neb. 2008); United States v. Hayes, 948 F. Supp. 2d 1009 (N.D. Iowa 2013); United States v. IbarraSandoval, 265 F. Supp. 1249 (D. N.M. 2017); United States v. Hartle, 2007 WL 2608221 (D. Idaho 2017); United States v. Nawana, 2018 WL 2021350 (N.D. Iowa 2018). Sentencing Commission statistics show that 70% of meth offenders are sentenced below the guideline range. Sentencing Commission “Quick Facts,” at http:/www.ussc.gov/sitres/default/files /pdf/research-and-publications/quick facts/MethamphetamineFY17.pdf. The Commission assumes the purity of a controlled substance to be probative of a defendant’s role and position in the chain of distribution because as substances pass down the chain of distribution the dealer dilutes it. USSG § 2D1.1, cmt. n. 27 (c). But courts have found this view to be “divorced from reality” and wrong. Ibarra-Sandoval, 265 F. Supp. 3d at 1255; Hartle, supra, at p. 3; Nawana, supra, at 6. The reason why its wrong is because most meth seized at all distribution levels is remarkably pure. Id. That is, purity provides a false proxy for culpability. Be alert to this issue and seek variances where “ice” sets the guideline range.
United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1493-96 (9th Cir. 1994) (same, for possession with intent to distribute offense). The Fifth Circuit held in United States v. Clark, 389 F.3d 141 (5th Cir. 2004) that a district court could properly consider drug amounts intended for personal use when calculating the base offense level for a defendant convicted of participating in a drug conspiracy. Clark was a conspiracy case, not a possession with intent to distribute case. See, United States v. Rangel, 108 Fed. Appx. 162 (5th Cir. 2004) (unpublished) (noting circuit split on whether drugs obtained for personal use may be considered in determining guideline sentence for distribution conviction, yet declining to reach issue on plain error review). The argument remains viable for defendants charged with possession with intent to distribute. Excluding drugs possessed for personal use in a possession with intent to distribute case can result in lowering that statutory range of punishment. The Fifth Circuit views marihuana stalks, the remains of a harvested plant, the same as a marihuana plantso as to trigger the 10 year minimum sentence for an offense involving 1,000 or more plants. United States v. Fitch, 137 F.3d 277 (5th Cir. 1998). Guidelines do not have the final word in drug sentencing. Two Supreme Court decision, Kimbrough v. United States, 128 S.Ct. 490 (2007) and Gall v. United States, 128 S.Ct. 586 (2007), affirmed a sentencing judge’s discretion to go lower than the sentence recommended by the drug quantity table. Kimbrough held that a judge was free to deviate from the 100 to 1 crack/powder ratio. Gall affirmed a sentence of probation for a defendant who had voluntarily withdrawn from a conspiracy to distribute ecstasy and led a law-abiding life years before being charged with the crime. The meth guideline often yields an excessive sentence when it involves “ice.” Courts have found the meth guideline deeply flawed so they don’t follow its recommended range. See, United States v. Goodman, 556 F.
3. Statutory Minimums Statutory minimums trump the sentencing guidelines. The controlled substance act establishes minimum sentences of 5, 10, 20 years, and Life, imprisonment, for possessing substantial quantities of a variety of drugs that contain Aa detectable amount of heroin, cocaine, cocaine base, phencyclidine (PCP), lysergic acid (LSD), methamphetamine, and marihuana. 21 U.S.C. § 841(b), 960(b)(1). In Alleyne v. United States, 133 S.Ct. 2151 (2103), the Supreme Court extended Apprendi to facts, in this case drug type and quantity, that trigger mandatory minimum sentences. A 23
(counsel ineffective because he failed to object to the quantity of P2P that was used to compute his sentence, noting it was Aa cumbersome task to determine the proper sentence); United States v. Mimms, 43 F.3d 217 (5th Cir. 1995) (district court committed clear error when it misinterpreted expert’s findings on percentage of controlled substance in chemicals used to manufacture methamphetamine). In the Fifth Circuit, the market-oriented approach does not apply to methamphetamine cases. Thus, in United States v. Treft, 447 F.3d 421 (5th Cir. 2006), the total weight of liquid containing trace amounts of methamphetamine was used to set the statutory minimum penalty. See also, United States v. Gentry, 555 F.3d 659 (8th Cir. 2009) (full weight of toxic liquid in pickle jar used for purposes of § 841 but reversing for failure to give instruction on lesser included offense of simple possession). Consequently, defendants may be held liable for the entire weight of a toxic byproduct of the manufacturing process that is not ingestible or marketable so long as it contains any amount of methamphetamine. Other circuits disagree with this approach. See, United States v. Steward, 361 F.3d 373 (7th Cir. 2004) (only 2.4 grams of actual methamphetamine in 825 gram solution should have been counted in determining drug quantity under 10-year minimum drug statute). The substantially stiffer mandatory minimum penalty for possessing cocaine base verses an equivalent amount of cocaine makes it necessary for the government to establish which of the two types of cocaine was possessed. The problem is that chemically, cocaine and cocaine base mean the same thing, United States v. Brisbane, 367 F.3d 910, 911 (D.C. Cir.) cert. denied, 125 S.Ct. 342 (2004), which creates an ambiguity. Most if not all cocaine base prosecutions involve crack. The Guidelines define cocaine base as meaning only crack, whereas the statute does not define “cocaine base.” Problems arise in cases where the cocaine base involved is not “crack,” that is, cocaine that is typically smoked. The Fifth Circuit reads
district court may impose a sentence below a statutory minimum for a drug crime only if (1) the government makes a motion pursuant to 18 U.S.C. § 3553(e) asserting the defendant’s substantial assistance to the government; or (2) the defendant meets the safety valve criteria set forth in 18 U.S.C. § 3553(f); a district court may not depart below a statutory mandatory minimum sentence unless one of these two conditions is met. United States v. Phillips, 382 F.3d 489 (5th Cir. 2004) (reversing departure below mandatory minimum in schoolyard offense under 21 U.S.C. 860, because safety valve excluded from such offenses). Enhanced penalties are triggered where death or serious bodily injury from the use of the drugs occurred, or if the person has prior drug convictions, or if the offense occurred near a school. A drug death enhancement in most cases will require proof that the user would not have died but for the use of the drugs. Burrage v.United States, 134 S.Ct. 881 (2014). Under both statutory and guideline provisions, the punishment is determined by the total net weight of the controlled substance, including any mixture or substance containing a detectable amount of the drug at issue. 18 U.S.C. § 841(b)(1). See, Chapman v. United States, 111 S.Ct. 1919 (1991) (penalty based on weight of LSD and carrier medium, blotter paper). The Guidelines exclude from mixture or substance materials that must be separated from the controlled substance before the controlled substance can be used. U.S.S.G. § 2D1.1, comment. (n. 1). The commentary to § 2D1.1 provides examples of materials that do not combine with controlled substances for drug weight: the fiberglass in a cocaine/fiberglass bonded suitcase, beeswax in a cocaine/beeswax statue, and waste-water from an illicit laboratory used to manufacture a controlled substance.Id. This method follows the Chapman marketoriented approach which rests liability upon the amount to be distributed and consumed. Applying this method to methamphetamine and precursor chemicals can be tricky and may require expert testimony. United States v. Striklin, 290 F.3d 748 (5th Cir. 2002)
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cocaine base to include all base forms of cocaine, not just crack. United States v. Butler, 988 F.2d 537, 542-43 (5th Cir. 1993). See also, United States v. Barbosa, 271 F.3d 438, 461-67 (3d Cir. 2001) (same); United States v. Jackson, 968 F.2d 158, 161163 (2d Cir. 1992) (same); United States v. Easter, 981 F.2d 1549, 1558 (10th Cir. 1992) (same). Other circuits interpret the statute differently, finding that cocaine base for purposes of determining the statutory minimum sentence, refers only to crack. See United States v. Edwards, 397 F.3d 570 (7th Cir. 2005) (listing circuits). If noncrack serves to trigger a higher statutory penalty, counsel must object to preserve the issue for Supreme Court review. Courts have held that drugs possessed for personal use in a possession with intent to distribute case are not relevant conduct to drugs possessed for distribution. Jansen v. United States, 369 F.3d 237 (3d Cir. 2004) (defense counsel’s failure to argue at sentencing that drugs found in defendant’s pants were for personal use, and could not be considered in calculating drug quantity, constituted deficient performance); United States v. Williams, 247 F.3d 353 (2d Cir. 2001) (case remanded for further findings where defendant, drug addict, caught with 68.7 grams of crack cocaine, contended that 19 grams was for personal use, notwithstanding jury verdict convicting defendant of possessing in excess of 50 grams of crack cocaine for distribution). This approach reasons that personal use drugs are not possessed as part of the same course of conduct or common scheme or planas drugs possessed for distribution. Id. See also, United States v. Kipp, 10 F.3d 1463 (9th Cir. 1993); United States v. Wyss, 147 F.3d 631 (7th Cir. 1998). The Second Circuit in Williams rejected the apparent contrary view in the Eleventh Circuit, United States v. Antonietti, 86 F.3d 206 (11th Cir. 1996), on the ground that Antonietti involved an additional charge of conspiracy. Where ... there is no conspiracy at issue, the act of setting aside narcotics for personal consumption is not only not a part of a scheme or plan to distribute these drugs, it is actually exclusive of any plan to
distribute them. Williams, 247 F.3d at 358; see also, United States v. Page, 232 F.3d 536, 542 (6th Cir. 2001) (drugs obtained by defendant from supplier for personal use were properly included by the court in determining the quantity of drugs that the defendant knew were distributed by the conspiracy); United States v. Fraser, 243 F.3d 473, 475-76 (8th Cir. 2001) (remanded for recalculation of amounts that were for personal use and must be excluded); United States v. Asch, 207 F.3d 1238, 1243-46 (10th Cir. 2000) (exclude personal use drugs from conspiracy offense penalty); United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1493-96 (9th Cir. 1994)(same, for possession with intent to distribute offense). The Fifth Circuit held in United States v . Clark, 389 F.3d 141 (5th Cir. 2004) that a district court could properly consider drug amounts intended for personal use when calculating the base offense level for a defendant convicted of participating in a drug conspiracy. Clark was a conspiracy case, not a possession with intent to distribute case. The argument remains available for defendants charged with possession with intent to distribute. Keeping drugs possessed for personal use off the penalty scale may take a mandatory minimum off the table. The Fifth Circuit views marihuana stalks, the remains of a harvested plant, the same as a marihuana plantso as to trigger the 10 year minimum sentence for an offense involving 1,000 or more plants. United States v. Fitch, 137 F.3d 277 (5th Cir. 1998). 4. Safety Valve The safety valve, 18 U.S.C. § 3553(f), authorizes court to sentence based on the applicable guideline level, without regard to any mandatory minimum. Section 402 of the First Step Act (FSA) of 2018, effective after December 21, 2018, made the safety valve more accessible to defendants with a criminal history. Now a defendant can have up to four criminal history points, rather than only one. One-point offenses no longer count towards the safety valve calculus. Three-point offenses disqualify a defendant, 25
as do two-point “violent” offenses. A “violent offense” is defined by 18 USC § 16 (a), as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” The FSA amendment prohibits disclosures of offense conduct from enhancing the sentence unless the disclosure relates to a “violent offense.” It now reaches maritime drug crimes: 46 USC §§ 70503-06. The safety valve applies if the defendant 1) does not have more than four criminal history points, 2) did not use violence, threaten violence, or possess a firearm or other dangerous weapon in connection with the offense, 3) the offense did not result in death or bodily injury, 4) the defendant was not an organizer or engaged in a continuing criminal enterprise, and 5) the defendant truthfully provides to the government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or common scheme or plan. U.S.S.G. § 5C1.2. Booker’s holding that the guidelines were no longer mandatory left intact these statutory criteria for doing away with a mandatory minimum sentence. United States v. Barrero, 425 F.3d 154 (2d Cir. 2005) (safety valve requirements mandatory and cannot be dodged by judicial finding that criminal history overstated and defendant more properly category I offender). United States v. Jasso, 634 F.3d 305 (5th Cir. 2011) (same). After Booker, courts must continue to apply the relief that the safety valve affords defendants from unduly harsh mandatory minimums. United States v. Cardenas-Juarez, 469 F.3d 1331 (9th Cir. 2006). The safety valve lists offenses to which it applies: 21 U.S.C. §§ 841, 844, 960, or 963. U.S.S.G. § 5C1.2 (a). Offenses that do not appear on the list are not covered by the safety valve. United States v. Phillips, 382 F.3d 489 (5th Cir. 2004) (reversing departure below mandatory minimum for violation of “schoolyard” drug statute, 21 U.S.C. § 860). For those defendants facing a mandatory minimum of at least five years, the safety valve does not permit a reduction to an offense level of less than 17. United
States v. Keresztury, 293 F.3d 750 (5th Cir. 2002) (even though guidelines established base level 12, defendant who faced statutory minimum 10-year sentence could not qualify for less than level 17 under the safety valve). The safety valve empowers courts to sentence below the statutory minimum sentence without a government motion. United States v. Flanagan, 87 F.3d 121, 124-25 (5th Cir. 1995). Once safety valve is awarded, the court has authority to grant a further sentence reduction below the statutory minimum, as permissible by law. United States v. Lopez, 264 F.3d 527 (5th Cir. 2001). To qualify for safety valve under subpart (5), the defendant must give truthful information concerning the offense and related conduct to the government. United States v. Rodriguez, 60 F.3d 193 (5th Cir.) cert. denied, 516 U.S. 1000 (1995). The FSA amendment protects a defendant from having this information used to enhance his sentence unless the disclosure relates to a “violent offense.” Before this change, prudent defense counsel needed to secure a written proffer agreement which protected the defendant under the terms of USSG § 1B1.8 from having information provided during the meeting from being used to raise the guideline range. United States v. Gonzalez, 309 F.3d 882 (5th Cir. 2002) (holding government breached plea agreement by arguing that defendant was a leader, a finding that operated to defeat safety valve, with information given by defendant during debriefing under proffer letter). Safety valve requires that the defendant provide the government with the truthful information before the sentencing hearing commences. United States v. Brenes, 250 F.3d 290 (5th Cir. 2001). Once the sentencing hearing is underway, no further information can be provided by the defendant to the government to qualify for the reduction. Id.; but see, United States v. Madrigal, 327 F.3d 738 (8th Cir. 2003) (continuance of sentencing hearing did not deprive sentencing court of power to apply safety valve under circumstances of case). A drug defendant who lied during his initial 26
debriefing remains eligible for a safety valve reduction if he eventually comes clean before the sentencing hearing. United States v. Mejia-Pimentel, 477 F.3d 1100 (9th Cir. 2007); United States v. Schreiber, 191 F.3d 103 (2d Cir. 1999). As a best practice, counsel should determine in advance of the sentencing hearing whether there is any dispute about the safety valve reduction. If so, the sentencing hearing needs to be continued to allow for further debriefings. Often the only question to resolve is whether the defendant truthfully debriefed. Generally, sentencing courts will side with the government’s assessment. Agents may opine that the defendant is minimizing his role or withholding information. Defense counsel must make sure that the government’s assertions are grounded on reality. See, e.g., United States v. Miller, 179 F.3d 961, 968 (5th Cir. 1999) (reversing trial court for disallowing reduction based on speculative assumptions about defendant’s wherewithal in drug crime). The question of completeness rests with the district court, which is not bound by the government agent’s determination of whether the defendant failed to provide truthful information. United States v. Lima-Rivero, 971 F.3d 518 (5th Cir. 2020). The safety valve reduction applies under circumstances where to some it may appear off limits. For example, putting the government to trial and losing acceptance of responsibility does not disqualify a defendant from safety valve. United States v. Shrestha, 86 F.3d 935 (9th Cir. 1996). While defendants who possess firearms or dangerous weapons cannot qualify, this exclusion does not apply where a codefendant possessed the weapon. United States v. Wilson, 105 F.3d 219, 222 (5th Cir. 1997). Similarly, a sentencing court’s finding via relevant conduct that a defendant’s drug sentence should adjusted because a weapon “was possessed” does not bar a finding that a sentence reduction is available under the safety valve. United States v. Zavalza-Rodriguez, 379 F.3d 1182 (10th Cir. 2004). Constructive possession of a weapon is nonetheless “possession” and will bar
the safety valve reduction. United States v. Matias, 465 F.3d 169 (5th Cir. 2006). In United States v. Ruiz, 621 F.3d 390 (5th Cir. 2010), a case where a police officer agreed to guard a fictional load of cocaine, the Fifth Circuit found that the § 2D1.1 weapons adjustment barred the safety valve from applying. Ruiz cited Matias on its way to disagreeing with Zavalza-Rodriguez, yet failed to mention Wilson. Regardless of the poorly reasoned Ruiz decision, both provisions can apply because the textual analysis is different for either adjustment. Ruiz does not bar the safety valve adjustment where a codefendant possesses a weapon or the weapon bears no connection to the offense. To be clear, the drug guideline firearms adjustment requires mere proximity to a weapon whereas the safety valve bar requires active possession of the weapon by the defendant. Importantly, as ZavalzaRodriguez points out, relevant conduct liability is irrelevant to whether a defendant possessed a firearm so as bar the safety valve adjustment. See also, United States v. Carillo-Ayala, 713 F.3d 82 (11th Cir. 2013) (rejecting that relevant conduct applies to safety valve determination as it pertains to weapons possession). Note 4 in the Commentary to § 5C1.2, the safety valve guideline, explains that the term “defendant” means “accountability of the defendant for his own conduct and conduct that he aided, abetted, counseled, commanded, induced, procured, or willfully caused.” Because the safety valve reduction is an adjustment under the Guidelines, it is nondiscretionary once its criteria have been found to be satisfied, and not a discretionary departure. United States v. Myers, 106 F.3d 936 (10th Cir.), cert. denied, 117 S. Ct. 2446 (1997). 5. Multiple Object Conspiracies In Edwards v. United States, 118 S. Ct. 1475 (1998) the Supreme Court held that where a jury returns a general verdict on an indictment charging multiple objects of a conspiracy concerning different types of 27
“Serious drug felony” means an “offense described in section 924 (e)(2) of Title 18 for which (A) the offender served a term of imprisonment of more than 12 months, and (B) the offender []” was released “within 15 years of the commencement of the instant offense.” 21 USC § 802 (57). Section 924 (e)(2) defines “serious drug felony” as “(i) an offense under [21 USC § 801 et seq., 21 USC § 951 et. seq., or chapter 705 of title 46] for which a maximum term of imprisonment of ten years or more is prescribed by law; or (ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in [21 USC § 802]), for which a maximum term of imprisonment of ten years or more is prescribed by law.” “The term serious violent felony means (A) an offense described in section 3559 (c)(2) of Title 18 for which the offender served a term of more than 12 months; and (B) any offense that would be a felony violation section 113 of Title 18, if the offense were committed in the special maritime and territorial jurisdiction of the United States, for which the offender served a term of imprisonment of more than 12 months.” 21 USC § 802 (58). Section 3559 (c)(2)(F) defines the term “serious violent felony” to mean (i) a Federal or State offense, by whatever designation and wherever committed, consisting of murder (as described in section 1111); manslaughter other than involuntary manslaughter (as described in section 1112); assault with intent to commit rape [defined in 3559 (c)(2)(A)]; aggravated sexual abuse and sexual abuse (as described in sections 2241 and 2242); abusive sexual contact (as described in sections 2244 (a)(1) and (a)(2)); kidnapping [defined in 3559 (c)(2)(E)] aircraft piracy (as defined in section 46502 of Title 49); robbery (as described in section 2111, 2113, or 2118)[subject to 3559 (c)(3)(A)]; carjacking (as described in section 2119); extortion [defined in 3559 (c)(2)(C)]; arson [defined in 3559 (c)(2)(B) and subject to 3559 (c)(3)(B)]; firearms use [defined in 3559 (c)(2)(D)];
drugs, the guidelines give the judge, not the jury, the job of determining drug types as well as drug amounts. If multiple objects are charged in the indictment, the jury need not unanimously agree on the object to convict, though the type of controlled substance will control the sentencing. United States v. Patino-Prado, 533 F.3d 304 (5th Cir. 2008). After Alleyne, juries are required to find beyond a reasonable doubt any drug quantity and type that triggers a mandatory minimum sentence for a particular defendant, as to the conspiracy as a whole that was known or reasonably foreseeable to the defendant. 6. Statutory Enhancements The First Step Act of 2018 changed the way enhancements work in drug cases. A defendant with a previous “serious drug felony” or “serious violent felony” may have the applicable mandatory minimum sentence increased should the government elect to file the appropriate notice of intent to seek enhanced penalties. 21 U.S.C. §§ 841 (b) & 851. Statutory enhancements were unaffected by Booker. United States v. Cannon, 429 F.3d 1158 (7th Cir. 2005) (new discretion did not authorize sentencing judge to ignore qualifying predicate crimes on basis that they overstate the defendant’s criminal past). The statute allows enhancement predicated upon any conviction for a “ s e r i o u s dr u g f e l o n y ” or “ s e r i o u s violent felony.” A person charged under 21 USC 841 (b)(1)(A) with one prior final conviction for a “serious drug felony” or “serious violent felony” raises the range from 10 to Life to 15 years to life. If two prior final convictions then the range is increased to 25 years to life. If charged under 21 USC 841 (b)(1)(B), a qualifying prior conviction raises the statutory range from 5-40 years to 10 years to Life. The two prior offenses must occur sequentially, rather than simultaneously, in order be treated as separate convictions. See United States v. Barr, 130 F.3d 711 (5th Cir. 1997) cert. denied, 118 S.Ct. 1398 (1998).
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firearms possession (as described in section 924 (c)); or attempt, conspiracy, or solicitation to commit any of the above offenses; and (ii) any other offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another [subject to 3559 (c)(3)(A)]. Section 3559 (c)(3)(A) & (B) disqualifies certain robbery and arson crimes where the defendant can establish “by clear and convincing evidence” listed mitigating facts, such as the absence of a dangerous weapon or firearm in a robbery, or no threat to human life in an arson. Some circuits have held that the categorical approach does not apply to the disqualifying circumstances the defendant must prove under section 3559 (c)(3). United States v. Mackovich, 209 F.3d 1227, 1240 (10 th Cir. 2000); Gray v. United States, 622 Fed. Appx. 788, 793 (11th Cir. 2015) (unpub). Section 113 of Title 18 covers assaults within maritime and territorial jurisdiction and defines six “felony violations.” See, 18 USC § 113 (a)(1)-(3), (6)-(8). The prior conviction must be for a felony – a crime punishable by more than a year of imprisonment. This eliminates crimes labeled by state law as a felony but not actually punishable for a term of imprisonment exceeding one year. Some states (e.g., NC, KS, TN, WA) have mandatory sentencing schemes that limit imprisonment based on that person’s criminal history category, except the state judge cannot sentence the defendant to more than the top of that range. While the Fifth Circuit has yet ruled on the issues, other circuits have held that conviction with mandatory sentencing ranges of less than a year are not felonies under federal law: United States v. Simmons, 649 F.3d 237, 240 (4 th Cir. 2011) (NC); United States v. Pruitt, 545 F.3d 416, 419 (6 th Cir. 2008) (NC); United States v. Rockymore, 909 F.3d 167, 169-72 (6 th Cir. 2018)(TN); United States v. Haltiwanger, 637 F.3d 881, 884 (8 th Cir. 2011)(KS); United
States v. Valencia-Mendoza, 912 F.3d 1215, 1224 (9 th Cir. 2019)(WA); United States v. Brooks, 751 F.3d 1204, 1213 (10th Cir. 2014)(KS). Contrast cases where defendants get charged with felonies but punished as misdemeanants. In United States v. Dozier, 949 F.3d 322 (7 th Cir. 2020), the court found that a prior Texas conviction for the state jail felony of possession of less than one gram of cocaine, which was punished as a misdemeanor pursuant to section 12.44 (a) of the Texas Penal Code, qualified for enhancement. The Dozier court distinguished sentencing schemes where sentence caps were mandatory and below the one-year threshold, from sentencing schemes where sentencing caps were discretionary. Dozier found the defendant was convicted of a two-year state jail felony but received a misdemeanor length sentence pursuant a plea bargain. Only final convictions may be used for enhancement, which has been interpreted to mean that the conviction is no longer subject to direct appeal. United States v. PuigInfante, 19 F.3d 929, 947 (5th Cir.) cert. denied, 513 U.S. 864 (1994). Thus, in PuigInfante, the Fifth Circuit held that to qualify as a predicate conviction, the government was required to prove that the defendant committed an overt act as part of the federal conspiracy after the state conviction became final. Id. at 947-48; see also, United States v. Hass, 150 F.3d 443 (5th Cir. 1998) (reversing life sentence for drug convictions because the defendant’s prior Texas drug convictions were not final (i.e., the time for appeal had not run) at the time of the enhanced offense). Prior convictions for conduct in furtherance of a conspiracy can be used to enhance the statutory penalty for a later arrest under the same conspiracy. United States v. Moody, 564 F.3d 754 (5th Cir. 2009). The term “conviction” is broadly interpreted and federal not state law governs the term. United States v. Cisneros, 112 F.3d 1272, 1280 (5th Cir. 1997). Whether a juvenile adjudication qualifies as a conviction will turn on the finality of the adjudication and whether the juvenile was tried as an adult. United States 29
v. Sampson, 385 F.3d 183 (2d Cir. 2004). The First Step Act did not change the procedure needed for enhancement. To successfully enhance a defendant, the government must still strictly comply with the procedural requirements set forth in 21 U.S.C. §851. United States v. Noland, 495 F.2d 529, 533 (5th Cir.) cert. denied, 419 U.S. 966 (1974). Written notice of the intent to enhance must be provided before the jury selection, United States v. Weaver, 905 F.2d 1466, 1481 (11th Cir. 1990), cert. denied,498 U.S. 1091 (1991), or the guilty plea. United States v. Levay, 76 F.3d 671 (5th Cir. 1996). Handing to defense counsel a notice of penalty enhancement shortly before the defendant’s entry of a guilty plea qualifies as timely. United States v. County, 377 F.3d 486 (5th Cir. 2004). The statutory requirements must be followed and cannot be overcome through other filings by the government. United States v. Dodson, 288 F.3d 153 (5th Cir. 2002). The circuits are split on whether these statutory requirements can be waived or forfeited through counsel’s actions. In Dodson, the Fifth Circuit held that by counsel having agreed to the enhanced penalty range during plea proceedings, counsel forfeited the defendant’s right to complain about the enhancement. The Eleventh Circuit, on the other hand, considers the matter to be jurisdictional and therefore not subject to waiver. Harris v. United States, 149 F.3d 1304 (11th Cir. 1998). After conviction but before pronouncement of sentence, § 851(b) requires the court to ask the defendant whether he admits or denies his prior convictions and instruct the defendant that should he wish to challenge the conviction he must do so before sentencing or be prohibited from challenging it later. A court’s failure to engage in the enhancement colloquy will be harmless error if the defendant fails to comply with the procedures set forth in § 851(c) to challenge the prior conviction. United States v. Thomas, 348 F.3d 78, 85-88 (5th Cir. 2003). The statute bars defendants from challenging prior convictions unless they occurred within five years of sentencing. 21
U.S.C. § 851(e). III. FIREARMS A. COMMON FIREARMS CRIMES 1. Felon in Possession: 18 USC § 922(g)(1) a. Elements of Proof. To obtain a conviction, the government must prove that the defendant: (1) a convicted felon; (2) knowingly possessed a firearm (3) in or affecting interstate commerce. United States v. Ybarra, 70 F.3d 362 (5th Cir. 1995), cert. denied, 116 S.Ct. 1582 (1996). In Rehaif v. United States, 139 S.Ct. 2191 (2019), the Supreme Court held it was also necessary for the government to prove that the defendant knew he was a felon, that is, that he had “been convicted in a court of a crime punishable by imprisonment for a term in excess of one year.” Fifth Circuit Pattern Jury Instruction, 2.43D (2019). b. Possession. The government can prove possession by showing that a defendant exercised either direct physical control of a thing (actual possession) or dominion or control over the thing itself or the area in which it was found (constructive possession). United States v. Jones, 484 F.3d 783 (5th Cir. 2007); United States v. Fields, 72 F.3d 1200, 1212 (5th Cir. 1996), cert. denied, 117 S.Ct. 48 (1996). The statute “covers possession in every form” but “does not prohibit a felon from owning a firearm.” Henderson v. United States, 135 S.Ct. 1780 (2015) (court-ordered transfer of a felon’s lawfully owned firearm to a third party not barred by § 922(g) if the court is satisfied that the recipient will not give the felon control over the firearm, so that he could either use them or direct their use). Absent actual possession, the evidence will be deemed sufficient if there is at least a plausible inference that the defendant had knowledge of and access to the weapon. Id.; United States v. Prudhome, 13 F.3d 147, 149 (5th Cir. 1994), cert. denied, 511 U.S. 1097 30
United States, 139 S. Ct. 2191, 2200 (2019). The Rehaif knowledge element applies to cases on direct appeal. United States v. Lavalais, 960 F.3d 180 (5th Cir. 2020) (cert. pending). Because “convicted felons typically know they’re convicted felons” the Fifth Circuit observed in Lavalais that it will “be rare for a defendant to be able to show plain error with regard to his guilty plea on that basis.” Indeed, to satisfy plain error review of a guilty plea a defendant must show that but for “erroneous advice” he would not have pled guilty. United States v. Hicks, 958 F.3d 399 (5th Cir. 2020) (cert. pending). The Fourth Circuit held in United States v. Gary, 954 F.3d 194, 207-208 (4th Cir. 2020) (cert. granted) that failure to show knowledge of conviction status constituted structural error that could lead to reversal without a showing of prejudice. The Supreme Court granted cert. on this issue which splits the circuits. A jury may infer beyond a reasonable doubt that a defendant knew he was a convicted felon from the defendant’s stipulation of the existence of a prior felony conviction, “absent evidence of ignorance.” United States v. Staggers, 961 F.3d 745 (5th Cir.) cert. denied, 141 S. Ct. 388 (2020). The government need not prove a defendant’s knowledge of the interstate commerce nexus, United States v. Privett, 68 F.3d 101, 104 (5th Cir. 1995), cert. denied, 116 S.Ct. 1862 (1996), nor prove a defendant’s knowledge of his prohibited status. United States v. Dancy, 861 F.2d 77 (5th Cir. 1988); see also, United States v. Schmitt, 748 F.2d 249 (5th Cir. 1984) cert. denied, 471 U.S. 1104 (1985) (construing predecessor statute, § 922(h) as not requiring knowledge). However, if the theory of liability is that the defendant aided and abetted a felon in possession, the government must prove that the defendant knew or had reasonable cause to believe that the person who the defendant aided and abetted in possessing the firearm was a prohibited person. United States v. Murray, 988 F.2d 518, 521 (5th Cir. 1993).
(1994) (evidence sufficient as defendant was driving, the gun was located directly under his seat, and he had matching ammunition in a waist pouch). Where two or more persons jointly occupy a residence, there must be evidence in addition to the joint occupancy that demonstrates a nexus between the defendant and the firearm. United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993), cert. denied, 510 U.S. 1198 (1994). This also holds true where multiple persons occupy a vehicle from which a firearm was thrown. United States v. Hooks, 551 F.3d 1205 (10th Cir. 2009) (evidence failed to connect defendant to Uzi found by side of road after police chase where he was passenger, along with two others, in pickup being chased). That is, evidence of mere accessibility to the firearm, without proof of dominion or control over it, will not support a finding of constructive possession of the firearm. United States v. Whitfield, 629 F.2d 136, 143 (D.C. Cir. 1980). c. Knowledge. The type of possession at issue, constructive or actual, will determine the type of evidence of knowledge that will be relevant to this issue. Jones, 484 F.3d at 788. Constructive possession cases frequently give rise to the issue of knowledge and intent. The government must offer evidence to prove that the defendant (1) knew the thing was present, and (2) intended to exercise dominion and control over it. Id. In contrast, in actual possession cases, the government must prove the defendant’s awareness that (1) he physically possesses the thing, and (2) the thing he possesses is contraband. Id. This distinction is crucial to deciding evidentiary issues, such as whether prior bad act evidence of possessing other firearms will be admissible. Jones, 484 F.3d at 790 (holding it was error for trial court to admit evidence of defendant’s prior felon in possession conviction where possession scenario was of actual possession and intent was not placed at issue). The government must also prove that a defendant knew he or she belonged to the relevant category of persons barred from possessing a firearm. Rehaif v.
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d. Firearm. The firearms covered by the statute are defined in § 921. The most frequently applied definition for firearm is found in § 921(a)(3), which defines a firearm as “any weapon (including a starter gun) which will or is designed or may readily be converted to expel a projectile by the action of an explosive,” or “the frame or receiver of any such weapon.” An inoperable firearm qualifies. United States v. Perez, 897 F.2d 751, 754 (5th Cir. 1990), cert. denied, 498 U.S. 865 (1990). Even one an ATF expert opines to be inoperable because of “significant damage, missing/broken parts, and extensive corrosion.” United States v. Dotson, 712 F.3d 369 (7th Cir. 2013) (posing example of gun transformed to cigarette lighter as perhaps not qualifying). Possession of multiple firearms gives rise to only one conviction under § 922(g) as the unit of prosecution is based on the status of the offender and not the number of guns possessed. United States v. Berry, 977 F.2d 915, 919 (5th Cir. 1992). Firearms or ammunition possessed at different times and places do give rise to separate units of prosecution, even though the crimes may be closely related. United States v. Goodine, 400 F.3d 202 (4th Cir. 2005) (retrial did not violate double jeopardy where jury acquitted defendant of possessing firearm at one location and deadlocked on bullet allegedly possessed by defendant at another location). For the same reason, the simultaneous possession of ammunition is not a distinct unit of prosecution. Id.; see also, Ball v. United States, 470 U.S. 856 (1985)(though government could seek multi-count indictment alleging possession and receipt of same weapon through same act, defendant could not be twice convicted or sentenced). The identity of the firearm possessed is not essential to a conviction. United States v. Guidry, 406 F.3d 314 (5th Cir. 2005) (evidence that firearm possessed by felon was a .380 caliber pistol, while indictment charged a 9 mm Kurz, not fatal variance from charges in indictment). The firearm or ammunition allegedly possessed must be possessed Ain and affecting commerce. United States v. Chambers, 408
F.3d 237 (5th Cir. 2005) (reversed acquittal order entered where district court constructively amended indictment when it instructed the jury that it could convict if it found that the component parts of ammunition allegedly possessed by the defendant had moved in interstate commerce, where the indictment charged that the assembled ammunition was possessed Ain and affecting commerce and there was no evidence to support this element as alleged). Possession of one firearm, if the firearm possessed contains characteristics that violate federal laws with differing elements, may result in multiple convictions and consecutive sentences, without violating the Double Jeopardy Clause. See, United States v. Mansolo, 129 F.3d 749 (5th Cir. 1997) (possession of stolen firearm that bore an obliterated serial number violated different statutes and allowed for consecutive sentences to be imposed). But multiple punishments ma y n o t be imposed for possessing a single firearm where solely because of the offender’s status, more than one subsection of § 922 (g) was violated. United States v. MunozRomo, 989 F.2d 757 (5th Cir. 1993) (reversing multiple punishments for illegal alien who was also convicted felon who possessed one firearm); United States v. Richardson, 439 F.3d 421 (8th Cir. 2006) (en banc) (one allowable unit of prosecution for being felon and drug user in possession of firearm). e. Felon Status. Section 922 (g)(1) of Title 18, prohibits anyone from possessing a firearm who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year. The phrase, Ain any court does not include foreign convictions. Small v. United States, 125 S.Ct. 175 (2005). Crime punishable by imprisonment for a term exceeding one year does not include (A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation 32
second Texas offense of simple drug possession was not an “aggravated felony” where the second conviction was not based on the fact of the prior conviction, a predicate necessary for the sentence to exceed one year. Several states have sentencing schemes that give rise to this issue, including MN, OR, TN, WA, AK, AZ, CA, CO, IN, NJ, NM, OH, AR, DE, MD, RI, UT, VA, MI, PA. A discussion of how these state sentencing schemes operate may be found at www.vera.org/sites/default/files/resources/ downloads/PPR82004.pdf. This issue can be complicated, but merits investigation anytime the government relies upon a conviction for a crime punishable by an indeterminate length. Convictions for state felony offenses that a state legislature later reclassifies as misdemeanors will result in a felony conviction if the reclassification was not made retroactive by the legislature. United States v. Schmidt, 487 F.3d 253 (5th Cir. 2007) (1985 Texas burglary of motor vehicle conviction was for felony even though in 1994 Texas modified violation to a Class A misdemeanor given retroactivity clause’s exclusion of past offenses from reach of change). The state conviction need not trigger a state firearms disability to serve as a predicate for a federal conviction under § 922(g)(1). United States v. Nix, 438 F.3d 1284 (11th Cir. 2006). The government can prove the defendant’s status as a convicted felon either through documentary proof or live testimony. Under Old Chief v. United States, 117 S.Ct. 644 (1997), however, the prosecution must accept a defendant’s offer to stipulate to this element of the offense. If the defendant refuses to stipulate, then the government may offer evidence of the name and nature of his prior offense. United States v. Barfield, 527 F.2d 858, 860-62 & n. 5 (5th Cir. 1976).
of business practices, or (B) any State offense classified by the laws of the State as misdemeanor and punishable by a term of imprisonment of two years or less. 18 U.S.C. § 921(20). To determine if a conviction falls within the business practice exclusion, courts distinguish between offenses under Title 18, which deals with crimes and criminal procedure, and offenses under Title 15, which involve commerce and trade. United States v. Schultz, 586 F.3d 526 (7th Cir. 2009) (felony conviction under 18 U.S.C. § 1029(a)(7) for trafficking in counterfeit cell phones was not excluded). Courts have also looked to whether the crime has as an element an effect on competition or consumers. United States v. Stanko, 491 F.3d 408 (8th Cir. 2007). The firearm disability depends upon the available length of imprisonment, not the label attached to the offense. Crimes labeled misdemeanors that are punishable by more than two years will prohibit firearms possession. The term punishable by imprisonment for a term exceeding one year” may include crimes such as first offender state jail felonies, which could not immediately result in incarceration, so long as eventually the necessary period of incarceration could be served. United States v. Murillo, 422 F.3d 1152 (9th Cir. 2005) (state statute, not guideline, determined if crime was punishable by term exceeding one year). But the question turns on how state law operates. United States v. Hill, 512 F.3d 1277 (10th Cir. 2008) (conviction was not “punishable” by more than a year because under Ka n s a s state guidelines su c h a l e n g t h y s e n t e n c e wa s n o t a v a i l a b l e without violating Apprendi). In United States v. Simmons¸649 F.3d 237 (4th Cir. 2011) (en banc), the Fourth Circuit held that a prior North Carolina conviction was not a felony for purposes of a § 841 enhancement because the defendant in that case could not have been sentenced to more than one years imprisonment, even though a hypothetical defendant with a worse criminal history could have faced more time. The Simmons court relied upon Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (2010), a case where the Supreme Court held that a defendant’s
f. Restoration of Civil Rights. A previous conviction does not serve as a predicate for a substantive violation of § 922(g) or an enhanced sentence under § 924(e) if the offender’s civil rights have 33
been restored, unless such ... restoration ... expressly provides that the person may not ... possess ... firearms. 18 U.S.C. § 921(a)(20). This section is commonly referred to as the “unless clause.” The Fifth Circuit takes a two-step approach to determine whether the unless clause” of § 921(a)(20) permits ex-felons to possess firearms. United States v. Chenowith, 459 F.3d 635 (5th Cir. 2006); United States v. Thomas, 991 F.2d 206 (5th Cir. 1993). First, the court asks whether the state which obtained the underlying conviction revives essentially all civil rights of convicted felons, whether affirmatively with an individualized certification or passively with automatic reinstatement. Id. at 213. Three fundamental civil rights must be restored: 1) the right to vote; 2) the right to seek and hold public office; and 3) the right to serve on a jury. United States v. Maines, 20 F.3d 1102, 1104 (10th Cir. 1994) (cited in United States v. Huff, 370 F.3d 454, 461 (5th Cir. 2004)). Second, the court determine[s] whether the defendant was nevertheless expressly deprived of the right to possess a firearm by some provision of the restoration law or procedure of the state of the underlying conviction. Id.; United States v. Richardson, 168 F.3d 836 (5th Cir. 1999) (Louisiana first offender pardon which restored all civil rights with exception of right to possess firearm, a right to be restored in 10 years, failed test). Restoration of both essentially all civil rights and the absence of an express firearm prohibition removes the conviction from the scope of § 922(g) and § 924(e). United States v. Gallaher, 275 F.3d 784, 791 (9th Cir. 2001). In Caron v. United States, 118 S.Ct. 2007 (1998) the Supreme Court interpreted the “unless clause” to mean that if the state imposed any limit on a felon’s possession of firearms then no firearms could be legally possessed by the felon. That is to say, the restoration of the right to possess firearms must be complete and unlimited. Caron involved a Massachusetts law that permitted felons whose civil rights were restored to possess rifles but not to carry handguns. The defendant possessed only
rifles, legal for him to possess under Massachusetts law. Caron held that under federal law, the state weapons limitation banned the defendant from possessing any firearms at all, even rifles, under federal law. Only the convicting state or jurisdiction has the power to undo a conviction and restore the right to possess firearms. Beecham v. United States, 114 S.Ct. 1669 (1994); United States v. Thomas, 991 F.2d 206, 214-5 (5th Cir. 1993), cert. denied, 510 U.S. 1014 (1993). Once the right to bear firearms is fully restored by the convicting state, later changes in the law that impair the exfelon’s right to possess a firearm are not relevant. United States v. Osborne, 262 F.3d 486 (5th Cir. 2001). Thus, in Osborne, the fact that Illinois, the state of conviction, later made it unlawful for the defendant to possess a firearm in that state was irrelevant under federal law. See also, United States v. Haynes, 961 F.2d 50, 53 (4th Cir. 1992) (analyzing only law in place at time defendant’s civil rights were restored); United States v. Traxel, 914 F.2d 119, 124 (8th Cir. 1990) (same); United States v. Cardwell, 967 F.2d 1349, 1350-51 (9th Cir. 1992) (plain meaning of use of present tense is that courts must determine effect of restoration of civil rights at time granted and not consider whether civil rights were later limited or expanded); United States v. Norman, 129 F.3d 1393, 1397 (10th Cir. 1997) (same). But see, Melvin v. United States, 78 F.3d 327 (7th Cir. 1996) (holding that a state may take away a restored felon’s right to possess a firearm, making possession unlawful under both state and federal law). State laws that permit a felon to possess a firearm do not operate to permit a felon to possess a firearm under federal law. United States v. Thomas, 991 F.2d 206 (5th Cir. 1993); United States v. Huff, 370 F.3d 454 (5th Cir. 2004) (same). In United States v. Daugherty, 264 F.3d 513 (5th Cir. 2001), the Fifth Circuit analyzed the “unless clause” together with the Texas probation statute and upheld a conviction where the defendant had served his period of probation, and the state court simply ordered 34
who retained civil rights at all times, and whose legal status, post-conviction, remained in all respects unaffected by any state dispensation. Logan v. United States, 128 S.Ct.475 (2007). Thus, in Logan, the defendant’s prior misdemeanor battery convictions failed to qualify under the ACCA§s civil rights restored exemption as the defendant’s civil rights remained unaffected post-conviction. Be aware, therefore, that seemingly minor convictions, such as those labeled misdemeanors, may later play a major role in both prohibiting a person from possessing a firearm and dramatically enhancing the person’s punishment. Each state has its own unique set of rules on restoration of civil rights for felons. In, Texas, a pardon will normally be required for full restoration of civil rights. Many other states (including Louisiana), automatically restore felons civil rights after certain periods of time from when the defendants completed their sentence (typically five years). Many such states also do not limit ex-felon’s rights to possess firearms. A common exception in many states that restore ex-felon’s rights to possess firearms are persons convicted of violent or drug felonies, who have a more difficult time getting their rights to possess firearms restored. In felon-in-possession cases, particularly ones involving an out-ofstate prior felony conviction, one should check to see if the defendant’s civil rights (including his right to possess firearms) were restored under state law at some point prior to the alleged unlawful possession of the firearm. One excellent source for this research can be found on-line in the Restoration of Rights Project at https://ccresources.org/staterestoration-profiles (last visited 8/13/2020). The website contains a state by state review of loss and restoration of civil/firearms rights. It also includes information regarding state laws covering pardon policy and practice and expunction of records. Such research may also require phone calls to the board of pardons and parole (or similarly-named agency) of the state at issue. If the defendant received a
that "the Defendant is discharged from probation." Id. 264 F.3d at 514 n. 1. The court found that the defendant’s rights "were passively revived by operation of law, not by individualized certification," Id. 264 F.3d at 516, yet concluded, based on a review of federal and Texas precedent that, for purposes of § 922(g)(1), the defendant "remained convicted even after successfully completing probation." Id. To reach its decision, the court reasoned that Texas law did not explain whether successful completion of probation supervision renders one no longer convicted, Id. at 515, and pointed to Supreme Court precedent that treated ex-probationers as convicted. Id. (citing Dickerson v. New Banner Inst., 103 S.Ct. 986 (1983); see also, United States v. Padia, 584 F.2d 85, 86 (5th Cir. 1978)(affirming conviction of ex-probationer/felon for receiving firearm). Different facts produced a different result in United States v. Fix, 264 F.2d 532 (5th Cir. 2001), where the defendant, after completing a Texas probation for arson, filed a successful motion to set aside his sentence of probation, grant a new trial, and to dismiss the matter. Because the order discharging Fix from probation also granted a new trial and dismissed the matter, the Fifth Circuit held that Fix was no longer a convicted felon prohibited from possessing a firearm under federal law. The Fix case may be an anomaly as article 40.08 of the Texas Code of Criminal Procedure, in effect at the time of Fix’s dismissal, was repealed in 1986. See also, United States v. Huff, 370 F.3d 454 (5th Cir. 2004)(felon who discharged Texas parole failed to show that any civil rights were restored under Texas law). In United States v. Chenowith, 459 F.3d 635 (5th Cir. 2006), the Fifth Circuit found that a defendant’s civil rights were restored affirmatively by certificate, rather than by operation of law, and because such certificate did not expressly prohibit the defendants possessing firearms, the defendant was not subject to prosecution under § 922 (g). Chenowith involved an Ohio conviction. The exemption contained in § 920(a)(20) for the restoration of civil rights does not cover the case of an offender
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certificate or official letter restoring his civil rights when he was discharged from his sentence, such a document will suffice as a matter of law, so long as it did not expressly limit his rights regarding firearms. See, e.g., United States v. Gallaher, 275 F.3d 784, 791 (9th Cir. 2001); United States v. Erwin, 902 F.2d 510, 512-13 (7th Cir. 1990). While 18 U.S.C. § 925(c) authorizes the removal of federal firearms disabilities that result from felony convictions, Congress refuses to appropriate funds to allow the ATF to process applications for the removal of firearms disabilities. In United States v. Bean, 123 S.Ct. 584 (2002), the Supreme Court held that an actual denial of relief from firearms disabilities was a prerequisite to judicial review. The ATF§s failure to process applications thus operates to keep federal courts from acting to restore a person’s civil rights.
United States v. Davis, 571 F.2d 1354 (5th Cir. 1978)(Fed. R. Evid 803 (6) did not allow for admission of ATF Form 5720.4 to show origin of gun’s manufacture); United States v. Houser, 746 F.2d 55 (D.C. Cir. 1984) (same); cf., United States. v. Johnson, 722 F.2d 407 (8th Cir. 1983) (relevancy objection failed to preserve hearsay complaint on appeal concerning manufacturer records mailed to ATF, noting that serial number report portion of exhibit admissible under Fed. R. Evid. 803 (8) as official record, but portion of exhibit certifying that gun was manufactured in Florida and mailed to California should have been stricken as hearsay if proper objection was made); United States v. Simmons, 773 F.2d 1455 (4th Cir. 1985) (affirming admission of ATF trace form under Fed. R. Evid. 803(24), residual hearsay exception, given advance notice to defense counsel of government’s intent to introduce exhibit at trial, and rejecting Sixth Amendment Confrontation Clause challenge to admission of exhibit). The admissibility of such testimonial evidence under the residual hearsay exception is now highly doubtful after Crawford v. Washington, 541 U.S. 36 (2004), which held that the Sixth Amendment’s Confrontation Clause forbade the introduction of such evidence, unless the declarant testified at trial or the right to confrontation was otherwise honored. Other methods of proof include showing that the defendant, found in one state, had bought the gun in another state, United States v. Lehmann, 613 F.2d 130 (5th Cir. 1980), and that the inscription on the gun indicated a foreign origin. United States. v. Alvarez, 972 F.2d 1000, 1004 (9th Cir. 1992), cert. denied, 507 U.S. 977 (1993). It is not necessary for the government to show that the defendant moved the weapon in interstate commerce. U.S. v. Wallace, 889 F.2d 580, 583 (5th Cir. 1989), cert. denied, 497 U.S. 1006 (1990).
g. Interstate Commerce. Typically, the interstate commerce element is shown with proof that the gun was manufactured in another state. United States v. Pierson, 139 F.3d 501 (5th Cir. 1998); United States v. Harper, 802 F.2d 115 (5th Cir. 1986). The indictment must allege and the evidence must establish that the ammunition or firearm possessed was possessed Ain and affecting commerce. United States v. Chambers, 408 F.3d 237 (5th Cir. 2005) (reversed and judgment of acquittal entered where evidence at trial showed component parts of ammunition, not ammunition itself, the article described in the indictment, was possessed Ain an affecting commerce). The government often uses the expert testimony of ATF agents to prove this. Id.; United States v. Wallace, 889 F.2d 580 (5th Cir. 1989) (gun markings, though hearsay, may be relied upon by expert under Fed. R. Evid. 702 and 703 to formulate opinion concerning weapon’s origin). However, the introduction of BATF trace forms (Form 7520.5) as a business record has been rejected by courts if the way such forms were completed does not meet the necessary evidentiary foundations. See
h. Second Amendment. In District of Columbia v. Heller, 128 S.Ct. 2783 (2008), the Supreme Court held that the Second Amendment protected an individual right to bear firearms unconnected with 36
service in a militia, for self-defense. Nonetheless, the Court made clear that this right to bear arms was not unlimited, and that its opinion should not cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of firearms. See also, McDonald v. Chicago, 130 S.Ct. 3020 (2010)(Fourteenth Amendment incorporated the Second Amendment right recognized in Heller, extending right to bear arms to states). The Second and Ninth Circuit held that Heller’s list of presumptively lawful regulations was not dicta. United States v. Rozier, 598 F.3d 768, 771 n.6 (11th Cir. 2010); United States v. Vongxay, 594 F.3d 1111, 1115, (9th Cir. 2010). Other courts of appeal, though, having characterized the language regarding presumptively lawful regulations as dicta, have used the language to reaffirm the constitutionality of § 922(g)(1). United States v. Scoggins, 599 F.3d 433, 451 (5th Cir. 2010); United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009)(Tymkovich, J., concurring); United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010)(en banc). One may nevertheless assert the Second Amendment right to bear arms in other firearms prosecutions where the government’s interest in disarming the citizen is not so clear as when the government disarms a convicted felon. Also, these precedents do not bar an as-applied challenge, which would require the defendant to present facts about himself/herself that distinguish his/her circumstances from those of persons historically barred from Second Amendment protections. United States v. Barton, 633 F.3d 168 (3d Cir. 2011). For example, a felon convicted of a minor, nonviolent crime might show that he is not more dangerous than a typical law-abiding citizen. Id. Similarly, a felon whose conviction was decades old could convince a court that he had a constitutional right to keep and bear arms. Id. The North Carolina
Supreme Court did just that in Britt v. State, 681 S.E.2d 320 (N.C. 2009), finding that a felon convicted in 1979 of one count of possession of a controlled substance with intent to distribute had a constitutional right to keep and bear arms as that right was understood under the North Carolina Constitution. Id. at 323. 2. Possession of Firearm By an Unlawful User or Addict of Controlled Substance:18 U.S.C. § 922(g)(3) This law prohibits any person who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802)) to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. [A]n unlawful user” was left undefined in the statute so the term’s meaning has been left for courts to construe. Courts agree that proof of continuity or prolonged drug use, that is, more than occasional use of a drug, is necessary to show one is an “unlawful user.” See, United States v. Jackson, 280 F.3d 403 (4th Cir. 2002). In United States v. Herrera, 289 F.3d 311 (5th Cir. 2002), the Fifth Circuit weighed in, holding that an unlawful user required proof that a defendant’s use of drugs just fell short of addiction. Id. at 323. But the panel opinion was overruled by the en banc court in United States v. Herrera, 313 F.3d 882 (5th Cir. 2002). Herrera II did not reach the meaning of unlawful user as the en banc court found that because the defense objected to the sufficiency of evidence as to the addicted to alternative it procedurally defaulted the complaint on the “unlawful user” prong. Applying plain error review, the court found no “miscarriage of justice” resulted from the conviction that demanded correction, as the defendant admitted using marihuana and cocaine for years, and to possessing a firearm during two years of the pertinent period. This 37
firearm, officer who arrested defendant claimed he smelled marijuana, defendant had only a small amount of marijuana on his person, consistent with personal use, firearms were found in car, and during separate incident a month before the arrest, the defendant confronted a witness about the theft of marijuana and became angry and fired gun in the air). The lesson to be learned from Herrera II goes beyond the meaning of unlawful user; that is, keep sufficiency of evidence objections general – object at the close of the government’s case that the evidence is insufficient as to each element. Herrera II illustrates that specificity will narrow appellate review only to the ground asserted and cause default on other grounds not specified in the objection.
record therefore was not devoid of evidence to support the conviction. Herrera, 313 F.3d at 885. In any event, the government in Herrera II conceded in its supplemental brief en banc and at oral argument that a defendant’s drug use would have to be with regularity and over an extended period of time to be an unlawful user for § 922(g)(3) purposes. Id. at 885. In United States v. Patterson, 431 F.3d 832 (5th Cir.) cert. denied, 126 S.Ct. 2043 (2005), the Fifth Circuit rejected a due process vagueness challenge to the “unlawful user” prong and found that an ordinary person would conclude that the defendant actions established him to be an unlawful user. The defendant admitted that he regularly used marijuana and would have difficulty complying with a release condition that required him not to use marijuana, and a urine specimen taken one week later tested positive for the drug. Police also found plastic bags containing marijuana, a metal canister that held rolling papers, a lighter, two pipes, marijuana residue in the pipes, and “High Times” magazine. Buckets outside the home contained live marihuana plants. The jury in Patterson was instructed on the meaning of “unlawful user” in the same way as was the jury in Herrera: “the term means one who uses narcotics so frequently and in such quantities as to lose the power of selfcontrol and thereby pose a danger to the public morals, health, safety, or welfare. An inference that a person was a user of a controlled substance may be drawn from evidence of a pattern of use or possession of a controlled substance that reasonably covers the time the firearm was possessed.” The Patterson court held this definition to be erroneous but found the error harmless because the defendant suffered no injustice as he would have been convicted even if the jury had been correctly charged. The Patterson court pointed to the second sentence of the instruction as properly guiding the jury. See also, United States v. Mack, 343 F.3d 929 (8th Cir.) cert. denied, 124 S.Ct. 1524 (2004) (evidence sufficient to show defendant was an unlawful user of marijuana during the time he possessed
3. Possession of Firearm By a Person under Protective Order: 18 USC § 922(g)(8) a. Elements of Proof. This statute makes it unlawful for a person to possess a firearm who is under a protective court order that was issued after a hearing. To qualify, the protective order must: 1) be issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate, 18 USC § 922(g)(8)(A); 2) restrain the person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, 18 USC § 922 (g)(8)(B); and 3) include[] a finding that such person represents a credible threat to the physical safety of such intimate partner or child ... or by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury..... 18 USC § 922 (g)(8)(C)(ii). The protective order must contain explicit terms substantially similar in meaning to the language set out in (8)(C)(ii). United States 38
allege the required mental state, knowingly”, did not render it fundamentally defective because the facts set forth in the indictment, that the defendant possessed a firearm at the time when he was subject to a court order issued after a hearing B of which he received actual notice and an opportunity to participate B and the court order restrained the defendant from harassing, stalking, or threatening Michelle Henry, ... or their children, or engaging in other conduct that would place Michelle Henry or her children in reasonable fear of bodily injury ...., … fairly imported the knowledge requirement in the statute. In United States v. Spruill, 292 F.3d 207 (5th Cir. 2002), the court interpreted the statute’s after a hearing requirement and held that a protective order issued under Texas’s "agreed order" family law provision was insufficient to satisfy the after a hearing requirement. The Spruill court was troubled by the absence of hearing date setting, or of any hearing, that the parties never appeared before a judge, and that the defendant/husband was not represented by counsel. That the husband could have requested a hearing while discussing the agreed order prior to signing it did not alter the outcome. Spruill construed the hearing requirement narrowly, mindful of the constitutional implications that a broader construction would have upon the federal-state balance. That is, a broader construction could unnecessarily test the statute’s constitutionality. This is not to say that agreed orders cannot serve as the basis for a § 922(g)(8) prosecution. United States v. Banks, 339 F.3d 267 (5th Cir. 2003). What is required is that there be a hearing set, that the defendant receive notice of the hearing, that he appear, that a judge be present and provide the parties with the opportunity to present evidence. A defendant cannot escape federal prosecution by consenting to an agreed order. Id. The Spruill court was troubled because the defendant did not have counsel, was illiterate, and no hearing was set.
v. Dubose, 598 F.3d 726, 730-731 (11th Cir. 2010) (order expressly prohibited defendant “from intimidating, threatening, hurting, [or] harassing” his intimate partner); United States v. Bostic, 168 F.3d 718, 722 (4th Cir. 1999) (order directed defendant to “refrain from abusing” his intimate partner). The order does not need to track the statutory language. United States v. Dubose, 598 F.3d 726 (11th Cir. 2010) (order’s language restraining Dubose from “hurting” his wife and children fell within parameters of statute that required order to prohibit defendant from “the use, attempted use, or threatened use of physical force” against family members). In United States v. McGinnis, 956 F.3d 747 (5th Cir. 2020), the Fifth Circuit followed Dubose and Bostic, took a “common sense” approach and found that a protective order prohibiting acts involving “physical force” satisfied the statute’s requirements. In some cases, the language in the protective order will be inadequate. An order that merely requires “no contact” does not prohibit such activity and will not disarm the person under federal law. United States v. Sanchez, 639 F.3d 1201 (9th Cir. 2011). Defendants are not entitled to collaterally attack the validity of, or process leading to the issuance of the order. United States v. Dubose, 598 F.3d 726 (11th Cir. 2012); United States v. Hicks, 389 F.3d 514 (5th Cir. 2004). A defendant must attack and invalidate the order before possessing the firearm. Id. The necessary mens rea does not require knowledge that one is violating the law, but merely knowledge of the legally relevant facts. United States v. Emerson, 270 F.3d 203, 215-217 (5th Cir. 2001) cert. denied, 122 S.Ct. 2362 (2002). Thus, in United States v. Henry, 288 F.3d 657 (5th Cir. 2002), the court found that an indictment’s failure to specifically allege that the defendant knew it was against the law to possess a firearm while under a state court protective order did not render the indictment fundamentally defective. Henry also held that the indictment’s failure to
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b. Second Amendment. As was noted above, in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), the Supreme Court explicitly held that the Second Amendment protected an individual right to bear firearms unconnected with service in a militia. Nonetheless, the Court made clear that this right to bear arms was not unlimited, and that its opinion should not cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of firearms. In United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), decided before Heller, the Fifth Circuit held the statute did not violate the Second Amendment right to bear arms. This was groundbreaking because for the first time the court recognized the Second Amendment conferred an individual right to possess firearms. After Heller, the Fifth Circuit revisited the Second Amendment issue in United States v. McGinnis, 956 F.3d 747 (5th Cir. 2020). It employed a two-step inquiry: 1) does the conduct prohibited at issue fall within the scope of the Second Amendment right; if so, 2) applying the appropriate level of scrutiny, is the law constitutional. McGinnis determined that intermediate scrutiny applied, as the law at issue applied to a “discrete class of individuals and critically, the discrete class was comprised of individuals who, after an actual hearing with prior notice and an opportunity to participate, had been found by a state court to pose a real threat or danger of injury to the protected party, so the discrete group was no comprised of responsible citizens protected by the Second Amendment.” McGinnis, 956 F.3d at 758. Because the law was reasonably adapted to important government interests in reducing domestic gun abuse, resting as it did on a link between domestic abuse, recidivism and gun violence, it was constitutional.
4. Possession of Firearm by Person convicted of Misdemeanor Crime of Domestic Violence:18 USC § 922(g)(9) The statute makes it unlawful for one who has been convicted in any court of a misdemeanor crime of domestic violence to possess a firearm. Section 921(a)(33)(A) defines misdemeanor crime of domestic violence. It provides that the offense must have as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.... In United States v. Castleman, 134 S.Ct. 1405 (2014), the Supreme Court held that the “physical force” required to satisfy the definition of “misdemeanor crime of domestic violence” was the degree of force that supported a common-law battery conviction – namely, offensive touching. Castleman recognized the apparent conflict with Johnson v. United States, 130 S.Ct. 1265 (2010), which construed the “force clause” in the Armed Career Criminal Act (ACCA) to require violent force. Castleman reconciled Johnson by pointing out that Congress had a different kind of force in mind when it enacted the ACCA and intended for the statute to be interpreted in the unique context of domestic violence cases to reach a broader type of case often used to prosecute domestic abusers, like misdemeanor assault. Castleman mended a split among the circuits. Courts look to the statute (not the underlying conduct) upon which the predicate conviction was based, to determine whether the elements meet the test, employing the categorical approach. United States v. White, 258 F.3d 374 (5th Cir. 2001). In White, the Fifth Circuit held that convictions under Texas law 40
proscribing reckless conduct and terroristic threats did not qualify as predicate convictions for domestic violence, even though the reckless conduct predicate stated that the defendant pointed a firearm at his spouse, and the terroristic threat predicate offense stated that the defendant threatened to kill his former spouse. White found that neither offense, upon review of the statutory elements, contained the necessary element of attempted use of physical force, or threatened use of a deadly weapon regardless of the manner and means alleged in the charging document. See also, United States v. Howell¸531 F.3d 621 (8th Cir. 2008)(holding that statute that criminalized reckless “conduct which creates a grave risk of death or serious physical injury to another” was a catchall provision that applied to a wide range of factual situations including those that did not always or ordinarily require a completed use of physical force, conviction therefore did not qualify). These decisions did not turn on the meaning of “physical force” and may remain viable post Castleman. But see, United States v. Voisine, 778 F.3d 176 (1st Cir. 2015)(applying Castleman to hold that even though state statutes allowed conviction based on a recklessness mens rea, defendant was convicted of “misdemeanor crime of domestic violence,” as reckless assault qualifies as the “use of physical force” within the statute’s meaning). The Maine assault statute interpreted in Voisine was identical to the Texas assault statute. In United States v. Hayes, 129 S.Ct. 1079 (2009), the Supreme Court resolved a circuit split and held that the domestic relationship did not need to be a defining element of the predicate conviction, although it needed to be established beyond a reasonable doubt. The phrase co-habit as a spouse and similarly situated to a spouse contained in § 921(a)(33)(A) are not defined in the statute. A live-in girlfriend qualifies as such a term implies sexual relations. Shelton, 325 F.3d at 562. As does a person with whom one has engaged in a long-term extra-marital affair. United States v. Schoenauer, 354
F.3d 969 (8th Cir. 2004) judgment vacated, case remanded on other grounds, 125 S.Ct. 1050 (2005)(also rejecting due process vagueness challenge, based on defendant’s contention that two lawyers advised him misdemeanor assault conviction involving secretary would not disqualify him from possessing firearm under federal law). Section 922(g)(9), post Rehaif, requires the government to prove that the defendant knew he belonged to this prohibited class of persons. United States v. Triggs, 963 F.3d 710 (7th Cir. 2020). Given the legal complexities inherent in this determination as discussed above, it will be harder for the government to prove such knowledge. Conversely, it will be easier for defendants to “plausibly argue” that they would not have pled guilty had they known that the government had to prove this knowledge element, the prejudice showing needed to withdraw a guilty plea. Triggs, 963 F.3d at 712. Federal law does not consider persons to have been convicted of a misdemeanor crime of domestic violence unless the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case... 18 U.S.C. § 921 (a)(33)(B). Courts addressing the question of whether counsel was provided or waived view the issue as a matter of law, rather than as a matter to be decided by a jury as an element of the crime. United States v. Bethurum, 343 F.3d 712 (5th Cir. 2003) (§ 921(a)(33) sets forth legal test for judge not jury to determine); United States v. Hartsock, 347 F.3d 1, 7 (1st Cir. 2003) (holding absence of waiver is an affirmative defense); United States v. Akins, 276 F.3d 1141, 1145 (9th Cir. 2002) (same). The Hartsock court held that the defendant bears the burden of production and persuasion on this issue. Id. In considering whether a defendant knowingly and intelligently waived counsel for purposes of § 922(g)(9) and § 921(a)(33)(B)(I), courts generally apply the same principle when analyzing waiver of counsel under the Sixth Amendment. United States v. Pfeifer, 371 F.3d 430 (8th Cir. 2004). While the waiver 41
alien illegally or unlawfully in the United States. The words “illegally and unlawfully are not defined in the statute. Whether an alien qualifies as a prohibited person under this subsection depends on whether the alien has been granted lawful status to remain in the United States at the time the firearm was possessed. In Rehaif v. United States, 139 S.Ct. 2191 (2019), the Supreme Court held that the government was required to prove the alien knew he was “illegally” or “unlawfully” in the United States. The status of lawful status decides the lawfulness of a firearm’s possession. An alien who has applied for but has not yet been granted lawful status to be in the United States violates the law by possessing a firearm. For example, in United States v. Flores, 404 F.3d 320 (5th Cir. 2005) the Fifth Circuit held that a defendant who has an application pending to obtain temporary protected status was still a prohibited person, even though he had received temporary treatment benefits due to the application. It reached a different conclusion where the alien was granted temporary protected status and held, applying the rule of lenity, that it could not say with certainty that Congress intended to criminalize the possession of firearms by such aliens. United States v. Orellana, 405 F.3d 360 (5th Cir. 2005). That is, an alien’s presence became lawful for purposes of the firearms statute once TPS status was conferred upon the alien. Id. See also, United States v. Lucio, 428 F.3d 519 (5th Cir. 2005) (work authorization and stay of removal order pending decision by immigration court on residency application did not make alien’s presence in U.S. lawful so as to allow alien to possess firearm); United States v. Elrawy, 448 F.3 309 (5th Cir. 2006) (applying Lucio, alien who acquired unlawful or illegal status by overstaying visa maintains such illegal status until his application for adjustment of status is approved). In all cases, the government must establish that the alien entered the United States. United States v. Lopez-Perera, 438 F.3d 932 (9th Cir. 2006) (alien who was
must be knowing, voluntary, and intelligent, Iowa v. Tovar, 124 S.Ct. 1379 (2004), it does not require that the defendant be told that the conviction could affect his future ability to possess a firearm. Bethurum, 343 F.3d at 718 (holding that ability to possess firearm is collateral matter, so defendant need not be warned about such a consequence in connection with giving up the right to counsel). The lack of a firearm prohibition warning makes proving knowledge of prohibited status even harder. Interestingly, § 922(g)(9) contains its own restoration-of-rights exemption. 18 U.S.C. § 921(a)(33)(B)(ii). Some states take away a person’s civil rights if they have been convicted of domestic violence, others do not. Someone who has never lost his civil rights cannot have them restored for purposes of a restoration-of-rights exemption. Logan v. United States, 128 S.Ct. 475 (2007). That is, one cannot have replaced what was never taken away. Therefore, a person convicted of a domestic violence crime may not possess firearms under federal law unless the state took their civil rights away due to the conviction and later restored them. In United States v. Skoien, 614 F.3d 638 (7th Cir. 2010), the Seventh Circuits looked at this ban on gun possession by domestic abusers and found it did not violate their Second Amendment right to armed self-defense as set forth in Heller, on the basis that “logic and data” demonstrate “a substantial relation between § 922(g)(9) and [an important governmental] objective); See also, United States v. White, 593 F.3d 1199 (11th Cir. 2010) (affirming constitutionality of ban); United States v. Booker, 644 F.3d 12 (1st Cir. 2011)(same); United States v. Staten, 666 F.3d 154 (4th Cir. 2011)(applying intermediate scrutiny and upholding ban). 5. Possession of Firearm by an Alien Illegally or Unlawfully in the United States: 18 USC § 922(g)(5) This statute makes it illegal for a person to possess a firearm while being an
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detained by border personnel as he attempted to cross into US after leaving secondary clearance area without clearance never entered US to violate law by possessing firearm found in vehicle in the United States because alien was never free from official restraint). Aliens unlawfully in the United States do not enjoy a right under the Second Amendment to possess firearms. United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir.) cert. denied, 132 S.Ct. 1969 (2012). The Fifth Circuit found in PortilloMunoz that illegal aliens were not in the class of “the people” referred to in the Second Amendment.
because the Texas’s deferred adjudication scheme left a defendant with a pending charge while on probation, he was under indictment” during the term of probation. Id. The Eighth Circuit reached the opposite outcome in United States v. Hill, 210 F.3d 881, 883-84 (8th Cir. 2000) applying Missouri’s suspended sentencing scheme. The court in Hill held that because the purpose of indictment was to give notice of the charges, and this function was extinguished after a guilty plea, the defendant was no longer under indictment” once he pled guilty. One may therefore be under indictment while on deferred adjudication in Texas, but not be under indictment” while on deferred adjudication in Missouri. The Valentine court accounted for the different result by referring to decisions construing the Texas deferred adjudication statute which found that deferred adjudication left a charge pending against the defendant. Although § 922(n) does not contain a mens rea requirement, the relevant sentencing provision, § 924 (a)(1)(D) requires that a violation be committed willfully. The term “willfully” requires that a defendant acted with knowledge that his or her conduct was unlawful. Dixon v. United States, 126 S. Ct. 2437, 2441 (2006)(citing, Bryan v. United States, 118 S. Ct. 1939 (1998)). It does not require the government to prove that the defendant knew why his or her conduct was illegal, or that the defendant knew what law he or she violated. United States v. Lipp, 533 Fed. Appx. 418 (5th Cir. 2013)(unpublished). Evidence showing the defendant lied about his conduct, or gave shifting explanations about the gun’s ownership, may be enough to support a conviction. Id. The statutory maximum penalty for violating this law is 5 years. 18 U.S.C. § 924 (a)(1)(D).
6. Receipt of Firearm by Person under Indictment: 18 USC § 922(n) This statute prohibits a person under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm that had been shipped or transported in interstate or foreign commerce. The term “indictment” is defined in 18 U.S.C. § 921(a)(14) and “includes an indictment or information in any court under which a crime punishable by imprisonment for a term exceeding one year may be prosecuted.” The crime becomes complete when the person acquires the firearm while under indictment. Subsequently quashing the indictment will not serve to retroactively vacate criminal liability under the statute. Unites States v. Chambers, 922 F.3d 228 (5th Cir. 1991). What it means to be under indictment is not defined in the statute and decided by interpreting state law. United States v. Chapman, 7 F.3d 66 (5th Cir. 1993). State laws vary and defendants may be unaware of their status. The Fifth Circuit decided the question of whether being under Texas felony deferred adjudication was tantamount to being under indictment in United States v. Valentine, 401 F.3d 609 (5th Cir. 2005). The court found that
7. Carry or Use of Firearm During Violent or Drug Crimes: 18 USC § 924(c)
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a. Elements of Proof. Section 924(c), of Title 18, requires a consecutive
(c)(1)(B)(i). A 30-year minimum applies if the weapon is a “machinegun or a destructive device, or equipped with a firearm silencer or muffler.” 18 USC § 924 (c)(1)(B)(ii). See, United States v. O’Brien, 130 S.Ct. 2169 (2010) (fact that a firearm was a machinegun was an element to be proved to the jury beyond a reasonable doubt). Strict liability applies and the government need not prove a defendant knew the gun was a machine gun. United States v. Burrell, 692 F.3d 500 (D.C. Cir. 2012). The law’s silence concerning the maximum penalty available implicitly authorizes a life sentence. United States v. Sias, 227 F.3d 244 (5th Cir. 2000); United States v. Fields, 923 F.2d (5th Cir. 1991); United States v. Brame, 997 F.2d 1426 (11th Cir. 1993). To prove aiding and abetting a § 924 (c) offense under 18 U.S.C. § 2, the government must prove that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a participant would use or carry a gun during the crime’s commission. Rosemond v. United States, 134 S.Ct. 1240 (2014). In Rosemond, the jury instruction erred because it failed to require the jury to find that the defendant knew in advance that someone would be armed. The Rosemond court said that advance knowledge meant knowledge obtained in time for the defendant to have a reasonable opportunity to withdraw from participation. It was not enough for the jury instruction to require the jury to find that the defendant knew his cohort used a firearm. The charge should have further inquired as to when the defendant acquired knowledge of the firearm. This was necessary to set apart the predicate crime from the broader firearm crime. By requiring proof of advance knowledge, the defendant would have the opportunity to walk away from the more serious crime. In United States v. Cooper, 979 F.3d 1084 (5th Cir. 2020), the Fifth Circuit observed that Rosemond’s advanced knowledge requirement was met when the defendant admitted in the factual basis to his guilty plea that he knowingly possessed a firearm and methamphetamine found in a
sentence of not less than five years for any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm. It also punishes anyone who, in furtherance of any such crime, possesses a firearm to a minimum five-year sentence. These constitute two ways of violating § 924(c) and are separate and distinct offenses. United States v. Combs, 369 F.3d 925, 330-33 (6th Cir. 2004). Indictments that charge both violations in one count violate the rule against duplicity. United States v. Savoires, 430 F.3d 376 (6th Cir. 2005). Other acts with firearms carry higher statutory minimums. If a firearm is brandished, the mandatory minimum sentence increases to seven years, and if the firearm is discharged, the mandatory minimum sentence goes up to ten years. The term brandish means to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, to intimidate that person, regardless of whether the firearm is directly visible to that person. 18 U.S.C. § 924 (c)(4). Discharge, unlike brandish, requires no intent, and an accidental discharge of a firearm will suffice to support the ten-year minimum. Dean v. United States, 129 S.Ct. 1849 (2009). Facts that trigger the minimum penalty, such as brandishing or discharge of a weapon, are elements of the offense and must be charged and proven to a jury beyond a reasonable doubt. Alleyne v. United States, 133 S.Ct. 2151 (2013) (overruling Harris v. United States, 122 S.Ct. 2406 (2002)). Accidental discharges fall within the reach of the statute. Regardless of whether the firearm was used, carried, possessed, brandished, or discharged, § 924(c) requires such acts to be during and in relation to a crime of violence or drug trafficking crime. Section 924(c) also provides for additional mandatory minimum penalties for listed types of firearms or accessories. A 10-year minimum applies if the weapon possessed is a “short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon.” 18 USC § 924
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a § 2255 petition finding that kidnapping lacked force as an element and could only fit under the no longer valid residual clause. See also, United States v. Dixon, 799 F. App’x 308 (5th Cir. 2020) (authorizing successor § 2255 petition that asserted kidnapping predicate lacked force element). Courts look to the elements of the offense, not the underlying conduct. The statute does not require that the defendant be convicted of the underlying crime. United States v. Munoz-Fabela, 896 F.2d 908, 910-11 (5th Cir.) cert. denied, 498 U.S. 824 (1990)(drug charge contained in indictment was dismissed). It is the fact of the offense, and not a conviction, that is needed to establish the required predicate. Id. Moreover, acquittal of the predicate offense does not preclude conviction under § 924 (c)(1) when there is ample evidence showing that a reasonable jury could have found the defendant guilty of the predicate offense. United States v. Ruiz, 986 F.2d 905, 911 (5th Cir.), cert. denied, 510 U.S. 848 (1993). Yet insufficient evidence as a matter of law with respect to the underlying crime will not support a § 924(c) conviction. United States v. Harris, 420 F.3d 467 (5th Cir. 2005) (reversal of carjacking conviction for insufficient evidence required reversal of § 924(c) conviction); United States v. Burton, 324 F.3d 768 (5th Cir. 2003) (same). Usually, the predicate crime of violence or drug trafficking crime will be charged in a separate count of the indictment. If so, the trial court will instruct the jury as a matter of law that the predicate offense is either a violent or drug offense after examining the appropriate state or federal statute. United States v. Credit, 95 F.3d 362 (5th Cir. 1996), cert. denied, 117 S.Ct. 1008 (1997).
codefendant’s backpack on the floorboard of a vehicle he operated. An inoperable gun is still a firearm under 924(c). United States v. Coburn, 876 F.2d 372 (5th Cir. 1989). Such dysfunctionality, however, could weigh against a finding that the firearm was possessed in connection with an underlying crime. A defendant charged with this offense need not have knowledge that the use or carrying of the firearm is illegal; he only must have knowledge of the manner of the gun’s use, or knowledge of the facts constituting the offense. United States v. Wilson, 884 F.2d 174 (5th Cir. 1989). If the indictment alleges a conspiracy, then a co-conspirator may be held liable for another coconspirator’s acts constituting a violation of 924 (c) under Pinkerton v. United States, 328 U.S. 640 (1946), even though the co-conspirator lacks knowledge of the violation. United States v. Raborn, 872 F.2d 589, 596 (5th Cir. 1989). b. The Underlying Crime. “[A]ny “crime of violence or drug trafficking crime” qualifies as a predicate offense. Sections 924(c)(2) and (3) define these terms. A drug trafficking crime means any felony punishable under the Controlled Substance Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46. The underlying drug trafficking crime must be federal. A “crime of violence” means a felony offense that has as an element the use of physical force against the person or property of another.” 18 USC § 924 (c)(3)(A). The residual clause definition of crime of violence in § 924 (c)(3)(B) - a crime that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense” – was struck down as unconstitutionally vague in United States v. Davis, 139 S. Ct. 2319 (2019). The categorical approach determines whether a crime fits the elements definition. In United States v. Carreon, 803 Fed. App’x 790 (5th Cir. 2020) the Fifth Circuit granted
c. Use. In Bailey v. United States, 516 U.S. 137 (1995), the Supreme Court held that to show use required evidence sufficient to show active employment of the firearm by the defendant. 516 U.S. at 145. The Court rejected the lower court’s definition of use, as that definition was virtually synonymous 45
with possession.Id. Proof of mere proximity and accessibility is not sufficient, although if the defendant had the firearm with him during the crime that fact would be sufficient under the carrying prong. Id. at 145. Many types of use of the firearm will sustain a conviction, such as trading the gun for drugs. Smith v. United States, 508 U.S. 223 (1993). The reverse of Smith, that is, accepting a firearm in payment for drugs, does not constitute use of the firearm under §924 (c). United States v. Watson, 128 S.Ct. 579 (2007). It is not enough for guns and drugs to be found together. United States v. Dickey, 102 F.3d 157 (5th Cir. 1996)(guns in house where crack found not sufficient); United States v. Brown, 102 F.3d 1390 (5th Cir. 1996), cert. denied, 117 S.Ct. 1455 (1997) (guns and crack in safe insufficient); United States v. Garcia, 86 F.3d 394 (5th Cir. 1996), cert. denied, 117 S.Ct. 752 (1997)(lookout with gun in waistband insufficient). These facts may satisfy the possession element under the present version of §924(c).
also, United States v. McPhail, 112 F.3d 197 (5th Cir. 1997)(carry conviction reversed because defendant and drugs found in house while gun found in parked vehicle in drive-way and no evidence to show that vehicle moved); United States v. Wilson, 77 F.3d 105, 110 (5th Cir. 1996)(mere presence of guns in house where drug money stored and counted insufficient). While accepting a firearm in simultaneous payment for drugs may not constitute “use,” it may support a conviction under the “carry” prong because upon receiving the gun the defendant carries it away with him. United States v. Benitez, 809 F.3d 243, 248 (5th Cir. 2015). e. “In Relation To.” In Smith v. United States, 508 U.S. 223 (1993), the Supreme Court construed the phrase in relation to and held that the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence. In Smith, the conviction under 924(c) stood where the defendant traded firearms for drugs. In United States v. Schmalzried, 152 F.3d 354 (5th Cir. 1998), the court held that a gun found in the defendant’s wife’s purse was not sufficiently related to the drug offense to satisfy the element. In Schmalzried, there was evidence that the defendant was part of a drug conspiracy whose members admitted that they relied on guns to protect their wares. The gun was placed in the wife’s purse inside the couple’s home before manufacturing methamphetamine in the kitchen. The majority pointed out that there was no evidence as to where the gun had been located before the defendant carried it or where the purse was when the defendant placed the gun inside. The majority chastised the defense for not recognizing the need for proof of a nexus between both the gun and the drug offense and the carrying of the gun. See also, United States v. Gobert, 139 F.3d 436 (5th Cir. 1998) (vacating conviction because the factual basis for the guilty plea stated only that the gun was in the defendant’s vehicle and established no nexus between the gun and the drug offense); United States v.
d. Carry. Carry is defined as transporting or having within reach a firearm during and in relation to the predicate crime. United States v. Hall, 110 F.3d 1155 (5th Cir. 1997); United States v. Rivas, 85 F.3d 193, 195 (5th Cir.), cert. denied, 117 S.Ct. 593 (1996) (carry requires showing that defendant transported firearm or that firearm was within reach). Transportation of the firearm in a locked glove compartment is sufficient to establish carrying. Muscarello v. United States, 118 S.Ct. 1911 (1998). When a vehicle is not involved, the gun must be moved in some fashion and be within reach. United States v. Wainuskis, 138 F.3d 183 (5th Cir. 1998)(affirming conviction for gun under mattress); United States v. Logan, 135 F.3d 353, 356 (5th Cir. 1998)(gun in jacket in back seat of automobile); United States v. Ramos-Rodriguez, 136 F.3d 465 (5th Cir. 1998)(in non-vehicle context carrying involves some dominion or control that is more than mere possession and requires a showing that firearm was in reach during commission of the predicate offense); see
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Mitchell, 166 F.3d 748, 756 (5th Cir. 1999) (discussing the necessary nexus between firearm and drug crime in the analogous, though different, circumstance of applying a sentencing guideline adjustment for possessing gun Ain connection with a drug felony).
States v. Yanez-Sosa, 513 F.3d 194 (5th Cir. 2008) (loaded guns found near bulk of drugs and defendant was an illegal alien). But if an unloaded gun is locked away in a safe, in an apartment where drugs and ammunition [not matching the gun] are found, the in furtherance element may not be satisfied. United States v. Palmer, 456 F.3d 484 (5th Cir. 2006). On plain error review, the Fifth Circuit found that trading drugs for guns qualified as possession in furtherance of a drug trafficking offense. United States v. Sterling, 555 F.3d 452 (5th Cir. 2009) (not reaching issue of whether trade must be contemporaneous with drug transfer as review was for plain error).
f. "In Furtherance of Any Such Crime Possesses a Firearm." Possession of a firearm must be in furtheranceof a crime of violence or a drug trafficking crime to be liable under § 924(c). In United States v. Ceballos-Torres, 218 F.3d 409, as amended on denial of rehearing and rehearing en banc, 226 F.3d 651 (5th Cir. 2000), the court defined in furtherance to mean more than the mere presence of the firearm; the firearm’s possession must further, advance, or help forward the offense that is being conducted. Id. at 414. Guiding factors include: the type of drug activity taking place, the accessibility of the firearm, the type of firearm, whether it was stolen, the status of the possession (legal or illegal), whether the firearm was loaded, its proximity to drugs or drug profits, and the time and circumstances under which the gun was found. Id. These factors are supposed to help separate different types of firearm possession. Not all possession of firearms furthers drug trafficking. The CeballosTorres court cited two examples: 1) unloaded antiques mounted on a drug dealer’s wall, and 2) guns used for target practice or hunting, kept locked and inaccessible. Id. at 415. The gun in Ceballos-Torres, a loaded 9mm Glock, found lying on top of the defendant’s bedroom, met the in furtherance element as police also found in the apartment a large sum of money, 569.8 grams of cocaine, and empty kilo wrappers. See also, United States v. Rose, 587 F.3d 695 (5th Cir. 2009)(loaded .38 under convicted felon’s seat, who also had crack cocaine in his lap); United States v. Timmons, 283 F.3d 1246 (11th Cir. 2002)(two loaded semiautomatic handguns in plain view on top of a stove in a room where crack cocaine and cash was hidden possessed in furtherance); United
g. Multiplicity/Duplicity/Double Jeopardy. Multiple firearms do not support multiple convictions based on the same underlying conduct, even if one firearm is a normal one and another has a silencer. U.S. v. Buchanan, 70 F.3d 818, 830 (5th Cir. 1995), cert. denied, 116 S.Ct. 1340 (1996). Similarly, convictions for conspiracy to distribute narcotics and possession of the same narcotics will not support separate 924 (c) convictions where identical underlying conduct forms the basis of conviction. United States v. Privette, 947 F.2d 1259 (5th Cir. 1991), cert. denied, 503 U.S. 912 (1992); United States v. Cureton, 739 F.3d 1032 (7th Cir. 2014) (extortion and ransom request made simultaneously using firearm did not support multiple 924 (c) convictions). If multiple firearms having varying features are involved in a single criminal transaction, it may be necessary to submit a special verdict to the jury so that the firearm for which the jury found a 924(c) conviction will be clear and unanimous. United States v. Melvin, 27 F.3d 710, 714-5 (1st Cir. 1994). Additionally, separate convictions cannot be based upon the use and carrying of a weapon during the same felony, when the carrying’ and using’ arise out of the same factual occurrence. United States v. Odum, 625 F.2d 626, 629-30 (5th Cir. 1980). The Fifth Circuit has held that cumulative sentences for convictions for both a 924 (c) violation and an 18 U.S.C. 2119 47
items, in this case “phase shifters,” which were technologically complex microchips, appeared on the USML).
(carjacking) violation based on identical facts does not violate double jeopardy. United States v. Singleton, 16 F.3d 1419 (5th Cir. 1994), cert. denied, 116 S.Ct. 324 (1995). Multiple predicate offenses do not authorize multiple convictions for the single use of a single firearm. United States v. Phipps, 319 F.3d 177 (5th Cir. 2003). That is, the use of a single firearm or destructive device on a single occasion, during and in relation to multiple predicate offenses, can sustain only a single § 924(c) conviction. United States v. Walters, 351 F.3d 159 (5th Cir. 2003) (reversing life sentence based on second or subsequent conviction where both convictions stemmed from defendant’s delivery of a single bomb on a single occasion that exploded and harmed federal officer and damaged a federal building).
b. Specific Intent Requirement. This is a specific intent crime requiring the government to prove that the defendant acted with knowledge that he was violating the licensing requirements. Thus, ignorance of the law is a defense and it is insufficient to show that the defendant was aware of the general unlawfulness of his conduct. United States v. Hernandez, 662 F.2d 289 (5th Cir. 1981) (guns hidden under hood of car at bridge into Mexico, though evidence of awareness of general unlawfulness of conduct, not sufficient to prove specific intent to violate known legal duty). But elaborate efforts to conceal weapons, together with statements to officers indicating knowledge that their export was illegal while denying an intent to declare them, with proof of a defendant’s likely familiarity with border signs detailing the licensing requirements, will be sufficient to prove the specific intent element. United States v. Covarrubias, 94 F.3d 172 (5th Cir. 1996). Not all firearms or related items appear on the U.S. Munitions List. For example, a shotgun (not combat type) or shotgun shells are not prohibited for export, though perhaps illegal to import under Mexican law. Proof of specific intent is required because the items covered by the Munitions List are spelled out in everchanging administrative regulations and include some items not generally known to be controlled by the government. Davis, 583 F.2d at 192-5. Proof that the defendant negligently failed to investigate these regulations does not sufficiently prove the requisite mens rea. United States v. Adames, 878 F.2d 1374, 1376 (11th Cir. 1989). A defendant must be put on notice of the necessity for obtaining and the possibility of obtaining such a license. See United States v. Markovic, 911 F.2d 613 (11th Cir. 1990) (Yugoslavian seaman who did not speak English could not be convicted of attempt to export defense articles because warnings of illegality of transaction were posted at border on signs written in English).
8. Exporting Firearms Without A License: 22 USC § 2778(c) a. Elements of Proof. To convict a defendant under this statute, the government must prove that the defendant: (1) exported or attempted to export articles; (2) that were listed on the United States Munitions List (USML) at the time of export; (3) without obtaining a license or written approval from the State Department; (4) acting “willfully,” that is, that the defendant knew such license [approval] was required for the export of the articles and intended to violate the law by exporting them without the license or approval. See, U.S. Fifth Cir. Dist. Judges Assn., Pattern Jury Instructions - Criminal Cases, No. 2.101 (West 2019) (Pattern Jury Instructions); United States v. Covarrubias, 94 F.3d 172 (5th Cir. 1996), United States v. Davis, 583 F.2d 190 (5th Cir. 1978). Whether an item qualifies as an item listed on the USML is an element of the offense and it violates the Sixth Amendment to not instruct the jury to make a finding in this regard. United States v. Wu, 711 F.3d 1 (1st Cir. 2013)(rejecting vagueness challenge, the court nonetheless reversed trial judge’s failure to instruct jury whether particular
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To notify the public about the licensing requirements for the export of firearms, the U.S. Customs Service has posted signs at border crossings into Mexico that warn persons that it is illegal to export guns without a license. These signs, however, if in English, should not be relied upon to impute knowledge to a monolingual Spanish speaker. See Markovic, 911 F.2d at 615. The Fifth Circuit continues to require this stricter scienter requirement after Bryan v. United States, 118 S.Ct. 1939 (1998). Bryan held, in a prosecution for selling firearms without a license, that the statute’s willfulness element required only proof that the defendant knew his conduct was unlawful, not that he was aware of the licensing requirements. Although Bryan does not require strict scienter for offenses under the Firearms Owners§ Protection Act, the Fifth Circuit recognizes that an offense under 22 USC § 2778 violates a “technical statute” thus requiring proof of specific intent. Fifth Circuit Pattern Jury Instruction, No. 2101, Notes (2019). The Bryan court distinguished cases in which it has required specific knowledge of statutory provisions, saying they involved transactions that “presented the danger of ensnaring individuals engaged in apparently innocent conduct.” The circuits remain split on the level of knowledge that a defendant must have regarding the illegality of his actions. See, United States v. Roth, F. Supp.2d 796 (E.D. Tenn. 2009) (cataloguing all circuits). In United States v. Roth, 628 F.3d 827 (6th Cir. 2011), the Sixth Circuit held that willfulness in § 2278 (c) meant what the Supreme Court found willfulness meant in Bryan, that is, knowledge that the underlying action was unlawful. See also, United States v. Bishop, 740 F.3d 927 (4th Cir. 2014) (applying Bryan to hold that the export statute required proof “only of general knowledge of illegality” and not proof that the defendant was aware of the statute’s licensing requirement).
9. Dealing in Firearms Without a License: 18 U.S.C. § 922(a)(1)(A) This law makes it unlawful for any person except a licensed dealer to engage in the business of dealing in firearms. The term engaged in the business, as applied to a dealer in firearms, means a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business, through the repetitive purchase and resale of firearms but does not include Aa person who makes occasional sales... for the enhancement of a personal collection or for a hobby.... 18 U.S.C. § 921(a)(21). The adequacy of a defense instruction concerning the hobby exception was addressed in United States v. Palmieri, 21 F.3d 1265 (3d Cir. 1994). The required intent is that the defendant acted willfully. 18 U.S.C. §924(a)(1)(D). In Bryan v. United States, 118 S. Ct. 1939 (1998), the Supreme Court held that proof of willfulness was satisfied upon a showing that the defendant knew his conduct was unlawful, that is, that the defendant acted with an evil meaning mind. Id. at 1947. The defendant in Bryan used straw purchasersof firearms, filed off the gun’s serial numbers, and resold the guns on the streets of Brooklyn to street corner drug dealers. The government was not required to show that the defendant was aware of the law’s licensing requirements. The penalty for violating this law is up to 5 years in prison. 18 U.S.C. § 924(a)(2). 10. Possession of Firearm with Removed, Altered, or Obliterated Serial Number: 18 USC § 922 (k) The government must prove that a defendant: 1) knowingly possessed a firearm, and 2) knew that the serial number was removed, altered, or obliterated, in order to obtain a conviction under this section. United States v. Hooker, 997 U.S. 67, 72 (5th Cir. 1993); accord United States v. Abernathy, 83 F.3d 17 (1st Cir. 1996). The serial number does not need to be unreadable to violate the statute. In United States v. Adams, 305 F.3d 30 (1st Cir. 49
2002), the defendant was convicted of possessing a firearm with an altered number after he admitted that he attempted to scratch it out. The First Circuit affirmed a jury instruction that defined to alter as to make some change in the appearance of the serial numberbecause the plain language of the statute required any change that makes the serial number appreciably more difficult to discern.Id. at 30, 34. See also, United States v. Perez, 585 F.3d 880 (5th Cir. 2009)(photograph of firearm which showed that somebody ... tried to file off the serial number was enough to sustain finding that serial number was altered for purposes of guideline adjustment). The government still must establish that the defendant knew of the alteration. In United States v. Johnson, 381 F.3d 506 (5th Cir. 2005) the Fifth Circuit found the evidence insufficient to support the conviction, even though the evidence may have shown that the defendant observed scratches on the receiver of the gun when he handed it to another person. The court found that generalized suspicion that the serial number may have been tampered with was a far cry from specific knowledge of actual obliteration. Id. The penalty for violating this subsection is not more than five years custody. 18 USC § 924 (a)(1)(B). It thus serves to provide a useful charge bargain alternative to a guilty plea under 18 USC § 922 (g), which carries a ten-year maximum sentence, or if enhanced under § 924 (e), carries between 15 years to Life imprisonment. 11. False Statement to Firearms Dealer: 18 USC § 922(a)(6) Title 18, United States Code, Section 922(a)(6) and its penalty provision, 924(a)(2), make it a crime for anyone to make a false statement to a firearms dealer in order to buy a firearm. The government must prove 1) that the defendant made a false statement while acquiring a firearm from a licensed dealer, 2) that the defendant knew the statement was false, and 3) that the
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statement was intended or was likely to deceive about a material fact. Abramski v. United States, 134 S.Ct. 2259 (2014). To be material, the false statement need not impact on the lawfulness of the sale. Id. A straw buyer who lies about the identity of the true buyer violates the law even though the true buyer was eligible to own a firearm. Id. The false statement must be made knowingly.” United States v. Bowling, 770 F.3d 1168 (7th Cir. 2014)(reversible error for trial court to exclude evidence relevant to defendant’s possible mistake of fact defense). So a defendant who was unaware of his status as a convicted felon or of being under indictment may use his mistake as a defense. The plain language of § 922(a)(6) permits the Government to carry its burden of proof with respect to the third element in either of two ways. It may prove that a defendant’s statement was intended to deceive the dealer or that the statement was likely to deceive the dealer. See, United States v. Harrelson, 705 F.2d 733, 736 (5th Cir.1983) (noting that § 922(a)(6) is a disjunctive statute). The "intended to deceive" prong focuses on the subjective mental state of the defendant, so the defendant must have intended deception of the dealer for the Government to obtain a conviction under this prong. United States v. Brebner, 951 F.2d 1017, 1028 (9th Cir.1991). Under the "likely to deceive" prong, the intent of the defendant to deceive the dealer is irrelevant; this clause focuses on the statement itself and whether it was likely to cause deception of the dealer. The indictment controls what deception the government must prove. United States v. Guerrero, 234 F.3d 259 (5th Cir. 2000). If the indictment does not allege that the statement was intended to deceive the firearms dealer, the government must prove that the statement was likely to deceive the dealer. Id.; see also United States v. Adams, 778 F.2d 1117, 1124-25 (5th Cir. 1985) (holding that because indictment alleged defendant lied about his name, it was
U.S.C. § 924 (a)(2).
reversible error for the court to allow evidence of, and charge the jury on, the defendant’s misrepresentations as to his address); United States v. Robles-Vertiz, 155 F.3d 725, 728 (5th Cir. 1998) (government may not obtain indictment alleging certain material facts of crime then seek a conviction based upon a different set of facts). One may consider a challenge to the government’s proof with regard to whether the person with whom the defendant dealt was a licensed dealer. See United States v. Billue, 994 F.2d 1562, 1569 (11th Cir. 1993) (noting that pawn shop clerk who made representations to defendant was not the licensed firearm dealer in context of reviewing availability of entrapment by estoppel defense). The fact that a dealer processes the form and accepts a deposit is enough to establish that the statement deceived the dealer. Guerrero, 234 F.3d at 262. The maximum penalty for a violation of this law is 10 years imprisonment. 18 U.S.C. §924 (a)(2).
13. Receiving or Possessing Unregistered Firearms: 26 USC § 5861(d) Title 26, United States Code, Section 5861 (d), makes it a crime for anyone knowingly to possess certain kinds of unregistered firearms. The firearms are defined by 26 U.S.C. § 5845 and include: (1) a shotgun having a barrel length less than 18 inches, (2) a weapon made from a shotgun if the overall length was modified to less than 26 inches; (3) a rifle having a barrel less than 16 inches in length; (4) a rifle modified to an overall length of less than 26 inches; (5) a machine gun; (6) a silencer; and (8) a destructive device. The law requires no specific intent or knowledge that a firearm is unregistered. United States v. Greed, 401 U.S. 601 (1971), rehearing denied, 403 U.S. 912 (1971). The government must prove, however, that the defendant knew of the features or characteristics of the firearm that are within the definition at 26 U.S.C. §5845. Staples v. United States, 511 U.S. 600 (1994); United States v. Reyna, 130 F.3d 104 (5th Cir. 1997); United States v. Anderson, 885 F.2d 1248 (5th Cir. 1989)(en banc)(reversing previous circuit law of United States v. Vasquez, 476 F.2d 730 (5th Cir. 1973) cert. denied, 414 U.S. 836 (1973). The jury must be instructed that it must find the defendant knew what he possessed. United States v. Mains, 33 F.3d 1222, 1229 (10th Cir. 1994); United States v. Edwards, 90 F.3d 199 (7th Cir. 1996). It is not necessary for the government to establish that the defendant specifically knew that the weapon was a firearm defined in the National Firearms Act, if the characteristics of the weapon itself, e.g., a sawed of shotgun, make the weapon quasisuspect. United States v. Barr, 32 F.3d 1320 (8th Cir. 1994). One is criminally responsible, even if the act of registering the firearm is impossible to do. United States v. Thomas, 15 F.3d 381 (5th Cir. 1994) cert. denied, 115 S.Ct. 1798 (1995). The government must prove that the firearm
12. Unlawful Sale or Disposition of Firearm: 18 USC § 922(d) This law criminalizes knowingly selling or otherwise disposing of a firearm to a prohibited person (e.g., a convicted felon) when the seller knows or has reasonable cause to believe that such a person is a member of a prohibited category of persons. See, United States v. Murray, 988 F.2d 518, 521 (5th Cir. 1993)(discussing quantum of proof relating to sellers knowledge of buyers prohibited status). A principle’s knowledge concerning the prohibited status of the firearm’s recipient cannot supply the necessary mental state to a party to the crime. Id. That is, one person’s knowledge is not imputed, without evidence, to another party. Thus, the Murray court held the evidence insufficient to show that the defendant knew that his associate was selling the firearm to a felon. Upon conviction, a defendant faces a maximum punishment of 10 years imprisonment. 18
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previously convicted or 2) the indictment and the jury instructions under which the defendant was previously convicted. United States v. Martinez-Cortez, 988 F.2d 1408, 1412 (5th Cir. 1993) (statement in PSR was inadequate proof of prior burglary offered to enhance sentence but sentencing court’s error was not plain error). Once the government establishes the fact of a prior conviction, the defendant must prove the invalidity of the conviction by a preponderance of the evidence. United States v. Barlow, 17 F.3d 85 (5th Cir. 1994). The categorical approach applies to see if the prior conviction qualifies as either a serious drug offense or a violent felony. Mathis v. United States,136 S. Ct. 2243, 2248 (2016). The categorical approach compares statutory elements without regard to the underlying facts or charged conduct. Id.; Taylor v. United States, 110 S.Ct. 2143 (1990) (Missouri qualified as generic burglary). The statutory elements, not the underlying facts, decide the question. “Elements are the constituent parts of a crime’s legal definition – the thing the prosecution must prove to sustain a conviction.” Mathis, 136 S. Ct. at 2248 (quoting Black’s Law Dictionary 634 (10th ed. 2014)). “[T]he prior crime qualifies as an ACCA predicate if, but only if, its elements are the same as, or narrower than, those of the generic offense.” Id. at 2247. The “generic offense” is “the offense as commonly understood,” provided in the ACCA. Id. “[I]f the crime of conviction covers any more conduct than the generic offense, then it is not an ACCA [predicate] – even if the defendant’s actual conduct (i.e., the facts of the crime) fits within the generic offense’s boundaries.” Id. at 2248. Divisible statutes complicate the analysis. Such statutes may be violated in ways that do and do not meet the definitionhence the term “divisible.” Descamps v. United States, 133 S.Ct. 2276 (2013). A “divisible statute” sets out one or more of the elements of the offense in the alternative. For example, a statute that sets out that a burglary involves entry into a building or a vehicle or a boat would be divisible. If the
at issue can be operated or readily restored to operating condition. See, United States v. Woods, 560 F.2d 660 (5th Cir. 1977), cert. denied, 435 U.S. 906 (1978).
B. SELECTED PENALTY PROVISIONS 1. Armed Career Criminals: 18 USC § 924 (e). a. Elements of Enhancement. The Armed Career Criminal Act (ACCA) provides for a penalty enhancer, not a separate crime; attendant 6th Amendment rights to indictment and trial by jury do not apply. United States v. Santiago, 268 F.3d 151 (2d Cir. 2001) (whether prior convictions were for offenses committed on different occasions, as required under § 924 (e), was properly left for trial judge, falling squarely under the prior conviction exception of Apprendi); United States v. Stone, 306 F.3d 241 (5th Cir. 2002) (jury finding not required for enhancement under Apprendi). Importantly, the government need not allege the predicate prior offenses or cite to the statute in the indictment in order to trigger its application at sentencing. United States v. Tracy, 36 F.3d 187 (1st Cir. 1994); United States v. Alvarez, 972 F.2d 1000, 1006 (9th Cir.1992) (rejecting argument that district court erred in considering three prior convictions not listed in the indictment, and for which the government did not file [a] written notice of intention to use prior to trial) cert. denied, 113 S.Ct. 1427 (1993); United States v. Williams, 950 F.3d 328 (5th Cir. 2020)(§924 (e) need not be cited in indictment under plain language of statute) Section 924(e) applies to persons convicted under 18 U.S.C. § 922(g) who have suffered three previous convictions for a violent felony or a serious drug offense committed on occasions different than one another. To enhance a sentence under § 924(e) the trial court must have before it either 1) proper copies of the statutes under which the defendant was
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statute is divisible, the “modified categorical approach” pares the statute to the section that was violated. Paring elements down may be done with a jury charge or indictment. Id. Courts cannot apply the modified categorical approach to statutes that are indivisible. Indivisible statutes do not set forth the elements in the alternative and cannot be divided up into violations that do and do not meet the definition. Id. An example of an indivisible statute can be seen in Descamps. In Descamps, the Supreme Court found that California’s burglary statute defined burglary more broadly than generic burglary as it did not require an unlawful entry, a defining feature of “burglary,” as an element or alternative element. To be clear, California “burglary” was not a “burglary” under the ACCA because a finding of an “unlawful entry” was not required for conviction. Additionally, when a court interprets the statute, it will be guided by the state or federal law as it existed at the time of the conviction. The Supreme Court has held that “[t]he only way to answer the[e] backward-looking question” of whether a defendant’s prior conviction is a qualifying predicate under the ACCA “is to consult the law that applied at the time of conviction.” McNeill v. United States, 131 S. Ct. 2218 (2011); United States v. Vickers, 967 F.3d 480 (5th Cir. 2020) (cert. pending) (refusing to apply Texas precedent from 2007, which overruled 20 years of precedent to hold that 1977 felony murder conviction did not require a culpable mental state as needed for conviction to qualify under force clause). In guilty plea cases, the sentencing court is limited to considering the statutory definition of the crime, the charging document, the written plea agreement, the transcript of the plea colloquy, and any explicit factual findings by the trial judge to which the defendant assented when paring down the statute. Shepard v. United States, 125 S.Ct. 1254 (2005). Police reports or complaint applications do not supply an adequate basis to determine the character of the conviction. Id.
b. Serious Drug Offense. Under the ACCA, a serious drug offense can be predicated upon either a federal or state drug trafficking conviction. The definitions for each type of conviction vary. A federal conviction must be for an \offense under the Controlled Substances Act ... for which a maximum term of ten years or more is prescribed by law. 18 U.S.C. §924 (e)(2)(A). A state conviction must be for a felony involving the manufacture, distribution, or possession with intent to distribute of a controlled substance, for which the penalty upon conviction is ten years or more. In Shular v. United States, 140 S. Ct. 779 (2020), the Court used a different categorical methodology to determine whether a Florida drug conviction qualified as a serious drug felony than used to determine a violent felony. Relying upon the text of the definition, Shuler held that instead of comparing elements to generic offenses, courts were required to determine whether the offense’s elements necessarily entailed one of the types of conduct identified in § 924 (e)(2)(A)(ii). The Court distinguished the violent felony definition as focused upon elements rather than conduct. That is, Congress chose in the ACCA to punish all offenders who engaged in specified conduct, rather than all who committed certain generic offenses. The Florida statute at issue in Shuler did not require the state to prove a defendant knew the substance was illicit, although the defendant could raise unawareness as an affirmative defense, which would require a finding of knowledge. Given the conductbased approach, this elemental deficiency was inconsequential. In United States v. Prentiss, 956 F.3d 295 (5th Cir. 2020), the Fifth Circuit applied Shuler to a Texas conviction for possession with intent to distribute a controlled substance and found it qualified as a serious drug offense. The ACCA test for a serious drug offense is broader than the Sentencing Guidelines test for a controlled substance offense, terms which if met lead to enhanced penalties. See, United States v. Vicker, 540 F.3d 356 (5th Cir. 2008) (not error to treat 53
a firearm, knife, or destructive device that would be punishable for such term if committed by an adult that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” In Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court held that the residual clause to the definition (“otherwise involves conduct…”) violated the Constitution’s guarantee of due process as the phrase was too vague to apply with rational consistency. This means that to qualify the conviction must satisfy the “force” elements test or fit as an enumerated crime. “Punishable” means that the penalty range available for the conviction exceeded one year, even if the court exercised discretion under an alternative sentencing scheme and sentenced the defendant to a sentence of imprisonment of one year or less. United States v. Miles, 749 F.3d 485 (2d Cir.) cert. denied, 135 S.Ct. 381 (2014)(New York 3d degree robbery conviction qualified as violent felony); United States v. Kerr, 737 F.3d 33 (4th Cir. 2013)(sentencing court’s exercise of discretion to impose lesser term of imprisonment does not change the nature of the conviction). “Juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment” exceeding a year, that also includes either the “force” elements or fits the enumerated crimes, will qualify as a violent felony. 18 USC § 924 (e) (2)(B). The categorical approach requires that the elements of conviction include the use of a firearm, knife, or destructive device. In United States v. Flores, 922 F.3d 681 (5th Cir. 2019) the Fifth Circuit held that a juvenile aggravated assault with a firearm conviction did not count as a violent felony because the Texas aggravated assault statute did not categorically require the use or carrying of a firearm, knife, or destructive
Texas delivery conviction as serious drug offense even though same conviction may not qualify under Guidelines to enhance sentence). The word involving, a broad term, brings many drug convictions within the statute’s reach. For example, attempted possession of a controlled substance qualifies. United States v. Winbush, 407 F.3d 703 (5th Cir. 2005) (Louisiana conviction for attempted possession). As does conspiracy to commit a drug offense. United States v. McKenney, 450 F.3d 39 (1st Cir. 2006) (citing Winbush and the closely analogous crime of attempt). The conviction must still require an element of drug trafficking, regardless of the how the statute is labeled. United States v. Brandon, 247 F.3d 186 (4th Cir. 2001) (concluding state conviction for possessing 28 grams or more of cocaine was not serious drug offense notwithstanding fact that law denoted crime as trafficking offense, because amount of cocaine alleged was consistent with personal use). The ten-year penalty threshold can be met by reference to potential sentence enhancements that, though available at the time of conviction, were not pursued against the defendant. United States v. Rodriquez, 128 S.Ct. 1783 (2008). This means that the penalty range is gauged by a potential punishment range, not a r e a l i z e d punishment range. Moreover, subsequent changes in the law that reduce the statutory maximum to below the threshold amount will not alter whether the conviction meets the “serious drug offense” definition. McNeill v. United States, 131 S. Ct. 2218 (2011). Federal courts focus on the sentence that was available at the time the sentence was imposed. Id.; see also, United States v. Hinojosa, 349 F.3d 200 (5th Cir. 2003)(although Texas lowered statutory maximum from 99 years to two, the change was not made retroactive and conviction still qualified).
c. Violent Felony. Section 924(e)(2)(B) of Title 18 defines the phrase violent felony as [a]ny crime punishable for a term exceeding one year, or act of juvenile delinquency involving the use or carrying of 54
aggravated assault with a firearm could be violated by negligent conduct and thus did not qualify as violent felony). Section 16 (a) of Title 18, which sets forth the federal definition for a crime of violence, tracks the force elements clause language, so decisions interpreting that statute provide guidance. In Leocal v. Ashcroft, 125 S.Ct. 377 (2004), the Supreme Court held that a conviction for causing bodily injury while driving intoxicated did not qualify as use of force under § 16 (a) because a conviction could be achieved with proof of negligent rather than intentional conduct. Many circuits have applied Leocal’s distinction between accidental or negligent conduct and intentional conduct in the force clause analysis. See, United States v. Simmons, 917 F.3d 312, 321 (4th Cir. 2019), as amended (Mar. 6, 2019)(concluding that any of the forms of North Carolina assault may be established with negligence and therefore lack the requisite “use” of force under Leocal.”); United States v. Bong, 913 F.3d 1252, 1260-61 (10th Cir. 2019)(noting that “[t]he term ‘use,’ as employed in the ACCA’s [force] clause, requires active employment rather than negligent or merely accidental conduct [under Leocal]; United States v. Vasquez-Gonzalez, 901 F.3d 1060, 1066-67 (9th Cir. 2018)(noting that Leocal held that § 16 (a) covers crimes with a higher level of intent than negligence or accident). A reckless state of mind was found to be enough to show “use” of force in United States v. Reyes-Contreras, 910 F.3d 169 (5th Cir. 2018) (en banc). Reyes-Contreras overruled a long line of cases. ReyesContreras held there to be no distinction between direct or indirect force. Both direct force (using destructive violent force against someone) and indirect force (causing bodily injury through action that are not themselves violent) constitutes “physical force.” Reyes-Contreras 910 F.3d at 181-182. Reyes-Contreras also held that causing injury necessarily involved the use of physical force. Id. at 183-184. Moreover, Reyes-Contreras overruled cases that previously required bodily contact to
device. Allegations in the indictment, under the categorical approach, could not replace the need for elements to match. Juvenile convictions may raise due process issues if procedural safeguards were lacking. United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001) (holding juvenile adjudication that did not provide for jury trial right could not serve as prior conviction to enhance sentence under Apprendi). But see, United States v. Smalley, 294 F.3d 1030 (8th Cir. 2003)(defendant’s juvenile adjudications properly prior convictions under ACCA even though procedural protections differed from adult convictions); United States v. Burge, 407 F.3d 1183 (11th Cir. 2005) (same); United States v. Jones, 332 F.3d 688 (3d Cir. 2003) (same). The force elements clause in subpart (i) treats as violent felonies those crimes that have as an essential element the use, attempted use, or threatened use of physical force against the person of another. 18 U.S.C. § 924 (e)(2)(B)(i). “Force” means “violent force – i.e., force capable of causing physical pain or injury to another person.” Johnson v. United States, 130 S. Ct. 1265 (2010). In Stokeling v. United States, 139 S. Ct. 544 (2019) the Supreme Court held that force “sufficient to overcome a victim’s resistance” qualified. A crime does not meet this requirement unless its elements require force. United States v. Stapleton, 440 F.3d 700 (5th Cir. 2006)(conviction of La. crime of false imprisonment while armed with a dangerous weapon failed force test, but met the now invalidated residual clause test); United States v. Montgomery, 402 F.3d 482, 486 (5th Cir. 2005)(holding Texas retaliation conviction was not violent felony as it proscribe range of conduct that covered more crimes than those resulting from the direction of physical force against another’s person); United States v. Carreon, 803 Fed. Appx. 790 (5th Cir. 2020) (federal kidnapping did not require use of force so not a crime of violence predicate for § 924 (c) purposes); United States v. Young, 809 Fed. Appx 203 (5th Cir. 2020) (Louisiana conviction for
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intimidation). The ACCA also enumerates crimes as violent felonies in subpart (ii) - burglary, arson, or extortion, or [crimes that] involve [] the use of explosives…. To qualify, the crime must be a generic fit. The most common enumerated violent felony is “burglary.” In Taylor, the Supreme Court decided that burglary for purposes of the ACCA was any crime having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.Id. at 599, 110 S. Ct. at 2158. In United States v. Stitt, 139 S. Ct. 399 (2018), the Supreme Court held that a Tennessee statute that applied to vehicles or structures designed or adapted for overnight accommodation by persons qualified as generic burglary. Moreover, in Quarles v. United States, 139 S.Ct. 1872 (2019), the Supreme Court held that generic burglary occurs “if the defendant forms the intent to commit a crime at any time during the continuous event of unlawfully remaining in a building or structure.” Stitt and Quarles analyzed a burglary statute like Texas’s. To be sure, a Texas burglary conviction qualifies as a violent felony. United States v. Herrold, 941 F.3d 173 (5 th Cir. 2019) (en banc). Other state burglary statutes do not qualify as generic burglary. In Descamps, cited above, the Supreme Court held that a California burglary, as a matter of law, cannot qualify as a violent felony under the ACCA because it did not require an unprivileged entry. Similarly, because Michigan burglary does not require proof of an unprivileged entry it cannot qualify as a violent felony. See, United States v. Throneburg, 921 F.2d 654 (6th Cir. 1990)(violation of Mich.Comp.Laws § 750.111 (1979) does not require unprivileged entry). Some state burglary statutes make it unlawful to enter non-structures. Counsel must determine if they are divisible statutes to determine if the modified categorical approach can be used to qualify the conviction as for generic burglary. See, United States v. Jones, 743 F.3d 826 (11th Cir. 2014) (under plain error review,
show physical force, finding now that a risk of injury was enough to implicate force. After Reyes-Contreras, an offense satisfies the force clause “if the proscribed conduct (1) is committed intentionally, knowingly, or recklessly; and (2) employs a force capable of causing physical pain or injury; (3) against the person of another.” Id. at 185. Reyes-Contreras fundamentally changed the crime of violence analysis in elements clause cases, taking what the opinion described to be a “more realistic approach” that “comports with reason and common sense.” Reyes-Contreras, 910 F.3d at 186. What follows are examples of crimes that fit the force clause definition of subpart (i). United States v. Williams, 950 F.3d 328 (5th Cir. 2020)(Mississippi robbery conviction that required placing someone “in fear of imminent injury” qualified); United States v. James, 950 F.3d 289 (5th Cir. 2020)(Louisiana armed robbery qualified as it required “use of force in overcoming the will or resistance of victim”); Stokeling v. United States, 139 S.Ct. 544 (2019)(Florida robbery qualified as force needed be sufficient to “overcome a victim’s resistance); United States v. Griffin, 946 F.3d 173 (5th Cir. 2020)(Mississippi aggravated assault, a divisible statute, qualified as it required at minimum recklessly “causing bodily injury”); United States v. Torres, 923 F.3d 420 (5th Cir. 2019)(modified categorical approach used to find Texas conviction for aggravated assault family violence, a knowing threat to another of imminent bodily injury is the same as knowingly threatening to employ a force capable of causing physical pain or injury); United States v. Burris, 908 F.3d 152 (5th Cir. 2019)(Texas robbery by injury conviction categorically required the use of physical force, and robbery by threat required the attempted use or threatened use of physical force); United States v. Butler, 949 F.3d 230 (5th Cir. 2020) (federal bank robbery in violation of 18 USC § 2113 (a), a divisible statute defining bank robbery and bank burglary, qualified under robbery prong as it required taking bank property by force and
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conviction for violating Alabama’s third degree burglary statute, Ala. Code § 13A-77, could not qualify as violent felony as statute was non-generic and indivisible, allowing conviction for breaking into nonstructures); United States v. Howard, 742 F.3d 1334 (11th Cir. 2014)(same). Breaking and entering statutes may be tantamount to burglary and a conviction may thus qualify as one for a violent felony. United States v. Thompson, 588 F.3d 197 (4th Cir. 2009). d. On Occasions Different. The different occasion inquiry by necessity must delve into the facts underlying the convictions rather than the categorical nature of the convictions themselves. Alleyne, which extended the Apprendi doctrine to mandatory minimum sentences, did not alter the Almendarez-Torres rule, which makes an exception from Apprendi “the fact of a prior conviction.” United States v. Blair, 734 F.3d 218 (3d Cir. 2013). (The parties in Alleyne did not contest the “vitality” of Almendarez-Torres so the Court expressly declined to alter the way it has been applied to remove prior convictions. Alleyne, 133 S.Ct. at 2160.) Yet the Almendarez-Torres exception as used in this context extends beyond the mere fact of a prior conviction. Nonetheless, the fact of crimes on different occasions has been found by courts to be inherent in the record of the prior conviction. United States v. Thompson, 421 F.3d 278 (4th Cir. 2005). Courts have rejected the argument that the fact of separate occurrence qualifies as an element which under the Sixth Amendment must be found beyond a reasonable doubt by a jury. United States v. White, 465 F.3d 250 (5th Cir.) cert. denied, 127 S.Ct. 1167 (2006). Shepard approved documents are used to make this finding, including: the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented. United States v. Fuller, 453 F.3d
274 (5th Cir. 2006) (quoting, Shepard v. United States, 125 S.Ct. 1254 (2005)). Courts may also rely on a defendant’s characterization of his prior convictions, as felonies, or as being for separate offenses. United States v. Jenkins, 487 F.3d 279 (5th Cir. 2007). To determine whether the predicate convictions occurred on different occasions, the Fifth Circuit calls for an examination of the underlying conduct, not the date of conviction or how the offenses were charged. United States v Kimball, 15 F.3d 54, 56 (5th Cir. 1994), cert. denied, 513 U.S. 999 (1994). Convictions occur on occasions different from on another if each of the prior convictions arose out of a separate and distinct criminal episode. United States v. Letterlough, 63 F.3d 332, 334 (4th Cir. 1995)(quoting, United States v. Hudspeth, 42 F.3d 1015, 1019 (7th Cir. 1994) (en banc) (collecting cases) (emphasis in original) (citations omitted), cert. denied, 115 S. Ct. 252 (1995). The Fifth Circuit frames the inquiry as whether the crimes occurred simultaneously or sequentially. United States v. Ressler, 54 F.3d 257, 259 (5th Cir. 1995) (adopting test in United States v. Hudspeth, 42 F.3d 1015 (7th Cir. 1994) (en banc), cert. denied, 115 S.Ct. 2252 (1995)). This test asks if the first crime was concluded before the second crime began. As noted in United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998), the courts of appeal are virtually unanimous in stating that the successful completion of one crime plus a subsequent conscious decision to commit another crime makes that second crime distinct from the first for the purposes of the ACCA. Id. The government bears the burden of showing the crimes occurred on different occasions. Some ambiguity or possible overlap due to the “on or about” date alleged does not make the crimes concurrent. United States v. Bookman, 263 Fed. Appx. 398 (5th Cir. 2008). In contrast, other t y p e s o f 57
information may be inadequate to establish different occurrences of crime. For example, in United States v. Fuller, 453 F.3d 274 (5th Cir. 2006), the defendant testified that he and an accomplice broke into two trailers at the same time. The district court found that Fuller was not credible and that the burglaries occurred, at least, minutes apart. On appeal, Fuller argued that nothing supported the district court’s determination that the burglaries occurred on different occasions. The Shepard approved documents only listed Fuller as the defendant. Because under Texas law a jury could have convicted Fuller under the law of parties the Fifth Circuit held that it could not determine as a matter of law that the burglaries occurred on different occasions, and the evidence was insufficient to sustain the enhancement. Fuller, 453 F.3d at 279280. See also, United States v. Young, 809 Fed. Appx. 203 (5th Cir. 2020) (indictments allegation that drug sales occurred on same date insufficient to establish that they occurred on different occasions). The Fifth Circuit has put the onus on the defendant in unpublished opinions to rebut the government’s separateness showing. See, Young, 809 Fed. Appx. at 211 (listing cases). In Young, however, the Fifth Circuit observed that this “burden shifting approach” in a post-Shepard context was “no longer tenable.” Id., citing, Kirkland v. United States, 687 F.3d 878, 888-95 (7th Cir. 2012). See also, United States v. Barbour, 750 F.3d 535, 543-46 (6th Cir. 2014) (“We are convinced that placing the burden on the government [for the purpose of a separateoffense inquiry] is the view shared by all our sister circuits that have addressed the issue[.]” (collecting cases). Courts recognize many factors to determine when one or more convictions constitute a separate and distinct criminal episode under the ACCA. These include: (1) common geographic location; United States v.McElyea, 158 F.3d 1016, 1021 (9th Cir.
1999) (two burglaries occurred on same occasion as identical crime took place at same location, a strip mall, where defendant and accomplice broke into store then chopped hole in wall between store they entered and adjoining store, removing items from both); (2) shared identity of crime; United States v. Thomas, 211 F.3d 316, 321 (6th Cir. 2000) (sexual assault of two women occurred on same occasion as crime started when men entered vehicle they occupied and ended when they exited same vehicle); (3) presence of multiple victims; United States v. Ressler, 54 F.3d 257, 260 (5th Cir. 1995) (breaking into home then assaulting neighbor during flight constituted different occasions); (4) multiple criminal objectives; United States v. Hamell, 3 F.3d 1187, 1191 (8th Cir. 1993) (finding defendant’s motivation for perpetrating two assaults B stabbing one person as a result of an argument, and then, 25 minutes later, shooting another who called police B to be relevant consideration). The convictions must be “prior” convictions. The conviction must occur before the felon in possession violation, not simply prior to conviction or sentencing for that violation. United States v. Richardson, 166 F.3d 1360 (11th Cir. 1999); United States v. Talley, 16 F.3d 972 (8th Cir. 1994); United States v. Balascsak, 873 F.2d 673, 679 (3d Cir. 1989). e. Attacking Prior Convictions. As with the felon status element under §922(g), the prior convictions under this section can be challenged if they have been expunged or set aside, if the defendant has been pardoned, or if his civil rights have been restored by the convicting jurisdiction. 18 U.S.C. § 921(a)(20). Convictions cannot be challenged on the ground that they are too ancient. United States v. Blankenship, 923 F.2d 1110 (5th Cir. 1991), cert. denied, 500 U.S. 954 (1991). Priors convictions are virtually impossible to invalidate. In Custis v. United States, 114 S.Ct. 1732 (1994), the Supreme 58
unsuccessfully, then the defendant is without recourse and may not collaterally attack his prior conviction through a federal habeas motion to vacate, set aside, or correct the sentence. Id.; see also, United States v. Clark, 284 F.3d 563 (5th Cir. 2002) (exception not available to a prisoner who never attempted any attack on his state convictions until four years after his federal sentence was imposed, where basis for attack was insufficiency of evidence, a claim that was necessarily knowable to the defendant). Statutory deadlines must be met to attack prior convictions. The one-year limitations period for filing a § 2255 motion begins to run when the petitioner receives notice of the order vacating the prior s t a te conviction that was used to enhance the federal sentence, but the petitioner must employ due diligence in state court after entry of the judgment in the federal case in which the sentence was enhanced to be timely. See, Johnson v. United States, 125 S.Ct. 1571 (2005) (§ 2255 motion untimely because petitioner failed to show due diligence in state court by waiting 3 years to seek relief after entry of federal judgment).
Court held that, except for convictions obtained in complete derogation of the Sixth Amendment right to counsel, prior convictions may not be attacked in a sentencing proceeding in which they are used to enhance a federal defendant’s sentence under the ACCA. Custis held that the ACCA did not authorize challenges to predicate priors and that the Constitution did not require such challenges. The Custis court, near the end of its opinion, wrote: We recognize, however ... that Custis, who was still in custody’ for purposes of his state convictions at the time of his federal sentencing under § 924(e), may attack his state sentence in Maryland [where they were obtained] or through federal habeas review. (Citation omitted) If Custis is successful in attacking these state sentences, he may then apply for reopening of any federal sentence enhanced by the state sentences. We express no opinion on the appropriate disposition of such an application. Custis, 114 S.Ct. at 1749. The sequel to Custis occurred in Daniels v. United States, 121 S.Ct. 1578 (2001). In Daniels, the defendant was sentenced under the ACCA and unsuccessfully appealed his sentence. After losing on direct appeal, the defendant filed a § 2255 petition in which he alleged that his convictions were unconstitutional. He argued that the guilty pleas underlying them were not knowing and voluntary and that one of the convictions was tainted by ineffective assistance of counsel. The Supreme Court, extending the interest in finality rationale of Custis, held that: (1) with the sole exception of convictions obtained in violation of the right to counsel, a motion to vacate, set aside, or correct sentence filed under 28 U.S.C. §§ 2254 or 2255 is not the appropriate vehicle for determining whether a conviction later used to enhance a federal sentence under ACCA was unconstitutionally obtained, and (2) if a prior conviction used to enhance a federal sentence under the ACCA is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available or because the defendant did so
2. Carry or Use of Firearm During Violent or Drug Crimes: 18 USC § 924(c) a. Minimum Sentence Requirement. Section 924(c) requires a consecutive sentence of not less than five years for any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm. The law punishes anyone who, in furtherance of any such crime, possesses a firearm to a minimum five-year sentence. If a firearm is brandished, the mandatory minimum sentence increases to seven years, and if the firearm is discharged, the mandatory minimum sentence goes up to ten years. Minimum penalties also vary depending on the type of firearm involved. 18 U.S.C. § 924(c)(1)(B). A ten-year 59
Courts remain free to shorten the sentences for none § 924 (c) predicate counts to avoid unnecessarily long terms of imprisonment. Dean v. United States, 137 S. Ct. 1170 (2017). Dean found this approach consistent with the “parsimony principle” in the sentencing factors statute that gives the broad command that instructs courts to “impose a sentence sufficient but not greater than necessary, to comply with” the four identified purposes of sentencing: just punishment, deterrence, protection of the public, and rehabilitation. See, 18 USC § 3553 (a).
minimum results if the firearm is a shortbarreled rifle, short-barreled shotgun, or semiautomatic assault weapon. The minimum sentence jumps to 30 years if the item possessed is a machine gun or a destructive device or is equipped with a firearm silencer or firearm muffler. 18 U.S.C. § 924(c)(1)(B)(ii). The facts necessary to establish the mandatory minimum must be charged and proven to a jury beyond a reasonable doubt. Alleyne v. United States, 133 S. Ct. 2151 (2013); United States v. Obrien, 130 S. Ct. 2169 (2010) (use of a machine gun was an element of the offense). The statute’s silence concerning the maximum penalty available implicitly authorizes a life sentence. United States v. Sias, 227 F.3d 244 (5th Cir. 2000); United States v. Fields, 923 F.2d (5th Cir. 1991); United States v. Brame, 997 F.2d 1426 (11th Cir. 1993). b. Consecutive Sentence Requirement. The statute compels a consecutive sentence except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.... 18 U.S.C. § 924 (c)(1)(A). The statute prohibits probation. 18 USC § 924 (c)(1)(D)(i). It also bars running any sentence concurrently with another sentence. 18 USC § 924 (c)(1)(D)(ii). The Supreme Court construed this exception very narrowly in Abbot v. United States, 131 S.Ct. 18 (2010). The Supreme Court held that defendants were subject to consecutive sentences for possessing firearms in furtherance of drug trafficking despite higher minimum sentences for separate counts of d r u g o f f e n s e s that were not proscribed by § 924 (c). That is, § 924 (c) sentences run consecutive to all other sentences except greater mandatory minimums imposed under § 924(c). The consecutive sentence requirement applies to state as well as federal prison terms. United States v. Gonzalez, 117 S. Ct. 1032 (1997).
c. Repeat or Multiple Violations. Effective December 21, 2018, the First Step Act (FSA) made major changes to the way courts punish repeat § 924 (c) violations. The FSA did not make these changes retroactive. United States v. Gomez, 960 F.3d 173 (5th Cir. 2020). Therefore, the reforms to § 924 (c) apply to persons sentence on or after December 21, 2018; it does not help those cases on direct appeal. Id. In the case of a violation of § 924 (c) that occurs after a prior conviction for § 924 (c) became final, the term of imprisonment shall be not less than 25 years. 18 USC § 924 (c)(1)(C)(i). This jumps to life if the firearm involved is a machinegun or a destructive device or is equipped with a silencer or muffler. 18 USC § 924 (c)(1)(ii). The person must be a true “repeat offender” with a prior final § 924 (c) conviction to get the 25-year or life statutory minimum. Gone are the days of consecutive 25-year sentences from multiple § 924 (c) convictions arising out of a single jury trial. Multiple § 924 (c) convictions simply require consecutive sentences be imposed for each one. 18 USC § 924 (c)(1)(D)(ii). For example, if a defendant is charged and convicted of three 924 (c)s in the same case, a minimum sentence of (5+5+5) 15 years will be required. The use of a single firearm or destructive device on a single occasion, during and in relation to multiple predicate offenses, supports only a single § 924(c) 60
conviction. United States v. Walters, 351 F.3d 159 (5th Cir. 2003) (reversing life sentence based on second or subsequent conviction where both convictions stemmed from defendant’s delivery of a single bomb on a single occasion that exploded and harmed federal officer and damaged a federal building). See also, United States v. Phipps, 319 F.3d 177 (5th Cir. 2003) (conviction for carjacking and kidnapping arising from single use of firearm to abduct woman could only support one § 924 (c) conviction – “language allows for only as many counts as there are uses of the firearm”).
component part of the offense. It was sufficient to allege “attempt” coupled with the specified time and place of the attempted reentry. b. Alienage. A child born outside the United States may nevertheless be a citizen by law by virtue of their parent’s birth or naturalization. 8 U.S.C. §§ 1431; 8 C.F.R. § 320. Citizenship is a defense. A person who has derived U.S. citizenship, is not guilty of a crime under § 1325 because alienage is an element of the offense. United States v. Gomez-Orozco, 188 F.3d 422 (7th Cir. 1999) (proper to permit defendant to withdraw guilty plea once it became apparent that person may have derived citizenship). The laws in effect at the time the child was born control. Contradictory evidence about a defendant’s alienage remains a matter properly left for a jury to decide. United States v. Bahena-Cardenas, 411 F.3d 1067 (9th Cir. 2005). An alien’s immigration file (A-file) may contain information that conflicts with the derivative citizenship claim which was provided by other family members. Those hearsay statements do not necessarily fall within the public-records exception to the Confrontation Clause’s restrictions on the admission of testimonial hear-say. United States v. Marguet-Pillado, 560 F.3d 1078 (9th Cir. 2009) (error to admit statements made by defendant’s father in application for permanent residence filed on behalf of defendant, who was 5 at the time, where father asserted that defendant was born in Mexico and was a citizen of that country). Moreover, the A-file may contain sworn statements that contradict the derivative citizenship claim. Introduction of such affidavits may run afoul of the Confrontation Clause of the 6th amendment. United States v. Duron-Caldera, 737 F.3d 988 (5th Cir. 2013)(government failed to meet burden to show that sworn affidavit of defendant’s maternal grandmother was nontestimonial and thus Confrontation Clause barred its introduction in defendant’s illegal reentry prosecution – despite government’s contention that affidavit was created with
IV. IMMIGRATION A. COMMON IMMIGRATION OFFENSES 1. Illegal Reentry After Removal: 8 U.S.C. § 1326(a) a. Elements of Proof. To obtain a conviction, the government must prove that: (1) the defendant was an alien at the time alleged in the indictment; (2) the defendant had previously been arrested and removed from the U.S. (or denied admission, excluded or removed or has departed the U.S. while an order of exclusion, deportation, or removal is outstanding); (3) the defendant thereafter entered into, attempted to enter into, or was found in the U.S.; (4) the defendant had not received the consent of the Attorney General of the United States or his successor, the Department of Homeland Security, to apply for readmission to the United States since the time of the defendant’s previous deportation. United States v. Flores-Peraza, 58 F.3d 164 (5th Cir. 1995); United States v. SantanaCastellano, 74 F.3d 593 (5th Cir. 1996) (illegal reentry is continuing offense until defendant is foundby INS). In United States v. Resendiz-Ponce, 127 S. Ct. 782 (2007), the Supreme Court held that an indictment alleging attempted illegal reentry need not specifically allege an overt act or another
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including changing the terms deportation and exclusion to removal and inadmissibility. Pre-IIRIRA decisions may at times provide misleading guidance to understanding present law. See, e.g., United States v. Ramirez-Carcamo, 559 F.3d 384 (5th Cir. 2009) (noting inapplicability of pre-IIRIRA precedent to deciding issue of whether defendant’s removal was proven under statute). Title 8 U.S.C. §1101 (g), which addresses removal, provides that any alien ordered deported or removed ... who has left the U.S., shall be considered to have been deported or removed in pursuance of law, irrespective of the source from which the expenses of his transportation were defrayed or of the place to which he departed. To establish a removal, the government must show that a removal order was entered and, either before or after entry of that order, the alien departed the United States. Ramirez-Carcamo, 559 F.3d at 389. Thus, in Ramirez-Carcamo, the alien could not defeat his prosecution for illegal reentry (and the impact of a removal order) by leaving the United States on his own dime in advance of the removal hearing. The court was concerned that if it held the other way, aliens would be encouraged to not comply with their obligation to appear at removal hearings. Appealing the removal order will not nullify its impact for purposes of an illegal reentry prosecution if the alien departs the country. United States v. Blaize, 959 F.2d 850, 852 (9th Cir. 1992) (alien who leaves while his appeal is pending has been deported and the appeal is withdrawn by operation of law). The fact that a defendant was removed rather than deported does not preclude a conviction under § 1326, even where the indictment alleges the defendant having previously been ... deported. United States v. Pena-Renovato, 168 F.3d 163 (5th Cir. 1999). Typically, proof of the prior removal is shown by a Form I-205, consisting of a Warrant of Removal\Deportation signed by an immigration official, which further reflects that a deportation officer witnessed the alien’s removal from the United States. Courts have held that the introduction as evidence of this information does not violate
primary purpose of providing evidence for immigration rather than criminal proceeding, and was not made for the purpose of accusing the defendant of illegal reentry). Failure to investigate a valid derivative citizenship claim is ineffective assistance of counsel. United States v. Juarez, 672 F.3d 381 (5th Cir. 2012). The government may seek to prove foreign alienage through the introduction of the Form I-213. This is “an official record routinely prepared by an [immigration] agent as a summary of information obtained at the time of the initial processing of an individual suspected of being an alien unlawfully present in the United States.” Bauge v. INS, 7 F.3d 1540, 1543 n. 2 (10th Cir. 1993). The form contains a record of the alien’s conversation with the ICE agent, and contains the aliens name, address, immigration status, circumstances of the individuals apprehension, and any substantive comments the individual may make. Gonzalez-Reyes v. Holder, 313 F. App’x 690, 692 (5th Cir. 2009)(unpublished)(citing Bauge, 7 F.3d at 1543 n.2). The Form I-213 documents each encounter with the alien. Aliens with multiple encounters will have multiple I-213s in their A-file. In United States v. Noria, 945 F.3d 847 (5th Cir. 2019), the Fifth Circuit held as a matter of first impression that introducing the front page of the I-213 was nontestimonial and therefore did not implicate the Confrontation Clause. Noria held that the page was admissible under the Public Records Exception to the hearsay rule, FRE 803 (8). Other pages to the I-213 were not before the court on appeal. c. Previous Removal. The statute applies to an alien who has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter is found in the country. 8 U.S.C. § 1326 (a). This language resulted from the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which made significant alterations to immigration law,
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the Sixth Amendment’s Confrontation Clause because it is not testimonialhearsay subject to the stringent requirements of admissibility that Crawford v. Washington imposed on unavailable witnesses. United States v. Valdez-Maltos, 443 F.3d 910 (5th Cir. 2006); United States v. Rojas-Pedroza, 716 F.3d 1253 (9th Cir. 2013); United States v. Lopez-Moreno, 420 F.3d 420 (5th Cir. 2005)(computer printouts regarding alien passengers§ removal from US admissible as public record under FRE 803 (8)); United States v. Bahena-Cardenas, 411 F.3d 1067 (9th Cir. 2005). The courts reason that the document merely records an unambiguous factual matter, not fact gathering in anticipation of prosecution. An alien’s removal must follow a conviction to trigger the increases to the statutory maximum. United States v. Nevares-Bustamante, 669 F.3d 209 (5th Cir. 2012) (crime of violence adjustment inapplicable where no removal order was issued after the predicate conviction nor was any prior removal order reinstated after same). The timing of the alien’s removal prior removal qualifies as a fact under Apprendi which must be admitted by the defendant or proven to a jury beyond a reasonable doubt if the conviction is to be used to increase the statutory maximum. United States v. Rojas-Luna, 522 F.3d 502 (5th Cir. 2008). Thus, in Rojas-Luna, at the guilty plea, the government introduced evidence that the defendant was removed in 1988. At sentencing, the PSR showed that the defendant was removed in 2006 after serving a prison term for an aggravated felony. Because no evidence of the 2006 removal was presented during the guilty plea, the sentence enhancement did not apply and the defendant’s sentence was capped at 2 years. The lawfulness of a prior deportation is not an element of the offense that the government must prove. United States v. Alvarado-Delgado, 98 F.3d 492 (9th Cir. 1996) (citing, United States v. MendozaLopez, 481 U.S. 828 (1987)). However, if the original deportation hearing was so fundamentally unfair as to violate due process, the original deportation order may
be challenged. 8 U.S.C. §1326 (d). This rule codifies the Supreme Court’s decision in United States v. Mendoza-Lopez, 481 U.S. 828 (1987), which as applied by the Fifth Circuit permits a collateral constitutional challenge if the alien can establish that (1) the prior hearing was fundamentally unfair’; (2) the hearing effectively eliminated the right of the alien to challenge the hearing by means of judicial review of the order; and (3) the procedural deficiencies caused the alien actual prejudice. United States v. Lopez-Vasquez, 227 F.3d 476, 483 (5th Cir. 2000). See also, United States v. Lopez-Ortiz, 313 F.3d 225, 230 (5th Cir. 2002); United States v. Ramirez-Cortinas, 945 F.3d 286 (5th Cir. 2019). The defendant must show three. That is, failing one prong, the court need not consider the others. United States v. Mendoza-Mata, 322 F.3d 829, 832 (5th Cir. 2003). Establishing fundamental unfairness in the Fifth Circuit is more difficult than in other circuits. See, e.g., United States v. Villanueva-Diaz, 634 F.3d 844 (5th Cir. 2011) (attorney’s failure to give client notice of BIA’s adverse decision thus preventing appeal did not affect fundamental fairness of proceedings). In Lopez-Ortiz, the immigration judge told the defendant that he was ineligible for 212 (c) relief, advice which though correct at the time, was rendered incorrect by St. Cyr. The defendant was removed without challenging the procedure and later reentered the United States, where he was found by immigration authorities and prosecuted for illegal reentry. The defendant later challenged the fundamental fairness of the removal hearing in his illegal reentry case. The Fifth Circuit found that even though St. Cyr later proved the immigration judge wrong, the immigration judge’s incorrect admonishment did not render the removal hearing fundamentally unfair. The court based its holding on its finding that eligibility for 212 (c) relief is not a liberty or property interest warranting due process protection. Accordingly, the immigration judge’s error did not rise to the level of fundamental unfairness. Id., at 230. 63
A showing of actual prejudice means “there was a reasonable likelihood that but for the errors complained of the defendant would not have been deported.” RamirezCortinas, 945 F.3d at 291 (quoting, United States v. Benitez-Villafuerte, 186 F.3d 651, 658 (5th Cir. 1999)). This places the burden upon the defendant to show that the error resulted in his removal. It is not enough to show that the error “might have prevented” the defendant’s ultimate removal. Ramirez-Cortinas, 945 F.3d at 291 (reversing district court for applying “diluted” actual prejudice standard).
In unpublished decisions, the Fifth Circuit used Lopez-Ortiz, to reject the argument that an illegal reentry indictment was invalid because the underlying removal order, which was based on having been convicted of the felony driving while intoxicated, was invalid under United States v. Chapa-Garza, 243 F.3d 921, 927 (5th Cir. 2001). See United States v. Sanchez-Parra, No. 03-50661 (5th Cir. August 31, 2004) (not published). The circuits remain split. See, United States v. Leon-Paz, 340 F.3d 1003 (9th Cir. 2003) (holding that an immigration judge’s failure to advise a permanent resident alien of his right to apply for § 212(c) discretionary relief from deportation in pre-St. Cyr case violated due process and rendered the deportation order fundamentally unfair and, thus, was a basis to dismiss illegal reentry indictment that relied on that deportation order); United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2003)(immigration judge’s failure to advise alien of his eligibility to apply for discretionary relief from deportation was due process violation that rendered the deportation hearing fundamentally unfair); United States v. Lopez-Velasquez, 629 F.3d 894 (9th Cir. 2010)(immigration judge, though obligated to advise alien of eligibility for relief, not required to inform alien of relief for which he was not eligible at time of hearing and for which he would become eligible later only with a change of law); United States v. Perez, 330 F.3d 97, 104 (2d Cir. 2003)(same); United States v. Lopez, 445 F.3d 90 (2d Cir. 2006)(erroneous information given by Immigration Judge and Board of Immigration Appeals to defendant on the unavailability of relief under former § 212 (c) of INA deprived defendant of judicial review within the meaning of 8 USC § 1326 (d)(2), vacating conviction and remanding to district court to determine whether error rendered conviction fundamentally unfair under § 1362 (d)(3)). At some point, the Supreme Court will need to resolve this circuit split. Until then, objections must be made to preserve the issue for such review.
For a moment, some district courts granted motions to dismiss illegal reentry indictments where the notice to appear failed to provide a hearing time or place. See Pereira v. Sessions, 138 S. Ct. 2105 (2018) (holding in context of “stop time rule” that notice to appear was insufficient to stop time). The theory underlying the attack rested upon the argument that, because of the missing time and date information, the notice to appear failed to vest jurisdiction in the immigration court. Therefore, the argument went, the court acted without jurisdiction and the removal order was null and void. The Fifth Circuit rejected this argument in United States v. Pedroza-Rocha, 933 F.3d 490 (5th Cir. 2019). Relying on Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019), a cased decided after the trial court ordered the indictment dismissed, the Fifth Circuit found the no place no time notice to appear to be not defective, and if defective, to be a defect that was not jurisdictional. More importantly, the Fifth Circuit held in Ramirez-Cortinas, that the defendant’s removal while the appeal was pending did not render it moot. An alien exhausts administrative remedies by raising an issue “either on direct appeal or in a motion to reopen” before the BIA. United States v. ParralesGuzman, 922 F.3d 706, 707 (5th Cir. 2019). Moreover, “a remedy is available as of right if (1) the petitioner could have argued the claim before the BIA, and (2) the BIA has adequate mechanisms to address and 64
found when he applied for Temporary Protected Status with INS at the Texas Service Center using his true name, date of birth, and place of birth, even though he failed to disclose a prior removal or prior criminal conviction. Using a bogus identity may hide the alien from being found. An alien won’t be deemed found, if he applies under bogus name for a temporary resident card under an amnesty program. United States v. Gomez, 38 F.3d 1031 (8th Cir. 1994). See also, United States v. Are, 498 F.3d 460 (7th Cir. 2007) (rejecting constructive knowledge theory to trigger running of statute). Discovery by ICE marks the end of the continuing illegal reentry violation, but not the beginning of the offense. United States v. Jimenez-Borja, 363 F.3d 956, 960 (9th Cir. 2004). Where the alien is “found” also marks the place where venue is proper. United States v. Delgado-Nunez, 295 F.3d 494 (5th Cir. 2002). In Delgado-Nunez, the alien was found in the Northern District of Texas when immigration authorities interviewed him while serving a prison sentence. From there he was transferred to the Western District of Texas where immigration authorities again interviewed him. The Fifth Circuit concluded that venue was not proper in the Western District as the offense of illegal reentry was already completed in the Northern District where he was found. Although the right to trial in the proper venue is constitutionally protected it can be waived. Thus, unless the facts showing the impropriety of venue only become apparent at the close of the government’s case counsel must object to improper venue prior to trial or waive the venue complaint. Id. An improper venue argument may get an illegal reentry prosecution dismissed. Prosecutors may not be able to get the appropriate district to prosecute an illegal reentry case as the case may not meet their charging policies. The found in fact also sets the guideline book to use because it establishes the date the offense ended. This may make a big difference depending upon which
remedy such a claim.” Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009). If an alien waives appeal, or if he appeals and loses and fails to seek reopening his case with the BIA or the IJ, the court may find the alien failed to exhaust administrative remedies and deny relief. ParralesGuzman, 922 F.3d at 707 (defendant removed after felony DWI improperly graded an aggravated felony who waived appeal of removal order could not collaterally attack removal for lack of exhaustion). Even if an attack on the unfairness of the removal order fails, demonstrating inequity in the removal process also serves to mitigate the offense. For example, in Parrales-Guzman, the district court sentenced the defendant to time served after denying the motion to dismiss. d. Entered or Was Found In The element of being found in the United States… depends not only on the conduct of the alien but also on the acts and knowledge of the federal authorities.” United States v. Rivera-Ventura, 72 F.3d 277, 281 (2d Cir. 1995). The offense does not become complete “until the authorities both discover the illegal alien in the United States, and know, or with the exercise of diligence typical of law enforcement could have discovered, the illegality of his presence.” United States v. Acevedo, 229 F.3d 350, 355 (2d Cir. 2000); United States v. Delgado-Nunez, 295 F.3d 494 (5th Cir. 2002). Importantly, the statute of limitations does not run until the defendant’s presence in the country, as well as the illegal status of that presence, is discovered by t1he B.I.C.E. (formerly called I.N.S.). United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996). The “found in” fact can be critical for several reasons. In United States v. Gumera, 479 F.3d 373 (5th Cir. 2007), the Fifth Circuit found a statute of limitations violation where the indictment was returned five years after the defendant was found. Applying Santana-Castellano, supra, the Fifth Circuit held that the defendant was
65
version of the guidelines result in a better outcome. Big changes were made effective November 2016 that can result in much higher ranges than before. Near the border, other considerations apply. Attempting to enter may involve simply presenting false documents at a port of entry. United States v. Resendiz-Ponce, 127 S. Ct. 782 (2007); United States v. Cardenas-Alvarez, 987 F.2d 1129 (5th Cir. 1993). A defendant must pass through immigration inspection in order to be found in the country; it is not enough, for example, to be arrested in an airport before the immigration inspection (though an attempt may be proven). United States v. Canals-Jimenez, 943 F.2d 1284 (11th Cir. 1991) (also suggesting that the found in aspect of the statute may be void for vagueness). The Fifth Circuit has held that there is no requirement of specific intent in the statute. United States v. Trevino-Martinez, 86 F.3d 65, 68 (5th Cir. 1996), cert. denied, 117 S.Ct. 1109 (1997). The circuits are split as to whether an alien is “found in” the United States when the alien is forcibly returned there. In United States v. Macias, 740 F.3d 96 (2d Cir. 2014), the defendant, a citizen of Honduras who had lived in the United States illegally for approximately a decade, came to the attention of U.S. border authorities when Canadian border authorities forcibly returned him to the U.S. side of the border after they discovered him attempting entry into Canada. The court found that Macias was not in the United States when he was “found” and, when “found in” the United States he was there involuntarily. Accordingly, it was plain error to convict him and was a manifest injustice to allow the conviction to stand. In contrast, under identical circumstances, the Ninth Circuit has twice held that the aliens were “found in” the United States after having crossed into Canadian territory. See, United States v. Gonzalez-Diaz, 630 F.3d 1239, 1243-44) (9th Cir. 2011); United States v. AmbrizAmbriz, 586 F.3d 719, 723-24 (9th Cir. 2009). The Second Circuit disagreed in
Macias with the Ninth Circuit’s assumption that under these circumstances the alien was legally “present” in either the United States or Canada. These decisions illustrate the special legal meaning of “presence” in the context of the illegal reentry statute. In United States v. Herrera-Ochoa, 245 F.3d 495 (5th Cir. 2001), the court found that the government had failed to introduce sufficient evident that the defendant was found in the United States from the fact that the defendant was present in the courtroom during his trial, or that docket entries accounted for the date of the defendant’s arrest. This was a court trial that followed a suppression hearing. On appeal, the Fifth Circuit declined the government’s invitation to take judicial notice of the defendant’s presence, something the trial court failed to do. Moreover, because this was an element of the offense, the appellate court was reluctant to violate the defendant’s Sixth Amendment right to confront witnesses and to have each element proved beyond a reasonable doubt by inferring from the record that the defendant had been found. The appellate court also refused to use the record of the suppression hearing to supply the missing evidence as the trial judge had failed to mention it. Lengthy delays to sentencing from the date an alien was “found” in the United States may justify a lower than guideline range sentence. USSG § 2L1.2, comment. (n. 7)(Nov. 2018). The Guidelines direct that “any such departure should be fashioned to achieve a reasonable punishment for the instant offense.” Id. The departure “should be considered only in cases where the departure is not likely to increase the risk to the public from further crimes of the defendant.” Id. Courts have approved downward departures to an illegal alien for all or part of time served in state custody from the time immigration authorities located the defendant until he was received into federal custody to compensate for time that would not be credited towards his federal sentence. United States v. BarreraSaucedo, 385 F.3d 533 (5th Cir. 2004). 66
that the alien had applied for permission to enter the United States. United States v. Sanchez-Milam, 305 F.3d 310 (5th Cir. 2002). CNRs are no longer admissible without affording defendants the right to cross-examine the witness who prepared the report. United States v. Martinez-Rios, 595 F.3d 581 (5th Cir. 2010).
e. Without Consent of the Government. The previously removed alien must obtain the consent in advance of reentry. The fact that the Order of Removal instructs the alien that he is prohibited from re-entering the United States for five years and that if the alien wished to re-enter the United States he would first need to obtain the permission of the Attorney General does not alter this requirement. United States v. Romero-Caspeta, 744 F.3d 405 (6th Cir. 2014); United States v. BernalGallegos, 726 F.2d 187 (5th Cir. 1984). That is, the mere fact that a visa might be available to the alien after the five-year exclusionary period is not a defense to illegal reentry. United States v. JoyaMartinez, 947 F.2d 1144 (4th Cir. 1991). For offenses committed on or after March 1, 2003, the alien must have failed to have applied for permission from the Secretary of Homeland Security rather than from the Attorney General. See Singh v. Ashcroft, 367 F.3d 1139 n.* (9th Cir. 2004); United States v. Ramirez-Gonzalez, 2003 WL 22953188 (D. Del. Dec. 2, 2003). The previous version of the statute required that the defendant receive the consent of the Attorney General to apply for readmission to the United States. United States v. Flores-Peraza, 58 F.3d 164, 166 (5th Cir. 1995) cert. denied, 116 S.Ct. 782 (1996); United States v. Vasquez-Olvera, 999 F.2d 943, 945 (5th Cir. 1993), cert. denied, 510 U.S. 1076 (1994). Such authorization may only be issued by the Attorney General or the INS (or now, the successor government agency, the Department of Homeland Security). United States v. Trevino-Martinez, 86 F.3d 65 (5th Cir. 1996)(citing C.F.R. §§ 212.2(b)(2), 212.4(c) (non-immigrant visa issued by American consular official to previously deported alien failed to satisfy the requirement that alien obtain the express consent of the Attorney General.... Id. at 68. The government used to prove this element through introduction at trial of a document called a certificate of nonexistence of record (CNR) prepared by an immigration official who would certify that after a diligent review no record was found
f. Mens Rea. Only general intent, intent to engage in voluntary behavior (as opposed, say, to being accidentally driven into the United States while sleeping) is an element of illegal reentry. See United States v. BerriosCenteno, 250 F.3d 294 (5th Cir.2001). Even if attempted entry is charged, the government need not prove that the defendant possessed the specific intent to enter the United States without the permission of the Government. See, United States v. Morales-Palacios, 369 F.3d 442 (5th Cir. 2004). This view was undermined by the Supreme Court in Resendiz-Ponce, supra, which on the way to reviewing the validity of an attempted re-entry indictment discussed the elements necessary for conviction. Resendiz-Ponce concluded that attempted reentry included the common law elements of attempt (intent to commit object crime plus an overt act that constitutes a substantial step towards completing the offense), and that the word attempt’ encompasses both the overt act and intent elements. Imputing the intent element undermines the Fifth Circuit’s analysis in Berrios-Centeno. See, United States v. Gracidas-Ulibarry, 231 F.3d 433 (9th Cir. 2000) (en banc) (attempted illegal reentry does require such specific intent because attempt necessarily implies specific intent to violate the law); United States v. Lombera-Valdovinos, 429 F.3d 927 (9th Cir. 2005) (attempted reentry not proven where alien was arrested while attempting entry for the sole purpose of being taken into custody by authorities). Congress did not impose a requirement of specific intent anywhere in [8 U.S.C. § 1326(a)] nor did it provide that an alien’s reasonable belief that he was legally entitled to reenter the United States is a defense to criminal liability. 67
United States v. Trevino-Martinez, 86 F.3d 65, 68 (5th Cir. 1996); United States v. Leon-Leon, 35 F.3d 1428 (9th Cir. 1994) (same, even though alien possessed green card he thought was valid); United States v. Carlos-Colmenares, 253 F.3d 276 (7th Cir. 2001) (no intent to violate the law required).
Oregon on traffic violations and interviewed by the INS who determined that he was in the US illegally in violation of § 1326. Eventually, the defendant was transferred to Washington to face other state charges and again interviewed by the INS. Upon completion of the state sentence the defendant was indicted for illegal reentry. After conviction, the defendant appealed and won his improper venue claim. A defense of improper venue must be raised before trial, otherwise the claim will be deemed waived. United States v. Delgado-Nunez, 295 F.3d 494 (5th Cir. 2002).
g. Venue. In illegal reentry cases, challenging venue can result in dismissal of the charges. This occurs when an alien is found outside of the charging district. Proper venue is constitutionally and statutorily required U.S. Constitution Amend. VI; Fed. R. Crim. P. 18. Venue lies where the offense was committed. The illegal reentry statute provides three separate occasions for a deported alien to violate it: 1) when he/she illegally reenters; 2) when he/she attempts to illegally enter the United States; or 3) when he/she is at any time found in the United States. United States v. Santana-Castellano, 74 F.3d 593, 597 (5th Cir. 1996). Moreover, 8 U.S.C. § 1329 provides that [n]otwithstanding any other law, such prosecutions or suits may be instituted at any place in the United States at which the violations may occur or at which the person charged with a violation under section 1325 or 1326 of this title may be apprehended. Also relevant is the venue statute for continuing offenses, which provides that any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed. An alien is found in the United States, and an illegal reentry crime is completed, when immigration authorities discover the alien’s unlawful physical presence in the country. United States v. Hernandez, 189 F.3d 785 (9th Cir. 1999). The first time that immigration authorities find an illegal reentry defendant concludes the offense. That is, a defendant who is found in one district cannot be foundagain in another district. Id. For example, in Hernandez, the alien was arrested in
2. Bringing in Aliens Other than Point of Entry: 8 U.S.C. § 1324(a)(1)(A)(i) This section of Title 8 makes it a crime for anyone knowing that a person is an alien to bring the alien into the United States at a place other than a designated point of entry, regardless of whether the alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future action which may be taken with regard to the alien. The government must prove that the defendant intended to commit a criminal act. See, United States v. ZayasMorales, 685 F.2d 1272, 1275 (11th Cir. 1982); United States v. Nguyen, 73 F.3d 887, 894 (9th Cir. 1995). The failure to so instruct the jury is reversible error. Nguyen, 73 F.3d at 895. The evidence must show that the defendant accompanied or arranged to have the alien accompanied (as in an alien smuggling operation) across the border into the United States. United States v. GarciaPaulin, 627 F.3d 127 (5th Cir. 2010). Providing false documents to an alien, or otherwise encouraging an alien to enter unlawfully will not violate the statute. Id. (factual basis in guilty plea that defendant supplied fraudulent passport stamp and advised alien that it would allow him to work in U.S. after secret entry did not support finding of guilt). Such indirect assistance violates § 1324(a)(iv), which makes it a crime to encourage or induce an alien to come to, enter, or reside in the 68
present the illegal alien to the appropriate immigration officer at the point of entry may be punished by not more than 10 years imprisonment. 8 U.S.C. § 1324 (a)(2)(B)(iii).
United States. Id. If financial or private gain motivate the commission of the crime, the statutory maximum doubles from 5 years to 10 years imprisonment. 8 U.S.C. § 1324 (a)(1)(B)(i) & (ii).
4. Unlawfully Transporting Aliens: 8 U.S.C. §1324(a)(1)(A)(ii)
3. Bringing in Aliens at Point of Entry: 8 U.S.C. § 1324(a)(2) Anyone knowingly bringing an illegal alien into the United States through a designated port of entry may be prosecuted for a lesser crime that is punishable by up to one year in prison for a first offense. 8 U.S.C. §1324 (a)(2)(A). To establish a violation the government need only show that the defendant acted knowingly, that is with an awareness of the facts that constituted the offense, not willfully, that is with knowledge that his conduct was illegal. United States v. Barajas-Montiel, 661 F.3d 1051 (11th Cir. 2011) cert. denied, 132 S.Ct. 2711 (2012)(sports agent brought Cuban baseball players into United States and district judge prohibited defense from making argument regarding defendant’s belief that he believed Cubans would enter under WetFoot/Dry – Foot policy under which immigration authorities applied Cuban Adjustment Act to Cubans who attempted entry into United States). Though truly a misdemeanor, a conviction will be deemed to be an aggravated felony, inasmuch as it amounts to an alien smuggling offense, an offense enumerated in 8 U.S.C. § 1101 (a)(43) which lists aggravated felonies. Biskuspsi v. A.G. of U.S., 503 F.3d 274, 279-81 (3d Cir. 2007). If the offense was committed with the intent or with reason to believe that the alien would commit a felony, or if committed for the purpose of commercial advantage or private financial gain, the offense, if a first or second offense, is punishable by a range of imprisonment of between 3 to 10 years. 8 U.S.C. § 1324 (a)(2)(B)(1). For a person who violates the statute three or more times, the range of imprisonment is not less than 5 nor more than 15 years imprisonment. Id. A first offender who violates the law and merely fails to
a. Elements of Proof. The government must prove that: (1) an alien had entered or remained in the United States in violation of the law; (2) that the defendant transported the alien within the United States with intent to further the alien’s unlawful presence; and (3) that the defendant knew or recklessly disregarded the fact that the alien was in the United States in violation of the law. United States v. Diaz, 936 F.2d 786 (5th Cir. 1991). Acting with specific intent to violate the immigration laws is not necessary to support a conviction. United States v. Rivera, 879 F.2d 1247, 1251 (5th Cir. 1989). The statute reaches and criminalizes conduct that occurs outside the United States, where the alien smugglers intend to bring the undocumented aliens to the United States. United States v. Villanueva, 408 F.3d 193 (5th Cir. 2005). The statute exempts certain volunteer religious ministers or missionaries from its reach. b. Intent to Further Illegal Presence. Mere transportation of an illegal alien, without more, is insufficient as a matter of law to support a conviction under this statute. United States v. ChavezPalacios, 30 F.3d 1290 (10th Cir. 1994); see also, United States v. Esparza, 876 F.2d 1390 (9th Cir. 1989) (evidence insufficient as only evidence was that defendant rode in front seat of vehicle traveling in convoy with van transporting aliens). There must be a direct and substantial relationship between the defendant’s act of transportation and its furtherance of the alien’s presence. The defendant must have the specific intent to further the alien’s unlawful presence. United States v. Rivera, 879 F.2d 1247 (5th Cir. 1989), cert. denied, 69
110 S. Ct. 554 (1989). The defendant does not have the requisite mental state if she merely intends to assist the alien in obtaining legal status. United States v. Merkt, 764 F.2d 266 (5th Cir. 1985) (worker at sectarian shelter for refugees drove aliens from border to San Antonio so they could apply for political asylum); United States v. Moreno, 561 F.2d 1321 (9th Cir. 1977) (foreman of reforestation workers who transported aliens to job sites, with direct and substantial evidence to support the finding that the appellant knew the immigration status of the aliens not guilty of § 1324(a)(1)(A)(ii) violation as the act of transportation was only incidental to and not in furtherance of the aliens’ illegal presence); United States v. Moreno-Duque, 718 F. Supp. 254 (D. Vt. 1989) (same). The possibility that aliens can apply for asylum and remain in the country on bond or parole pending the disposition of the applications does protect one from prosecution. United States v. PereiraPineda, 721 F.2d 137 (5th Cir. 1983); United States v. Rodriguez-Rodriguez, 840 F.2d 697 (9th Cir. 1988) (same for possibility of adjustment of immigration status). The Fifth Circuit has held that a defendant that transports an alien who has applied for and received a Form I-210, 30day parole, is nonetheless culpable as a paroled alien is in the same position as one who seeks admission on the border. United States v. Alvaro-Machado, 867 F.2d 209 (5th Cir. 1989), quoting¸ Delgado-Carrera v. I.N.S., 773 F.2d 629 (5th Cir. 1985) (in context of expulsion proceeding), and citing United States v. Anaya, 509 F.Supp. 289, 299 (S.D.Fla. 1980) (en banc decision of district judges), aff’d, United States v. Zayas-Morales, 685 F.2d 1272 (11th Cir. 1982); but see, United States v. MedinaGarcia, 918 F.2d 4, 7 (1st Cir. 1990). c. Alienage. “An alien is any person who is not a natural-born or naturalized citizen the United States.” Fifth Circuit Pattern Jury Charge, Criminal § 2.03 (West 2019). While the statute prohibits transportation of someone who has come to, entered, or remains in the country
unlawfully, the government does not need to prove all three conditions. United States v. Esparza, 882 F.2d 143, 145 (5th Cir. 1989), cert. denied, 110 S.Ct. 418, (1989). Thus, though the alien may be granted Orders of Release on Recognizance by immigration, he will still be considered to have come to and entered the U.S. unlawfully. Id. The alienage of those transported must be proved. Alvaro-Machado, 867 F.2d at 212. The government may not introduce the final judgment arising from a conviction for an immigration status crime in order to prove that the alien-transportee was unlawfully in the country. Diaz, 936 F.2d at 788. Typically, proof of alienage is provided through the videotaped depositions of the aliens being transported, a procedure authorized under §1324 (d) of Title 8. The government may also do so through introduction of the Form I-213. See, United States v. Noria, 945 F.3d 847 (5th Cir. 2019) (Form-213 documenting encounter with alien not testimonial and admissible under public records exception of FRE 803 (8)). Depositions raise special hurdles. The government must use reasonable means to secure the live testimony of the witness before the video deposition will be deemed admissible at trial. See, United States v. Tirado-Tirado, 563 F.3d 117 (5th Cir. 2009) (error for court to admit video deposition where government failed to show that witness was unavailable for trial - measures taken by the government failed to constitute good faithor reasonable effortsto secure the witness for trial). The constitutionality of this deposition procedure has been upheld. United States v. Aguilar-Tamayo, 300 F.3d 562 (5th Cir. 2002) (holding §1324(d) constitutional as it does not eliminate requirement of showing witness is unavailable, any error in not requiring government to show reasonable means to acquire witness testimony was harmless). 5. Concealing or Harboring Aliens: 8 USC §1324(a)(1)(A)(iii) Title 8, United States Code, Section 70
each alien. 8 U.S.C. §1324 (a)(1)(B)(i). Otherwise, the maximum punishment is 5 years imprisonment. 8 U.S.C. § 1324(a)(1)(B)(ii). When a defendant is tried and convicted for aiding and abetting a violation of §1324, rather than as a principle, the question of financial gain by the defendant or others is immaterial. United States v. Nolasco-Rosas, 286 F.3d 762, 76667 (5th Cir. 2002). The punishment for aiding and abetting a §1324 violation is no more than five years, regardless of financial gain. Id.
1324(a)(1)(A)(iii) makes it a crime for anyone to conceal or harbor an alien, knowing or in reckless disregard of the fact that the alien has entered or remained in the United States in violation of the law. The conduct must tend to substantially facilitate the alien remaining in the United States illegally. United States v. De Jesus-Batres, 410 F.3d 154 5th Cir. 2005). Substantially facilitate means to make an alien’s illegal presence in the United States substantially easier or less difficult’ United States v. Shum, 496 F.3d 390 (5th Cir. 2007)(affirming conviction - defendant employed illegal aliens as janitors, provided them with false identifications, and did not file social security paperwork on their behalf); United States v. Costello, 666 F.3d 1040 (7th Cir. 2012)(evidence not sufficient where defendant knew her live-in Mexican boyfriend was in the country illegally and had been previously deported even though she picked him up from the bus terminal and drove him home, where there was no evidence that she concealed the boyfriend or shielded him from detection and there was no evidence that she was trying to encourage or protect or secrete aliens). Telling an alien how to stay out of trouble and avoid immigration authorities by simply conveying common sense advice does not qualify as substantially facilitating the alien’s remaining in the United States. United States v. Ozcelik, 527 F.3d 88 (8th Cir. 2008). The indictment need not allege nor the jury charge require that the government prove that the defendant acted with specific intent to violate immigration law. Id. But see, United States v. Nguyen, 73 F.3d 887, 89495 (9th Cir. 1995) (requiring proof of specific intent to violate immigration laws). The jury instruction must require the jury to find that each individual was in the United States in violation of law and that the defendant knew or was in reckless disregard of that fact. United States v. Pereyra-Gabino, 563 F.3d 322 (8th Cir. 2009). In the case of an offense committed for purpose of commercial advantage or private financial gain, the maximum punishment is 10 years imprisonment for
6. Illegal Entry: 8 U.S.C. §1325 (a) Title 8, United States Code, Section 1325 prohibits an alien from entering or attempting to enter the United States by three means: Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by willfully false or misleading representation or the willful concealment of a material fact, shall, for the first such commission of any such offense, be fined under Title 18 or imprisoned not more than 6 months, or both, and for a subsequent commission of any such offense, be fined under Title 18, or imprisoned not more than 2 years. This offense is not a lesser included offense of 8 U.S.C. §1326, Illegal Reentry. United States v. Flores-Peraza, 58 F.3d 164 (5th Cir. 1995) (holding that because §1326(a) only requires proof of entry, while § 1325(a) requires additional proof of how entry was effected, same elements test of Blockburger not satisfied).
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was also removed in 2006, after serving a prison sentence for an aggravated felony. On that basis, the PSR described his penalty range as up to 20 years. The district court sentenced him to 73 months. On appeal, Rojas argued that Apprendi prevented use of the 2006 removal because he did not admit that removal and a jury did not find that removal beyond a reasonable doubt. The government argued that the removal was like a prior conviction and therefore, under Almendarez-Torres, was not subject to the Sixth Amendment rule of Apprendi. The Fifth Circuit reversed, and held that, because the temporal relationship between the removal and a prior conviction increase the statutory maximum penalty for illegal reentry, the date of removal is a fact subject to the rule of Apprendi that must be admitted by a defendant or proved to a jury beyond a reasonable doubt. It was therefore error for the district court to increase the defendant’s punishment beyond the 2 years available for a simple illegal reentry case. The court found the error to meet the plain error standard of review. But different facts concerning what the defendant or counsel represented to the court at sentencing will lead to a different result. In United States v. Velasquez-Torrez, 609 F.3d 743 (5th Cir.) cert. denied, 562 US 990 (2010), the court found no plain error to an enhanced sentence where the defendant, through counsel, stated at sentencing that the PSR contained no mistakes and the defendant remained silent about the prior conviction and its timing before a removal. These statements qualified as admissions by a defendant regarding a fact used to raise a statutory maximum supporting the increase. Id. See also, United States v. Ramirez, 557 F.3d 200 (5th Cir. 2009). To be clear, facts contained in a PSR alone will not suffice, but a defendant’s admissions to the facts contained in the PSR will. Counsel must prevent making, or allowing the client, to make such admissions. To win this objection on appeal the Apprendi error must be preserved. Importantly, illegal reentry sentences may be capped where the timing of the removal with the conviction is not established by a defendant’s admissions. Be
B. PENALTY PROVISIONS 1. Illegal Reentry Absent a criminal record, an alien prosecuted under this subsection faces a maximum punishment of two years imprisonment. 8 U.S.C. §1326(a)(2). If the removal was subsequent to a conviction for commission of three or more misdemeanors involving drugs, crimes against the person or both, or a felony (other than an aggravated felony), a maximum ten-year prison sentence may be imposed. 8 U.S.C. § 1326 (b)(1). See, United States v. Trejo-Galvan, 304 F.3d 406 (5th Cir. 2002) (driving while intoxicated did not qualify as crimes against the personto warrant enhanced sentence). If subsequent to a conviction for an aggravated felony, a maximum twentyyear sentence may be imposed. 8 U.S.C. 1326 (b)(2). As with all federal enhancement, courts use the categorical approach to determine if a prior conviction meets the term at issue. Moncrieffe v. Holder, 133 S.Ct. 1678 (2013). a. Apprendi and the Timing of Removals. The date of an alien’s prior removal is an element of enhanced illegal reentry penalties. United States v. NevaresBustamante, 669 F.3d 209 (5th Cir. 2012); United States v. Rojas-Luna, 522 F.3d 502 (5th Cir. 2008). To enhance an alien’s sentence, based on unlawfully remaining in the United States after a felony conviction, a removal order must issue or be reinstated after the predicate conviction. NevaresBustamante, supra. Moreover, the removal order must be valid. United States v. Rodriguez-Ocampo, 664 F.3d 1275 (9th Cir. 2011). Counsel must pay attention to the sequence and timing of the removal and prior conviction. In Rojas, the defendant was charged with illegal reentry and the indictment was silent as to the date of removal. At his guilty plea, the government introduced evidence and the defendant admitted that he was removed in 1988. When the PSR came back it showed that he
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alert to dates of removal mentioned during guilty plea hearings and to objecting where later dates of removal are relied upon to enhance a sentence. b. Aggravated Felonies. An Aggravated felony is any of many crimes listed in 8 U.S.C. §1101(a)(43). They are violations of state, federal or foreign laws, for which the term of imprisonment was completed within the previous 15 years. 8 U.S.C. §1101 (a)(43). Non-citizens found in the United States after a removal for an aggravated felony conviction face up to 20 years imprisonment, 8 U.S.C. §1326 (b), in addition to a boost under the guidelines. Twenty categories of crimes qualify as aggravated felonies and one must compare the listed crimes to the conviction at issue to see if there is a match. Aggravated felonies include, but are not limited to, illicit trafficking in controlled substances or firearms, money laundering (over $10,000), rape, sexual abuse of a minor, murder, certain theft offenses (terms of imprisonment exceed one year), child pornography, crimes of violence (terms of imprisonment exceed one year), running a prostitution business, alien smuggling (unless first offender smuggling family), illegal entry (with prior conviction), document fraud, bond jumping, bribery, forgery, obstruction of justice (terms of imprisonment exceeding one year), perjury, bribery of a witness, and attempts or conspiracies to commit the offenses listed. The categorical approach is used by courts to determine if a prior conviction qualifies as an aggravated felony. Moncrieffe v. Holder, 133 S.Ct. 1678 (2013). Accordingly, courts look to the elements of the law violated not to the facts underlying the conviction. This can produce unexpected results as the labels affixed to crimes may mask the elements necessary for enhancement. How the Supreme Court has analyzed whether a drug conviction is for “illicit trafficking in a controlled substance” is instructive. Until Lopez v. Gonzales, 127 S.Ct. 625 (2006) was decided, most circuits
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held that a state conviction for simple possession of controlled substance qualified as it was punishable as a felony under the state law at issue, even though the same crime was not a felony under federal law. Lopez rejected this view, holding the conviction needed to punishable as a felony under federal law, a sanction not available for most mere possession drug cases. In Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (2010) the Supreme Court dealt with the question of recidivist drug offenders and held that a second or subsequent simple drug possession offense was not an aggravated felony where the conviction was not based on the fact of a prior conviction. Carachuri looked at what was essential to the fact of the conviction at issue. The availability of enhancement, without actual enhancement, was insufficient to establish the higher penalty necessary to qualify the conviction as a federal felony. Then, in Moncrieffe v. Holder, 133 S.Ct. 1678 (2013), the Court held that the alien’s state conviction for possession of marijuana with intent to distribute was not for an “aggravated felony” conviction for “illicit trafficking in a controlled substance.” Again, applying the categorical approach, the Court looked at the elements of the state statute that was violated to see what the state conviction necessarily involved, presuming that the conviction “rested upon [nothing] more than the least of the acts” criminalized, before determining whether even those acts are encompassed by the generic federal offense. Id. at 1684. The aggravated felony at issue, “illicit trafficking in a controlled substance,” was a generic crime and the Georgia law violated needed to satisfy two conditions to fit the federal term: 1) proscribe conduct that was an offense under the federal Controlled Substance Act (CSA) and 2) prescribe felony punishment for that conduct. The Court compared the CSA with the Georgia law and found the two different. Under Georgia law it was not necessary to
establish that the offense involved either remuneration or more than a small amount of marijuana to obtain a conviction. This contrasted with the CSA’s requirements for conviction for a felony. Because the fact of conviction under Georgia law did not necessarily involve facts that corresponded to a CSA felony the Court held that the Georgia conviction was not an aggravated felony. Id. at 1693. Moncrieff marked the third time in seven years that the Court considered whether the Government properly characterized a low-level drug offense as “illicit trafficking in controlled substances” and thus an “aggravated felony.” See also, Sarmientos v. Holder, 742 F.3d 624 (5th Cir. 2014)(Florida conviction for delivery of cocaine was not a categorical match with federal drug trafficking as unlike federal law, state law did not require proof that defendant knew illicit nature of the controlled substance); Donawa v. Holder, 735 F.3d 1275 (11th Cir. 2013)(remanding to BIA to consider whether Florida conviction constituted “illicit trafficking aggravated felony). Numerous aggravated felonies may trigger enhanced penalties. Crimes of violence, theft, and burglary offenses qualify as aggravated felonies if the term of imprisonment [is] at least one year. 8 U.S.C. §§ 1101(a)(43)(F), (G). The meaning of term of imprisonment under the INA is broad and defined in § 1101(a)(48)(B) of Title 8. It provides that any reference to a term of imprisonment includes a period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment. The length of the term is measured by the duration for which the sentence imposed was suspended. Thus, if a court imposes a sentence of five years, and suspends it for a five-year period of probation, the term of imprisonment is five years. United States v. Vasquez-Balandran, 76 F.3d 648 (5th Cir. 1996); see also, United States v. Quinonez-Terrazas, 86 F.3d
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382 (5th Cir. 1996) (indeterminate sentence of 4-10 years counts as sentence of at least five years); United States v. Yanez-Huerta, 207 F.3d 788 (5th Cir. 2000) (term of probation precluded downward departure where the term of imprisonment was higher than one year). A term of imprisonment is not imposed when a sentence of probation is ordered without any specific prison sentence being pronounced. United States v. Santiago-Mondragon, 564 F.3d 357 (5th Cir. 2009) (4- year term of Texas deferred adjudication not sentence of imprisonment); United States v. Herrera-Solorzano, 114 F.3d 48 (5th Cir. 1997); United States v. Banda-Zamora, 178 F.3d 728 (5th Cir. 1999). These cases recognize that when a defendant is directly sentenced to probation, with no mention of suspension of a term of imprisonment, there has been no suspension of a term of imprisonment. Banda-Zamora, 178 F.3d at 730. Thus, if the court does not order a period of incarceration and then suspend it, but instead imposes probation directly, the conviction will not qualify as a term of imprisonment. Id. This distinction is crucial and may require counsel to obtain and review court records relating to a client’s criminal history. Terms of imprisonment may be reduced through subsequent court action. For example, sentence reduction that result from the successful completion of a boot camp or similar program will replace the original terms of imprisonment. United States v. Landeros-Arreola, 206 F.3d 407 (5th Cir. 2001). For a crime of violenceto qualify as an aggravated felony (in addition to having a term of imprisonment of at least one year) it must satisfy 18 U.S.C. § 16, which requires, in part, the intentional, threatened, or attempted use of force “against the person or property of another.” In Leocal v. Ashcroft, 125 S.Ct. 377 (2004) the Supreme Court found that a conviction for causing bodily injury while driving intoxicated did not qualify as use of force because a conviction could be achieved with
proof of negligent, rather than intentional, conduct. A crime is either violent by its nature or not, without regard to its particular factual circumstances, a defining principle of the categorical approach. A reckless state of mind was found to be enough to show “use” of force in United States v. Reyes-Contreras, 910 F.3d 169 (5th Cir. 2018) (en banc). Reyes-Contreras wiped away a long line of Fifth Circuit precedent. First, ReyesContreras held there would no longer be a distinction between the use of direct or indirect force. Both direct force (using destructive violent force against someone) and indirect force (causing bodily injury through action that are not themselves violent) now constituted “physical force.” Reyes-Contreras 910 F.3d at 181-182. Reyes-Contreras also held that causing injury necessarily involved the use of physical force. Id. at 183-184. Moreover, Reyes-Contreras overruled cases that previously required bodily contact to show physical force, that is, a risk of injury was now enough to implicate force. After Reyes-Contreras, an offense satisfies the force clause “if the proscribed conduct (1) is committed intentionally, knowingly, or recklessly; and (2) employs a force capable of causing physical pain or injury; (3) against the person of another.” Id. at 185. Reyes-Contreras fundamentally changed the crime of violence analysis in elements clause cases, taking what the opinion described to be a “more realistic approach” that “comports with reason and common sense.” Reyes-Contreras, 910 F.3d at 186. The crime of violence” definition contains a residual clause in subpart (b) that was found to be unconstitutionally vague in Sessions v. Dimaya, 138 S.Ct. 1204 (2018). 2.
the crime committed, the offender’s criminal record, and whether the offense was committed for profit. Applying the Supreme Court’s penalty enhancer (not element of crime) rationale of Almendarez-Torres to these prosecutions, counsel should never rely upon the indictment to predict a client’s sentencing range. Crucial penalty elements, such as profit motive and past criminal record, may not be mentioned, although an Apprendi challenge to a sentence above the charged offense range remains available. V. CONCLUSION This paper surveys a broad area of federal practice that is constantly evolving. Counsel must remain vigilant to changes in the law and double check to make sure that the material reported here continues to reflect the current state of the matter under review.
Harboring, Transporting, Bringing Aliens Into the United States.
The penalty provisions for these offenses are found in Title 8, Section 1324(a)(1)(B). Punishments range from 1 to 15 years imprisonment, depending upon
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Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course June 24-26, 2021 Hyatt Regency San Antonio, TX
Topic: Litigating Sentencing Issues
Speaker:
Michael P. Heiskell
Johnson, Vaughn & Heiskell 5601 Bridge St Ste 220 Ft. Worth, TX 76112 (719) 457-2999 phone mheiskell@johnson-vaughn-heiskell.com email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
LITIGATING FEDERAL SENTENCING ISSUES
BY
MICHAEL P. HEISKELL
JOHNSON, VAUGHN & HEISKELL 5601 Bridge Street, Suite 220 Fort Worth, Texas 76112 Office: 817-457-2999 Fax: 817-496-1102 mheiskell@johnson-vaughn-heiskell.com
RUSTY DUNCAN ADVANCED CRIMINAL LAW COURSE JUNE 24-26, 2021 SAN ANTONIO, TEXAS
I. INTRODUCTION Since well over 90% of federal criminal cases result in pleas of guilty, federal sentencing is the primary focus of criminal litigation in federal court. Therefore, an effective defense presentation at sentencing is a must. A defense attorney must have as an overarching goal to focus the court on the sentencing purposes and the parsimony principle of the governing sentencing statute (18 U.S.C. § 3553 (a)), and to bring forward facts for consideration. In order to do so lawyers must unleash their creativity and provide facts in an informative and persuasive manner. This article and its appendices seek to aid counsel in this endeavor.
II. THE BEGINNING OF YOUR JOURNEY A.
Preliminary Steps: One must maintain credibility with your client during the process. It begins with your
work ethic—which should be exemplary . Therefore, your understanding of the factual basis for your client’s guilt, and the collateral issues raised as a result of these facts, must be at the highest level. You must meet your responsibility to your client by obtaining a complete understanding of said facts, and your client’s background—including her criminal history. Subsequent to this basic tenet you must next examine the statutory provisions applicable to the offense of conviction. Do so before you review the guidelines in order to understand the statutory range of punishment. Your next step should be determining the applicable advisory guideline range. Since the guidelines are one factor of many, counsel must be able to navigate through them. Afterwards, examine the aggravating and mitigating factors
relevant under 18 U.S.C. § 3553(a). The parsimony principle of a sentence “sufficient, but not greater than necessary” is the directive each court operates under. These factors include your client’s history and characteristics, among others. Most of these will also be addressed in the Presentence Report.
B.
The Deep Dive (Part 1) 1.
In determining which guideline provision applies to your client’s offense of
conviction look at Appendix A of the Guideline Manual. This will refer to one or more guidelines sections in Chapter 2 which is part of the guidelines that describe and address the “base offense level” to your client’s offense of conviction. See U.S.S.G § 1B.1(a)(b). Chapter 2 also considers certain types of specific conduct such as the amount of loss in a fraud case § 2B1.1(b)(1); 2.
Review Chapter 3 of the guidelines to determine what types of “adjustments”
your client may face in addition to the punishment proscribed in Chapter 2. Said “adjustments” focus on a person’s offense conduct and may increase or decrease your client’s recommended sentence. 3.
Within Chapter 5 there are aggravating and mitigating departure grounds such as
coercion or duress (§5K2.12) and diminished capacity (§5K2.13). However, always remember that pursuant to 18 U.S.C. § 3553 (a) all mitigating circumstances are on the table and can be considered. These departures are not generally define by specific numbers of levels and departures are not taken into account when determining your client’s “total offense level.” 4.
Chapter 4 determines your client’s criminal history. Points are assigned to your
client’s prior conviction based upon sentence length, and type of conviction (§4A1.1-§4A1.2)
The total number of points assigned determines your client’s criminal history category. If your client’s history is somewhat intensive she may be exposed to a career offender level (§4B1.1) or armed career criminal (§4B1.4) or other enhanced penalty adjustments. 5.
Now look at the Sentencing Table to find the intersection of your client’s total offense
level and criminal history category. If you are inclined to engage in an even deeper dive to challenge a guideline provision, please read thoroughly Kimbrough v. United States, 128 S. Ct. 558 (2007), which provides a framework for your analysis of a particular provision that “does not exemplify the Commission’s exercise of its characteristic expertise” that allows your sentencing court, in its discretion, to reject it. Id. at 574-75. 6.
The First Step Act of 2018 represents a different and enlightened approach to sentencing
that is focused on rehabilitation, reintegration and sentencing reductions. It expands the application of the Safety Valve which is the provision that reduces a defendant’s offense level by two and allows judges to disregard an otherwise applicable mandatory minimum penalty if your defendant meets certain criteria. It is aimed at reducing harsh penalties for qualifying lowlevel, non-violent drug offenders. In order to qualify for the Safety Valve the defendant must convince the court by a preponderance of the evidence that the following five requirements are satisfied: a)
No disqualifying criminal history points, i.e., more than 4, excluding any point
resulting from a 1 point offense. In addition, no 3 point offense, nor 2 point violent offense; b)
No use of violence or dangerous weapon in connection with the offense;
c)
No organizer or leader enhancement;
d)
Cooperation with the government prior to sentencing; and
e)
No serious injury or death resulted from the offense.
The First Step Act also reduces a mandatory life sentence for certain defendants convicted of certain drug felonies if they have two or more prior drug felonies to 25 years and a mandatory minimum of 20 years for one prior drug conviction to a 15 year minimum. Finally, Section 403 of the Act eliminates “stacking” under 18 U.S.C. § 924 (c)(1)(A) penalties where, in the past, the possession, use or discharge of a firearm during the commission of a felony violent or drug offense would result in an additional five years stacked on top of the punishment for the underlying offense. Previously, where a second § 924 (c)(1)(A)(i) conviction occurs, a 60 month consecutive sentence could result in a 300 month (25 years) consecutive sentence. Now, the 25 year mandatory consecutive sentence only applies after a prior conviction under this section becomes final. Therefore multiple 924(c) counts will no longer trigger the enhanced 25 years mandatory consecutive penalty.
C.
The Deep Dive (Part 2) 1.
The Presentence Report
Now that your client’s guilt has been determined by plea or by a jury the next vitally important step is the preparation of the Presentence Report (“PSR”) by a U.S. Probation Officer. Information in the PSR not only is the guide for the court will follow, but it influences how authorities within the Bureau of Prisons (“BOP”) classify your client for the assigned prison facility and provides guidance to the BOP on programs your client can participate in, etc. It also determines when he will be released and what level of liberty he will have under Supervised Release. Those who will use the PSR to make assessments are as follows:
•
Case managers to consider severity of the offense;
•
Counselors to determine who can visit your client;
•
Educational administrators to determine whether your client is required to participate in educational programs;
•
Psychologists to determine if your client is eligible for beneficial programs; and
•
Medical personnel to determine extent of medical attention;
2.
The Interview Probation Officers (“PO”) are law enforcement officers. If the PO believes the
person lied or provided misleading information or tried to influence others inappropriately it can only make things worse. With that in mind, here are suggestions for the interview: •
Obtain the PSR forms in advance for you and your client to complete. Please review carefully before submission to the PO;
•
In said form counsel should draft the defendant’s version of the offense. If a trial was had and an appeal is to be filed then please note in said space that for appellate reasons the Defendant’s version cannot be discussed. Some counsel simply refer to the Factual Resume for said version ;
•
Provide as much documentation as possible such as degrees, diplomas, certificates of appreciation, etc.;
•
Provide a narrative of your client’s background to include influences, both positive and negative, on her life.
These efforts will help insure the accuracy of the report and lay a foundation for your sentencing memorandum that will be filed shortly before sentencing.
III. YOUR JOURNEY’S END A.
Objections to the PSR
1.
Adhere to your Court’s Scheduling Order on the timely filing of the objections to
the PSR. Generally, said objections are due within 14 days of the issuance of the PSR. 2.
Rule 51 of the Federal Rules of Criminal Procedure provides: “(b) Preserving the claim of Error.
A party may preserve a claim of error by informing the court—when the court ruling or order is made or sought—of the action the Party wishes the Court to take or the party’s objection to the Court’s action and the grounds for objection. If a party doe not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party.” See also Rule 52 regarding Harmless and Plain Error 3.
Rule 32(f)(1) Federal Rules of Criminal Procedure provides: “The parties must state in writing any objections including objections to material information, sentencing guideline ranges and policy statements contained in or omitted from the report.”
See Appendices A and B attached hereto. B.
Sentencing Memorandums See Appendices C through E
C.
Sentencing Hearing •
The role of the lawyer
•
Allocution
APPENDICES Appendix A:
Objections to PSR (Drug Offender)
Appendix B:
Objections to PSR (Medical Doctor)
Appendix C:
Sentencing Memorandum (Drug Offender)
Appendix D:
Motion for Downward Departure (Drug Offender)
Appendix E:
Sentencing Memorandum (Medical Doctor)
Appendix A
OBJECTION NO. 3 In Paragraph 17 on page 6 of the PSR there is once again a reference to a second confidential source that
is a “heroin distributor in the West Dallas/Arlington Park
area of Dallas.” This is also untrue as
has never distributed heroin.
OBJECTION NO. 4 In Paragraph 18 on page 6 of the PSR yet another confidential source is identified as stating that as
supplied a “trap house” on Toronto Street in Dallas. This is also untrue never supplied this “trap house.” The house is owned by a man named Nick
whose last name is unknown.
OBJECTION NO. 5 In Paragraph 19 on page 7 of the PSR, wherein it asserts that he supplied cocaine and/or crack to the residential address of 4110 Soloman Drive, as well as a residence on Shadrock Drive, in Dallas.
never supplied these residences with any drugs.
OBJECTION NO. 6 objects to the calculation of the amount of drugs seized at his residence on July 30, 2019, as reflected in Paragraph 31 on page 8 of the PSR. In particular, the amount of marijuana seized totaled
kilograms and not the
lab report for the THC oil recovered reflects an amount of kilograms as stated in this paragraph.
kilograms as listed. In addition, the grams of said oil and not
OBJECTION NO. 7 In Paragraph 34 on page 9 of the PSR there is a calculation of the amount of drugs seized from a January 21, 2017, arrest of was to
grams and not the
. The total amount of cocaine seized at that time grams listed in said paragraph. Nor does this amount equate
grams of cocaine as calculated in this paragraph. This information is verified through a
review of the Arrest Warrant Affidavit compiled after said arrest by Officer M. Goodwin of the Carrollton Police Department.
OBJECTION NO. 8 objects to Paragraph 37 on page 9 and 10 of the PSR, wherein it contains a table that calculates the drug name, quantity, and converted weight. The calculations reflected in the table are erroneous based, in part, on the above referenced objections. Therefore, the calculated guideline range is erroneous and the Base Offense Level in Paragraph 43 should be reduced from Level 32 to Level 30. Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 JOHNSON, VAUGHN & HEISKELL 5601 Bridge Street, Suite 220 Fort Worth, Texas 76112 (817) 457-2999 telephone (817) 496-1102 facsimile E-mail: firm@johnson-vaughn-heiskell.com Or mheiskell@johnson-vaughn-heiskell.com
CERTIFICATE OF SERVICE I hereby certify that on February 6, 2020, the foregoing Objections to the Presentence Report was served via email to
, United States Probation Officer, at , and to ASUA
via e-mail at
/s/Michael P. Heiskell Michael P. Heiskell
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS FT. WORTH DIVISION UNITED STATES OF AMERICA, Plaintiff, v.
Defendant.
) ) ) ) ) ) ) ) ) )
CRIMINAL ACTION NO.
DEFENDANT’S OBJECTIONS TO THE PRESENTENCE REPORT OBJECTION NO. 1 In Paragraph 59 of the PSR recommends that Dr. receive a two-point enhancement for knowingly distributing drugs to vulnerable victims or knowingly involving vulnerable individuals in the conspiracy. The PSR recommends this enhancement because several “recruits” in this case were 65 or older or themselves suffered from addiction. ’s Dr. objects to the imposition of this enhancement on the basis that all Dr. knew about the recruits is that they appeared to be indigent African Americans. She believed they often used fake identification when they would visit the clinic. She did not know who the recruiters were or how they were recruiting their “patients.” The recruited individuals never saw. She simply specifically referenced in this paragraph were “patients” that Dr. electronically signed prescriptions for them while she remained in Tennessee. Therefore the specific offense characteristic contained in paragraph 44 that requested a two-point enhancement should not be applied in this instance.
OBJECTION NO. 2 In paragraph 57 the PSR recommends a 4-point enhancement for leadership role. Dr. believes a 2-point enhancement for leadership role is more appropriate. Dr. essentially began her involvement in this conspiracy as an employee of that later became a partnership role. Dr. , who was a anesthesiologist resident at Southwestern University Medical Center at the time, took the “moonlighting” job of manager of the clinic to help pay off her student loans. Within a few months Dr. realized that the clinic Appendix B
ran was operating essentially as a “pill mill” in which “recruiters” were hiring indigent African Americans to go to the clinic as “patients,” coaching them on what to say in order to procure prescriptions for controlled substance, and once those prescriptions were issued, the recruiter would divert the controlled substances by selling them on the street. Dr. accepts full responsibility for essentially acting as a drug supplier for ’s drug operation and understands that she abused her position of trust as a medical doctor. Because her power to prescribe enabled her to realize a larger portion of the illegal proceeds, and enabled her to direct , she accepts that in some respects she had some leadership role in the conspiracy. Because she only directed and was not involved in the day-to-day operation of the clinic she believes the two-level enhancement, rather than the four-level enhancement, is appropriate. Therefore the adjustment for the role in the offense in paragraph 47 should be reduced by two levels from “+4 to +2.”
Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 JOHNSON, VAUGHN & HEISKELL 5601 Bridge Street, Suite 220 Fort Worth, Texas 76112 (817) 457-2999 telephone (817) 496-1102 facsimile E-mail: firm@johnson-vaughn-heiskell.com Or mheiskell@johnson-vaughn-heiskell.com CERTIFICATE OF SERVICE I, Michael P. Heiskell, certify that on January 22, 2021, I caused the foregoing document to be served by electronic means on all counsel of record.
/s/Michael P. Heiskell Michael P. Heiskell
Appendix C
MEMORANDUM OF LAW This memorandum examines the issue of whether an advisory guideline of 188 to 235 months (15 to 19 years) constitutes a just sentence. For Mr.
the answer seems, in light
of his unique background and life experiences. that this sentencing range is excessive. This memorandum establishes that a variance is warranted under 18 U.S.C. § 3553.
I.
Booker and its Progeny Provides the Court with the Discretion to Impose a Sentence of less than 15 years A district court’s discretion is no longer limited by the guidelines since its matrix is
now considered merely advisory. United States v. Booker, 543 U.S. 220, 245-67 (2005). Thus, a court is now unencumbered in its ability “to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate , sometimes magnify, the crime and the punishment to ensue.” Gall v. United States, 552 U.S. 38, 53 (2007)(quoting Koon v. United States, 518 U.S. 81 (1996))(emphasis added). Congress has identified four “purposes” of sentencing: punishment, deterrence, incapacitation, and rehabilitation. 18 U.S.C. § 3553 (a)(2). To achieve these ends § 3553(a) requires sentencing courts to consider not only the advisory Guideline range, but also the facts of a specific case through the lens of seven factors as discussed below. See 18 U.S.C § 3553(a)(1)-(7). Against the backdrop of the seven statutory factors, the application of the proposed guideline range is antagonistic to a just sentence.
3553 Factors Establishes that a Variance is 's case The following sections analyze§ 3553 factors against the factual backdrop of Mr. , - s case and his background. 1.
The Nature and Circumstances of the Offense and the History and Characteristics of the Defendant
Mr. -recognizes the seriousness of crime as outlined in his Factual Resume and his PSR. Neve1theless, there are significant mitigating factors regarding his conduct. Still, the significant of the first§ 3553 factor is found in its comprehension that a defendant's criminal conduct must be considered in the context of Mr. _,s entire life, including his histo1y and characteristics. fu assessing Mr.-'s case, the unavoidable, but critical question is why he continues to find himself rnnning afoul of the law. A compelling answer is found in Mr. -'s background, including his histo1y of long-standing and consistent dtug abuse. As the PSR demonstrates, Mr. - has no histo1y of violence with the exception of a misdemeanor assault from 17 years ago when he was 21 years of age. fustead, he has been plagued by a series of criminal offenses involving primarily misdemeanor offense, though three (3) felony dtug cases resulting in probation, also exist. fu addition, the PSR notes that Mr. - began using dtugs at the age of 16 or 17 and continued to abuse cocaine until five (5) years ago. He completed a dt11g treatment program only three (3) months before his arrest. See PSR at paras. 84-87. The impact of Mr.-'s long-standing substance abuse problems on his decision making cannot be overstated. While dtug addiction has often been viewed as the result of lack of willpower and character in the addict, expe1ts generally agree that narcotic dependence is a fo1m of mental illness. See Nat. fustit. Of Drng Abuse, "Comorbidity: Addiction and Other Mental
Illnesses" (Sept. 2010), hereto attached as Exhibit 1. Addiction is "a complex brain disease characterized by compulsive, at times uncontrollable chug craving, seeking, and use despite devastating consequences-behaviors that stem from chug-induced changes in brain strncture and function." See id. at J. 1 Notably, Mr.- snuggles with chugs did not occur in a vacuum. Indeed, Mr.-'s early chug use is the expected result of a childhood spent sunounded by chugs. For a comprehensive perspective on Mr. -'s upbringing and his life, please see his letter to the Court attached hereto as_
Like Father Like Son Mr.- is the youngest of two sons born to
and
. Mr.
-'s mother passed away in 2005 and his father committed suicide in 2017. His father, , was a life-long chug dealer. He was also known as
as he
was a double amputee and was restricted to a wheelchair. Despite his physical hardship - still sold chugs on a routine basis to support his family when he was not imprisoned for these offenses. Thus, the blueprint for Mr. -s chug abuse was written years before he committed his crimes.2 See also Egeland, Yates, Appleyard & Van Dulmen, The Long-Term
Consequences ofMaltreatment in the Early Years: A Developmental Pathway Model to Antisocial Behavior, Child. Serv.: Social Policy Research and Practice, 5(4), 249-260 (2002).
1
As one famous addict state,d, "[i]f you have never been addicted, you have no clear idea what it means to need jllllk with the addict's special need. You don't decide to be an addict. One morning you wake up sick and you're an addict." William BwTOughs, Junky, prologue p. xxxviii (AceBooks 1953). 2
As Shakespeare wrote: Yes, tmly, for look you, the sins of the father are to be laid upon the children. Therefore, I promise ye I fear you. I was always plain with you, and so now I speak my agitation of the matter. Therefore be o'good cheer, for tmly I think you are damned... " Merchant of Venice, Act III, Scene 5 (1597).
Regardless of its genesis, Mr.-'s continued involvement in chug-related offenses was based on lack ofjudgment resulting from his significant chug habit. Although such use does not excuse Mr. -'s culpability for his offense, it does mitigate his blamewo1ihiness for his actions. That is, the degree of a defendant's blamewo1ihiness "is generally assessed according to two kinds of elements: the nature and seriousness of the ham1 caused or threatened by the crime; and the offender's degree of culpability in committing the crime, in paiiicular his degree of intent (mens rea), motives, role in the offense, and mental illness or diminished capacity." Richard S. Frase, Excessive Prison Sentences, Punishment
Goals and the Eighth Amendment: "Proportionality" Relative to What?, 89 Minn. L. Rev. 571, 590 (Feb. 2005). Applying these factors to Mr.- 's circumstances underscores that his culpability or blamew01ihiness is mitigated by his long-standing chug use.
New Life Possibilities Exist Despite the dire circumstances smTounding his upbringing by a ch11g dealing father and his lack of education (11 th grade ch·opout). Mr. - did find some solace in his relationship with his wife,_, and their two daughters,_ (age 12) and-(age 7). He and� began dating in 2005 and eventually manied on July 7, 2018.
_, a smgical assistant at Texas A&M College of Dentistry, describes in her letter to the comi that her husband is a kind, sweet individual who possesses a big heart. She loved how he treated and respected his mother. - also spoke of the impact on him after the death of his mother and later, his father. She describes it "was a lot for him to deal with." Yet, he was a doting parent who was heavily involved in their daughters upbringing.
-describes as well-'s involvement in their daughters' school functions, assemblies, parent meetings and father/daughter dances.
Both daughters, in their respective letters to the comt, describes their father's infinite love and how they each in their own way miss him and long to be reunited with him.
has a loving and caring family who anxiously await his atTival from prison While it is tme that he failed to transcend the muck of his past, he still possesses impo1iant chai·acter traits and an intact family stmctme as well as many suppo1ter that provide hope for his futme.3
Corn1sel h�usly submitted letters from_, his daughters, and others voicing their continued �for-. Undoubtedly, an adherent to the tenet of American exceptionalism would argue that Mr. - could have escaped his past by pulling up hin1self up by his bootstraps. Perhaps such a contention would offer some merit if American Exceptionalism was predicated on anything other than economic opportunity. Indeed, "[s]eventy per cent of people born into the bottom quintile of income distribution never make it to the middle class, and fewer that ten per cent get into the top quintile." (James Surowiekci, The Mobility Myt h, The New Yorker March 3, 2014); see also Thomas Piketty, Capital in the Twenty-First Centwy (Harvard Univ. Press 2014). As both Surowiecki and Piketty demonstrate, the traditional claim of upward mobility in America is not borne out by rational analysis. Consequently, the myth of American exceptionalism, as famously aiticulated by Horatio Alger, is without basis. The rn1founded ersistence of this whose original illusion, however, allows the continued economic exploitation of individuals like Mr and only sin was being born with a drng dealing father. Surowiecki, The Mobility Myt1, statmg that "most people who are poor are poor because 'they made the mistake of being born to the wrong parents."')(citation omitted). The utility of the myth is ultimately premised on its ability to secure a system of a economic 3
r
exploitation. See e.g. Kai·l Marx, A Cont ibution to the Critique ofHegel's Philosophy ofRight"(1843)("To call on them to give up their illusions about their condition is to call on them to give up a condition that requires illusions.").
2. The Need for the Sentence Imposed A. To reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment. In imposing “just punishment” for an offense, a sentencing court should not disregard the additional penalties and hardships that will accompany Mr. record. Based on his conviction Mr
’s felony
will face an overwhelming number of collateral
consequences. A recent congressional report authored by the United States Government Accountability Office (GAO) demonstrates that there are 641 collateral consequences of a nonviolent felony conviction. See GAO Report 17-691, NONVIOLENT DRUG CONVICTIONS, Stakeholders Views on Potential Actions to Address Collateral Consequences, (Sept. 2017), available at http://gao.gov/products/GAO-17-691.pdf, summary excerpt attached hereto as Exhibit 4. Of these 641 collateral consequences, 497(78%) of them last a lifetime. See id. In an opinion from the Eastern District of New York, Judge Frederick Block concluded that “sufficient attention has not been paid at sentencing…to the collateral consequences facing a convicted defendant. And I believe that judges should consider such consequences in rendering a lawful sentence.” United States v. Nesbeth, Case No. 1:15-CR00018, 2016 WL 3022073, at *1 (E.D.N.Y. May 24, 2016)(varying downward from guideline range of 33 to 44 months imprisonment to one-year of probation for a drug defendant based in part on the number of statutory and regulatory consequences she faced as convicted felon.); see also Jeremy Travis, Invisible Punishment: An Instrument of Social Exclusion in Invisible Punishment: The Collateral Consequences of Mass Imprisonment (Marc Mauer & Meda Chesney-Lind, eds., 2002).
In granting a variance in Nesbeth, the court asserted that the collateral effects of a criminal conviction can be “devastating” to a defendant. Nesbeth 2016 WL 3022073, at *1. Indeed, [m]yriad laws, rules, and regulations operate to discriminate against exoffenders and effectively prevent their reintegration into the mainstream society and economy. These restrictions amount to a form of ‘civi[l] death’ and send the unequivocal message that ‘they’ are no longer part of ‘us.’ Id. (citing Michelle Alexander, The New Jim Crow (2010)). As Judge Block concluded, “[t]oday, the collateral consequences of criminal convictions form a new civil death” Id. at *3.
As Nesbeth establishes, the civil death that Mr.
faces as a result of his felony record
constitutes significant punishment. B.
To afford adequate deterrence to criminal conduct
A consideration of this factor compels an analysis of the principles of both general and specific deterrence. As the following discussion demonstrates, both principles support Mr.
’s
request for a variance. 1.
General Deterrence
The principle of general deterrence is based on the absurd premise that prison sentences deter crime. This faulty conception has resulted in mass incarcerations of individuals in the United States. For the past 40 years, the United States has been engaged in a vast, costly social experiment. It has incarcerated a higher percentage of its people, and for a longer period, than any other democracy. In fact, with 5 percent of the world’s population, the U.S. is home to 25 percent of its prisoners. There are five times as many people incarcerated today than there were in 1970…[The] archipelago of prisons and jails costs more than $80 billion annually—about equivalent to the budget of the federal Department of Education.
Dr. Oliver Roeder et. al., What Cause the Crime Decline?, Brennan Center for Just., 22-23 (Feb. 12, 2015), available at https://www.brennancenter.org/publications/what-caused-crime-decline. The condition of mass incarceration is especially troubling since there is no correlation between punishment and reductions in crime. See id.; see also Gary Kleck and J.C. Barnes, Deterrence and Macro-Level Perceptions of Punishment Risks: Is There a “Collective Wisdom?”, 59 Crime & Delinquency 1006, 1031-33 (2013). Kleck and Barnes’ study concludes: there is generally no significant association between perceptions of punishment levels and the actual levels of punishments that the criminal justice system achieves. This in turn implies that increases in punishment levels do not routinely reduce crime through general deterrence mechanisms, because the fundamental link between actual punishment levels and perceptions of punishment levels appears to be weak to nonexistent. (Id. at 1031). The United States Department of Justice agrees with the conclusion that incarcerating defendants is not an effective means of deterrence. See U.S. Dept. of Justice, Nat’l Inst. Of Justice, Five Things About Deterrence (July 2014). In fact, the Department of Justice finds that even increasing the severity of punishment does little to deter punishment. See id..
2.
To Protect the Public from Further Crimes
As a preliminary matter, increasing Mr.
’s term of imprisonment will
not have a positive impact on his risk of recidivism. That is, the empirical evidence does not establish a relationship between sentence length and specific deterrence, regardless of the type crime. See National Institute of Corrections, Myths and Facts, Why Incarceration is Not the Best Way to Keep Communities Safe (2016),
attached hereto as Exhibit 6; see also Donald P. Green & Daniel Winik, Using Random Judge Assignments to Estimate the Effects of Incarceration and Probation on Recidivism among Drug Offenders, 48 Criminology 357 (2010)(study of over a thousand offenders whose sentences varied substantially in prison time and probation found that such variations “have no detectable effect on rates of rearrest,” and that “[t]hose assigned by chance to receive prison time and their counterparts who received no prison time were re-arrested at similar rates over a four-year time frame”). In sum, the best available evidence establishes that imprisonment does not reduce recidivism more than noncustodial sanctions. Francis T. Cullen, et. al., Prisons Do Not Reduce Recidivism: The High Cost of Ignoring Science, 91 Prison J. 48S, 50S-51S (2011). In this regard, the 2016 study by the National Institute of Corrections establishes three critical tenets. First, incarceration has negligible impact on crime prevention. See Ex. 6 at 4. Instead, a longer prison sentence may actually lead to a greater risk of recidivism. See id. There is strong evidence that prison—by disrupting education and employment, weakening family ties and exposing less serious offenders to older more serious offenders—leads to increased recidivism . See The Criminogenic Effects of Imprisonment: Evidence from State Panel Data 19742002, 6 Criminology & Public Policy 589 (2007). Moreover, harsh penalties do not improve the long-term outcomes of the offender. Ex. 6 at 4. See also Friedrich Nietzshce, The Genealogy of Morals, essay 2, aph. 14 (1887). (“All in all, punishment hardens and renders people more insensible; it concentrates; it increases the feeling of estrangement; it strengthens the power of resistance.”).
Finally, community correction programs are more effective in reducing recidivism. Id. at 5. The United States Sentencing Commission recognizes that the guideline distorts the actual likelihood of recidivism on the part of the defendants who qualify on the basis of prior drug convictions. See U.S. Sent’s Comm’n, Fifteen Years of Guidelines Sentencing [hereinafter Fifteen Years] 134 (Nov. 2004). Indeed, the recidivism rate of a career offender, whose prior convictions for drug crimes, is significantly less than others offenders assigned a criminal history category VI. Id. C.
Mr.
To provide the Defendant with Needed Educational or Vocational Training, Medical care, or other Correctional Treatment in the most effective manner; does not require medical treatment while in the Bureau of Prisons.
He does, however, request drug treatment, as well as mental health counseling and vocational training. Notably, Mr.
’s participation in a drug treatment program
operated by the Bureau of Prisons should significantly reduce his risk of recidivism. Newhouse, 919 F. Supp. 2d at 977.
3.
The Kinds of Sentences Available Because a mandatory minimum sentence does not apply in Mr.
’s case,
this Court may vary from the advisory guideline range. 4-5.
The Kinds of Sentences and the Guideline Sentencing Range Established and any Pertinent Sentencing Commission Policy Statements As recognized in Gall, district courts “may not presume that the Guidelines range is
reasonable,” 552 U.S. at 49, 128 S. Ct. at 597. Thus, mitigating circumstances and substantive policy
arguments that were formerly irrelevant in all, but the most unusual cases are not potentially relevant in every case. The guidelines pose a risk in Mr.
’ s cases for a more elemental reason—they falsely
provide a promise of predictability and fairness. Because we believe the guidelines to be the product of great deliberation and reasoned judgment, we often assume that they provide clear direction for the proper sentencing of ever criminal defendant, notwithstanding their backgrounds and the particular circumstances of their case. 4 Thus, we depend on the guidelines to relieve us of the burden and uncertainty of having to decide a just sentence for the particular defendant.5 In effect, the guidelines, with their promise of mathematical certainty, provide a court with a sheltering sky against the purported abyss of ambiguity.6 But such security is a false god and every time we make a sacrifice to it we are lost.7 Regarding the false promise of the guidelines this Court once said: Criminal behavior can be fuel public outcry and drive broad legislative and executive agendas to get “tough on crime.” But how does that translate to specific instances? If you take a matrix to factor offense severity, overlay it with mandates born of popular outrage, tailor it purportedly to address almost every eventuality, you get “justice” dictated in advance, marked by visceral condemnation, and based on the pretense of omniscience.
Of course, the guidelines do address the background of each defendant and the circumstances of each case in a limited fashion through criminal history and offense conduct.
4
At its core, the rigid matrix of the sentencing guidelines demonstrates the deeply-rooted human aversion to uncertainty and ambiguity. See e.g. Maria Konnikova, Why We Need Answers, The New Yorker (Apr. 30, 2013). As Konnikova asserts, studies demonstrate that the need to respond to uncertainty or a lack clarity is present in the early stages of human development. Id. Because of our distress with the unknown and uncertain, we seek to achieve “cognitive closure” defined as the “desire for a firm answer to a question and an aversion to ambiguity.” Id. (citing Dr. Arie Kruglanski, Motivated Closing of the Mind, Psych. Rev., at 263-83 (Apr. 1996)). In promulgating the career offender, the Sentencing Commission traded reason for the comfort of certainty.
5
See Paul Bowles, The Sheltering Sky (Random House 1949)(“The sky hides the night behind it and shelters the people beneath from the horror that lies above.”
6
7
See Paul Bowles, Sheltering Sky (“Security is a false God. Begin to make sacrifices to it and you are lost.”).
United States v. Williams, 372 F. Supp. 2d 1335, 1337-1338 (M.D. Fla. 2005)(Presnell, J.).8
6.
The Need to Avoid Unwarranted Sentence Disparities Among Defendants With Similar Records Who Have Been Found Guilty of Similar Conduct
Mr.
’s case illustrates the danger of sentencing uniformity may pose a greater risk
than the danger of sentencing disparity in light of this unique circumstance of his childhood and upbringing
7.
The Need to Provide Restitution to Any Victims of the Offense Community based restitution is applicable in this case.
CONCLUSION The unique circumstances presented in Mr.
’s case justify a variance from the
Sentencing Guidelines. Because the decision in Booker has made the Guidelines advisory and the parsimony clause of § 3553(a) the paramount consideration, the that statute’s sentencing factors show that a sentence below the advisory guideline range is “sufficient but not greater necessary to comply with” Mr.
cannot be sentenced according to an ill-conceived and unjust guideline. Mr.
, therefore, requests this Court to impose a variance and sentence him to no greater than 120 months imprisonment. Although Williams was reversed by the Eleventh Circuit in United States v. Williams, 456 F.3d 1353 (11th Cir. 2006), the Eleventh Circuit’s decision was overruled by the United States Supreme Court. See Kimbrough v. United States, 552 U.S. 1353 (2010).
8
WHEREFORE, PREMISES CONSIDERED, Mr.
prays for relief through a
just and reasonable sentence. Respectfully submitted, /S/ Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 JOHNSON, VAUGHN & HEISKELL 5601 Bridge Street, Suite 220 Fort Worth, Texas 76112 (817) 457-2999 (817) 496-1102 facsimile
CERTIFICATE OF SERVICE I hereby certify that on September 22, 2020, I electronically filed the foregoing document with the clerk for the U.S. District Court, Northern District of Texas, using the electronic case filing system of the court. The electronic case filing system sent a “Notice of Electronic Filing” to the attorneys of record who have consented in writing to accept this Notice as service of this document by electronic means. /s/Michael P. Heiskell Michael P. Heiskell
Case
Document 100 *SEALED*
Page 1 of 4 PageID 282
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA v.
§ § § § §
’S MOTION FOR DOWNWARD DEPARTURE (FILED UNDER SEAL) TO THE HONORABLE JUDGE OF THIS COURT: COMES NOW, the defendant herein,
, by and through his
undersigned attorney, and respectfully submits his Motion for Downward Departure pursuant to his Extraordinary Acceptance of Responsibility in this case, as well as under U.S.S.G. § 5K2.0 (Commentary) and would show as follows:
I. ’S EXTRAORDINARY ACCEPTANCE OF RESPONSIBILITY Shortly after his arrest in July 2019,
, voluntarily consented to an interview
with the case agent and other federal agents in this case. During said interview,
confessed to
his involvement in this offense and provided details as to said involvement including, but not limited to, how marijuana was stored in an apartment, the utilization of certain storage units, bulk cash he kept, and where he would cook crack cocaine. He further explained that the reason he engaged in this alleged
Appendix D
Document 100 *SEALED*
Page 2 of 4 PageID 283
activity was that he had pressures on him to support his family and that “…this is how he grew up and he did not know what else he could do.” 1 Months later, undersigned counsel,
, AUSA
agents met in the United States Attorney’s Office. The purpose was for Mr.
and four (4) case to be debriefed by
the agents to assist in their ongoing investigation. For approximately three (3) hours this debriefing occurred with Mr.
identifying others engaged in drug trafficking in the Dallas area. He was
shown numerous photos and identified many men displayed in same. He was shown photos of homes and maps of certain areas. He assisted in providing a location to a “trap house” during this process. He also became emotional when describing a relative who was shot during this relevant time frame. Since this debrief he has stood ready for any necessary follow up to same. However, one never occurred. As of this writing, the government has failed to file a USSG 5K1.1 Motion for Downward Departure as a result of the two interviews Mr.
has given as outlined above. However, since
the ‘government motion requirement” of 5K1.1 is now only a guideline policy to be considered, even without such a motion, this level of cooperation by Mr.
should make a lower sentence
sufficient” and a higher one “greater than necessary” to meet the goals of sentencing, as this should be a part of the 18 U.S.C. § 3553(a) analysis. Thus, this variance is requested on this basis, despite the absence of a government motion. II. USSG § 5K2.0 DEPARTURE While it is accurate to state that while a single mitigating factor may not warrant a downward departure, a combination of factors may, in fact, warrant such.
1
Excerpt from ATF EF 3120.2 Report of Investigation dated August 2, 2019.
Document 100 *SEALED*
Page 3 of 4 PageID 284
In our case, as outlined in the previously filed Sentencing Memorandum, and briefly referenced herein, Mr.
grew up in a home where his father was a known and active drug dealer. He saw
no other model in his home. Thus, with a home saturated with drug dealing, he and his brother charted the same path—including drug usage. This mental and emotional fallout from such should be a factor under U.S.S.G. § 5H1.3 and U.S.S.G. § 5H1.12 (Lack of Guidance as a Youth). These factors resulted in him dropping out of high school and becoming addicted to drugs. This addiction implicates U.S.S. G. § 5H1.4. Pursuant to U.S.S.G § 5K2.0 (Commentary) these combinations of factors warrant a downward departure for Mr.
. III. CONCLUSION
Based upon the factors raised herein as supported by the PSR, and Mr. Memorandum, consideration of a Downward Departure for Mr. WHEREFORE, PREMISES CONSIDERED, Mr.
’s Sentencing
is warranted. prays for relief through a
just and reasonable sentence. Respectfully submitted, /S/ Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 JOHNSON, VAUGHN & HEISKELL 5601 Bridge Street, Suite 220 Fort Worth, Texas 76112 (817) 457-2999 (817) 496-1102 facsimile
Document 100 *SEALED*
Page 4 of 4 PageID 285
CERTIFICATE OF SERVICE I hereby certify that on September 23, 2020, I electronically filed the foregoing document with the clerk for the U.S. District Court, Northern District of Texas, using the electronic case filing system of the court. The electronic case filing system sent a “Notice of Electronic Filing” to the attorneys of record who have consented in writing to accept this Notice as service of this document by electronic means. /s/Michael P. Heiskell Michael P. Heiskell
Document 100-1 *SEALED*
Page 1 of 1 PageID 286
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA V.
§ § § § §
ORDER (UNDER SEAL) ON THIS the
day of
2020,
the Motion for Downward Departure came before this Court and is hereby GRANTED.
Appendix E
for the patient's health. However, a closer examination shows - to be the good woman praised by family, friends, fonner co-workers and business partners, notwithstanding her crime. The maximum sentence for her offense is 20 years (240 months) and is also her calculated guideline sentencing range. The following discussion will demonstrate why - many profoundly good qualities show her to be a woman for whom a punishment of 8 years (96 months) is "sufficient, but not greater than necessaiy" to satisfy the objectives of 18 U.S.C. § 3553.
BACKGROUND was born and raised in the small East Texas town of New Boston. She was the only child of
and
However, she has three older half-brothers. As stated in the Presentence Repo1t ("PSR"), her parents had a tumultuous maniage until they sepai·ated when - was 4 years old. - witnessed the violent arguments between the two as her father physically and verbally abused her mother. She rarely saw her father thereafter due to his diug addiction and time spent incarcerated (PSR, at 22). However, due to her mother's hard-work and stable presence, - was able to thrive. - loved school and it showed. Her mother stressed education as the key to success and- took this advice to heait and excelled academically. In addition to her excellent grades she also excelled in University Interscholastic League ("UIL") competition. Upon graduation from New Boston High School she was in the top 10% of her class and voted "Most Likely to Succeed" by her classmates. She
accomplished this feat while also working as a cashier at the local Wal-Mrui where she was later promoted to Customer Service Representative. After high school, - attended Xavier University in New Orleans and, the following sUIIllner after her freshman yeru·, she took medical school courses at Baylor College of Medicine in Houston. She also took additional college courses at Rice University. While at Baylor she saw her first African American physician and it made quite an impression. After HmTicane Katrina stmck New Orleans in 2005,_ continued her studies at Amherst College in Massachusetts. However, she later retmned to Xavier and completed her degrees in Biology, Chemistiy and Mathematics. She earned honors in these, as well as her English and Histo1y classes. -graduated Magna
Cum Laude. - was accepted into the Duke University School of Medicine . She continued to thrive in this challenging environment as well as the Durham VA Medical Center, where she completed her third year research project. After graduation in 2011, she entered her first yeru· residency at UT Southwestern Medical Center in Dallas while focusing on her -and inhighschoo
career choice of cardiac anesthesiology. She remained at UT
Southwestern until 2015. During her tenure there she moonlighted on the weekends and holidays to pay debt she incmTed mostly during medical school.
- private life is notewo1thy.
. She is in
love with her wife,_, who she reconnected with in early 2014 and later married in 2015. She has known- since childhood, and they originally dated as teenagers. After they separated, due to - educational jomney, -had three children from prior relationships that are now a part of the family unit. In addition, they were able to add
, who is now 3 years old, to their
family- filed for divorce for a second time in November 2020. -beloved mother died on October 28, 2017.
I I - letter addressed to this comi attached as I I I Exhibit "B" outlines in stark te1ms her involvement in I the confessed crime and her total and complete remorse
over her actions. This chastened woman acknowledges her criminal behavior over the extended period of time as set fo1th in the indictment. However, the question remains-why did she commit this crime?
a� I!� v
VARIANCE PURSUANT TO 18 U.S.C. § 3553:
"Humans arefi"agile, capable of much on all ends of the moral spectrum "1 The question of why good people do bad things has petplexed the world since ancient times. Philosophers, psychologists, physicians and preachers have debated this issue for ages. And yet, despite om advances in the research of the human mind-from nemobiology, social psychology, cognitive science and sociology-no definitive answers exists. sto1y is largely one of astom1ding success. This young black woman, from a small town in East Texas, raised by a single working mom, achieved academically what precious few have. Her
ecutive irector ofthe
Boys & Girls Club
intrepid sto1y is an inspiration-especially to young black girls who often never fathom that someone like themselves could ever reach such heights. The senior partner at Cardiac Anesthesia Group, PLLC in Jackson, Tennessee,
, where- was a junior partner wrote
in his letter: "Watching- grow and mature as a person and physician I was often reminded of a song by the Beatles, "Blackbird Singing in the Dead of Night". Paul McCartney wrote this song and legend has it that it symbolizes the strnggles of African Americans seeking equal opp01iunity in America. "Blackbird singing in the dead of night. Take these broken wings and learn to fly. All your life were only waiting for this moment to arise."
1
Dr. Brandon Ogbunu: Author and assistant professor at the University ofVennont, quoted in Greater Good Magazine; (Dec 1, 2017) www.greatergood.berkely.edu
had arisen These lyrics touched me as I realized how far from her humble beginnings in New Boston, Texas. Yes, my blackbird has a flaw. A significant one. One that she must pay society back for. I am hopeful once this debt has been paid, she will be able to take her broken wings and learn to fly again. It is my great hope that she is able to practice as a physician in some capacity. No matter her sins I am glad to know for the world is a better place with her in it.” , a Jackson, Tennessee resident, who serves on its School Board wrote of
: “She served as a role model and inspiration for African-American female students who might not have considered a future in the sciences. By telling her personal story, showed that it is possible to rise out of poverty and do something great.” also described how
“took responsibility in a honest honorable way “when
confronted with her crime and “did not try to justify her actions.” has sought answers as to why she committed this crime. She joined International Doctors in Alcoholics Anonymous (“IDAA”) last month in an effort to seek help for her alcohol abuse. See Exhibit “C” attached hereto. In addition, she has sought the assistance of licensed Psychologist, Dr. Gerard Bryant, for a psychological assessment. See Exhibit “D” attached hereto. Dr. Bryant notes that she is “committed to treatment and highly motivated to make changes in her life,” while concluding that she suffers from “moderate depression and significant post-traumatic stress” either from her past alcohol abuse or as a precursor to her habitual use of alcohol compounded by her current legal issues. Though not providing the full and complete answer to “why?”
did exert these
efforts to seek the truth. Such acknowledgment on her part that this ultimate issue must be addressed reflects her desire and goal of not reoffending. As she states in her letter to the court:
“I have a long road ahead toward making amends for using such poor judgement. I understand that it will take hard work to atone for my illegal acts, to make full restitution, and to seek reconciliation with my community. I owe it to my victims, my profession, my family and friends, and myself to use this experience as an opportunity for introspection and growth. I will try to emulate my mother’s strength and resilience during the difficult days ahead. With my writing talent, I know that I can use my story to help other people. I don’t want anyone to make the same mistakes I made.” has begun the act of atonement by aligning herself with an initiative entitled “Straight-A-Guide.” This program provides assistance to incarcerated persons by teaching them tools to hold themselves accountable and that builds and supports a network to assist in their transition back into the community. See Exhibit H attached hereto. Extraordinary Acceptance of Responsibility In addition to
taking the initiative to address her issues that led her to commit
this crime, was her rapid decision to cooperate with the government in its investigation. This decision, without the benefit of her and counsel’s receipt of discovery, resulted in an approximately three (3) hour debriefing by the government. The government expressed astonishment that she in no way attempted to diminish and minimize her role. They concluded that she was 100% truthful. met with the government once again prior to the first trial in this matter. This again lasted approximately three (3) hours. She was directed to be at the courthouse during the course of the trial of stand by
and others. She complied and was eventually called to the counsel in an apparent attempt to distinguish her role from his. However,
on cross-examination by the government she made an effective witness in further building the case against as she testified of her recognition that the clinic’s operation was an illegal scheme within months, if not weeks, of working for the clinic. Her intense, full-throated cooperation was total and whole-hearted. Once on board with doing so she did not hold back. There is much reason to believe that she will willingly make herself available to the government
for as long as the government finds such service useful in ways to educate agents, agencies, and the public in dealing with pill mill schemes. Collateral Consequences crimes reach far beyond any immediate impact on her future. She has lost her reputation. Her conduct has nullified her life’s work and the collateral consequences reach beyond her eventual confinement. She voluntarily surrendered her DEA license and her license to practice medicine in Texas has been suspended. Administrative sanctions await to be imposed on her Tennessee and Delaware medical licenses as well. Further, the Centers for Medicine & Medicaid Services (“CMS”) will likely revoke her billing privileges due to her felony conviction. 2 As former President George W. Bush recognized when he commuted Lewis “Scooter” Libby’s perjury and obstruction sentence from 30 months to probation.: “The consequences of his felony conviction will be long-lasting… 3” Quite frankly, she will never be allowed to practice medicine again—her true passion. She will never again achieve “professional credibility.” A just punishment should take this into account. Courts have taken into account devastating collateral consequences, like those visited upon , when imposing a sentence “sufficient, but not greater than necessary” to embody the principles in 18 U.S.C. § 3553(a). See United States v. Stewart, 590 F3d 93, 141 (2nd Cir. 2009), where a variance was approved from a guideline range of 78-97 months to 20 months because the defendant’s conviction ended his career as an academic and translator. In United States v. Pauley, 511 F3d 468, 474 (4th Cir. 2007), the court affirmed a 36 month variance for a child porn defendant based in part on the fact that he lost his teaching certificate and state pension as a result of his
has also agreed to forfeit approximately $250,000 seized during the investigation. Edwin Chen, Bush Commutes Libby’s Prison Term n CIA Leak Case (update 2) www.bloomberg.com (July 2, 2007).
2 3
conviction. In another child porn case found in United States v. Wachowiak, 496 43D 744 (7th Cir. 2007), the court affirmed a 50 month variance from the guideline range of 121-151 months where the conviction caused the loss of the defendant’s teaching certificate and career as a church musician. Thus, given the very real effect that collateral consequences have on convicted defendants, recent reform and policy considerations have reflected the importance of including the numerous collateral consequences impacting those convicted in the sentencing process.
4
Sentencing Disparities 18 U.S.C. § 3553(a)(1), (3)-(6) mandates the courts consideration of the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. A cursory review of other doctors sentenced in pill mill cases across the country evidence the following: Here in the Northern District of Texas’ Dallas Division, Judge David Godbey in May 2019 sentenced pill mill Dr. Carlos Luis Venegas to 156 months (13 years) after a 5 day jury trial. Had Dr. Venegas admitted guilt, as
did, his guideline range would have decreased from
offense level 33 to level 30 (97-121 months). See Exhibit E attached hereto. In February 2019, pill mill Dr. Dwight Bailey was sentenced to 151 months following a two week trial in the Western District of Virginia . Had Dr. Bailey admitted guilt, as
, his guideline range level would
have decreased from level 32 to level 29 (87-108 months). See Exhibit F attached hereto. Finally, in the District of Idaho, pill mill Dr. Michael Minas was sentenced to 8 years in prison after a 14 day jury trial. See Exhibit G attached hereto. is asking the court to consider these sentences as wildly divergent from the sentence of 20 years in our case, as an additional reason to issue a variance for a much lower sentence. See, Margaret Love, Managing Collateral Consequences in the Sentencing Process: The Revised Sentencing Articles of the Model Penal Code. Wis. L. Rev. 2 (2015)
4
Government’s 5K1.1 Motion As of this writing, the government has informed that it intends to submit its motion pursuant to USSG § 5K1.1 for a downward departure. As a result, by doing so the government will free the court to depart downward from the Guidelines sentencing range without restriction.
CONCLUSION The culmination of the above factors warrant a variance (see USSG § 5K2.0 Commentary). In particular,
assistance to the government was substantial, significant, timely, truthful,
reliable and complete. The support from family, friends, and co-workers as expressed in their letters provide the court with a coherent, clear and compelling window into
. They
are each worthy of a careful reading as they speak clearly and with considerable authority, albeit from several different points of views. The recommended sentence of 96 months of recognizes the courts substantial discretion and reaffirms that all factors are subservient to Section 3553(a) and that such recommendation stated above is minimally sufficient to accomplish certain specified purposes of sentencing for this unique individual—
.
also requests that
she be allowed to self-report at such time and place designated and that the Court recommend to the Bureau of Prisons that she be assigned to FMC Carswell in Fort Worth in light of her physical condition outlined in the PSR, p. 24, and so that she can also utilize her medical training and experience to offer assistance where needed.
WHEREFORE, PREMISES CONSIDERED,
prays for relief through a
just and reasonable sentence. Respectfully submitted, /S/ Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 JOHNSON, VAUGHN & HEISKELL 5601 Bridge Street, Suite 220 Fort Worth, Texas 76112 O: (817) 457-2999 F: (817) 496-1102 facsimile E-mail: firm@johnson-vaughn-heiskell.com CERTIFICATE OF SERVICE I hereby certify that on February 26, 2021, I electronically filed the foregoing document with the clerk for the U.S. District Court, Northern District of Texas, using the electronic case filing system of the court. The electronic case filing system sent a “Notice of Electronic Filing” to the attorneys of record who have consented in writing to accept this Notice as service of this document by electronic means. /s/Michael P. Heiskell Michael P. Heiskell
Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course June 24-26, 2021 Hyatt Regency San Antonio, TX
Topic: Defending Juveniles
Speaker:
Kameron Johnson
2201 Post Road, Ste 200 Austin, Tx 78704 (512) 854-4128 phone (512) 854.4148 fax kameron.johnson@traviscountytx.gov email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
SAME GAME, DIFFERENT RULES—DEFENDING JUVENILES
34TH ANNUAL ADVANCED RUSTY DUNCAN CRIMINAL SEMINAR JUNE 24-26, 2021 SAN ANTONIO, TEXAS
KAMERON D. JOHNSON TRAVIS COUNTY JUVENILE PUBLIC DEFENDER 2201 POST ROAD, SUITE 200 AUSTIN, TEXAS 78704 OFFICE 512.854.4128 FACSIMILE 512.854.4148 EMAIL: kameron.johnson@traviscountytx.gov
TABLE OF CONTENTS I.
Introduction ........................................................................................................ 1
II. Due Process and Constitutional Safeguards ........................................................2 A.
In Re Gault .............................................................................................................................. 3
B.
Right to Counsel .................................................................................................................... 4
C.
Sources Of Law Governing Juvenile Justice ................................................................ 5
III. Age Limits and Juvenile Jurisdiction .................................................................. 5 A.
Age of Child ............................................................................................................................ 6
B.
Raising Objections to Age .................................................................................................. 6
C.
The Petition ............................................................................................................................ 7
D.
Procedure For Challenging Pleadings In Juvenile Court ......................................... 7
IV. Serious Offenses: Determinate Sentence & Certifications .................................. 8 A.
Determinate Sentence......................................................................................................... 8
1.
Grand Jury .................................................................................................. 9
2.
Adjudication Hearing ................................................................................. 10
3.
Disposition Hearings ................................................................................. 10
4.
Probation ................................................................................................... 10
5.
Parole and Minimum Lengths of Stay ........................................................ 11
6.
Transfer Hearings ...................................................................................... 11
7.
2007 Legislative Changes ........................................................................... 12
8.
Summary .................................................................................................... 12
B.
Certifications ....................................................................................................................... 12
1.
Certification Eligibility ............................................................................... 14
2.
Perjury ....................................................................................................... 15
3.
Under Age Eighteen ................................................................................... 15
4.
Eighteen Or Older ...................................................................................... 15
5.
Certifications For Capital Murder And Murder .......................................... 17
6.
Notice Of Petition Or Motion For Discretionary Transfer .......................... 18
7.
Criminal Transaction ................................................................................. 18
8.
Diagnostic Study, Social Evaluation
a.
Diagnostic Study ........................................................................................ 19
b.
Full Investigation ...................................................................................... 20
9.
The Hearing ............................................................................................... 21
ii
And Investigation............................ 19
10. Right Of Counsel ........................................................................................ 22 11.
Evidence ..................................................................................................... 22
12. Factors To Be Considered By The Court ..................................................... 23 13. Required Findings ...................................................................................... 24 14. Community Welfare Provision ...................................................................24 15. Criminal Transaction ................................................................................. 25 16. Order .......................................................................................................... 25 17.
Mandatory Certification ............................................................................. 25
Once Certified Always Certified ......................................................................... 25 18. Appeals ...................................................................................................... 26 19. Miscellaneous Certification........................................................................ 26 20. Certification Summary ............................................................................... 27 V. Conclusion ......................................................................................................... 27
iii
which have dedicated or specialized juvenile courts. Initially juvenile courts were established under the doctrine of “parens patriae” (literally “the state as parent”). 3 Under the doctrine of parens patriae juvenile courts transacted without much procedure or due process. Most juvenile judges were not lawyers and it was rare for prosecutors or counsel for the juvenile to even appear in court. 4 The courts took the view that the judges had unlimited discretion to determine the fate of children charged with crimes or other misconduct. In addressing the history of juvenile courts, the United States Supreme Court stated, “the highest motives and most enlightened impulses led to a peculiar system for juveniles, unknown to our law in any comparable context.” The court was referring to the concept that “the right of the state, as parens patriae, to deny to the child procedural rights available to his elders was elaborated by the assertion that a child, unlike an adult, has a right ‘not to liberty but to custody.’ He can be made to attorn to his parents, to go to school, etc. If his parents default in effectively performing their custodial functions -- that is, if the child is ‘delinquent’ -- the state may intervene. In doing so, it does not deprive the child of any rights, because he has none. It merely provides the ‘custody’ to which the child is entitled. On this basis, proceedings involving juveniles were described as ‘civil’ not ‘criminal’ and therefore not subject to the requirements which restrict the state
I.
Introduction Specialized juvenile justice courts were established well over a century ago when the first formally recognized juvenile court in the United States was established. 1 The first court established in Illinois, arose out of a reform movement to address the deplorable conditions and practices of incarcerating juveniles with adult inmates. The early reformers were appalled by adult procedures and penalties, and by the fact that children could be given long prison sentences and mixed in jails with hardened criminals. Youth advocates were profoundly convinced that society's duty to children could not be confined by the concept of justice alone. They believed that society's role was not to ascertain whether the child was “guilty” or “innocent,” but “[w]hat is he, how has he become what he is, and what had best be done in his interest and in the interest of the state to save him from a downward career.” In Re Gault, 387 U.S. 1, 14, 87 S. Ct. 1428, 1437, 18 L. Ed. 2d 527, 539 (1967) citing Julian Mack, The Juvenile Court, 23 Harv. L. Rev. 104, 119-120 (1909)). Prior to the enactment of specialized juvenile courts; no special court system for handling cases involving minors existed. After the establishment of the first court dedicated to resolving cases with minors in 1899 the concept of dedicated juvenile courts quickly spread throughout the nation. 2 Currently Texas is like every state other state and the District of Columbia in the nation
Sally Green, Prosecutorial Waiver into Adult Criminal Court: A Conflict of Interests Violation Amounting to the States' Legislative Abrogation of Juveniles' Due Process Rights, 110 Penn St. L. Rev. 233 (2005). 4 Robert O. Dawson, TEXAS JUVENILE LAW § 1 (9th ed. 2018). 3
Illinois Juvenile Court Act of 1899; In Re Gault, 387 U.S. 1, 14, 87 S. Ct. 1428, 1437, 18 L. Ed. 2d 527, 539 (1967). See also, Davis et al., Children in the Legal System 742-43 (2nd ed. 1997). 2 Davis et al., Children in the Legal System 745 (2nd ed. 1997). 1
1
when it seeks to deprive a person of his liberty. 5 Proceedings in juvenile court are considered civil in nature and have been designed to remove the “taint of criminality from children” and to focus on treatment, training and rehabilitation of the child. 6 In 1973 the Texas legislature promulgated Title III of the Family Code. The enactment of Title III was in response in part to U.S. Supreme Court decisions, increases in juvenile crime and an overall desire for Texas officials to be progressive. 7 The initial goals of Title III were 1. to provide for the care, the protection, and the wholesome moral, mental, and physical development of children coming within its provisions; 2. to protect the welfare of the community and to control the commission of unlawful acts of children; 3. consistent with the protection of the public interest, to remove from children committing unlawful acts the taint of criminality and the consequences of criminal behavior and to substitute a program of treatment, training, and rehabilitation; 4. to achieve the foregoing purposes in a family environment whenever possible, separating the child from his parents only when See, e. g., Shears, Legal Problems Peculiar to Children's Courts, 48 A. B. A. J. 719, 720 (1962) (“The basic right of a juvenile is not to liberty but to custody. He has the right to have someone take care of him, and if his parents do not afford him this custodial privilege, the law must do so.”); Ex parte Crouse, 4 Whart. 9, 11 (Sup. Ct. Pa. 1839); Petition of Ferrier, 103 Ill. 367, 371-373 (1882). Kent v. United States, 383 U.S. 541 (1966). 6 TEX. FAM. CODE § 51.01. 7 29 THOMAS S. MORGAN, TEXAS PRACTICE, JUVENILE LAW AND PRACTICE §1 (1985).
necessary for his welfare or in the interest of public safety and when a child is removed from his family, to give him the care that should be provided by parents; 5. to provide a simple judicial procedure through which the provisions of Title Three are executed enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced. 8 II.
Due Process and Constitutional Safeguards
Juvenile law took a dramatic turn during the era of the Warren Court. The Supreme Court articulated minimum levels of constitutional protections and due process necessary in juvenile proceedings in a landmark series of cases beginning in 1966 with Kent v. United States. 9 In Kent the Court stated a juvenile “hearing must measure up to the essentials of due process and fair treatment.” Prior to Kent, the states enacted various legislation to set procedures for juvenile proceedings. However, since juvenile courts were operating under the doctrine of “parens patriae” and hearings were deemed civil and not criminal, procedural safeguards afforded adults were vastly lacking in juvenile courts. Beginning in Kent and following immediately with Gault the Supreme Court for the first time promulgated constitutional protections applicable to juvenile proceedings. In Gault the Court stated “[j]uvenile court history has again
5
See original TEX. FAM. CODE §§51.02 (1-5). Amended. 9 Kent v. United States, 383 U.S. 541 (1966). 8
2
demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure.” 10 The Gault decision was a landmark ruling and is considered the most influential decision in juvenile law.
why her son was in custody and that he would have a hearing the next day. The deputy probation officer, who was also superintendent of the Detention Home filed a petition with the juvenile court on the hearing day, but the petition was never served on Gerald’s parents. The petition was cursory at best in that it made no reference to any factual basis for the judicial action which it initiated. It recited only that “said minor is under the age of eighteen years, and is in need of the protection of this Honorable Court; [and that] said minor is a delinquent minor.” It prayed for a hearing and an order regarding “the care and custody of said minor.” The next day Gerald, his mother, his older brother, and probation officers appeared before the Juvenile Judge in chambers. Gerald's father was not there. He was at work out of the city. The complainant Mrs. Cook was not present at the hearing. No one was sworn at this hearing. No transcript or recording was made. No memorandum or record of the substance of the proceedings was prepared. At the conclusion of the hearing, the judge said he would “think about it.” Gerald was taken back to the Detention Home. He was not sent to his own home with his parents. Less than a week later at the final hearing a “referral report” made by the probation officers was filed with the court, although not disclosed to Gerald or his parents. This listed the charge as “Lewd Phone Calls.” At the conclusion of the hearing, the judge committed Gerald as a juvenile delinquent to the State Industrial School “for the period of his minority [that is, until 21], unless sooner discharged by due process of law.” An order to that effect was entered. It recites that “after a full hearing and due deliberation the Court finds that said minor
A. In Re Gault In In Re Gault, the Respondent Gerald Gault was fifteen at the time he was arrested and taken into custody by the police for essentially what could be described as a telephone call in which the caller or callers made lewd or indecent remarks. The Court described the calls as being “of the irritatingly offensive, adolescent, sex variety.” 11 At the time the Respondent was arrested his mother and father were both at work. No notice was given to the juvenile’s parents that he as being taken into custody was left at the home. When Gerald’s mother arrived home at about 6 o'clock, Gerald was not there. Gerald's older brother was sent to look for him at the trailer home of the Lewis family. The family learned that Gerald was in custody. Gerald’s mother went to the juvenile detention were she was told In Re Gault, 387 U.S. at 541. Gerald Francis Gault, age 15, and Ronald Lewis made an obscene phone call to a neighbor, Mrs. Cook. The obscene phone call included the following statements: “Do you give any?” “Do you have big bombers?” and “Are your cherries ripe today?” Incensed, Mrs. Cook called the sheriff, who arrested Gault and Lewis, placing them in a detention facility. Gault’s parents were not informed that he had been detained; Gault’s mother learned about the detention from the Lewis family. Mrs. Cook did not attend the hearing the next day, so she did not identify the boys as the callers or offer any testimony. The judge claimed that Gault had admitted to making the lewd statements, but Gault denied making any such confession, claiming that he had only dialed the number. Kent v. United States, 383 U.S. 541 (1966).
10 11
3
is a delinquent child, and that said minor is of the age of 15 years.” Under state law no appeal of the judge’s decision was permitted. In reversing the decision of the Arizona Supreme Court the Gault Court opined “the highest motives and most enlightened impulses led to a peculiar system for juveniles, unknown to our law in any comparable context. The constitutional and theoretical basis for this peculiar system is -to say the least -- debatable. And in practice, …the results have not been entirely satisfactory. Juvenile Court history has again demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure. In 1937, Dean Pound wrote: “The powers of the Star Chamber were a trifle in comparison with those of our juvenile courts . . . .” The absence of substantive standards has not necessarily meant that children receive careful, compassionate, individualized treatment. The absence of procedural rules based upon constitutional principle has not always produced fair, efficient, and effective procedures. Departures from established principles of due process have frequently resulted not in enlightened procedure, but in arbitrariness…There is evidence . . . that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.” 12 The Court further stated “[i]n their zeal to care for children neither juvenile judges nor welfare workers can be permitted
to violate the Constitution, especially the constitutional provisions as to due process that are involved in moving a child from its home. The indispensable elements of due process are: first, a tribunal with jurisdiction; second, notice of a hearing to the proper parties; and finally, a fair hearing. All three must be present if we are to treat the child as an individual human being and not to revert, in spite of good intentions, to the more primitive days when he was treated as a chattel.” We are warned that the system must not “degenerate into a star chamber proceeding with the judge imposing his own particular brand of culture and morals on indigent people . . . .” Where a person, infant or adult, can be seized by the State, charged, and convicted for violating a state criminal law, and then ordered by the State to be confined for six years, I think the Constitution requires that he be tried in accordance with the guarantees of all the provisions of the Bill of Rights made applicable to the States by the Fourteenth Amendment. B. Right to Counsel One of the bedrock guarantees affirmed by the Court in In Re Gault was the right to counsel in juvenile proceedings. 13 In addressing the right to counsel in Gault the Court stated “[a] proceeding where the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to
12 383 U.S., at 556, citing Handler, The Juvenile Court and the Adversary System: Problems of Function and Form, 1965 Wis. L. Rev. 7; Harvard Law Review Note; and various congressional materials set forth in 383 U.S., at 546, n. 5.
13
4
In Re Gault, 387 U.S. at 541.
prepare and submit it. The child ‘requires the guiding hand of counsel at every step in the proceedings against him.’” 14 Texas law has extended the right to counsel for juveniles.15 Texas law goes beyond the requirements of the Constitution in several respects. Foremost, it provides that the child has a right to counsel “at every stage of proceedings”, not just at trial or adjudication proceedings. 16 Second, there are certain instances where the right to counsel is mandatory and cannot be waived even with the consent of the juvenile or his family 17. The Texas Family Code provides that the right to counsel cannot be waived in specified proceedings such as hearings to transfer to adult court (certification); (2) adjudication proceedings, (3) disposition proceedings, (4) hearings dealing with mental illness or mental retardation and (5) those modification of disposition proceedings in which commitment to the Texas Juvenile Justice Department (TJJD) are sought. Concurrent with the right of counsel is the right to effective assistance of counsel. 18 As in adult cases counsel’s level of effectiveness is measured by the standard articulated by the Court in Strickland v. Washington. 19
and the Code of Criminal Procedure. The primary authority for juvenile law is the Title 3 of the Texas Family Code. The Texas Family Code was promulgated in 1973 and has undergone legislative changes and revisions since its enactment. Additionally, as juvenile proceedings are considered civil proceedings the Texas Rules of Civil Procedure are applicable 20. As the Family Code is the primary source of law for juvenile proceedings it is important to understand that the Family Code is the controlling basis of authority for juvenile procedure. Section 51.17 Texas Family Code provides that the Texas Rules of Civil Procedure govern juvenile proceedings, however, discovery is governed by the Code of Criminal Procedure the Texas Rules of Evidence applicable to criminal cases and Chapter 38 Code of Criminal Procedure. Additionally, the Tex. Code of Criminal Procedure governs with respect to all statute of limitations and limitation periods. 21 under Chapter 12, With the various sources of law utilized in juvenile proceedings it is vital for a practitioner to familiarize himself with the various sources of law. III.
C. Sources of Law Governing Juvenile Justice
14 In Re Gault, 387 U.S. at 541 [quoting from Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55 (1932)]. 15 Tex. Fam. Code §51.10. 16 Tex. Fam. Code §51.10. 17 Tex. Fam. Code §51.10(b). 18 See, K.J.O., 27 S.W.3d 340 (Tex. App.—Dallas 2000, pet denied). 19 466 U.S. 668, 104 S. Ct. 2502, 80 L. Ed. 2d 674 (1984).
21
5
and
Juvenile
TEX. FAM. CODE §51.17 See Tex. Fam. Code $51.19 (a) The limitation periods and the procedures for applying the limitation periods under Chapter 12, Code of Criminal Procedure, and other statutory law apply to proceedings under this title. (b) For purposes of computing a limitation period, a petition filed in juvenile court for a transfer or an adjudication hearing is equivalent to an indictment or information and is treated as presented when the petition is filed in the proper court. (c) The limitation period is two years for an offense or conduct that is not given a specific limitation period under Chapter 12, Code of Criminal Procedure, or other statutory law.
20
Criminal jurisprudence in Texas is governed primarily by the Texas Penal Code
Age Limits Jurisdiction
B. Raising Objections to Age
In Texas, juvenile courts have exclusive original jurisdiction in all cases involving delinquent conduct or conduct indicating a need for supervision involving juveniles between the ages of 10 and 17. 22
It is important to note that although the age of a child at the time an alleged offense is committed is fundamental to the juvenile court exercising jurisdiction; objections to a juvenile court having jurisdiction of a “child” must be raised at trial or a hearing to transfer a child to adult court. 27 Further Texas Code of Criminal
A. Age of Child Under Texas juvenile law the definition of “child” encompasses juveniles between the age of 10 and 17 or individuals between the age of 17 and 18 who are alleged or found to have engaged in delinquent conduct or conduct indicating a need for supervision committed before becoming 17 years of age. 23 Historically the age of criminal responsibility in Texas has been seventeen. Over the last decade there have been legislative proposals to “raise the age” to eighteen however Texas remains one of three states in the United States to have the age of criminal jurisdiction under eighteen. 24 Basically, delinquent conduct is defined as conduct other than traffic offenses that violate either Texas or Federal penal laws punishable by imprisonment or by confinement in jail. 25 Conduct indicating a need for supervision are offenses of a relatively minor nature such as misdemeanor offenses punishable by fine only or other offenses such as truancy or runaway offenses. 26 TEX. FAM. CODE §51.04. TEX. FAM. CODE §51.02. 24 See, e.g. Tex. H.B. 486, 87th Leg., R. S. (2021). 25 TEX. FAM. CODE §51.03. 26 § 51.03. Delinquent Conduct; Conduct Indicating a Need for Supervision (a) Delinquent conduct is: 1. conduct, other than a traffic offense, that violates a penal law of this state or of the United States punishable by imprisonment or by confinement in jail; 2. conduct that violates a lawful order of a court under circumstances that would constitute contempt of that court in:
or
22 23
6
A.
a justice or municipal court;
B. a county court for conduct punishable only by a fine; 3. conduct that violates Section 49.04, 49.05, 49.06, 49.07, or 49.08, Penal Code; or 4. conduct that violates Section 106.041, Alcoholic Beverage Code, relating to driving under the influence of alcohol by a minor (third or subsequent offense). (b) Conduct indicating a need for supervision is: 1. subject to Subsection (f), conduct, other than a traffic offense, that violates: A. the penal laws of this state of the grade of misdemeanor that are punishable by fine only; or B. the penal ordinances of any political subdivision of this state; 2. the absence of a child on 10 or more days or parts of days within a six-month period in the same school year or on three or more days or parts of days within a four-week period from school; 3. the voluntary absence of a child from the child's home without the consent of the child's parent or guardian for a substantial length of time or without intent to return; 4. conduct prohibited by city ordinance or by state law involving the inhalation of the fumes or vapors of paint and other protective coatings or glue and other adhesives and the volatile chemicals itemized in Section 484.002, Health and Safety Code; 5. an act that violates a school districts previously communicated written standards of student conduct for which the child has been expelled under Section 37.007(c), Education Code; or 6. conduct that violates a reasonable and lawful order of a court entered under Section 264.305. 27 See §51.042 Tex. Fam. Code; Adams v. State, 161 S.W.3d (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d) (Appellant waived his right to challenge the district court’s jurisdiction when he entered a plea without objecting as required by Tex. Code Crim.
Procedure art. 4.18 requires a written pretrial motion be filed in order to preserve error to object to the lack of jurisdiction of a criminal district court because of age. 28
in the criminal context. Understanding juvenile pleading practice will require a basic facility with the rules that govern pre-trial pleading practice in juvenile proceedings. In order of hierarchical 31 application, the sources of law governing pre-trial practice may be identified as those addressing that which must be included in the petition— substantive and formal requirements, and those addressing how defects in pleadings may be raised—procedure. The substantive and formal requirements of petitions are found in three main sources: those sources addressing (1) specific requirements concerning the substance and form of the petition found in the Family Code, 32 (2) the general pleading requirements found in the Code of Civil Procedure, 33 and (3) the requirements of form and substance that may be required by constitutional provisions.
C. The Petition The specific formal and substantive requirements of the petition—the primary State pleading—however, are found in statutory requirements set forth, for the most part, in the Family Code. 29 The many criminal rules found in the Code of Criminal Procedure and case decisions are not applicable despite the fact that the substantive basis of juvenile pleading is derived from criminal jurisprudence. 30 Criminal pleading practice, however, is not irrelevant to pleading practice in juvenile court. Indeed, the juvenile practitioner should consult and seek guidance from criminal pleading jurisprudence in identifying and drafting challenges to the state’s petition. However, remember the Texas Rules of Civil Procedure are applicable in juvenile proceedings. The main focus of defensive pre-trial pleading practice is limited to challenging the sufficiency of the petition in terms of form and substance. However, the practitioner should not only be aware of what the petition must contain but also how such matters are raised in the context of juvenile proceedings which is very different than the manner of raising such challenges Proc. Ann. Art 4.18). 28 See, TEX. CODE CRIM. PROC art 4.18; In re E.D.C., 88 S.W.3d 789 (Tex. App.—El Paso 2002, no writ) (state is no longer required to prove age as an element as a result of this statutory provision). 29 See generally, Tex. Family Code §§ 53.04, 53.05, 53.06. 40 See TEX. R. CIV. PROC. 45, et. seq. (the Family Code provision addressing practice and procedure does not include pleading practice as one of the areas to which criminal procedure is applicable. See TEX. FAM. CODE § 51.17. 30 See e.g., TEX. CODE CRIM. PROC. Art. 21.01. et. seq.
D. Procedure for Challenging Pleadings in Juvenile Court The most important facet of juvenile pleading practice is the application of the civil rules to pleading practice. Unlike with discovery and evidence, criminal procedure governing the challenges to the sufficiency of indictments and informations is not applicable in juvenile proceedings. Juvenile proceedings, being civil in nature, are commenced by petition. 34 The civil nature of the proceeding determines the See TEX. FAM. CODE §51.17. See TEX. FAM. CODE § 53.04. 33 See generally TEX. R. CIV. PROC. 45 – 77. 34 TEX. FAM. CODE §53.04; TEX. R. CIV. PROC. 22, 77, 78, - 80. 31
32
7
procedure for raising defects of form and substance in the petition. One of the most notable features of juvenile pleading practice occasioned by the application of the civil rules of procedure is, again, the absence of any requirement that such matters be raised prior to trial at the risk of waiver. Also notable is the lack of the various and detailed statutory rules setting forth the requirements of the pleadings as found in the Code of Criminal Procedure. terms of the certainty required in the allegations of the conduct in the state’s petition for which the prosecution is sought. Because the civil rules of procedure are applicable, challenges to the Court’s jurisdiction are made by a plea to the jurisdiction. 35 Additionally, challenges to pleadings are made not by a motion to quash the petition but, rather, by means of special motions peculiar to civil procedure--special exceptions to the petition.
the juvenile system. 36 Determinate sentencing arose in Texas as a result of the perception of increasing serious violent criminal acts being committed by young juveniles. 37 Prior to the enactment of the Determinate Sentence Act of 1987 juveniles under the age of fifteen could not be certified to stand trial as adults nor receive a commitment to the Texas Juvenile Justice Department beyond the age of twenty-one. 38 Numerous legislative options were proposed to address this issue with most centering on reducing the age a juvenile was eligible for transfer to the adult system. 39 As initially promulgated in 1987 the determinate sentence legislation covered the six most serious felony offenses: Capital Murder, Murder, Aggravated Kidnapping, Aggravated Sexual Assault, Deadly Assault on a law enforcement officer, Criminal Attempt to Commit Capital Murder. 40 Enacted in 1987 the Texas Determinate Statue was the first of its kind in the country. 41 Currently, other states have enacted similar statutes which are commonly referred to as blended or mixed sentences. Under the initial determinate sentence act a youth would receive a sentence where the first portion would be
IV.
Serious Offenses: Determinate Sentence & Certifications Juvenile Courts although originally enacted as a result of children being treated as adults have increasingly enacted provisions to address the more serious juvenile offender. A. Determinate Sentence Determinate sentencing is a hybrid dispositional option whereby juveniles who have been adjudicated for severe criminal offenses are given a sentence which includes a term of confinement in the Texas Department of Criminal Justice but begins in See, Tex. Rule Civil Proc. 85. The purpose of a plea to the jurisdiction is to challenge the court’s subject-matter jurisdiction for example “age.”
See, Robert O. Dawson, TEXAS JUVENILE LAW § 21 (8th ed. 2012).; Dawson, Texas Blended Sentencing: An Empirical Study of the Uses of Determinate Sentencing 17 State Bar of Texas Section Report Juvenile Law 5-17 (No. 2, June 2003. 37 Dawson, Texas Blended Sentencing: An Empirical Study of the Uses of Determinate Sentencing, 17 State Bar of Texas Section Report Juvenile Law 5-17 (No. 2, June 2003). 38 Id. 39 See Robert O. Dawson, The Third Justice System: The New Juvenile—Criminal System of Determinate Sentencing for the Youthful Violent Offender in Texas, 19 St. Mary’s L.J. 943-1016 (1988). 40 Robert O. Dawson, TEXAS JUVENILE LAW § 21 (8th ed. 2012). 41 Id. 36
35
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served at the Texas Juvenile Justice Department (TJJD). Before the juvenile reached his eighteenth birthday a hearing would be conducted in the committing court to ascertain whether the juvenile would be released on TJJD parole, discharged from TJJD altogether or transferred to the Institutional Division of the Texas Department of Criminal Justice to serve the remainder of the juvenile’s sentence. 42 Beginning in 1996 widespread changes to the Determinate Sentence Act took effect. 43 First the range of offenses eligible for determinate sentencing cases was greatly expanded. The list of offenses currently includes: • • • • • • • • • • • • •
• • • • • •
Second, the range of punishments was changed to account for the various levels of offenses. For third degree felonies the maximum punishment is ten years; second degree felonies twenty years and a maximum of forty years for first degree felonies and capital offenses. 45
Murder Capital murder Manslaughter Aggravated kidnapping Aggravated sexual assault Sexual assault Aggravated assault Aggravated robbery Felony injury to a child, elderly, or disabled person Felony deadly conduct involving discharging a firearm Aggravated or first-degree controlled substance felony Criminal solicitation of a capital or first-degree felony Criminal Attempt of murder, capital murder or an offense listed under Section 3g(a)(1), Article 42.12, Code of Criminal Procedure
See, Id.; TEX. FAM. CODE §54.11 (before 1995 amendment). 43 Dawson, Texas Blended Sentencing: An Empirical Study of the Uses of Determinate Sentencing, 17 State Bar of Texas Section Report Juvenile Law 5-17 (No. 2, June 2003).
Second-degree felony indecency with a child Criminal solicitation of a minor First degree felony arson Intoxication manslaughter Habitual felony conduct (three consecutive felony adjudications) Criminal Conspiracy. 44
1. Grand Jury When seeking to proceed under the Determinate Sentence Act a state prosecutor has essentially unfettered discretion. 46 However the petition seeking a determinate sentence must be approved by the grand jury. 47 In considering a case for approval nine members of the grand jury must vote approval. 48 If nine members do not vote approval the State cannot proceed under the act. If the grand jury rejects approval the State can still proceed with the prosecution of the proceeding either with an Original Petition without a determinate sentence or seek certification if appropriate. Upon approval, section 53.045(d) states the “fact of approval shall be certified to the juvenile court and the certification
42
TEX. FAM. CODE §53.045(a). TEX. FAM. CODE §54.04(3) 46 In the Matter of S.B.C., 805 S.W.2d 1 (Tex. App.—Tyler 1991, writ denied). 47 TEX. FAM. CODE §53.045(a); §54.04(3). 48 TEX. FAM. CODE §53.045(b). 44 45
9
shall be entered in the record of the case” 49 Another basis for utilizing the grand jury in juvenile cases is for prosecutors to seek advice from the grand jury about whether to proceed with the case at all. 50 Section 53.035 allows a prosecutor to have a grand jury review any juvenile case to determine if charges should be filed. However if a prosecutor pursues this course of action then the prosecutor is bound by the decision of the grand jury. If the grand jury denies approval under this provision then the State may not file any petition in the case unless the same or another grand jury approves the petition. 51 2. Adjudication Hearing The requirements for an adjudication hearing for an indeterminate sentence case and a determinate sentence case are the same except for a few differences. In a determinate sentence case only certain judges can preside over determinate sentence cases. Juvenile court referees, associate judges or constitutional county court judges are prohibited from hearing Additionally, the jury these cases. 52 composition in determinate sentence cases must consist of 12 members even when a county court has jurisdiction. 53 3. Disposition Hearings In normal delinquency hearings a juvenile has no right to a jury to determine disposition. 54 In determinate sentence proceedings juveniles have the right to have TEX. FAM. CODE §53.045(d). TEX. FAM. CODE §53.035. 51 Id. 52 TEX. FAM. CODE §54.10(c); TEX. FAM. CODE §51.04(c). 53 TEX. FAM. CODE §54.03(c). 54 McKeiver Et. Al. v. Pennsylvania, 403 U.S. 528 (1971); TEX. FAM. CODE §54.04. 49
50
a jury determine sentencing. 55 A requirement for having a jury in the disposition hearing to determine sentencing is that the respondent request or elects in writing before the start of voir dire his desire for a jury. 56 4. Probation Juveniles sentenced under a determinate sentence are eligible for probation if the sentence received is less than ten years. 57 This provision was adopted in 1999 with the legislative amendments to the Act. Before this provision change probation and juvenile court jurisdiction of determinate sentence terminated upon a juvenile respondent reaching eighteen years old. 58 Determinate sentence probation was a major revision of the Act; the ten year probation period mirrors probation options available in adult cases. 59 A ten year probation period gives the juvenile court and juries a wider sentencing option and provides for a better handling of case dispositions. Prior to the changes enacted regarding probation courts were limited in granting probation since probation terminated at the juvenile’s eighteenth birthday; accordingly, it was more probable that a term of years was imposed without probation in those circumstances. Further juries did not impose any of the terms or conditions of probation and both the court and jury merely granted or denied probation. Presently, as in adult cases, once a respondent is assessed a sentence of ten years or less and probation is awarded, the judge makes the determination of the length 55 56 57 58 59
10
TEX. FAM. CODE §54.04(a). TEX. FAM. CODE §54.04(a). TEX. FAM. CODE §54.04(q). TEX. FAM. CODE § 54.04(d)(1). TEX. CRIM. PROC. CODE ART. 42.12 § 3, 4(a).
of probation. 60 If probation is granted juvenile probation will provide supervision. Probation will expire at the juvenile’s eighteenth birthday unless the prosecuting attorney requests a hearing prior to the child’s eighteenth birthday and the court orders probation transferred to adult probation. Once transferred adult probation will provide supervision. 5. Parole and Minimum Lengths of Stay The determinate sentence statue allows TJJD the ability to parole juveniles without permission from the court once a minimum length of stay is served. For Capital Murder the minimum length of stay is ten years, for first degree felonies the minimum length of stay is three years; two years for a second degree and one year for a third degree felony. 61 If a child is released on parole prior to reaching his or her nineteenth birthday the TJJD will supervise him or her until the age of nineteen at which time supervision will be transferred to adult parole. 62 If the youth is paroled after the age of nineteen, the youth is immediately placed on adult parole to serve the remainder of the sentence. 6. Transfer Hearings Under current law the Texas Juvenile Justice Department may request the committing juvenile court to conduct a hearing to determine whether to transfer a juvenile sentenced under the Act to prison. 63 Section 61.079 states in part: 1. [a]fter a child sentenced to commitment under Section
54.04(d)(3), 54.04(m), or 54.05(f), Family Code, becomes sixteen years of age but before the child becomes 19 years of age, the commission may refer the child to the juvenile court that entered the order of commitment for approval of the child’s transfer to the institutional division of the Texas Department of Criminal Justice if: a. the child has not completed the sentence; and b. the child’s conduct, regardless of whether the child was released under supervision under Section 61.081, indicates that the welfare of the community requires the transfer. 64 This provision allows TJJD to request transfer to adult prison those youth who are not working the programs or progressing satisfactorily towards rehabilitation. Once a youth turns sixteen years old and has been at TJJD for at least six months transfer can be requested. 65 The decision regarding transfer to prison will be made by the committing court without a jury. 66 In making a decision regarding transfer the court has wide discretion; 67 the court may consider various factors such as the child’s history before and after being committed to TJJD, the nature of the original offense, and the 68 recommendation of TJJD. When the purpose of the hearing is to consider transfer the court may either transfer the respondent to adult prison or return the
TEX. HUM. RES. CODE §61.079. TEX. HUM. RES. CODE §61.079(a)(2). 60 See TEX. FAM. CODE § 54.04 (q); compare TEX. 66 TEX. FAM. CODE § 54.11. 67 See, generally, Matter of C.L., Jr., 874 S.W.2d 880 CRIM. PROC. CODE ART. 42.12 § 4(b). 61 TEX. HUM. RES. CODE §61.081(f). (Tex. App.—Austin 1974); K.L.M. v. State, 881 62 TEX. HUM. RES. CODE §61.084(g). S.W.2d 80 (1994). 63 TEX. HUM. RES. CODE §61.079(a)(2). 68 TEX. FAM. CODE §54.11(K). 11 64 65
child to TJJD. 69 The procedures and guidelines to be adhered to in a transfer hearing are addressed in §54.11. 7. 2007 Legislative Changes During the 2007 80th Texas Legislative Session major changes were enacted which dealt with the Texas Juvenile Justice Department and juvenile justice. The legislative revisions were the result of reports of widespread physical and sexual abuse of children at TJJD facilities. As a result of the new legislation a major overhaul resulted in the handling of juveniles committed to the Texas Juvenile Justice Department. First, the age of control was reduced; now the maximum age of TJJD jurisdiction is 19. 70 This reduction will greatly affect determinate sentencing in that this reduces the amount of time juveniles can remain under TJJD control. Secondly, no longer can juveniles with misdemeanor adjudications be committed to TJJD. Jury trials were also affected. Juveniles facing a determinate sentence must now request a jury for disposition prior to voir dire or if not requested timely must have permission from the State and the Court. 71 8. Summary Determinate sentencing was enacted in response to an increase in violent crimes being committed by juveniles. Although many offenses are eligible for determinate sentencing few cases are actually filed as determinate sentenced. 72 A juvenile TEX. FAM. CODE §54.11(i). See generally, TEX. HUM. RES. CODE §§61.079, 61.081, 61.084; TEX. GOV’T CODE §508.156. 71 TEX. FAM. CODE § 54.04(a). 72 For a detailed empirical analysis see, Dawson, Texas Blended Sentencing: An Empirical Study of the Uses of Determinate Sentencing, 17 State Bar of Texas 69 70
receiving a determinate sentence has the potential of serving his or her sentence in a juvenile prison where rehabilitation and education are not the primary purpose of the adult system. A juvenile who receives a determinate sentence can never have his record sealed and even if not transferred to the Institutional Division of the Texas Department of Corrections can be under the supervision of adult parole for up to forty years. However, determinate sentence can be a very beneficial option when facing the most serious of juvenile cases—the waiver of jurisdiction and transfer to adult court. B. Certifications The process of trying juveniles as adults is available in every state in the country. States varying on the requirements of trying juveniles as adults however there exist three basic types of transfer hearings. The most prevalent type of statute to transfer juveniles to adult court is judicial waiver. Judicial waiver is the process which a juvenile court judge makes the determination to transfer a child to adult court after a hearing. By far judicial waiver is the most common type of transfer or certification. 73 Section Report Juvenile Law 5-17 (No. 2, June 2003). 73 Currently, forty-six states have judicial waiver provisions, in which juvenile court judges clear the way for criminal court prosecutions by waiving jurisdiction over individual juveniles. Under a waiver law, a case against an offender of juvenile age must at least originate in juvenile court; it cannot be channeled elsewhere without a juvenile court judge's formal approval. While all states prescribe standards that must be consulted in waiver decision-making, most leave the decision largely to the judge's discretion (45 states). However, some set up presumptions in favor of waiver in certain classes of cases (15 states), and some even specify circumstances under which waiver is mandatory (15 states). See, Patrick Griffin, National Center for Juvenile Justice “National Overviews,” State Juvenile 12
Automatic waiver, legislative waiver or sometimes referred to as statutory exclusion is the transfer process where certain offenses alleged to have been committed by juveniles are statutorily excluded from juvenile court and original jurisdiction rests with the criminal court. Over half of the states in the country have this process. Commonly referred to as automatic waiver because these statutes remove juvenile court jurisdiction “automatically” and no motion or request from the State or even a decision by the juvenile court judge is required. 74 Direct file, is the transfer process which gives the prosecution the discretion to determine whether to proceed in juvenile court or criminal court against the juvenile. Direct files places sole discretion with the prosecutor to determine if proceedings will be initiated in juvenile court or criminal court. 75 In 1973 the Texas legislature promulgated Title III of the Family Code. The enactment of Title III was in response in part to U.S. Supreme Court decisions, increases in juvenile crime and an overall
Justice Profiles, http://www.ncjj.org/stateprofiles/overviews/transfer __state_overview.asp (current through 2004 legislative session) (last visited June 25, 2006). Twenty-nine states have statutory exclusion provisions that grant criminal courts original jurisdiction over certain classes of cases involving juveniles. Legislatures in these states have essentially predetermined the question of the appropriate forum for prosecution-taking the decision out of both prosecutors' and judges' hands. Id. 75 Fifteen states have direct file laws, which leave it up to prosecutors to decide, at least in specified classes of cases, whether to initiate cases in juvenile or criminal courts. Id. 74
desire for Texas officials to be progressive. 76 The initial goals of Title III were 1. to provide for the care, the protection, and the wholesome moral, mental and physical development of children coming within its provisions; 2. to protect the welfare of the community and to control the commission of unlawful acts of children; 3. consistent with the protection of the public interest, to remove from children committing unlawful acts the taint of criminality and the consequences of criminal behavior and to substitute a program of treatment, training, and rehabilitation; 4. to achieve the foregoing purposes in a family environment whenever possible, separating the child from his parents only when necessary for his welfare or in the interest of public safety and when a child is removed from his family, to give him the care that should be provided by parents; 5. to provide a simple judicial procedure through which the provisions of Title Three are executed enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced. 77 In Texas the judicial waiver process is used in removing juveniles to adult criminal court and is referred to as discretionary 29 THOMAS S. MORGAN, TEXAS PRACTICE, JUVENILE LAW AND PRACTICE §1 (1985). 77 See original TEX. FAM. CODE §§51.02 (1-5). Amended. 13 76
transfer, waiver of jurisdiction or most commonly certification. Discretionary transfer to criminal court or certification allows a juvenile judge to make the determination whether a juvenile respondent is transferred from the juvenile system to the adult criminal system. Although certifications account for a relatively small percentage of proceedings in juvenile court they are extremely important hearings in that the juvenile court is making a decision to transfer a respondent to adult criminal court. 78 Proceedings in juvenile court are considered civil in nature and have been designed to remove the “taint of criminality from children” and to focus on treatment, training and rehabilitation of the child 79 . Once a juvenile is certified to stand trial as an adult all of the protections available in the juvenile system are lost and the adult system takes over.
1. Certification Eligibility The certification proceedings are initiated by the State filing a motion or petition for discretionary transfer and the issuance of a summons. The minimal requirements necessary for certification bestow on State prosecutors a wide range of discretion in determining which cases to seek certification. However, certifications are usually limited to, the more serious offenses, juveniles with chronic delinquent history, or individuals over eighteen who are accused of committing offenses when they were younger than seventeen. The juvenile court has exclusive jurisdiction over nearly all criminal offenses committed by juveniles. 80 Texas Penal Code §8.07(b) states: [u]nless the juvenile court waives jurisdiction under Section 54.02, Family Code, and certifies the individual for criminal prosecution or the juvenile court has previously waived jurisdiction under that section and certified the individual for criminal prosecution, a person may not be prosecuted for or convicted of any offense committed before reaching 17 years of age except an offense described by Subsections (a)(1)-(5). 81
Texas law establishes basically three types of transfer or waiver of jurisdiction proceedings: hearings where the juvenile respondent is under the age of eighteen at the time of the hearing; hearings where the respondent is an adult or over the age of eighteen at the time of the commencement of the hearing; and the mandatory certification where a person has previously been certified and commits a new eligible offense. The number of certification proceedings has shown on overall decrease over the last decade; Texas Juvenile Probation Commission statistics show 596 actual certifications occurred in 1994 compared to 220 certifications in 2006. See generally, “Who Gets Certified? An Empirical Study of Discretionary Transfers from Juvenile to Criminal Court” Robert O. Dawson, Juvenile Law Section Report December 2002.
78
79
TEX. FAM. CODE § 51.01.
See generally, TEX. PEN. CODE 8.07(a)(1)-(5). TEX. PEN. CODE § 8.07(a)(7) was enacted in 2001 to eliminate a potential defense to prosecution under TEX. FAM. CODE § 54.02(j)(2)(A), and now permits prosecution in criminal court of a person eighteen or older charged with murder or capital murder allegedly committed between the ages of ten and fourteen. TEX. FAM. CODE § 51.03(c) (providing exception for perjury). TEX. FAM. CODE § 51.04(a); In the Matter of N.J.A., 997 S.W.2d 554 (Tex. 1999). 81 TEX. PEN. CODE 8.07(b). 14 80
It is important to note that the age limitation is considered jurisdictional. 82 Article 4.18 requires that a defendant or underage child raise the issue of being underage by written motion and the issue must also be presented to the district court judge. 83 If the issue of underage is not raised by written motion in district court then the issue will be considered waived. 2. Perjury Generally the age limits for juvenile court to have original jurisdiction of a child exists between the ages of ten and seventeen. 84 However a general exception to this provision deals with perjury offenses. 85 The Family Code §51.03 states “[n]othing in this title prevents criminal proceedings against a child for perjury.” 86 Texas Penal Code §8.07 provides that perjury and aggravated perjury cases may be prosecuted in adult court even against defendants under the age of fifteen. 87 3. Under Age Eighteen Section 54.02 of the Family Code establishes when a child under eighteen may be transferred to adult court Section 54.02 generally sets forth three requirements for transfer to adult court:
See generally, TEX. CODE CRIM. PROC. Art. 4.18. Id.; Rushing v. State, 85 S.W.3d 283,286 (Tex. Crim. App. 2002); Adams v. State, 161 S.W.3d 113 (Tex. App.—Houston [14th Dist.] 2004); Mays v. State, No. 01-03-01345-CR, 2005 Tex. App. Lexis 3842 (Tex. App.—Houston [1st Dist.] 5/19/05 unpublished). 84 See, TEX. FAM. CODE § 51.03. 85 TEX. PEN. CODE § 8.07(a)(1); See also., Ponce v. State, 985 S.W.2D 594 (Tex. App.—Houston [1st Dist.], no pet.) (affirming a criminal conviction for aggravated perjury committed by 13 year old without court having conducted a certification hearing). 86 TEX. FAM. CODE § 51.03 87 TEX. PEN. CODE § 8.07. 82 83
1. the child is alleged to have violated a penal law of the grade of felony; 2. the child was: a. fourteen or older at the time he is alleged to have committed the offense, if the offense is - a capital felony, - an aggravated controlled substance felony, 88 or - a first degree felony; or and no adjudication hearing has been conducted concerning that offense; b. fifteen or older at the time he or she allegedly committed - a second degree felony, - a third degree felony, or - a state jail felony; and no adjudication hearing has been conducted concerning that offense; 3. after a full investigation and a hearing, the juvenile court finds that: a. there is probable cause to believe that the child committed the offense, and b. because of the seriousness of the offense alleged or the background of the child, the welfare of the community requires criminal 89 proceedings. 4. Eighteen Or Older The Texas Family Code establishes when a respondent age eighteen or over may A felony that carries a higher minimum term or higher possible fine than a first degree felony such as possession of large amounts of narcotics. 89 TEX. FAM. CODE § 54.02(a). 88
15
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be certified or transferred to adult criminal court as follows: 1. the person is eighteen or older; 2. the person was: a. ten or older and under seventeen at the time he or she allegedly committed a capital felony or murder; b. fourteen or older and under 17 at the time he or she allegedly committed an aggravated controlled substance felony or a first degree felony other than murder, or c. fifteen or older and under seventeen at the time he or she allegedly committed a second or third degree felony or a state jail felony; 3. no adjudication concerning the alleged offense has been made or no adjudication hearing concerning the offense has been conducted; 4. the juvenile court finds from a preponderance of the evidence that: a. for a reason beyond the control of the State, it was not practicable to proceed before the person’s eighteenth birthday, or b. after due diligence of the State, it was not practicable to proceed before the person’s eighteenth birthday because: - the State did not have probable cause to proceed and new evidence has been found since the person’s eighteenth birthday;
the person could not be found; or - a previous transfer order was reversed on appeal or set aside by a district court; and 5. the juvenile court determines that there is probable cause to believe that the person before the court committed the offense alleged. 90 In certification hearings involving respondents over the age of eighteen the court only has authority to either waive its jurisdiction or if jurisdiction is not waived to dismiss the State’s petition, or motion to transfer, and any petition seeking to adjudicate the respondent delinquent. 91 One of the primary elements of the State’s burden in these hearings is providing justification for the delay beyond the respondent’s eighteenth birthday. 92 In these types of transfer hearings where the State is initially proceeding after the eighteenth birthday of the respondent demonstrating due diligence is mandatory for the State to meet its burden of transfer. If the State cannot justify the delay in proceeding prior to the juvenile turning eighteen the juvenile court has no
TEX. FAM. CODE § 54.02(j). Robert O. Dawson, TEXAS JUVENILE LAW § 10 (7th ed. 2008). 92 In justifying a delay, the court in In the Matter of N.M.P., stated [w]e find no authority … holding that the State must search out and use new, unproven scientific theories or test to meet the due diligence requirement. To the contrary, the law requires the State to show that novel scientific evidence is reliable, and thus probative and relevant…. The State would be in an untenable position if it were required to prove that a cutting edge scientific test was reliable when the experts were still developing and refining the technology. In the Matter of N.M.P., 969 S.W.2d 95 (Tex. App.—Amarillo 1998). 16 90 91
jurisdiction to transfer. 93 Establishing due diligence is a jurisdictional matter and no harm analysis is necessary. 94 The court in Webb, held it is incumbent upon the State to file and conclude the certification hearing before the In respondent’s eighteenth birthday. 95 Webb, the court opined that the meaning of “proceeding” in juvenile court, meant concluding the hearing before the respondent’s eighteenth birthday, agreeing with the trial court. 96 The certification provisions establish four justifications for the delay as follows: 1. not practicable to proceed before age eighteen; 2. new evidence discovered; 3. respondent could not be found; 4. appellate reversal of certification order 5. Certifications For Murder And Murder
Capital
Only individuals eighteen or over who See generally, In the Matter of N.M.P., 969 S.W.2d 95 (Tex. App.—Amarillo 1998)(new DNA testing became available after the respondent turned eighteen); In the Matter of J.C.C., 952 S.W.2d 47 (Tex. App.—San Antonio 1997)(State unable to provide justification for not proceeding against respondent before turning eighteen when it proceeding against his twin brother for the same offense prior to the twin brother turning eighteen). 94 See, Webb v. State, unpublished, No. 08-00-00161-CR, 2001 WL 1326894, Juvenile Law Newsletter 01-4-45 (Tex. App.–-El Paso 10/25/01). In Webb, the State did not establish that the delay in proceeding in juvenile court before the defendant’s eighteenth birthday was not beyond its control. In reviewing the decision, the court vacated the murder conviction following certification and dismissed the juvenile proceedings for want of jurisdiction. The defect was held to be jurisdictional and no harm analysis was necessary. 95 Webb v. State, unpublished, No. 08-00-00161-CR, 2001 WL 1326894, Juvenile Law Newsletter 01-4-45 (Tex. App.—El Paso 10/25/01). 96 Id. 93
are alleged to have committed either Capital Murder or Murder while between the ages of ten and fourteen can be considered for waiver of jurisdiction or certification to adult court. 97 This provision of the family code was promulgated by the legislature with the 1999 amendments to the Texas Family Code. The rationale for this provision is that Capital Murder and Murder have no statute of limitations and the juvenile court would have been able to impose a sentence of commitment to the Texas Juvenile Justice Department with a possible transfer to the Texas Department of Criminal Justice for up to a forty year Before this legislative change, term. 98 these offenses would not have been eligible for certification if the person was under fourteen at the time the offense allegedly was committed. If the State, however, was unable to proceed before the eighteenth birthday of the juvenile the juvenile system could not handle the case because the person was over eighteen, and the adult criminal system would also have no jurisdiction since the offense has original jurisdiction with juvenile court. 99 Title III of the Texas Family Code has adopted the constitutional mandates of Kent, and its progeny in affording procedural protections to respondents in certification hearings. 100 Respondents are entitled to due process in that notice of the charges or allegations are required; the right to counsel is not waivable; the right of confrontation is guaranteed; and the TEX. FAM. CODE § 54.02(j)(2)(A). Robert O. Dawson, TEXAS JUVENILE LAW § 10 (6th ed. 2004). 99 See TEX. PEN. CODE § 8.07. 100 See generally, TEX FAM. CODE § 54.02. 17 97
98
privilege against self-incrimination spelled out in Kent. 101
as
6. Notice Of Petition Or Motion For Discretionary Transfer Section 54.02(b) states: “[t]he petition and notice requirements of Sections 53.04, 53.05, 53.06, and 53.07 of this code must be satisfied, and the summons must state that the hearing is for the purpose of considering discretionary transfer to criminal court.” 102 The requirements of Section 53.04, mandate that the motion for transfer or petition must state: 1. with reasonable particularity the time, place, and manner of the acts alleged and the penal law or standard of conduct allegedly violated by the acts; 2. the name, age, and residence address, if known, of the child who is the subject of the petition; 3. the names and residence addresses, if known, of the parent, guardian, or custodian of the child and of the child’s spouse, if any; and 4. if the child’s parent, guardian, or custodian does not reside or cannot be found in the state, or if their places of residence are unknown, the name and residence address of any known adult relative residing in the county, or, if there is none, the name and Id. TEX. FAM. CODE § 54.02(b); See also Texas Fam. Code § 54.02 (k)(addressing certifications when respondent over eighteen); See also McBride v. State, 655 S.W.2d 280 (Tex. App.—Houston [14th Dist.] 1983, no writ).
residence address of the known adult relative residing nearest to the location of the court. Notice to the juveniles parents has been considered mandatory. 103 In Carlson v. State, the court reversed a conviction for Aggravated Assault were the juvenile plead guilty; the court opined that “although service upon a parent is a ‘waivable right’ pursuant to the waiver provisions in Section 53.06(e), no such waiver occurred in this case. Neither of appellant’s parents attended the hearing or waived service of the summons in writing. Since the right to service of the summons was not waived, service upon a parent was mandatory.” 104 Additionally, the motion must state “that the hearing is for the purpose of considering discretionary transfer to criminal court.” 105 7.
Criminal Transaction Multiple felony offenses pending against the Respondent for which there is probable cause can and should be alleged in the same petition to transfer. If the State files a petition which alleges multiple offenses that constitute more than one criminal transaction, the juvenile court may either retain or transfer all offenses relating to each transaction. It is important to note that the juvenile court waives jurisdiction over a transaction, not a specific statutory offense, so the court may transfer or retain different criminal transactions. 106 Section 54.02(g) states “[i]f the petition alleges multiple offenses that constitute more than one criminal transaction, the juvenile
101
102
Carlson v. State, 151 S.W.3d 643 (Tex. App.—Eastland 2004). 104 Id. 105 TEX. FAM. CODE § 54.02(b). 106 TEX. FAM. CODE § 54.02(g). 18 103
court shall either retain or transfer all offenses relating to a single transaction. A child is not subject to criminal prosecution at any time for any offense arising out of a criminal transaction for which the juvenile court retains jurisdiction.” Accordingly, if the court retains jurisdiction over any criminal transaction the respondent is not subject to prosecution for any offense for which the court retains jurisdiction. 107 The State upon receiving the transferred case in criminal court may charge any offense or offenses supported by probable cause as long as the offense arose out of a criminal transaction that was transferred by the juvenile court. 108 In Allen, the Court established the principal that the juvenile court in deciding to waive or transfer it’s jurisdiction assesses the underlying conduct in the waiver hearing. Accordingly, if a respondent is transferred the adult court not only has jurisdiction over the offense transferred and any lesser included offenses but any conduct that resulted from the same criminal 109 transaction. As a result of the Allen principal a defendant transferred to adult court can be prosecuted for any offense the State can prove as long as the offense charged is based on conduct from the criminal transaction from which the juvenile court waived jurisdiction. However, the offense charged by the State must have been an offense for which the respondent was eligible for certification. Id. Ex parte Allen, 618 S.W.2d 357 (Tex. Crim. App. 1981). 109 See, e.g., Ex Parte Allen, 618 S.W.2d 357 (Tex. Crim. App. 1981); Livar v. State, 929 S.W. 2d 573 (Tex. App.—Fort Worth 1996, pet. ref’d); Brosky v. State, 915 S.W.2d 120 (Tex. App.—Fort Worth, pet. ref’d) 107
For example if a respondent is certified for a criminal transaction which occurred at the age of fourteen only the first degree felony may be prosecuted. These situations would prevent the State from charging any lesser included offenses. 110 8. Diagnostic Study, Social Evaluation And Investigation Prior to the actual certification hearing the juvenile court is required to order and have completed various Section evaluations and reports. 111 54.02(d) provides: “[p]rior to the hearing, the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged 112 offense.” a. Diagnostic Study The legislature has not established or expressly stated what must be included in a diagnostic study. 113 However the purpose of this diagnostic study is to assist the court in determining whether to exercise its discretion to either retain or waive its jurisdiction. Opinions vary regarding the contents of the diagnostic examination but generally the report is a forensic examination by a clinical psychologist or psychiatrist and social investigation by the juvenile probation department. The report generally addresses such issues as the child’s
108
TEX. CRIM. PROC. CODE § 4.18. TEX. FAM. CODE § 54.02(d). 112 Id. 113 R.E.M. v. State, 532 S.W.2d 645 (Tex. Civ. App.—San Antonio 1975). 19 110 111
sophistication, maturity, background and family history. 114 The provisions of Section 54.02(d) are mandatory and apply to transfer hearings regardless of the age of the respondent. The only exception are certifications where the state is seeking automatic or “mandatory” transfer proceedings conducted pursuant to the Texas Family Code. 115 If the court fails to order the diagnostic study, evaluation or investigation or to consider the reports in the discretionary transfer hearing the certification hearing is subject to being reversed by a reviewing court. 116 In R.E.M. v. State, the court stated: Section 54.02(d) is mandatory…. It is impossible to read Title 3 of the Family Code…without reaching the conclusion that its effect is to give to a juvenile offender the right not to be treated as an adult offender unless he is divested of that right by judicial order entered after complying with the requirements set forth in Section 54.02. The necessary conclusion is that, in the absence of an effective waiver by the child, he can be subjected to treatment as an adult only if there has been compliance with the mandatory provisions of Section 54.02. 117 Although it is mandatory for the court to order a diagnostic evaluation, the respondent may choose to exercise his Fifth For a discussion of what information should be included in the report, see Hays & Solway, The Role of Psychological Evaluation in Certification of Juveniles for Trial as Adults, 9 Hous. L. Rev. 709 (1972). 115 TEX. FAM. CODE § 54.02(n). 116 R.E.M. v. State, 532 S.W.2d 645 (Tex. Civ. App.—San Antonio 1975). 117 Robert O. Dawson, TEXAS JUVENILE LAW § 10 (6th ed. 2004)(citing R.E.M. v. State, 532 S.W.2d 645 (Tex. Civ. App.—San Antonio 1975)). 114
Amendment right and not answer questions. Further, the use of the examination results has limited results in an adult criminal proceeding if a juvenile is certified to stand trial as an adult. When the psychological examination is used both as the basis of the examiner’s determination that the juvenile should be transferred and as a source of incriminating evidence introduced at trial, it requires additional constitutional 118 safeguards. When used only for its intended purpose, the examination has been held not to be considered a custodial interrogation; however, when the State seeks to use the examination in a subsequent criminal proceeding then the examination serves a dual purpose. In Cantu v. State, the court held that notwithstanding the neutral nature of the psychological examination, the statements a juvenile utters during the examination are not automatically removed from the reach of the Fifth Amendment, if a juvenile is not adequately informed of his Fifth Amendment rights with respect to the diagnostic examination or that his testimony during that examination would be used against him in an adjudicatory proceeding, a waiver of his rights is ineffective. 119 b. Full Investigation Also not defined in certification statutes is the term “full investigation of the child, his circumstances, and the 120 circumstances of the alleged offense.” In looking at this provision one Texas court opined “[t]he phrase ‘full investigation of 118 Cantu v. State, 994 S.W.2d 721 (Tex. App.—Austin 1999). 119 Id. at 735; See also, Estelle v. Smith, 451 U.S. 454, 465, 101 S. Ct. 1866, 1874, 68 L. Ed. 2d 359 (1981). 120 See e.g., In re I.B., 619 S.W.2d 584 (Tex. Civ. App.—Amarillo 1981). 20
the circumstances of the offense’ is not defined in section 54.02. We believe that for good reasons the legislature did not attempt to define the phrase. Of necessity, any inquiry into the circumstances of an offense must be one of degree. It is a matter of common knowledge that the course and scope of an investigation will vary according to the circumstances surrounding the event.” 121 The certification statutes allow the juvenile court judge to consider and admit written reports from probation officers and The mandatory other professionals. 122 procedures enunciated in Section 54.02(d) are established with the purpose of providing the court information sufficient enough to make an informed decision regarding waiving jurisdiction. Although mandatory these procedures must be balanced against the constitutional protections afforded respondents facing transfer to criminal court. Section 54.02(e) seeks to strike a balance by requiring disclosure to counsel for the Respondent prior to the certification hearing 123 . Accordingly, an attorney for a child facing transfer or certification must In re I.B., 619 S.W.2d 584 (Tex. Civ. App.—Amarillo 1981, no writ). See also Price v. State, unpublished, No. 05-01-00588-CR, 2002 WL 664129, 2002 Tex. App. Lexis 2852 (Tex. App.—Dallas 4/24/02)(appellant argued that a “full investigation” required the probation department to personally interview the victims or include the respondent’s version of the circumstances of the offense in the report. The appellate court rejected this argument, finding that the court did not abuse its discretion in concluding that a full investigation was performed.) 122 TEX. FAM. CODE § 54.02(d). 123 TEX. FAM. CODE § 54.02(e) requires one day notice to the attorney representing the child to written reports that will be considered by the court. Act of June 19, 2009, 81st Leg., S.B. 518 (to be codified at TEX. FAM. CODE § 54.02(e) will provide for five (5) days notice effective September 1, 2009. 121
make appropriate and informed decisions regarding when to invoke such rights as privilege against self-incrimination. 124 What various courts do seem to suggest is that counsel for defense can assert constitutional protections but cannot then complain on appeal that the required studies or evaluations are incomplete because of his or her own actions. 125 9. The Hearing Certification hearings in Texas are conducted by the court without a jury. 126 Specifically, §54.02(c) provides: “[t]he juvenile court shall conduct a hearing without a jury to consider transfer of the child for criminal proceedings.” 127 The absence of a jury trial is consistent with the dictates of both state and federal law, since it has been held that juveniles are not constitutionally entitled to jury trials in See e.g., In K.W.M. v. State, 598 S.W.2d 660 (Tex. Civ. App.—Houston[14th Dist.] 1980, no writ) (the court stated that section 54.02(d) does not require a court to order that the child discuss his involvement in the offense, no self-incriminatory statements are required, and if any custodial statement will be used in a later criminal trial, then the Family Code protections must be provided. 125 In R.E.M. v. State, 541 S.W.2d 841 (Tex. Civ. App.—San Antonio 1976, writ ref’d n.r.e.), the respondent refused to cooperate with the professionals who tried to interview him, then claimed on appeal that the report was incomplete. The court stated: “[w]e are not inclined to hold that the statute requires the accomplishment of that which is impossible due to appellant’s attitude.” R.E.M., 541 S.W.2d at 845. The court in R.E.M. held that Texas Family Code 51.09 precluded a waiver of the diagnostic study where the child asserted his right to remain silent but did not waive his right to the study. Later cases hold that the respondent’s failure to cooperate does not waive the right to the study but will prevent the child from arguing on appeal that the study was incomplete. See Ortega v. State, unpublished, No. 05-00-00086-CR, 2002 WL 14163 (Tex. App.—Dallas 2002); In the Matter of J.S.C., 875 S.W.2d 325 (Tex. App.—Corpus Christi 1994, writ dism’d); and In the Matter of C.C., 930 S.W.2d 929 (Tex. App.—Austin 1996, no writ). 126 TEX. FAM. CODE § 54.02(c) 127 Id. 21 124
juvenile proceedings. 128 No deprivation of any constitutional right should be construed in the absence of juries in the certification hearing. Although a right to jury is not available in certification hearings, a waiver hearing before the court is mandatory prior to a court exercising its jurisdiction and transferring a respondent to adult criminal court. 129 Further it has been well settled that certification proceedings are not trials on the merits, but hearings to determine whether the juvenile court will waive its original jurisdiction and transfer the case to adult criminal court for trial or retain its jurisdiction and keep the proceedings in juvenile court. 130 10.
Right Of Counsel An attorney cannot be waived in a certification proceeding. 131 It has been held that proceeding with the transfer hearing without the presence of counsel for the It is well juvenile is reversible error. 132 established that a juvenile is entitled to the effective assistance of counsel at a certification hearing. 133 In Kent, the court stated “[t]he right to representation by counsel is not a formality. It is not a grudging gesture to a ritualistic requirement.
It is of the essence of justice.” 134 The ineffectiveness of counsel in juvenile cases is measured by the Strickland v. 135 standard just as in adult Washington, criminal cases. 11. Evidence The certification statutes do not expressly promulgate the evidentiary procedures which must be adhered to in waiver hearings, however, the Texas Rules of Evidence provides in pertinent part “[e]xcept as otherwise provided by statue, these rules govern civil and criminal proceedings (including examining trials before magistrates) in all courts of Texas, except small claims courts.” 136 Many courts have opined that the Texas Rules of Evidence are not applicable in certification proceedings; the primary rationale for this position was that the court needed to make a determination as to whether a grand jury would indict. However with the amendments to the statute effective in 1996 the grand jury provision was repealed. 137 The issue of hearsay as well as the application of the Sixth Amendment Confrontation clause in certification hearings have been addressed by some appellate courts. 138 However Kent v. United States, 383 U.S. at 561. Strickland v. Washington, 466 U.S. 668, 687-88 (1984)(whether counsel’s performance fell below an objective standard of reasonableness and, if so, whether a reasonable probability exists that, but for counsel’s unprofessional errors, a different outcome would have resulted.); .See also, In re K.J.O., 27 S.W.3d at 343. 136 TEX. RULES EVID. 101(b). See also TEX. FAM. CODE § 51.17(c) which apply the Texas Rules of Evidence applicable to criminal cases in juvenile proceedings. 137 TEX. FAM. CODE § 54.02(f)(3) repealed. 138 See generally, Milligan v. State, No. 03-04-00531-CR, 2006 Tex. App. Lexis 1356, (Tex. App.—Austin 2/16/06) (Neither Sixth Amendment or Crawford confrontation rights apply at the juvenile 22 134 135
See, generally, McKeiver v. Pennsylvania, 403 U.S. 528, 533, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971); Strange v. State, 616 S.W.2d 951 ; In the Matter of P.B.C., 538 S.W.2d 448 (Tex. Civ. App.—El Paso 1976, no writ). 129 Id. 130 M.A.V., Jr. v. Webb County Court at Law, 842 S.W.2d 739 (Tex. App.—San Antonio 1992, writ denied). 131 TEXAS FAM. CODE § 51.10(b)(1). 132 In the Matter of D.L.J., 981 S.W.2d 815 (Tex. App.—Houston [1st Dist.] 1998, no writ). 133 See Kent v. United States, 383 U.S. 541, 561-62 (1966); In re K.J.O., 27 S.W.3d 340, 342 (Tex. App.—Dallas 2000, pet. denied). 128
neither of the state’s highest courts, the Texas Supreme Court or Court of Criminal Appeals, have yet to address this issue. It is settled that Texas Rules of Evidence applicable to criminal cases are to be used in certification proceedings. 139
4. The prosecutive merit of the complaint, i.e., whether there is evidence upon which a Grand Jury may be expected to return an indictment (to be determined by consultation with the United States Attorney).
12. Factors To Be Considered By The Court In the seminal case, Kent v. United States, the Supreme Court articulated factors which were determinative in addressing whether a judge should waive its jurisdiction and transfer a case to adult criminal court.140 The factors articulated by the Court were
5. The desirability of trial and disposition of the entire offense in one court when the juvenile's associates in the alleged offense are adults who will be charged with a crime in the U.S. District Court for the District of Columbia. 6. The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living.
1. The seriousness of the alleged offense to the community and whether the protection of the community requires waiver. 2. Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner.
7. The record and previous history of the juvenile, including previous contacts with the Youth Aid Division, other law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation to this Court, or prior commitments to juvenile institutions.
3. Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons especially if personal injury resulted.
certification hearing); In the Matter of S.M., No. 2-05-262-CV, 2006 Tex. App. Lexis 9056 (Tex. App.—Fort Worth, 10/19/06) (Crawford v. Washington does not apply to determinate sentence transfer hearings since they are not a critical stage of a criminal prosecution) c.f. In the Matter of M.P., No. 10-06-00008-CV, 2007 Tex. App. Lexis—Waco, 2/7/07)(Court held that a juvenile has no Sixth Amendment or Article I, Section 10 of the Texas Constitution right of confrontation during a disposition hearing however, he does have a limited right of confrontation under the Due Process Clause of the Fourteenth Amendment, which requires a balancing test). 139 TEX. FAM. CODE § 51.17 (c). 140 U.S. v. Kent 383 U.S. at 566-567.
8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services and facilities currently available to the Juvenile Court. 141 The Texas provision of the certification statute §54.02(f) adopts and incorporates the Kent, factors which were promulgated to 141
23
Id.
provide constitutional safeguards to juvenile respondents in transfer hearings. 142 Section 54.02(f) requires the juvenile court to consider the following factors in making the decision to waive jurisdiction: 1. whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person; 2. the sophistication and maturity of the child; 3. the record and previous history of the child; and 4. the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court. 143 This list is not exhaustive, in that the court may consider other factors which it deems appropriate in determining whether to transfer a case to criminal court. However the court must “consider” the statutory factors in making its 144 determination. 13. Required Findings There are five basic requirements that must be established before the juvenile court may waive its jurisdiction. Prior to transfer the court must make the following findings: 1. the child is alleged to have committed a felony; 2. the child was: Kent v. United States, 383 U.S. 541, 561-62 (1966) TEX. FAM. CODE § 54.02(a). The legislative changes which took effect in January 1, 1996, eliminated two factors: whether the offense was committed in an aggressive and premeditated manner and whether there was evidence on which a grand jury could be expected to return an indictment. 144 In the Matter of J.R.C., 551 S.W.2d 748 (Tex. Civ. App.—Texarkana 1977, writ ref’d n.r.e.) 142
a. fourteen or older at the time he or she allegedly committed a capital felony, an aggravated controlled substance felony, or a first degree felony, or b. fifteen or older at the time he or she allegedly committed any other felony; 3. no adjudication hearing has been conducted concerning the offense; 4. there is probable cause to believe that the child before the court committed the alleged offense; and 5. because of the seriousness of the offense or the background of the child, the welfare of the community requires criminal proceedings. 145 If the court is proceeding under a hearing where the respondent is over eighteen the court must make the additional findings regarding due diligence. 146 The burden is on the State to prove the allegations in the petition or motion for discretionary transfer by a preponderance of the evidence. 14. Community Welfare Provision Of most important in a court’s consideration to transfer a juvenile to adult court is whether the evidence dictates that the welfare of the community requires transfer to adult criminal court. 147 This finding will be reviewed by an appellate court on legal and factual sufficiency grounds. 148 If the evidence is deemed
143
TEX. FAM. CODE § 54.02(f). TEX. FAM. CODE § 54.02(j)(4). 147 TEX. FAM. CODE § 54.02(a)(3). 148 Green v. State, unpublished, No. 05-97-01176-CR, 1999 WL 783734, 1999 Tex. App. Lexis 7328, Juvenile Law Newsletter 99-4-14 (Tex. App.—Dallas 10/4/99). 24 145
146
legally insufficient on appellate review the respondent may not be transferred to adult court since judgment should be rendered for the respondent and the waiver petition dismissed with prejudice. 149 15. Criminal Transaction When a juvenile court waives its jurisdiction and transfers a juvenile respondent to adult criminal court it is not actually transferring the respondent for all purposes. In essence what the juvenile court is waiving jurisdiction for a particular criminal conduct or transaction. 150 Section 54.02(g) of the Family Code states [i]f the petition alleges multiple offenses that constitute more than one criminal transaction, the juvenile court shall either retain or transfer all offenses relating to a single transaction. A child is not subject to criminal prosecution at any time for any offense arising out of a criminal transaction for which the juvenile court retains jurisdiction 151. 16. Order Although courts are required to give its reasons for transfer in its order it is well settled that juvenile courts have wide latitude in determining whether to retain or waive jurisdiction in a certification proceeding 152. In reviewing a court’s order to transfer a reviewing court will defer to the trial court’s findings. See generally, In the Matter of A.T.S., 694 S.W.2d 252 (Tex. App.—Fort Worth 1985 (Appellate Court held evidence did not support transfer hearing since offense committed was crime of “juvenile nature”). 150 See, Ex Parte Allen, 618 S.W.2d 357 (Tex. Crim. App. 1981). 151 TEX. FAM. CODE §54.02(g). 152 See generally, TEX. FAM. CODE §54.02(h).
17. Mandatory Certification Once Certified Always Certified The third basic type of certification in Texas is often referred to as “mandatory 153 The mandatory certification.” provisions were enacted with the advent of the legislative changes in 1995. The provisions of the code establishing the mandatory transfer proceedings basically codifies the doctrine or practice of “once certified always certified.” Although the statute is commonly referred to as mandatory certification the process is not automatic and not all inclusive. The prosecutor has discretion whether to seek a mandatory transfer or not. However, if the State does seek transfer under this provision and the requirements of the statute are complied with, the juvenile court must transfer the case. Mandatory transfer requires: 1. the child was previously transferred to criminal court for criminal proceedings; and 2. the child has allegedly committed a new felony offense before becoming seventeen years old. The mandatory transfer provision does not apply if at the time of the transfer hearing: 1. the child was not indicted by the grand jury in the matter transferred; 2. the child was found not guilty in the matter transferred; 3. the matter transferred was dismissed with prejudice; or 4. the child was convicted in the matter transferred, the conviction
149
153
25
TEX. FAM. CODE §54.02(m).
was reversed on appeal, and the appeal is final. 154 Of major importance to this provision is the requirement that the respondent was previously certified to adult court and a valid transfer order exists and a new felony offense is alleged. 155 Additionally, the case which the respondent was previously certified to adult court must be final and not have resulted in an acquittal, dismissal prior to indictment, no billed or reversed on appeal. 156 Once the statutory provisions are met transfer to adult court is mandatory; hence the term “mandatory certification.” These procedures were designed to expedite the transfer process and increase judicial economy. 157 This streamlined process does away with the requirements of obtaining a complete diagnostic study, social investigation and investigation of the child and the circumstances of the alleged offense. Although the statute calls for an extremely streamlined process and does not address additional proof requirements it should be concluded that probable cause demonstrating the respondent committed a felony offense would still be necessary to be shown by the State. 158 18. Appeals A juvenile respondent has a right to appeal the decision of a juvenile court transferring jurisdiction to adult court; however, this right has been severely curtailed. Prior to the 1995 legislative changes to the Family Code direct appeals to the Court of Appeals, then possible review by
the Texas Supreme Court were available. 159 Effective with offenses occurring after January 1, 1996, the right to take a direct appeal from a certification order was Presently, Texas law eliminated. 160 provides that an appeal from a transfer order may be taken only after a conviction and direct appeal in adult criminal court.161 This joint appeal may include claims of error which occurred in the transfer hearing along with any errors from the adult criminal conviction. 162 Additionally, the criminal rules are applicable in the appellate process which result in ultimate state review by the Court of Criminal Appeals instead of the Texas Supreme Court. 19. Miscellaneous Certification Two essentially identical provisions of the juvenile mental health statutes allow for “automatic” transfer of certain cases to adult criminal court. 163 These statutes states 1. The juvenile court shall transfer all pending proceedings from the juvenile court to a criminal court on the eighteenth birthday of a child for whom the juvenile court or a court to which the child’s case is referred under Section 55.12(2) has ordered inpatient mental health services if:
TEX. FAM. CODE § 56.01(c)(1). TEX. FAM. CODE § 56.01(c)(1)(A), which had authorized a direct appeal from an order of transfer, was repealed. See e.g., Silva v. State, __ S.W.3d__, No. 01-06-00031-CR, 2007 Tex. App. Lexis 3698 (Tex. App.—Houston [1st Dist.] 5/10/07), Rodriguez v. State, 191 S.W.3d 909 (Tex. App.—Dallas 2006). 161 CCP Art. 44.47; See e.g., Small v. State, 23 S.W.3d 154 TEX. FAM. CODE § 54.02(m). 549 (Tex. App.—Houston [1st Dist.] 2000, writ ref’d). 155 Id. 162 CCP Art. 44.47; Vasquez v. State, unpublished, 156 Id. No. 09-99-00664-CR, 2000 WL 795328, Juvenile 157 See generally, TEX. FAM. CODE § 54.02(n). Law Newsletter 00-3-08 (Tex. App. – Austin 158 TEX. FAM. CODE § 54.02(a)(3); Kent v. United 6/22/00). 163 See, TEX. FAM. CODE §§ 55.19, 55.44; Robert O. States 557; Robert O. Dawson, TEXAS JUVENILE LAW § 10 (6th ed. 2004). Dawson, TEXAS JUVENILE LAW § 10 (6th ed. 2004). 26 159
160
a. The child is not discharged or furloughed from the inpatient mental health facility before reaching eighteen years of age; and b. The child is alleged to have engaged in delinquent conduct that included a violation of a penal law listed in Section 53.045 and no adjudication concerning the alleged conduct has been made. 164 These provisions require transfer to adult court juveniles charged with offenses under the Determinate Sentence Act who remain confined under a commitment order at the age of eighteen. Section 55.44 permits adult criminal proceedings when the respondent is competent to stand trial after age eighteen and is charged with an offense under the Determinate Sentence Act. There has been minimal use or litigation of these provisions however the juvenile court has no discretion in its application. 165 20.
punishment range from probation for ten years to sentencing of forty years. Certification or transfer to adult court immediately transfers a juvenile to adult court where all the protections of the juvenile court are removed; accordingly juvenile court cases can have lasting effect well beyond the a child’s 18th birthday. V.
Practicing juvenile law is a specialized area of law and should be treated as such. Representing youth and young adults who are in jeopardy of losing their liberty requires zealousness and a commitment to advocacy. Foremost the practitioner is tasked with representing the expressed interest of our clients while utilizing the highest levels of professionalism and advocacy.
Certification Summary
Certifications of juveniles in Texas account for roughly one percent of all juvenile referrals. Although this comprises a relatively small number of juvenile proceedings, these hearings are of utmost importance. Upon transfer to adult court the juvenile protections and safeguards which have been mandated in Texas law since the Gault decision are lost and adult provisions and statutes become applicable. Certification cases along with Determinate Sentence cases can extend the punishment range of cases that begin when an individual is still in their early childhood. Determinate Sentence cases can have a 164 165
Conclusion
Id. TEX. FAM. CODE §55.44. 27
Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course June 24-26, 2021 Hyatt Regency San Antonio, TX
Topic: Search & Seizure
Speaker:
David M. Guinn, Jr.
1805 13th Street Lubbock, Texas 79401 (806) 771-0700 phone (806) 763-8199 Fax david@hurleyguinn.com email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
SEARCH & SEIZURE UPDATE TCDLA RUSTY DUNCAN SEMINAR June 24 – 26, 2021 San Antonio, Texas by David M. Guinn, Jr.
1805 13TH STREET | LUBBOCK, TEXAS 79401 | P: 806.771.0700 | F: 806.763.8199 david@hurleyguinn.com
I.
FOURTH AMENDMENT A. Introduction Any lecture outline like this will necessarily be incomplete. If you want a handy version
of most all the law you can really use, buy Jim Skelton’s book on Search and Seizure. It’s over 200 pages long and comes with a handy CD you can use. He didn’t pay or ask me to write that, by the way. Instead, a command of the basics and knowledge of a few new applications will help some of your client’s. The extensive nature of searches, combined with interesting ideological splits at the Supreme Court along with overwhelming public response to government data gathering programs like those conducted by the NSA, are resulting in some favorable law coming from the Supreme Court for a while. These cases are highlighting that traditional “conservative-liberal” ideological analysis doesn’t always hold true, with the majorities in cases like Arizona v. Gant and Florida v. Jardines formed by part of the liberal bloc along with libertarian-leaning conservatives, and with Breyer often joining the rest of the conservative bloc in the minority. If the libertarian streaks of Thomas, Gorsuch, and occasionally Kavanaugh hold true, this may continue to be a fertile area. It is worth particularly noting that while the CCA has held (so far) that the Texas Constitution’s provisions on warrants are mostly coextensive with the Fourth Amendment, a separate objection on that basis should still be made.1 Additionally, while Tex. Code Crim. Proc. Art. 38.23 covers some of the same ground, it is also a separate basis for objection, and though many of the constitutional objections are subsumed into an Art. 38.23 analysis, the scope of the statute is much more extensive in scope than the Federal and state constitutional provisions.
1
The realities of Texas law in the search and seizure arena are much more nuanced than this simple statement, further highlighting the need for a separate objection under Art. I, § 9 of the Texas Constitution. For a lengthy discussion of how Art. I, § 9 is applied, see Holder v. State, 595 S.W.3d 691 (Tex. Crim. App. 2020); in that case, the CCA asserted that the Texas Constitution’s provision does not include an implicit warrant requirement, but rather requires an inquiry of general reasonableness of any particular search after considering the relevant public and private interests at stake. In practice, this analysis is similar to how Fourth Amendment law has evolved, but it allows a broader analysis to be conducted, with the CCA looking to see, in view of the similarities between the Fourth Amendment and Art. I, § 9 and the interests to be protected by both, “whether the Supreme Court’s reasoning makes more sense than the alternatives.” In fact, Holder notes that this analysis once led the CCA to give greater protection under the Texas Constitution in pen register cases, in Richardson v. State, 865 S.W.2d 944 (Tex. Crim. App. 1993).
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B. Framework for Analysis 1. Was the 4th Amendment implicated? (Is there Government conduct constituting a search or a seizure?) Katz v. U.S. 389 U.S. 347, 348 (1967) (concurrence). 2. Was the 4th Amendment violated? (Is the Government search or seizure unreasonable?) If the search or seizure was conducted with a warrant, it is presumed (rebuttably) reasonable. Warrantless searches are said to be “per se unreasonable,” i.e. constitutionally infirm, unless some well defined exception to the warrant requirement justifies the intrusion. 3. If the Government search or seizure is unreasonable and therefore unconstitutional, does the exclusionary rule apply?
Weeks v. United States, 232 U.S. 383 (1914);
Mapp v. Ohio, 367 U.S. 643 (1961). 1. Standing In order for the accused to successfully invoke the federal or Texas exclusionary rule, he must first have standing, a right to complain. In order to show standing, the defendant must demonstrate that he had a reasonable (sometimes termed “legitimate”) expectation of privacy in the thing or the area searched at the time of the search. See Rawlings v. Kentucky, 448 U.S. 98, 100 (1980). This requirement has been applied in Texas by the Court of Criminal Appeals. See, e.g., Chapa v. State, 729 S.W.2d 723, 725 (Tex. Crim. App. 1987). Either ownership rights of some form OR a reasonable expectation of privacy inuring to the complaining person can be sufficient to establish standing. Take a look at United States v. Brown, 6 F.3d 1390 (5th Cir. 1993) that recognized a passenger in a car that was not his had standing to challenge the legality of the initial stop of the vehicle in a motion to suppress because the stop was a restraint upon the passenger’s freedom of movement and therefore constituted a seizure of his person; see also the recent SCOTUS decision in Byrd v. U.S., which held that the driver of a rental car has standing even when the driver is not listed anywhere in the rental agreement. ___ U.S. ___, 138 S.Ct. 1518 (2018). 1994).
Likewise, print and brief United States v. Wilson, 36 F.3d 1298, 1301 (5th Cir.
Wilson granted standing and reversed a search and seizure of a checkbook from
defendant’s friend’s hotel room (fact intensive, but illustrative of the principles involved and their application). Florida v. Jardines, 569 U.S. 1 (2013) is already having major implications in this area; Scalia’s focus on the ownership interest of the home, rather than focusing on whether
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there is a reasonable expectation of privacy, raises an alternative pathway through which warrantless searches, especially those around a home, may be challenged. a. Texas The following are some Texas cases where the appellate court recognized standing for the passenger: Chapa v. State, 729 S.W.2d 723, 725 (Tex. Crim. App. 1987) (holding that defendant, who was a paying passenger in a taxicab, had a reasonable expectation of privacy and thus had standing under the Fourth Amendment to object to a search which revealed heroin under the front seat of the cab). Lewis v. State, 664 S.W.2d 345, 346 (Tex. Crim. App. 1984) (holding that appellant, who was a passenger in the car, did have standing to challenge the search based on her continued detention). Castro v. State, 202 S.AW.3d 348 (Tex. App. – Ft. Worth 2006, rev’d on other grounds) (affirming that a passenger in a stopped vehicle has been seized and therefore has standing to challenge the legality of the stop). Dominguez v. State, 924 S.W.2d 950, 952 (Tex.App.—El Paso 1996, no pet.) (holding that where a criminal investigator appointed in one county and assigned to a multi-county drug task force lacked the authority to stop defendant in a second county). A spouse had standing in State v. Crisp, 74 S.W.3d 474, 477 (Tex.App.—Waco 2002, no pet.) (holding that the wife had permission to borrow her mother’s car and therefore had standing to challenge an illegal arrest; the husband had the wife’s permission to drive the car and therefore also had standing). It is important to note in all of these situations that there is no general standing for passengers to object to automobile searches; each case has to be examined for the precise search or seizure being objected to, and whether the passenger had standing to object to that particular action based on some infringement of the passenger’s rights, ownership interests, or reasonable expectations of privacy. Minassian v. State, 490 S.W.3d 629 (Tex. Ct. App – Houston [1st Dist.] 2016) provides a good example of this, along with potential dangers from failing to pinpoint each step of the analysis. In that case, a vehicle was initially stopped; the passenger was arrested on suspicion of having committed a felony; a subsequent search of the vehicle incident to that arrest revealed two laptops; and finally, police perusal of the laptops gathered further evidence. The
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defendant passenger moved to suppress the evidence, principally challenging his arrest, and secondarily challenging the search incident to the arrest and seizure of the laptops; however, the defendant only asserted ownership of the laptops in a footnote in the suppression motion, and offered no evidence on the point. After holding the arrest (and the search incident thereto) to be lawful, the court of appeals dismissed the defendant’s challenge to the search of the contents of the laptop on the basis that the defendant’s ownership (and thus standing) had not been established by competent evidence. b. Supreme Court Some basic Supreme Court cases involving issues of standing are: Katz v. U.S. 389 U.S. 347, 361 (1967) (Harlan, J., concurring). (To receive the protection of the Fourth Amendment, the defendant must have a subjective expectation of privacy, and that expectation of privacy must be one that society is “prepared to recognize as reasonable.”) U.S. v. Salvucci, 448 U.S. 83, 84 (1980) (an illegal search only violates the rights of those who have a reasonable expectation of privacy in the place being searched); and Minnesota v. Olson, 495 U.S. 91, 93 (1990) (a defendant who is an overnight guest in another’s home has a reasonable expectation of privacy and thus has standing to challenge Fourth Amendment violations).
United States v. Jones, 565 US ___, 132 S.Ct. 945 (2012) (attachment of a GPS transponder to a vehicle violates the 4th Amendment because the installation constituted a trespass against the owner’s property rights in the car; Scalia’s majority opinion held that Katz’s expectation of privacy formulation is in addition to, not instead of, the 4th Amendment rights deriving from property interests) Florida v. Jardines, 569 U.S. 1 (2013) (continuing from Jones above, a drug dog search of the accessible curtilage of a home was per se unreasonable because of the simple fact of ownership of the property along with the search being conducted in excess of the scope of the implicit invitation for people to approach the front door to knock and speak with the inhabitants). Byrd v. U.S., ___ U.S. ___, 138 S.Ct. 1518 (2018) (making explicit that the Jones and Jardines property rights analysis is in addition to Katz’s reasonable expectation of privacy
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analysis, ultimately holding that a driver in lawful possession of a rental car has a reasonable expectation of privacy in it even if not listed as an authorized driver on the rental agreement). 2. Was the Fourth Amendment Implicated? The foregoing issue of standing under which the individual must have either (1) (a) an actual, subjective expectation of privacy and (b) which is one that society is prepared to recognize as reasonable, or (2) an ownership interest in the property searched rendering the government intrusion unreasonable is a necessary predicate to implicating the Fourth Amendment. The factors involved in determining reasonableness are: (1) the nature of the individual interest in the abstract and (2) the instrusiveness of the government investigative activity. It’s basically a value judgment here: given the nature of the individual’s privacy interest, would it be inconsistent with the goals of a free society to permit this form of police activity to go unregulated? Usually, only government conduct will trigger the 4th Amendment. However, Spring v. State, 626 S.W.2d 37, 38 (Tex. Crim. App. 1982) shows how a private citizen, used by the police, can violate the Fourth Amendment (the apartment manager used a pass key to inspect Spring’s apartment). The following is a running list of recognized Searches and Seizures:
Home o Florida v. Jardines, 569 U.S. 1 (2013) (a drug dog sweep of the cartilage of a home is a search for 4th Amendment purposes). o Collins v. Virginia, __ U.S. ____, 138 S.Ct. 1663 (2018) (extending Jardines; automobile exception does not apply to search of vehicle parked on curtilage of home). Personal Papers Person o Maryland v. King, 569 U.S. 435 (2013) (DNA sampling of arrestees for “serious crimes” – and perhaps more – is not a search, but a “legitimate booking technique”). “Frisk” o Terry v. Ohio, 392 U.S. 1, 4 (1968) (holding that if an officer reasonably believes the person may be armed and presently dangerous, the officer may conduct a protective frisk, generally limited to a pat down of the outer clothing). Automobile o Chambers v. Maroney, 399 U.S. 42, 43 (1970) (holding that if the police are justified in making a warrantless search at the
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2 3
time they stop the vehicle, they may tow the vehicle to the police station and search it at a later time). o U.S. v. Ross, 456 U.S. 798, 799 (1982) (holding that if the police have probable cause to search a vehicle, they may search the entire vehicle, including the trunk and containers). o California v. Acevedo, 500 U.S. 565 (1991)2 (holding that if the police only have probable cause to search a container within a vehicle, they may search only the container). Checkpoints and Administrative Searches o Schenekl v. State, 30 S.W.3d 412, 413 (2000) (holding that a statute allowing an enforcement officer to stop and board a boat without probable cause or reasonable suspicion in order to perform a water safety check was a valid search as the heightened expectation of privacy which exists for cars does not exist for boats; random water safety checks are okay in order to facilitate recreational safety). o Holt v. State, 887 S.W.2d 16 (Tex. Crim. App. 1994) (because a governing body in Texas has not authorized a statewide procedure for DWI roadblocks, such roadblocks are unreasonable and unconstitutional unless and until a politically accountable governing body sees fit to enact nondiscriminatory constitutional guidelines regarding such roadblocks). o School Searches Telephone Issues o Katz v. U.S., 389 U.S. 347, 348 (1967)3 (holding that a person who makes a phone call from an enclosed phone booth may reasonably expect that the phone call will not be broadcast to the world). o Riley v. California, 573 U.S. 373 (2014) (holding that warrantless search of the contents of a cell phone incident to an arrest violates the Fourth Amendment). o Carpenter v. U.S., ___ U.S. _____, 138 S.Ct. 2206) (holding that cell phone subscribers have an expectation of privacy in cell site location information (CSLI) held by their cell phone companies, and that police must obtain a warrant to access such records, rather than a mere subpoena). Luggage o U.S. v. Garcia, 849 F.2d 917 (5th Cir. 1988) (holding that a border patrol agents’ squeeze and sniff of defendant’s suitcase after removing it from the airport baggage area was not a search). o U.S. v. Lovell, 849 F.2d 910 (5th Cir. 1988) (holding that a border patrol agent’s removal of a defendant’s bag from an airport baggage area conveyor belt, his squeeze of the bag to
Ross, 456 U.S. 798, 799 (1982), and Acevedo, 500 U.S. 565 (1991), deal with scope questions. But see U.S. v. White, 401 U.S. 745 (1971).
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procure a scent, and his subsequent sniff of that bag was not a search or seizure). o U.S. v. Bond, 167, F.3d 225, 226 (1999) (holding that a border patrol agent’s squeeze and manipulation of defendant’s bag, which was in the compartment above defendant’s seat on a bus, to detect drugs, was not a search). Containers o Riley v. California, 573 U.S. 373 (2014) (holding that warrantless search of the contents of a cell phone incident to an arrest violates the Fourth Amendment). o United States v. Morton, 984 F.3d 421 (5th Cir. 2021) (holding that search of a cell phone containing data requires a warrant supported by PC for each type of data to be searched for; initial arrest of defendant was for personal use of controlled substances, and no reasonable officer would think photos would contain relevant evidence, making their perusal and later use in a child pornography prosecution illegal). Curtilage IF physical intrusion o Florida v. Jardines, 569 U.S. 1 (2013). o U.S. v. Dunn, 480 U.S. 294, 296 (1987). Office o O’Connor v. Ortega, 480 U.S. 709, 711 (1987) (holding a warrantless search of a government employee’s desk and files may be conducted based on work-related need or suspicion of work-related misconduct). Blood Test o Schmerber v. California, 384 U.S. 757, 758 (1966) (holding that taking a blood sample by use of common medical techniques is a reasonable intrusion). o Missouri v. McNeely, 569 U.S. (2013) (involuntary blood draws constitute searches and do not per se fall within the exigent circumstances exception). o Mitchell v. Wisconsin, 588 U.S. ____ (2019) (exigent circumstances exception allowed a blood draw from an unconscious driver without a warrant; note that this is a plurality holding, with Thomas concurring in the judgment only on the facts of this case, making this a fertile area for litigation) Elimination of Waste (urinanalysis) o National Treasury Employees Union v. Von Raab, 489 U.S. 656, 659 (1989) (holding that the government can require persons applying for Customs positions involving drug interdiction to submit to drug testing). o Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 606 (1989) (holding that the government can require
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railway employees who have been involved in an accident to submit to drug testing). Breathalyzer o Skinner supra.
3. Was the Fourth Amendment Violated? Now we get to the really sticky part. The guts of the query here is how much protection does the 4th Amendment provide? Another way of thinking about, practically, is can the Government justify its intrusion as reasonable? The general protections that the Government should respect in order to make a search or seizure reasonable are the requirements of 1) a warrant, 2) probable cause, and 3) execution in a reasonable manner. By and large, unless you find a huge gaffe in the affidavit of the search warrant, your client is going to be out of luck. So long as there is a neutral and detached magistrate, the warrant describes with particularity the items to be seized and the place to be searched, and states probable cause with sufficiency, veracity and particularity, it will pass appellate scrutiny. If the defendant makes a state constitutional argument, then the proper inquiry is the reasonableness of the search or seizure under the totality of the circumstances; whereas if the defendant makes a statutory argument, the proper inquiry is whether there was probable cause with respect to that individual and whether the arrest fell within one of the statutory exceptions.
C. Terry Stops One of the most important exceptions to the probable cause requirement, articulated in Terry v. Ohio, 392 U.S. 1, 4 (1968), with which facts you should be intimately familiar, is found in the stop and frisk situation. A valid Terry stop permits a limited frisk or pat-down of the outer clothing of a suspect for whom reasonable suspicion exists. The frisk may accompany the stop or temporary investigative detention when police have a reason to believe that the suspect is armed and dangerous. This belief, of course, is in addition to the requisite reasonable suspicion that criminal activity is afoot which must precede the initial stop. An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500 (1983). Also, unlike “on view” arrests under CCP 14.01(a) which authorizes a private person to make an arrest, in Garner v. State, 779 S.W.2d 498, 500 (Tex.App.—Fort Worth 1989, pet. ref’d) the court found no authority for a private person to
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make an investigative Terry stop.
Remember do not automatically assume that suspicion
necessarily justifies a detention! 1. Person The scope of a proper frisk remains tied to the purpose the frisk was intended to serve, and because the Terry stop is initially limited to the discovery of weapons, items that do not feel like weapons cannot be recovered unless the officer can determine by “plain feel” that the object is contraband of another sort. See Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 2133 (1993) (holding that if an officer lawfully conducting a frisk feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; but the court held the search unlawful because the officer had to squeeze, slide, and manipulate the object in the suspect’s pocket to determine it was crack cocaine). U.S. v. McKinney, 980 F.3d 485 (5th Cir. 2020) gives an excellent step-by-step discussion of analyzing Terry stops. Remember that while reasonable suspicion is not a high bar, it still has to be there before officers can engage in such a detention, and if suspicion is lacking on a totality of the circumstances, then the ancillary questions going along with it – such as whether a frisk subsequent to the detention is lawful – are automatically subsumed in the initial illegality. In McKinney, a defendant convicted for being a felon in possession of a firearm successfully challenged an initial Terry stop of himself and others which officers had attempted to justify principally on the basis that shootings had taken place in the locale in the recent past. The court rejected the Government’s arguments regarding the defendant’s presence in a “high-crime area” and wearing clothing that happened to be colored the same as a color associated with a particular gang as coincidental and of low persuasive value. Davis v. State, 61 S.W.3d 94, 96 (Tex.App.—Amarillo 2001) (holding that defendant’s actions in walking to and from a group of people gathered in a yard, at midnight, in a high crime area, while appearing nervous, did not provide reasonable suspicion to justify police officer’s stop and frisk of defendant). Salcido v. State, 758 S.W.2d 261, 262 (Tex. Crim. App. 1988) (en banc). Based on a call from an informant, police learned that appellant was selling heroin at a car wash facility. Id. When the police arrived, appellant did not appear to be using the car wash, but was sitting in an area with other dry cars talking to two other people with his car door open. The officer did not
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see anything that appeared to be a sale and did not see appellant’s hands or arms outside of the vehicle. When the police approached appellant, he tried to run and threw down heroin. In holding that appellant’s motion to suppress should have been granted the court found that appellant was illegally detained without specific and articulable facts to justify the stop, and he did not voluntarily abandon the contraband in question but rather was discarded as a spontaneous reaction to police conduct. In Hawkins v. State, 758 S.W.2d 255 (Tex. Crim. App.1988), which the court relied on in Salcido, 758 S.W.2d 261, 262 (Tex. Crim. App. 1988), an officer saw defendant standing in front of a nightclub in a high crime area and near a parking lot where drugs were frequently found by the police. The officer knew the defendant had a reputation for dealing drugs, but he did not have a warrant, a tip, information, and had seen no criminal activity. As the defendant started walking the officer called him, but the defendant continued to walk. The officer called for assistance, and a second officer closed in on defendant as the first officer approached from the opposite direction. The defendant then threw a paper bag in the ditch and began to run. The court found that Hawkins had been illegally stopped due to a lack of specific and articulable facts to justify the detention and found that the abandonment of the contraband was a direct result of the police misconduct. As such, the taint of the officers’ illegal conduct was not removed, and the evidence should have been suppressed. Davis v. State, 829 S.W.2d 218, 219 (Tex. Crim. App. 1992) (en banc) (holding that although the officer’s investigatory stop of the defendant to determine whether he was selling drugs was legal, but the officers’ subsequent Terry frisk of defendant, revealing no weapons but only a matchbox which the officer opened discovering cocaine, was illegal). 2. Automobile Whren v. U.S., 517 U.S. 806, 808 (1996) (holding that temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a seizure of ‘persons’ within the meaning of the Fourth Amendment). Rodriguez v. U.S., 575 U.S. ___ (2015) (holding that extraneous investigation during an otherwise lawful traffic stop becomes illegal if it “measurably extends” the original reason for the stop, unless independent probable cause is developed in the interim).
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Byrd v. U.S., ___ U.S. ___, 138 S.Ct. 1518 (2018) (driver in lawful possession of rental car has reasonable expectation of privacy in it even if not listed as an authorized driver on the rental agreement). Klare v. State, 76 S.W.3d 68, 70 (Tex.App.-Houston [14th Dist.] 2002, pet. ref’d). Klare was convicted of DWI. Officer noticed defendant’s car parked off the highway behind a strip shopping center, facing a 24-hour convenience store at about 2:30 a.m., so he went to investigate. The officer lost sight of defendant, whereupon he proceeded onto the adjoining road, and within about 15 seconds, came upon a car he believed to be the one previously parked at the store and arrested the defendant. The officer believed he was entitled to stop the defendant because of the time of day, the closed businesses, previous burglaries in the shopping center in the past, he needed to identify the truck, and was concerned that someone inside the truck might have needed help under the community care-taking exception to lack of probable cause. The court found these reasons insufficient to believe that the defendant was or was about to be engaged in criminal activity, he was not justified in conducting an investigatory stop of the defendant. Wolf v. State, 137 S.W.3d 797, 799 (Tex.App.—Waco 2004, no pet.) (pre-Rodriguez, holding that because the initial detention was longer than reasonably necessary to effectuate the purpose of the stop, that is, to warn Wolf about the defective tag lamp, and because the prolonged detention was not supported by reasonable suspicion, the prolonged detention violated the Fourth Amendment; Wolf’s subsequent consent to a search of the truck did not attenuate the taint of the unlawful detention). Koethe v. State, 152 S.W.3d 54, 57 (Tex. Crim. App. 2004) (pre-Rodriguez, holding that although it is reasonable to perform a warrant and license check, a warrant check cannot be used solely as a means to extend a detention once the reasonable suspicion forming the basis for the stop has been dispelled; but in this case, officer’s continued detention of defendant after determining defendant was not intoxicated, to await results of a computer warrant check and then to await results of whether defendant was in possession of stolen property, was reasonable). Thomas v. State, 420 S.W.3d 195 (Tex. App. – Amarillo 2013). On remand from the CCA after it reversed the Ct. App.’s initial affirmance. Held that prolonged detention after the officer (DPS trooper) had issued a warning citation for the original traffic violation violated the Fourth Amendment and the evidence seized as a result of a subsequent dog sniff should have
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been suppressed. Specifically distinguished Brigham, 382 F.3d 500 (5th Cir. 2004), discussed separately. Reyes v. State, 603 S.W.3d 543 (Tex.App. – El Paso 2020) (holding that failure to drive in a single lane of traffic is an offense when practical to do so is an offense, and that affirmatively demonstrating that a driver’s failure to maintain a single lane is unsafe is not a prerequisite, but rather constitutes defining a separate prohibited act, and that officers’ observation of the appellant straddling the stripe between two lanes for a substantial period constituted reasonable suspicion supporting the subsequent stop). State v. Colby, 604 S.W.3d 232 (Tex. App. – Austin 2020, no pet.) (court affirms trial court’s suppression of intoxication evidence obtained after stop of appellant for stopping in an intersection while yielding to an officer who had entered the intersection from a cross street, finding that statutory exception to prohibition on stopping in an intersection to avoid “conflict with other traffic” was clearly implicated, and that officer should have considered this exception in determining whether appellant had actually committed a traffic infraction).
D. Exceptions to the Warrant Requirement 1. Arrest Without a Warrant Although the federal constitution has been interpreted to permit a warrantless arrest in a public place even if the officer could have easily obtained a warrant, United States v. Wilson, 423 U.S. 411 (1976), in Texas an arrest without a warrant must be justified by the existence of explicit statutory authority per Dejarnette v. State, 732 S.W.2d 346, 349 (Tex. Crim. App. 1987). The main provisions permitting warrantless arrests are found in Code of Criminal Procedure Chapter 14 and Article 18.16. In Torres v. State, 182 S.W.3d 899, 900 (Tex. Crim. App. 2005) (en banc) (overruling Castillo v. State, 818 S.W.2d 803 (Tex. Crim. App. 1991)), appellant drove his car into the front porch of a house whereupon a DPS officer was called in to investigate the accident despite the fact that two local officers were already on the scene when the DPS officer arrived.
The two
local officers told the DPS officer that they believed appellant was intoxicated. DPS officer did not perform any FST’s nor did he ask appellant if he had been drinking, but rather only generally questioned appellant who simply explained that he was unfamiliar with the road. DPS officer arrested appellant and took him to the hospital, where he was treated, after he noticed he was
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favoring one arm. DPS officer then took appellant to the station where he refused a breath test and was subsequently arrested for DWI. In noting that probable cause must be based on facts rather than opinions, the court noted that “opinions, even those of police officers, cannot be transformed into facts without supporting evidence” which was absent in this case. “It is true that law enforcement training or experience may factor into a reasonable-suspicion analysis…But reliance on this special training is insufficient to establish reasonable suspicion absent objective factual support.” 2. Search Without a Warrant a. Search Incident to Arrest Keep in mind that in order for a search without a warrant to be valid under the search incident to arrest exception to the warrant requirement, there must first be a lawful arrest. Williams v. State, 726 S.W.2d 99 (Tex. Crim. App. 1986) (holding the fact that the search incident to arrest preceded the formal custodial arrest by a few moments is of no consequence under Rawlings v. Kentucky, 448 U.S. 98, 100 (1980)). Also, the only traffic offenses for which a citation must be issued in lieu of custodial arrest are speeding and violation of the open container law, and even then an arrest may be made if the violator refuses to sign the citation. Arizona v. Gant, 556 U.S. 332 (2009), also modifies the extensive “searches incident to arrest” commonly executed by officers to restrict the search to one justifiable by a need for officers to protect themselves against an actual and continuing threat by the arrestee or in order to preserve evidence directly related to the offense of arrest or some other offense that officers have probable cause to believe has been committed against tampering. For vehicles, this means that officers may search a vehicle only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search, or that the vehicle contains evidence of the offense of arrest. b. Exigent Circumstances and the Protective Sweep Even if the warrant is valid, it does not mean the police can stop and search everyone on the premises, which is a common Task Force tactic for “routine officer safety.” The Texas Court of Criminal Appeals has recognized the protective sweep of premises incident to an arrest in order to discover persons present who may endanger the safety of the officers on the scene. Reasor v. State, 12 S.W.3d 813, 814 (Tex. Crim. App. 2000) (holding that when conducting an in-home arrest, an officer may sweep the house only if he possesses an objectively reasonable belief, based on specific and articulable facts, that a person in that area poses a danger
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to that cop or to other people in the area, but the protective sweep must stay within the appropriate scope and may only last long enough to dispel the reasonable suspicion of danger). Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 2589 (1981) (holding a valid search warrant implicitly carries with it the limited authority to detain the occupants at the premises while a proper search is conducted). For the exigent circumstances exception to the warrant requirement to apply, reasonable suspicion must exist to believe that knocking an announcing is dangerous or futile, or that effective investigation would be inhibited, for example, by destruction of the evidence. In Grimaldo v. State, 223 S.W.3d 429 (Tex. App.—Amarillo 2006, no pet.), the police arranged to purchase cocaine through a confidential informant. During the buy-bust, the officer signaled for the sellers to be arrested. At the same time another arrest was taking place at a nearby house which officers were watching. One officer watching the house saw appellant exit the house, approach the street, look up and down it, cross to the other side, walk towards another house, and return several minutes later. The other officer watching the house did not see the aforementioned activity because he had gone around the corner to put on a bulletproof vest because he was near the “target location” and already knew that he would be entering the house before he learned of appellant’s activity. Another officer confirmed that the police decided to enter the house when they learned the drugs in question were sold from it. Thus, the police approached the house, knocked twice without response, forcibly entered, and then conducted a protective sweep but found no drugs. The officers placed all occupants in handcuffs and then took appellant to a back bedroom where he subsequently inculpated himself and gave consent to search. In determining that the taint of appellant’s consent had not sufficiently dissipated, the court considered whether 1) the temporal proximity between the unlawful seizure and consent given was close; 2) the unlawful seizure brought about police observation of the particular object for which they sought consent to search; 3) the illegal seizure was flagrant police misconduct; 4) the consent was volunteered rather than requested by the officers; 5) the detainee was made fully aware of the fact that he could decline to consent to the search; and 6) the purpose underlying the seizure was to obtain consent. Remembering McNairy v. State, 835 S.W.2d 101, 107 (Tex. Crim. App. 1991) (en banc) and Barocio v. State, 158 S.W.3d 498, 500 (Tex. Crim. App. 2005), the court noted that “exigent circumstances justifying a warrantless entry into a home include 1) rendering aid or assistance to persons whom the officers reasonably believe are in need of
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assistance, 2) preventing the destruction of evidence or contraband, 3) protecting the officers from persons whom they reasonably believe to be present, armed, and dangerous, Estrada v. State, 154 S.W.3d 604, 608 n.12 (Tex. Crim. App. 2005), and 4) an increased likelihood of apprehending a suspect.” In McNairy v. State, 835 S.W.2d 101, 102 (Tex. Crim. App. 1991) (en banc), the Organized Crime Unit responded to a call from other officers that they had been called to a disturbance involving burning vehicles and found a quantity of drugs and paraphernalia. Upon arrival, officers secured consent of the owner of the premises to search whereupon they discovered a methamphetamine lab. The officers then searched the land behind the residence and came upon a mobile home from which they determined the smell of methamphetamine was emanating. As the officers came upon the mobile home, they heard the back door of the trailer swing open and people running into the nearby brush. Thus, one officer went to the front door and another went to the back, and subsequently entered the trailer whereupon they saw chemicals associated with the manufacture of methamphetamine.
The officers secured the trailer,
questioned the owner of the first house, and learned for the first time that the trailer had been rented to defendant.
In affirming defendant’s conviction for aggravated possession of
methamphetamine, the court held that probable cause existed at the time of the initial entry into defendant’s house, and exigent circumstances existed to obviate the need for a search warrant and justify the initial warrantless entry into defendant’s home. The court went on to note that “situations creating exigent circumstances usually include factors pointing to some danger to the officer or victims, an increased likelihood of apprehending a suspect, or the possible destruction of evidence.” The following are factors relevant to a determination by the searching officers that evidence might be destroyed or removed before a search warrant can be obtained: 1) the degree of urgency involved and the amount of time necessary to obtain a warrant; 2) reasonable belief that the contraband is about to be removed; 3) the possibility of danger to the police guarding the site of the contraband while a search warrant is sought; 4) information indicating the possessors of the contraband are aware that the police are on their trail; and 5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in drug trafficking. Parker v. State, 206 S.W.3d 593 (Tex.Crim.App. 2006) (holding that the totality of the circumstances, including the fact that officers could smell the odor of marijuana at the door to a
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residence, justified the warrantless entry into that home because they had probable cause to believe that someone there was in possession of marijuana). Pool v. State, 157 S.W.3d 36, 39 (Tex.App.—Waco 2004, no pet.) (memorandum opinion). An unknown confidential informant told the police that he had seen several people walking around appellant’s house along with several propane tanks in the yard and that he believed appellant was probable cooking methamphetamine. Officers initiated a “knock and talk” with appellant, and while at the front door, the officers smelled a chemical odor. After appellant answered the door, other policemen walked around a partial fence to appellant’s backyard where the officers smelled chemicals, saw propane tanks, hoses hooked to the tanks, coffee filters, a cooler with duct tape, and a container with an unknown liquid next to a beige travel trailer. At this point the cops went and obtained a search warrant. Because the court found no probable cause for the issuance of a warrant to search appellant’s house, any exigent circumstances would not justify the warrantless entry. Johnson v. State, 47 S.W.3d 701, 704 (Tex.App.—Houston [14th Dist.] 2001, pet. granted) (overruled on other grounds), is similar to Pool, 157 S.W.3d 36, 39 (2004). In Johnson, an unknown informant told the police that he had looked through a hole in appellant’s fence and saw him manufacturing crack cocaine, so the officers went to investigate. The officers first went to the back of the house and looked through the slats in appellant’s fence, and from this vantage point they could see into appellant’s window whereupon they saw a box of baking soda and a triple beam balance scale. One officer then went to conduct a “knock and talk” while the other stayed out back and saw appellant appear in the window, look surprised, and then dart away. The officer, stating he was afraid for his safety, entered the backyard, looked through the glass patio door, and saw crack cocaine. The court found that the officer had no probable cause to justify the entrance into appellant’s yard because the scale and the baking soda were both legal items, neither of which corroborated the informant’s information. Further, the fact that appellant darted away from the window after looking surprised was not illegal and not unusual given the late hour according to the court. Bedford v. State, 131 S.W.3d 514, 515 (Tex.App.—Waco 2004, pet. dism’d) (noting that the burden of showing a justification for a no-knock entry is not high and affirming the trial court’s decision to deny defendant’s motion to suppress, the appellate court held that the
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officer’s no knock-entry was justified by the officers’ reasonable belief that evidence would have been destroyed if they had knocked and announced their presence). Ramirez v. State, 105 S.W.3d 730, 735 (Tex.App.—Austin 2003, no pet.) (acknowledging that although the protective sweep was legal, it did not allow the officer to search the cooler inside the garage, where the only items of contraband were found, because the officer could not reasonably believe that a person might be found in the cooler). In Kaupp v. Texas, 538 U.S. 626, 123 S.Ct. 1843, 1844 (2003) (per curium), after a 14year-old girl disappeared the police learned that she had been in a sexual relationship with her half brother, who confessed to the killing and had been in the company of Kaupp on the day of the girl’s disappearance. Id. The police were not able to get an arrest warrant for Kaupp, but the detectives nevertheless decided to bring him in for questioning. Id. at 1845. Thus, at 3:00 a.m. the officer arrived in plainclothes at Kaupp’s house, were let in by Kaupp’s father, went into Kaupp’s bedroom, awakened him with a flashlight, identified himself, and told Kaupp it was time to talk, whereupon Kaupp said “okay.” Id. The other officers then handcuffed and led Kaupp, dressed in boxer shorts and a shirt with no shoes, to the patrol car. Id. On the way to the station, the officers stopped for 5 or 10 minutes at the place where the girl’s body had been found and then took Kaupp to an interview room where he eventually confessed. Id. In finding Kaupp’s confession had to be suppressed, the court noted that “although certain seizures may be justified on something less than probable cause, see e.g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), we have never sustained against Fourth Amendment challenge the involuntary removal of a suspect from his home to a police station and his detention there for investigative purpose absent probable cause or judicial authorization.” Id. at 1846. Igboji v. State, 607 S.W.3d 157 (Tex. App. – Houston [14th Dist.] 2020, pet. granted) After defendant posted a Snapchat video of officers at the scene of and in the process of investigating a robbery, officers call the defendant in three days later for a formal statement, at which point a detective requested consent to go through defendant’s cell phone; when defendant refused, the detective seized defendant’s cell phone without a warrant “to preserve whatever was on the device.” Two days later, the detective applied for a warrant to search the phone. Court found that the seizure was nonconsensual (defendant merely complied with law enforcement instruction, and did not affirmatively consent) and that the exigent circumstances exception was
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not applicable, given the delay in calling the defendant in and lack of evidence that the defendant was affirmatively trying to destroy evidence.
c. Plain View Joseph v. State, 807 S.W.2d 303, 305 (1991) (en banc) (holding that for the plain view exception to the warrant requirement to attach, the following two requirements must be met: 1) the officer must be in a proper position to view the item or lawfully be on the premises; and 2) the fact that the officer has discovered evidence must be immediately apparent). Chapman v. State, 2005 WL 1994294, at *1 (Tex.App.—Fort Worth) (holding the plain view exception to the warrant requirement did not apply to all of the evidence seized from appellant’s residence including dry ice and two small containers, the presence of which cannot be said to be illegal, because the officer deviated from appellant’s front door when serving the arrest warrant and did not have a right to be where he was when he viewed the particular items). Kyllo v. U.S., 533 U.S. 27, 121 S.Ct. 2038, 2040 (2001) (holding that where the government uses a device such as an infrared camera that is not in general public use to explore details of the home that would previously have been unknowable without physical intrusion, without regard to whether the details were directed solely to unlawful activity or which captured lawful activity as well, the surveillance is a “search” and presumptively unreasonable without a warrant). Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 838 (2005) (holding that where a lawful traffic stop was not extended beyond the time necessary to issue a warning ticket, another officer’s arrival at the scene while the stop was in progress and use of a well-trained narcotics dog around the exterior of appellant’s car was not a search for Fourth Amendment purposes). United States v. Dellas, 355 F. Supp. 2d 1095, 1096 (2005) (memorandum opinion) (noting the significant technological differences between the thermal imaging device used in Kyllo and the night vision goggles used to search appellant’s property, the court held that the use of night vision goggles was not violative of the Fourth Amendment). Nicholas v. State, 502 S.W.2d 169 (Tex. Crim. App. 1973) (holding that where officer’s original entry into appellant’s apartment was to arrest him for being a fugitive from another state, the officers’ examination of film negatives that were beyond the appellant’s immediate control
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by holding them up to the light, examination and seizure of such negatives exceeded the limits of search incident to arrest, and the seizure could not be justified under the “plain view” doctrine). Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 1151 (1987) (holding that probable cause is required in order to invoke the “plain view” doctrine, and where officers moved stereo equipment in order to locate and subsequently record the serial numbers to determine if such equipment was stolen, the officer’s actions in moving the equipment were not supported by probable cause even though the officer was lawfully present in the apartment where the equipment was located). State v. Steelman 125 SW3d 447, (Tex.Crim.App. 2002)(holding that the plain odor of marijuana standing alone, does not authorize a warrantless search and seizure in a home, and an arresting officer must have specific knowledge to believe that the person to be arrested committed the offense; since the officers had no idea who was smoking or possession the pot, they lacked probable cause to believe that the defendant (or any other specific person) was committing the offense in their presence); but see Parker v. State, 206 S.W.3d 593 (Tex.Crim.App. 2006), holding that similar facts give rise to probable cause to believe someone in a home was in possession of marijuana, and that totality of the circumstances must be examined).
d. Inventory Searches South Dakota v. Opperman, 428 U.S. 364, 365 (1976) (holding that once the officer was lawfully inside the vehicle to secure the personal property in plain view it was not unreasonable to open the unlocked glove compartment, to which vandals would have had ready and unobstructed access once inside the vehicle and in which the subject marijuana was discovered). e. “Open Fields” Doctrine State v. Hobbs, 824 S.W.2d 317, 318 (Tex.App.—San Antonio 1992, pet. ref’d) (reading the Texas exclusionary rule literally to require that “no evidence obtained…in violation of any provisions of the Constitution or laws of the State of Texas is admissible,” the court, without discussion of the open fields doctrine, found no exception to the trespass statute for law enforcement officers and affirmed the trial court’s suppression of the evidence). f. Checkpoints and Administrative Searches
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Schenekl v. State, 30 S.W.3d 412, 413 (2000) (holding that a statute allowing an enforcement officer to stop and board a boat without probable cause or reasonable suspicion in order to perform a water safety check was a valid search as the heightened expectation of privacy which exists for cars does not exist for boats; random water safety checks are okay in order to facilitate recreational safety). Holt v. State, 887 S.W.2d 16, 17 (Tex. Crim. App. 1994) (en banc) (holding that because a governing body in Texas has not authorized a statewide procedure for DWI roadblocks, such roadblocks are unreasonable and unconstitutional unless and until a politically accountable governing body sees fit to enact nondiscriminatory constitutional guidelines regarding such roadblocks). E. Consent: Legal Stop + Consent but Involuntary We don’t usually miss the issue of Fourth Amendment application. However would you skip researching a motion to suppress if both the client and the Assistant. D.A. handling the case tells you that the defendant was stopped for a traffic offense and soon thereafter gave consent search that turned up some drugs? A lot of people would and do, and it’s understandable. After all, When v. U.S., 517 U.S. 806, 808 (1996) tells us that regardless of the officer’s subjective intentions he can stop any vehicle for any offense he can think of as means for making another investigation. Moreover, most judges believe that consent washes away all the taint of any prior illegality (USUALLY, but not always). 1. Fifth Circuit Evolving Fifth Circuit decisions held, similarly to Rodriguez v. U.S., 575 U.S. 348 (2015), that even if the initial basis for a stop is lawful, once that basis dissipates, continued detention is unlawful and can make the otherwise seemingly ‘voluntary’ (not beaten out of) consent the fruit of the poisonous tree. The unreasonable delay is usually due to continued questioning by the officer unrelated to the initial basis for the stop (see Fishing with Bill Dance). The situations encountered in this line of cases dealt with something of a Catch-22 situation for officers: if an officer requested consent to search while the detention was ongoing, in most cases, that consent would be tainted by temporal proximity to the original stop, so officers began completing their traffic stop before asking for consent, attempting to convert the encounter from a detention to a voluntary encounter.
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Initial cases in this situation, such as U.S. v. Dortch, 199 F.3d 193, 195 (5th Cir. 1999) and U.S. v. Jones, 234 F.3d 234, 236 (5th Cir. 2000), focused on unrelated questioning/consent to search made after the officer’s computer check came back in, with the Fifth Circuit holding the respective searches unlawful on the basis that there was no PC for continued detention at that point. After these initial cases, the en banc Fifth Circuit decided U.S. v. Brigham, 382 F.3d 500 (2004). Brigham involved legitimate stop for following too closely; prior to conducted his computer checks and issuing a citation, the DPS trooper asked about eight minutes worth of “where are you going”-type questions unrelated to the basis of the stop. After the panel reversed, the en banc Fifth Circuit vacated the panel opinion and affirmed the conviction, holding that the questions about travel plans and itinerary were within the scope of detention for following too closely when neither the driver nor passenger were owner or lessee of the vehicle, and where the officer got inconsistent answers. U.S. v. Hernandez, 279 F.3d 302, 304 (5th Cir. 2002) (holding that where the first search (by manipulation) of the defendant’s suitcase was illegal, the second search to which defendant consented did not remove the taint of the illegal first search because of the close temporal proximity of the two searches). U.S. v. Valadez, 267 F.3d 395, 396 (5th Cir. 2001) (holding that continued detention of defendant was illegal after officer realized that defendant had not committed a traffic violation and that the window tint was legal). U.S. v. Hunt, 253 F.3d 227, 229 (5th Cir. 2001) (holding that the officer’s standard practice of searching a stopped car if the occupant leaves the vehicle is violative of the Fourth Amendment). U.S. v. Portillo-Aguirre, 311 647, 650 (5th Cir. 2002) (holding that when officers detain travelers after the legitimate justification for a stop has ended, the continued detention is unreasonable, and any further questioning beyond requesting documentation evidencing a right to be in the United States must either be based on consent or probable cause). U.S. v. Dortch, 199 F.3d 193, 195 (5th Cir. 1999). Defendant was detained and his rental car papers and driver’s license were confiscated by the officer in order to do a computer search. The officer did not return the documents after the search was completed, so the defendant was not free to go. The officer informed defendant that he would have to wait for the arrival of a drug dog. The court determined that the purpose of the computer check was to screen for
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warrants or determine if the car was stolen; once the computer check came back negative, defendant should have been released. U.S. v. Jones, 234 F.3d 234, 236 (5th Cir. 2000) (holding that officers should have ended the detention when the dispatcher notified them that defendants’ records were clean, which was three minutes before the officers sought consent to search). 2. Supreme Court Ohio v. Robinette, 519 U.S. 33, 34, 117 S.Ct. 417, 419 (1996). Officer stopped appellant for speeding, ran a warrant and license check that came back clean, turned on his car camera, asked appellant to get out of the car, issued a verbal warning, and returned appellant’s license. At this point, the officer inquired as to whether appellant was carrying any illegal contraband in his car, to which appellant replied in the negative. The officer asked if he could search the car, appellant consented, and a search revealed drugs. In affirming appellant’s conviction, the court held that for purposes of the Fourth Amendment, it would be “unrealistic to require police officers to always inform detainees that they are free to go before a consent to search may be deemed voluntary.” Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (rejecting appellant’s argument that consent could not be valid unless the defendant knew that he had a right to refuse the request). But see Rodriguez v. United States, 575 U.S. 348 (2015); in that case, an officer stopped appellant for a traffic violation, and subsequently kept him detained on the side of the road while waiting for a canine unit to show up to conduct a dog sniff. The Court held that a traffic stop is more like a Terry stop than an arrest, and that the length of such a temporary detention is determined by the amount of time needed to address the original reason for the stop. Extraneous investigation can take place simultaneously with this detention so long as it does not extend the stop, and authority to continue the detention dissipates when the ordinary tasks tied to the traffic stop are or should reasonably have been completed, and continued detention is unlawful unless independent reasonable suspicion is developed. 3. Texas Court of Criminal Appeals Davis v. State, 947 S.W.2d 240, 241 (Tex. Crim. App. 1997) (en banc) (concluding that the purpose of the investigative detention was effectuated when the officers determined that Davis was not intoxicated; and as to the continued detention, when viewed in an objective
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fashion, no known fact or rational inferences from those facts, would support the conclusion that Davis was engaged in or soon would engage in criminal activity) (noting that the articulable facts used by the officer must create reasonable suspicion of 1) some activity out of the ordinary that is occurring or has occurred, 2) some suggestion to connect the detainee with the unusual activity, and 3) some indication the unusual activity it related to crime). When the basis for the stop is over either because it washes out (window tint WAS legal, after all) or because they are kind enough to just give the motorist a warning, the detention becomes illegal. This is especially so when the officer still has the person out of the car surrounded on all sides by the trooper’s car, the trooper, the person’s own car and another officer. Often the officer will still have the person’s driver’s license and insurance card on his clipboard as he seeks the consent. The clock on the in-car video can be valuable as can the video itself. F. Search Warrant Reversals Franks v. Delaware, 438 U.S. 154, 155 (1978) (holding that there must be a truthful showing in the affidavit). A defendant has the right to challenge the veracity of an affidavit upon which a warrant has been issued, but the attack must be more than conclusory and must point out specifically and with support that portion of the affidavit which defendant claims is false. If when these requirements are met and that portion of the warrant is set aside, the remaining content is sufficient to support probable cause, the warrant stands. If the remaining portion of the warrant does not support probable cause, then defendant is entitled to a hearing. If in the hearing it is determined that a false statement was included in the warrant, then the fruits of the search are tainted and must be suppressed. Ybarra v. Illinois, 444 U.S. 85, 87 (1979) (holding that probable cause must be particularized with respect to the individual whose privacy is invaded). This is the case with the great and often quoted language “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Kann v. State, 694 S.W.2d 156, 158 (Tex.App.—Dallas 1985, pet. ref’d) (holding the warrant invalid because the officer obtained his view of the marihuana in Kann’s backyard by tresspassing onto her carport (curtilage) to look through a hole in her fence).
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U.S. v. Cole, 628 F.2d 897, 898 (1980) (holding that a pat down search of Cole, who drove up to the place the police were already running a warrant, could not be justified merely because he was present). State v. Lippert, 664 S.W.2d 172 (Tex. Crim. App. 1984) (reversing a POCS conviction where police found drugs on Lippert when they stopped and frisked him as he walked into a house where the officers were executing a search warrant). State v. Bell, 845 S.W.2d 454, 456 (Tex.App.—Austin 1993, no pet.) (holding that a pat down that turned up dope on appellant who was sitting on the front porch of a house and hollered “police, police” when officers approached the house was unlawful). The officer’s knowledge that it was common for persons dealing in narcotics to carry weapons did not justify the stop and frisk of the defendant. Morris v. State, 62 S.W.3d 817, 819 (Tex.App.—Waco 2001, no pet.) (search warrant affidavit was stale); see also Rowell v. State, 14 S.W.3d 806, 808 (Tex.App. –Houston [1st Dist.] 2000, pet. granted) (evidence was suppressed for lack of probable cause because the warrant was issued six months after the transaction upon which affidavit was based occurred); and Sherlock v. State, 632 S.W.2d 604, 605 (Tex. Crim. App. 1982) (evidence should have been suppressed because the search warrant and affidavit were defective because the facts upon which they were based were not sufficiently closely related to the time of issuance to satisfy probable cause). State v. Baldwin, 614 S.W.3d 411 (Tex. App. – Houston [14th Dist.] 2020, pet. granted) (en banc). (affirming trial court’s orders suppressing cell phone evidence discovered as a result of affidavit showing only that two individuals were involved in a murder, along with boilerplate language about the various uses of cell phones; en banc court rejected the idea that any time an offense is committed by more than one person, cell phones must necessarily have been used). (Note particularly that the CCA has granted review of this case.)
1. Conclusory Statement in Affidavit Lowery v. State, 843 S.W.2d 136, 138 (Tex.App.—Dallas 1992, pet. ref’d). The search of appellant’s house violated the Fourth Amendment because nothing in the affidavit supported the reliability, credibility, or basis of knowledge of the “persons on the street” who provided the officers with information concerning criminal activity (that drugs were present or being dealt in
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appellant’s house). The court found no basis for crediting each level of hearsay in the tip, thus the hearsay-upon-hearsay in the affidavit does not support a finding of probable cause. Barraza v. State, 900 S.W. 2d 840, 841 (Tex.App.—Corpus Christi 1995, no pet.). Appellant’s conviction for misdemeanor possession of marihuana was reversed because the search warrant lacked probable cause. The search warrant contained only a mere conclusory statement regarding the reliability of the informant, nothing in the affidavit demonstrated how the informant obtained her knowledge, or whether the informant had previously given information which had turned out to be reliable. 2. Warrant Description of the Property Insufficient Cannady v. State, 582 S.W.2d 467, 468 (Tex. Crim. App. 1979). “Where premises sought to be searched are described in search warrant by certain street number, such a description will not authorize a search of some other street number.” However, in this case the search of the adjoining office was reasonable, even though the addresses were different, because officers observed appellant and others moving from one office to the other. State v. Chavarria, 992 S.W.2d 22, 23 (Tex.App.—Houston [1st Dist.] 1997, pet. ref’d). The State appeals defendant’s motion to suppress. The court found the motion to suppress was properly granted because the warrant contained an address that differed slightly from appellee’s address, and the description of the home differed from appellee’s home. The officers relied solely on the language of the warrant, and failed to make any further inquiry prior to the search. State v. Wood, 828 S.W.2d 471, 472 (Tex.App.—El Paso 1992, no pet.) (recognizing that defendant met the burden of establishing that the official conduct was not proper by establishing that “fiber evidence” taken from defendant’s vehicle was not mentioned in the search warrant and that the State failed to prove that the search was permissible under an exception to the warrant requirement or was reasonable under the circumstances). Lamb v. State, 603 S.W.3d 152 (Tex. App. – Texarkana 2020, no pet.) Okay, this isn’t exactly an insufficient description of “the property,” but it is an insufficient description of the things and places to be searched. Warrant authorized search of defendant’s real property, residence, and vehicles. Officers searched the defendant’s real property, residence, vehicles, and person. Court holds that since the warrant did not authorize a search of the defendant, this portion of the search was unlawful, and since admission of the cell phone found on the
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defendant’s person (and its contents) was not demonstrated to be harmless beyond a reasonable doubt, the court reversed and remanded for new trial. 3.
Technical Requirements of Warrants
State v. Arellano, 600 S.W.3d 53 (Tex. Crim. App. 2020) (By statute, warrants have to be legibly signed by the magistrate who issues it, so what happens when no one can read the signature and figure out or remember which judge issued the warrant? Under the statutory good faith exception, nothing; the CCA held that officers can rely on such a warrant under the good faith exception.) Most cases involving search warrants are very difficult to overcome. You will usually have better luck in a case where no warrant was obtained. The exceptions to the search warrant requirement of search incident to valid arrest, inventory search, and consent are frequently used. G. Other Reversals 1. Invalid Consent Mitchell v. State, 831 S.W.2d 829, 830 (Tex.App.—Houston [1st Dist.] 1992, pet. ref’d). Undercover narcotics officers approached appellant on a bus and asked for permission to search his bag. Appellant asked the officers whether he had a right to privacy. The officers responded that he did, but then asked whether appellant would prefer that a narcotics dog sniff his bag instead. The court found that appellant’s consent was involuntary, and that appellant did not reasonably believe he was free to terminate the encounter. 2. Invalid Third Party Consent Georgia v. Randolph, 126 S.Ct. 1515, 1518 (2006). Appellant’s wife and child had moved out of the house, but several months later she and her child came back to the house, although the record does not reveal whether her motivation for return was reconciliation or retrieval of her possessions. One morning, after being at the house, appellant’s wife called the police and said that after a domestic dispute appellant had taken their son away. When officers arrived, appellant’s wife told them he was a cocaine user whose habit had created financial problems and had caused her to go stay with her parents for a while. Shortly after the police arrived, appellant returned, and said that he took the child to a neighbor’s because he was afraid his wife would take the child out of the country again. Appellant denied cocaine use and claimed it was his wife who used cocaine and alcohol. Appellant’s wife went with an officer to get the child, and when they returned to the house she renewed her complaints about the drug use and
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offered that there were “items of drug evidence in the house.” The officer asked for appellant’s consent to search the house, but was denied permission, whereupon he asked for and was granted consent to search from appellant’s wife. The Court held that the case invited the straightforward application of “the rule that a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.” Dawson v. State, 868 S.W.2d 363, 365 (Tex.App.—Dallas 1993, pet. ref’d). Appellant was a dancer at a topless club. Officers, operating on a tip, requested the manager of the club to conduct a search of appellant’s locker, to which appellant consented. The manager found drugs in appellant’s purse. The trial court denied appellant’s motion to suppress. The appellate court reversed, holding that the search violated the Fourth Amendment. The search was not a valid private search because the club manager conducted the search at the request of the officers, thereby acting as their agent. The manager had no personal knowledge as to whether appellant had been informed at that particular club that the lockers used by the dancers were subject to search without notice. Therefore, the court found that appellant had a reasonable expectation of privacy regarding her locker because she had a lock on it and no one had joint access to the locker. Reynolds v. State, 781 S.W.2d 351, 352 (Tex.App.—Houston [1st Dist.] 1989, pet. ref’d). Appellant went out to dinner and left her children (ages 9 and 12) at home, instructing them not to admit anyone to the home and not to enter her bedroom or bathroom. Despite her mother’s instructions, the daughter entered the bathroom and found drugs in a box. She informed her brother, who called their father. The boy and his father “agreed” that they would call the police, which the father did at the son’s request. When the officer arrived, the children invited him in and showed him the drugs. The officer took the children to the police station and released them to their father. When appellant returned home and found her children missing, she called the police, at which time she was arrested. The court of appeals held that a 12 year old child does not have the authority to consent to the officer’s entry into and search of his mother’s private bedroom and bathroom, and that appellant had a reasonable expectation of privacy in her private bedroom and bathroom. Becknell v. State, 720 S.W.2d 526, 527 (Tex. Crim. App. 1986).
Appellant was
convicted of murder for the shooting of a college professor in whose class he was enrolled. A search of appellant’s padlocked bedroom in his parents house was an illegal search, because the
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father “did not exercise equal control over and equal use of the premises being searched.” Therefore, the seizure of a gun dealer’s business cards and records of appellant’s purchase of .25 and .38 caliber hand guns and ammunition was improper and the evidence inadmissible.4 Moberg v. State, 810 S.W.2d 190, 191 (Tex. Crim. App. 1991). Appellant was convicted of sexual assault of a child after officers conducted as an inventory search a warrantless search of appellant’s hotel room after they had arrested appellant on an unrelated charge and transported him to the police station. The officers conducted an inventory search to secure appellant’s belongings and discovered 94 photographs of young girls. The inventory search was invalid because appellant had paid in advance for the motel room, and the period for which he had paid had not yet expired when the police conducted the search. Therefore, appellant had a reasonable expectation of privacy regarding the hotel room. The evidence also showed that the hotel would have taken custody of appellant’s abandoned belongings and retained them for six months, so it cannot be said that appellant’s belongings were safer in police custody. The record shows that the officers obtained a search warrant, but chose to rely on the doctrine of “inventory search.” The Court of Criminal Appeals held that the officers did not act “under any type of standardized criteria nor within the realm of a proper inventory search.” Therefore, the inventory search was improper, and the evidence thereby obtained inadmissible. May v. State, 780 S.W.2d 866, 867 (Tex.App.—Dallas 1989, pet. ref’d). Appellant was convicted of unlawful possession of a controlled substance, which was based on evidence obtained during an unlawful warrantless search of appellant’s residence, consented to by appellant’s estranged wife and stepdaughter. The court found that appellant’s estranged wife and stepdaughter no longer possessed the requisite control of appellant’s residence to properly consent to the warrantless search. 3. Unlawful Arrest Based on Informant Smith v. State, 58 S.W.3d 784, 787 (Tex.App.—Houston [14th Dist.] 2001, pet. ref’d). Narcotics officers arrested appellant based on information provided by an uncorroborated informant. At the time of appellant’s arrest, appellant was not engaged in any suspicious activity which would have lead officers to believe appellant was engaged in criminal activity. Appellant was pulled over, and he eventually consented to a search of his vehicle which led to the 4
However, the court found the error to be harmless because the evidence “did not contribute to appellant’s conviction and the jury would have reached the same verdict of life imprisonment had not such evidence been admitted,” Becknell at 531, because the murder weapon was not admitted into evidence.
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discovery of heroin. The officer’s decision to stop appellant was based solely on a conversation with another officer, who provided information from an uncorroborated informant. Appellant’s detention was illegal because the officer lacked reasonable suspicion to stop appellant. 4. Unlawful Arrest Based Upon Anonymous Tip Florida v. J.L., 529 U.S. 266, 268 (2000). Police searched respondent after receiving an anonymous tip that “a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun.” Upon arriving at the bus stop, the officers observed three black males, one of whom (respondent) was wearing a plaid shirt. Aside from the anonymous tip, the officers had know reason to suspect any of the three black males of criminal behavior. The officers performed a Terry “stop and frisk” on appellant and discovered a gun in his pocket. The court held that an anonymous tip that a person is carrying a gun, without more, is insufficient to justify a stop and frisk of that person. Because the officers’ suspicion was based not on their own observations, but rather, on the anonymous tip, their search of respondent violated the Fourth Amendment. 5. Not an “Offense Within View” State v. Steelman, 16 S.W.3d 483, 485 (Tex.App.—Eastland 2000, pet. granted). Police arrested defendant without a warrant based on an uncorroborated anonymous tip that he was dealing drugs at home. The officers entered the Steelmans’ house without a warrant, and noticed the smell of burnt marihuana (doesn’t say freshly burnt or not).
The officers placed the
occupants under arrest, and sought consent from Leo Steelman to search the house.
Id.
Steelman refused to consent to the search. The officers remained in the house with defendant until a search warrant was obtained. Before the search warrant was obtained, the officers did not observe any marihuana in the house. The court held that the arrest was unlawful because the defendant did not possess marihuana in the officers’ presence and there was no smell of marihuana on the clothing. The search warrant obtained by the officers does not attenuate the illegal search, because the officers remained inside the residence while waiting for the warrant, and thus the illegal search never ended. Stull v. State, 772 S.W.2d 449, 450 (Tex. Crim. App. 1989).
An officer received
information from a known informant that a group of youngsters was meeting to exchange or use drugs. The officer set up surveillance at one of two areas indicated by the informant because he did not have first hand knowledge of the activities, and observed the kids passing around what he
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believed to be marihuana cigarettes. The next day, the officer did not find the kids at the first location and so proceeded to the second location, where he observed a group of kids and their cars. The officer did not observe any illegal activity. The officer called for backup, but felt compelled to move in on the kids when they noticed him and began to leave. When backup arrived, the officers searched the vehicles and discovered hashish. The court found that the warrantless arrest of appellant was unlawful because there was no corroboration between the officer’s observations at the first location on the first day and his personal observations (appellant did not commit an offense in view of the officer) at the second location on the second day. Green v. State, 594 S.W.2d 72 (Tex. Crim. App. 1980). Appellants were convicted of possession of heroin.
An officer stopped appellants for a traffic violation and noticed
ammunition in the glove compartment. He asked if appellants were carrying a gun. They produced the gun to the officer, who returned it to appellants after copying the serial number. The officer later learned the gun was stolen. The officer later noticed appellants car at a motel and checked the registration information to verify appellants identity, at which time he learned that appellants had provided false information.5 The officer confirmed that the gun was an “active stolen” and returned to the motel accompanied by other officers. The officers gained entrance to appellants’ room with a pass key. The officers did not have a warrant. D. The officer observed plastic bags of heroin floating in the toilet. The officer testified he had entered the room to recover the stolen pistol, and that he arrested appellants for violating the “Innkeeper’s Ordinance,” which was not entered into evidence at trial. Because the ordinance was not properly proved, appellants did not commit an offense in the presence of the officers so as to justify a warrantless arrest. Villalobos v. State, 999 S.W.2d 132, 133 (Tex.App. – El Paso 1999, no pet.). Officers observed appellant park in a metered parking space, leave the car quickly without putting coins in the meter, speak to an unknown person at a known drug trafficking location, and return to his car. The officers then blocked appellant’s car in the parking space and ordered him out of the car. The officers seized a balloon containing heroin from the car. Because appellant was blocked in by the officers, he was placed under custodial arrest. However, the officers did not
5
By giving false information when registering at the hotel, appellants allegedly violated an “Innkeeper’s Ordinance.”
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have probable cause to arrest appellant because he did not commit an offense in the officers’ presence. Failure to feed the parking meter is not a criminal offense.
Furthermore, no one
noticed whether the time on the meter had expired. Finally, the officers did not have probable cause to arrest appellant for possession of heroin because they did not observe a transaction between appellant and the unknown person. State v. Brown, 929 S.W.2d 588, 589 (Tex.App.—Corpus Christi 1996, pet. ref’d). Officers were summoned to a Sears store after receiving complaints regarding homosexual activity in the restroom; specifically, a customer complained about someone peering underneath his toilet stall partition. A small hole had been bored into the partition dividing two of the stalls. The officers were standing in the linen department when they noticed appellee leave the restroom.
One officer remarked that he was “going to the restroom” and proceeded to a stall
where the hole had been bored.
Appellee soon entered the adjacent stall and began to
masturbate. The officer exited the stall, identified himself as a police officer, and informed appellee that he was under arrest. The court found that appellee had the same expectation of privacy as an “innocent user” because there was no evidence that appellee had drilled the hole in the partition. The evidence had to be suppressed because the officer did not have probable cause or reasonable suspicion to search appellee’s stall. 6. Unreasonable/Illegal Detentions Gamble v. State, 8 S.W.3d 452 (Tex.App.—Houston [1st Dist.] 1999, no pet.). Appellant was convicted of possession of cocaine. Officers’ only basis for detaining appellant was that appellant was in an area with a reputation for drug sales, that the police had received frequent calls to the area for disturbances, that appellant was in the area at an early morning hour, and that appellant watched the police car pass by and then walked in a direction away form the police car. These facts do not give rise to reasonable suspicion to detain appellant, and therefore appellant was illegally detained. Gordon v. State, 4 S.W.3d 32, 34 (Tex.App.—El Paso 1999, no pet.). Officers received information that Gonzales, who had an outstanding warrant for his arrest, was located at an address in Midland. The officers obtained consent to enter the residence from the owner. Appellant was in the residence at the time officers entered. The officers found Gonzales in a bedroom and arrested him. After placing Gonzales in the patrol car, the officers discovered drugs and paraphernalia in the bedroom in which Gonzales had been located, and therefore
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decided to detain all the occupants and conduct a K-9 search. Because removal of the occupants is standard in such a search, an officer conducted a weapons pat-down of appellant, handcuffed him, and escorted him outside. Before placing appellant in the backseat of the patrol car, the officer lifted the seat to show appellant that nothing was present under the seat. After the search was completed and no narcotics were found, the officers decided to release appellant. They removed him from the car in order to remove the handcuffs, lifted the seat, and found one rock of crack cocaine. The court found that the detention of appellant became an illegal arrest without probable cause, and that appellant’s abandonment of the cocaine was involuntary due to the illegal arrest. Therefore the evidence should have been suppressed. Davis v. State, 61 S.W.3d 94, 96 (Tex.App.—Amarillo 2001, no pet.).
Officers
approached a group of people gathered in a backyard in a high crime neighborhood around midnight. As they approached, they observed appellant acting nervous. The officer had dealt with appellant before on domestic calls and asked appellant for his identification. The officer conducted a weapons pat down of appellant because appellant’s nervousness caused the officer to fear for his safety. The officer discovered a crack pipe which the officer considered probable cause to arrest appellant. The officer conducted a search incident to arrest and discovered cocaine. The arrest was unlawful because the officer did not observe any illegal activity, and merely being in a high crime neighborhood and acting nervous does not constitute reasonable suspicion to justify a search. Because the arrest was unlawful, the cocaine discovered during the search incident to arrest should have been suppressed. Gurrola v. State, 877 S.W.2d 300, 301 (Tex. Crim. App. 1994). An officer approached appellant and three others who appeared to be engaged in an argument in a parking lot. As the officer approached, appellant and the others began to leave. The officer instructed appellant and the others to return and place their hands on a parked car. The officer conducted a pat down of appellant, which revealed a hand gun. A further search revealed cocaine. The officer did not have reasonable suspicion to detain and search appellant. Merely engaging in an argument in a parking lot in the late afternoon and walking away from an officer does not amount to reasonable suspicion. Shelby v. State, 888 S.W.2d 231, 232 (Tex.App.—Houston [1st Dist.] 1994, pet. ref’d). Officers observed appellant and a juvenile known to the officers walking together down a road in the early morning. The officers stopped the patrol car and waited for appellant and the juvenile
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to come around the corner of a building. Only appellant walked around the corner of the building. The officers assumed that appellant and the juvenile split up upon seeing the patrol car, and the officers drove around the building to intercept the juvenile. The officers stopped the juvenile and conducted a pat down, discovering cocaine. The officers had observed appellant enter a convenience store and drove to the store to question appellant. The officers conducted a pat down of appellant because they feared for their safety and discovered three candy bars which appellant had stolen from the store. The officers arrested appellant, and a further search yielded crack cocaine. The fact that appellant and the juvenile were seen walking together in a high crime area in the early morning, that they separated upon sighting the patrol car, and that crack cocaine was found on the juvenile as a result of a valid search does not constitute reasonable suspicion to link appellant with the cocaine possessed by the juvenile. United States v. Rivas, 157 F.3d 364, 366 (5th Cir. 1998). Appellant was driving his tractor-trailer rig through the port of entry in Brownsville. He claimed he was going to San Antonio to buy used cars. At the border, customs agents drilled into the wall of the trailer and discovered cocaine. Customs agents set up surveillance on appellant, who drove to Dallas and met another person. Appellant parked his rig at a commercial building and left in a rental car. His companion left in another car. Customs agents arrested both men, obtained a search warrant, and discovered cocaine in the wall of the trailer. The court found that because the act of drilling into the wall of the trailer at the border was not a routine search, the Customs agents were required to have reasonable suspicion that criminal activity was taking place to validate the search.
The drug-detecting dog’s weak alert was not sufficient to constitute reasonable
suspicion. Therefore, under the fruit of the poisonous tree doctrine, all evidence resulting from the unlawful search at the border (including the consequential search in Dallas) must be suppressed. 7. Illegal Car Stops Comer v. State, 754 S.W.2d 656, 657 (Tex. Crim. App. 1986). Appellant Comer was subjected to an illegal stop by police. As a result of this illegal stop, appellant, who was a passenger in the vehicle, dropped a heroin-filled syringe onto the pavement and attempted to kick it under the vehicle as he exited the car. The court held that because appellant’s decision to abandon the contraband was a direct result of the illegal stop, the abandonment was involuntary and therefore did not remove the taint of the illegal stop.
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Ebarb v. State, 598 S.W.2d 842, 843 (Tex. Crim. App. 1980). Police officer stopped appellant based on information from an informant that appellant was carrying a handgun in her car. Appellant had a handgun on her front seat. At trial the officer could not remember the name of the informant, could not remember how many times he had received information from the informant, and could not remember whether any of the information from the informant had led to arrests. The court concluded that because the officer relied on an uncorroborated informant, the stop was illegal and the evidence should have been suppressed. State v. Simmang, 945 S.W.2d 219, 220 (Tex.App.—San Antonio 1997, no pet.). An officer received a call from dispatch about an anonymous tip that a white male was masturbating in a gold-colored four-door sedan in a parking lot. The officer arrived at the parking lot, followed by another officer. The officers proceeded to block Simmang’s car. The officer approached the car and saw Simmang sitting inside the car dressed with his clothing intact. The car window was rolled down and the officer could smell burnt marihuana. The officer ordered Simmang out of the car and frisked him for weapons. The officer found no weapons, but looking through an open car door, noticed a handgun on the floorboard. The officers arrested appellant and searched him, but found no weapons or drugs on his person. The officers found the handgun, ammunition, and marihuana in the vehicle. Because Simmang was detained based on the unsubstantiated suspicions of an anonymous caller, whose reliability was uncorroborated, and without articulable facts and circumstances to justify the stop, the evidence was the tainted fruit of an illegal stop and should have been suppressed. Richardson v. State, 39 S.W.3d 634, 636 (Tex.App.—Amarillo 2000, no pet.). Appellant was stopped for driving under the speed limit, and cocaine was found in his vehicle. The officer did not have reasonable suspicion to stop appellant because appellant was not impeding traffic (no cars were behind appellant waiting to pass), and appellant’s increase in speed was not indicative of an offense. United States v. Miller, 146 F.3d 274, 276 (5th Cir. 1998). Miller was stopped for driving his motor home through an intersection with the turn signal on but not turning or changing lanes. Miller consented to a search of his motor home that yielded marihuana (A LOT). The court held that because driving with a turn signal on without turning or changing lanes is not a violation of Texas law, therefore, the officer did not have probable cause to stop
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Miller. The evidence should have been suppressed because it was the tainted fruit of an illegal stop. Trahan v. State, 16 S.W.3d 146, 147 (Tex.App.—Beaumont 2000, no pet.). Trahan was stopped for failure to use his turn signal when exiting the freeway and was subsequently arrested and convicted of possession of a controlled substance. Evidence was not presented that Trahan had to change lanes in order to exit the freeway. Because signaling is mandatory only when changing lanes, turning, or starting from a parked position, the State failed to establish that Trahan had committed a traffic violation. Therefore, the stop was illegal and the evidence obtained was tainted fruit. Morrison v. State, 71 S.W.3d 821, 824 (Tex.App.—Corpus Christi 2002, no pet.). A police officer observed a car in which Morrison was a passenger stopped in the road. The officer observed the driver was not wearing her seatbelt. When the car drove off the officer stopped the car because it had blocked the road and because the driver was not wearing the seatbelt. As the officer approached the passenger side of the vehicle he observed Morrison drop something on the ground. The officer noticed an object on the ground which appeared to be a rock of crack cocaine. The officer requested that Morrison exit the vehicle, and the officer searched him, finding a crack pipe. The officer placed Morrison under arrest. The object field-tested positive for cocaine. The court found that the vehicle had not illegally blocked the road; therefore, basing the stop on blocking of the road was illegal. However, the officer’s alternative theory for the stop – that the driver was not wearing her seatbelt – was legally sound and gave the officer probable cause for the stop and subsequent arrest. Therefore, the motion to suppress was properly denied. State v. Exiga, 71 S.W.3d 429, 431 (Tex.App.—Corpus Christ 2002, no pet.). Exiga was stopped for his window tint and subsequently convicted of possession of marihuana. The court found that the statute pertaining to window tint did not apply to pre-1988 vehicles (Exiga’s was a 1985) and that the DPS did not have the authority to issue regulations regarding window tint on pre-1988 cars. Therefore, Exiga was subjected to an illegal stop, and the tainted evidence was properly suppressed. Bass v. State, 64 S.W.3d 646, 647 (Tex.App.—Texarkana 2002, pet. ref’d). Bass was convicted for possession of marihuana. An officer stopped Bass on the following two bases: 1) that Bass failed to drive in a single lane and 2) to determine whether Bass was driving while
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intoxicated. An officer must observe specific, objective, articulable facts that provide a basis that a driver is intoxicated or has committed a traffic violation. Because the officer did not present such articulable facts he did not have reasonable suspicion to stop Bass, and thus, the tainted evidence should have been suppressed. Ehrhart v. State, 9 S.W.3d 929, 930 (Tex.App.—Beaumont 2000, no pet.). Ehrhart was convicted of third degree felony possession of a controlled substance. The court found that the stop was not justified under the “community caretaking” exception because there was no evidence that Ehrhart required assistance. The evidence should have been suppressed because appellant consented to a search resulting from and illegal stop. See also, Villalobos v. State, 999 S.W.2d 132, 133 (Tex.App. – El Paso 1999, no pet.) supra.
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Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course June 24-26, 2021 Hyatt Regency San Antonio, TX
Topic: Sex Offender Registration
Speaker:
Catherine Greene Burnett South Texas College of Law Houston 1303 San Jacinto Houston, Texas 77002 (713) 646-1831 phone cburnett@stcl.edu email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
BURNETT: SEX OFFENDER REGISTRATION SAMPLE MOTION PACKET FOR DEREGISTRATION
[EARLY TERMINATION] Before attempting to have a client removed from Sex Offender Registration requirements, you will need to do some research, gather conviction court documents, get preliminary approval from the Council on Sex Offender Treatment, and have a deregistration evaluation conducted.
Getting the Initial Eligibility completed will require you to have copies of documents from the original trial or plea plus a finger-print based criminal history background check by both Texas DPSand FBI. And, Ifyou client's case involved a minor, more documentation (to show age) is required.
Rather than a sample motion, attached is a Step by Step Guide for early termination, and the Initial Eligibility Checklist.
TEXAS Health and Human Services
Deiregistration Step By-Step Guide
Step One Applicant siiould confirm that he/she has one reportable conviction or adjudication for a sexual offense. If an applicant has more than one reportable conviction or
adjudication for a sexual offense, then STOP. The Applicant is ineligible to seek the early termination of his/her obligation to register.
• Examples: An applicant's Order of Conviction or Deferred Adjudication Order recites two or more separate counts for sexual offenses. That person is ineligible.
• Only convictions or deferred adjudications handed down by Texas courts may be considered.
• A Deferred Adjudication Order is treated the same as a conviction pursuant to the Adam Walsh Act or federal law.
IF YOU HAVE ONLY ONE REPORTABLE CONVICTION OR ADJUDICATION, THEN PROCEED TO STEP TWO.
step Two An applicant should then go to the Texas Department of Public Safety Public Sex Offender Registration website here:
https://records.txdps.state.tx.us/SexOffender/PublicSite/Index.asDX. Near the bottom right of the DPS website, under the heading "Additional Resources", is a link to 'Texas Offenses Tiered Under the Federal Adam Walsh Act". This will take you to
the list published by the DPS containing reportable convictions and adjudications, by Texas Penal Code citation, that compare minimum registration requirements in Texas and under the federal law for a given offense.
Texas Health and Human Services • hhs.texas.gov
step Three Locate on the DPS list your particular Texas Penal Code citation relating to your
reportable conviction or adjudication. The minimum registration period for your reportable conviction must EXCEED the minimum registration period under the federal law, or Adam Walsh, in order to move on to the next step.
An applicant must also meet any other criteria required on the DPS list, including but not limited to, the age of the victim at the time of the offense, the difference in age between the victim and the offender, and specific fact patterns related to the offense where required.
Key Point: Only Texas convictions can be considered for deregistration purposes under this statute. No out of state convictions or adjudications are eligible even though the prospective applicant lives in Texas.
If an applicant meets the requirements above, then copies of the following required documents and the fee must be submitted along with the Initial Eligibility Checklist
for Deregistration. The link for this form is under the "Deregistration Step-by-Step" drop-down menu.
1) Order of Conviction/Deferred Adjudication Order;
2) If the reportable conviction or adjudication Involved a minor, an applicant shall provide a copy of one of the following documents which indicates the age of the victim at the time of the offense: •
Indictment
•
Offense Report
•
Probable Cause Affidavit
3) Current Criminal History Background Checks. Conducted by both the Texas Department of Public Safety and the Federal Bureau of Investigation. Click on the respective link and follow the directions provided by each governmental agency.
• http://www.dDs.texaf^.aov/administration/crime records/oaaes/aDDlicantfinq erDrintservices.htm
•
httDs://www.fbi.Qov/services/ciis/identitv-historv-summarv-checks
4) Cashier's Check or Money Order in the Amount of $50.00 made payable to: "Texas Council on Sex Offender Treatment". This fee is assessed for the
Texas Health and Human Services • hhs.texas.gov
administrative review of an applicant's file and/or request to early terminate his/her obligation to register as a sex offender in Texas. Additional Supporting Documents, but NOT REQUIRED:
5. If an applicant has undergone sex offender treatment and has successfully completed his/her treatment program, a letter from the LSOTP confirming the applicant's successful completion of treatment.
6. If an applicant successfully discharged community supervision or parole, a copy of the Order discharging applicant successfully from community supervision or parole.
ALL DOCUMENATION AND FEE SHOULD BE SENT TO: Texas Health and Human Services
Professional Licensing and Certification Unit Council on Sex Offender Treatment
P.O. Box 149347, Mail Code 1982 Austin, Texas 78714 ATTN: CSOT Executive Director
After the complete documentation is reviewed by the Council on Sex Offender Treatment, and IF the applicant is approved as eligible to proceed with the deregistration process, the applicant will be provided information on how and where to have a deregistration evaluation conducted, at the applicant's expense, by one of the Deregistration Specialists.
Texas Health and Human Services • hhs.texas.gov
Budget: ZZ118 Fund: 087
Professional Licensing and Certification Unit Council on Sex Offender Treatment
P.O. Box 149347, Mail Code 1982 Austin, Texas 78714 ATTN: CSOT Executive Director
Phone (512) 834-4530 ** Fax (512) 834-6677 Email: csot@hhsc.state.tx.us INITL^L ELIGIBILITY CHECKLIST FOR
EARLY TERMINATION OF CERTAIN PERSON'S OBLIGATION TO REGISTER (Please Type or Print Clearly) Date:
Offender's Name:
DOB:
Address:
City: Telephone:
Zip Code:. Email:
Attorney if Represented for Offender Deregistration: Address:
City: Telephone
Zip Code: Fax:
Email:
All Reportable Convictions or Adjudications: Age of the Victim at the time of the Offense: County and Court Number of Sentencing Court:
(List of required supporting documentation is continuedon next page)
Budget: ZZ118 Fund:087
In addition to this form, you must also submit the following supporting documentation. Failure to supply the documentation may result in the rejection ofyour application: Order of Conviction/Deferred Adjudication Order;
I I
Charging instrument (Indictment, Information, etc.)
•
If the reportable conviction or adjudication involved a minor, the applicant must provide acopy ofone ofthe following documents which indicates the age ofthe victim at the time of the offense:
a. Offense Report b.
•
Probable Cause Affidavit
Finger print based criminal history background checks conducted by both the Texas
Department ofPublic Safety and the Federal Bureau ofInvestigation. Use the respective links and follow the directions provided by each governmental agency. DPS:
http://www.dps.texas.gov/administration/crime_records/pages/applicantfmgerprintser vices.htm
FBI:
O
https://www.fbi.gov/services/cjis/identity-history-summary-checks
Cashier's Check orMoney Order in the amount of$50 made payable to "Council on Sex OffenderTreatmenf. This fee is assessed for the administrative review of an applicant's
file and/or request to early tei-minate his/lier obligation to register as a sex offender in Texas.
Please do not include any letters ofsupport orrecommendation as they cannot be considered by the Council on Sex Offender Treatment.
Failure to provide any ofthe above required information will delay and may prevent the review of your deregistration application.
Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course June 24-26, 2021 Hyatt Regency San Antonio, TX
Topic: Family Violence
Speaker:
Betty Blackwell
1306 Nueces Street Austin, Texas 78701 (512) 479-0149 phone bettyblackwell@bettyblackwell.com email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
FAMILY VIOLENCE
BETTY BLACKWELL Attorney at Law Board Certified in Criminal Law 1306 Nueces Street Austin, Texas 78701
TABLE OF CONTENTS Page Table of Authorities ................................................................................................. iii 2021 Legislation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 2019 Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2017 Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2015 Legislation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2013 Legislation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 2011 Legislation . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2009 Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2007 Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2005 Legislation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Punishment Enhancements .................................................................................. 10 What Prior Conviction can be used for Enhancement? . . . . . . . . . . . . . . . . . . . . . 13 Deferred Adjudication.......................................................................................... 14 Strangulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Deadly Weapon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Affirmative Finding of Family Violence and Proof Requirements . . . . . . . . . . . . 17 Apprendi Issue ......................................................................................................... 17 Collateral Consequences .......................................................................................... 19 Deportation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Federal Firearms Violations .......................................................................... 20 Protective Orders ........................................................................................... 22 State Law Prohibiting Firearm Possession .................................................... 22 Custody of Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Spousal Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Emergency Protective Orders .................................................................................. 24 Evidentiary Issues .................................................................................................... 25 Excited Utterances ......................................................................................... 25 6th Amendment Violation .............................................................................. 26 What is testimonial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Forfeiture by Wrongdoing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Inconsistent Hearsay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Marital Privilege ............................................................................................ 32 Due Process to Present a Defense.................................................................. 33 Expert Testimony........................................................................................... 33 Medical Testimony ........................................................................................ 35 38.26 Code of Criminal Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Violations of Protective Orders ............................................................................... 37 Forgetful State’s Witness ......................................................................................... 38
Defensive Issues ....................................................................................................... 40 Who Is the Aggressor .................................................................................... 40 Criminal Record of the Victim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Bias of the Witness ........................................................................................ 41 Consent or Mutual Combat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Evidence of the Defendant’s Good Character ............................................... 43 Self Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43 Defense Motions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Affidavits of Nonprosecution. . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 State’s Motions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47 Ethical Dilemmas for the Defense ......................................................................... 48 Conflict of Interest ......................................................................................... 48 Fear of False Testimony ................................................................................ 48 Avoiding a Subpoena..................................................................................... 48 What is a Valid Subpoena ............................................................................. 48 Ethical Dilemmas for the State . . . . . . .. .. . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . . . 49 Article 5.06 C.C.P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..50 Dealing with Prose Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50 Ethical Dilemmas for the Trial Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51 Conclusion ........................................................................................................... 52 Appendix A Federal Firearm Application . . . . . . . . . . . . . . . . . . . . . . . . . . . attached
TABLE OF AUTHORITIES Page Aguilera v. State, 75 S.W.3d 60 (Tex.App.-S.A. 2002) . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . 25 Allen v. State, 253 S.W.3d 260 (Tex.Crim. App.2008) 263 S.W.3d 168 (Tex. App.-Hous.[1 Dist.] 2007). . . . . . . . . . . . . . . . . . . . .43 Alonzo v. State, 67 S.W.3d 346 (Tex.App.-Waco 2001) ......................................................... 33 Ames v. State, 499 S.W.2d 110, 114 (Tex.Cr.App.1973) ..................................................... 37 Apolinar v. State, 155 S.W.3d 184 (Tex.Cr.App.2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Apprendi v. New Jersey, 530 U.S.466 (2000)........................................................................................ 18 Arroyo v. State, 117 S.W.3d 795 (Tex.Cr.App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 123 S.W.3d 517 (Tex.App.-S.A. 2004)(pet. Ref’d). . . . . . . . . . . . . . . . . . . . . 41 Armstead v. State, 977 S.W.2d 791 (Tex.App.-Ft. Worth 1998) ................................................ 39 Arzaga v. State, 86 S.W.3d 767 (Tex.App.-El Paso 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 Barley v. State, 906 S.W.2d 27, 37 n. 11 (Tex.Cr.App.1995), cert. denied, 516 U.S. 1176, 116 S.Ct. 1271, 134 L.Ed.2d 217 (1996) ............................. 39 Barrett v. State, No. PD-1362-18, decided March 10th, 2021 (Tex. Crim. App.) . .16 Billodeau v. State 277 S.W.3d 34 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Blasdell v. State, 470 S.W.3d 59 (Tex. Crim. App. 2015. . . . . . . . . . . . . . . . . . . . .35 Bollman v. State, 629 S.W.2d 54, 55 (Tex.Cr.App.1982) ......................................................... 37 Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . 11 Brooks v. State, 604 S.W.3d 239 (Tex. App.-Austin 2020). . . . . . . . . . . . . . . . . . . .32 Brown v. State, 618 S.W.3d 352 (Tex. Crim. App. 2021). . . . . . . . . . . . . . . . . . . . .32 Bufkin v. State, 207 S.W.3d 779 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . .43 Busby v.State, 2021WL841924 (Tex. App. Waco, Mar.3, 2021). . . . . . . . . . . . . . . .12
Butler v. State, 189 S.W.3d 299 (Tex. Crim. App. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . .19 Collins v. State, 955 S.W.2d 464, 467 (Tex.App.-Ft. Worth 1997) ........................................ 37 Comeaux v. State, 151 S.W.3d 710 (Tex.App.-Beaumont 2004) . . . . . . . . . . . . . . . . . . . . . . . . . .16 Crawford v. Washington, 124 S.Ct. 1354, 541 U.S.36 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Davis v. State, 169 S.W.3d 660 (Tex.App.-Austin 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 affirmed by 203 S.W.3d 845 (Tex. Crim. App. 2006) Davis v. State, 533 S.W.3d 498 (Tex. App. Corpus Christi 2017) . . . . . . . . . . . . . 10 Davis v. State, 2020WL5015276 (Tex. App. Dallas 2020).. . . . . . . . . . . . . . . . . . . .8 Davis v. Washington, 126 S.Ct. 2266 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 De la Paz v. State 273 S.W.3d 671 (Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 283 S.W.3d 901 (Tex. App. Eastland 2009) Ebikam v. State, 2020WL3067581 (Tex. Crim. App. decided June 10th, 2020). . . . .44 Edward v. State, 599 S.W.3d 69 (Tex. App. Houston 14th, 2020). . . . . . . . . . . . . . . .11 Ellison v. State, 425 S.W.3d 637 (Tex. App. Houston 14th Dist. 2014) . . . . . . . . . . 14 Ex parte Boyd, 58 S.W.3d 134 (Tex.Cr.App. 2001) .............................................................. 19 Ex Parte Rodriguez, 350 S.W.3d 209 (Tex. App.-San Antonio 2011). . . . . . . . . . .19 Ex parte Saldana, 2010WL2789032 (Tex. App.-Austin) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 Ex parte Smith, 296 S.W.3d 78 (Tex. Crim. App. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Gannaway v. State, 823 S.W.2d 675, 678 (Tex.App.-Dallas 1991) .............................................. 39 Garcia v. State, 126 S.W.3d 921 (Tex. App.-Dallas 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Garcia v. State, 201 S.W.3d 695 (Tex.Cr.App. 2006) . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . 36 Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Giles v. California, 128 S.Ct. 2678 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Gongora v. State, 214 S.W.3d 58 (Tex. App.-Ft. Worth 2006). . . . . . . . . . . . . . . . . . . . . . . . . . 28 Gonzalez v. State,
195 S.W.3d 114 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Gonzalez v. State, 301 S.W.3d 393 (Tex. App. El Paso 2009). . . . . . . . . . . . . . . . . . . . . . . . 33 Green v. State, 700 S.W.2d 760 (Tex.App.-Hous. [14 Dist.] 1985) ...................................... 43 affirmed by 727 S.W.2d 272 (Tex. Crim.App. 1987) Guajardo v. State, 2018WL3129452 (Tex. App. San Antonio 2018). . . . . . . . . . . .8 Gutierrez v. State, 516 S.W.3d 593 (Tex. App. Houston-1st Dist 2017). . . . . . . . . .30 Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009). . . . . . .. . . . . . . . . . . . . . . . . . . . . .42 Harris v. State, 133 S.W.3d 760 (Tex. App.-Texarkana 2004). . . . . . . . . . . . . . . . . . . . . . . .34 Harvey v. State, 48 S.W.3d 847 (Tex.App.-Austin 2001) ....................................................... 38 78 S.W.3d 368 (Tex.Cr.App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Haynes v. State, 254 S.W.3d 466 (Tex.App.-Hous.[1Dist.]2007) . . . . . . . . . . . . . . . . . . . . . . 11 273 S.W.3d 183 (Tex. Crim. App. 2008) Hill v. State, 455 S.W.3d 271 (Tex. App. Texarkana 2015) . . . . . . . . . . . . . . . . . . .13 Holoman v. State, decided March 31, 2021, 2021WL 1202883 (Tex. Cr. App.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . .11 Holmes v. South Carolina, 126 S.Ct. 1727, 547 U.S. 319 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Hughes v. State, 128 S.W.3d 247 (Tex.App.-Tyler 2003)(pet. Ref’d) . . . . . . . . . . . . . . . . . . . .26 Irving v. State, 176 S.W.3d 842 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . 17 James v. State, 335 S.W.3d 719 (Tex. App. Ft. Worth 2011). . . . . . . . . . . . . . . . . .41 Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . .45 Johnson v. State, 425 S.W.3d 344 (Tex. App. Houston 1st Dist. 2011). . . . . . . . . .47 Jones v. State, 571 S.W.3d 764 (Tex. Crim. App. 2019). . . . . . . . . . . . . . . . . . . . .42 Jordan v. State, 36 S.W.3d 871 (Tex.Cr.App. 2001) .......................................................... 16 Kearney v. State, 181 S.W.3d 438 (Tex.App.-Waco 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Lafler v. Cooper 132 S.Ct. 1376 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51 Lane v. State, 151 S.W.3d 188 (Tex.Cr.App. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Langham v. State, 305 S.W.3d 568 (Tex. Crim. App. 2010). . . . . . . . . . . .. . . . . . . . . . . . . . . .28 Lee v. State,
799 S.W.2d 750, 752-54 (Tex.Cr.App.1990) ................................................ 37 Lindsey v. State, 672 S.W.2d 892 (Tex.App.-Dallas 1984) ...................................................... 14 Luna v. State, 402 S.W.3d 849 (Tex. App.-Amarillo 2013. . . . . . . . . . . . . . . . . . . . . . . . . 10 Martinez v. State, 178 S.W.3d 806 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . .25 Mason v. State, 225 S.W. 902(Tex.App.-Dallas 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Marcel v. State, 64 S.W.3d 677(Tex.App.-Hous.[1 Dist] 2001) ............................................. 32 Michigan v. Bryant, 131 S.Ct. 1143 (2011). . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Mozon v. State, 991 S.W.2d 841 (Tex.Cr.App. 1999) ............................................................ 40 Nenno v. State, 70 S.W.2d 549 (Tex. Cr. App. 1998) overruled on other grounds . . . . . . . 34 Obergefell v. Hodges, 135 S.Ct. 2584 (2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Ohio v. Roberts, 100 S. Ct. 2531 (1980)................................................................................... 26 Ortiz v. State, No. PD-1061-19,decided March 10th, 2021 (Tex. Crim. App.). . . . 16 Perez v. State, 25 S.W.3d 830 (Tex. App. Houston 1st Dist. 2000). . . . . . . . . . . . . 35 Philmon v. State, 609 S.W.3d 532 (Tex. Crim. App. 2020). . . . . . . . . . . . . . . . . . . 17 Padilla v. Kentucky, 130 S.Ct. 1473 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 Pomier v. State, 326 S.W.3d 373 (Tex. App.-Hous (14th Dist.) 2010) . . . . . . . . . . . . . . . . . . . 13 Pope v. State, 207 S.W.3d 352 (Tex. Crim. App. 2006).. . . . . . . . . . . . . . . . . . . . . 47 Pruitt v. State, 770 S.W.2d 909, 910-11 (Tex.App.-Ft. Worth 1989, pet. Ref’d) ................. 39 Ramos v. State, 923 S.W.2d 196 (Tex.App.-Austin 1996) ..................................................... 38 Ranolls v. Dewling, 223 F. Supp. 3d 613 (U.S. District Court Eastern District 2016). . . . . . . . . . . . . . . . . . . . . . . . . . .32 Redmond v. State, 2021WL1134410 (Tex. App. Ft. Worth, March 25, 2021). . . . .43 Reyes v. State, 314 S.W. 3d 74 (Tex. App.-San Antonio 2010). . . . . . . . . . . . . . . . . . . . . . . 12 Reyes v. State, 48 S.W.3d 917 (Tex.App.-Ft. Worth, 2001) ............................................. 24 Rodriguez v. State, 274 S.W.3d 760 (Tex. App.-SA 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Rogers v. State,
200 S.W.3d 233 (Tex.App.-Hous.[14 Dist] 2006) . . . . . . . . . . . . . . . . . . . . .13 Rogers v. State, 550 S.W.3d 190 (Tex. Crim. App. 2018). . . . . . . . . . . . . . . . . . . 44 Rohrscheib v. State, 934 S.W.2d 909 (Tex.App.-Hous. [1 Dist.] 1996) ........................................ 37 Rubio v. State, 241 S.W.3d 1 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Santacruz v. State, 237 S.W.3d 822 (Tex. App.-Hous [14th Dist.] 2007). . . . . . . . . . . . . . . . . . .30 Schutz v. State, 957 S.W.2d 52, 59 (Tex.Cr.App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 Scott v. State, 55 S.W.3d 593 (Tex.Cr.App. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 Scugoza v. State, 949 S.W.2d 360 (Tex. App.-San Antonio 1997) . . . . . . . . . . . . . . . . . . . . . 34 Sheppard v. State, 5 S.W.3d 338 (Tex.App.-Texarkana 1999). . . . . . . . . . . . . . . . . . . . . . . . . .12 Sills v. State, 846 S.W.2d 392(Tex.App.-Hous. [14 Dist.] 1992) . . . . . . . . . . . .. . . . . . . . 39 Skillern & Son, Inc., v. Rosen, 359 S.W.2d 298 (Tex. 1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Small v. State, 809 S.W.2d 253 (Tex.App.-San Antonio 1991, pet. Ref’d) ................... . . .37 Sohail v. State, 264 S.W.3d 251 (Tex. App.-Hous[1st Dist.] 2008). . . . . . . . . .. . . . . . . . . . . 31 State v. Eakins, 71 S.W.3d 443 (Tex.App.-Austin, 2002) ........................................................ 17 State ex rel. Young v. 6th Dist. Court of Appeals, 236 S.W.3d 207 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . .. . .. . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . 50 State v. Mason, 980 S.W.2d 635 (Tex.Cr.App. 1998) .............................................................. 12 State v. McCoy, 64 S.W.3d 90 (Tex.App.-Austin 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 State v. Meadows, 170 S.W.3d 617 (Tex.App.-El Paso 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 45 State v. Newsom, 64 S.W.3d 478 (Tex.App.-El Paso, 2001) ...................................................... 16 Tanner v. State, 335 S.W.3d 784,(Tex. App.-Ama. 2011) . . . . . . . . . . . . . . . . . . . . . . . .. . . . 18 Taylor v. State, 774 S.W.2d 31 (Tex. App.-Houston 14th Dist. 1989).. . . . . . . . . . . . .44 Texas v. Mason, 127 S.Ct. 68 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
Thomas v. State, 897 S.W.2d 539 (Tex.App-Ft. Worth 1995) ................................................... 41 Tienda v. State, 479 S.W.3d 863 (Tex. App. Eastland 2015). . . . . . . . . . . . . . . . . . . . . . . . . . 26 Tillman v. State, 354 S.W.3d 425 (Tex. Cr. App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Torres v. State, 71 S.W.3d 758 (Tex.Cr.App. 2002) ................................................................ 40 117 S.W.3d 891(Tex.Cr.App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 U.S. v. Castleman, 134 S.Ct. 1405 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 U.S. v. Emerson, 270 F.3d 203(5th Cir. 2001) ............................................................................. 21 U.S. v. Reyes Contreras, 910 F3d 169 (5th Cir. 2018)………………………………21 Villarreal v. State, 286 S.W.3d 321 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Vinson v. State, 252 S.W.3d 336 (Tex. Crim. App. 2008) on remand 266 S.W.3d 65 (Tex. App. Hous 1st 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . 29
Voisine v. U.S., 136 S.Ct. 2275(2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Wall v. State, 184 S.W.3d 730 (Tex.Cr.App. 2006) .............................................................. 27 Wall v. State, 417 S.W.2d 59 (Tex.Cr.App. 1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39 Watkins v. State, 2021WL800617 (Tex. Crim. App. March 3, 2021). . . . . . . . . . . . 46 Wells v. State, 241 S.W.3d 172 (Tex. App. Eastland 2007) . . . . . . . . . . . . . . . . . . . . . . . . . .28 White v. State, 201 S.W.3d 233 (Tex.App.-Ft. Worth 2006) . . . . . . . . . . . . . . . . . . . . . . . 40 Wilson v. State, 151 S.W.3d 694 (Tex.App.-Ft. Worth 2004) . . . . . . . . . . . . . . . . . . . . . . . . . .27 Word v. State, 206 S.W. 3d 646 (Tex.Cr.App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 Yount v. State, 872 S.W.2d 706 (Tex.Cr.App. 1993) .............................................................. 33 Zapata v. State, 232 S.W.3d 254 (Tex. App.-Hous [1st Dist.]2007). . . . . . . . . . . . . . . . . . . . . . . . . . .29 Zule v. State, 802 S.W.2d 28 (Tex. App.-Corpus Christi 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . .40
Zuliani v. State, 97 S.W.3d 589 (Tex.Cr.App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25
FAMILY VIOLENCE Introduction In 1979, the Texas Legislature amended the assault statute, Section 22.01, adding the language “including the person’s spouse” to Section (a) (1) and (2) to make clear that the law applied to spouses. The offense was a Class A misdemeanor. On September 1, 1993, Article 42.013 was added to the Texas Code of Criminal Procedure requiring that a finding of family violence be entered into the judgment of any case if the court determined that the offense involved family violence. 1995 Legislation elevated the class A assault to a state jail felony upon “proof of a conviction of an offense against a family member two or more times.” Starting September 1, 1999, the class A misdemeanor involving family violence was raised to a third degree felony if the defendant has been previously convicted of an offense under this chapter, involving a family or household member. Each session the legislature would consider expanding the meaning of “family violence.” Then starting in 2005 legislation was enacted that enlarged the group of victims from family members to include household members and those with whom the person has had a dating relationship as defined by the Family Code. Each new change of legislation carried with it the disclaimer that it only applied to offenses committed on or after the effective date of the legislation. It becomes important to know these effective dates in the prosecution and defense of family violence cases. Important Legislative Changes: The following is a synopsis of important changes made by the legislature to family violence cases. The bill numbers are required to be able to access the actual bill on the Texas Legislature online website at: http://www.capitol.state.tx.us/. Under the search legislation tab, change the legislative session to the appropriate number associated with that legislative year and then search by Senate Bill (SB) or House Bill (HB) number. The site contains a wealth of information, including all the versions of the bill with the actual final enacted version entitled “enrolled”. Under the Text tab, there is available the fiscal note, analysis of the bill and witness lists for those interested in obtaining legislative history. At the time of this paper, the 2021 Legislature was still in session. Below are some bills filed in relation to family violence cases. 2021[87th] LEGISLATIVE BILLS PENDING: 1
SB21 and HB20 are companion bills that would allow a person charged with a violent crime to be denied bail if HJR 4, the constitutional amendment, is adopted by the voters. If adopted, the constitutional amendment would allow the legislature to designate which offenses should be denied bail pending trial. Even if the enabling constitutional amendment is not passed, SB21 and HB20 would prohibit a magistrate from releasing on personal bonds a person accused of an offense involving violence, or who has previously been convicted of an offense involving violence. The committee substitute for HB20 has removed some of the more onerous restrictions, but at the time of this paper, it was unknown what version would be adopted. HB3466 would substantially amend protective orders. It would allow an adult acting on behalf of the victim younger than 18 to apply. It would require the state to apply for protective orders when the defendant has been convicted of or placed on deferred adjudication for the offense. HB1253 would create a county task force to determine how to dispose of firearms prohibited under court order in family violence cases and provide verification that the person has surrendered or otherwise disposed of all firearms in their possession. SB84 and SB110 provide for a new type of protective order, one called Lethal Violence Protective Order and the other, Extreme Risk Protective Order. The bills are otherwise identical. They provide for a protective order when a member of the respondent’s family, or household, parent, prosecutoring attorney or police officer files an application that details that the respondent poses an immediate and present danger of causing bodily injury, serious bodily injury or death to any person and includes information about respondent’s access and or related use of firearms. As part of the consideration of whether to issue the protective order the court shall consider any arrest or conviction for a misdemeanor offense involving family violence. The Court can issue an order prohibiting the person to purchase, own, possess or control firearms for the duration of the order and it can suspend a license to carry a handgun. The Order is effective for one year. There can be an EPO granted upon the application with a hearing no later than 14 days after the EPO is granted. HB1645 would allow a finding of family violence to be entered by the trial court for any offense in the Penal Code, if the court determines that the offense involved family violence. HB4175 would set out procedures for law enforcement to follow in strangulation cases, including requiring that the officer call for assistance from EMS personnel to evalute the victim and request assistance from licensed clinical social workers to assess the sitaution at the scene. It would allow the social worker to file for an EPO. It would require the court to enter a finding of strangulation after a trial and require as a condition of communtiy supervision, the defendant must attend 2
battering intervention programs. It amends §19.02 defining Murder in the Penal Code, to add (e) it is a rebuttable presumption that the actor intends to cause death, if the actor causes serious bodily injury by impeding the normal breathing or circulation of blood, by applying pressure to the throat or neck or by blocking the nose or mouth. 2019[86TH] LEGISLATION: HB 98 tries to salvage the unconstitutionality of §21.16(b) Penal Code of unlawful disclosure of intimate visual material by added “with the intent to harm that person”. In 2015 the legislature created the new offense of Unlawful Disclosure or Promotion of Intimate Visual Mater, Texas Panel Code §21.16. However, Ex Parte Jones, 2018WL2228888 (Tex. App. Tyler 2018) PDR granted, held the 2015 version unconstitutional. The PDR is still pending with the Court of Criminal Appeals. HB902 creates a new third degree felony of assault when the actor knows the person is pregnant at the time of the offense, by adding §22.01(b)(7) to the Penal Code. SB194 creates the new crime of indecent assault, without the other’s consent, with the intent to arouse or gratify the sexual desire, the actor touches the anus, breast, or any part of the genitals, touches another with the anus, breast, or any part of the genitals, exposes or attempts to expose another’s genitals, pubic area, anus, buttocks, or female areola or causes another to contact the blood seminal fluid, vaginal fluid, saliva, urine or feces of any person. It is a class A misdemeanor effective 9/1/2019. Indecent assault is added to the list of crimes eligible for an EPO, PO and to the offense of violation of conditions of bond, protective orders, and repeated violations.§22.012 Penal Code. SB2390 creates a confidential database of victims’s addresses available to the court and law enforcement and strikes them from the public record and EPO. HB1343 provides that the State shall apply for a protective order upon conviction or deferred adjudication for offense listed in 7A.01 CCP unless the victim requests them not to. Lifetime protective order if the defendant is required to register under Chapter 62. HB1399 DNA is now taken upon arrest and this bill provides that counties can create pretrial diversion programs for pregnant defendants and those that are the primary caretakers of children. HB1528 Article 45.0211CCP is amended to require that a plea to a charge involving family violence is to be taken in open court and it requires reporting of the conviction. HB1661 sets venue for continuous family violence is in any county in which 3
the conduct was engaged. SB 1268 Court can not limit the number of victims who present statements after sentencing, without a finding that it would unreasonably delay the proceedings. HB2789 creates a new offense of unlawful transmission of sexually explicit visual material. It includes covered genitals of a male that are in a discernibly turgid state which is sent without the request of or express consent of the recipient. It is a Class C offense. §21.19 Penal Code. 2017[85TH] LEGISLATION Article 38.371CCP is expanded to include any offense for which the alleged victim is a person whose relationship is described by §71.0021(b), 71.003 or 71.005, Family Code, allowing the introduction of testimony or other evidence of all relevant facts and circumstances that would assist the trier of fact in determining whether the actor committed the offense, including testimony or evidence regarding the nature of the relationship between the actor and alleged victim. It was enacted in 2015 and expanded in September 1, 2017 and again in 2019. Each expansion made to Article 38.371 CCP contained in the legislation the language that it applied to all criminal proceedings that commences after the effective date. Article 38.371(c)states that the article does not allow the presentation of character evidence that would be inadmissible under the Texas Rule of Evidence or other applicable law. Texas Family Code §85.025 is amended to allow life time protective orders if there is a finding that the person committed sexual assault or stalking. Texas Family Code §153.004 was amended that there is a rebuttable presumption that it is not in the best interest of the child to have unsupervised visitation with a parent or any person who reside’s with the parent, or person who the parent allowed unsupervised access to the child, who credible evidence has shown has a history of abuse, neglect, or family violence. §21.17 Penal Code was added to make Voyeurism a class c crime, unless the victim is a child younger than 14 years of age, at which point it becomes a state jail felony to observe another person, with the intent to arouse or gratify the sexual desire of the actor, while the other person is in a dwelling or structure in which the other person has a reasonable expectation of privacy. Effective date is September 1, 2017 §21.18 Penal Code makes Sexual Coercion a state jail felony offense, when a person intentionally threatens, to commit an offense under chapter 43, Section 20A, 21.02, 21.08, 21.11, 21.12, 21.15, 21.16, 21.17, 22.011, or 22.021 to obtain in return for not committing the offense, intimate visual material, an act involving sexual conduct, or monetary benefit. 4
§22.01 is amended to add that assault becomes a third degree felony if it is against a pregnant individual to force them to have an abortion. Effective 9/1/2017. §71.004 the definition of family violence was once again expanded to include abuse to include forcing or coercing a child to enter marriage. 2015 [84th]LEGISLATION: SB 112 allows a magistrate in an emergency protection order, upon a finding of good cause, to prohibit all communications with the protected person except through attorneys, effective May 23, 2015 by adding Article 7B.005 CCP. SB817 “Dating violence” as defined in Tx. Family §71.0021 is once again amended to add that it includes acts against an applicant for a protective order. SB116 passed during the 2011 Legislature amended Section 71.0021(a) of the Family Code to change definition of dating violence effective June 17th, 2011. Dating violence means an act by an actor that is against an individual with whom the actor has or has had a dating relationship, or against another individual who is in a dating relationship with an individual with whom the actor is or has been in a dating relationship or marriage. SB817 also allows a judge is a suit affecting child custody to consider whether a party has engaged in a history or pattern of family violence or a final protective order was rendered against a party, effective September 1, 2015 HB1779 amends Tx. Occ. §159.002 to allows release of confidential communications between a physician and a patient without the patient’s consent if disclosure is based on a subpoena under the Code of Criminal Procedure, Texas Rules of Civil Procedure, or Texas Civil Practice and Remedies Code effective September 1, 2015. HB1293 allows a victim of stalking to use a pseudonym in all judicial proceedings, effective September 1, 2015. HB910 amended Texas Criminal Procedure Article 17.293 to mandate suspension of the right to “open carry” a handgun as a part of the emergency protective order and to send notice to DPS. This bill also amended Texas Government Code §411.172 to make a person ineligible for a license to carry a handgun, if they are charged with a Class A, or B misdemeanor, convicted of a Class A or B within the last 5 years, or under a court order of protection, effective January 1, 2016. SB1317 created the new crime of Invasive Visual Recording, in which a person without the other’s consent, and with intent to invade the privacy of the other person, photographs, videotapes or records a visual image of an intimate area of another person and became effective June 18, 2015. HB2159 requires the court to order restitution for treatment, if an assault 5
involving family violence occurred in the presence of a person 15 years of age or younger, effective September 1, 2015. HB2486 allows a Justice of the Peace to enter an order allowing access to a residence accompanied by a peace officer to retrieve personal property. The applicant can not be the subject of a protective order or other court order prohibiting entry of the residence, effective September 1, 2015. SB630 adds trafficking to the list of offenses for which a victim may request a protective order. SB147 amended Tex Penal Code §25.07 to add trafficking to the crime of violation of certain court orders or conditions of bond and HB2645 adds removing, attempting to remove or tampering with a GPS device as a violation of §25.07 of the Penal Code . Effective September 1, 2015. The authority to require the GPS had been added in 2009 by HB1506, which authorizes a magistrate to require as a condition of bond that a defendant charged with family violence, wear a global position monitoring system device and if the alleged victim consents, the defendant can be required to pay the cost of a electronic receptor device that will notify the victim if the defendant is nearby. Effective 9/1/2009. 2013 [83rd] Legislature: SB1360 enhanced the punishment for tampering with a witness, if the underlying proceeding involves family violence. See §36.05 Penal Code. It becomes, which ever is higher, a 3rd degree felony or the most serious offense charged in the criminal offense. If it is shown that the defendant has been previously convicted of an offense involving family violence, then the tampering offense is a second degree felony or the most serious offense charged in the criminal case. This new law also created two new evidentiary statutes in Article 38.48 and Article 38.49 of the Code of Criminal Procedure. Article 38.48 C.C.P. allows all relevant facts and circumstances that would assist the trier of fact to determine whether the actor’s conduct coerced the witness, including the nature of the relationship, subject to the rules of Evidence. Article 39.49 codifies Forfeiture by Wrongdoing. It establishes that the court shall determine whether forfeiture by wrongdoing has occurred by a preponderance of the evidence and it can be done prior trial at a pretrial hearing. Section (d) attempts to ease the requirements for introduction of the statements or evidence by not requiring proof the intent was to wrongfully cause the unavailability, or that the actions constituted a criminal offense, or any statement offered was reliable. Section (e) states that a conviction for an offense under Section 36.05 or 36.06 of the Penal Code (tampering and retaliation statutes), creates a presumption of forfeiture by wrongdoing. Section (f) states that the Rules of Evidence apply and this article does not permit the presentation of character evidence 6
that would otherwise be inadmissible. SB 743 created the new offense of repeated violation of certain court orders or conditions of bond, §25.072 Penal Code. It is a third degree felony. The offense is not eligible for an order for non-disclosure and is added to the list offense for which a nursing license can be denied. 2011 [82th] Legislature: HB901 substantially amended Chapter Eight of the Texas Family Code providing for spousal maintenance. It requires a showing that the spouse would lack sufficient property for their minimum reasonable needs and a conviction or deferred adjudication for an act of family violence during the marriage against the spouse or child. The act had to occur within two years of the date of the filing for the dissolution of the marriage or while the suit was pending. If a spouse is eligible under other sections of 8.051, for example, a marriage longer than 10 years, then in determining the amount, and duration of the payments, the courts would be allowed under 8.052 to consider: martial misconduct including adultery and cruel treatment, by either spouse during the marriage; and (11) any history or pattern of family violence, as defined by Section 71.004. The duration of the payments would be extended from a maximum of three years to five years and longer upon dissolution of a marriage longer than 10 years. The maximum payment would be the lessor of $5000.00 instead of $2500.00 or 20% of the spouse’s monthly gross income. HB901 is effective September 1st, 2011. Sec. 84.006. HEARSAY STATEMENT OF CHILD VICTIM OF FAMILY VIOLENCE. In a hearing on an application for a protective order, a statement made by a child 12 years of age or younger that describes alleged family violence against the child is admissible as evidence in the same manner that a child’s statement regarding alleged abuse against the child is admissible under Section 104.006 in a suit affecting the parent-child relationship. Effective 9/1/2011. SB250 allows protective orders under Chapter 7A of the Code of Criminal Procedure for victims of stalking. This legislation is effective 9/1/2011 SB819 added that a person who is in a dating relationship may apply for a protective order even if they are a child. This is effective 9/1/2011. SB789 allows a protective order to be extended beyond a two year period if certain conditions are met. This went into effect on 9/1/2011.
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2009 [81st]Legislature: HB 2066 created the 3rd degree felony offense of strangulation. Section 22.01 is amended to add intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck, or by blocking the person’s nose or mouth. Effective 9/1/2009. HB 2240 added Section 25.11 of the Penal Code to create the new offense of Continuous Violence Against the Family. If during a 12 month period, the person engages in two or more acts of violence family, the offense is a third degree felony. Effective 9/1/2009. §25.11 of the Penal Code allows for different victims to be alleged as a basis for the offense. See Davis v. State, 2020WL5015276 (Tex. App. Dallas 2020). SB 82 mandates that if a judge grants community supervision to a person convicted of family violence, the judge shall require the person to pay $100.00 to a family violence center. Effective 9/1/2009. This was found unconstitutional in Guajardo v. State, 2018WL3129452 (Tex. App. San Antonio 2018). 2007 [80th]Legislature: The most significant new law of the 80th Legislature was HB3692 and corresponding HJR 6 which provided for a constitutional amendment and the enabling legislation to deny bail in certain family violence cases. HB3692 became effective January 1, 2008 after the constitutional amendment was passed. It created a new crime §Section 25.07 of the Penal Code entitled Violation of Certain Court Orders or Condition of Bond in Family Violence Case. The new crime adds violation of a condition of bond set in a family violence case or of an emergency protective order granted pursuant to Article 17.292 C.C.P. to the Code. Added to the sections is the new language “or condition of bond”. If the violation of bond or EPO is committing an assault or stalking, the offense is a third degree felony. Article 17.152 C.C.P. is amended to require a hearing within 48 hours of arrest on an offense under Section 25.07 Penal Code, with notice to the state. At the hearing, the magistrate is to make the determination of whether the conditions are met to deny bond. Article 17.152(b) states that a person who commits the offense of violation of a condition bond set in a family violence case and whose bail is revoked or forfeited for the violation, may be taken into custody and denied release on bail if the magistrate determines by a preponderance of the evidence that the person violated a condition of bond related to the safety of the victim, or the safety of the community. Article 17.152(c)provides that a person who commits an offense under Section 8
25.07 Penal Code, other than a violation of a condition of bond, may be taken into custody and denied bail if the magistrate determines by a preponderance of the evidence that the person committed the offense. Article 17.152 (d) provides that a person who violates the provision relating to going to or near a placed described in the order or condition of bond, may be denied bail, if the judge determines by a preponderance of the evidence that it was done with the intent to commit or threatening to commit family violence or stalking. Article 17.40 of the Code was amended to provide that at the hearing to determine if the defendant violated a condition of bond, if the court finds the violation, the defendant’s bond shall be revoked and he shall be immediately returned to custody. It appears that to deny bail on a violation of a condition of bond, there must be two hearings. The first the original bond must be revoked and then the judge must make the determination that the violation related to the safety of the victim or the community in order to deny bond on the Article 25.07 offense. Section 411.081(e) of the Government Code relating to Orders for Nondisclosure of criminal records was clarified to state that it is not available for a person placed on deferred adjudication for an offense involving family violence by adding the language if the person was placed on deferred adjudication for a case involving family violence. This language was added effective September 1, 2007. 2005 Legislature: SB91 created and defined “dating violence” in order to add it to the enhancements for inclusion in “family violence” definition. Dating violence was defined in 71.0021(a) of the Family Code as: an act by an individual that is against another individual with whom that person has or has had a dating relationship and that is intended to result in physical harm, bodily injury, assault or sexual assault or that is a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself. (b) For the purposes of this title “dating relationship” means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of: (1) the length of the relationship; (2) the nature of the relationship; and (3) the frequency and type of interaction between the persons involved in the relationship. 9
(c)A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a “dating relationship” under Subsection (b). Assault with injury was elevated to a 3rd degree felony if it is against (2) a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003 (family members including those who have a child together but are not married, or 71.005 (household members), Family Code, and it is shown at trial that the defendant has previously been convicted of an offense under this chapter against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code. The change in law made by this Act applies only to an offense committed on or after September 1, 2005. SB90 amended Article 14.03 of the Code of Criminal Procedure (a) Any peace officer may arrest, without warrant: (4) persons who the peace officer has probable cause to believe have committed an offense involving family violence; (f) In this article, “family violence” has the meaning assigned by Section 71.004, Family Code. 71.004 of the Family Code defines family violence to include “dating violence” as defined by Section 71.0021. Effective 9/1/2005 PUNISHMENT ENHANCEMENTS Article 22.01 of the Texas Penal Code was amended on September 1, 1999 to change the punishment range on a Class A misdemeanor assault based on a finding that the offense involved family violence and the defendant had been previously convicted of an offense involving a family member. Article 22.01 (b) (2). The Class A misdemeanor is raised to a third degree felony The 2005 law also enlarged the group of victims from family members to include household members and those with whom the person has had a dating relationship as defined by the Family Code. Household members do not include cell mates. Davis v. State, 533 S.W.3d 498 (Tex. App. Corpus Christi 2017) Applicable Family Code provisions: Section 71.003: “Family” includes individuals related by consanguinity or affinity, as determined under Section 573.022 and 573.024 Government Code, individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parents, without regard to whether those individuals reside together. 10
Section 71.005 “Household” means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other. Section 71.006 “Member of a household” includes a person who previously lived in a household. Holoman v. State, decided March 31st, 2021, 2021WL1202883 (Court of Criminal Appeals) held that it was error for the State to prove up the prior conviction that raises the offense to a felony at punishment. It must be proven at the guilt-innocence to get a felony conviction. Case was remanded to assess punishment within the range of a misdemeanor. See also Luna v. State, 402 S.W.3d 849 (Tex. App.-Amarillo 2013) which reversed the felony conviction because the proof of the prior family violence conviction had been introduced in the punishment phase of the trial instead of the guilt phase. The judgement was reformed to reflect a misdemeanor offense. Haynes v. State, 254 S.W.3d 466 (Tex. App. Hous.[1Dist.]2007) reviewed the sufficiency of the evidence to elevate an assault to a 3rd degree felony when the only evidence presented was that the victim had previously been a member of the defendant’s household. Household is defined in Section 71.005 of the family code as a unit of persons living together. Section 71.006 provides that household includes persons who previously lived in a household. Section 22.01 Penal Code does not include Section 71.006. In Haynes, the appellate court was called on to determine if a former member of the household met the statutory definition. The Court held that it did not. The Court points out that the legislature could have incorporated the expanded version of Section 71.006 of the Family Code into the Penal Code, but it did not. The Court held that the Penal Code which expressly refers to section 71.005 does not authorize the State to use Family Code section 71.006 to define who constitutes a household member. The Court reversed and rendered a judgment of acquittal. The case was affirmed on appeal in 273 S.W.3d 183 (Tex. Crim. App. 2008) holding that the judgment could not be reformed to the misdemeanor assault since that lessor included offense was not submitted to the jury. This proposition has since been overruled by Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012) allowing the appellate court to reform the judgment to the lesser offense. Edward v. State, 599 S.W.3d 69 (Tex. App. Houston 14th, 2020) PDR granted 9-16-2020, held the evidence was insufficient to show that the victim and the defendant were in a dating relationship. Police testified the victim told them he was her boyfriend, but that was not on the body camera video, she did not tell EMS that, and it was not in the medical records. Because the complainant did not testify the evidence was insufficient. The PDR is still pending in the Court of Criminal 11
Appeals. Busby v.State, 2021WL841924 (Tex. App. Waco, Mar.3, 2021) held that eventhough the prior complainant testified the assault underlying the prior conviction did not occur, the defendant could not collaterally attack the certified judgment of conviction, especially since he pled to the charge. Collateral attack of a prior can only occur if the earlier conviction was void or tainted by a sever constitutional defect and merely showing insufficient evidence will not suffice. Interpreting the Bills: Each bill passed by the legislature amending a penal offense states that if any element of the offense occurs prior to the enactment date, then the prior law remains in effect for that offense. The Texas Court of Criminal Appeals has clearly held that the facts of the prior convictions are elements of the crime. So the question became whether the prior offense was an element of the offense that had to occur after the enactment date of the new legislation. In State v. Mason, 980 S.W.2d 635 (Tex.Cr.App. 1998), the Court of Criminal Appeals reviewed a case involving the possession of a firearm by a felon. Based on prior case law, the lower courts had held that the defendant’s status as a convicted felon and the date on which he was convicted were both elements of the offense. After analysis, the Court of Criminal Appeals concluded that in spite of the language of the statute, the Legislature did not intend for the date of the prior conviction, but only the fact of the conviction, to be an element of the offense. The Court stated that the concept of the elements of an offense does not include every issue on which the State has the burden of proof. See State v. Mason, 980 S.W.2d at 641. Therefore, the Court concluded that the date of the underlying offense is not an element of the offense for the purposes of the statute on punishment. The Penal Code defines elements of the offense as (a) the forbidden conduct, (b) the required culpability, (c) any required result, and (d) the negation of any exception to the offense. TEX. PEN CODE ANN. § 1.07(a)(22) (Vernon 1994). In Sheppard v. State, the defendant, convicted of a felony family violence assault, raised on appeal the issue of use of a conviction that occurred before the date the statute went into effect. Sheppard v. State, 5 S.W.3d 338 (Tex.App.-Texarkana 1999). “For the reasons stated in Mason, we conclude that, although the fact of the prior offenses is an element of the offense, the dates of the convictions for the prior offenses are not elements of the offense for which Sheppard is being prosecuted.” 5 S.W.3d 338, at 340, Sheppard v. State, (Tex.App.-Texarkana 1999) In Reyes v. State, 314 S.W.3d 74 (Tex. App. San Antonio 2010), the Court held that evidence of the prior assault was an element of the offense and not merely an allegation for the purpose of enhancement. It must be alleged, charged and proven 12
prior to conviction. The Court held that the date of the prior conviction was not an element of the offense and although an incorrect date was alleged, that did not make the evidence of the prior conviction insufficient. Contrast: However, a different result occurs when the offense involves continuing activity. Under the stalking statute proof of more than one incident is required just as the new Continuous Family Violence statute requires proof of two more acts within a twelve month period. Pomier v. State, 326 S.W.3d 373 (Tex. App.-Hous (14th Dist.) 2010) held that if one of the acts used to establish the stalking offense occurred before the effective date of the amendment, then the prior stalking law should apply. In that felony stalking case, the Court found that the district court had jurisdiction, but only for the misdemeanor offense of stalking and the case was remanded for a new punishment hearing. The same analysis would apply to the new continuous family violence statute. If any of the acts occurred prior to September 1, 2009, then the offense would be controlled by the prior statute and it would allege a misdemeanor assault, not the felony. The jury does not have to be unanimous as to which two prior events constitute continuous family violence. Hill v. State, 455 S.W.3d 271 (Tex. App. Texarkana 2015) WHAT PRIOR CONVICTION CAN BE USED FOR ENHANCEMENT? Section 71.004 Family Code defines “family violence” as including actions that intend to cause bodily injury to a family member and actions that place a family member in fear of imminent bodily injury, among other things. Thus, a family violence finding is not tantamount to a finding that bodily injury occurred. “Thus, enhancement under this subsection required proof only of a prior conviction for assault against a family member; it did not require proof that bodily injury resulted from the prior assault. Appellant does not dispute that his prior conviction was for assault against a family member; he argues only that the State failed to prove bodily injury as alleged in the indictment.” Rogers v. State, 200 S.W.3d 233 (Tex. App. Hous [14 Dist] 2006) The issue was specifically if there was a fatal variance because the indictment alleged family violence with bodily injury but the judgment only said family violence. The court held that there was no material variance because the state is only required to show a prior conviction for family violence, not bodily injury. Many class “C” assaults are disposed of by a plea of no contest and completion of deferred disposition. This eventually results in a dismissal of the charge. However, there is an argument that the class “C” deferred disposition on a family violence case could elevate an assault with bodily injury to a third degree 13
felony. In 2005 the legislature also added other prior convictions that raise an assault against a family or household member or one with whom the defendant had a dating relationship to a 3rd degree felony. Those prior convictions are: Chapter 19(murder), Section 20.03(kidnaping), Section 20.04(aggravated kidnaping), or 21.11(indecency with a child), 25.11(Continuous Family Violence)added in 2009 or against a person whose relationship to or association with the defendant is described by Section 71.0021(b)[dating relationship], 71.003(family member), or 71.005(household member), Family Code. However, if the case is prosecuted as continuous family violence, the statue provides that only one conviction for continuous family violence can be obtained for all acts commented within a twelve month period and to obtain two convictions for such conduct violates the prohibition against double jeopardy. Ellison v. State, 425 S.W.3d 637 (Tex. App. Houston 14th Dist. 2014) DEFERRED ADJUDICATION Effective September 1, 1999, provision (f) of Article 22.01 Penal Code allows a prior deferred adjudication, “whether or not the sentence was imposed” and a prior completed community supervision to be considered as a conviction. This includes pleas of guilty or nolo contendere in return for a grant of deferred adjudication. The statute specifically states that the change in the law applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. The application of the deferred adjudication judgment as a prior conviction for the purpose of elevating the offense to a third degree felony could violate the ex post facto provisions of the Texas and U.S. Constitutions. According to the generally accepted definition, a law is ex post facto if it changes the legal rules of evidence and requires less or different evidence to convict from the law in effect at the time of the offense. Lindsey v. State, 672 S.W.2d 892 (Tex.App.-Dallas 1984) affirmed 760 S.W.2d 649 (Tex. Crim. App. 1988). The simplest case upon which to obtain a third degree felony assault conviction is where the deferred adjudication for family violence assault occurred after September 1, 1999. On September 12, 2001, the Court of Criminal Appeals reviewed Article 12.42 of the Penal Code that was amended in 1997 to allow deferred adjudication to enhance a subsequent conviction for aggravated sexual assault to an automatic life sentence in prison. Scott v. State, 55 S.W.3d 593 (Tex.Cr. App. 2001). The 14
defendant in Scott was sentenced to life based on deferred adjudication that had occurred prior to the enactment of Article 12.42. At the time of his deferred, Article 42.12 CCP provided that a dismissal under this section shall not be deemed a conviction for the purposes of disqualifications or disabilities. The Court held that the Legislature recognized that “disqualifications or disabilities” covers enhancements when it amended the statute to except specifically the deferred adjudication enhancement it created in Article 12.42. Article 42.12 Sec. 5 (c) of the Code of Criminal Procedure [now §42A.111(c)] now states: Except as provided by Section 12.42(g), Penal Code, a dismissal and discharge under this section may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense. The Court notes that normally ex post facto prohibition contained in U.S. Constitution, Art. 1, Section 10, would not bar an enhanced penalty, however, because Article 42.12[§42A.111(c)] specially limited the collateral consequences of deferred adjudication, the defendant is entitled to rely on that restriction. Therefore the Court held that the defendant could not be enhanced with a deferred adjudication that occurred prior to the change in the law Article 12.42(g) Penal Code and 42.12 Section 5(c) [§42A.111(c)]of the Code of Criminal Procedure. The Court of Criminal Appeals, with Judge Keller writing the majority decision, held that using a successfully completed deferred adjudication to enhance punishment for a later offense violated the prohibition against ex post facto laws. Scott v. State, 55 S.W.3d 593 (Tex.Cr.App. 2001). Clearly this analysis will apply to a judgment of deferred adjudication that occurred prior to September 1, 1999, that is used for enhancement under the assault statute to raise the punishment to a third degree felony. Under Scott, no felony assault should be prosecuted unless the prior deferred adjudication occurred after September 1, 1999. The other problem for the State is that Article 42.12 C.C.P. [§42A.111]was specifically amended to except sexual assault cases listed in Article 12.42 of the Penal Code from the discharge provisions of deferred adjudication. No such provision exists for deferred adjudication on family violence assault cases. Judge Keller held in Scott that the punishment increase for sexual assault cases could only apply to individuals who received deferred adjudication after Article 42.12 C.C.P.[42A C.C.P.] was amended to specifically except Article 12.42 Penal Code offenses from the discharge provisions of deferred adjudication. A defendant who was discharged prior to the change in the law, would expect that the deferred adjudication could not be used against him as a conviction. To do so, violates ex 15
post facto law. This language of the opinion is a problem for the State in using completed deferred adjudication to enhance an assault case because Article 42.12 C.C.P.[§42A.111(c)] makes no mention of family violence assault cases. The two statutes are in conflict when Article 42.12 C.C.P. [§42A.111(c)]states that a completed deferred adjudication will not be used as a conviction and then Article 22.01(f) Penal Code states that deferred adjudication is a conviction for enhancement purposes. This discussion has been about deferred adjudication, but a completed probation, or community supervision, can have similar language in the discharge order under 42A.701(f) CCP, so that the defendant can argue that he had an expectation that the completed probation released him from all penalties and disabilities. Probation has been held to not be a final conviction for the purposes of enhancement. See Jordan v. State, 36 S.W.3d 871 (Tex.Cr.App. 2001). A prior probation case was held to not be a prior conviction for stalking in order to enhance a subsequent stalking case under 42.072 (b) of the Texas Penal Code. See State v. Newsom, 64 S.W.3d 478 (Tex. App.-El Paso 2001) based on Jordan v. State, 36 S.W.3d 871 (Tex. Cr. App. 2001). The Court of Appeals in Beaumont has held that a prior successfully completed probation could be used for enhancement. Comeaux v. State 151 S.W.3d 710 (Tex. App.-Beaumont 2004) The Court found that there are two types of discharge under 42A.701 C.C.P. One is simply a release from probation, the other is a judicial clemency. Clemency occurs when the court exercises its discretion and sets aside the verdict or permits the defendant to withdraw a plea and dismisses the charging instrument resulting in a “release from all penalties and disabilities”. The Defendant had not received such a discharge and therefore any restriction on collateral consequences only applied to those who do obtain such a discharge. STRANGULATION CASES On March 10 , 2021, the Court of Criminal Appeals decided two cases together. Ortiz v. State, No. PD-1061-19, and Barrett v. State, No. PD-1362-18 had both been convicted of strangulation or occlusion and appealed on the failure of the trial court to grant the lesser included offense of assault in the court’s charge. In a 5/4 decision the Court held that bodily-injury assault is not a lesser included offense because the allowable unit of prosecution for occlusion is impeding normal breathing or circulation of the blood. A bodily injury assault is not an included offense of occlusion assault. Bodily injury assault and occlusion assault are not proven by the same or less facts, they are proven by different additional facts. Bodily injury is not a lesser included offense when the disputed element is the injury because the statutorily specified injury of impeding normal breathing or blood th
16
circulation is exclusive of other bodily injures. The Court, by implication, overrules Irving v. State, 176 S.W.3d 842 (Tex. Crim. App. 2005) which involved the same manner and means. The Court held that Irving is incorrect because non-statutory manner and means are not the unit of prosecution. The Court noted that if the relationship is at issue, then an instruction on the misdemeanor assault may be warranted. District Attorneys are now concerned that an indictment for Strangulation will not support a plea to the lesser charge of assault bodily injury. Philmon v. State, 609 S.W.3d 532 (Tex. Crim. App. 2020) involved a defendant who was convicted at trial of both Strangulation and Aggravated Assault with a Deadly weapon. The Court of Criminal Appeals found no double jeopardy bar as each had elements the other did not.
DEADLY WEAPON Lane v. State, 151 S.W.3d 188 (Tex.Crim.App. 2004) held that hands and feet were deadly weapons in an assault family violence which could raise the charge to aggravated assault. He argued that all misdemeanors could be classified as felonies under this scenario. Regardless, the Court found under this factual circumstance, the injuries sustained were serious and created a substantial risk of death, and the hands and feet were deadly weapons. The Court noted in a footnote that almost anything can be a deadly weapon. Davis v. State, 533 S.W.3d 498 (Tex. App. Corpus Christi 2017) held that bruises on the face did not show the defendant’s hands were used as a deadly weapon in this aggravated assault with a deadly weapon case. Affirmative Finding of Family Violence and Proof Requirements Article 42.013 C.C.P. requires a finding of family violence be entered into the judgment of any case if the court determines that the offense involved family violence. This rule has been in effect since September 1, 1993. In State v. Eakins, 71 S.W.3d 443 (Tex.App.-Austin 2002), the trial court had granted a motion to suppress the evidence from the prior conviction because there was no affirmative finding of family violence in the judgment. The Third Court of Appeals reversed, holding that the affirmative finding is only one way to prove that the prior case involved family violence. The Court held that the State could introduce extrinsic evidence that the previous assault was committed against a family member. This 17
evidence can be the testimony of the prior victim, testimony from a witness to the assault or the arresting police officer. In Word v. State, the jury had been instructed to find the issue of family violence if it believed that the issue had been proven by a preponderance of the evidence. The defendant appealed the affirmative finding in his judgment. The Court found that since this was a misdemeanor, the issue was not ripe for decision. Word v. State, 206 S.W.3d 646 (Tex.Cr.App. 2006). In Tanner v. State, 335 S.W.3d 784 (Tex. App.-Amarillo 2011) the Court of Appeals reversed a felony family violence conviction. The judgment of the prior conviction contained nothing about the assault having been upon or involving a family member. Plea documents were introduced that stated the defendant had been charged with Assault-BI-FM. No evidence was introduced to explain what that meant, and there was no named victim. The judgment did not contain the finding required by the Code. As a result, the Court of Appeals found that the initials FM failed to satisfy the State’s burden of proof and reversed the felony conviction reforming the judgement to a misdemeanor and remanding for a new punishment hearing. Proposed Jury Charge The Family Violence Court in Travis County uses the following affirmative finding form charge in the Guilt/Innocence stage of the trial: Do you find from the evidence beyond a reasonable doubt that on or about the __day of ____, 200_, the defendant, A.B., a member of a household or family, committed an act that was intended to result in physical harm, bodily injury, or assault or that is a threat that reasonably places the member of a family or household in fear of imminent physical harm, bodily injury, or assault? Answer yes or no_________ Presiding Juror See Texas Practice Series Vol. 8 Criminal Forms and Trial Manual Section 100.13A McCormick and Blackwell. Apprendi Issue In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that it denied the defendant due process of law under the 14th Amendment to the U.S. Constitution for the Legislature to remove from the jury the assessment of facts that increase the range of penalties. The issue of whether or not a hate crime occurred must be submitted to the jury. In Ex parte Boyd, 58 S.W.3d 134 (Tex.Cr.App. 18
2001), the Court of Criminal Appeals followed Apprendi, granting relief where the trial court made the finding that enhanced the defendant’s sentence. Thus it is clear that the enhancement by conviction must be presented to the jury for them to sentence the defendant to a 3rd degree felony based on a prior conviction under Article 22.01, Penal Code. Article 42.014 of the Code of Criminal Procedure requires that the proof of a hate crime to be determine beyond a reasonable doubt giving credence to the argument that Article 42.013 should also require proof of family violence to be determined beyond a reasonable doubt. Butler v. State, 189 S.W.3d 299 (Tex. Crim. App.2006) held that Apprendi did not apply to misdemeanor assault cases in that the defendant was not entitled to a jury trial on the family violence finding, since it would not increase the defendant’s sentence as Article 42.013 Code of Criminal Procedure states that the court shall make the affirmative finding. COLLATERAL CONSEQUENCES Deportation Any alien who is convicted at any time for a crime of domestic violence is deportable. Convictions include deferred adjudication. Any alien convicted of violating a protective order is deportable. In 1996, Congress changed the definition of “conviction” to include “if adjudication of guilt has been withheld where (i) the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.” Padilla v. Kentucky, 130 S.Ct. 1473 (2010) held that the failure to advise the defendant that his plea made him subject to automatic deportation, would result in a finding of ineffective assistance of counsel and defendant was entitled to set aside his plea. Ex Parte Rodriguez, 350 S.W.3d 209 (Tex. App.-San Antonio 2011) denied the writ holding that it was not clear that a plea to assault family violence would make deportation automatic and the court documents advised defendant that he “may be” deported. However, in Ex Parte Saldana, 2010WL2789032 (Tex. App.-Austin) the trial court granted the writ finding that the plea was involuntary. Saldana’s affidavit stated that his trial counsel informed him that his plea to deferred adjudication on the assault family violence misdemeanor charge would have no effect on his immigration statute and that he could later expunge his record. Even though he was admonished by the trial court both orally and in writing that his plea of nolo contendere could result in his deportation, he relied upon his counsel’s advice. The appellate court found that the trial court had not abused its discretion in 19
granting habeas relief. Federal Firearms Violations 18 U.S.C. 922 (g)(9) provides: It shall be unlawful for any person who has been convicted in any court of a misdemeanor crime of domestic violence , to....possess..., any firearm or ammunition. 18 U.S.C. 921 (a) (33)(A) provides: (a) As used in this chapter(33)(A) ... the term misdemeanor crime of domestic violence means an offense that(I) is a misdemeanor under Federal or State law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent or guardian of the victim. (B)(I) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless— (I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and (II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either (aa) the case was tried by a jury or (bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise. (ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. In 2014 the Supreme Court decided U.S. v. Castleman, 134 S.Ct. 1405 (2014) and held a “misdemeanor crime of domestic violence” includes that degree of force that supports common-law battery, namely offensive touching. Thus domestic abusers convicted of generic assault are disqualified from gun ownership. Bodily injury must result from physical force which includes indirect force and the 20
application of such force is the “use” of force. Castleman was convicted of intentionally and knowingly committing bodily injury. In 2016 the Supreme Court held that reckless domestic assault qualified as a crime of domestice violence to prohibit possession of a firearm after conviction. Voisine v. U.S., 136 S.Ct. 2275(2016).. U.S. v. Reyes-Contreras, 910 F3d 169 (2018) overruled a long line of cases that has previously held that the Texas assault statute allowed for indirect use of force therefore it did not qualify as a “crimes of violence”. U.S. v. Reyes-Contreras held that recklessness is sufficient to establish use of force and qualify as a “crime of violence”. U.S. v. Espinoza, 733 F.3d 568 (5th Cir. 2013) held that recklessly causing bodily injury to another qualifies as a “violent felony” under Article 18 U.S.C. §924(e) so he could be convicted of a felon in possession of a firearm based on Texas Penal Code felony assault under §22.01. Article 42.0131 of the Code of Criminal Procedure requires a judicial admonition regarding firearms to a person convicted of a misdemeanor involving family violence. A felony deferred adjudication probably prohibits possession of a firearm as the person is still under indictment. See 18 USC 922 (n) which prohibits possession while under indictment for an offense punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. A completed felony deferred adjudication can probably possess a firearm under federal law, as 18 USC 921 (a)(20) states that whether it is a conviction is a matter of state law and a charge that has been expunged or set aside shall not be considered a conviction. A sentence of community supervision, including a completed supervision, for a misdemeanor would probably prohibit the person from possessing a firearm under 18 USC 922 (g)(9). A current probation for a felony, including a completed felony probation, for family violence will prohibit possession of a firearm under 18 USC 922(g)(1) and 18 USC 921(a) (20). A final conviction for a misdemeanor family violence would prohibit possession under 18 USC 922(g)(9). A final felony conviction will prohibit possession under 18 USC 922(g)(1). Protective Orders 18 U.S.C. 922 (g)(8) prohibits a person from possessing a firearm if they are subject to a court order that: (A) was issued after a hearing of which such person 21
received actual notice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(I) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury. The Fifth Circuit has held that the 2nd amendment right to bear arms can be subject to certain restrictions, including limiting the rights of anyone subject to a restraining order. See U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001) It is clear that a person under a Chapter 85 Family Code Protective Order, issued after notice and hearing, can be prosecuted under 18 U.S.C.922 for a felony. An emergency protective order that was obtained without notice to the defendant would not qualify under federal law as a bar to possessing a firearm. However, see Texas state law 46.04(c)Texas Penal Code which does prohibit possession during an EPO. State Law Prohibiting Firearm Possession Article 46.04 of the Texas Penal Code: Unlawful Possession of Firearm (b) A person who has been convicted of an offense under Section 22.01, punishable as a Class A misdemeanor and involving a member of a person’s family or household, commits an offense if the person possesses a firearm before the fifth anniversary of the later of : (1) the date of the person’s release from confinement following conviction of the misdemeanor; or (2) the date of the person’s release from community supervision following conviction of the misdemeanor. (c)A person, other than a peace officer, ... who is subject to an order issued under Article 17.292[emergency protective order] ..commits an offense if the person possesses a firearm after receiving notice of the order and before expiration of the order. The order can be in effect for 61 days with no hearing to the defendant. These sections are class A misdemeanor offenses under State law. This state law does not prohibit possession while under indictment for a felony. It would not apply to one who is on deferred adjudication or who has 22
completed deferred adjudication for a misdemeanor family violence offense as §46.04(b)(2) Penal Code limits it application to a person who was released from community supervision following conviction of the misdemeanor. However, beware of Ex parte Smith, 296 S.W.3d 78 (Tex. Crim. App. 2009) in which the Court (Womack, J.) says “Whether the Unlawful Possession of Firearm statute applies to a person who is, or has been, on felony deferred-adjudication community supervision is not clear.” The Court denied the writ to set aside a plea to unlawful possession of a firearm by a felon, when the defendant had been on felony deferred adjudication at the time of the possession of the firearm. Because §46.04(a)(1) simply refers to a person’s release from supervision under community supervision and deferred adjudication is a type of community supervision, it is possible to read the statute to apply to those who have been sentenced to or served felony deferred adjudication. For a person who is on regular probation for either the felony or misdemeanor offense, possession would be prohibited. Once probation or a jail sentence is completed, the person must wait 5 years from their release before possessing a firearm. A person convicted of a felony, including a completed felony probation, can not possess a firearm for 5 years after their release and may not possess a firearm at any location other than their home, 46.04(a).
Custody of Children Section 153.004 of the Texas Family Code outlines some important consequences upon a finding of a “history of domestic violence” in a suit affecting the parent child relationship. The Family Code requires that the court consider evidence of abuse that occurs within two years of the filing and the court may not appoint joint managing conservators if credible evidence is presented of abuse. Section 153.004(c)makes it clear that the court must deny access to a child to a parent who has a history or pattern of committing family violence. Spousal Maintenance Section 8.051 of the Texas Family Code provides for spousal maintenance in the dissolution of a marriage that lasted more than 10 years. However, if a spouse was convicted of or received deferred adjudication for a criminal offense that constitutes an act of family violence, the person’s spouse is eligible for maintenance regardless of the length of marriage as long as the conviction occurred within two 23
years of filing the suit for dissolution of the marriage and the spouse does not have sufficient property to provide for minimum reasonable needs. 2011 legislation changed the statutory requirements and raised the amount up to $5000.00 for up to five years, unless the marriage was more than 10 years in length. See §8.054 and §8.055 Texas Family Code. EMERGENCY PROTECTIVE ORDERS Under Article 17.292 of the Code of Criminal Procedure, Protective Orders can only be issued after the arrest for an offense involving family violence, or the offenses of stalking, trafficking of persons, sexual assault, indecent assault, and aggravated sexual assault. The magistrate may issue the order on their own motion or at the request of the victim, guardian of the victim, a peace officer or the attorney representing the state. The victim need not be present in court when the order is issued. Even if this order conflicts with existing court orders, the conditions imposed under this Article prevail. The order may suspend a license to carry a concealed handgun. Under Article 17.292 (b) the magistrate shall issue an emergency protection order if the arrest is for an offense that involves; (1) serious bodily injury to the victim; or (2) the use or exhibition of a deadly weapon during the commission of an assault. Article 17.291 of the Code of Criminal Procedure allows for detention after bond has been posted in cases involving family violence.
EVIDENTIARY ISSUES Excited Utterances Prior to the Supreme Court decision of Crawford v. Washington in 2004, many family violence cases were tried with the use of hearsay statements made by alleged victims that failed to appear at the trial. Even after Crawford excited utterances are still a crucial piece of evidence in many family violence trials. Texas Rules of Evidence 803(2) allows this evidence as an exception to the hearsay rule if the statements related to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Under the Rules of Evidence the availability of the declarant is irrelevant. The foundation of the exception is that the statements are involuntary and do not allow the declarant an adequate opportunity to fabricate, thus ensuring their trustworthiness. Reyes v. State, 48 S.W.3d 917 (Tex.App.-Ft. Worth 2001), sets out the qualifications of an 24
excited utterance as being: 1. The statement must be the product of a startling occurrence; 2. The declarant must have been dominated by the emotion, excitement, fear or pain of the occurrence; and 3. The statement must be related to the circumstances of the startling occurrence. Other factors to consider are whether the statement was made in response to questions and how much time has elapsed between the startling event. The officer testified that the victim in Reyes was crying and upset and she had swelling and bruises on her face. The Court held that the statement “he hit me” was made while she was dominated by the emotion, pain and excitement resulting from the assault and her statement related to the startling occurrence. The dissent in Reyes points out the problems with majority decision. The statement was made in response to the police question, “did he hit you?” Being “upset”, the dissent says, is not the same as being in the grip of a violent emotion which would prevent the fabrication of a falsehood. In addition, the dissent objects to the admission of the statement because to be a spontaneous reaction to an exciting event, there must be independent proof of the occurrence to which the statements relate; the statements themselves cannot be used to prove the exciting event. Civil cases have long required such a showing. The dissent would hold that the statement was not spontaneous since the emotion was insufficient, there was no evidence of an exciting event, and no evidence of when an event occurred. Aguilera v. State, 75 S.W.3d 60 (Tex.App.-San Antonio 2002), held that statements made one year after the date of the event, were not excited utterances and the trial court erred in admitting the statements. Statements made by a child two days after returning to the home of her mother, were not excited utterances because there was no showing that she was still in the grip of a violent emotion. Martinez v. State, 178 S.W.3d 806 (Tex. Crim. App. 2005) The Court of Criminal Appeals in, Zuliani v. State, 97 S.W.3d 589 (Tex.Crim.App. 2003), held her statement 20 hours after the altercation made in response to questioning, was in fact, an excited utterance. The key for the Court was “whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event”. The time period separating the event and the statement, and whether the statement was in response to question, are simply factors to be considered. In this case, the trial court did not abuse its discretion in admitting the statement. There was no 6th amendment issue because the declarant testified at trial. The Court of Criminal Appeals in Apolinar v. State, 155 S.W.3d 184 (Tex.Crim.App. 2005), held that the admission of a statement four days after the startling event was still an excited utterance. Here the victim was in the hospital, 25
heavily medicated, and when he awoke he told his daughter what had happened. The court held under the unusual circumstances of this case, he had not had an opportunity to reflect or fabricate. In Hughes v. State, 128 S.W.3d 247 (Tex.App.-Tyler 2003) (petition ref’d), the court reversed the case on the improper admission of victim statements under the excited utterance exception. The victim had given a detailed history of sexual abuse by her father, the defendant, which was obtained by protracted interrogation. It was not possible to conclude that the statements were made without the opportunity for reflection. See also, Tienda v. State, 479 S.W.3d 863 (Tex. App. Eastland 2015) which held that a recording of victim discussing abuse from months earlier was not an excited utterance. 6th Amendment Violation In 2004 the Supreme Court overruled Ohio v. Roberts issuing the most important evidentiary development in family violence cases in Crawford v. Washington, 124 S.Ct. 1354, 541 U.S. 36 (2004). The 803 hearsay exception was not sufficient for admissibility. If the declarant does not testify, the defendant’s right of confrontation has been violated. Old Rule: In order to be admissible the state previously had to meet the two part test set out in Ohio v. Roberts, 100 S. Ct. 2531 (1980). First, the evidence must be reliable and secondly, the State must show necessity. The hearsay exception only meets the reliability half of the test. The State could then meet the necessity requirement by proof that the declarant is unavailable. If the evidence did not fall within a “firmly rooted” hearsay exception, then Smith v. State, 61 S.W.3d 409 (Tex.Cr.App. 2001) required a showing of particularized guarantee of trustworthiness in order not to violate the 6th amendment. However Crawford changed those rules. New Rule: The Supreme Court held that if a statement is “testimonial” it can only be admitted if the declarant is unavailable and the defendant has had a prior opportunity to cross examine the witness. The court set out a limited number of examples of what constitutes “testimonial” evidence. Prior testimony at a preliminary hearing, or at a grand jury or former trial and “police investigations” were recognized by the Court as constituting a statement that is testimonial. In Crawford the State used the declaration against interest hearsay exception to admit Crawford’s wife’s statement to police against him in his trial for murder. She had made the statement at the station house while being considered a possible suspect herself. She then became unavailable due to the spousal privilege. The Court reversed the conviction based upon the admission of her statement in violation 26
of Mr. Crawford’s 6th amendment right to confrontation. What is testimonial? For the next two years the state courts struggled to define what the Supreme Court meant by testimonial. Wilson v. State, 151 S.W.3d 694(Tex.App.-Ft. Worth 2004), held that the girlfriend’s statement to police when she was inquiring about her car, which the defendant has just wrecked, were excited utterances, nontestimonial and therefore admissible. Wall v. State, 184 S.W.3d 730(Tex.Crim.App. 2006), affirmed the lower court finding that statements made by a homeless man in the emergency room to a deputy about his injuries were testimonial. The statements had been admitted when the man did not testify in the defendant’s aggravated assault trial. The trial court had admitted the statements as excited utterances. But the Court of Appeals and the Court of Criminal Appeals both agreed that the statements were “testimonial” and violated the defendant’s right to confrontation under Crawford v. Washington. The statements were testimonial because a reasonable person would have appreciated the fact that the officers were conducting a criminal investigation and collecting evidence for a prospective prosecution. The court found that the error did not contribute to the conviction, but reversed the case for the lower court to determine if the error impacted the punishment stage of the trial, which the court on remand found that it did not. 286 S.W.3d 372 (Tex. App. Corpus Christi 2008) Kearney v. State, 181 S.W.3d 438 (Tex.App.-Waco 2005), held that the tape recording of a 911 call to police was not “testimonial” and did not violate Crawford. In Davis v. State, 169 S.W.3d 660 (Tex.App.-Austin 2005) the 3rd Court of Appeals held that if the person obtaining the statement is a governmental employee or police officer carrying out an investigation or prosecutional function, the statement is “testimonial”. But the question remained whether that was required to be testimonial. The error was found harmless when the defendant testified, corroborating much of the out of court statements and the Court of Criminal Appeals agreed. 203 S.W.3d 845 (Tex. Crim. App. 2006). On June 19th, 2006 the Supreme Court gave the lower courts guidance on this very difficult issue. Davis v. Washington, 126 S.Ct. 2266 (2006) was actually two cases decided together that illuminate what is testimonial and therefore in violation of the Sixth Amendment right of confrontation and cross examination of the witness in a criminal trial. The Davis case involved the admission of the 911 tape recording. Ms. McCottry called the police to report that she was being assaulted by her boyfriend, Mr. Davis. She did not testify at his trial but the court admitted the 911 recording over the defendant’s Sixth Amendment objection. The Supreme Court held that the 911 tape recording was not “testimonial”. The caller 27
was describing events as they were actually happening and she was facing an ongoing emergency. The court held that the primary purpose of her call was to enable police assistance to meet her ongoing emergency. The Court held that statements were nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. The Court noted in Davis that emergency assistance calls can evolve into testimonial statements once the purpose of the call has been achieved. The Supreme Court instructed trial courts that they should redact or exclude the portions of any statement once it becomes testimonial. Since the jury in Davis did not hear the complete 911 call, the Supreme Court stated that they were only deciding whether the early statements identifying Davis as her assailant were testimonial and they held that they were not. The second case decided and cited in Davis v. Washington, is Hammon v. Indiana. In Hammon the police responded to a domestic disturbance. Upon arriving, the police noted that Ms. Hammon was alone on the front porch, appearing somewhat frightened. She first told them that nothing was the matter. Later during the investigation, she signed an affidavit and told the officers that her husband shoved her to the floor, hit her in the chest and threw her down. Though subpoenaed, she failed to appear at trial and the affidavit and police testimony was admitted over the defendant’s Sixth Amendment objections as excited utterances. The testifying officer acknowledged that there was no emergency in progress and no immediate threat to Ms. Hammon. The officer’s interrogation was part of an investigation into possible criminal past conduct. The fact that the statement was given at the crime scene is immaterial. The purpose of the questioning in another room was to investigate a possible crime. Such statements under official interrogation are an obvious substitute for live testimony as they do precisely what a witness does on direct examination, and therefore they are inherently testimonial. Some cases interpreting Crawford and Davis have held that statements are only testimonial if they are made to police officers. “Testimonial” has been defined in the Texas courts as structured questions in an investigative environment or courtroom where the declarant reasonably believes the responses might be used in the future. Gongora v. State, 214 S.W.3d 58 (Tex.App.-Ft. Worth 2006). Accomplice out of court confessions have been found to be testimonial and the introduction of the confession was not harmless. Rubio v. State, 241 S.W.3d 1 (Tex. Crim. App. 2007). Confidential police informant’s out of court statements 28
were testimonial and violated the defendant’s right to confrontation. Langham v. State, 305 S.W.3d 568 (Tex. Crim. App. 2010) CPS report containing a collateral source’s allegations were testimonial and violated Crawford and admission as a business record exception was error but harmless. Wells v. State, 241 S.W.3d 172 (Tex. App. Eastland 2007). Excited utterance to police officer was testimonial and Crawford error, however it was harmless because the defendant testified. Majority notes that the defendant did not object to having to testify. Davis v. State, 203 S.W.3d 845 (Tex. Crim. App. 2006). In Mason v. State, 225 S.W.3d 902 (Tex. App. Dallas 2007), an extremely upset and visibly injured woman answered the door. She stated that her boyfriend had threatened to kill her and he was inside the apartment. The Court of Appeals initially held the introduction of these statements when the complainant did not testify violated Crawford. The U.S. Supreme Court remanded the case in light of Davis, Texas v. Mason, 127 S.Ct. 68 (2006). On remand the Court of Appeals held that the facts in this case were much closer to the facts in Hammon in that Davis involved a 911 call made during an ongoing emergency. The Court held, once again, that the statements were testimonial because the police were investigating what had happened before they arrived. There was no immediate emergency in progress. The case was reversed and PDR was denied. In Vinson v. State, 252 S.W.3d 336 (Tex. Crim. App. 2008) a 911 hangup call was made. Upon arrival the girlfriend identified Vinson as her attacker before he was placed in the patrol. After he was secured in the car, she described the assault in detail to the police. All statements were admitted when she failed to appear for trial. The Court of Criminal Appeals held that the identification was not testimonial because there was an ongoing emergency until the defendant had been secured in the police car. However, the statements made describing the assault were obtained when no emergency exited because the defendant had been removed and the police were interviewing the witness. The case was reversed for the Crawford violation. On remand the Court of Appeals found harmful error, 266 S.W.3d 65 (Tex. App. Hous. 1st 2008). Rodriguez v. State, 274 S.W.3d 760 (Tex. App.-San Antonio 2008) held that the identification of the victim’s “boyfriend” and the description that she had escaped from the house were admissible because of the on going emergency, but statements after the detention of the defendant were inadmissible though error was harmless. In Zapata v. State, 232 S.W.3d 254 (Tex. App.-Houston [1st Dist.]2007) the complainant had left the home, called 911, and then returned to wait outside the house while the defendant remained inside the house. The Court held that the 29
responses of the complainant to the police questioning were testimonial because there was no argument or confrontation occurring when the officers arrived. The officer testified that she was interrogating the complainant, who was in an emotional state, to gather evidence about past events and that the complainant was not describing any ongoing emergency. Santacruz v. State, 237 S.W.3d 822 (Tex. App.-Houston [14th Dist.] 2007), involved a 911 recording about 10-15 minutes after the alleged assault. The complainant was bleeding and requesting an ambulance. She had fled to her mother’s house and was afraid that the defendant would follow her. Even though she was at times describing past events, the Court held that the 911 call was not testimonial because the primary purpose of the interrogation was to enable police assistance in an ongoing emergency. On February 28, 2011, the Supreme Court clarified what Davis meant by “the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency” in Michigan v. Bryant, 131 S.Ct. 1143 (2011). The victim stated to police that Bryant shot him and then the victim died. Michigan Supreme court held that the statement was testimonial as the primary purpose was to prove past events and not to meet an ongoing emergency. The Supreme Court reversed saying that since this is a non-domestic dispute, the ongoing emergency continues because of the potential threat to police and the public. Thus the statements were not testimonial hearsay and the Confrontation Clause did not bar their admission. Gutierrez v. State, 516 S.W.3d 593 (Tex. App. Houston-1st Dist 2017) held that the 911 call and the victim’s statement were testimonial and reversed the conviction finding that the denial of confrontation was harmful. The appellate court found that both the 911 call and the victim’s statement focused on what happened in the past without any discussion of an ongoing emergency. The defendant had driven away and no one expressed any concern that he might return. The focus of the statements were about what had already happened and not about was happening or what might happen in the future. Since the deputy was the only witness at trial and he did not witness the assault, the court found that the evidence contributed to the Defendant’s conviction and punishment. Forfeiture by Wrongdoing The Supreme Court recognized that when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. The rule of forfeiture by wrongdoing extinguishes confrontation claims. Under the Federal Rules of Evidence, the standard is proof by a preponderance of the evidence standard. The Supreme Court held that absent a finding of forfeiture by wrongdoing, the Sixth 30
Amendment operates to exclude Ms. Hammon’s affidavit. In Sohail v. State, 264 S.W.3d 251 (Tex. App.-Houston [1st Dist.]2008) the wife refused to testify and was found in contempt. The court then made a determination that her refusal to testify was due to the defendant’s wrongdoing and allowed the admission of out of court statements made by the wife. Numerous witnesses testified that the victim told them that the defendant had repeatedly assaulted her because she was unable to get the charges dismissed. The Court of Criminal Appeals held that murdering the victim forfeits the defendant’s 6th amendment claim that admission of the victim’s statements to police violated his right to confront the witness. Gonzales v. State, 195 S.W.3d 114 (Tex. Crim. App. 2006). However, the Supreme Court in Giles v. California, 128 S.Ct. 2678 (2008) held that the scope of the forfeiture rule applies only when the defendant engaged in conduct designed to prevent the witness from testifying. Mr. Giles was accused of shooting and killing his ex-girlfriend. Prosecutors introduced out of court statements the deceased had made to the police about 3 weeks before the shooting alleging that the defendant had assaulted her and threatened to kill her. The trial court admitted the statements because they concluded that he had committed the murder for which he was on trial and therefore he had made the witness unavailable to testify. The Supreme Court held, “The notion that judges may strip the defendant of a right that the Constitution deems essential to a fair trial, on the basis of a prior judicial assessment that the defendant is guilty as charged, does not sit well with the right to trial by jury. It is akin, one might say, to “dispensing with jury trial because a defendant is obviously guilty.” The Court noted that common law uniformly excluded unconfronted inculpatory testimony by murder victims (except dying declarations) in the numerous cases in which the defendant was on trial for killing the victim, but was not shown to have done so for the purpose of preventing testimony. The Court also stated that in family violence cases “where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution-rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.” The Supreme Court reversed the case for admitting the deceased statements. On remand Supreme Court stated the lower court would be allowed to consider the intent of the defendant, something they had not done believing it was irrelevant to the issue of forfeiture. Article 38.49 C.C.P. is the specific Texas law on forfeiture by wrongdoing enacted in 2013 and amended in 31
2015. Because §(1) states that the party offering the evidence is not required to show that the actor’s sole intent was to wrongfully cause the witness’s or prospective witness’s unavailability, the statute appears in direct conflict with the Supreme Court holding in Giles, and therefore maybe unconstitutional. In Brown v. State, 618 S.W.3d 352 (Tex. Crim. App. 2021) the Court of Criminal Appeals found that the trial court had erred in allowing the out of court statements of the alleged victim to be admitted based on the forfeiture by wrongdoing exception to the Confrontation Clause. There was no evidence of any threats or conduct designed to prevent the witness from testifying. The only evidence was that the defendant lied to the investigator about the whereabouts of the alleged victim and that he continued to live with her during the pendency of the case. The Court found such evidence to be insufficient to support a finding of forfeiture by wrongdoing. Inconsistent Hearsay If the State does introduce hearsay statements of a victim, then under Rule 806, the defendant is allowed to introduce other inconsistent hearsay statements to impeach the declarant. See Marcel v. State, 64 S.W.3d 677 (Tex. App.-Hous [1 Dist.] 2001). See also Sohail v. State, 264 S.W3d 251 (Tex. App.-Houston [1st Dist.]2008) which held it was error to refuse to allow the complainant’s sister to testify that she was told the injuries were an accident. However, the court held the error was harmless. Marital Privilege Rule 504(b) states that in a criminal case, the spouse of the accused has a privilege not to be called as a witness by the State. The exception is in any proceeding in which the person is charged with a crime against the person’s spouse, a member of the household of either spouse, or any minor child. This allows the State to force spousal victims to testify even against their wishes. However, in violation of protective orders, the spouse may not be victim of the crime. So a common law marriage might prevent the State from calling a spouse to testify about a violation of a protective order. Evidence of a common law marriage may be by a signed declaration of marriage or evidence that a man and woman agreed to be married and were living together while representing themselves as married to others. See 2.401 (a)(1)(2) of the Texas Family Code. This section was held unconstitutional as applying this informal marriage only to a man and a woman in violation of Obergefell v. Hodges, 135 S.Ct. 2584 (2016) in Ranolls v. Dewling, 223 F. Supp. 3d 613(U.S. District Court Eastern District 2016). 32
Due Process to Present a Defense In Alonzo v. State, 67 S.W.3d 346 (Tex.App.-Waco 2001), a murder defendant wanted to introduce a videotape of an eyewitness who identified another as the murderer. The witness was subsequently charged with false report to a police officer and refused to testify. The trial court refused to allow the introduction of the statement. Due process requires that the defendant be allowed to present his defense so that the appellate court found error in denying the introduction of the tape when there was no issue of the trustworthiness and the State had ample opportunity to examine the witness extensively prior to trial. Holmes v. South Carolina, 126 S.Ct. 1727, 547 U.S. 319 (2006), struck down a state evidentiary rule that prohibited introduction of a third party’s guilt. The Supreme Court recognized that the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense under the Due Process Clause of the 14th Amendment and the compulsory process or confrontation clause of the 6th Amendment. Expert Testimony Experts are not permitted under Rule 702 of the Rules of Evidence to give an opinion that a complainant or a class of persons to which the complainant belongs is truthful. See Aguilera v. State, 75 S.W.3d 60 (Tex.App.-San Antonio 2002), relying on Yount, 872 S.W.2d 706 (Tex.Cr.App. 1993). See also, Gonzalez v. State, 301 S.W.3d 393 (Tex. App. El Paso 2009). Lay witnesses are also prohibited from giving their opinion about whether the complainant is telling the truth. In Arzaga v. State, the officer testified that he believed the complainant. 86 S.W.3d 767 (Tex. App.-El Paso 2002). The Court noted that it is generally improper for a witness to offer a direct opinion as to the truthfulness of another witness. See Schutz v. State, 957 S.W.2d 52, 59 (Tex.Crim.App. 1997); Yount v. State, 872 S.W.2d 706, 710-11 (Tex.Crim.App.1993) (opinion on reh’g). “This type of testimony is inadmissible because it does more than assist the trier of fact to understand the evidence or to determine a fact in issue; it impermissibly decides an issue for the jury. In other words, it is not helpful to the jury, and consequently, is inadmissible under TEX.R.EVID. 702. Although this issue generally arises in the context of expert witnesses, lay opinions must also be helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. See TEX.R.EVID. 701. It follows, then, that a lay witness is not permitted to offer an opinion that another witness is truthful. Because the officer’s testimony had no purpose other than to show that the State’s witnesses were telling the truth, the trial court erred in admitting it.” The defense attorney preserved error by objecting that this evidence was improper bolstering, but such error was harmless. 86 S.W.3d at 776 Arzaga v. 33
State, (Tex.App.-El Paso 2002). Expert witness testimony has been admitted to explain the “cycle of abuse”. Scugoza v. State 949 S.W.2d 360 (Tex. App.-San Antonio 1997) To be admissible, the testimony must first be shown to help the jury understand the evidence. Prosecutors often cite jury misconceptions about family violence as a reason that the testimony would aid the jury. The next requirement is that the expert must be qualified. Rule 702 of the Texas Rules of Evidence, allows the witness to be qualified based on knowledge, skill, experience, training, or education. Then the testimony must be shown to be relevant to the issues and questions of the case. To be admissible the expert testimony must be shown to be reliable. The Daubert/Kelly factors come into play on the reliability aspect. The proponent of the evidence must show: (1)whether the scientific theory can be tested; (2)has the theory been subject to peer review and/or publication; (3)the known or potential rate of error; and (4)whether the principal is generally accepted in the scientific community. These are the factors to be considered in hard science cases. In Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998) overruled on other grounds, the Court tailored the Daubert/Kelly test for the soft sciences. The Court found the appropriate questions to be: (1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert’s testimony is within the scope of that field, and (3) whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field. Prior to admitting the expert testimony to the jury, the court is required by Rule 705(b) of the Texas Rule of Evidence to hold a hearing on these issues outside the presence of the jury. Harris v. State, 133 S.W.3d 760 (Tex. App.-Texarkana 2004) In Gonzales v. State, 301 S.W.3d 393 (Tex. App. El Paso, 2009) a qualified expert on heroin withdrawal was not allowed to testify for the defense. In affirming the trial court’s decision, the appellate court held that the expert had not observed the defendant during his withdrawal state, so that the general testimony was inadmissible. The court found the testimony unreliable and irrelevant because it was not specifically based on the facts of the case. The Court of Criminal Appeals in Tillman v. State, 354 S.W.3d 425 (2011) reversed the trial court for refusing to admit expert testimony by a psychologist about the reliability of eye witness identification. The Court found the expert opinion to be reliable and relevant even though he did not express an opinion about the facts of the defendant’s case. The expert answered hypothetical questions which mirrored the procedures used in the case. During the hypothetical questions, he applied his knowledge to the facts presented thereby making his testimony relevant. 34
Exclusion of an expert on weapon-focus effect on eyewitness identification was upheld in Blasdell v. State, 470 S.W.3d 59 (Tex. Crim. App. 2015). The Court held that under 702 the proponent was required to prove by clear and convincing evidence that the evidence was reliable. Reliability requires proof that the principle is generally accepted in the professional community. The expert testified that he had read 85-90 articles but admitted he had not published any peer reviewed articles or conducted any studies of his own. As a result, there was no evidence of a potential error rate or whether literature in the scientific community supports or rejects the theory. These same arguments can be made to try and exclude experts who have only been trained by the prosecution. See Texas District and county Attorney’s Association article in The Prosecutor, January-February 2014, Vol. 44, No.1 in which the prosecutor discusses training a paramedic to testify as a strangulation expert. Perez v. State, 25 S.W.3d 830 (Tex. App. Houston 1st Dist. 2000) is a good defense case for how to object to the state’s expert witness. The Court held that it was reversible error to allow a witness, who was not qualified, to provide testimony on theory of child abuse accommodation syndrome. In the Texas Journal of Women and the Law, author Lauren Zykorie sets out the methodology for establishing a domestic violence advocate as an expert witness. See 11 TxJWL 275 (2002). Important questions to be asked are: (1) is the expert familiar with literature on domestic violence? And (2) does the general community of domestic violence advocates accept their opinions and the basis? She states that counsel should be prepared to show the court the literature. Medical Testimony 803(4) of the Texas Rules of Evidence holds that statements made for purposes of medical diagnosis or treatment... in so far as reasonably pertinent to diagnosis or treatment are not excluded by the hearsay rule. Reyes v. State, 48 S.W.3d 917 (Tex.App.-Ft. Worth 2001), held the statement “says husband assaulted her with fists” contained in the medical records was not inadmissible hearsay. The dissent points out that there was no showing that the statement was for the purposes of treatment, in fact, the patient did not want medical treatment. Quoting Skillern & Son, Inc., v. Rosen, 359 S.W.2d 298 (Tex. 1962), a Supreme Court of Texas case, the dissent says that statements about how an accident happened are not particularly trustworthy just because they are contained in a medical record. In Garcia v. State, 126 S.W.3d 921 (Tex. Crim. App. 2004) the Court held that statements to shelter workers were not admissible under 803(4) of the Rules of 35
Evidence since there was no showing that the declarant went to the shelter to seek medical treatment nor that the shelter provided any medical diagnosis or treatment. In Tienda v. State, 479 S.W.3d 863 (Tex. App. Eastland 2015), it was error to allow the school nurse to testify about statements the complainant made to her, as the statements about past abuse were not made for medical diagnosis or treatment. In De la Paz v. State, 273 S.W.3d 671 (Tex. Crim. App. 2008) medical records were introduced that contained hand written notes detailing statements by the complainant as to how the defendant had injured her. The Defendant argued that such notes violated Crawford and his 6th amendment confrontation right. The Court of Criminal Appeals held that once the defendant objected, the state had the burden of proving that the records were either non-testimonial, or that if they were testimonial that they were still admissible under Crawford. Noting that the Supreme Court has not resolved the issue of whether a statement can be testimonial if made to a non-government employee, the court nevertheless reversed and remanded to the court of appeals for a harm analysis. The Court stated in a footnote that they are not stating that the notes are testimonial only that the state failed to prove they were admissible under Crawford. On remand, the error was found to not have contributed to the conviction or punishment. 283 S.W.3d 901 (Tex. App. Eastland 2009) BEWARE: Lane v. State, 151 S.W.3d 188 (Tex.Crim.App. 2004), which held that the error in admitting excited utterances was waived when no objection was made to the same evidence contained in the medical records. Any error in admission of evidence is cured when the same evidence comes in elsewhere without objection. 38.26 Code of Criminal Procedure compared to Article 38.371 CCP. In murder cases, this Code provision allows the State or the defendant to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased. The Court of Criminal Appeals has held that this provision allows evidence of bad acts under 404(b) of the Rules of Evidence that would normally not be admissible. In Garcia v. State, the defendant was charged with murdering his wife. The trial court allowed in evidence that he had previously thrown her out of a car. The Court of Appeals reversed saying it was immaterial to the murder and a violation of Rule 403. The Court of Criminal Appeals held that it was admissible under 38.26 C.C.P. 201 S.W.3d 695 (Tex.Cr.App. 2006). Article 38.371 attempted to enact the same provisions for family violence prosecutions. However, the bill was amended by adding Subpart (c) which clearly prohibits the introduction of unreliable, unsubstantiated hearsay and character evidence prohibited by Rules 404 and 405. 36
VIOLATIONS OF PROTECTIVE ORDERS It is not necessary that the underlying protective order be specific enough to support a judgment of contempt; it is only necessary that it be specific enough to meet the normal requirements of specificity that attach to allegations of culpable conduct. See Lee v. State, 799 S.W.2d 750, 752-54 (Tex.Cr.App. 1990). “The informations in these cases and the protective orders both track the statutory language of the Penal Code Section prohibiting the criminal conduct of going at or near the named location. Ordinarily, a charging instrument is sufficient if it tracks the statutory language of the law prohibiting the conduct alleged.” See Collins v. State, 955 S.W.2d 464, 467 (Tex.App.-Fort Worth 1997); Bollman v. State, 629 S.W.2d 54, 55 (Tex.Cr.App. 1982); Ames v. State, 499 S.W.2d 110, 114 (Tex.Cr.App. 1973). The State properly pled the essential elements, but it also unnecessarily included the date of the order’s issuance. Once the State pled the year of the original protective order, 1993, the State was bound to prove a violation of a 1993 protective order. Rohrscheib v. State, 934 S.W.2d 909, 911 (Tex.App.-Houston [1 Dist.] 1996). A copy of the 1995 protective order was introduced into evidence as State’s exhibit 1, and there was testimony regarding the 1995 protective order. No proof was presented, however, as to the 1993 order that was pled in the information. Additionally, in contrast to the State’s contentions, protective orders are not renewed or continued. “ In conclusion, we hold appellant did not commit the crime alleged by the State as a matter of law. As previously stated, protective orders are valid for a time period not to exceed one year. TEX. FAM.CODE ANN. § 71.13(a) (Vernon 1996). By its very nature, a protective order automatically expires one year after its issuance. As the State erroneously pled in the information, on July 26, 1995, it was legally impossible for appellant to violate a protective order issued in 1993.” —excerpt from Rohrscheib v. State, 934 S.W.2d 909 (Tex.App.-Houston [1 Dist.] 1996). The defendant must have notice of the protective order. In Small v. State, 809 S.W.2d 253 (Tex.App.—San Antonio 1991 pet. Ref’d), the appellant appealed his conviction for violating a protective order, alleging that there was no evidence that he actually knew of the court order and that he therefore could not violate an order he knew nothing about. Id. at 254. The court held that it was an essential element of the offense that the State prove the appellant knowingly and intentionally violated the court order in question beyond a reasonable doubt. The court found that “[u]nless a defendant is somehow aware of what he is prohibited from doing by a specific court order, he cannot be guilty of knowingly and intentionally violating 37
that court order.” Id. at 256. Further, in reversing the conviction, the court in Small noted that “aside from indicating that the appellant was served with notice of the hearing on the protective order, there [was] no evidence in [that] record that the appellant agreed to a protective order, attended any hearing or in any way participated, that he was ever served with a copy of the protective order, or that he in any way received notice, formal or informal, of the issuance or existence of the court order in question prior to” his violating it. Id. at 256-57. In Ramos v. State, 923 S.W.2d 196 (Tex.App.-Austin 1996), the conviction for violating the protective order was affirmed even though there was no proof of actual service of the protective order on the defendant. In that particular case, the defendant had previously pled guilty to violating the same order prior to committing the offense which was the basis of his appeal. The State did not have to prove that he had actually received a copy of the protective order, only that he knew of the existence of the order before he violated it. In Harvey v. State, the Defendant was convicted of violating a family protective order. The Court of Appeals found the indictment alleged that defendant acted intentionally and knowingly but not that he knew or intended to violate a protective order. The Court of Appeals reversed the conviction saying that the indictment and subsequent jury charge omitted the element that the Defendant knowingly and intentionally violated the protective order. Harvey v. State, 48 S.W.3d 847 (Tex.App.-Austin 2001). The Court of Criminal Appeals reversed that holding in Harvey v. State, 78 S.W.3d 368 (Tex.Cr.App. 2002). The Court concluded that the charge was sufficient when it stated “ a person commits the offense of violation of a protective order if, in violation of a protective order issued after notice and hearing, the person knowingly or intentionally commits family violence.” The Court put a lot of emphasis on the fact that the defendant did not object to the charge or request a different charge. The Court held that the defendant must know of the existence of the order but need not know all of its provisions. See also, Villarreal v. State, 286 S.W.3d 321 (Tex. Crim. App. 2009) FORGETFUL STATE’S WITNESS “In this case, we find that the trial court erred in allowing Stern to testify in front of the jury. When Stern responded I don’t remember to every substantive question asked on voir dire, the State was put on notice that his trial testimony would likely be the same. It is well-settled that a party may not call a witness primarily for the purpose of impeaching the proposed witness with evidence 38
that would otherwise be inadmissible.” See Barley v. State, 906 S.W.2d 27, 37 n. 11 (Tex.Cr.App. 1995), cert. denied, 516 U.S. 1176, 116 S.Ct. 1271, 134 L.Ed.2d 217 (1996); Pruitt v. State, 770 S.W.2d 909, 910-11 (Tex.App.-Fort Worth 1989)(pet. Ref’d). “We find, therefore, that it was improper for the State to call Stern as a witness knowing that he would feign a memory loss only to introduce facts into evidence by asking leading questions.” These excerpts are from Armstead v. State, 977 S.W.2d 791 (Tex.App.-Fort Worth 1998). In Sills, the State called a witness named Chambers who testified to his name and that he was residing in jail on charges not related to this case. He refused to answer any other questions. The prosecutor informed the court that Chambers refused to testify because someone had threatened him. The prosecutor then questioned Chambers in front of the jury by reading each sentence from the written statement. The prosecutor prefaced the reading of each sentence by asking Chambers “isn’t it true you told police,” “isn’t it true your statement reads,” or “isn’t it true you further stated.” He refused to agree or disagree with any of the statements. Sills v. State, 846 S.W.2d 392, 395-396 (Tex.App.-Hous. [14 Dist.] 1992). The Court of Appeals reversed Sills’s conviction, holding that the witness’s prior statement to police was not admissible to impeach the witness after the witness refused to testify at trial; the witness was not subject to hatred, ridicule, or disgrace at time of making the prior statement to police so that the statement was not admissible as a statement against interest; and that the admission of witness’ prior statement to police to impeach the witness constituted reversible error. Sills v. State, 846 S.W.2d 392 (Tex.App.-Hous. [14 Dist.] 1992) (petition ref’d). In Gannaway v. State, the trial court allowed the State to introduce Rice’s statement implicating appellant in the murder although Rice did not say the statement was wholly true, did not fully testify, and was not fully cross-examined about the statement. Finding error the court stated “admitting Rice’s statement was a back-door way for the State to get facts into evidence which Rice refused to testify about at trial. We cannot find beyond a reasonable doubt that appellant was not harmed.” Gannaway v. State, 823 S.W.2d 675, 678 (Tex.App.-Dallas 1991). These cases are based on an old Court of Criminal Appeals case, Wall v. State, 417 S.W.2d 59 (Tex.Cr.App. 1967), which held that if the only evidence of guilt is objected to hearsay impeachment of the complaining witness who is denying a crime occurred, the evidence is insufficient. In Wall, a daughter was tape recorded saying her father raped her, she later changed her story to say she didn’t know who raped her. The tape recording and the impeachment of her was the only evidence that the father had committed a crime. The Court reversed and rendered an acquittal. This case has been superceded by Article 38.072 Code of Criminal Procedure. 39
Texas Rule of Evidence 607 allows a party to attack the credibility of its own witness. However, such attack can be limited. A party can not call a witness primarily for the purpose of impeaching the witness with otherwise inadmissible hearsay testimony. Zule v. State, 802 S.W.2d 28 (Tex. App.-Corpus Christi 1990, pet. Ref’d) and Pruitt v. State, 770 S.W.2d 909 (Tex. App.-Ft. Worth 1989, pet. Ref’d). In White v. State, 201 S.W.3d 233 (Tex. App.-Ft. Worth 2006) the State called the officer to the stand first to testify to excited utterances made at the scene of the alleged assault by the complainant. Then they called the complainant who testified inconsistently with the officer’s testimony. The Court of Appeals in White held that it was proper to call the victim even knowing that she was going to deny her statements to the police. The statements to the police were admissible as excited utterances and the court notes in a footnote that the defendant did not allege that the statements were inadmissible under Crawford. The court found that the State had not called the victim for the sole purpose of impeaching her because she did corroborate parts of the officer’s testimony and she confirmed that she had made the 911 call. White v. State, 201 S.W.3d 233 (Tex.App.-Ft. Worth 2006). DEFENSIVE ISSUES Who Is The Aggressor Many issues in family violence cases are the same as those in any other assault or murder case. The violent character of the victim is admissible under 404(a)(2) of the Rules of Evidence to establish that the victim was the first aggressor. Extraneous acts of the victim for violence may also go to show the state of mind of the defendant under Rule 404 (b). Mozon v. State, 991 S.W.2d 841 (Tex.Cr.App. 1999). In a murder case, the Court of Criminal Appeals held that when the defendant raises self defense, he may introduce evidence of the deceased’s violence character. Rule 404(a)(2). “The defendant may offer opinion or reputation testimony to prove the deceased acted in conformity with his violence nature, 404(a)(2) and 405(a). Specific, violent acts of misconduct may be admitted to show the reasonableness of the defendant’s fear of danger or to show the deceased was the first aggressor.” These do not have to be violent acts against the defendant in order to be admissible. The Court of Criminal Appeals reversed the lower court’s holding that this evidence was only “character conformity” evidence and therefore inadmissible. Torres v. State, 71 S.W.3d 758 (Tex.Cr.App. 2002). On remand the Court of Appeals again 40
affirmed the conviction so the Court of Criminal Appeals granted a second petition for discretionary review. On the second PDR the Court again stated that the character evidence of the deceased, which involved specific acts of violence toward others, was admissible to show who was the aggressor in a self defense case. Torres v. State, 117 S.W.3d 891 (Tex.Cr.App. 2003). On remand the Court of Appeals ordered a new trial. James v. State, 335 S.W.3d 719 (Tex. App. Ft. Worth 2011) held that the prior misconduct of the victim was inadmissible as character evidence. In order for the prior 404(b) bad acts to be admissible the defendant had to have some ambiguous evidence that the victim was the first aggressor and that the evidence offered must explain the victim’s conduct. Criminal Record of the victim In Arroyo v. State, 117 S.W.3d 795 (Tex.Cr.App. 2003), the Court of Criminal Appeals reviewed a misdemeanor conviction for assault. In that case, the victim did not testify. The defendant wished to impeach her credibility with certified copies of judgments of convictions in several criminal cases. The Court notes in a footnote that Rule 806 and 609 of the Rules of Evidence would allow the introduction of this evidence. However, the State successfully argued that the defendant could not show that this was the same person alleged as the victim and the trial court refused to allow the introduction of the evidence. The Court of Criminal Appeals reversed this holding. The State had previously provided the defendant with the victim’s rap sheet pursuant to the defendant’s Brady motion. The State was now estopped from asserting that the exhibits were inadmissible on the ground of identity. The case was remanded to the Court of Appeals to see if there was any other legal theory to exclude the documents. The Court of Appeals held that the judge had not abused his discretion in refusing to admit the documents and that if it was error the error was harmless. Arroyo v. State, 123 S.W.3d 517 (Tex.App.- SA 2004)(pet. Ref’d). Bias and Motive of the Witness The defendant is entitled to attack the motive that a witness may have for testifying. The exposure of a witness’s motivation in testifying is a proper and important function of the right of cross-examination. Specific acts may be admissible in spite of the Rules of Evidence if they are necessary to show the bias or motive for the witness to testify untruthfully. Thomas v. State, 897 S.W.2d 539 (Tex.App-Ft. Worth 1995). In Thomas, the defendant, charged with sexual assault, 41
wanted to bolster his consent defense by showing that the victim’s boyfriend was violent and jealous and that she would lie to avoid him finding out that she had consented to sex with the defendant. The Court of Appeals reversed the trial court decision to exclude this evidence. Though Rule 608(b) prohibits impeachment with specific instances of conduct, the Confrontation Clause of the 6th Amendment may require admission of evidence that the Rule would otherwise bar. In Billodeau v. State, 277 S.W.3d 34 (Tex. Crim. App. 2009) the complainant, when angry with his neighbors, had threatened to make false accusations of molestation against them. This occurred after the alleged molestation by the defendant. The Court of Criminal Appeals held that “the possible animus, motive or ill will of a prosecution witness who testifies against the defendant is never a collateral or irrelevant inquiry and the defendant is entitled to show any relevant fact that might tend to establish ill feeling, bias, motive, interest, or animus on the part of any testifying witness”. The Court went on to hold that it was immaterial whether the alleged false threats occurred before or after the complainant accused the defendant. The case was reversed because the trial court denied the defendant to cross examine the complainant about the threat and prevented the defendant from presenting admissible evidence to show a possible motive for accusing the defendant. Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009) found error when the court refused to allow the defendant to cross examine the complainant about prior false accusations of sexual assault. The defendant was the complainant’s father and he wanted to show that she was angry because he was strict. The false accusation explained why she might be motivated to falsely accuse the defendant of the very same conduct that she had accused her uncle of doing when she was 13. She had also accused all of her mother’s boyfriends of abusing her. She had accused five men of raping her when in fact she had simply run away from home. The court held “this was one more episode that made all of her allegations of sexual misconduct somewhat less likely under the doctrine of chances. The case was remanded to the court of appeals for a harm analysis”. Rule 403 of the Rules of Evidence’s prohibition of probative evidence when it is too prejudicial should be used sparingly in “he said/she said” cases where the case must be solely resolved based on the testimony of the defendant and the complainant. In Jones v. State, 571 S.W.3d 764 (Tex. Crim. App. 2019), the Court held that it was error to refuse to allow the defendant to cross examine the alleged victim’s mother, an eyewitness, about her interest in the proceedings to terminate the defendant’s parental rights as she believed the child was not safe in the defendant’s care. However, the error was harmless beyond a reasonable doubt. 42
Consent or Mutual Combat Section 22.06 of the Penal Code lists consent as a defense to assault, aggravated assault, or deadly conduct, if the actor reasonably believed the victim consented and the conduct did not threaten or inflict serious bodily injury. In Allen v. State, the trial court instructed the jury on this defensive issue because the evidence showed the victim had asked the defendant to slap her. The instruction failed to state the burden of proof. §2.03(d) of the Penal Code provides that, “if the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.” The 1st Court of Appeals reversed the conviction for failure to charge on the proper burden of proof on consent. 263 S.W.3d 168 (Tex.App.-Houston [1 Dist.] 2007). The Court of Criminal Appeals reversed stating that the unobjected to jury charge did not cause the defendant egregious harm. Allen v. State, 253 S.W.3d 260 (Tex. Crim. App. 2008) It is error to fail to charge on the defense of consent if it is raised by the evidence. Bufkin v. State, 207 S.W.3d 779 (Tex.Crim. App. 2006) The defendant testified in his own defense to establish mutual combat in Redmond v. State, 2021WL1134410 (Tex. App. Ft. Worth, March 25, 2021). As a result, he was cross examined about an extranous offense of an abusive extra-marital relationship with his girfriend to rebut his defense theory and prove intent under 404(b) Texas Rules of Evidence. In addition the court found that numerous hearsay statements by the wife about the abuse to the SWAT officer, the paramedics and the investigating officer were admissible because she had testified to the same statements while on the stand and the defendant failed to object or to continue to object. Evidence of the Defendant’s Good Character The defendant has the right to introduce evidence of his good character at the guilt/innocence stage of the trial. Failure to allow such evidence has been held to be reversible error. Green v. State, 700 S.W.2d 760 (Tex.App.-Houston [14 Dist.] 1985) affirmed 727 S.W.2d 272 (Tex. Crim. App. 1987) Self Defense Self defense is involved in many family violence cases. In 2007 the Texas Legislature re-wrote the self defense statute. The actor’s belief that the force was immediately necessary is presumed to be reasonable if the alleged victim was 43
unlawfully and with force entering or attempting to enter, the defendant’s habitation, vehicle, or place of business or employment; or if the alleged victim was unlawfully and with force removing or attempting to remove the defendant from his habitation, vehicle, or place of business or employment or if the alleged victim was attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery or aggravated robbery. The Defendant can not have provoked the person and can not have been otherwise engaged in criminal activity other than Class C misdemeanor offense. The State must prove beyond a reasonable doubt that the facts giving rise to the presumption do not exist, or the jury must find the presumed fact exists. Section 9.31(a) Texas Penal Code effective 9/1/2007. See form for jury charge in Texas Practice Series Vol. 8, Criminal Forms and Trial Manual Section 106.6A, McCormick and Blackwell. Self defense in the use of deadly force under the same circumstances above does not require the defendant to retreat. See Section 9.32 Penal Code, Effective 9/1/2007. See form for jury charge in Texas Practice Series Vol. 8, Criminal Forms and Trial Manual Section 106.7, McCormick and Blackwell. James v. State, 335 S.W.3d 719 (Tex. App.-Ft. Worth 2011) held that police officer could give his opinion that the defendant’s claim of self defense was not reasonable. The Court found that the statement was not a comment on the truthfulness of another witness, nor did the officer state an opinion as to the defendant’s culpable mental state, which would be prohibited under Taylor v. State, 774 S.W.2d 31 (Tex. App.-Houston 14th Dist. 1989). The Court went on to state that even if this statement was error under 701 of the Texas Rules of Evidence, it was harmless. Self defense authorizes a presumption of reasonableness, but failure to fulfill a condition of the presumption that is “not engaged in criminal activity, other than a class C”, does not bar a self defense claim and refusal to instruct on confession avoidance defense is rarely harmless as jury has no avenue by which to acquit the defendant. Because the trial court had failed to charge on self defense, believing the defendant was not entitled to the charge because of the evidence of criminal activity, the Court of Criminal Appeals reversed and remanded for court of appeals to determine if refusal to submit self defense was erroneous. Rogers v. State, 550 S.W.3d 190 (Tex. Crim. App. 2018) In Ebikam v. State, 2020WL3067581 (Tex. Crim. App. decided June 10th, 2020) the Court of Criminal Appeals addressed the issue of confession and avoidance in that the court of appeals held the defendant was not entitled to the self defense charge because he did not admit the manner and means of the assault. The trial court had denied the defensive charge on self defense on the same reasoning. 44
A flat denial of the conduct will foreclose an instruction on a justification defense. The question in Ebikam was whether confession and avoidance requires an admission about the alleged manner and means. The Court held that the defendant does not have to admit the manner and means of the assault in order to obtain the charge on self defense. The case was remanded to the court of appeals to determine whether the defensive theory completely foreclosed the commission of the offense, or whether it justified it under self-defense. DEFENSE MOTIONS Motions to file: The motion to quash is an important tool in most assault cases. The State is entitled to allege that the acts occurred “recklessly”. Assault is a result oriented crime. Therefore recklessly should be defined in the jury charge as “A person acts recklessly or is reckless with respect to the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.” Penal Code 6.03(c). Article 21.15 of the Code of Criminal Procedure requires that if recklessness is alleged, in order for the information or indictment to be sufficient, it must allege, with reasonable certainty, the act or acts relied upon to constitute the recklessness, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly. State v. McCoy, 64 S.W.3d 90 (Tex.App.-Austin 2001). Be aware of Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012) which held that it was an immaterial nonstatutory allegation variance for the State to plead “hitting with a hand” and prove “threw against a wall” so that the evidence was not insufficient. Brooks v. State, 604 S.W.3d 239 (Tex. App.-Austin 2020) held that the variance between the indictment alleging a verbal threat and the evidence at trial of a non-verbal threat of displaying a piece of wood was a material variance that prejudiced the defendant and was insufficient to support his conviction for aggravated assault on his girlfriend. On November 11, 2020 PDR was granted and it remains pending in the Court of Criminal Appeals at the time of this paper. State v. Meadows, 170 S.W.3d 617 (Tex.App.-El Paso 2005), reversed a trial court’s granting a motion to quash the indictment on a lack of jurisdiction. The Defendant alleged that prior conviction was not for family violence and therefore could not be used to enhance the present case to a felony. The trial court could not require the State to prove that the prior conviction involved family violence at a 45
pretrial hearing. Motions for discovery are no longer necessary, though there must be a request by the defense for Article 39.14 C.C.P., the Michael Morton Act, to apply. So it is important to ask for the 911 tape recorded call, a list of the witnesses to be called, whether there are any photographs of any injuries available, jail calls made by the defendant and victim impact statement forms. The attorney for the defendant can not provide copies of the documents to the defendant, except for a copy of his/her own statement. For the first time, Texas has codified the requirement that exculpatory, impeachment, or mitigating documents, items, or information in the possession, custody or control of the state that tends to negate the guilt of the defendant or tends to reduce the punishment, must be disclosed. See 39.14 (h) C.C.P. Watkins v. State, 2021WL800617 (Tex. Crim. App. March 3, 2021) the Court of Criminal Appeals held that “material to any manner” as stated in Article 39.14 of the Code of Criminal Procedure meant that the evidence need only have a logical connection to a fact of consequence, which means that it is relevant. The Court held the State erred by failing to produce the exhibits prior to trial and reversed for a harm analysis. HB510 passed in 2015 amended Article 39.14 to include requests for disclosure of experts to the discovery Act, if the request is made 30 days before trial. A response is due no later than 20 days prior to trial. Many of the State’s counselors want to testify as “experts” concerning the battered person syndrome. This information must be disclosed or it is not admissible. A motion to suppress the warrantless arrest and search may be filed. Most arrests will fall under Article 14.03 which allows an arrest without a warrant. However, the burden is always upon the State to prove an exception to the warrant requirement. This might give the defendant a pretrial hearing on the legality of the arrest. Included in this motion should be a request to suppress all statements made by the defendant. This gives the attorney the opportunity to litigate whether the statements meet Article 38.22 C.C.P. and whether the statements will be admissible at trial. Also, there could be an issue in the warrantless entry into the house. If the defendant refuses the police entry, the Supreme Court has held that the use of a wife’s consent to enter a house over the objections of the husband was unreasonable, in a possession of cocaine case. Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515 (2006). The requests for notice under 404(b) and 609 of the Rules of Evidence and 37.07 C.C.P. are useful tools for the defense in family violence cases. Extraneous offenses should be discovered in advance of trial. Prior convictions of the State’s 46
witnesses must be disclosed if requested. Evidence that negates the guilt of the defendant or reduces the punishment is covered in 39.14 (h) requiring the state to disclose it. However, extraneous offenses and other acts that the State may intend to introduce to prove the guilt of the defendant, or increase the punishment, should be specifically requested by the defense. A generic request for discovery under Article 39.14 C.C.P. may not require the State to produce the information that should be requested under Texas Rules of Evidence 404 (b) and 609 and Article 37.07(g). These sections all require a specific request which should be in writing to document. Affidavits of Nonprosecution Some jurisdictions encourage the use of affidavits of nonprosecution and other do not. Johnson v. State, 425 S.W.3d 344 (Tex. App. Houston 1st Dist. 2011) PDRR, addresses some very concerning evidentiary issues. The victim was in jail and received an affidavit of nonprosecution from the attorney representing the defendant. During the trial the state introduced the affidavit as evidence that the defendant was trying to induce the victim not to testify. An attempt to tamper with a witness is evidence of “consciousness of guilt”. The affidavit was relevant as circumstantial evidence of the defendant’s consciousness of his guilt. In addition, the victim testified that two nieces came to the jail and offered her to put money to drop the charges. Over a hearsay objection, the court allowed the testimony because it was cumulative of the other efforts, including the affidavit, made by the defendant to persuade the victim not to testify. STATE’S MOTIONS A request for notice of expert witnesses by the State is now covered by Art. 39.14 of the Code of Criminal Procedure, to determine if the defense intends to present any expert witness testimony under Rules 702, 703 or 705 of the Texas Rules of Evidence. The notice must include the name and address of the witness. The identity of the defendant’s expert is not protected under the work-product doctrine and testimony that the defendant has failed to request additional testing did not violate the work-product doctrine. Pope v. State, 207 S.W.3d 352 (Tex. Crim. App. 2006). Pope identifies two types of experts, consulting experts and testifying experts. The identity and opinions of the consulting experts are not discoverable. However, once a party designates a witness that may be used at trial as a testifying expert, then the State may seek further information from or about him for use at trial and the protections otherwise provided by the work-product doctrine are waived, 47
though it does not waive confidential communications under the attorney-client privilege.
ETHICAL DILEMMAS Conflict of Interest Can the lawyer give advice to both the husband and wife? Rule 1.06 of the Disciplinary Rules states: A lawyer shall not represent opposing parties to the same litigation. The lawyer may represent both parties with full disclosure and consent and the lawyer believes the clients will not be materially affected. Rule 4.03 Dealing with unrepresented persons. When the lawyer knows that the unrepresented person misunderstands the lawyer’s role, the lawyer shall make the effort to correct the misunderstanding. Fear of False Testimony What does the lawyer do if he fears the victim is going to lie to help her husband avoid conviction? Rule 3.03 states the lawyer shall not offer or use evidence that is false. Rule 3.04 states the lawyer shall not obstruct evidence or assist another in doing so or acquiesce in the offer of payment to a witness or assist a witness to testify falsely. Rule 1.15 Terminating Representation. The lawyer must terminate his representation if (1) the client persists in action the lawyer believes may be criminal or fraudulent, or (2) the client uses the lawyer’s service to perpetrate a crime. Avoiding a Subpoena Can the lawyer discuss whether the State’s witness should appear in court? There is a federal crime of obstruction of justice and the state crime of tampering with a witness. Texas Penal Code §36.05. A person commits an offense if, with the intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding, or he coerces a witness or prospective witness in an official proceeding: (1) to testify falsely; 48
(2) to withhold any testimony... (3) to elude legal process summoning him to testify or supply evidence; (4) to absent himself from an official proceeding to which he has been legally summoned ; or (5) to abstain from, discontinue, or delay the prosecution of another. What is a Valid Subpoena? Article 24.04 of the Code of Criminal Procedure sets out how a subpoena may be served. It now includes: (1) Reading the subpoena in the hearing of the witness; (2) Delivering a copy of the subpoena to the witness; (3) Electronically transmitting a copy of the subpoena, receipt requested, to the last known electronic address of the witness; or (4) Mailing a copy of the subpoena by certified mail, return receipt requested, to the last known address of the witness unless: (B) the proceeding for which the witness is being subpoenaed is set to begin within seven business days after the date the subpoena would be mailed. Article 24.05 of the Code of Criminal Procedure sets the fine in a misdemeanor case for refusing to obey a subpoena at “ not to exceed one hundred dollars.” ETHICAL DILEMMAS FOR THE STATE Can the State represent the victim in obtaining the protective order and then prosecute the defendant in the criminal case? Section 81.007 of the Family Code provides that the county attorney or criminal district attorney is responsible for filing protective orders. Section 81.0075 of the Family Code specifically says that the prosecuting attorney who represents a party in a protective order is not precluded from representing the Department of Protective and Regulatory Services in a subsequent action involving the party. However, there is no corresponding language in reference to prosecuting the criminal case. Rule 1.06 Conflict of Interest Rules of the Texas Disciplinary Rules of Professional Conduct applies to prosecutors. It only becomes a concern when the “victim” becomes uncooperative with the prosecutors office. Rule 1.06(b)(1) provides a lawyer shall not represent the person if the representation involves a substantially related matter in which that person’s interest are materially and directly 49
adverse to the interest of another client of the lawyers firm. If the “victim” wishes to not prosecute the criminal matter after the state has represented the person in a protective order hearing, there is an argument under the Rules that the prosecutor’s offices is conflicted out and can not represent the State of Texas against the defendant. Another ethically challenging circumstance arises if the defendant is unrepresented at the time of the protective order and the prosecutor is required to engage in conversations with the defendant. Rule 4.03 T.D.R.P.C. requires that in dealing with an unrepresented person, the lawyer should not imply they are disinterested. When the lawyer should know that the unrepresented person misunderstand the lawyer’s role, the lawyer shall make reasonable efforts to correct the misunderstanding. Unfortunately dealing with an unrepresented defendant in the protective order may also result in the lawyer becoming a witness in the criminal case which would violate Rule 3.08 of the Texas Disciplinary Rules of Professional Conduct. A Court who refused to disqualify the elected District Attorney on the basis of a violation of the disciplinary rules was not subject to mandamus. The defendant has an adequate remedy at law by appealing any conviction. State ex rel. Young v. 6th Dist. Court of Appeals, 236 S.W.3d 207 (Tex. Crim. App. 2007). Section 81.007(c)of the Family Code requires that the prosecutor comply with Article 5.06 of the Code of Criminal Procedure. Article 5.06 Duties of Prosecuting attorneys and Court The Code of Criminal Procedure sets out certain restrictions on a prosecutor’s office involving family violence cases. 5.06(a)(1) They may not dismiss or delay any criminal proceeding that involves an offense constituting family violence because a civil proceeding is pending or is not pending. 5.06 (a)(2) mandates that they may not require proof that a complaining witness, victim, or defendant is a party to a suit for the dissolution of marriage before presenting a criminal allegation to a grand jury, or otherwise proceeding with the prosecution in a criminal case. 5.06 (b) states that the decision to file the protective order should be made without regard to whether a criminal complaint has been filed. It allows the prosecutor to require the applicant to provide information for an offense report with a local law enforcement agency. 5.08 of the Code prohibits requiring mediation in Family Violence cases. Dealing with unrepresented Defendants A defendant may voluntarily and intelligently waive in writing the right to counsel. A waiver obtained in violation of Article 1.051 of the Code of Criminal 50
Procedures is presumed invalid. In any adversarial judicial proceeding that may result in a punishment by confinement, the attorney representing the state may not: (1) initiate or encourage an attempt to obtain from a defendant who is not represented by counsel a waiver of the right to counsel; or (2) communicate with a defendant who has requested the appointment of counsel, unless the court or the court’s designee authorized under Article 26.04 to appoint counsel for indigent defendants in the county has denied the request and, subsequent to the denial, the defendant: (A) has been given a reasonable opportunity to retain and has failed to retain private counsel; or (B) waives or has waived the opportunity to retain private counsel. Dealing with families and/or households in turmoil can lead to many ethical dilemmas for prosecutors as well as defense counsel. ETHICAL ISSUES FOR THE TRIAL COURT The landscape for rejecting a plea offer and setting a case for trial has changed since the U.S. Supreme Court’s decision in Lafler v. Cooper, came down on March 21, 2012, 132 S.Ct. 1376 (2012). Prior to that time there could be no finding of Strickland prejudice arising from plea bargaining, if the defendant was aware of the offer, rejected it, ,and was subsequently convicted in a fair trial. In Lafler, the defendant indicated his willingness to accept the state’s offer to dismiss two charges in exchange for a plea to two other charges with a sentence of 51-85 months recommended. However, after discussions with his attorney, he rejected the offers. On the day of trial the state made a significantly less favorable plea offer and again the defendant rejected it. At trial, the defendant was convicted and sentenced to 185 to 360 months imprisonment. In the case, the parties agree that the defendant’s counsel was deficient when he advised the defendant to reject the offers because he could not be convicted at trial. The attorney told him that the state could not establish his intent to murder because the victim was shot below the waist. Strickland applies in the context of a rejected plea bargain. The Court held that the remedy for the constitutional injury was to require the prosecution to reoffer the plea proposal. The judge can decide to vacate the conviction and accept the plea or leave the conviction undisturbed.
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CONCLUSION Family Violence Assault cases have many difficult and interesting issues involved. However, attorneys can become the focus of the anger that already exists in the relationship so that caution is extremely necessary when giving advice in these volatile circumstances. Safety of all parties should be a priority of all involved. Battering and controlling individuals can be the defendants, the alleged victims or witnesses, particularly other family members. These personality traits exist in same sex relationships. Females have been shown to also demonstrate these disorders. Caution should be taken by the attorney to avoid becoming a tool of this personality. Information from the National Domestic Violence Commission can be obtained at 1-800-903-0111. The National Domestic Violence Hotline is 1-800-799-SAFE.
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Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course June 24-26, 2021 Hyatt Regency San Antonio, TX
Topic: CCA Update Including Watkins and Discovery in Texas
Speaker:
Hon. David Newell & Hon. Bert Richardson Court of Criminal Appeals P.O. Box 12308 Austin, TX 78744 (512)463-1570 phone
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
SIGNIFICANT DECISIONS UNITED STATES SUPREME COURT AND THE COURT OF CRIMINAL APPEALS FROM SEPTEMBER 2020 TO APRIL 2021
HON. DAVID C. NEWELL JUDGE, PLACE 9 Court of Criminal Appeals Paper prepared in part by Lynda Hercules Charleson Briefing Attorney
Court of Criminal Appeals P.O. Box 12308 Austin, TX 78744 (512) 463-1570
U.S. Supreme Court & Court of Criminal Appeals Update 2020–2021
Acknowledgement This paper has been the primary responsibility of my briefing attorney, Lynda Hercules Charleson. No, keep reading. She works really hard, and the summaries are really good. Actually she's not my briefing attorney anymore. She now works at central staff at the Court of Criminal Appeals. So that should give her more credibility. I edited the summaries, but she did most of the heavy lifting. I did the commentary, for what it is worth, but any commentary is written in my role as commentator not as part of my job. Late Justice Scalia once said that. Neat. So take the commentary with a grain of salt and I hope they aren't too salty. I hope you will find something in this paper to be helpful, preferably the part Lynda wrote because she is awesome. This is a working document so any typos and misspellidge is me fault.
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U.S. Supreme Court & Court of Criminal Appeals Update 2020–2021
Table of Contents I.
INTRODUCTION ..............................................................................................................................................................1
II.
MOTIONS TO SUPRESS..................................................................................................................................................1 WARRANTLESS SEARCH – COURT UPHOLDS WARRANTLESS SEARCH OF LUGGAGE AT AN AIRPORT, PROBABLY AS A SEARCH INCIDENT TO ARREST. ............................................................................................................................................................ 1 B. SEARCH WARRANTS ..............................................................................................................................................................3 1. Magistrate’s determination that probable cause existed to justify seizure of blood was sufficient to justify the chemical testing of that blood, even though the search warrant itself did not expressly authorize the chemical testing. ...............3 2. Magistrate was justified in issuing search warrant authorizing the police to seize surveillance equipment even though affidavit supporting the warrant said nothing about such equipment possibly being at the business. .............................5 3. Good-faith exception to statutory exclusionary rule did not apply when officer knowingly submitted an unsworn probable-cause affidavit and then executed the subsequent search warrant. ..................................................................6 B. CONFESSIONS – DEFENDANT'S CONFESSION TO HIS WIFE, 911, AND POLICE DETECTIVES WAS STILL VOLUNTARY DESPITE POLICE’S EARLIER STATEMENTS TO THE DEFENDANT THAT IF HE "DIDN'T DO IT" THAT MEANT HIS WIFE DID SO SHE COULD BE ARRESTED AND THAT HIS CHILDREN COULD END UP IN FOSTER CARE................................................................................ 8 A.
III.
TRIAL PROCEDURE ..................................................................................................................................................... 10
A.
PRE-TRIAL DISCOVERY ........................................................................................................................................................ 10 SIGNIFICANT CASE – "Material” as used in Article 39.14 means that the evidence "having a logical connection to a consequential fact" and in context of the phrase "material to any matter involved in the action" is synonymous with "relevant." ...................................................................................................................................................................... 10 2. Trial judge exceeded his discretionary authority by ordering the State to create evidence in the form of a digital audiovisual recording of the crime lab’s DNA testing. .................................................................................................. 13 B. MOTION TO DISQUALIFY – IT IS NOT WELL-SETTLED LAW THAT AN ENTIRE LAW FIRM IS DISQUALIFIED FROM REPRESENTING A CRIMINAL DEFENDANT WHEN THE FIRM’S PARTNER WAS THE FORMER DISTRICT ATTORNEY OF THE CASE. ..................... 15 C. CONSENT TO WAIVER OF JURY TRIAL – EMERGENCY ORDER GIVING A COURT THE POWER TO MODIFY OR SUSPEND 1.
DEADLINES AND PROCEDURES DID NOT CONFER UPON THE TRIAL COURT THE AUTHORITY TO CONDUCT A BENCH TRIAL WITHOUT THE STATE’S CONSENT. ........................................................................................................................................ 16
D.
DOUBLE JEOPARDY.............................................................................................................................................................. 17 Convictions and sentences for both aggravated assault of a deadly weapon and family-violence assault did not run afoul the Double Jeopardy Clause. ................................................................................................................................ 17 2. The failure to appear statute creates as many actionable offenses as there are conditional releases even if all the offenses are scheduled for court on the same day. ......................................................................................................... 18 1.
IV. A.
V.
EVIDENCE ....................................................................................................................................................................... 19 CONFRONTATION CLAUSE ................................................................................................................................................... 19 1. Admission of expert’s remote testimony violated the Confrontation Clause because there was no showing that testifying remotely was necessary................................................................................................................................... 19 2. Family-violence-assault victim’s prior out-of-court statements to police were not admissible under the doctrine of forfeiture by wrongdoing because defendant did not commit an act to cause her absence at trial. ............................... 22 OFFENSES ....................................................................................................................................................................... 24
A. B.
AGGRAVATED ROBBERY – ELECTRIC DRILL DISGUISED AS A GUN WAS NOT A DEADLY WEAPON BECAUSE IT WAS NOT USED OR INTENDED TO BE USED IN A MANNER CAPABLE OF CAUSING DEATH OF SERIOUS BODILY INJURY. ................................... 24 POSSESSION OF PENALTY GROUP 2-A CONTROLLED SUBSTANCE WITH INTENT TO DELIVER – EVIDENCE WAS SUFFICIENT TO SUPPORT CONVICTION BECAUSE EXPERT TESTIMONY AS TO TECHNICAL ELEMENTS OF THE OFFENSE WAS NOT MERELY CONCLUSORY. ...................................................................................................................................................................... 25
C.
INDECENT EXPOSURE – EXPOSING YOUR GENITALIA IN A PUBLIC PARK IN THE DAYLIGHT IS RECKLESS EVEN IF NO ONE ELSE IS PRESENT TO SEE IT. ........................................................................................................................................................... 26
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U.S. Supreme Court & Court of Criminal Appeals Update 2020–2021 EVADING ARREST OR DETENTION – ILLEGAL INITIAL DETENTION DID NOT MAKE OFFICER’S SUBSEQUENT ATTEMPTED ARREST OR DETENTION UNLAWFUL GIVEN THE VALID, OUTSTANDING ARREST WARRANT AT THE TIME OF FLIGHT.............. 27
D. VI.
JURIES AND JURY INSTRUCTIONS ......................................................................................................................... 29
A.
JURIES .................................................................................................................................................................................. 29 Sound of siren heard while jurors were deliberating in an evading arrest case was not “other evidence” in violation of Texas Rule of Appellate Procedure 21.3(f). ............................................................................................................... 29 2. Alternate Jurors - Any error in trial court’s failure to instruct jury to deliberate anew following a mid-deliberations substitution of alternate juror was harmless in penalty phase of capital murder prosecution. ...................................... 30 B. TRIAL COURT’S REFUSAL TO GIVE SUDDEN-PASSION INSTRUCTION AT PUNISHMENT HEARING WAS NOT ERR BECAUSE LAW APPLICABLE TO THE CASE WAS THE LAW IN EFFECT WHEN THE OFFENSE OCCURRED. .......................................................... 32 C. LESSER-INCLUDED INSTRUCTIONS - BODILY-INJURY ASSAULT IS NOT A LESSER-INCLUDED OFFENSE OF OCCLUSION ASSAULT WHEN THE DISPUTED ELEMENT IS THE INJURY. ..................................................................................................... 33 D. EGREGIOUS HARM - ERRONEOUS INCLUSION OF RECKLESS CULPABLE MENTAL STATE IN THE JURY CHARGE, UNDER THE FACTS OF THE CASE, WAS A MERE FORMATTING DEFECT THAT DID NOT CAUSE EGREGIOUS HARM ....................................... 34 1.
VII. SENTENCING ...................................................................................................................................................................... 36 A.
B.
STATE COULD NOT USE STATUTORY ELEMENTAL AGGRAVATING FACT OF PRIOR FAMILY-MEMBER-ASSAULT CONVICTION AT PUNISHMENT TO ELEVATE THE OFFENSE TO A THIRD-DEGREE FELONY WHEN JURY CONVICTED DEFENDANT OF MISDEMEANOR ASSAULT. ..................................................................................................................................................... 36 EXCLUSION OF RELEVANT MITIGATING EVIDENCE OFFERED BY THE DEFENDANT FACING A POSSIBLE DEATH SENTENCE WAS HARMLESS............................................................................................................................................................................ 38
VIII.
APPEALS .......................................................................................................................................................................... 39
A.
PRESERVATION - COURT OF APPEALS COULD NOT AFFIRM LOWER COURT’S DECISION BASED ON A LEGAL THEORY NOT PRESENTED TO THE TRIAL COURT BECAUSE THE STATE HAD NOT BEEN GIVEN AN OPPORTUNITY TO DEVELOP A COMPLETE FACTUAL RECORD WITH RESPECT TO THAT THEORY. ............................................................................................................ 39 HARM - THE COURT CLARIFIES THE HARM ANALYSIS FOR THE DENIAL OF FACE-TO-FACE CONFRONTATION WHEN WITNESS TESTIFIED REMOTELY DESPITE THE LACK OF A FINDING THAT TESTIFYING REMOTELY WAS NECESSARY. ............................ 41 COURT COSTS – ASSESSMENT OF “TIME PAYMENT FEE” WAS PREMATURE BECAUSE A DEFENDANT’S APPEAL SUSPENDS THE DUTY TO PAY COURT COSTS. ................................................................................................................................................ 42 REFORMATION – AGGRAVATED ROBBERY CONVICTION WAS REFORMED TO ROBBERY WHEN EVIDENCE WAS INSUFFICIENT AS TO THE AGGRAVATING ELEMENT OF USE OR EXHIBITION OF A DEADLY WEAPON. ........................................................... 43
B. C. D. VIII.
HABEAS CORPUS .......................................................................................................................................................... 44
A.
BRADY – DWI BLOOD ANALYST’S CERTIFICATION OF REPORT IN UNRELATED CASE THAT CONTAINED A LABELING ERROR BY THE SUBMITTING OFFICER AND HER TEMPORARY REMOVAL FROM CASEWORK TO DOCUMENT THAT ERROR WAS NOT MATERIAL. ........................................................................................................................................................................... 44
B. C. D. IX.
FALSE EVIDENCE - CELL PHONE RECORDS USED TO IMPEACH TWO WITNESSES BUT NEVER ADMITTED INTO EVIDENCE NOR MADE PART OF THE RECORD DID NOT CONSTITUTE “FALSE TESTIMONY.” ............................................................................ 46 SUBSEQUENT WRITS – LEGAL BASIS FOR CLAIM THAT COUNSEL VIOLATED SIXTH AMENDMENT RIGHT TO ASSISTANCE OF COUNSEL BY MAKING A STRATEGIC CONCESSION OF GUILT OVER EXPRESS OBJECTION WAS PREVIOUSLY AVAILABLE. ....... 48 JUVENILE JURISDICTION – LACK OF FACTUALLY-SUPPORTED, CASE-SPECIFIC FINDINGS DO NOT MAKE A JUVENILE COURT’S TRANSFER ORDER INVALID OR DEPRIVE THE DISTRICT COURT OF JURISDICTION. ................................................................. 51 FEDERAL LAW .............................................................................................................................................................. 53
A. FEDERAL APPELLATE COURT REVIEWING STATE INMATE’S FEDERAL POST-CONVICTION CLAIM DID NOT GIVE PROPER DEFERENCE TO THE STATE COURT’S DECISION. .................................................................................................................... 53 B. QUALIFIED IMMUNITY – PRISON OFFICIALS RESPONSIBLE FOR TEXAS-INMATE’S CONFINEMENT WERE NOT ENTITLED TO QUALIFIED IMMUNITY BECAUSE CELL CONDITIONS WERE SO EGREGIOUS THAT THEY HAD FAIR WARNING THAT THEIR SPECIFIC ACTS WERE UNCONSTITUTIONAL. .......................................................................................................................... 54
C.
SEIZURE – POLICE WHO SHOT FLEEING WOMAN COMMITTED A “SEIZURE” UNDER THE FOURTH AMENDMENT. ................... 55
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U.S. Supreme Court & Court of Criminal Appeals Update 2020–2021 D.
HABEAS CORPUS – FEDERAL COURT OF APPEALS VIOLATED PROHIBITION ON DISTURBING STATE COURT JUDGMENT IN ABSENCE OF ERROR LYING “BEYOND ANY POSSIBILITY FOR FAIRMINDED DISAGREEMENT.” ................................................ 57
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warrantless search was not justified as a search incident to arrest because, as a categorical matter, luggage is never “property immediately associated with the arrestee.” The court also concluded that the trial court’s denial could not otherwise be upheld because the search constituted an application of the inevitable discovery doctrine, which does not apply to Texas’ statutory exclusion rule.
SCOTUS/CCA Update Significant Decisions from September 2020 to April 2021 I.
INTRODUCTION
This paper covers the published opinions issued by the Court of Criminal Appeals between September 1, 2020 and April 8, 2021. It also includes the significant criminal cases from the United States Supreme Court that have broad applicability, issued during that same time frame. If you feel something is missing, please email me through Nichole Reedy at nichole.reedy@txcourts.gov and we’ll do our best to either correct or explain ourselves. Additionally, we will continue to update the paper throughout the terms of the respective courts. If you’d like a copy of the updated paper, do not lose the email mentioned above.
The Texas Court of Criminal Appeals reversed. Price v. State, ___S.W.3d___, 2020 WL 5754618 (Tex. Crim. App. Nov. 23, 2020) (4:4:1). Judge Yeary announced the judgment of the Court and delivered an opinion, which Judges Keasler, Keel, and Slaughter joined. At least where—as in the instant case—an arrestee is in actual possession of a receptacle at the time of, or reasonably contemporaneously to, his custodial arrest, and that receptacle must inevitably accompany him into custody, a warrantless search of that receptacle at or near the time of the arrest is reasonable under the Fourth Amendment as a search incident to the arrestee's person. Such a search requires no greater justification than the fact of the lawful arrest itself. Application of this principle does not turn on the specific nature or character of the receptacle. In United States v. Robinson, 414 U.S. 218 (1973), the Supreme Court identified two types of searches under the searchincident-to-arrest exception to the warrant requirement: (1) searches of the person, or of property within the “immediate control” of the person, of the arrestee; and (2) searches of the area within the control of the arrestee. The State argued that the search in this case was of the first kind, and thus the court of appeals erred when it held that a suitcase is necessarily excluded from the category of receptacles that may be regarded as “immediately associated with the person” of an arrestee. Price argued that it was of the second.
II. MOTIONS TO SUPRESS A. Warrantless Search – Court upholds warrantless search of luggage at an airport, probably as a search incident to arrest. San Antonio Police Officer Carl Bishop received a tip from an Austin police officer that a reliable informant had indicated Braden Price would be flying into the San Antonio airport, on a specified date, with a quantity of marijuana he had purchased from out of state. Bishop verified that Price was on an in-coming flight, and a drug dog alerted to the presence of contraband in suitcases bearing labels with Price’s name. Bishop and at least two other detectives then watched as Price retrieved the suitcases from the baggage claim area and rolled them out to the curb. There, the officers detained Price, seized the suitcases from him, and handcuffed him behind his back. They then transported both him and his rolling suitcases to a “secure office” inside the airport. After reading Price his rights, they searched the suitcases and discovered marijuana.
Judge Yeary agreed with the State. First, the Court has not explicitly endorsed the view that suitcases and luggage should never be regarded as “immediately associated with the person” of an arrestee. Second, the highest courts of several states have recently held that the search of a suitcase in an arrestee’s possession at the time of his arrest constitutes a Robinson search of property immediately associated with his person, requiring no greater justification than the arrest itself when the police intend to take the arrestee to jail or to the stationhouse for booking. Third, under the
Prior to trial, Price filed a motion to suppress, arguing that the officers’ search of the suitcases was impermissible under the Fourth Amendment. The trial court denied the motion, assessed punishment, and certified Price’s right to appeal the pretrial denial of his motion. The court of appeals reversed, holding that the 1
U.S. Supreme Court & Court of Criminal Appeals Update 2020–2021
rationale of Lalande v. State, 676 S.W.2d 115 (Tex. Crim. App. 1984) (holding that where a detainee asserts an ownership interest in the item leaving no alternative to its accompanying him into custody, once it becomes unequivocally clear that the item is to accompany the detainee, the right of inspection accrues immediately and is not limited to inspections carried out within the station itself), the officers were entitled to search the suitcases as a search of his person incident to arrest. The suitcases unquestionably belonged to him and would inevitably accompany him into custody, where a protective search would take place. And contrary to the court of appeals’ belief, Lalande does not conflict with State v. Daugherty, 931 S.W.2d 268 (Tex. Crim. App. 1996) (holding that inevitable discovery doctrine—evidence obtained illegally would have eventually been obtained in any event by lawful means—does not apply to Texas’ statutory exclusionary rule). The inevitable discovery doctrine discussed in Daughtry assumes that an illegal search has already occurred. But under Lalande, there is no illegality in the initial search. Therefore, there is no need to invoke the inevitable discovery doctrine to insulate the product of such a search from the exclusionary rule’s application when the search was constitutionally reasonable to begin with.
discovery doctrine undermined the Court’s previous holding in Lalande. In Lalande, the Court held that the search was justified at the time of arrest because the luggage would have eventually been searched. The Court did not base its decision upon the theory that the search was a legal inventory search; it based it on the theory that discovery during a future inventory search was inevitable. Moreover, while the search in this case felt reasonable, the Supreme Court has held that the search-incident-to-arrest exception does not justify a search of luggage once police have that luggage in their personal control and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence. United States v. Chadwick, 433 U.S. 1 (1997). Although the luggage at issue in Chadwick was a footlocker, Judge Newell found that case dispositive. And while subsequent holdings related to searches of containers in cars have watered down Chadwick, the Supreme Court has maintained the distinction between a search pursuant to the automobile exception and a search incident to arrest. Finally, he acknowledged that the search at issue in this case might have been justified as a “present” inventory search rather than as an “inevitable” one, but that theory would have required proof of an established departmental policy to inventory such property at the airport as well as proof that the policy was followed. Because the State did not make that argument to the trial court and the record didn’t support it, he would have affirmed the court of appeals’ opinion and waited for a case in which the issue is squarely presented.
Presiding Judge Keller filed a dissenting opinion. She argued that holding in Lalande had nothing to do with the inevitable-discovery doctrine or the searchincident-to-arrest doctrine. Rather, it was based on the inventory-search doctrine and on the proposition that the Fourth Amendment permitted the police to do on the scene what they were authorized to do at the station. Accordingly, the search of Price’s suitcase might have been valid as a legal accelerated inventory search. In order for police to validly search a closed container during an inventory search, the arresting agency must have a policy or established routine authorizing such a search. Because the court of appeals did not address whether these requirements would have been met if a search had been conducted at the station, she would remand the case to the court of appeals to do so.
Judge Walker filed a dissenting opinion. He believed that the search violated the Fourth Amendment’s proscription against warrantless searches; therefore, the marijuana seized from the luggage should have been suppressed from evidence at trial. First, contrary to the Court’s opinion, the search of Price’s luggage was not “an incident of the arrest.” Neither purpose of the search incident to arrest exception—officer safety and evidence preservation— was threatened here. From the moment of arrest and until the luggage was searched, officers had exclusive control of Price’s luggage. There was no danger, after Price was in handcuffs and not holding his bags, that he “might gain access to the property to seize a weapon or destroy evidence.” Second, there were no other
Judge Newell filed a dissenting opinion, joined by Judge Hervey. He agreed with the court of appeals that the Court’s holding in Daughtry that the statutory exclusionary rule does not incorporate the inevitable 2
U.S. Supreme Court & Court of Criminal Appeals Update 2020–2021
exceptions to the warrant requirement that could justify the search. The search was not justified by way of an exigent circumstance because there was no reason to believe that Price would be able to destroy or remove the evidence in his suitcase while he was in handcuffs and the luggage was in the officer’s exclusive control. Likewise, the search could not be justified as a proper accelerated inventory search because there was no chance Price’s luggage would accompany him to the jail as his personal property when it was the only physical evidence providing probable cause for the arrest.
alone in his vehicle exactly where he had been reported to be. The officer noticed that Crider exhibited a strong odor of alcohol, glassy and bloodshot eyes, an unsteady gait, and slow, slurry speech. Crider would not submit to field sobriety testing because of claims of recent injuries. However, the officer conducted a horizontal gaze nystagmus test, and Crider exhibited six out of six possible indicators of intoxication that are revealed through that test. The officer then arrested Crider and sought a search warrant to obtain a sample of Crider’s blood. It was a form search warrant that did not explicitly authorize the chemical testing of Crider’s blood. The affidavit, however, set out facts establishing Crider’s intoxication. The affidavit recited that the warrant was for the search of Crider’s body for evidence of intoxication, and the affidavit was incorporated by the warrant itself by reference. The trial court signed the search warrant and chemical testing of the blood sample was conducted. The testing revealed a blood-alcohol concentration level of 0.19.
Judge Richardson concurred in the result. [Commentary: So, imagine if Arizona v. Gant involved a search of a person instead of a car? That’s kind of what is going on here. This opinion reaches a reasonable result, but the reasoning turned it into a plurality. Compounding the problem is Lalande v. State. The Court had previously upheld a similar search in that case. But that was based upon the theory that the arrest did not stretch to include the search at the airport, it was justifiable because the items were going to accompany the defendant into custody where he would no longer have an expectation of privacy. That rationale was later called into question by the Court’s rejection of the “inevitable discovery” doctrine in Daughtry. In all likelihood, this search would be fine according to the Supreme Court, but it would have to adjust some of its categorical precedent to do so. But on a more important note, this only deals with the “search incident to arrest” exception. Perhaps another exception could have applied, such as an administrative search? In any event, the majority doesn’t really seem to pick a horse other than retconning the rationale in LaLande to search incident to arrest. Given that it is a plurality, perhaps a clearer case will come along.] B.
Crider was indicted for felony driving while intoxicated, enhanced by multiple prior convictions. Crider filed a motion to suppress, challenging the introduction of evidence of the chemical testing results for his blood-alcohol concentration. But he did not contest the validity of the search warrant insofar as it authorized the extraction of his blood. The trial court denied Crider’s motion without making express findings of fact. A jury found Crider guilty, and the trial court sentenced Crider to seventy years’ confinement. Crider appealed, arguing that the introduction of his blood-alcohol concentration test result was error under the Texas Court of Criminal Appeals’ recent opinion in State v. Martinez, 570 S.W.3d 278 (Tex. Crim. App. 2019) (reaffirming that the chemical testing of blood constitutes a separate and discrete invasion of privacy for Fourth Amendment purposes from the physical extraction of that blood). According to Crider, before chemical testing may occur, the State must either obtain a warrant expressly authorizing that test or identify an exception to the Fourth Amendment’s ordinary preferences for search warrants. The court of appeals disagreed. It held that the Court of Criminal Appeals’ holding—that blood testing involves a discrete invasion of privacy under the Fourth Amendment—did not require a separate and express
Search Warrants
1. Magistrate’s determination that probable cause existed to justify seizure of blood was sufficient to justify the chemical testing of that blood, even though the search warrant itself did not expressly authorize the chemical testing. Following a citizen’s 9-1-1 report describing Robert Crider’s erratic driving and the location where he eventually parked, a Kerrville police officer found Crider sitting 3
U.S. Supreme Court & Court of Criminal Appeals Update 2020–2021
authorization of chemical testing in a search warrant that already authorizes extraction of blood for that purpose.
analyze Crider’s blood for genetic information or for any other biological information not supported by the same probable cause that justified the extraction of his blood sample in the first place. Nor does the State contend that it should have been able to analyze the blood for any other purpose on authority of the warrant in this case. Moreover, extraction of Crider’s blood for the purpose of testing it for his blood-alcohol concentration was justified by the strong odor of alcohol the officer noticed when he first confronted Crider and found him to exhibit characteristics of intoxication. As a result, Crider’s concern about the lack of specificity in the warrant was unfounded.
The Texas Court of Criminal Appeals affirmed. Crider v. State, 607 S.W.3d 305 (Tex. Crim. App. Sept. 16, 2020) (8:4:1). Writing for the Court, Judge Yeary first explained that a neutral magistrate who has approved a search warrant for the extraction of a blood sample, based upon a showing of probable cause to believe that a suspect has committed the offense of driving while intoxicated, has necessarily also made a finding of probable cause that justifies chemical testing of that same blood. Indeed, the purpose of the blood extraction is to test it. This means that the constitutional objective of the warrant requirement has been met: the interposition of a neutral magistrate’s judgment between the police and the citizen to justify an intrusion by the State upon the citizen’s legitimate expectation of privacy. It was of no moment whether the Court said that authorization to search the blood is implied in the warrant or whether there was necessarily a determination of probable cause for the second search. The chemical testing of the blood, based upon a warrant that justifies the extraction of blood for that very purpose, is a reasonable search for Fourth Amendment purposes.
Judge Newell filed a concurring opinion, joined by Judges Hervey, Richardson, and Slaughter. Judge Newell agreed with the Court’s holding that there are two searches that take place for blood draws in a DWI case: (1) when the police search the defendant’s body and seize his blood; and (2) when the lab technician analyzes the contents of the blood. However, because Judge Newell could envision scenarios in which the probable cause to seize an item would not necessarily provide probable cause to conduct a second search of that item, he believed it was better to say that the probable-cause determination that justified the seizure of blood, at least in this case, necessarily constituted a determination of probable cause to also search it. This would ground the analysis upon what the magistrate actually determined and limit the scope of the search. Moreover, the scope of the warrant should be judged against both the warrant and the probable cause affidavit, rather than by the just the warrant, when the search warrant incorporates the probable cause affidavit by reference. Applied to this case, reading both the search warrant and the probable cause affidavit in a common-sense manner revealed that the search of Crider’s body and blood for evidence of intoxication fell within the scope of the search warrant and affidavit. Crider’s blood by itself was not evidence that he committed the offense of driving while intoxicated; the amount of alcohol within it was. Further, the “evidence that shows the offense was committed” language in the affidavit limited the scope of the search to evidence of intoxication—not to a broader search for evidence unrelated to the crime, such as DNA. Thus, the second search was justified by
The Court then explained that Martinez, where the Court held a warrantless test unconstitutional, was distinguishable. In Martinez, the State obtained an already-extracted blood sample from a treating hospital and, without a magistrate’s probable cause finding, tested the blood sample for intoxicants. Here, the State obtained the blood sample by way of a magistrate’s determination that probable cause existed to justify its seizure. The sole purpose of the seizure was to determine its evidentiary value to prove the offense of driving while intoxicated. Consequently, the magistrate’s determination was sufficient to justify the chemical testing of Crider’s blood—even if the warrant itself did not expressly authorize the chemical testing on its face. The Court then clarified that its holding did not equate to an unconstitutional endorsement of “general” search warrants. No indiscriminate “rummaging” through Crider’s blood content was authorized. Based on the warrant here, the State was not authorized to 4
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the same probable cause that justified the seizure of the blood in the first place.
Foreman filed a motion to suppress the fruits of the search, invoking the Fourth Amendment to the United States Constitution; Article I, Section 9 of the Texas Constitution; and Chapter 18 of the Texas Code of Criminal Procedure. Specifically, Foreman argued that the warrant affidavit failed to set forth sufficient facts to establish probable cause that audio and video surveillance equipment could be found at Dreams Auto Customs. The trial court denied Foreman’s motion and allowed the surveillance footage from the hard drive into evidence. Foreman was convicted of both offenses as charged and sentenced to fifty years’ confinement.
Judge Walker filed a dissenting opinion. While he agreed that there was probable cause to test the blood, he disagreed that the mere presence of probable cause means the warrant authorized testing. In this case, the warrant did not even implicitly authorize testing. The warrant only did three things: (1) it authorized the carrying of Crider to a physician, registered nurse, or a medical laboratory technician who is skilled in the taking of blood from a human body; (2) it directed that physician, registered nurse, or medical laboratory technician to take a sample of blood from Crider in the presence of a law enforcement officer; and (3) it directed that physician, registered nurse, or medical laboratory technician to deliver the samples to the law enforcement officer. But the warrant did not say anything about testing the blood. And because the warrant did not incorporate the affidavit into its command, the actual words used in the warrant control.
On appeal, Foreman argued that the trial judge’s ruling violated each of the constitutional and statutory provisions he had invoked in his motion to suppress. He repeated his probable-cause argument made to the trial court. A divided panel affirmed the trial judge’s ruling; however, following Foreman’s motion for en banc reconsideration, the court of appeals agreed with Foreman that the search warrant was issued in error because the supporting affidavit failed to establish probable cause that Dreams Auto Customs was equipped with a surveillance system. The court found the trial judge’s error in admitting the surveillance footage harmful and reversed Foreman’s conviction.
2. Magistrate was justified in issuing search warrant authorizing the police to seize surveillance equipment even though affidavit supporting the warrant said nothing about such equipment possibly being at the business. Richard Merchant and Moses Glekiah concocted a plan to swindle Nathan Foreman into buying a batch of “black money” (fake money made from construction paper). Foreman agreed to conduct the transaction at Dreams Auto Customs, an auto-body shop owned by his wife. Shortly after Merchant and Glekiah arrived at the shop, they were ambushed. Foreman and some accomplices captured both men, tied them up, tortured them, and forced them into a van at gunpoint. However, the two managed to escape in transit. Based on information given by Glekiah, the police applied for a warrant to search Dreams Auto Customs. The magistrate reviewed the affidavit and found that it established probable cause. She issued a warrant, which allowed police to seize “audio/video surveillance video and/or video equipment.” Pursuant to the warrant, police seized three computer hard drives. One of the hard drives contained surveillance footage that depicted much of the incident at Dreams Auto Customs and Foreman’s involvement. Foreman was charged with aggravated kidnapping and aggravated robbery.
The Texas Court of Criminal Appeals unanimously reversed. Foreman v. State, 613 S.W.3d 160 (Tex. Crim. App. Nov. 25, 2020) (9:0:0). Writing for the Court, Judge Keasler first addressed the applicable law. Under the Fourth Amendment, probable cause to support the issuance of a search warrant exists “where the facts submitted to the magistrate are sufficient to justify a conclusion that the object of the search is probably on the premises to be searched at the time the warrant is issued.” Probable cause does not demand proof beyond a reasonable doubt or by a preponderance of the evidence that search of the listed location will yield a particular item of evidence; a “fair probability” is enough. The test is whether the affidavit, read in a commonsensical and realistic manner and afforded all reasonable inferences from the facts contained within, provided the magistrate with a “substantial basis” for the issuance of a warrant. This a flexible and nondemanding standard, and the Court gives great deference to the magistrate’s probable-cause determination in close cases. The Court explained that its Article I, Section 9 and CCP 5
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Chapter 18 analyses mirrored its Fourth Amendment analysis.
turn was sufficient to dispose of Foreman’s Article I, Section 9 and Chapter 18 claims. Therefore, the trial judge did not err to admit the surveillance footage in evidence.
The Court then addressed the State’s “common knowledge” argument: that the probable-cause magistrate could infer that Dreams Auto Customs was equipped with a surveillance system because “magistrates are allowed to make inferences and presumptions based upon common knowledge.” The Court’s research revealed little support for the State’s probable-cause rubric that a magistrate, contemplating a probable-cause affidavit articulating a limited set of facts to justify the issuance of a search warrant, may supplement the articulated facts with unarticulated facts that the magistrate deems so obvious or widespread as to constitute “common knowledge.” Rather, according to established Fourth Amendment jurisprudence, a magistrate, contemplating a probable-cause affidavit articulating a discrete set of facts to justify the issuance of a warrant, is allowed to draw all reasonable inferences from the articulated facts.
[Commentary: This case is kind of a bookend to Crider v. State, 607 S.W.3d 305 (Tex. Crim. App. Sept. 16, 2020) (8:1:4) discussed above. Notably, the majority appears to take the approach articulated by the concurring opinion in Crider, focusing on whether you can infer facts from the search warrant affidavit to evaluate the scope of the search warrant itself. Would have been nice if that concurring opinion in Crider had been cited, but c’est la vie.] 3. Good-faith exception to statutory exclusionary rule did not apply when officer knowingly submitted an unsworn probable-cause affidavit and then executed the subsequent search warrant. Pantego Police Officer Tyle Bonner arrested Chase Wheeler for driving while intoxicated. Wheeler refused to submit to field sobriety tests, as well as a blood or breath test. Bonner took Wheeler to the police department to obtain a search warrant for Wheeler’s blood. In applying for the search warrant, Bonner used preprinted, fill-in-the-blank/check-the-box forms. Although the probable-cause affidavit form included statements indicating that an oath was required and must be sworn before another person, Bonner never swore to the affidavit before anyone. Instead, he signed the affidavit and submitted it, leaving the signature for the jurat (i.e., judge/peace officer/notary) blank. The magistrate, without realizing that the affidavit was unsworn, signed the jurat and the search warrant. Bonner then executed the warrant.
Concluding that the latter was the optimal way to address the probable-cause issue, the Court then addressed whether it was reasonable for the magistrate to infer from the facts actually articulated in the probable-cause affidavit that the business described in that affidavit was equipped with surveillance cameras. Considering the totality of circumstances presented to the magistrate, the Court concluded it was. The Court then discussed each specific, articulated fact that it believed reasonably contributed to the magistrate’s determination of probable cause. From the concrete indications that the target business had a unique need for security on its premises (e.g., activities conducted there involved money and tangible goods were highly valuable, custom, and mobile) and had in fact deployed some security measures (e.g., the building had tinted windows), the Court said it was logical for the magistrate to infer that to the degree of certainty associated with probable cause—a “fair probability— the business was equipped with a video surveillance system. Moreover, given that the case was a close call, the Court afforded the magistrate’s determination of probable cause great deference. In its estimation, invalidating the warrant would serve only to discourage the police from undertaking the warrant process in the future. For these reasons, the Court held that the warrant satisfied the Fourth Amendment—which in
Following DWI charges, Wheeler filed a motion to suppress the blood-alcohol evidence. He argued that because Bonner’s affidavit was not sworn under oath as required by the Texas Constitution and Code of Criminal Procedure, it must be excluded pursuant to the Texas Exclusionary Rule in Code of Criminal Procedure Article 38.23(a)—that evidence obtained in violation of any provision of state or federal law cannot be used at trial in a criminal prosecution. After a hearing, the trial court denied the motion, reasoning that the situation fell within the good-faith exception to the Texas exclusionary rule under Article 38.23(b)— that evidence “obtained by a law enforcement officer 6
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acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.” Based on the denial of his motion to suppress, Wheeler pleaded guilty and then appealed the trial court’s ruling.
The Court concluded that the good-faith exception was inapplicable here because Bonner did not act in objective good faith. The Court explained that Article 38.23(b) plainly requires that an officer act in objective, not merely subjective, good faith. And in McClintock v. State, 541 S.W.3d 63, 73 (Tex. Crim. App. 2017), the Court solidified that the objective reasonableness of the officer’s conduct, based on the facts and circumstances he knows at the time, dictates whether the statutory good-faith exception applies. As such, the officer’s subjective intentions or beliefs about whether his conduct was lawful or reasonable are irrelevant under the statutory terms.
The court of appeals reversed the trial court’s ruling denying Wheeler’s motion to suppress and remanded. It concluded that the trial court had erred in denying Wheeler’s motion, reasoning that (1) the warrant was defective because the oath requirement had not been satisfied; and (2) the good-faith exception did not apply because Bonner was objectively unreasonably in relying on a warrant he knew was based on an unsworn affidavit. The court then concluded that the error was harmful.
In this case, a reasonable officer in Bonner’s position would not have believed that the warrant was valid when it was knowingly obtained by an unsworn probable-cause affidavit. The Court said that it was wholly unreasonable for any officer in Bonner’s shoes to believe that there was no need to attest to a probablecause affidavit when: (1) the oath requirement has been a constitutional mandate for all law enforcement officers for well over a century; (2) the Texas Legislature has codified and repeatedly emphasized the oath requirement; (3) the Court’s opinions have consistently held that the oath requirement is critical to obtaining a search warrant; (4) law enforcement officers are taught in the police academy that they must swear to the truthfulness of their probable-cause affidavits before a magistrate or other qualified person; and (5) the forms used by Bonner in this case for the probable-cause affidavit and search warrant both referred to the oath requirement and state that the documents were “verified” and/or “sworn before” a magistrate. Moreover, the situation here was not a mere procedural irregularity with respect to how the affidavit was sworn; it was not sworn at all. Therefore, the complete absence of this indispensable constitutional and statutory requirement was nowhere close to the line of valid law enforcement conduct that would bring this situation within the ambit of the goodfaith exception.
The Texas Court of Criminal Appeals, agreeing with the appellate court that the good-faith exception was inapplicable in this case, affirmed the court of appeals’ judgment. Wheeler v. State, 616 S.W.3d858 (Tex. Crim. App. Feb. 10, 2021) (6:3:0). Writing for the Court, Judge Slaughter first explained that a sworn probable-cause affidavit is a critical requirement and fundamental tenant of search and seizure law. And it is well-established under Texas law that a search warrant cannot properly issue without a probable-cause affidavit made under oath (i.e., “before” or in the presence of another). The Court said that this oath requirement is for good reason: in a probable-cause affidavit, the police officer is asking that the government be allowed to invade someone’s constitutional right to privacy. Consequently, it is not too much to ask that the officer swear before another that he or she is telling the truth about the necessity of such a violative intrusion. And while it has recognized that certain types of procedural irregularities may not affect the validity of a search warrant, the Court has been unwavering in emphasizing that the oath requirement is essential. Therefore, an officer’s failure to take the oath and swear to the facts of his probablecause affidavit renders defective any search warrant issued based on the unsworn probable-cause affidavit. If the warrant still validly “issues” despite this defect (which Wheeler did not argue otherwise), the question then becomes whether the good-faith exception applies to allow the improperly obtained evidence to be admitted.
Judge Hervey filed a dissenting opinion, which Presiding Judge Keller and Judge Keel joined. Judge Hervey disagreed that the good-faith exception was inapplicable and that the blood sample should be suppressed. First, she argued that the Court, as well as the court of appeals, erroneous relied on McClintock, 7
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which she believed was distinguishable. Second, she argued that the good-faith exception should apply because officers should not have to second-guess a magistrate’s decision to issue a warrant unless the search warrant is facially deficient (e.g., the warrant did not specify the evidence to be searched, it was not signed or dated, the probable-cause allegations are so wanting that no reasonable officer would believe that they amounted to probable cause, or the like)—which was not the case here. Lastly, Judge Hervey argued that policy considerations weighed against suppression: (1) there was no evidence that failing to suppress the evidence would lead to police intentionally evading the oath requirement to engage in misconduct; and (2) suppressing the evidence would penalize the police and society when the pertinent mistake was made by the magistrate in issuing the warrant.
and the kids in the kitchen. In the afternoon, Lopez brought his two biological daughters into the bedroom to watch television. While in his office, Lopez heard someone open the filing cabinet in the bedroom. He assumed that it was Pearl, but asked his wife later, who denied that it was her. Sometime thereafter, Lopez noticed something wrong with J.B. when he picked her up to change her diaper and saw that her eyes were crossed and rolling back into her head. Lopez called out for his wife, telling her that J.B. was nonresponsive. She could not rouse J.B. and told Lopez to call 911. The paramedics transported J.B. to a nearby hospital where she died a short time later. Detective Arturo Ruiz was dispatched to the scene and spoke to Lopez. He also asked Lopez if he was willing to give a statement at the police station, and Lopez agreed. After waiving his Miranda rights, the three discussed the above events, how Lopez and his wife became foster parents, if J.B. had any medical conditions, and J.B.’s crib. After the interview ended, Ruiz and Hinojos learned from J.B.’s autopsy results that J.B. had died from internal bleeding. Her injuries included a stomach full of blood, a massive laceration to her liver, punctured intestinal lining, a punctured lung, some broken ribs, and a fracture on the back of her skull. In the medical examiner’s opinion, J.B.’s injuries were intentionally inflicted by an adult and were consistent with someone kicking or stomping on her.
[Commentary: The Court, in a footnote, seems to agree with the dissent that as a general matter, a law enforcement officer should be permitted to rely on a search warrant signed by a neutral magistrate and supported by probable cause without having to “second guess” the magistrate’s determination. But, according to the Court, this principle cannot apply to situations such as the instant one where an officer has personal knowledge of a significant defect in the process used to obtain the warrant (here, the absence of an affidavit sworn under oath). Under those circumstances, even if the magistrate then mistakenly approves the warrant, the officer still knows of the underlying defect that ultimately renders the resulting warrant tainted.]
After receiving the autopsy results, Lopez was asked to give another statement a few days later, and he agreed. Lopez waived his Miranda rights and went over the day of the offense again. The police then confronted Lopez with the autopsy results and told him that they did not think that he was being honest. Lopez again denied his involvement, and Hinojos told him that if he didn’t do it then it meant that his wife did. Lopez denied his wife’s involvement, and Ruiz responded that either he or his wife, or both, caused the injuries because they were the only two adults in the house. Despite Lopez’s continual denials, Hinojos repeated this theory multiple times throughout the interview, reiterating that his wife would be held responsible if he didn’t confess. Hinojos also told Lopez that if it was both of them then his kids could go to foster care.
B. Confessions – Defendant's confession to his wife, 911, and police detectives was still voluntary despite police’s earlier statements to the defendant that if he "didn't do it" that meant his wife did so she could be arrested and that his children could end up in foster care. Antonio Lopez and his wife, Pearl Lopez, were at home with five children: their two biological daughters, who were 2 and 4 years old; J.B., an 11-month-old foster child; a 13-year-old girl who they were supervising while her foster parents were on vacation; and Pearl’s mother’s 11-year-old foster child. Lopez had converted the master-bedroom’s walk-in closet into an office, so he was in and out of the bedroom, where J.B.’s crib was located, and his office. He took care of J.B. almost all day except for when he would leave J.B. for a few minutes to check on his wife 8
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Pearl later told Lopez that Hinojos had said that they were both going to jail, that the detectives were going to go to Child Protective Services (CPS), that kids would be removed, that the kids would not go to family member (because they would protect Lopez and Pearl) or anybody else, and that the kids would only go into foster care. Lopez responded, telling Pearl that he would turn himself in even though he did not hurt J.B. A few hours later, Lopez called 911 and confessed to killing J.B. Lopez was transported the police station. He confessed to killing J.B. He said that 10 to 15 minutes before he called 911, he put J.B. down on the floor and stomped on her two or three times. Lopez said that he initially denied hurting J.B. so that he could see his wife and girls one more time.
accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion, under the rules hereafter prescribed.” Article 38.22 (known as the Texas Confession statute) contains those prescribed rules. The present case only involved Section 6—the “general voluntariness” provision. Claims of involuntariness under Article 38.22 can be predicated on police overreaching; however, unlike the Due Process Clause, they can also be based on the defendant’s state of mind. The Court explained that Lopez’s Article 38.21 claim was based solely on police overreach, a predicate to due-process relief. Thus, the threshold issue was whether Ruiz and Hinojos objectively engaged in coercive tactics. The totality-of-the-circumstances standard is particularly suited for this type of analysis—it requires courts to consider all the circumstances surrounding the confession, as reliance on only the truth or falsity of the statements and whether police had probable cause, can lead to unintended consequences. Therefore, the Court said it would continue to apply the totality-of-thecircumstances standard when determining the voluntariness of a confession. In doing so, it expressly declined to adopt the probable-cause analysis.
Lopez was indicted in two counts for capital murder and murder. He filed a motion to suppress, arguing that his confession was inadmissible because it was involuntary under the Due Process Clause and Article 38.21 of the Texas Code of Criminal Procedure. According to him, he confessed only after police told him that, if he did not, he and his wife might be arrested and that, if they were, CPS might take away their children. After a hearing, the trial court denied the motion. A jury acquitted Lopez of capital murder but convicted him of murder. The trial court sentenced him to 35 years’ confinement. Lopez appealed, arguing that the trial court should have granted the motion to suppress. The court of appeals disagreed and affirmed the lower court’s ruling.
After reviewing the evidence in the light most favorable to the trial court’s ruling, the Court concluded that Ruiz’s and Hinojos’s statements in the second interview did not cross the line into objectively coercive conduct. The record supported the trial court’s findings: Lopez voluntarily went to the police station to give the second statement. Additionally, a close reading of the record shows that neither Ruiz nor Hinojos threatened Lopez, only that they told him how things might unfold. Ruiz and Hinojos’ statements— that if he denied his involvement, his wife could be arrested and his kids going to foster care—accurately reflected the state of the investigation. Similarly, they did not tell Lopez that CPS would remove their children if he and Pearl were arrested, just that they could be removed. Moreover, the police had probable cause to arrest Pearl based on the known evidence because an evaluation of the probabilities, which probable cause requires, shows that either Lopez, his wife, or both were involved in injuring J.B. Furthermore, Ruiz’s and Hinojos’ statements were not,
The Texas Court of Criminal Appeals affirmed the court of appeals’ judgment. Lopez v. State, 610 S.W.3d 487 (Tex. Crim. App. Nov. 4, 2020) (7:2:0). Writing for the Court, Judge Hervey first addressed the relevant law. To prevail on a due-process “involuntary confession” claim, a defendant must show (1) that police engaged in activity that was objectively coercive; (2) that the statement is causally related to the coercive government misconduct; and (3) that the coercion overbore the defendant’s will. The coerciveconduct requirement is important; a confession from a defendant with a seriously impaired mental condition can still be voluntary if the police did not engage in tactics to overbear the defendant’s will. Voluntariness claims based on the defendant's state of mind are resolved by state laws governing the admission of evidence. Article 38.21 states that, “[a] statement of an 9
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as Lopez argued, “threats” of the kind that would likely induce a false confession; the record supported the trial court’s finding that no affirmative threats were made. Therefore, after considering the totality of the circumstances, the Court agreed with the trial court and court of appeals that Lopez’s statements were voluntary under the Due Process Clause and Articles 38.21 and 38.22.
sustained Watkins’s objection, but later reversed its decision, allowing the evidence to be admitted. Watkins’s appealed, arguing that Article 39.14 was not limited to case-in-chief evidence and that the statute required disclosure because the word “material” is synonymous with "relevant" when modified by the phrase “any matter involved in the action.” The State conceded that Article 39.14 applies to punishment evidence but nevertheless argued that the exhibits involved proof of extraneous offense, so they were not “material to any matter involved in the case.” Watkins replied that the evidence at issue was material because it affected his punishment. The court of appeals concluded that “material” for purposes of Article 39.14(a) means that “there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different.” Based on this understating, the court held that the exhibits at issue were not material, and therefore the trial court had not abused its discretion when it ruled that they were inadmissible despite the lack of disclosure.
Judges Yeary and Keel concurred without written opinion. III. TRIAL PROCEDURE A. Pre-trial Discovery 1. SIGNIFICANT CASE – "Material” as used in Article 39.14 means that the evidence "having a logical connection to a consequential fact" and in context of the phrase "material to any matter involved in the action" is synonymous with "relevant." The State charged Ralph Watkins with first-degree felony possession of a controlled substance with intent to deliver. The State also alleged in the indictment that Watkins had previously been convicted of two prior and sequential felony offenses: aggravated assault and retaliation. Watkins’s trial counsel sent a discovery request pursuant to Texas Code of Criminal Procedure Article 39.14 (the Texas discovery statute), asking for, among other things, “any other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the case.” He also requested notice of the State’s intent to offer any extraneous offenses, which the prosecution provided.
The Texas Court of Criminal Appeals reversed the court of appeals’ decision and remanded the case for the court of appeals to conduct a proper harm analysis. Watkins v. State, ___S.W.3d___, 2021 WL 800617 (Tex. Crim. App. Mar. 3, 2021) (7:2). Writing for the Court, Judge Newell first addressed the changes between the text of Article 39.14 prior to the passage of Senate Bill 1611—otherwise known as the Michael Morton Act—and afterwards. The current version of Article 39.14 removes procedural hurdles to obtaining discovery, broadens the categories of discoverable evidence, and expands the State’s obligation to disclose. Further, the State’s new, broader obligations apply prior to trial, continue after conviction, and must be complied with quickly. Article 39.14 also holds the State accountable to these new obligations by requiring prosecutors to document and put on the record what has been turned over before a criminal defendant can plead guilty. And finally, the statute allows for parties to agree to even broader discovery than the statute requires. The Court said that these changes significantly expanded the scope of criminal discovery in Texas to require disclosure of a great deal of evidence even though our Legislature retained the word “material” to modify discoverable evidence in Article 39.14(a).
During the punishment phase of the trial, the State sought to introduce 34 exhibits consisting of booking records, pen packets, and judgments and sentences. The State intended to use these exhibits to prove up the two felony convictions alleged in the enhancement paragraphs, as well as several different extraneous offenses. Trial counsel objected to 33 of the 34 exhibits, arguing that these exhibits had not been disclosed to the defense despite a discovery request. The prosecutor responded that he had provided notice of the State’s intent to introduce evidence of prior convictions but that he had not provided access to the exhibits because he did not believe Article 39.14 applied to punishment. The trial court initially 10
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The Court then considered the phrase “material to any matter involved in the action” as it appeared in Article 39.14(a). It first looked at the word “material.” It concluded that “material” was plain on its face and susceptible to an ordinary definition. The Court then looked at the phrase modifying “material”: “any matter involved in the action.” It concluded that this modifying phrase broadened the scope of what type of evidence was “material” beyond the ultimate issues of either guilt or punishment. This was distinguishable from how Brady and its progeny defined the concept of “materiality”: that materiality, as a matter of constitutional due process, is specifically tied to the jury’s determination of guilt or punishment and judged in hindsight in relation to all the evidence admitted at trial. Therefore, in the context of the statutory phrase, evidence need only have a logical connection to a fact of consequence to any number of subsidiary issues rather than to the outcome itself. Given the way the legislature uses the word "material" in the statute, any distinction between "material" and "relevant" is untenable.
Court first defined “material,” and even then, it did so only as a matter of constitutional due process. So, neither Brady nor Agurs had been decided at the time the Legislature started drafting the bill. Further, none of the revisions of Article 39.14 leading up to the Michael Morton Act incorporated the language of the Brady concept of materiality into the statute. Second, while Article 39.14 had been the subject of substantial judicial interpretation prior to passage of the Michael Morton Act, that “judicial interpretation” did not clearly focus upon the meaning of the phrase “material to any matter involved in the action.” Rather, it focused upon whether a trial court’s refusal to order disclosure amounted to reversible error. The original version of the statute left the issue of disclosure to the trial court’s discretion. In fact, the Court had applied two different “material” definitions: (1) “indispensable to the State’s case;” and (2) “creates a reasonable doubt that did not otherwise exist.” Further, the Court’s precedent had muddied the issue by combining the question of harm or prejudice with the scope of a trial court’s discretion. Consequently, the Court lacked a previous, authoritative interpretation of what constitutes evidence that is “material to any matter involved in the action” when interpreting the amended version of Article 39.14. And since the Court was asked to interpret the new version of the statute as if it had been enacted its amended form, there was no reason to apply its precedent interpreting the previous version of Article 39.14. Without the “Prior Construction Canon” presumption, the Court said it must rely upon the ordinary definition of the terms in the statute.
The Court then considered whether it was required to apply the “Prior Construction Canon” to the statute while interpreting the phrase “material to any matter involved in the action.” It concluded that it could not. According to this canon of statutory construction, when the Legislature revises a particular statute that has been judicially construed, without changing the construed language, it is presumed that the Legislature intended that the same construction should continue to be applied to that statute. But when there has been no settled interpretation of the statutory phrase about which the legislature could have been made aware, the presumption does not apply. Such was the case here.
The Court then assumed that the meaning of "material" was ambiguous and considered whether the legislative history of the Michael Morton Act required a different interpretation of "material" than its ordinary definition. The Court held it would not because the legislative history did not provide definitive support for any particular construction beyond adopting the ordinary meaning of the text. There was no specific discussion of why the Legislature chose to keep the phrase “material to any matter involved in the action.” The Legislature had initially used the word "relevant" when the bill was filed, but a compromise was reached to simply amend the existing statute. The Court noted that this could suggest an intent for the word "material"
First, given the statutory history of Article 39.14, the Texas Legislature could not have incorporated the due process concept of “materiality” in the original statute. When the Legislature drafted the bill reforming the Code of Criminal Procedure in 1963, the bill borrowed the phrase “material to any matter involved in the action” directly from Rule 167 of the Rules of Civil Procedure. The bill was then passed and signed into law in 1965 with no substantive changes being made to the discovery provision. Brady was decided in 1963—after the bill was introduced. And it was not until 1976 that the United States Supreme 11
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to mean something other than relevant. However, it was also possible that the existing language in the statute could be seen as synonymous with “relevant,” because many definitions of “material” include “relevant.” Therefore, the Court could not say that the legislative history definitively suggested a particular meaning. The Court was left with the text of the phrase and it had to consider the meaning of “material” in the context that it appears in the statute. A reasonable reader would have understood the word “material” to have its ordinary definition at the time it was enacted, considering the way it appears in the statute. And the Court could not say that its case law on the issue was so clear that our Legislature waded through it and passed the Michael Morton Act with any specific meaning in mind beyond the ordinary one. Consequently, the Court held that the word “material” as it appeared in the statute means “having a logical connection to a consequential fact” and is synonymous with “relevant.”
order to be discoverable, the evidence listed in Article 39.14(a) be subject to a materiality standard rather than a standard of mere relevance. Judge Yeary also filed a dissenting opinion. He argued that the Court should construe a statute by focusing on the words actually used—here, “material”—rather than relying on legislative intent. Thus, in the context of Article 39.14(a), the word “material” simply means “material,” not “relevant.” [Commentary: This is a very long opinion that deserves your review. Your take is better than any summary or commentary can provide. However, note that there are still many unanswered questions, including whether Watkins was harmed by the State's late disclosure. Was the request specific enough? The State never challenged that, but there is law that says a broad discovery request does not require disclosure. See,e.g., Sonderup v. State, 418 S.W.2d 807 (Tex. Crim. App. 1967). Similarly, is a motion for continuance required to preserve error, or does it merely prevent Watkins from arguing he was surprised? See, e.g.¸ Prince v. State, 499 S.W.3d 116 (Tex. App.---San Antonio 2016, no pet.). What about "willfulness"? The Court has previously held that evidence "willfully withheld from disclosure under a discovery order should be excluded from evidence," but the trial court does not abuse its discretion in allowing the evidence in when the lack of disclosure is not willful. See,e.g., Francis v. State, 428 S.W.3d 850 (Tex. Crim. App. 2014). These questions will have to be answered through future litigation.
Lastly, the Court determined whether the court of appeals erred in determining that the exhibits at issue were not “material.” The Court said yes. In this case, the exhibits were a collection of booking records, pen packets, and judgments of prior convictions that were used to prove two prior convictions for enhancement and other extraneous offenses that Watkins had committed. These exhibits were at least “subsidiary facts” (i.e., facts that do not by themselves impact a fact finder’s normative response to the defendant but are relevant insofar as they assist in “proving or disproving a normative fact) that could assist the fact finder in finding “normative facts” (i.e., facts that directly impact the fact finder’s normative response to the defendant) such as the commission of prior offenses, both extraneous and enhancement. Simply put, they had a logical connection to a consequential fact and should have been disclosed upon a proper request. Thus, the State erred by failing to produce those exhibits prior to trial in violation of Article 39.14(a).
Three observations about the dissents, though. Both dissents fail to explain really engage the Court's textual analysis, focusing instead on the legislative intent portion of the Court's opinion. This overlooks that the Court recognized that the resort to extra-textual sources suggesting legislative intent was unnecessary because the statute was not ambiguous. Second, Presiding Judge Keller zeros in on the best critique of the Court, but does not really offer an explanation for the many problems pointed out by the Court regarding reliance upon a due process "materiality" standard. (Even the State abandoned the due process standard dealing with disclosure of exculpatory evidence.) Third, Judge Yeary once wrote an opinion claiming a statute that used the word "and" actually meant "or" at
Presiding Judge Keller filed a dissenting opinion. She disagreed with the Court’s interpretation that “material” meant “relevant.” She argued that the fact the Legislature did not change the word “material” to “relevant” when it amended 39.14(a) should itself be a fair indication that the Legislature intended that, in 12
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least in the context of the statute. See Leming v. State, 493 S.W.3d 552 (Tex. Crim. App. 2016). His argument regarding the ordinary definition of "material" (a word that is often defined as synonymous with "relevant") should be considered in that light. With these thoughts, I commend all the opinions in this case to your reading. It will be necessary to fully understand the nuances and scope of the opinion.]
testified that allowing non-employees into the work area or allowing electronic monitoring/recording would be “very disruptive,” could make analysts anxious, and could create a risk of contamination or cause delays in multiple cases. After adjourning the hearing without any additional testimony, the court ordered the parties to submit briefs. A few months later, the 340th Court sent its findings of fact and rulings via letter to counsel for all five defendants. It found, among other things, that: (1) the State’s proposed DNA testing would not provide enough remaining DNA sample or extract for each of the five defendants to conduct their own confirmatory testing of the biological evidence; (2) the DPS lab was the only statutorily authorized option to conduct the testing because there was no evidence that any “private, accredited lab would willingly absorb the cost of DNA testing for another party”; and (3) the State’s and the defendants’ concerns could be addressed by requiring DPS to allow “indirect or remote observation” of the DNA testing of the samples in question. It then directed Best to work with the DPS lab to acquire the necessary equipment and to implement digital audiovisual recording of the handling, preparation, and testing of the samples in question, using no fewer than three cameras to capture the entire DNA testing process.
2. Trial judge exceeded his discretionary authority by ordering the State to create evidence in the form of a digital audiovisual recording of the crime lab’s DNA testing. Five codefendants were all indicted for offenses arising out of the same criminal episode. Stephen Jennings, Kristen Jennings, and David Navarro were all indicted for capital murder and lesser offenses; Garry Jennings was indicted for murder and lesser offenses; and Angella Wray was indicted for aggravated kidnapping and engaging in organized criminal activity. The five cases were assigned to four district courts. The State submitted biological evidence collected in these cases to the DPS Crime Lab in Lubbock for DNA testing. However, Stephen Jennings and Navarro moved in their respective courts to have the DNA testing halted, arguing that some of the biological samples might not be sufficient for the State to conduct its DNA testing and for the five defendants to be able to retest the evidence. The 340th Judicial District Court—where Stephen Jennings’ and Kristen Jennings’ cases were assigned—stayed the testing until an evidentiary hearing could be held and scheduled a hearing. Following Navarro’s request that the four trial courts agree on a single DNA testing policy, Navarro’s judge from the 51st Judicial District Court signed an “Order to Halt DNA Testing until Further Order” that directed John Best, the District Attorney for the 119th Judicial District, to provide all five codefendants with notice of any hearings in any of the four courts related to the scientific testing of evidence collected in these cases.
The following month, the 340th Court signed an order, commanding that any DNA testing conducted on the biological evidence that would be consumed by such testing to be digitally recorded by both audio and video. In addition to ordering Best to submit a plan to it for approval, the Court mandated that the recording capture the entire process and maintain a constant view of the evidence and the individuals involved in the testing; that no fewer than three cameras be used; and that the recording include all comments, conversations, and any other relevant sounds that occur during the DNA tests. Best filed a motion for reconsideration, asking the Court to withdraw its orders. Best argued that the Court lacked the authority to enter the orders, that the State lacked the authority to order DPS to do anything, that the changes needed to meet the court’s imposed testing requirements were massive, and that the process could take a year or longer. The court denied the motion. Best subsequently filed a petition for writs of mandamus and prohibition in the Texas
Subsequently, the 340th Court held an evidentiary hearing in which one witness, DPS DNA Section Supervisor David Young, testified. Young conceded that some samples, like a swab used to collect touch DNA, can be completely “consumed” by the extraction process. Young said that DPS’s process sometimes leaves an insufficient quantity of extract for a defendant to conduct independent testing. He also 13
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Court of Criminal Appeals, arguing that the 340th Court lacked the judicial authority to enter his orders.
them of their due process right to present a complete defense. Nor did it entitle them to discovery that would not otherwise be authorized. The Court explained that before evidence in the State’s possession which may be destroyed during testing will be considered “material” for due process purposes, it “must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” In these pre-trial discovery proceedings, prior to the DNA testing itself, it is not at all apparent that the biological evidence will have exculpatory value. And it does not matter that the State may be aware in advance that the testing might totally consume the biological evidence, such that re-testing by the defendants will be impossible. When evidence that the State destroys is only potentially exculpatory, due process is implicated only when the State has destroyed that evidence in bad faith. “If awareness that evidence would be destroyed were enough, by itself, to constitute bad faith, then officials could never conduct a test that would consume all of the evidence, even if doing so were necessary to achieve probative results.”
The Texas Court of Criminal Appeals granted conditional relief. In re Best, 616 S.W.3d 594 (Tex. Crim. App. Feb. 3, 2021) (9:0:0). Writing for a unanimous Court, Judge Yeary explained that to obtain extraordinary relief, Best must show that (1) he has no adequate remedy at law; and (2) what he seeks to compel or prohibit is ministerial, involving no discretion. And as to the second requirement, the Court has observed that, “[i]f a district judge enters an order for which he has no authority, mandamus will issue.” The Court concluded that the first requirement was met because Best had no ability to take an interlocutory appeal from the trial court’s order. It then proceeded to address whether the act Best sought to compel or prohibit was ministerial—and specifically, whether it was within the trial court’s authority to enter the order it did in these cases. According to the Court, the trial judge exceeded his discretionary authority in discovery matters by ordering the State to create evidence in the form of a digital audiovisual recording of DPS’s DNA testing in these cases. The Court explained that it has said that Article 38.43—the statute at issue here—grants certain discretion in the trial court to regulate pre-trial DNA testing, by resolving disputes among the parties as to which “biological evidence” is necessary to be tested under that statute. But whatever may be the permissible scope of a trial court’s discretion over matters of pre-trial discovery, it does not extend to the point of ordering the State to create or generate evidence that does not otherwise exist at the time of the discovery order. Here, the trial court essentially ordered the State to generate documentary evidence that would not exist but for the order itself. Such an order plainly exceeded the permissible scope of a trial court’s discovery discretion.
Furthermore, the Court explained that these defendants were not without recourse. While it may not be possible for the defendants to re-test the biological evidence, Section (k) of Article 38.43 provides a remedy to defendants when the biological evidence is lost or destroyed as a result of DNA testing, namely: access to “any bench notes prepared by the laboratory that are related to the testing of the evidence and the results of that testing.” That access should allow defendants to subject any inculpatory DNA test results to the crucible of cross-examination (and, if the State cannot provide these required notes, the defendants could present evidence of that inability at trial to impeach any inculpatory DNA test results). Such a remedy at least minimally satisfies due process so long as the State has not destroyed the biological evidence in bad faith.
The Court then rejected the trial court’s conclusion that a failure to order a digital recording of the State’s DNA testing in this case, or some other such documentary action, would result in a violation of the accused defendants’ due process rights. The fact that the State’s DNA testing might exhaust the testable samples and thereby deprive the defendants of the ability to retest the biological evidence did not deprive
[Commentary: Note that though this case may have pre-dated Watkins, discussed above, it is consistent with prior case law interpreting Article 39.14 that recognized that a trial court's authority to order discovery did not extend to ordering the State to create evidence.] 14
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B. Motion to Disqualify – It is not well-settled law that an entire law firm is disqualified from representing a criminal defendant when the firm’s partner was the former District Attorney of the case. Michael Stovall was indicted for family violence assault. At the time, Nico LaHood was the District Attorney (“DA”). Assistant District Attorney (“ADA”) Melissa Saenz received an email summoning her to a meeting with LaHood to discuss Stovall’s case. According to Saenz’s testimony, during this meeting, she and LaHood reviewed 911 calls and photographs, and they expressed different opinions about whether an injury suffered by the complainant looked like a bite mark. LaHood asked her about the strengths and weaknesses of the State’s case. But he did not tell her how to prosecute the case. A few weeks later, Saenz was moved to a different court, so she never made an appearance in the case. Simultaneously, LaHood’s term as DA ended, and he became a partner in a private law firm with Jay Norton and Jason Goss. Less than a week later, Goss filed a motion to substitute himself as Stovall’s counsel. He alone signed the pleading, but “LaHood Norton Law Group” appeared under his signature. Months later, LaHood, Norton, and Goss all signed a document requesting discovery in the Stovall case. The State subsequently filed a motion to disqualify the firm due to LaHood’s involvement in the case while he was DA.
disqualified as Stovall’s counsel. The case law shows that a variety of relatively minor acts are sufficient to disqualify a former prosecutor from either representing a defendant or presiding over his case as a judge. These acts include merely signing a jury-waiver form, as well as the act of writing a letter to defense counsel stating what his punishment recommendation would be even though the prosecutor never appeared in the case and did not remember writing the letter. However, mere “perfunctory acts,” such as a prosecutor’s rubberstamped name on the State’s announcement of ready when the prosecutor had never appeared in the case or examined the State’s files, are not enough. The Court concluded that Saenz’s testimony— which it determined that the trial court had implicitly found true in its entirety—was indisputably sufficient to establish that LaHood was “of counsel for the State.” LaHood actively participated in the preparation of the case: he examined the State’s files, discussed the evidence with the assistant district attorney assigned to the case, and offered his opinion of whether the evidence showed a bite mark. LaHood’s involvement far exceeded the kind of involvement the Court had previously held sufficient. And because Article 2.08 is a rule of automatic disqualification, it disqualifies LaHood by virtue of his participation in the case, regardless of whether he obtained any confidential information belonging to the State. Lastly, Article 2.08’s dictates were not required to give way to Stovall’s constitutional right to counsel of his choice. A defendant’s right to counsel of choice is not absolute. The strong presumption in favor this right may be overridden by other important considerations relating to the integrity of the judicial process and the fair and orderly administration of justice. State courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them. Here, no attempt was made to show a special need for LaHood to represent Stovall.
After a hearing on the motion, the trial court denied the State’s motion. The State filed a petition for writ of mandamus with the court of appeals. The appellate court concluded that both LaHood and the entire law firm were disqualified. Because the trial court erred by denying the State’s motion to disqualify the firm, the court conditionally granted the mandamus petition. In response, the trial court petitioned the Texas Court of Criminal Appeals for a writ of mandamus to require the court of appeals to withdraw its issuance of a writ of mandamus. The Texas Court of Criminal Appeals denied mandamus in part and granted mandamus in part. In re Meza, 611 S.W.3d 383 (Tex. Crim. App. Nov. 18, 2020) (9:0:0). Writing for the unanimous Court, Presiding Judge Keller explained that the only contested question was whether the State seeked to compel a ministerial act. The Court concluded that unequivocal, well-settled law required that LaHood be
But the Court agreed with the court of appeals that disqualification of the entire law firm was not required. To start, Article 2.08 says nothing about disqualifying the entire law firm to which the former prosecutor now belongs; it speaks only to disqualifying the former prosecutor. Second, there is no caselaw authority from the Court that would mandate disqualification of the 15
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entire firm. The cases relied upon by the court of appeal to hold that the relationship of the attorneys to the parties and each other is what controls are not binding authority. Likewise, the Texas Supreme Court cases cited by the State for the proposition that disqualification of an attorney automatically requires disqualification of the entire firm are not binding precedent in criminal cases. Moreover, these relied upon cases by the State and the court of appeals suffer the same shortcoming: they rely upon disciplinary or ethical rules for guidance in determining when an attorney is disqualified. But the Court has taken the position that a disciplinary rule cannot by itself furnish a sufficient basis for disqualification.
___S.W.3d___, 2021 WL 800761 (Tex. Crim. App. Mar. 3, 2021) (8:0:1). Writing for the Court, Presiding Judge Keller explained that a realtor is entitled to mandamus relief against a trial court when (1) the relator has no other adequate legal remedy; and (2) the act sought to be compelled is purely ministerial. The first prong was not in dispute because the State had no adequate remedy; it had no immediate right to appeal the trial court’s ruling and its only ultimate right to complain would be a cross-point that depends on the defendant taking an appeal from a conviction. Therefore, the Court focused on the second prong. Under Texas Code of Criminal Procedure Article 1.13, the State must consent to a defendant’s waiver of a jury trial. The Court has issued mandamus relief in the past when a trial court has indicated that it intends to conduct a bench trial despite the State’s lack of consent to a defendant’s waiver of a jury. So, the question the Court had to answer was whether the Emergency Order changed that. The Court concluded that it did not. Under Government Code § 22.0035(b), the Texas Supreme Court has the power to modify or suspend procedures of any court proceeding during a disaster declared by the governor (e.g., COVID-19). The Emergency Order at issue here provided that subject only to constitutional provisions, Texas courts may in any case (civil or criminal) modify or suspend any and all deadlines and procedures until a specified date. The Court said that on their faces, neither § 22.0035(b) nor the Emergency Order authorized courts to modify substantive rights; they both only addressed procedural matters. The Emergency Order’s language giving a court the power to modify or suspend “deadlines and procedures” did not suggest that a court could create jurisdiction for itself where the jurisdiction would otherwise be absent or that a judge can create authority to preside over proceedings over which the judge would otherwise be barred from presiding. If the Emergency Order intended to allow these things, the Court would have expected a provision explicitly saying so.
To the extent the court of appeals’ opinion granted mandamus relief as to members of the law firm other than LaHood, the Court concluded that the court of appeals acted erroneously. It conditionally granted the trial court’s request for mandamus relief and directed the court of appeals to rescind its mandamus order to that extent. C. Consent to waiver of jury trial – Emergency Order giving a court the power to modify or suspend deadlines and procedures did not confer upon the trial court the authority to conduct a bench trial without the State’s consent. Jacob Straughan was charged with misdemeanor offenses of evading arrest and assault. He requested a bench trial and sought to waive his right to a jury trial. Anticipating that the State would not consent to his waiver, he argued that the Texas Supreme Court’s Emergency Order in response to COVID-19 gave the trial court the authority to override the State’s refusal to consent to his waiver. The State argued the opposite and refused to consent to Straughan’s waiver. After holding a hearing, the trial court granted Straughan’s motion for a bench trial. The State filed an application for a writ of mandamus with the court of appeals, arguing that the Emergency Order governed procedures and deadlines and did not give courts the discretion to ignore substantive rights and privileges of parties. The court of appeals disagreed and declined to grant relief. The State then sought mandamus relief against the court of appeals.
The Court then concluded that the consent requirement in Article 1.13 was not merely procedural but implicated the trial court’s authority to preside over a particular type of proceeding. Because a judge does not have the authority to conduct a bench trial when the State has not consented, the Court said he cannot use
The Texas Court of Criminal Appeals conditionally granted mandamus relief. In re Ogg, 16
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the Emergency Order’s authorization to modify or suspend procedures to confer that authority upon himself. If he could, then he could also abrogate a defendant’s statutory right to a jury trial at punishment. It was absurd to think that a generically framed right to modify statutory deadlines and procedures gave the trial court such power, including when the party insisting on a jury trial was the State. Because it was clear and indisputable that the Emergency Order did not confer upon the trial court the authority to conduct a bench trial without the State’s consent, the Court conditionally granted the State mandamus relief.
Philmon’s indictment included two counts. Aggravated assault with a deadly weapon [count one] required proof that Philmon: (1) intentionally or knowingly, (2) threatened imminent bodily injury to Evonne White, and (3) used or exhibited a deadly weapon, namely, a knife, or a metal bar, or a bag, or a metal object. Family-violence assault [count two] required proof that Philmon: (1) intentionally, knowingly, or recklessly, (2) caused bodily injury to Evonne White, (3) by impeding the normal breathing or circulation of the blood of Evonne White by applying pressure to her throat with his hand or arm, and (4) Evonne White was a member of Philmon’s family or household or a person with whom he had a dating relationship. Philmon was convicted and sentenced for both counts. He appealed his convictions and sentences, claiming that they violated his right against double jeopardy. The court of appeals disagreed, reasoning that both offenses had at least one element that the other did not and, even though the offenses occurred during the same criminal episode, they did not constitute the same offense for purposes of the protection against double jeopardy. Accordingly, the court affirmed the trial court’s judgment on this issue.
Judge Newell concurred without written opinion. [Commentary: Note that the Court again considers the lack of a state's written consent to a defendant's waiver of a jury trial to be an event that deprives the trial court of authority to conduct a proceeding without a jury. Does this mean that a defendant who pleads guilty can have his plea voided if the State fails to sign the waiver form?] D. Double Jeopardy 1. Convictions and sentences for both aggravated assault of a deadly weapon and familyviolence assault did not run afoul the Double Jeopardy Clause. Manyiel Philmon’s girlfriend, Evonne White, went through his phone and discovered he had been unfaithful. White confronted Philmon about her discovery, and the two began fighting. Philmon gathered some clothing in the center of the room and tried to light it on fire. After White told Philmon that he was going to burn the whole apartment down, Philmon pushed White onto a mattress, removed the battery from her phone, and threw the phone across the room. Next, he threatened her with a metal bar, telling her that he was going to “beat the shit out of [her].” He then grabbed a gun, waved it in her face, and threatened to “pistol-whip” her. Then, Philmon went to the kitchen and retrieved a knife and some plastic kitchen bags. He threatened her with the knife and wrapped a plastic bag around her head and attempted to suffocate her by raising the bag and constricting her breathing. A neighbor heard White screaming and called the police.
The Texas Court of Criminal Appeals affirmed. Philmon v. State, 609 S.W.3d 532 (Tex. Crim. App. Oct. 21, 2020) (7:0:2). Writing for the Court, Judge Walker first explained that the Double Jeopardy Clause offers protection against multiple prosecutions and multiple punishments for the same offense. To determine whether two offenses are the “same offense,” the Court applies the Blockburger “sameelements” test: two offenses are not the same if each offense requires at least one element that the other does not. In Texas, this test is informed only by the pleadings; the reviewing court cannot consider the evidence presented at trial to make the determination. If the Blockburger test is satisfied, a judicial presumption arises that the offenses are different for double jeopardy purposes. The Court then considers a non-exclusive set of factors to determine whether the Legislature clearly intended only one punishment for these separate offenses. If, according to the relevant statutory provisions, it is not clear that the Legislature intended both offenses to be punished as one, then 17
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separate convictions and punishments for each offense do not violate one’s right against double jeopardy.
section, was the only factor that could potentially suggest that the Legislature intended one punishment because both offenses are found in Chapter 22 of the Penal Code. However, the remaining factors do not— the offenses are not phrased in the alternative; other than the word “assault,” they have dissimilar language in their titles; they do not have a similar punishment range; they do not share a common focus; they have different elements that are not related at all such that even under an imputed theory of liability, they cannot be considered the same; and there is no explicit legislative history articulating an intent to treat the offenses the same or different. Therefore, the two offenses are separate for double jeopardy purposes.
The Court then analyzed the court of appeals’ conclusion that the aggravated assault with a deadly weapon count required proof of a deadly weapon, whereas the family-violence assault count did not. The Court agreed. The Court noted that even though in some cases the facts proving that one impeded another’s breathing or circulation may also prove the use or exhibition of a deadly weapon, that does not mean that impeding one’s breathing or circulation necessarily constitutes proof of using or exhibiting a deadly weapon. The Court has interpreted “impeding” under the family-violence assault statute to include any degree of impediment to one’s normal breathing or circulation of blood flow. This is an exceptionally low bar, as any hindrance, obstruction, or impediment (such as being unable to take deep breaths) for any amount of time to one’s breathing or blood flow is per se a bodily injury and therefore sufficient to satisfy familyviolence assault. Though the evidence in the case needed to prove that Philmon impeded White’s breathing or circulation might have also been sufficient to prove he used a deadly weapon, the Court reiterated that it could only to consider the pleadings.
Judge Yeary concurred in the result. Judge Keasler filed a concurring opinion, which Judge Hervey joined. He argued that there was another, less controversial way to resolve Philmon’s doublejeopardy claim: the aggravated assault with a deadly weapon count contains yet another element that familyviolence assault by occlusion does not—the element of threatening another with imminent bodily injury. This, coupled with the fact that family-violence assault by occlusion has at least one element that aggravated assault does not, was sufficient to trigger the presumption that the Legislature intended to permit multiple punishments for these offenses. Thus, even if the court of appeals erred to suggest that familyviolence assault by occlusion does not necessarily require proof of a deadly weapon, it correctly held, on an independent basis, that Philmon suffered no doublejeopardy violation. He would affirm the court of appeals solely on this ground or dismiss this petition as improvidently granted.
The Court then analyzed the court of appeals’ conclusion that the aggravated assault with a deadly weapon count required proof of a threat of imminent bodily injury, while the family-violence assault count did not. The Court agreed. The family-violence assault count requires proof of actual bodily injury. Accordingly, the Court concluded that the offenses, as pleaded, each required proof of at least one element that the other did not. Specifically, count one required proof of a threat and the use or exhibition of a deadly weapon while count two did not, and count two required proof of a bodily injury and that the complainant was in a dating or familial relationship with Appellant while count one did not.
2. The failure to appear statute creates as many actionable offenses as there are conditional releases even if all the offenses are scheduled for court on the same day. Kyle Kuykendall was charged, in a single indictment, with two instances of the third-degree felony offense of failure to appeal. He was convicted on both counts and sentenced to concurrent ten-year sentences. On appeal, he argued that punishing him for both offenses violated the Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment. He argued that, because he had been required to appear on a single occasion to answer for
Lastly, the Court analyzed whether the presumption that count one and count two were different offenses was rebutted. It concluded that it was not. After weighing the factors, the Court said that it was not apparent that the Legislature clearly intended only one punishment for these two offenses. The first factor, whether the provisions are in the same statutory 18
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both charges against him, he can only have committed one offense when he failed to appear. The Court of Appeals agreed, holding that because Kuykendall failed to appear only once, he could only be punished once under the Double Jeopardy Clause. It vacated his conviction on the second failure-to-appear count.
Focusing on the circumstance surrounding conduct that makes the offense of failure to appear actionable, the Court noted that the statute uses a singular form of the noun “release.” The Court has previously observed that a legislative reference to an item in the singular suggests that each instance of that item is a separate unit of prosecution.” Therefore, the use of the singular “release” supported the view that the allowable unit of prosecution is the number of discrete conditional releases a specific failure to appear violates, not the number of scheduled hearings at which an accused failed to appear—the view that Judge Richardson expressed in his concurring opinion in Ex parte Marascio, 471 S.W.3d 832 (Tex. Crim. App. 2015). Moreover, the Court explained that the statute’s allowable unit of prosecution does not and cannot turn on an administrative decision about whether to combine separate court proceedings into a single setting. Because Kuykendall had failed to appear at the combined setting, he committed to distinct offenses and thus the Double Jeopardy Clause was not violated.
The Texas Court of Criminal Appeals reversed. Kuykendall v. State, 611 S.W.3d 625 (Tex. Crim. App. Nov. 11, 2020) (8:1:1). Writing for the Court, Judge Yeary explained that the Double Jeopardy Clause provides three types of protection: (1) protection against a second prosecution for the same offense following an acquittal; (2) protection against a second prosecution for the same offense following a conviction, and (3) protection against multiple punishments for the same offense. What constitutes the “same offense” for purposes of the multiplepunishments double-jeopardy protection comes down a “unit of prosecution” inquiry---i.e., how many times the penal provision permits a defendant to be punished when his conduct seems to violate the same penal provision more than once. Absent an explicit definition, the gravamen of the offense best describes the allowable unit of prosecution.
Judge Newell concurred in the result, and Judge Walker dissented. IV. EVIDENCE
The Court then turned to discerning the gravamen of the failure to appear offense. By the statute’s plain terms, an actor completes the offense of failure to appear when he “fails to appear” as required. But the element of “failure to appear” cannot constitute the whole gravamen of the offense, since it does not serve to identify what actually makes the omission of failing to appear an offense. The failure to appear is only made a crime in accordance with the elements of the offense that describe why the omission is unlawful: that the actor was “lawfully released from custody . . . on condition that he subsequently appear . . . in accordance with the terms of his release.” The terms of the conditional release are statutory circumstances surrounding the conduct. Circumstances surrounding conduct are routinely regarded as elemental in a penal provision and have been regarded as part of the “focus” or gravamen of the offense. So especially when, as here, the statutory circumstance surrounding conduct is what makes the omission an offense, that statutory circumstance is all the more essential to defining the actionable conduct. It should therefore be regarded as part of the gravamen.
A. Confrontation Clause 1. Admission of expert’s remote testimony violated the Confrontation Clause because there was no showing that testifying remotely was necessary. James Ray Haggard and the victim’s mother, Traci, were life-long friends. Traci’s two daughters, M.W. (age fifteen) and A.W. (age ten), called Haggard “uncle.” One night, Traci took her children over to Haggard’s house to play with his two kids and spend the night, something that happened often. There were only two bedrooms in the house; A.W. slept in the living room with Haggard’s daughter, Haggard’s stepson slept in the second bedroom, and M.W. slept in Haggard’s room. According to M.W., Haggard sexual assaulted her. In the morning, M.W. called her mother to pick her and her sister up. She was crying and upset but did not tell Traci what happened. After multiple calls from M.W. telling her to “hurry up,” Traci had M.W.’s aunt, Linda BrackinBarton pick the kids up. When they returned the Traci’s house, M.W. told Barton and Traci what happened. No one called the police, but Traci put 19
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M.W.’s clothes in a Ziploc bag because she “saw stuff” on them.
By the time of trial, the SANE, DeVore, had moved to Montana and was a self-employed consultant. She had originally told the State that she would voluntarily travel to Texas to appear in court and testify; the State agreed to reimburse her expenses but did not subpoena her. However, the Friday afternoon before trial began, DeVore notified prosecutors that she would not voluntarily appear and testify. The following Monday, rather than seeking a continuance, the State asked the trial court to allow DeVore to testify remotely via FaceTime, arguing that her testimony was essential because only she could prove-up the chain of custody of the SANE kit and its contents and that if she did not testify then the DNA reports would be inadmissible. The State contended that it had insufficient time to subpoena DeVore due to her late notification, even though it had ample time to subpoena her before trial but never did. The trial court granted the State’s motion. Over the defense’s objection, DeVore testified against Haggard the next day about her report, which included M.W.’s account of what had happened and the results of the exam. DeVore also testified that she had changed her mind about testifying in person at the last minute for economic and personal reasons. Although the State would reimburse her expenses, it was not going to pay her to testify and neither would her employer. But DeVore never said that she was incapable of traveling to Texas due to financial constraints, or even if she could, traveling to Texas would cause an undue financial burden. DeVore testified that it was inconvenient timing for her because she flew to Houston the week before to testify at a different trial, and she had to fly to Houston again the weekend after the instant trial to be with an ill family member.
The next day, Barton took M.W. to a hospital for an evaluation. Suzanne DeVore, a Sexual Assault Nurse Examiner (SANE), performed a SANE examination and wrote down M.W.’s account of what happened, which M.W. gave prior to the exam. M.W. told DeVore that that shortly after she and Haggard got into bed, Haggard asked her to take her clothes off, which she did. Haggard digitally manipulated her breasts and put his mouth on them; put his mouth on her sexual organ; and penetrated her vagina, but not her mouth or anus. The assault ended when Haggard told M.W. to get dressed because he thought someone was coming towards the room. Haggard cleaned himself off with M.W.’s shirt. Upon physical examination, DeVore found no trauma to M.W.’s vagina or anus but found a small bruise on M.W.’s right breast. Jessica Lake, a serologist at the Department of Public Safety crime laboratory in Houston, examined the contents of the SANE kit. Lake did not find semen on the vaginal swabs, labia swabs, or anal swabs. Lake found areas of interest on the underwear and shirt to test, but both tests were negative for the presence of semen. DNA forensic examiner Andrea Smith, Lake’s supervisor, issued her first report. In relevant part, she found that the partial DNA profile extracted from the right-breast swabs were consistent with a two-person mixture, from which neither M.W. nor Haggard could be excluded as contributors. Smith said that the probability of selecting an unrelated person at random who could have contributed to the partial profile was 1 in 6 for Caucasians, 1 in 5 for Blacks, and 1 in 4 for Hispanics. The approximate world population at the time of testing was 7 billion people. Three years later, Smith reinterpreted the DNA data using new testing guidelines and software. Her results were significantly more inculpatory: it was 339 billion times more likely that M.W. and Haggard contributed to the mixed DNA on the right-breast swab than M.W. and some other unknown and unrelated individual. Smith was also able to develop a partial DNA profile from the rightbreast swab data, which she was previously unable to do, and concluded that it is 219 quadrillion times more likely that M.W. and Haggard contributed to the mixture than M.W. and some other unrelated and unknown individual.
A jury subsequently found Haggard guilty of one count of sexual assault of a child and one count of indecency with a child by contact. Haggard appealed, arguing that the trial court erred when it allowed DeVore to testify via live videoconference. The court of appeals disagreed and affirmed the trial court’s judgments. It reasoned that, even if it assumed that the admission of DeVore’s testimony was error, such error was nevertheless harmless. The Texas Court of Criminal Appeals reversed the judgment of the court of appeals. Haggard v. State, 612 S.W.3d 318 (Tex. Crim. App. Dec. 9, 2020) 20
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(5:1:3). Writing for the Court, Judge Hervey first explained that the Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to confront adverse witnesses. The Supreme Court has long held that the Confrontation Clause protects a criminal defendant’s right to physically confront those who testify against him. But in Coy v. Iowa, 487 U.S. 1012 (1988) (holding that allowing two child victims of sexual abuse to testify with a screen placed between the victims and the defendant violated the Confrontation Clause), the Supreme Court acknowledged an exception: physical, face-to-face confrontation might be properly dispensed with if doing so furthered an important public policy. The Supreme Court applied this exception in Maryland v. Craig, 497 U.S. 836 (1990), a case where the trial court had allowed a child victim of sexual abuse to testify via a one-way, closed-circuit television system pursuant to a state statute. The Supreme Court the held that faceto-face confrontation was properly dispensed with because (1) it was to further the “important public policy” of protecting the “physical and psychological well-being of child abuse victims,” which outweighed the defendant’s right to face his accuser in court; and (2) “the reliability of the testimony [was] otherwise assured” because the child victim testified under oath, was fully cross-examined, and the judge, jury, and the defendant could see the victim while she testified. Relevant to the first prong, the Supreme Court emphasized that a trial court must make a case-specific “finding of necessity”—it must hear evidence and determine whether the use of special procedure is necessary to protect the important public policy. The Supreme Court also acknowledged that the physical and psychological well-being of the child might not always be sufficient to outweigh a defendant’s right to physical, face-to-face confrontation. Since Craig was decided, the Texas Court of Criminal Appeals—as well as many Federal court of appeals and state supreme courts—has required a necessity finding in every case in which it has considered a Confrontation Clause challenge to the cross-examination of a witness via two-way video system.
although the second prong of the Craig test (reliability) had been called into question because of Crawford v. Washington, 541 U.S. 36 (2004) (abandoning Craig’s reliability-based approach in the context of admissibility of out-of-court-statements), the Court did not need to resolve that issue in the present case because its holding was not based on the reliability of DeVore’s testimony. Rather, it was based on whether allowing DeVore to testify remotely “furthered an important public policy.” The Court determined that it was not. As a preliminary issue, there was no casespecific finding and the requirement that the court hear evidence was not met. The closest thing to a necessity finding was when the judge suggested that DeVore should be allowed to testify because the State did not have time to subpoena her given her late notice. The judge told defense counsel that Craig was inapplicable and that it was allowing DeVore to testify remotely because she was only testifying as an expert and because the procedures ensured the reliability of her testimony. But the fact that DeVore was testifying “only” as an expert did not demonstrate a necessity for the State to procure her testimony remotely. Further, it was not an important public policy to allow the State to procure a witness’s testimony remotely when the State had sufficient time and ability to subpoena the witness, and the witness was available to appear and testify, but the State chose not to. That scenario was far afield from Craig. The Court then concluded that the reasons given by DeVore were insufficient to dispense with physical, face-to-face confrontation. Although it recognized that traveling to appear in court and testify can be frustrating and difficult for various reasons, the Court explained that the right to physical, face-to-face confrontation lies at the core of the Confrontation Clause and it cannot be so readily dispensed with based on the mere inconvenience to a witness. The numerous cases cited by the State, which it argued justified allowing DeVore to testify remotely, were unpersuasive. Unlike the present case, those cases dealt with child victims and child witnesses; witnesses who were too sick to travel and appear in court; witnesses who were overseas on active duty; or witnesses who were outside the subpoena power of the State.
The Court then analyzed whether the trial court committed constitutional error when it allowed DeVore to testify remotely. It concluded that the trial court did. The Court began its analysis by explaining that, 21
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Presiding Judge Keller and Judge Keel concurred without opinion. Judge Yeary filed a concurring opinion. Judge Yeary agreed with the decision to remand but disagreed with the Court’s opinion addressing the merits of whether the Confrontation Clause error occurred. He reasoned that because the court of appeals did not render a “decision” as to whether the Confrontation Clause was violated, the Court should not do so now. He then made one “superfluous” observation: he agreed with the Court that binding United States Supreme Court precedent is squarely contrary to the dissent’s position that literal, physical presence in the courtroom is not an indispensable feature of true confrontation.
the harm analysis. That aspect of the case is summarized below under, you guessed it, Harm.] 2. Family-violence-assault victim’s prior outof-court statements to police were not admissible under the doctrine of forfeiture by wrongdoing because defendant did not commit an act to cause her absence at trial. Police officers responded to a neighbor’s 911 call reporting domestic violence. The victim of the assault, Lorie Hutzelman, told the officers that Frederick Brown had struck her repeatedly with a broom and had choked her. Brown was indicted for family-violence assault against Hutzelman—an offense that he had previously been convicted for against the same victim. When Investigator Hall Reavis went to Hutzelman’s last known residence to serve a subpoena for her to be a witness at Brown’s trial, Brown answered the door. Reavis asked if Hutzelman lived there; Brown said no and that he did not know where she was. After one more unsuccessful attempt, Reavis was then able to make contact with Hutzelman at the residence. But when Reavis told Hutzelman that he had a subpoena from the district attorney’s office, she slammed the door on him. Reavis yelled that she had been served, that she had to be at court next Monday, and that he was leaving the subpoena between the screen door and front door.
Judge Slaughter filed a dissenting opinion. She argued that when all the Confrontation Clause components are satisfied through a two-way video procedure that adequately serves the purposes for which the Clause was adopted, then there is no constitutional violation. Thus, when there is no violation, a necessity finding is unnecessary. The four key components of the Confrontation Clause, when it applies, are that it: (1) requires the witness to take an oath to testify truthfully; (2) allows for face-to-face examination of the witness (but exceptions are allowed); (3) provides the opportunity for crossexamination; and (4) allows the fact finder to observe the witness’s demeanor. Assuming arguendo that the Confrontation Clause applied to DeVore’s statements, allowing DeVore to testify live by two-way video satisfied each of these four components such that no constitutional violation occurred. Therefore, Judge Slaughter would have affirmed the judgment of the court of appeals upholding Haggard’s conviction.
Hutzelman did not appear in court. Consequently, the State sought to introduce her prior out-of-court statements about the assault. Brown objected, arguing that the statements were inadmissible on Confrontation Clause grounds. The State argued in response that the statements were admissible because Brown had waived his Confrontation complaint under the doctrine of forfeiture by wrongdoing. In support, the State produced evidence that Brown had told an investigator that he did not know the alleged victim’s whereabouts; that Brown lived with the victim shortly before or at the time of trial; that Brown had committed the instant family violence assault offense; and that Brown had previously committed such an offense against the same victim. Despite expressing skepticism, the trial court agreed with the State and admitted Hutzelman’s statements. Brown was ultimately convicted of familyviolence assault. Brown appealed, but the court of appeals affirmed the trial court’s judgment.
[Commentary: This case is pretty timely given the recent pandemic. Note that the case law involving the Confrontation Clause generally requires in-person confrontation, a fact exhaustively pointed out in the majority opinion. If there is a departure from that requirement, there must be specific findings as to why, and personal or economic reasons isn’t enough. Perhaps COVID-19 creates a situation in which inperson confrontation can be abandoned in favor of twoway video conferencing. My suspicion is that the United States Supreme Court is more likely to answer that question before the Court of Criminal Appeals will have to. Oh! This case also involves a discussion of 22
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Hutzelman’s whereabouts; and (2) living with Hutzelman at or shortly before the trial. As to the lying, the Court said that such a lie might be sufficient to constitute an act of “wrongdoing” under the doctrine, but the act must still be shown to be causally connected to the witness’s subsequent unavailability. And in this case, it was not. The investigator was later able to locate Hutzelman, so Brown’s deception did not prevent the State from contacting the witness for the purpose of delivering a subpoena. Thus, there was no logical connection between Hutzelman refusal to talk to the investigator and Brown’s earlier deception about her whereabouts. As to living together, the Court rejected the idea that because Brown had the opportunity to influence Hutzelman to decide not to show up for court, he must have done so. The Court reasoned that there was no evidence that Brown did anything during the post-offense, pretrial period that might have influenced Hutzelman’s decision. This was true regardless of whether slamming the door—or failing to show up at court—was due to fear because the State did not point to any act by Brown that might have motivated Hutzelman’s conduct. Even when the State’s evidence was combined, the Court said any conclusion that Brown improperly influenced Hutzelman to not show up for court remained speculative. Therefore, the doctrine of forfeiture by wrongdoing did not apply to this case.
The Texas Court of Criminal Appeals reversed the court of appeals’ judgment and remanded the case to it. Brown v. State, ___S.W.3d___, 2021 WL 800620 (Tex. Crim. App. Mar. 3, 2021) (8:1). Writing for the Court, Presiding Judge Keller first explained the forfeiture by wrongdoing doctrine. The doctrine, which was originally a common law doctrine, exempts a statement from the restrictions of the Confrontation Clause and has been statutorily codified. Texas Code of Criminal Procedure Article 38.49 provides, in relevant part, that a defendant who wrongfully procures the unavailability of a witness forfeits their right to object to the admissibility of evidence or statements based on the unavailability of the witness through forfeiture by wrongdoing. As the Supreme Court has explained, the forfeiture rule applies only when the defendant’s conduct is “designed to prevent the witness from testifying.” And while the standards for finding forfeiture by wrongdoing do not change because a case involves domestic violence, domestic violence conduct may sometimes be relevant to determining whether particular conduct was designed to prevent a witness from testifying. After reviewing case law from the Supreme Court and other jurisdictions, the Court then analyzed the forfeiture by wrongdoing doctrine with Brown’s case. It explained that if Hutzelman’s out-of-court statements were believed, then Brown had committed another family-violence assault against her. But, according to the Court, this offense was distinguishable from other offenses, such as murder. In a murder case, a prior history of family violence may show that the murder not only caused the victim’s absence, but that it was designed to do so. But without a murder, or some other offense that necessarily causes a victim’s absence, there needs to be more than simply the past commission of family-violence assaults to show causation. Therefore, the past commission of familyviolence assault offenses does not, standing alone, show that a defendant caused the victim to be absent from trial.
Judge Yeary filed a dissenting opinion. He disagreed with the Court’s conclusion that insufficient evidence supported the trial court’s finding that Brown engaged in wrongdoing that was intended to prevent the witness’s attendance at trial. He would have upheld the court of appeals’ judgment with respect to the issue of wrongdoing. However, he would have vacated and remanded the case to the court of appeals to consider whether Hutzelman was, in fact, unavailable. [Commentary: This is a good bookend to cases involving forfeiture by wrongdoing such as Gonzales v. State, 195 S.W.3d 114 (Tex. Crim. App. 2006). Many cases involve clear misconduct on the part of a defendant to prevent a witness from testifying, but this case is at the other end of the spectrum. Now practitioners may have a better sense of what is or is not forfeiture by wrongdoing.]
Here, the State did not offer evidence that Brown issued any threats or engaged in conduct otherwise designed to control Hutzelman. The State had pointed to only two items of investigation-pending conduct committed by Brown, which the Court assumed were true: (1) lying to a State’s investigator about 23
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V. OFFENSES
Penal Code § 29.02(b), robbery is a second-degree felony. But, as explained in § 29.03(a)(2) and (b), if a person commits robbery and uses or exhibits a deadly weapon, then the offense is elevated to first-degree aggravated robbery. And relevant to this case, under § 1.07(a)(17)(B), a “deadly weapon” is defined as “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Therefore, whether the evidence was sufficient to convict Flores for first-degree aggravated robbery instead of second-degree robbery hinged on whether the jury rationally concluded that Flores “use[d] or exhibit[ed]” the drill as a deadly weapon during the robbery.
A. Aggravated Robbery – Electric drill disguised as a gun was not a deadly weapon because it was not used or intended to be used in a manner capable of causing death of serious bodily injury. Juan Flores entered convenience store and committed a robbery. To facilitate the robbery, Flores pretended he had a gun. The “gun,” however, was an electric drill covered in plastic bags with a black sleeve over the drill bit. Believing the drill was a gun, store owner Nanu Shapakota gave Flores the money from the register. At trial, Shapakota testified that Flores pointed the drill at her as though it were a gun, but he never attempted to strike or hit her with it and never threatened to do so. The lead detective in the case and a detective who responded to the scene both testified that there were uses of a drill which could cause serious bodily injury or death but did not suggest that Flores used or intended to use the drill in any such manner. The surveillance video showed that Flores made no motion suggesting an intent to strike Shapakota with the drill from where he was standing a few feet away from her, separated by the cashier’s counter. And there was no evidence that the drill was activated or even functional at the time of the robbery. Likewise, there was no testimony as to whether the drill could have been used to stab or drill someone when it was covered in plastic bags and there was a sleeve over the bit end of the drill. A jury convicted Flores of aggravated robbery, with the aggravating element being his use or exhibition of a deadly weapon. The trial judge sentenced Flores to fifteen years in prison. Flores appealed, arguing that the evidence was insufficient to establish that he used or exhibited the drill as a deadly weapon. The court of appeals disagreed and affirmed Flores’s conviction.
To answer that question, the Court explained that the reviewing court must conduct a two-step process to determine whether the element of use or exhibition of a deadly weapon is satisfied. As to the first step, the court must determine whether the object “could be a deadly weapon under the facts of the case.” The language of § 1.07(a)(17)(B) is broad; a deadly weapon may be anything. It is only the manner of the defendant’s use or intended use that provides any meaningful limitation to the broad statutory definition. Thus, critical to a proper deadly-weapon analysis are the facts of the case showing the defendant’s particular manner of use or intended use of the object—his reason for having the object with him. The Court said that no such analysis was conducted by the court of appeals in this case. Instead, the court of appeals relied on speculation about some possible use of a drill as a deadly weapon, rather than examining the actual evidence in the record to determine whether Flores intended any use (e.g., striking, stabbing, drilling) that would be capable of causing death or serious bodily injury. Indeed, the court’s sole statement on this point was that “Sergeant Conrad testified a drill is a deadly weapon because the sheer weight could bludgeon someone to death or a drill bit could stab someone.”
The Texas Court of Criminal Appeals reversed the court of appeals’ judgment. Flores v. State, ___S.W.3d___, 2021 WL 1204496 (Tex. Crim. App. Mar. 31, 2021) (6:4). Writing for the Court, Judge Slaughter first explained that in reviewing the sufficiency of the evidence to support a conviction, the Court typically looks to whether any rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt. The Court then addressed the offense of robbery. According to Texas
Flores disguised the drill as a gun; he waived and shook it at Shapakota, pretending it was a gun. Shapakota thought it was a gun. Even viewing these facts in a light most favorable to the verdict, the Court said that they failed to rationally support the conclusion that Flores intended to use the drill to stab, drill, or bludgeon anyone. 24
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Judge Hervey filed a dissenting opinion, which Judge Keel joined. Judge Hervey argued that the Court misapplied the Jackson v. Virginia legal sufficiency standard because it addressed the admitted evidence without considering its cumulative force or any reasonable inferences that could be drawn to support the verdict and then focused on the evidence not in the record and how it would have liked the State to present the case. Here, Flores used a heavy drill to commit the robbery. And while he might have wanted the clerk to believe that he had a gun, he knew that he brought a drill and that he could use it if he had to. Therefore, Judge Hervey thought that the jury could have reasonably inferred that Flores intended to use the drill, a deadly weapon, to hurt the clerk if she did not comply.
Code Section 481.113 made it offense to knowingly manufacture, deliver, or possess with intent to deliver a controlled substance listed in Penalty Group 2 or 2-A. And at that time, Section 481.1031(b) described Penalty 2-A, which were synthetic substances identified specifically by name. After receiving the letter, Carter sent samples of his products, including Chilly Willy, to a lab for testing. The Chilly Willy was not tested for fluoroADB; however, later testing by the State determined that it did, in fact, contain fluoro-ADB. In 2015, the Legislature amended Section 481.1031 to define synthetic controlled substances by structural class. Accordingly, Penalty Group 2-A now focused on the positioning of certain molecular components to determine whether the synthetic compound is prohibited. For example, relevant to this case, Section 481.1031(b)(5) describes a “structural class” as “any compound containing a core component substituted at the 1-position to any extent, and substituted at the 3position with a link component attached to a group A component, whether or not the core component or group A component are further substituted to any extent.”
Judge Keel filed a dissenting opinion, which Judge Hervey joined. Judge Keel argued that Flores intended to intimidate, manipulate, and steal from his victim, and he accomplished his objectives by brandishing a menacing-looking object that turned out to be a drill. And in demanding and enforcing his victim’s submission, he said, “I don’t want to hurt you”; however, the unspoken-but-clear threat was, “But I will if I have to.” Therefore, under the facts of the case, any rational jury could find beyond a reasonable doubt that Flores did indeed intend to use the drill in a way that could cause serious bodily injury.
Some two years after the 2015 amendment to Section 481.1031(b), the Lubbock police executed a search warrant at Carter’s residence and found multiple boxes containing individually packaged bags of Chilly Willy. Carter was charged with possession of a Penalty Group 2-A controlled substance, with intent to deliver. At Carter’s trial, the State presented expert testimony from John Keinath, a controlled substance analyst with the Texas Department of Public Safety (DPS) Crime Laboratory in Lubbock. Carter was found guilty and sentenced to ninety years’ imprisonment. Carter appealed, arguing that the State failed to prove that: (1) he knowingly sold a controlled substance listed in Section 481.1031(b)(5); and (2) the substance he was convicted of possessing fell within that provision. In support, he argued that the State had not produced explicit testimony regarding the exact positioning of the components within fluoro-ABD; therefore, an ordinary jury could not have taken Keinath’s testimony about the mere presence of the components of the compound fluoro-ABD and inferred from that testimony that fluoro-ADB satisfied the requisite structural requirements as set out in Section
[Commentary: Note that the court opinion links to the video of the robbery posted on the Court's website. See https://www.txcourts.gov/cca/media/. You can judge for yourself whether the drill in this case was capable of causing serious bodily injury in its use or intended use. This this opinion also briefly addressed the issue of reformation and that portion of the opinion is discussed in the Reformation section below.] B. Possession of Penalty Group 2-A Controlled Substance with Intent to Deliver – Evidence was sufficient to support conviction because expert testimony as to technical elements of the offense was not merely conclusory. Anthony Carter operated a handful of smoke shops and sold various products, including a leafy substance called “Chilly Willy.” In 2014, Carter received a letter from the Lubbock County District Attorney warning him against the continued sale of synthetic marijuana. Texas Health and Safety 25
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481.1031(b)(5). The court of appeals disagreed and affirmed Carter’s conviction, concluding that the State had presented sufficient evidence to permit the jury to rationally conclude, beyond reasonable doubt, that fluoro-ADB was a controlled substance within the scope of Section 481.103(b)(5).
by Section 481.1031(b)(5). Consequently, a rational jury could then draw the reasonable inference that the various components that Keinath identified as falling within fluoro-ADB were positioned according to the dictates of Section 481.1031(b)(5). C. Indecent Exposure – Exposing your genitalia in a public park in the daylight is reckless even if no one else is present to see it. Ricardo Romano parked his vehicle in an empty parking lot of a public park in the middle of the day. He exited his car, walked around to the passenger side, and opened the passenger door. He then walked to the back of the car, where he pulled the top of his shorts down with one hand and began stroking his penis with the other hand. Houston Police Sergeant Ryan Gardiner witnessed Romano’s actions while he was patrolling the area on horseback. Gardiner was concealed by bushes and trees but had a good line of sight towards the parking lot where Romano was located. Gardiner radioed his partner, who was in a nearby location of the park and was also on horseback, telling him that Romano was masturbating. Gardiner’s partner rode out of bushes that were about fifteen to twenty feet from Romano. Gardiner rode his horse over to Romano’s location and arrested him for indecent exposure. See Tex. Penal Code § 21.08(a) (A person commits the offense of indecent exposure “if he exposes . . . any part of his genitals with intent to arouse or gratify the desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act.”).
The Texas Court of Criminal Appeals affirmed the court of appeals’ judgment. Carter v. State, ___S.W.3d___, 2021 WL 1202890 (Tex. Crim. App. Mar. 31, 2021) (9:0). Writing for the unanimous Court, Judge Yeary stated when reviewing the legal sufficiency of the evidence, an appellate court must view the evidence in the light most favorable to the prosecution and ask whether any rational trier of fact could have found each element of the offense beyond a reasonable doubt. Applying that standard to the present case, the Court said that for the court of appeals to have properly affirmed Carter’s conviction, there must have been sufficient evidence presented by the State that the molecular components within the compound were positioned as described in Section 481.1031(b)(5). The Court concluded that there was. It explained that when looking at all of Keinath’s testimony, a rational trier of fact could reasonably infer that his analysis established that fluoro-ADB satisfied the criteria of Section 481.1031(b)(5): that indazole (the core component) was substituted at the 1-position to any extent and substituted at the 3-position with carboxamide (the link component) attached to methoxy dimethyl oxobutane (the group A component)―even though he did not explicitly say so.
Gardiner’s body camera captured video of the part of the incident. It showed that less than ten second after Romano parks his car, another car drives past the parking lot. And during the thirty-eight-minute period following Romano’s arrest, it showed a number of cars driving past Romano’s location, pedestrians walking by, and a bicyclist passing on the trail. At the conclusion of a bench trial, the court found Romano guilty of indecent exposure.
In support, the Court explained that an ordinary jury can draw a reasonable inference from an expert’s testimony about technical elements if each inference is supported by the evidence presented at trial. Such was the case here. Specifically, the jury heard three categories of testimony from Keinath: (1) that the statute, as amended in 2015, defines prohibited synthetic compounds based on their structure; (2) that the Chilly Willy that Carter possessed contained fluoro-ADB; and (3) that fluoro-ADB is a prohibited synthetic compound under the statute because of the specific components it possesses—i.e., indazole, carboxamide, and methoxy dimethyl oxobutane—and how those components are molecularly positioned. So, the jury was adequately informed of the fact that fluoro-ADB contains components that are prohibited
Romano appealed, claiming that the evidence was insufficient to support his conviction. He did not dispute that he exposed his genitals, but he argued the evidence was insufficient to show that he: (1) exposed his genitals with intent to arouse or gratify the sexual desire of any person and (2) acted recklessly. The court concluded that the evidence was insufficient to 26
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show that Romano was reckless about whether another was present who would be offended or alarmed by the exposure of his genitals. Similar to Hine v. State, 906 S.W.2d 518, 522 (Tex. Crim. App. 1995) (determining that the State did not prove Hine was reckless because he “had deliberately selected an isolated spot, deep in the woods, where his conduct would not be observed by others”), Romano made deliberate efforts to shield himself from the view of others, he was unaware that Gardiner was hiding a good distance away in the trees and bushes, and no other person was around. Without addressing Romano’s other issues, the court reversed Romano’s conviction and rendered a judgment of acquittal.
deviation of the standard of care of an ordinary person under the circumstances because he attempted to totally close the curtain,” he (understandably) offered no suggestion as to the appropriate standard of care required of an ordinary person masturbating in the dressing room of a store open to the general public. The appellate court said, “the issue as stated is oxymoronic in nature.” The same could be said here: the idea that there would be an ordinary standard of care for masturbating in a public park in broad daylight is “oxymoronic in nature.” Viewing in the light most favorable to the trial court’s verdict, the Court said that the evidence was sufficient to support a finding beyond a reasonable doubt that Romano acted recklessly, and the court of appeals erred to find otherwise. The court of appeals did not view the evidence in this light; rather, it focused on Romano’s purported attempt to conceal himself by parking in an empty lot, his testimony that he faced away from passing traffic, and his testimony that no one was nearby. But the trial court did not have to believe that the area was remote. Romano’s location, the time of day, and the clear weather provide sufficient evidence for a rational finder of fact to infer recklessness.
The Texas Court of Criminal Appeals unanimously reversed the court of appeals’ judgment and remanded the case to it for further proceedings. Romano v. State, 610 S.W.3d. 30 (Tex. Crim. App. Oct. 28, 2020) (9:0:0). Writing for Court, Presiding Judge Keller explained that a person acts “recklessly” when he is (1) subjectively aware of a substantial and unjustifiable risk that specific circumstances existed and (2) consciously disregards that risk. Here, Romano was in a public park in densely populated area in a parking lot that was open and visible to passing road traffic, bicyclists and pedestrians, and anyone using the public restroom facilities or picnic tables immediately nearby. Exposure of genitalia in a place as public as this park is risky when it is done under circumstances (like time and weather) that make it likely that other people will be present.
D. Evading Arrest or Detention – Illegal initial detention did not make officer’s subsequent attempted arrest or detention unlawful given the valid, outstanding arrest warrant at the time of flight. City Marshal C.W. Heizer was waiting in his truck near a residence where he planned to serve a traffic warrant on Danny Branton. However, Heizer did not know what Branton looked like. After seeing six individuals arrive at the residence’s driveway, Heizer approached the group on foot. He asked where Branton was, but nobody responded. He then told everybody that he needed to see their identifications. Jonathan Day and another individual handed their IDs to Heizer; two others wrote down their information; and two people left the scene without giving identification, one of which was Branton. Day told Heizer he needed to leave, explaining he was not Branton. Heizer told Day to wait a few minutes so that he could find out who everybody was. Day admitted to Heizer that he had warrants out of Fort Worth; Heizer’s license check confirmed that Day had a warrant for a jailable offense. When Day realized that Heizer was
The Court determined that Romano’s actions were reckless. Unlike in Hine, where the sexual act occurred inside a car parked deep in the woods off of a small trail, Romano’s location was not so remote as to completely shield himself from the view of others. Romano was outside a car in a parking lot in a public park. Therefore, the court of appeals erred by comparing Romano’s case with Hines. Instead, Romano’s case should have been compared to McGee v. State, 804 S.W.2d 546, 547–48 (Tex. App.— Houston [14th Dist.] 1991, no pet.). In that case, the court of appeals held that the evidence sufficiently supported McGee’s recklessness when he could be seen through a three-or-four-inch gap in a dressingroom curtain as he masturbated. Although McGee argued that “his actions did not constitute a gross 27
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to address Day’s remaining claims. Day v. State, 614 S.W.3d 121 (Tex. Crim. App. Dec. 16, 2020) (9:0:0). Writing for the unanimous Court, Judge Newell explained that Day did not dispute the validity or existence of a warrant authorizing his arrest at the time he fled from Heizer’s attempt to arrest him. Instead, Day argued that Heizer could not lawfully arrest or detain him because the initial detention was illegally prolonged and therefore any subsequent arrest was the fruit of the poisonous tree. Consequently, the question before the Court was whether the word “lawfully”, as it appears in the statute, incorporates exclusionary rule principles. The Court held that it does not.
going to arrest him on the warrant, Day started to walk away. Heizer told Day that he could not leave and that he was under arrest. Day continued to walk away and soon broke out into a run. Heizer caught Day three blocks away. The State charged Day with evading arrest or detention, which makes it offense to intentionally flee from a person he knows is a peace officer or federal special investigator attempting lawfully to arrest or detain him. Day filed a pretrial motion to suppress all the evidence obtained after Heizer found out that Day was not Branton. At the hearing on the motion, defense counsel argued that Day was illegally detained starting from the moment he told Heizer he needed to leave. The trial court denied the motion, reasoning that the short time Heizer held Day was not unreasonable. At the close of evidence, defense counsel re-urged his motion to suppress based on the “illegal detention,” which the trial court again denied. Counsel moved for a directed verdict on the ground that the State had failed to prove that Day was fleeing a lawful detention or arrest. The trial court denied the motion, reasoning that it was up to the jury to decide whether the State had proven Day was being lawfully detained or arrested. Upon counsel’s request, both the Article 38.23 instruction and the application paragraph in the jury charge instructed the jury to acquit Day if it found that Heizer’s detention or attempt at detention was unlawful. The jury found Day guilty, and the trial court sentenced him to 220 days in jail.
First, the purposes of the evading statute and the federal and state exclusionary rules are meaningfully different. The evading statute is directed at the conduct of the person, not the officer; it punishes those who refuse to submit to lawful authority at the moment an officer attempts an arrest or detention by adding an additional penalty for that refusal to comply. By contrast, the federal exclusionary rule’s sole purpose is to deter future Fourth Amendment violation by law enforcement. The Texas exclusionary rule—Article 38.23—is based upon the federal exclusionary rule and thus shares a similar purpose. It addresses the admissibility of evidence at trial when the law has been violated. And doctrines such as “the fruit of the poisonous tree”, “attenuation of taint”, and “the independent source doctrine” refine the situations in which the illegally obtained evidence can be admitted at or excluded from trial. They affect the penalty levied against the officer for engaging in unlawful police conduct; they do not transform an otherwise lawful arrest into an unlawful one. As the United States Supreme Court has observed, an arrest pursuant to a valid warrant is a “ministerial act” that is “independently compelled” regardless of whether the initial detention is unlawful.
Day appealed, arguing that he was entitled to an acquittal based upon insufficient evidence—i.e., because lawful detention is an element of the crime, the State’s failure to prove beyond a reasonable doubt that the detention was lawful must result in an acquittal. In doing so, he argued that his detention was unlawful, irrespective of the later discovery of the warrant. The court of appeals agreed. Implicit in its holding was the conclusion that the unreasonably prolonged detention tainted the subsequent discovery of the arrest warrant. And, without the discovery of the warrant, Day fled an illegal detention. The appellate court reversed the trial court’s judgment of conviction and rendered a judgment of acquittal.
Further, in the context of the Texas exclusionary rule, the Court has observed that Article 38.23 contemplates that a crime has already been committed; that evidence of that crime exists; and that officers violate the law in attempting to obtain evidence of the previously committed crime. Evidence of evading arrest does not exist before the attempted arrest because the evading has not yet happened. Additionally, the exclusionary rule does not provide limitless protection
The Texas Court of Criminal Appeals reversed the court of appeals’ judgment and remanded the case to it 28
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to one who chooses to react illegally to some prior unlawful act by a state agent. Here, evidence of the charged offense—Day’s flight—did not exist before Heizer’s challenged actions—prolonging the detention—because the charged offense had not yet occurred; the evidence showed a subsequent independent criminal act that was not causally connected to any evidence discovered through an unlawful detention by Heizer. Therefore, exclusionary rule principles, at least in the context in which they were raised in this case, did not apply to the offense of evading arrest.
VI. JURIES AND JURY INSTRUCTIONS A. Juries 1. Sound of siren heard while jurors were deliberating in an evading arrest case was not “other evidence” in violation of Texas Rule of Appellate Procedure 21.3(f). Houston Police Department Officer Victor Bachar saw Zaid Adnan Najar going over 100 miles per hour, weaving through traffic, and flashing red and blue lights. Bachar activated his patrol’s emergency lights and siren and gave chase. After about a minute, Bachar caught up to Najar and Najar pulled over. Najar was charged with evading arrest in a motor vehicle, which required the State to prove at trial that Najar knew that the officer was trying to pull him over. Najar’s defensive theory was that he was unaware that Bacha was trying to stop him until Bachar was directly behind him. After Najar was convicted, his trial attorneys spoke with one of the jurors who said that during deliberations, the jurors heard a siren from outside and reasoned that if they could hear a siren from a room on the fifteenth floor, then Najar could have heard the police siren before the officer was directly behind him. Najar subsequently filed a motion for new trial, which presented affidavits by his trial attorneys citing their conversation with the juror. Najar argued that the affidavits were admissible under a hearsay exception and supported a new trial under Rule 21.3(f) because the siren was other evidence. See Tex. R. App. P. 21.3(f) (requiring that a defendant be granted a new trial when, after retiring to deliberate, the jury has received other evidence). The trial judge denied the motion, making some remarks that she did not think that the siren was other evidence. The court of appeals reversed, holding that the siren was detrimental other evidence received during jury deliberations in violation of 21.3(f).
Lastly, holding that the evading arrest statute does not incorporate exclusionary rule principles is consistent with the Court’s previous holdings that it is inappropriate to consider the lawfulness of an officer’s attempted arrest or detention as a suppression issue in evading cases. See Woods v. State, 153 S.W.3d 413 (Tex. Crim. App. 2005) (rejecting appellant’s argument—that he was initially detained illegally and the subsequent arrest should be suppressed under the fruit-of-the-poisonous-tree doctrine—because it was improperly raised in a pre-trial motion to suppress when it should have been the subject of a directed verdict); York v. State, 342 S.W.3d 528 (Tex. Crim. App. 2011) (when the validity of an arrest or detention is an element of the charged offense, litigating the validity of the seizure as a suppression issue is inappropriate; instead, the issue should be litigated as part of the State’s case at trial). The Court then rejected Day’s argument that if the detention was illegal at any point before the flight, the evading statute was not satisfied. The Court said that this was a fruit-of-the-poisonous-tree argument—an application of an exclusionary rule principle that is not incorporated into the phrase “attempting lawfully to arrest or detain.” The question before the jury was the character of the detention at the moment of flight. Looking at the evidence before the jury, the Court concluded that it was undisputed that at the time Day fled the scene there was an outstanding warrant for his arrest. From this evidence, a rational juror could have found that Day fled from an attempted and lawful arrest or detention regardless of whether the initial detention was unduly prolonged. Consequently, the evidence was legally sufficient to support the verdict.
The Texas Court of Criminal Appeals reversed the court of appeals’ judgment and remanded the case for consideration of Najar’s remaining point of error. Najar v. State, ___S.W.3d___, 2021 WL 800768 (Tex. Crim. App. Mar. 3, 2021) (9:0:0). Writing for a unanimous Court, Judge Keel first addressed whether the trial court was required to believe the affidavits. The Court said the answer was “no” for two reasons. First, the trial court was entitled to disbelieve evidence submitted in a hearing on a motion for new trial even if 29
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the evidence was uncontroverted. The current applicable Texas Rule of Appellate Procedure, Rule 21.5, does not require controverting evidence from the State to raise an issue on a motion for new trial. And while previous caselaw has applied a less-deferential abuse of discretion standard (i.e., appellate courts defer to the trial court’s ruling denying a new trial only where there is a fact issue or conflicting evidence), the Court had silently and now expressly abandoned that standard. A uniformly deferential standard of review applies to a trial court’s findings in ruling on a motion for new trial: the trial court is the exclusive judge of the credibility of the evidence, regardless of whether the evidence is controverted, and its ruling will be reversed only for an abuse of discretion, that is, if it is arbitrary or unsupported by any reasonable view of the evidence.
reverse a trial court’s ruling on any theory that might have been applicable to the case but was not raised. Here, the State was trying to defend, not reverse, the trial court’s ruling with its Rule 606(b) argument. And Rule 606(b) was the focus of the State’s argument before the trial court, so its defense of the trial court’s ruling on that basis should not have surprised Najar. Lastly, an outside influence is improperly brought to bear upon a juror if it is done so “with an intent to influence the juror.” But in this case, there is no suggestion that the siren was sounded outside the courthouse with an intent that any juror should hear it, let alone with intent to influence. Thus, the trial court would not have abused its discretion in disregarding the attorney’s affidavits under the terms of Rule 606(b). The Court then addressed whether the siren was other evidence under Rule 21.3(f). It concluded that it was not. The evidence was not detrimental to Najar— which was required to qualify as “other evidence”— because it had nothing to do with him or his case. It was a random, unconnected noise that the jurors heard by happenstance. It was not proof of Najar’s criminal history or his commission of an extraneous offense, nor was it a commentary on the credibility of the witness against him. It was not even a passing remark. Hearing a random siren was a common life experience, not evidence, that the jury was entitled to draw from during deliberations.
Applied here, the trial court would not have abused its discretion in disbelieving the affidavits even though they were uncontroverted and admitted without objection. The only “fact” agreed to by the prosecution was that the conversation between the juror and the attorneys took place. But the trial court was not bound to believe this fact because it was not conclusively established; there was no formal stipulation, and the affidavits were not indisputable visual evidence. And there was at least two ways of interpreting the affidavits, one of which was with skepticism because they are second-hand renditions prepared by advocates in anticipation of a motion for new trial. Therefore, it was in the trial court’s exclusive purview to decide which interpretation to believe.
For these reasons, the Court determined that the trial court did not abuse its discretion to deny Najar’s motion for new trial and that the court of appeals erred to reverse the trial court.
Second, the trial court was entitled to disregard the affidavits as inadmissible under Rule 606(b) of the Texas Rules of Evidence, which bars juror testimony or other evidence offered to impeach a verdict except when it pertains to an “outside influence improperly brought to bear upon any juror.” To start, it is of no consequence that the State did not object to the affidavits on 606(b) grounds when they were offered because only Najar as the appellant, and not the State as the appellee, had a duty to preserve error. Moreover, the State’s Rule 606(b) argument was an applicable legal theory to the case—i.e., Najar had an adequate opportunity to develop a complete factual record with respect to this theory. An appellate court may uphold a trial court’s ruling on any applicable legal theory applicable to the case, but usually may not
2. Alternate Jurors - Any error in trial court’s failure to instruct jury to deliberate anew following a mid-deliberations substitution of alternate juror was harmless in penalty phase of capital murder prosecution. Mark Gonzalez shot Sergeant Kenneth Vann—a licensed peace officer with the Bexar County Sheriff’s Office who was working the overnight shift as a first-line supervisor for patrol officers—to death while Vann was in his patrol car at an intersection. Gonzalez was indicted for and convicted of capital murder. Pursuant to TCCP Article 37.071, the jury was required to answer two special issues: (1) future dangerousness and (2) mitigation. After argument, the trial court sent the regular jurors to 30
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deliberate, accompanied by the alternate jurors. At about 7:00 p.m., the jury sent its first note, asking the court to clarify issue #2. The trial court issued a supplemental charge in response, stating the jury had all the law and evidence before it and to continue deliberating. At 11:24 p.m., the trial court asked the jury if it wished to continue deliberating that night; it did. The jury sent a second note asking about issue #2. Sometime later, the trial court informed the parties that “EMS” was going to take regular juror R.P. to the hospital; that it was sending the jury to a hotel for the night; and that if R.P. was better by the morning, he would be asked to come and deliberate.
According to Gonzalez, the United States Supreme Court has identified group deliberation as an essential feature of the Sixth Amendment’s guarantee of the right to trial by jury and many federal circuit courts of appeals have concluded that the failure to instruct a jury to deliberate anew after a post-deliberations juror substitution violates the Sixth Amendment. The Texas Court of Criminal Appeals overruled Gonzalez’s fourth point of error and affirmed the judgment of the trial court. Gonzalez v. State, 616 S.W.3d 585 (Tex. Crim. App. Nov. 4, 2020) (7:0:0). Writing for the Court, Judge Keel first explained that Gonzalez had not preserved error. To preserve error for appellate review, a defendant must make a timely objection or request and state the grounds on which he thinks he is entitled to a favorable ruling. A general objection will not preserve error unless the legal basis is obvious to the trial court and opposing counsel—i.e., there are statements or actions on the record that clearly indicate what the judge and opposing counsel understood the argument to be. Here, the nature of Gonzalez’s request and its Sixth Amendment basis were not obvious to the trial court. Gonzalez did not ask the trial court to instruct the jury to begin punishment deliberations anew. And the trial court did not understand that Gonzalez wanted this instruction, given its question asking if they should relitigate the first phase of trial. But, even if it had been obvious that Gonzalez wanted such an instruction, the basis for his request was not obvious because he never mentioned the Sixth Amendment or any other authority to support his position.
The next morning, the trial court, prosecutors, and defense counsel interviewed R.P. in chambers. R.P. had suffered a debilitating anxiety/panic attack during deliberations the night before and still had uncontrollable physical symptoms. R.P. did not reveal anything about the state of the jury’s deliberations, except that things had become tense. The trial court excused R.P. from jury service over defense counsel’s objection. After speaking with alternate juror S.F. in chambers, the trial court replaced R.P. with S.F. The parties then began arguing about the proper response to the jury’s second note, during which defense counsel objected to the seating of S.F. Specifically, he argued that the “new 12” should go back to guilt/innocence and redeliberate and that, if his objection was denied, they should at least redeliberate the entirety of punishment. The trial court denied his objection. Defense counsel then argued that special issue #1 (future dangerousness) needed to be re-litigated because the new juror could theoretically change the jury’s answer to it. Assuming the jury decided issue #1 because it had gone onto issue #2 (mitigation), the trial court disagreed. Later that day, the reconstituted jury sent a note indicating that it had reached a punishment verdict. Consequently, the trial judge sentenced Gonzalez to death. After the verdict was read in court, the trial court individually polled the jurors at defense counsel’s request; each member, including S.F., confirmed that the punishment verdict was their individual verdict to issue #1 and issue #2.
Assuming Gonzalez’s claim was preserved, the Court then analyzed whether a trial court’s failure to instruct the jury to deliberate anew after a postdeliberations juror substitution was error. The Court explained that Texas statutes envision a juror substitution during deliberations but specify no procedures for such a substitution. Moreover, the Supreme Court has not considered whether the Sixth Amendment permits the substitution of an alternate juror after deliberations have begun, and if so, whether it mandates any specific procedures such as an instruction to deliberate anew. And the federal circuit courts—who have considered the issue and held or implied that the Sixth Amendment does not categorically prohibit a mid-deliberations
In his fourth point of error (of twenty-eight total), Gonzalez argued that that the trial court violated the Sixth Amendment when it denied trial counsel’s request to instruct the jury to deliberate anew. 31
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substitution—are split on the importance of an instruction to deliberate anew in assessing the constitutional validity of a mid-deliberations juror substitution. After discussing the circuit split, the Court ultimately agreed with federal circuit opinions that any error in failing to instruct a jury to deliberate anew is not structural.
influence of sudden passion arising from an adequate cause. In the guilt phase, the jury charge defined “sudden passion” and “adequate cause” and instructed the jury that if it had a reasonable doubt about murder, it would “next consider whether the defendant is guilty of the lesser offense of voluntary manslaughter.” These instructions accorded with the statute in effect at that time. The jury found Harbin guilty of murder and sentenced him to life in prison.
The Court then applied the standard of harm for constitutional error: the appellate court must reverse a judgment of conviction or punishment unless it determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. The Court concluded that, even if the Sixth Amendment required the trial court to instruct the reconstituted jury to deliberate anew, the error in failing to do so was harmless beyond a reasonable doubt under the circumstances of this case. First, the trial court did not prohibit the jury from beginning its deliberations anew. An instruction to deliberate anew can operate as a valuable procedural safeguard to ensure that a reformed jury deliberates with the new member. Although the trial court gave no such instruction, it did not give an instruction that prevented the jury from beginning its deliberations anew either. When addressing the alternate, the court did not limit the special issues on which she could deliberate and vote, even though the pre-substitution notes relevant to the mitigation issue suggested that the original jury may have already reached a tentative consensus on future dangerousness. The court then instructed the alternate that she could actively join in the deliberations and vote. Second and significantly, the alternates attended deliberations before the substitution. This circumstance removed any need to instruct the jury to deliberate anew after the substitution. Finally, the length of the post-substitution deliberations and the fact that the verdict was adopted by each juror individually in the post-verdict poll undermined any claim that the alternative may have been pressured into passively ratifying positions that the original jury may have already reached.
Twenty-three years later, Harbin sought a new punishment hearing for the State’s failure to disclose favorable information about his father’s psychiatric history and for defense counsel’s ineffective investigation and presentation of mitigating evidence. On the trial court’s recommendation, the Texas Court of Criminal Appeals granted Harbin a new punishment hearing. In the pendency of the new punishment hearing, the law changed: effective for offenses committed on or after September 1, 1994, a defendant who is convicted of murder is subject to a seconddegree punishment range instead of a first-degree range if his jury finds that he killed under the influence of sudden passion arising from an adequate cause. Although he committed murder in 1991, Harbin requested at his second punishment hearing a jury instruction on sudden passion under the 1994 law. The trial court denied the request. Harbin appealed, arguing that the trial court erred in refusing to instruct the jury on sudden passion. The court of appeals agreed, reversed the trial court’s judgment, and remanded for a third punishment hearing. The Texas Court of Criminal Appeals reversed the court of appeals’ judgment and affirmed the trial court’s judgment. Harbin v. Texas, ___S.W.3d___, 2021 WL 1010612 (Tex. Crim. App. Mar. 17, 2021) (9:0). Writing for the unanimous Court, Judge Keel held that the court of appeals erred to apply the 1994 statute to Harbin’s 1991 murder case. First, the court of appeals applied the new sudden passion law retrospectively when the Legislature had amended the law to apply prospectively. Second, applying the law in effect at the time of his offense did not make Harbin’s second punishment hearing unfair, as the court of appeals believed, because the jury was able to consider and give effect to the mitigating evidence by assessing punishment within the range applicable to murder. Third, by applying the 1994 statute to
B. Trial court’s refusal to give sudden-passion instruction at punishment hearing was not err because law applicable to the case was the law in effect when the offense occurred. James Harbin II shot and killed his father in 1991. The issue at trial was whether Harbin killed under the immediate 32
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Harbin’s 1991 case, the court of appeals in effect, granted more habeas relief on direct appeal. The court of appeals had deemed the second punishment hearing unfair because, in its view, the mitigating evidence developed at the habeas stage was relevant to sudden passion. But Harbin never claimed that in his habeas applications. Such a claim would have meant a whole new trial. But Harbin only sought a new punishment hearing, which he got. He was not entitled to more than that.
A defendant is entitled to an instruction on a lesserincluded offense if it is “established by proof of the same or less than all the facts required to prove the offense charged[.]” The Court uses the Hall two-step test to determine if an instruction on a lesser-included offense should be given. The first step “compare[s] the statutory elements of the alleged lesser offense and the statutory elements and any descriptive averments in the indictment.” The second step asks whether “there is some evidence in the record that would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense.” But because the Hall test does not answer the Article 37.09(1) question of what facts are “required” to prove the offense charged, the Court applied its “allowable unit of prosecution” analysis to the lesser-includedoffense context.
The Court then rejected Harbin’s argument that the 1994 statute should be applied retroactively. A “new rule” applies retroactively in a collateral proceeding if it is either substantive or a “watershed” rule of criminal procedure. But this was not a habeas case, and the issue before the Court did not involve a Supreme Court decision announcing a new constitutional rule. Instead, it involved a statutory change with an effective date. The law applicable to the case was the law in effect when the offense occurred. Therefore, the trial court did not err in refusing to give a sudden passion instruction at Harbin’s new punishment hearing.
The Court concluded that the allowable unit of prosecution for occlusion assault is exclusively impeding normal breathing or circulation of the blood. It explained that Section 22.01 broadly defines bodilyinjury assault as any injury caused in any way with a requisite culpable mental state. And as pertinent here, bodily-injury assault is a Class A misdemeanor “except” it is a third-degree felony if the complainant has a relevant relationship to the defendant and the defendant impedes the victim’s normal breathing or blood circulation—i.e., occlusion assault. Impeding normal breathing or blood circulation describes occlusion assault’s required injury. Although impeding is a form of bodily injury, other injuries are not impeding. And since the statute specifies impeding, non-impeding injuries are excluded. Occlusion assault without impeding would lack a gravamen; if impeding is not proven, then the evidence is legally insufficient to prove occlusion assault. Therefore, bodily-injury assault is not a lesser-included offense of occlusion assault when the disputed element is the injury. Nonimpeding injuries are not included in occlusion assault because they are not proven by the same or less facts than required to prove occlusion assault; they are proven by different, additional facts. However, when the relationship is at issue or when the evidence raises an attempted occlusion assault, a lesser-includedoffense instruction for occlusion assault may be warranted.
C. Lesser-included Instructions - Bodily-injury assault is not a lesser-included offense of occlusion assault when the disputed element is the injury. Orlando Ortiz and Dewey Barrett were charged, in separate and unconnected cases, with occlusion assault under Texas Penal Code Section 22.01(b)(2)(B). At their respective trials, they each requested an instruction on bodily-injury assault as a lesser-included offense of occlusion. Their requests were denied, and they were convicted of occlusion assault. The court of appeals in Ortiz’s case held that the trial court erred in refusing to instruct the jury on bodily-injury assault, but the court of appeals in Barrett’s case held that there was no error in refusing the instruction. In a single opinion, the Texas Court of Criminal Appeals reversed the court of appeal’s judgment in Ortiz’s case and affirmed the court of appeals’ judgment in Barrett’s case. Ortiz v. State, ___S.W.3d___, 2021 WL 900673 (Tex. Crim. App. Mar. 10, 2021) (5:3:1). Writing the Court, Judge Keel first addressed lesser-included offenses. While Texas Code of Criminal Procedure Article 37.09 defines lesser-included offenses four different ways, only the definition under 37.09(1) was implicated in these cases: 33
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“bodily injury” encompasses all damage inflicted in a single transaction rather than simply being a discrete physical injury. Therefore, if the defendant can produce evidence that occlusion did not occur but that the victim suffered some other physical injury or injuries that would make him guilty only of a “plain” bodily-injury assault, then the defendant would be entitled to the lesser-included offense of “plain” bodily-injury assault, a Class A misdemeanor.
The Court then applied its conclusion to Ortiz’s and Barret’s cases. The evidence in these cases did not raise an issue about the relationship between the parties or the possibility of an attempted occlusion assault. Rather, Barrett and Ortiz both sought instructions for the lesser offense of bodily-injury assault for nonimpeding injuries. Consequently, neither Barrett nor Ortiz was entitled to the instruction sought. The Court then addressed Barrett’s argument that Irving v. Texas, 176 S.W.3d 842 (Tex. Crim. App. 2005), should be overruled. Although it admitted that Irving conflicted with its later opinion in Hall, the Court nevertheless declined to overrule Irving, reasoning that doing so would not help Barrett because of the differences between occlusion assault and aggravated assault. Occlusion assault has a statutorily specified injury, the injury is the focus of the offense, and proving a different bodily injury proves a different assault rather than an included one. Aggravated assault, however, does not have a statutorily specified injury. So, Irving’s treatment of assault as a possible lesser-included offense of aggravated assault is inapplicable to assault as a possible lesser-included offense of occlusion assault.
D. Egregious Harm - Erroneous inclusion of reckless culpable mental state in the jury charge, under the facts of the case, was a mere formatting defect that did not cause egregious harm. Several officers were dispatched to locate a vehicle carrying stolen merchandise. The merchandise had been equipped with a tracking device and placed in a “bait” car before being stolen. Using the tracking device, the officers traced the merchandise to a Hummer driven by Victor Gonzalez. After observing the Hummer commit a traffic violation, the officers initiated a traffic stop. Gonzalez attempted to flee but ran into a dead end in an apartment complex’s parking lot. Two police cars pulled up closely on either side of the Hummer to prevent Gonzalez from getting out. As Officer Taylor Rogers got out of his patrol car to arrest Gonzalez, Gonzalez reversed and accelerated. The Hummer collided with the side of a patrol car and injured Officer Rogers. After successfully reversing away from the officers, Gonzalez sped off, crashed the Hummer into a nearby structure, and then fled on foot. Gonzalez was eventually arrested.
Judge Yeary filed a concurring and dissenting opinion. He disagreed with the Court that simple assault can never be a lesser-included offenses of occlusion assault because one cannot commit occlusion assault without first causing the bodily injury necessary to sustain a conviction for a simple assault. Therefore, he disagreed with the Court’s reversal of the court of appeals’ judgment in Ortiz’s case because the appellate court had correctly concluded that the lesser-included instruction for simple assault was warranted. However, he agreed with the Court’s affirming of the court of appeals judgment in Barrett’s case but for a different reason than the Court’s. He reasoned that Barrett punching his wife in the face multiple times was a different assault than choking and those assault did not constitute a lesser-included offense of the assault alleged in the indictment.
Gonzalez was charged with aggravated assault of a public servant with a deadly weapon. Although the aggravated assault statute permits conviction for a firstdegree felony where the actor intentionally, knowingly, or recklessly causes bodily injury to a public servant, the indictment omitted recklessness as a possible culpable mental state. However, the jury charge’s abstract and application paragraphs at trial tracked the statutory language—not the indictment’s language— allowing the jury to convict Gonzalez if he intentionally, knowingly, or recklessly caused bodily injury to Officer Rogers while using or exhibiting a deadly weapon. Aside from an instruction on seconddegree felony aggravated assault with a deadly weapon (e.g., not against a public servant), no other lesserincluded offense instructions were included in the jury
Presiding Judge Keller filed a dissenting opinion, joined by Judges Walker and Slaughter. She argued that the “occlusion” is an aggravating element that does not impact the unit of prosecution for the base offense of “plain” bodily-injury assault. She also argued that 34
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charge. Gonzalez did not object to the inclusion of the unindicted culpable mental state. Moreover, both the State and Gonzalez addressed all three statutorily permissible culpable mental states in voir dire and in closing arguments without objection. The jury ultimately convicted Gonzalez of first-degree aggravated assault of a public servant with a deadly weapon.
egregious harm. According to the Court, this case presented such a situation.
The Texas Court of Criminal Appeals reversed the judgment of the court of appeals and remanded the case to it for further proceedings. Gonzalez v. State, 610 S.W.3d 22 (Tex. Crim. App. Oct. 28, 2020) (6:3:0). Writing for the Court, Judge Slaughter first explained that inclusion of the culpable mental state of recklessness in a jury charge application paragraph for aggravated assault causing bodily injury is error unless reckless aggravated assault is included as a standalone lesser-included-offense instruction. The question here was whether the erroneous inclusion of recklessness in the application paragraph, rather than as a separate lesser-included-offense instruction, causes egregious harm.
The Court then discussed two of its prior decisions, which both parties had focused on, because they informed its analysis in this case. In Reed v. State, 117 S.W.3d 260, as in the instant case, the indictment for aggravated assault alleged only the culpable mental states of intentional or knowing, but the jury charge’s application paragraph allowed for a conviction based on intentional, knowing, or reckless culpable mental states. The Court held that the jury charge was erroneous because, although the aggravated assault statute would permit a conviction based on recklessness, the indictment had not alleged it. But the Court emphasized that its holding applied only to the indicted-offense instructions and noted that a trial court would not err by including reckless aggravated assault as a lesser-included-offense instruction. In Hicks v. State, 372 S.W.3d 649, the Court relied on its suggestion in Reed to uphold a standalone lesserincluded-offense instruction for reckless aggravated assault that the trial court had included in the jury charge. The Court determined that reckless aggravated assault was necessarily a lesser-included offense of intentional or knowing aggravated assault. Thus, as long as recklessness is raised by the evidence, a trial court does not err by submitting a charge on reckless aggravated assault as a lesser-included offense of a charged intentional or knowing aggravated assault. Accordingly, while Reed prohibits including an uncharged reckless culpable mental state in the instructions for the indicted offense, Hicks allows for it to be included in a separate lesser-included-offense instruction.
The Court first addressed the applicable law for evaluating egregious harm. Egregious harm occurs when the error affects “the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory.” The defendant must have suffered some actual, rather than merely theoretical, harm. To determine if there was egregious harm, the Court ordinarily evaluates the entire record in light of Almanza’s four factors: the entirety of the charge, the state of the evidence, the arguments to the jury, and any other relevant information. But in some instances, a single consideration may persuade the Court that the risk of harm is so minimal that it precludes a finding of
The Court then analyzed whether the defect— erroneously including recklessness in the jury charge application—caused egregious harm. It concluded that it did not. Applying Hicks to the case, the Court said that it was clear that the trial court was authorized to charge the jury on the recklessness culpable mental state. The record shows that both Gonzalez and the State anticipated that the jury would consider the reckless culpable mental state. Both parties discussed recklessness with the jury in voir dire and in closing arguments, and neither party objected to its inclusion in the jury charge. Moreover, the Court’s precedent provides that the trial court was authorized to sua
Gonzalez appealed, arguing that the jury charge was erroneous because of its inclusion of the unindicted culpable mental state of recklessness. The State conceded that the charge was erroneous in this respect, and Gonzalez conceded that he had not objected to the error. The court examined the fourfactor framework used to determine whether an appellant was egregiously harmed by an erroneous jury instruction. Concluding that the factors overall weighed in favor of finding egregious harm, it reversed Gonzalez’s conviction and remanded.
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sponte instruct the jury on any lesser-included offenses raised by the evidence. The Court could infer that the trial judge believed recklessness was raised by the evidence here because, otherwise, he would not have included it as an applicable culpable mental state. And the Court’s own independent review of the record indicates that the facts did indeed raise recklessness; both the State and Gonzalez conceded as much in their briefs. Thus, the trial court’s only error was in the incorrect placement of recklessness in the application paragraph for the charged offense rather than in a standalone lesser-included-offense instruction—i.e., a formatting defect.
range of punishment, Gonzalez did not suffer egregious harm because of the charge error. Presiding Judge Keller, Judge Newell, and Judge Walker concurred without written opinion. VII. SENTENCING A. State could not use statutory elemental aggravating fact of prior family-member-assault conviction at punishment to elevate the offense to a third-degree felony when jury convicted defendant of misdemeanor assault. Harold Holoman was charged with simple assault under Texas Penal Code § 22.01(a)(1). The indictment alleged that the offense was committed against a member of his household and that Holoman perpetrated the offense by impeding the victim’s breathing or blood circulation by applying pressure to her throat or neck—making the offense a third-degree felony under § 22.01(b)(2)(A). Before trial, Holoman elected to have the trial court assess punishment and the State gave notice that it intended to present evidence of four prior felony convictions at punishment, three of which involved assault on a family member. At the guilt-innocence phase of trial, the jury found that Holoman had caused bodily injury to a member of his household but declined to find that he did so by impeding her breath or blood. Therefore, it found Holoman guilty only of misdemeanor assault. Then, at the punishment phase of trial, the State urged the trial court to use one of the prior assault-on-afamily-member felony convictions that it had given notice of its intent to present to raise the offense to a third-degree felony. Over Holoman’s objections, the trial court agreed to do so and then, relying on § 12.42(d), applied two of the remaining prior felony convictions to elevate the punishment range. Holoman was sentenced to 25 years’ imprisonment.
The Court then compared the instructions that were given to the ones that should have been given to determine whether the formatting error was egregiously harmful. A proper jury charge would have included the lesser-included offense of reckless aggravated assault in a separate paragraph rather than in the charged offense’s application paragraph. The Court determined that this formatting difference would not have had any significant impact on the jury’s ability to convict Gonzalez. There is only one real difference between submission of recklessness in the application paragraph versus through a lesser-included offense instruction: in the former situation, the jury could be split on Gonzalez’s culpable mental state; in the latter scenario, the jury would have to be unanimous about his recklessness. But because proof of a greater culpable mental state necessarily constitutes proof of the lesser culpable mental state, the jury’s guilty verdict indicates that it was at least unanimous about Gonzalez’s recklessness and could have convicted him on that basis regardless of whether it was split on the intentional/knowing culpable mental states. Thus, the difference in unanimity requirements between the two formats did not meaningfully affect Gonzalez’s likelihood of being convicted. Likewise, the formatting difference would not have altered Gonzalez’s possible punishment range. Regardless of whether he was convicted for an intentional, knowing, or reckless aggravated assault against a public servant using a deadly weapon, Gonzalez was facing firstdegree felony liability with the same range of punishment. Because the trial court’s error effectively amounts to a formatting error that did not substantively affect the relevant theories of liability or the possible
Holoman appealed, arguing that that the trial court erred to utilize one of the prior assault-on-a-familymember convictions at the punishment phase of trial to raise the level of the offense from a Class A misdemeanor to a third-degree felony. The court of appeals agreed. It held that proof of the prior assaulton-a-family-member conviction was elemental because it elevated the offense from a Class A misdemeanor to a third-degree felony, thus establishing an element designed to invoke the jurisdiction of the district court. 36
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And here, this element was neither pled in the indictment nor proven at the guilt phase of trial, so it could not authorize a conviction for a third-degree felony. The court essentially determined that § 22.01(b)(2)(A) operated categorically: a prior conviction must either serve (1) as an element of the offense of felony assault family violence with a previous conviction; or (2) to enhance the punishment of a misdemeanor assault family violence—but it cannot serve both functions. Accordingly, the court vacated Holoman’s sentence and remanded the case for the trial court to resentence him within the range of punishment for a misdemeanor.
criteria, § 22.01(b)(2)(B) bears more of the hallmarks of an elemental aggravating fact than a punishmentissue aggravating fact. It more clearly constitutes an additional fact beyond a simple misdemeanor assault that subjects it to a greater range of punishment and therefore favors construing it to be elemental. Finally, § 22.01(b)(2)(B) does not employ the phrase “if . . . it is shown on the trial of . . .[,]” which the Court has said is more indicative of a punishment-enhancement issue. Consequently, the Court said it would be an odd and unwieldy construction of § 22.01(b)(2) to declare one of its alternative aggravating facts to be categorically elemental (as § 22.01(b)(2)(B) almost certainly is), invariably to be proven at the guilt phase of trial, while allowing the State to apply the other aggravating fact either elementally, or as a punishment provision only, depending on the vicissitudes of the particular case.
The Texas Court of Criminal Appeals affirmed the court of appeals’ judgment. Holoman v. State, ___S.W.3d___, 2021 WL 1202883 (Tex. Crim. App. Mar. 31, 2021) (8:1:0). Writing for the Court, Judge Yeary explained that, according to Oliva v. State, 548 S.W.3d 518, 532–33 (Tex. Crim. App. 2018), whether a particular statutory aggravating fact creates an element of a new offense or simply constitutes a punishment issue is a matter of statutory construction. Sections 22.01(b)(2)(A) [the prior-assault-on-a-familymember-conviction provision] and 22.01(b)(2)(B) [the assault-by-impediment-of-breath-or-blood provision] operate as alternative ways to raise a simple assault-ona-family-member from a Class A misdemeanor to a third-degree felony. Alleging either one will suffice to invoke the district court’s felony jurisdiction. The State argued that it did not have to invoke § 22.01(b)(2)(A) to confer subject-matter jurisdiction in this case, so the Court should regard the proof of Holoman’s prior assault-on-a-family-member conviction to be a matter of enhancement of punishment only, which it may litigate for the first time at the punishment phase of trial. In other words, when the State does not use an aggravating fact to confer subject-matter jurisdiction, and that aggravating fact would not otherwise be regarded as elemental, it is appropriate to treat that aggravating fact as a punishment issue.
The Court then rejected the State’s argument that its proposed construction of § 22.01(b)(2)(A) would optimize the legislative goal of Article 36.01(a)(1), namely, to put off any prosecutorial allusion to evidence of prior convictions at trial until absolutely necessary. Although that is undoubtedly a goal of Article 36.01(a)(1), the Court explained that Article 36.01(a)(1) only identifies the consequence of construing an aggravating fact to be elemental rather than punishment-only. It does not dictate how the penal provision that prescribes the aggravating fact itself ought to be construed—whether as an element of a separate aggravated crime or solely as a punishment issue following conviction for a base offense. The Court said that its job in the present case was “to focus on the language of the statute at issue.” Here, the statute at issue was § 22.01(b)(2), not Article 36.01(a)(1). And the Court was persuaded that § 22.01(b)(2)(A) established an element of an aggravated crime and not, alternatively, a punishment enhancement. Judge Newell concurred without written opinion. [Commentary: The court of appeals applied Oliva v. State, and so did the Court of Criminal Appeals. The only thing this opinion does is reject the State Prosecuting Attorney's arguments to limit the scope of Oliva's categorical approach to jurisdictional enhancements. That could have been accomplished by refusing the petition for discretionary review.]
The Court declined the State’s flexible construction of Section 22.01(b)(2)(A), reasoning that § 22.01(b)(2) itself counsels against it. The Court in Olivia had already declared that a jurisdictional aggravating fact will always be considered elemental, not punishment-only. Moreover, under the Oliva 37
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B. Exclusion of relevant mitigating evidence offered by the defendant facing a possible death sentence was harmless. Amos Joseph Wells III was upset that his pregnant girlfriend, Chanice Reed, would not answer his calls. He drove to her house in Fort Worth, where she lived with her grandmother; mother, Annette Reed; and two younger brothers, E.M. and K.S. An argument ensued, and Wells shot Chanice four times, Annette twice, and E.M. four times. He then got into his truck and drove away. When paramedics arrived, they found Annette on the ground in the front yard screaming; Chanice bleeding and unresponsive outside the front door; and E.M.’s dead body inside the house. Chanice and her unborn baby died at the scene, and Annette died shortly after arriving at the hospital. While police were searching for him, Wells called his former girlfriend, Valricia Brooks, and told her that he had killed Chanice, Annette, and E.M. Brooks told Wells to turn himself in.
approximately five minutes. After that, Wells sporadically repeated that he was in a “crazy dream” and that he needed to “wake up.” Aside from these comments, the majority of the video consisted of Wells pacing around the room, scribbling on a whiteboard, sitting or apparently sleeping in a chair or on the floor for long stretches of time, drinking water, and taking restroom breaks. Wells was indicted for the capital murders of Chanice and Annette Reed committed during the same criminal transaction; the State pursued the death penalty. At the punishment phase at trial, Wells sought to admit the entire interview room video to show his mental condition after the shootings. He did not offer the video excepts as an alternative. The trial court ultimately excluded the video. A jury convicted Wells of capital murder, and the trial court sentenced him to death. Wells argued on direct appeal, among other things, that the trial court erred when it refused to admit the six-hour segment of the interview room video at during punishment. He alleged that the video contained constitutionally relevant mitigating evidence that showed his mental condition and how he was acting immediately after the crime.
About one-and-half hours after he shot the three victims, Wells walked into the Forest Hills Police Department and, in a rambling and incoherent manner, blurted, “Put me in jail; kill me.” Sergeant Christopher Hebert handcuffed Wells as a safety precaution but explained that more information was needed to arrest him. Using two- to three-word sentences, Wells kept repeating that something bad had happened and that the officers would soon hear about it. Forest Hills officers were eventually able to identify Wells, and he was transported to a Fort Worth police station.
The Texas Court of Criminal Appeals affirmed the trial court’s judgment. Wells v. State, 611 S.W.3d 396 (Tex. Crim. App. Nov. 18, 2020) (8:0:1). Writing for the Court, Judge Walker first discussed the constitutional standard for mitigating evidence. The Eighth and Fourteenth Amendments require that a sentencer not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. If the mitigating evidence meets the threshold test for relevance—i.e., it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”—then the trial court should admit that evidence for the jury to consider. The Court has stated the jury may consider a defendant’s mental condition as a mitigating factor in a capital punishment case; however, the federal constitution does not require the admission of mitigating evidence that is otherwise objectionable under state law.
An eight-hour video of Wells in the interview room at the Fort Worth police station showed three broad segments: (1) Wells’ one-hour initial interview upon arrival at the station; (2) a six-hour span during which Wells was essentially left alone throughout the night; and (3) Wells’ second and final interview, during which he confessed in detail to the murders. Specifically, the six-hour segment of the video showed that, after the detectives left the interview room, Wells repeatedly made statements like: “This is too weird”; “This is a dream I know it is”; “Why? Why?”; “Wake up”; “This is too weird”; and “This is a dream.” He also ran his hands along the table and walls of the room. This continued for about fourteen minutes until an officer entered to take his shoes, shorts, and shirt. After the officer left, Wells made similar statements for 38
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The Court then discussed the applicable harm standard, harmless error—i.e., reversal is required unless the reviewing court determines, beyond a reasonable doubt, that the error did not contribute to the conviction or punishment. This standard applied because the erroneous exclusion of relevant mitigating evidence offered by a defendant facing a possible death sentence implicates the Eighth Amendment and therefore is constitutional error. The harmless error test asks reviewing courts whether there was a reasonable possibility that the error might have contributed to the conviction or punishment. The court considers a number of factors, including (but not limited to): the nature of the error; whether the error was emphasized by the State; the probable implications of the error; the weight the jury would likely have assigned to the error in the course of its deliberations; and the presence of overwhelming evidence supporting the jury’s verdict. The entire record is to be evaluated in a neutral manner, not in the light most favorable to the prosecution. The State bears the burden of proving that the constitutional error was harmless beyond a reasonable doubt.
structure, and childhood environment) out of his control; the extensive evidence in support of that argument by several doctors who evaluated him before trial, family members, others who interacted with him, and even himself; and evidence that seemed to run against his argument. In addition to overwhelming evidence of guilt, there was also overwhelming evidence presented by the State that supported the jury’s punishment verdict—including the gravity of the offense; his history of violence against Brooks, Chanice, and a fellow inmate; and his potential for future violence. Therefore, the Court was convinced beyond a reasonable doubt that the trial court’s exclusion of the six-hour portion of the video was harmless; it did not contribute to the jury’s verdict on the mitigation special issue and therefore his punishment. Judge Yeary concurred in the result. [Commentary: This is a very fact-intensive case because the bar for mitigation evidence is so low. Note that the Court does not say that the video was properly or improperly excluded, which may be a harder question. That should signal to prosecutors the Court’s recognition that mitigation evidence in a death penalty case is very important and should not be excluded lightly given the low standard for admissibility.]
The Court then analyzed whether the alleged error was harmless. It concluded that it was. First, although the full video would have also shown his mental state, and its exclusion prevented him from putting all of his mental state evidence in front of the jury, the erroneous exclusion had no impact on Wells’ ability to show the jury his mental state shortly after the offense. Other evidence presented showed Wells’ post-offense mental state and strange behavior: (1) the officer’s description of Wells’ strange trance-like demeanor and fewworded sentences asking to be shot and arrested at the Forest Hills police station; (2) testimony that during his call with Brooks, Wells’ sounded distraught, was talking fast, seemed frantic and remorseful, and was crying; and (3) testimony that Wells drove around for an hour after the murders and contemplated feeling and committing suicide. These events, which occurred prior to the complained-of segment, arguably better reflected Wells’ mental state immediately after the offense.
VIII.
APPEALS
A. Preservation - Court of Appeals could not affirm lower court’s decision based on a legal theory not presented to the trial court because the State had not been given an opportunity to develop a complete factual record with respect to that theory. Keven Castanedanieto was an eighteen-year-old Salvadorian immigrant who was arrested for aggravated robbery. Shortly after his arrest, he was interviewed by Detective Thayer. During the first several minutes of the interview, Detective Thayer elicited personal information from Castanedanieto and conveyed warnings pursuant to Miranda and Article 38.22. When asked if he understood the rights that had just been read, Castanedanieto shook his hand indicating “so/so.” Detective Thayer then had Castanedanieto read the warnings out loud in Spanish. When asked a second time if he understood his rights, Castanedanieto nodded affirmatively. However, when
Second, the erroneous exclusion had no impact on Wells’ overall mitigation case. The jury heard and rejected Wells’ mitigation case that his propensity for violence was due to factors (e.g., his genetics, brain 39
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asked if he was willing to talk and figure out what happened, Castanedanieto responded by saying he did not understand. The two proceeded to talk about the incident for the rest of the interview.
court granted the motion to suppress, and the State filed a motion for reconsideration. Although the trial court granted reconsideration to hear the State’s argument, it ultimately reaffirmed its original ruling granting the motion to suppress.
Later that evening, Castanedanieto was brought before a magistrate for arraignment. The magistrate informed Castanedanieto of a number of rights and warnings, including those required by Miranda. When asked whether he wanted an appointed lawyer, Castanedanieto informed the magistrate that he did. The next evening, Castanedanieto agreed to a second police interview and was taken to police headquarters. After feeding Castanedanieto McDonald’s, Detective Garcia began eliciting basic identifying information, asking about family members, and inquiring about life in El Salvador. He then turned to the subject of answering questions and conveyed warnings required by Miranda and Article 38.22 to Castanedanieto. When asked if he understood the rights that had just been read to him, Castanedanieto said “Yes, sir.” The interview proceeded, and Castanedanieto made incriminating statements.
The court of appeals affirmed. Instead of addressing either of Castanedanieto’s two theories for suppressing the statements from the second interview, the court upheld the trial court’s suppression of the evidence on a third, unargued theory (“coercion” theory): that Castanedanieto’s will was overborne by declarative statements made by the detective in the first interview and that this coercion carried over to the second interview based at least in part on the fact that the “cat was out of the bag” (because he had incriminated himself in the first interview). The State appealed, arguing that this “coercion” theory was not a theory of law applicable to the case because the State did not have the opportunity to litigate it before the trial court. Castanedanieto responded that the State litigated the coercion theory before the trial court when it asked Detective Garcia whether he threatened Castanedanieto at the second interview and whether the statements in that interview were voluntary.
Castanedanieto filed a pre-trial motion to suppress. At the suppression hearing, defense counsel argued that statements from both the first and second interview should be suppressed. The State responded that it sought to admit only the statements from the second interview. In support of its position, the State called Detective Garcia, the sole live witness at the suppression hearing, who testified that he did not have any issues communicating with Castanedanieto; that Castanedanieto understood his rights and the questions being asked; that Castanedanieto willingly and voluntarily talked to him; and that he did not coerce, threaten, make any kind of deal with, or give future promises to Castanedanieto to get him to talk. Defense counsel then presented the trial court with two legal theories for suppressing the statements from the second interview: (1) that Castanedanieto did not understand the Miranda/Article 38.22 warnings in the first interview—because he did not know English well enough to understand his rights and to intelligently waive them—and that this lack of understanding carried over to the second interview; and (2) that the State violated Castanedanieto’s Sixth Amendment right to counsel by reinitiating questioning after he had requested appointed counsel at arraignment. The trial
The Texas Court of Criminal Appeals reversed the judgment of the court of appeals and remanded the case to it for further proceedings. State v. Castanedanieto, 607 S.W.3d 315 (Tex. Crim. App. Sept. 16, 2020) (9:0:0). Writing for a unanimous Court, Presiding Judge Keller first addressed the “Calloway rule.” The Calloway rule dictates that a claim of reversible error on direct appeal should be rejected if the trial court’s ruling is correct “on any theory of law applicable to the case” even if “the trial court did not purport to rely on that theory” and the prevailing party did not explicitly raise the theory. A legal theory is not applicable to the case if the appealing party did not have an adequate opportunity to develop a complete factual record with respect to the theory. The Court explained that Castanedanieto’s lack-of-understanding/voluntariness theory also did not put the State on notice of the need to develop facts that would ultimately be relevant to the coercion theory. Further, the State did not raise a coercion theory that created an adequate opportunity to develop a complete factual record. Because neither Castanedanieto’s legal theories nor Detective Garcia’s testimony placed the State on notice that it needed to 40
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develop a complete factual record with respect to the coercion theory, the Court held that the court of appeals resolved the appeal on a theory that was not a theory of law applicable to the case. The Court declined to address the State’s two remaining grounds at that time.
confrontation is reviewed for harmless error. Constitutional error is harmful unless a reviewing court determines beyond a reasonable doubt that the error did not contribute to the conviction. According to Coy, in the context of the denial of physical confrontation, the harm analysis “cannot include consideration of whether the witness’ testimony would have been unchanged, or the jury’s assessment unaltered, had there been confrontation” because “such an inquiry would obviously involve pure speculation.” Instead, harm must be determined based on “the remaining evidence.” The Court noted that the reviewing court should examine the testimony that the witness actually gave when determining whether there is a reasonable likelihood that the error affected the judgment of the jury.
B. Harm - The Court clarifies the harm analysis for the denial of face-to-face confrontation when witness testified remotely despite the lack of a finding that testifying remotely was necessary. James Ray Haggard was accused of sexual assaulting his longtime friend’s daughter, M.W. The day after the alleged assault, Suzanne DeVore, a Sexual Assault Nurse Examiner (SANE), performed a SANE examination and wrote down M.W.’s account of what happened. DeVore’s physical examination of M.W. revealed no trauma to her vagina or anus; however, she found a small bruise on M.W.’s right breast. At trial, DeVore, testified remotely via FaceTime over the defense’s objection.
The Court then analyzed the Van Arsdall harmless-error test used by the court of appeals. It concluded that the Van Arsdall presumption was inappropriate in this case because cross-examination was not at issue. The Court noted that, unlike other courts, it understood the Supreme Court’s cite to Van Arsdall in Coy to show that the denial of face-to-face confrontation, like impermissible limits on crossexamination, is susceptible to a harmless-error analysis. (AKA: neither the denial of cross-examination nor the denial of face-to-face confrontation under the Confrontation Clause are structural errors). However, the Court said that the factors set out by the Supreme Court in Van Arsdall were nevertheless helpful in determining harm (except for the fourth one asking to what extent cross-examination was otherwise permitted) but that any circumstance apparent in the record that logically informs the harm issue should be considered.
On appeal, Haggard argued that the trial court’s error—allowing DeVore to testify remotely—was harmful. The court of criminal appeals disagreed, finding that the error did not contribute to Haggard’s convictions. It applied the Supreme Court’s threepronged Van Arsdall harmless-error test: (1) the reviewing court assumes that the damaging potential of the cross-examination was fully realized; (2) with that assumption in mind, the court reviews the error by considering the following factors: the importance of the witness’s testimony in the State’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting material points of the witness's testimony, the extent cross-examination was otherwise permitted, and the overall strength of the State’s case; and (3) the court determines whether the error was harmless beyond a reasonable doubt.
The Court then analyzed whether the evidence admitted through the complained-of witness must also be excluded from the analysis. The Court said that this was another issue that the court of appeals should have addressed in its analysis but did not because Haggard made the argument on appeal and it was important— without DeVore to prove-up the chain of custody of the SANE kit and its contents, the highly incriminating DNA evidence would have been inadmissible. The Court concluded that this evidence must be excluded under Coy, reasoning that it is improper to speculate about whether evidence admitted through the witness
The Texas Court of Criminal Appeals reversed and remanded the case to the court of appeals to conduct a new harm analysis. Haggard v. State, 612 S.W.3d 318 (Tex. Crim. App. Dec. 9, 2020) (5:1:3). Writing for the Court, Judge Hervey explained that since the Court had already decided that the trial court’s error was constitutional error, it must next determine whether the court of appeals properly addressed harm and whether it was correct that any error was harmless. A denial of physical, face-to-face 41
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would have been admitted at a hypothetical trial at which the witness did not testify. The Court said that engaging in such speculation could lead to the exact problems that the Supreme Court sought to avoid in Coy. Even if the Court speculated that the State might have known another possible way to get the SANE kit, its contents, and the DNA evidence admitted, that changed the analysis from analyzing harm in the trial that actually happened to assessing harm at a theoretical trial. And the Court would also have to speculate about whether the witness would have given the necessary testimony to admit the evidence—often an attorney believes that a witness will say one thing, but he says another—and whether the judge would have made the proper ruling at the hypothetical trial. Having clarified the harm analysis for the denial of face-to-face confrontation, the Court remanded the case to the court of appeals to reassess whether Haggard was harmed.
Relying on Salinas v. State, 523 S.W.3d 103 (Tex. Crim. App. 2017), Dulin claimed on appeal that $22.50 of the court costs assessed in each case violated the principle of separation of powers. The court of appeals agreed and deleted $22.50 from each judgment. The Texas Court of Criminal Appeals vacated the court of appeals’ judgment and remanded the case to it. Dulin v. State, ___S.W.3d___, 2021 WL 1202400 (Tex. Crim. App. Mar. 31, 2021) (5:4). Writing for the Court, Presiding Judge Keller first concluded that pendency of appeal suspends the obligation to pay fines, court costs, and restitution. And if those monetary obligations are suspended, it follows that the running of the clock for the time payment fee is suspended. The Court gave a number of reasons. First, the language of the time-payment-statute itself was illuminating. According to the text, the time payment fee becomes due as soon as the trial court’s judgment becomes final, assuming no notice of appeal or motion for new trial has been filed. The Court said this was not a coincidence; it suggested that the time payment fee was designed to be triggered by the finality of the judgment and thus should exclude the pendency of the appeal in the time period calculations.
Presiding Judge Keller and Judge Keel concurred without opinion. Judge Yeary filed a concurring opinion. He agreed with the Court’s decision to send the case back for further proceedings with respect to the court of appeals’ harm analysis. Judge Slaughter filed a dissenting opinion. Although she implicitly disagreed with the court of appeals’ harm analysis, she would have affirmed the judgment of the court of appeals upholding Haggard’s conviction because she believed that no constitutional error had occurred.
Second, the statutes that give the trial court powers related to fines, court costs, and restitution do not address the effect of appeal on these monetary obligations. And while there is a statute that addresses whether a defendant can defer a sentence of incarceration or community supervision by being released on bail pending appeal, there is no comparable statute that addresses whether a fine, court costs, or restitution can be deferred pending appeal.
C. Court Costs – Assessment of “time payment fee” was premature because a defendant’s appeal suspends the duty to pay court costs. Bryant Dulin was convicted of twelve offenses involving sexual abuse against a child. At the time of judgment, court costs of $589 and $639 were assessed in two of the cases. A bill of cost for each judgment showed that the costs assessed included $25 for time payment fees. According to Texas Local Government Code § 133.103(a), a time payment fee is assessed if the defendant pays some or all of his fine, court costs, or restitution “on or after the 31st day after the date on which a judgment is entered assessing the fine, court costs, or restitution.” The judgments and clerk’s bills of costs were entered on the same day: June 19, 2018. Dulin’s notices of appeal were filed on July 13, 2018.
Third, it was not only logical to conclude that the obligation to pay a fine or court costs would be suspended while an appeal is pending but caselaw suggests that it does. The Court said that if pendency of an appeal did not stop the clock for the time payment fee, then the defendant would ultimately face a monetary penalty for not paying the fine, costs, or restitution despite having filed an appeal. Such a monetary penalty would mean that no payment of fine, costs, or restitution would ever be voluntary, but the Court saw nothing to suggest that the Legislature intended to abrogate its prior holdings that a defendant can, in an appropriate case, moot his appeal by 42
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voluntarily paying a fine and court costs. Also, creating an incentive to pay a fine, court costs, and restitution during the pendency of an appeal could lead to the adverse results.
payment fee is marginally more like the anticipatory court costs at issue in Salinas than the direct reimbursement court costs in Allen v. State, 614 S.W.3d 736, 744 (Tex. Crim. App. 2019). However, Judge Yeary agreed with the State that Salinas was wrongly decided and argued that the $22.50 portion of the time fee payment allocated to the general revenue funds in this case did not violate the separation of powers clause in the Texas Constitution. Consequently, he would reverse the court of appeals holding to the extent it modified the judgment of conviction to delete the assessment of a portion of the time payment fee.
Fourth, the conclusion that appeal suspends the obligation to pay monetary sanctions was also consistent with how the Court handles appeals when a defendant dies. Lastly, practical considerations favored the Court’s conclusion. For example, difficulties— such as logistical difficulties of reimbursing a defendant who pays his costs to avoid the time payment fee but then gets his conviction reversed and is acquitted—are avoided if court costs become due only after the appeal is over.
D. Reformation – Aggravated robbery conviction was reformed to robbery when evidence was insufficient as to the aggravating element of use or exhibition of a deadly weapon. Juan Flores entered convenience store, pretending he had a gun. The “gun” was actually an electric drill covered in plastic bags with a black sleeve over the drill bit. Believing the drill was a gun, store owner Nanu Shapakota gave Flores the money from the register. Flores was charged with aggravated robbery, with the aggravating element being his use or exhibition of a deadly weapon. At trial, testimony from Shapakota and two detectives established that Flores neither threatened nor took any action to hurt anyone with the drill; his only “use or intended use” of the drill was to threaten Shapakota with it by making her believe it was a gun and that he might use it to shoot her. A jury convicted Flores of aggravated robbery, and the trial judge sentenced Flores to fifteen years in prison. Flores appealed, arguing that the evidence was insufficient to establish that he used or exhibited the drill as a deadly weapon. The court of appeals disagreed and affirmed Flores’s conviction.
The Court then applied its conclusion that the pendency of an appeal stops the clock for purposes of the time payment fee to Dulin’s case. It concluded that the assessment of the time payment fees was premature; therefore, the fees should be struck in their entirety, without prejudice to them being assessed later if, more than 30 days after the issuance of the appellate mandate, Dulin has failed to completely pay any fine, court costs, or restitution that he owes. The Court noted that due to its disposition of the State’s claim that the time payment fee must be struck as prematurely assessed, it did not address the State’s other claims. It explained that whether the time payment fee would be reimposed later was speculative at that point because Dulin could avoid the statutory conditions for imposing the fee by choosing to pay his monetary obligations on time. And there was an available statutory remedy— Texas Code of Criminal Procedure Article 103.008(a)—to challenge the time payment fee, if it was ever imposed. Judge Yeary filed a dissenting opinion, joined by Judges Keel, Slaughter, and McClure. Judge Yeary disagreed that the time payment fees must be struck as premature. He argued that by the time Dulin challenged the constitutionality of the time payment fee on appeal in March of 2019, more than eight months had elapsed from the imposition of those fines and other court costs. Therefore, even if premature when assessed in the judgments, the mandatory time payment fees were applicable to Dulin and ripe for challenge on appeal. Judge Yeary then rejected the State’s assertion that Salinas did not control, reasoning that the time
The Texas Court of Criminal Appeals reversed the court of appeals’ judgment and remanded the case to the trial court to reform Flores’s judgment to reflect a conviction for the second-degree felony offense of robbery and to hold a new trial on punishment. Flores v. State, ___S.W.3d___, 2021 WL 1204496 (Tex. Crim. App. Mar. 31, 2021) (6:4). Writing for the Court, Judge Slaughter explained that after determining that the evidence was insufficient to support the factfinder’s conclusion that the drill was used or exhibited as a deadly weapon (i.e., the aggravating 43
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element), the question still remained as to what remedy was appropriate under the circumstances.
name, and the case number. The vials were placed into an envelope, labeled with Diamond’s name and case number, sealed with tape, and then delivered to a secure lockbox at the Houston Police Department. Andrea Gooden, an analyst from the Houston Police Department Crime Lab, retrieved the sealed envelope containing Diamond’s blood samples. There did not appear to be any tampering with the envelope. Prior to testing the blood, Gooden observed Diamond’s name on the envelope and on the blood vials inside that envelope. The vials contained a manufacturing label that, in addition to Diamond’s name, had the same case number, initials, and date as the envelope. Gooden followed all of the lab’s standard operating procedures that were in place at the time she analyzed Diamond’s blood. Her analysis revealed a blood alcohol concentration (BAC) of 0.193, which is above the legal limit of 0.08.
In Bowen v. State, 374 S.W.3d 427, 432 (Tex. Crim. App. 2012), the Court held that when an appellate court finds the evidence insufficient to support some aggravating element of an offense, but the evidence is otherwise sufficient as to the nonaggravated offense, the proper remedy is reformation of the judgment to the lesser-included offense. The Court also explained that outright acquittal would be improper under those circumstances because, although the State failed to prove the aggravating element, it otherwise proved the essential elements of the offense beyond a reasonable doubt. The Court found this principle to be applicable here. Because its holding was limited to finding the evidence insufficient as to the aggravating element of the use or exhibition of a deadly weapon, this holding should not disturb the sufficiency of the evidence to support Flores’s conviction for the underlying offense of robbery. Accordingly, Flores’s conviction must be reformed to a conviction for the second-degree felony offense of robbery. VIII.
The jury found Diamond guilty of DWI. Then, after a special issue hearing, the jury also found that Diamond’s BAC was 0.15 or more at the time the analysis was performed—which raised the offense level from a Class B to a Class A misdemeanor. Diamond did not appeal her conviction. But after Diamond’s conviction, Andrea Gooden, the lab technician who had analyzed her blood and testified at her trial, self-reported that the crime lab had violated quality control and documentation protocols in another, unrelated case that straddled Diamond’s case. The protocol error in the unrelated case occurred after Gooden’s analysis in Diamond's case, but before Gooden testified in Diamond’s case. An investigation followed, and corresponding reports were given to Diamond after they became available.
HABEAS CORPUS
A. Brady – DWI blood analyst’s certification of report in unrelated case that contained a labeling error by the submitting officer and her temporary removal from casework to document that error was not material. After seeing Lesley Diamond speed past him in the lane closest to his patrol car, Deputy Bounds got into his patrol car, turned on his lights, and pursued Diamond’s vehicle for a long time before she finally stopped. When Diamond exited her vehicle, she exhibited multiple signs of intoxication—including staggering, inability to keep her balance, confusion, red eyes, and slurred speech. Bounds’ requested assistance with the traffic stop. Deputy Francis arrived and administered two standard field sobriety tests, which Diamond subsequently failed. Bounds determined that Diamond was “intoxicated” because she had lost the normal use of her mental and physical faculties. He placed Diamond under arrest for DWI.
The reports showed that prior to testifying in Diamond’s trial, a police officer had turned in an evidence envelope containing a blood sample and a case submission form to Gooden’s Lab. The officer had labeled the blood vials with the correct name and incident number but labeled the accompanying submission form with the wrong case information. The analyst (not Gooden) who received the sample noted the discrepancy in the case folder, contacted the submitting officer, and requested that he provide a corrected submission form. While waiting for the revised form, Gooden worked on the case. Pursuant to common lab practice, she analyzed the blood sample,
Bounds secured a warrant to obtain a sample of Diamond’s blood. Her blood was drawn, and her blood vials were labeled with Bound’s initials, Diamond’s 44
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drafted a blood alcohol report, and set the case aside without signing the report until the officer could resolve the name discrepancy. Like the first analyst, Gooden noted the police officer's labeling discrepancy. However, about a month later, Gooden mistakenly signed the “certificate of analysis” on the blood alcohol report she had previously set aside and placed the report in the queue for review. The report corresponded to the incorrect defendant listed in the case submission form, but the case folder correctly noted the name of the defendant who had provided the blood sample. That same day, William Arnold, the lab’s interim toxicology manager, conducted both the technical and administrative reviews of the case. Arnold did not catch that the report had been submitted under the wrong defendant’s name. He approved it, causing the erroneous report to be released the lab’s system that allowed prosecutors to access reports.
Maryland, 373 U.S. 83 (1963). Specifically, the undisclosed evidence Diamond complained about was (1) Gooden’s certification of a report in another case that contained a labeling error by the submitting officer; and (2) Gooden’s temporary removal from performing her regular job duties to provide documentation regarding that error. Diamond argued that this undisclosed evidence would have enabled her to impeach Gooden and either exclude her testimony entirely or discredit it, resulting in an acquittal or a deadlocked jury. After conducting a hearing at which both Gooden and Arnold testified, the habeas court denied Diamond’s writ application. The habeas court rejected Arnold’s purported reasons for removing Gooden from casework, including his alleged concerns about her knowledge base and inability to answer basic questions. Instead, it found that at the time of Diamond’s trial Gooden “had simply been removed to focus solely on documenting the issues surrounding an unrelated mislabeled blood case.” The habeas court also rejected Arnold’s characterization of Gooden’s work status. It found Arnold’s use of the term “suspended” or “under suspension” to describe Gooden’s work status at the time of Gooden’s trial “suspect and unpersuasive.” It ultimately concluded that the undisclosed evidence was neither favorable nor material. The court of appeals disagreed and reversed.
A few weeks before Diamond’s trial, Gooden noticed that a blood sample belonging to the unrelated case had been set aside. After discovering that the corresponding blood alcohol report had been released to prosecutors handling the case involving a different defendant, Gooden immediately notified her superiors. The next day, Arnold emailed Gooden telling her to focus solely on documenting what went wrong and not to work on any other casework. One day later, Gooden sent Arnold her memo. A few days later, Arnold told Gooden that although the issue was resolved, she could not return to casework because he and others up the chain of command needed to review her memo. Gooden therefore worked on discovery orders in other cases but did not analyze blood. At that time, Arnold was aware that Gooden was due to testify in Diamond’s upcoming case. The following week, Gooden testified in Diamond’s trial. It was the first time Gooden had testified in a case. Arnold observed Gooden’s trial testimony but did not testify himself. After Diamond’s trial, Arnold made a number of damaging claims related to Gooden’s work status and competency as an analyst in two investigations subsequent to Diamond’s trial. Copies of these reports were turned over to defense counsel.
The Texas Court of Criminal Appeals, finding that the undisclosed evidence was not material, unanimously reversed the court of appeals’ judgment and affirmed the habeas court’s ruling. Appellant filed a motion for rehearing, which the Court granted and issued a substitute opinion. The Court once again unanimously found that the undisclosed evidence was not material. Diamond v. State, 613 S.W.3d 536 (Dec. 16, 2020) (9:0:0). Writing for a unanimous Court, Judge Newell first addressed the applicable standard of review. While doing so, the Court explained a significant distinction between the posture of article 11.07 habeas cases and those that are first appealed to the court of appeals. In article 11.07 habeas cases, the habeas court is the original fact finder, but the Court is the ultimate fact finder. The habeas court’s findings are not automatically binding upon the Court, although it usually accepts them if they are supported by the record. But in a habeas cases that is appealable to the
After receiving the reports, Diamond filed an application for a writ of habeas corpus, alleging that the State has suppressed favorable impeachment evidence in violation of her right to due process under Brady v. 45
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intermediate court of appeals, the trial judge is the sole fact finder. The court of appeals and the Court are truly appellate courts. Thus, reviewing courts have less leeway to disregard the habeas court’s findings.
B. False Evidence - Cell phone records used to impeach two witnesses but never admitted into evidence nor made part of the record did not constitute “false testimony.” Samuel Ukwuachu and college classmate, Krystal, had spent time together on several occasions. One night, he and Krystal had seen each other at a party and agreed to meet afterwards. After Krystal called Ukwuachu to let him know that she was home, Ukwuachu picked her up from her apartment a little after 2 a.m. Ukwuachu took her back to his apartment. Once there, they went into his bedroom where Ukwuachu forced himself upon Krystal and raped her.
The Court then analyzed whether the undisclosed evidence was material. To demonstrate that she was entitled to post-conviction relief on the basis of reversible error under Brady, Diamond had to prove by the preponderance of the evidence that (1) the State failed to disclose evidence, regardless of the prosecution’s good or bad faith; (2) the withheld evidence is favorable to her; and (3) the evidence is material. Agreeing with the habeas court, the Court held that Diamond had failed to carry her burden to establish that the undisclosed evidence was material.
Ukwuachu was indicted for sexual assault. Krystal testified that she repeatedly screamed “no” and “stop”; that if anyone else had been in the apartment at the time, he or she would have heard her screams; and that she believed that she and Ukwuachu were alone in the apartment during the offense. Following Krystal’s testimony, on the second day of trial, the State informed defense counsel that it had just obtained the cellular phone records of Ukwuachu’s roommate, Peni Tagive, from the night of the offense. Tagive was expected to testify, consistent with his grand jury testimony, that he had been home in his room at the time of the alleged offense and had not heard any screams or sounds of a struggle coming from Ukwuachu’s bedroom. Outside the jury’s presence, the State told the court that its designated expert had reviewed Tagive’s cell phone call and location records and that they conflicted with Tagive’s grand jury testimony that he was home asleep by around midnight or 12:30 a.m. on the night of the offense. Instead, they showed that Tagive was “making calls all night and his phone bounces around at different [cell] towers in town.” In light of this information, Tagive’s attorney informed the prosecutor that Tagive “might take the Fifth.” Defense counsel was granted a recess to review the records and speak to Tagive. The following morning, defense counsel filed a motion in limine, arguing that the State had failed to provide timely notice of its intention to admit business records, that there was no live witness to sponsor the records, and that the time stamps in the records were “based on time zones that were five hours off.” This time difference meant that the State’s interpretation of the records was incorrect and did not prove inaccuracies in Tagive’s
First, the Court concluded that the undisclosed evidence was not material to the jury’s guilty finding because there was overwhelming evidence of Diamond’s intoxication to support that finding regardless of Gooden’s testimony. Second, the Court concluded that the undisclosed evidence was not material because it was insufficient to undermine Gooden’s testimony regarding the accuracy of Diamond’s blood results. There was no error in the labeling of Diamond’s blood or Gooden’s analysis of Diamond’s blood. Additionally, Gooden’s error had to do with an improper certification of a report rather than a failure to catch a mislabeling of a blood sample. The officer, not Gooden, had mislabeled the submission form accompanying the blood evidence. The erroneously certified report also contained the information regarding the officer's entry of incorrect information on the submission form. Most importantly, the habeas court, as the exclusive judge of the credibility of the witnesses, determined that Arnold’s description of events and his concerns about Gooden’s knowledge base were not credible. Arnold was found professionally negligent, not Gooden. All interviewees participating in the investigation believed Gooden to be a competent analyst who was unfairly blamed for the reporting error in the Hurtado case. Arnold had provided inconsistent explanations regarding why Gooden was removed from casework. Thus, Arnold’s non-credible claims did not undermine the reliability of Gooden’s testimony that Diamond’s BAC was 0.193. Consequently, the impeachment value of the information was not material. 46
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grand jury testimony. In response, the State acknowledged the time zone issue but argued that, even if the time stamps were off, the adjusted time stamps and location data were still in conflict with Tagive’s prior statements. The trial court ruled the phone records inadmissible but said that the State could ask Tagive “if he was making phone calls” on the night of the offense.
admitted nor sponsored by an expert yet were still used during cross-examination. In response, the State asserted that because the records were used solely for impeachment purposes and Tagive admitted to making the calls, it was unnecessary for the records themselves to be admitted or authenticated by an expert. Further, the parties at trial “were aware” of the difference in time zones, it did not affect the testimony, and “[n]o incorrect times were given before the jury.” The trial court denied Ukwuachu’s motion for new trial.
The trial proceeded with the testimony of Tagive, as well as Tagive’s friend, Morgan Reed. Tagive and Reed provided consistent timelines of the events that night: shortly after midnight, Tagive called Reed to ask for a ride home from a party; then around 12:30 a.m., Reed picked up Tagive, went through a fast-food drivethru, and drove Tagive home to his apartment. Ukwuachu was not home when they arrived. Reed testified that she left the apartment between 1:00 and 1:30 a.m., and Tagive testified that he then went to bed. Tagive later heard Ukwuachu talking to a female in the living room but assumed the two had gone into Ukwuachu’s bedroom once the voices stopped. Tagive testified he never heard any screaming or sounds of a struggle, that he was a light sleeper, and that he would have heard such noises coming from Ukwuachu’s bedroom. On cross-examination, the State attempted to impeach Tagive and Reed’s testimony by pointing to inconsistencies allegedly shown by Tagive’s phone records. Defense counsel did not object. The jury ultimately convicted Ukwuachu.
On direct appeal, Ukwuachu argued in part that the State’s use of Tagive’s unadmitted phone records to cross-examine Tagive and Reed “created a false impression with the jury” and thus violated his due process rights. The court of appeals agreed and granted Ukwuachu a new trial, reasoning that the State’s use of Tagive’s phone records amounted to false evidence that materially affected the outcome of Ukwuachu’s trial. The Texas Court of Criminal Appeals reversed the court of appeals judgment granting Ukwuachu a new trial and remanded the case to it to consider the remaining issues. Ukwuachu v. State, 613 S.W.3d 149 (Tex. Crim. App. Nov. 18, 2020) (5:4:0). Writing for the Court, Judge Slaughter first explained that the use of material false testimony to procure a conviction violates a defendant’s due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. In any claim alleging the use of material false testimony, a reviewing court must determine: (1) whether the testimony was, in fact, false, and, if so, (2) whether the testimony was material. Only the first prong was at issue in the case. To prove the falsity prong, the record must contain some credible evidence that clearly undermines the evidence adduced at trial, thereby demonstrating that the challenged evidence is, in fact, false. Additionally, definitive or highly persuasive evidence is needed to undermine the truthfulness of the evidence adduced at trial.
Ukwuachu subsequently filed a motion for new trial, arguing in part that the State improperly used the unadmitted phone records to impeach Tagive at trial. Specifically, the State’s use of the phone records created a false image to the jury. In support of his claim, Ukwuachu submitted: (1) an affidavit from Tagive indicating that his attorney had reviewed the records and determined that the times on them were misinterpreted and that the records matched Tagive’s version of the events; and (2) an affidavit from Dan James, a computer forensic investigator who had reviewed Tagive’s phone records, stating that the times reflected on the records would have to be adjusted by six hours earlier than the time indicated in order to properly convert the recorded time to the local time on the night of the offense. The trial court held a hearing, but no witnesses relevant to these claims were called to testify. Ukwuachu argued that the records had not been
The Court then concluded that the record had failed to establish that Tagive or Reed provided any false testimony. First, Ukwuachu’s basis for his falseevidence claim—that the State misled the jury by referring to the unadmitted phone records during its cross-examination and argument in a manner that suggested Tagive and Reed were lying about their whereabouts on the night—did not fall within the scope 47
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State’s use of the records resulted in false testimony, and Ukwuachu presented no other evidence that could be construed as demonstrating the falsity of any assertions by the State or testimony resulting therefrom.
of its false-evidence jurisprudence. Ukwuachu did not point to specific testimony from any witness that actually left the jury with a false impression; rather, he focused on the State’s questions and arguments that were allegedly misleading by suggesting that Tagive and Reed were lying. Similarly, the court of appeals focused on the State’s questions and arguments about the phone records, rather than identifying any particular testimony that misled the jury. But a prosecutor’s questions of a witness and his arguments to the jury are not “evidence” within the meaning of a false-evidence claim. The Court cannot sustain a false-evidence claim based solely on an allegation of misleading prosecutorial questioning absent some identifiable testimony that was problematic.
Because the court of appeals had erred by applying false-evidence principles to conclude that the instant record established that any false or misleading testimony was placed before the jury, the Court reversed and remanded. Presiding Judge Keller concurred without an opinion along with Judges Hervey, Newell, and Walker. [Commentary: I acknowledge that this opinion addresses a false evidence claim in the context of a motion for new trial. Nevertheless, most false evidence claims are raised in applications for a post-conviction writ of habeas corpus. Further, the holding does not really turn on the procedural posture. So I have included it in this section.]
Second, even if Ukwuachu had properly focused only on the testimony of Tagive or Reed as the basis for his false-evidence claim, nothing in the record credibly showed that Tagive or Reed misinformed the jury on any particular facts. And Ukwuachu had not pointed to any credible evidence showing that the State’s interpretation of the records was incorrect. The Court had no way of knowing what the phone records showed because they were never admitted into evidence at trial, they were never made part of the record, and Ukwuachu did not offer the records at the motion for new trial hearing. Because it could not know what information the phone records would ultimately reveal, the Court said it was precluded from finding that the State misrepresented the contents of those records during its questioning.
C. Subsequent Writs – Legal basis for claim that counsel violated Sixth Amendment right to assistance of counsel by making a strategic concession of guilt over express objection was previously available. Stephen Barbee confessed to police that he killed his pregnant ex-girlfriend, Lisa Underwood, and her seven-year-old son, Jayden Underwood. Barbee subsequently wrote a letter to his appointed attorneys recanting his confessions, claiming that he was innocent of the murders and that he helped the real killer (Ron Dodd) bury the bodies. Faced with Barbee’s confessions, defense counsel concluded that the “Todd else did it” theory would not work at trial. They instead pursued the theory that Lisa’s death was accidental, which was supported by Barbee’s confessions and by the medical examiner’s testimony. In closing arguments, the defense attorney admitted that the evidence showed that Barbee killed Lisa and Jayden but he argued that it did not show Barbee had done it intentionally or knowingly. The trial court charged the jury on the lesser-included offenses of murder and manslaughter, but the jury found Barbee guilty of capital murder. The trial court sentenced Barbee to death.
Third and finally, Ukwuachu did not present any expert testimony analyzing the State’s use of the phone records to prove that the State elicited false or misleading testimony from Tagive and Reed. James’ affidavit merely called into question the State’s reliance on the cell phone records; it did not establish that any particular false testimony was elicited. It did not expressly indicate that the State failed to properly account for the difference in time zones or identify any particular instances in the record where the State was mistaken about Tagive’s whereabouts at the times of the calls. Rather, it only established that the State’s use of the records could have led to inaccuracies—which is not the same thing as establishing that false or misleading testimony was actually placed before the jury. James’ affidavit fell short of establishing that the
Barbee’s conviction and sentence were affirmed on direct appeal. Barbee then filed an application for 48
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writ of habeas corpus in 2008, claiming that his Sixth Amendment right to the assistance of counsel was violated by trial counsel confessing his guilt to the jury during closing argument without his knowledge or consent. Barbee alleged that he was abandoned by counsel at the trial stage and that it was structural error, meaning that prejudice should be presumed, citing United States v. Cronic, 466 U.S. 648 (1984). The trial court recommended that relief be denied, concluding that counsel’s decision to focus closing argument on the defensive theory of accident was reasonable in light of the evidence admitted at trial and that Barbee was therefore provided adequate counsel in closing arguments. The Texas Court of Criminal Appeals agreed with the trial court’s recommendation and denied relief with written order. The United States Supreme Court denied certiorari.
art. 11.071 § 5. A legal basis was previously unavailable if it “was not recognized by or could not have been reasonably formulated from a final decision of” a relevant court “on or before” the date the previous application was filed. A legal basis was previously available if it “could have been rationally fashioned” from relevant precedent or if it is founded on “familiar principles articulated in earlier cases” from relevant courts. But a legal basis was previously unavailable if subsequent case law makes it easier to establish the claim and renders inapplicable factors that had previously been weighed in evaluating its merits. Moreover, in addition to establishing the previous unavailability of the legal basis for his claim, the applicant must allege facts that, if true, would entitle him to relief on that basis. The Court then discussed McCoy. McCoy was accused of killing his estranged wife’s son, mother, and stepfather. Although the evidence against him was strong, McCoy maintained that he was innocent and that the victims had been killed by police in a drug deal gone bad. He instructed his attorney to pursue an outright acquittal and not to concede guilt, but the attorney did not comply. McCoy protested to the trial court before and during trial that he was innocent and that his attorney was “selling him out” by making the concession of guilt. McCoy’s protests were futile; the trial court instructed the defense attorney to try the case as he had planned, refused McCoy’s request for time to hire a new lawyer, and cautioned McCoy against making outbursts in front of the jury. Defense counsel ultimately admitted guilt during opening statements, closing statements, and at punishment. McCoy was convicted and sentenced to death. On appeal, McCoy argued that his constitutional rights were violated by his attorney conceding guilt over his objections. The Supreme Court agreed, concluding that the autonomy to decide that the objective of the defense is to assert innocence is reserved for the defendant and that objective cannot be overridden by counsel by conceding guilt. Therefore, once McCoy communicated to the court and his counsel that he objected to counsel’s proposed strategy, “a concession of guilt should have been off the table.” The Supreme Court then turned to prejudice. It said that counsel’s admission of a defendant’s guilt over his express objection is structural error meriting a presumption of
Barbee filed a subsequent writ in 2011, complaining that his ineffective assistance claim was analyzed under Strickland v. Washington, 466 U.S. 668 (1984), rather than the Cronic standard under which the claim was brought. The Texas Court of Criminal Appeals dismissed the application as an abuse of the writ. Barbee also raised this issue in his 2015 federal habeas petition; however, the District Court denied relief, determining that the claim was properly analyzed under Strickland rather than Cronic. After the Supreme Court issued its opinion in McCoy, 138 S. Ct. 1500 (2018), Barbee filed a third writ application, claiming that his attorney violated his Sixth Amendment right to assistance of counsel by making a strategic concession of his guilt over his express objection—a legal basis that was unavailable until 2018 when the United States Supreme Court issued its opinion in McCoy v. Louisiana, 138 S. Ct. 1500. The Texas Court of Criminal Appeals disagreed and dismissed Barbee’s third writ application as an abuse of the writ. Ex parte Barbee, 616 S.W.3d 836 (Tex. Crim. App. Feb 10, 2021) (5:4:0). Writing for the Court, Judge Keller first explained the “previously unavailable legal basis” exception to the bar against subsequent writs: the Court may consider the merits of a subsequent application if it contains sufficient specific facts establishing that the claim has not been and could not have been previously presented because the legal basis for the claim was unavailable when the previous application was filed. Tex. Code Crim. Proc. 49
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prejudice. And in this case, the error was structural because it impacted the framework within which McCoy’s trial proceeded.
either; it was an addition of factors. The Court then addressed McCoy’s purported disclaimer of Supreme Court ineffective-assistance-of counsel (IAC) jurisprudence: “Because a client’s autonomy, not counsel’s competence, is in issue, we do not apply our [IAC] jurisprudence, [Strickland, 466 U.S. 668] or [Cronic, 466 U.S. 648].” The Court said that this disclaimer related to the showing of prejudice “ordinarily” required for IAC claims. Significantly, McCoy did not cite Nixon in connection with its disclaimer and instead contrasted it based on the factual differences between the two cases.
The Court then compared McCoy to Florida v. Nixon, 543 U.S. 175 (2004). Like McCoy, Nixon claimed that his attorney violated his Sixth Amendment right to counsel by conceding his guilt without his consent. But notably, unlike McCoy, Nixon did not expressly object to the strategy; when it was explained to him, he was unresponsive. The Supreme Court held that the concession was not unreasonable given Nixon’s unresponsiveness. It also held that presumption of prejudice would not be “in order based solely on a defendant’s failure to provide express consent to a tenable strategy counsel has adequately disclosed to and discussed with” him. The Court interpreted the Supreme Court’s holding to mean that if Nixon had objected, the concession might have been unreasonable and a presumption of prejudice might have been warranted. The Court explained that McCoy noted that Nixon was not contrary to its holding but was distinguishable because McCoy, unlike Nixon, adamantly objected to the admission of guilt at every opportunity, before and during trial and in and out of court. The Court said that the differences between their trials yielded different analyses. McCoy did not have to show prejudice because, unlike Nixon, (1) McCoy told his attorney that his defensive objective was to assert innocence at trial, (2) he told the trial court before and during trial that his attorney was conceding his guilt against his wishes, and (3) the trial court nevertheless allowed defense counsel to make the concession, causing structural error.
Second, the Court concluded that even if his claim was not previously available, Barbee did not allege sufficient facts to show that his claim meets the requirements of McCoy. Contrary to his assertion, Barbee’s application does not contain “extensive evidence demonstrating that he informed his lawyers that he wished to maintain his innocence.” His exhibits include evidence that he told various people, including his attorneys, that he was innocent, he would not plead guilty, and Dodd killed Lisa and Jayden; he told the forensic psychiatrist that he would rather be executed than have his mother see him “plead guilty”; he complained to the trial court about a “breakdown in communication” with his attorneys; his attorney did not “explicitly” tell him that his closing argument would concede Barbee’s identity as Lisa and Jayden’s killer; and Barbee was “shocked” when he heard the argument. The Court explained that while the facts demonstrated that Barbee told his attorneys that he was innocent, they did not demonstrate that he told them that his defensive objective was to maintain his innocence at trial. Having determined that the subsequent application did not meet the requirements of Article 11.071, Section 5, the Court dismissed it as an abuse of the writ under Section 5(c).
The Court then analyzed Barbee’s claim. First, it concluded that the legal basis for Barbee’s claim was previously available. Specifically, the legal could have been reasonably formulated from existing precedent because McCoy was the logical extension of Nixon, based on the factual distinctions—not legal ones— between the two cases. McCoy did not make it easier to establish a claim; it merely required factually what Nixon explicitly lacked: a defendant’s express objections to a concession of guilt disregarded by counsel and court and aired before a jury during trial. Since the structural error analysis flowed from those requirements, McCoy’s presumption of prejudice was not an abandonment of factors previously weighed,
Judges Newell and Yeary joined Part IV of the Court’s opinion (i.e., that Barbee failed to allege sufficient facts) and otherwise concurred without opinion. Judge Walker filed a concurring opinion. He disagreed that McCoy did not constitute a new legal basis. He argued that McCoy was not a logical extension of Nixon, an ineffective assistance of counsel case. McCoy expressly disclaimed reliance on IAC case law under Strickland and Cronic, and Nixon is part of that case law. Instead, McCoy was concerned with the 50
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defendant’s autonomy under the principles of Faretta v. California, 422 U.S. 806 (1975). Therefore, McCoy could not have been reasonably formulated from relevant case law such as Faretta or its progeny. However, he agreed with the majority that Barbee latest claim did not overcome the statutory procedural bar for subsequent writs because Barbee failed to set out a prima facie case that trial counsel usurped his authority to set the goals of his defense. Therefore, he concurred with the Court’s decision to dismiss the application.
reduced charge of murder and was sentenced to life imprisonment. Thomas did not appeal his conviction. Decades passed. Then, the Texas Court of Criminal Appeals decided Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014), which held that if an order waiving juvenile jurisdiction does not contain factually-supported, case-specific findings, then the order is invalid and the district court never acquires jurisdiction. Following Moon, Thomas filed a writ of habeas corpus, arguing that the juvenile court’s failure to satisfy the requirements set out in Moon rendered the entire criminal proceeding void because the district court never had jurisdiction over him.
D. Juvenile Jurisdiction – Lack of factuallysupported, case-specific findings do not make a juvenile court’s transfer order invalid or deprive the district court of jurisdiction. Steven Thomas was one of several assailants that committed a home invasion double-murder in Houston. The assailants had entered a home yelling “police” and demanding drugs and money. They bound the victims with duct tape, ransacked the home, and fired multiple firearms. Six victims survived but two male victims died of gunshot wounds and asphyxia. A few days later, the same group of assailants committed an armed bank robbery. During flight, the suspects murdered an elderly woman so they could steal her car. Thomas was 16 at the time of both crimes. A month after surrendering to FBI authorities, Thomas turned 17 and was certified to stand trial in federal court as an adult. A jury convicted him of bank robbery and use of a firearm during a crime of violence. One month later, the State filed a petition in the Harris County juvenile court alleging that Thomas, who was now 18, committed capital murder while under the age of 17. The State also asked the juvenile court to waive juvenile jurisdiction and certify the proceeding to district court. A few months later, the State filed an amended petition and amended motion to waive jurisdiction. Thomas meanwhile had turned 19. Following a complete diagnostic study, a hearing on the waiver of jurisdiction, and legal briefing on the due-diligence aspect of transfer (i.e., whether, “from a preponderance of the evidence that after due diligence of the state it was not practicable to proceed in juvenile court before the 18th birthday of the person”), the juvenile court waived its jurisdiction and transferred Thomas’s case to district court. Thomas did not appeal the transfer. Still age 19, Thomas was indicted for capital murder, but he pleaded guilty to the
The Texas Court of Criminal Appeals disagreed and denied Thomas’s writ. Ex parte Thomas, ___S.W.3d___, 2021 WL 1204352 (Tex. Crim. App. Mar. 31, 2021) (8:0:1). Writing for the Court, Judge Newell concluded that although Thomas’s challenge to the jurisdiction of the trial court was cognizable, it nevertheless lacked merit. The Court explained that the juvenile court’s transfer order in this case may have lacked factually-supported, case-specific findings, but that did not make that order invalid or deprive the district court of jurisdiction. The Court gave two main reasons. First, the text of the juvenile transfer statute does not require Moon’s court-made requirement—that transferring juvenile courts set out specific factfindings in the transfer order for transferring the case— to bestow jurisdiction. For a juvenile court to validly waive jurisdiction and transfer a case to a criminal court, it must satisfy the terms of the statute. Under Texas Family Code Section 54.02(a), a juvenile court may transfer to the criminal district court for trial a case involving a person who was 15 years old or older at the time he is alleged to have committed a felony grade offense but who remains a child at the time of transfer. But if the person who is alleged to have committed a felony as a child has reached his 18th birthday, the juvenile court must make the transfer under Section 54.02(j). Section 54.02(a) imposes requirements for transfer to the criminal district court that Section 54.02(j) does not. Likewise, the 54.02(a) determination requires consideration of factors listed in 54.02(f) but 54.02(j) does not require the juvenile court to consider the (f) factors. However, 54.02(h) requires 51
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a juvenile court waiving jurisdiction under (j) to “state specifically in the order its reasons for waiver.” None of these provisions require the juvenile court to recite the underlying facts upon which its reason for transfer is based. Rather, the statutory scheme merely directs the juvenile court to state the reasons for the waiver set out in the statute. The additional language “including the written order and findings of the court” in Section 54.02(h) allows for “findings,” but it does not require case-specific fact-finding beyond a statement of the reasons for transfer. To the extent that language in Moon suggests otherwise, the Court disavowed it.
expansion. Second, Moon is unworkable. It places unnecessary burdens on the system because individual sufficiency review of each factor can lead to internally inconsistent analysis of the reasons for transfer. The statute does not mandate that any particular factor be true, state that the factors are exclusive, or limit the purpose for which the statutory factors may be considered. Moreover, assuming that recitation of other statutory factors satisfies sufficiency review of each individual factor, Moon still requires sufficiency review of the factors collectively. Moon provides no guidance on how to conduct a review when the juvenile court has imported its own factors or when that analysis involves both factual and legal sufficiency. Third, Moon was an outlier. The Legislature’s failure to change the statutory wording in light of longstanding authority (40 years) that a juvenile transfer order need not specify in detail the facts supporting the order is some indication that the Legislature approves of that construction. If the Legislature had wanted to require the juvenile court to recite the facts that support its decision to transfer, it could have easily drafted language to that effect. What the Legislature did do, in response to the Court’s decision in Moon, was repeal Article 44.47 of the Code of Criminal Procedure and add Section 56.01(c)(1)(A) to the Family Code. That took review of these claims away from the Court and created a vehicle for immediate, interlocutory appeal to the courts of appeals and then to the Texas Supreme Court. And the Texas Supreme Court is not bound by Moon.
Second, United States Supreme Court precedent does not require Moon’s court-made requirement for a valid waiver of jurisdiction. In Moon, the Court relied on Kent v. State, 383 U.S. 541 (1966), to explain the underpinning of the Texas transfer statute and to consider how transfer statutes must “measure up” to due process. But Kent dealt with a transfer in which no adversarial transfer hearing was even held; it focused on an arbitrary deprivation of liberty due to an almost complete denial of counsel and the complete lack of an adversarial hearing. And while Kent does note that juvenile-transfer orders must include a statement of the reasons or considerations for waiving exclusive jurisdiction, its “reasons requirement” for juveniletransfer orders did not impose the “show your work” rule that the Court came up with in Moon. Indeed, Kent said the statement need not be formal or necessarily include conventional findings of fact. Thus, Moon constituted a significant expansion of Kent by requiring case-specific fact findings to support a transfer order. Detailed findings are certainly preferable and can be helpful to the appellate court. But it is the hearing itself that prevents the transfer process from being arbitrary; the case-specific factfindings are not necessary to protect a fundamental constitutional right. Kent does not hold otherwise. To the extent that language in Moon suggested that such findings are a fundamental constitutional right, the Court disavowed that language.
The Court reiterated that a juvenile transfer order entered after the required transfer hearing and complying with the statutory requirements constitutes a valid waiver of jurisdiction even if the transfer order does not contain factually-supported, case-specific findings. And in Thomas’s case, the juvenile court conducted a transfer hearing and the transfer order complied with the statute by listing the reasons for the transfer. Consequently, the criminal district court had jurisdiction over the case.
The Court then explicitly overruled Moon, reasoning that stare decisis did not prevent it from doing so. First, Moon was wrongly decided. It was flawed from the outset because neither the statute’s text nor the Supreme Court’s holding in Kent required what Moon required. It was an unjustifiable, court-created
Judge Yeary filed a concurring opinion. He agreed with the Court’s decision to overrule Moon because it was “demonstrably wrong.” However, he explained that he would not hesitate to overrule Moon on account of the court-made doctrine of stare decisis, 52
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which he argued is not compelled by the constitution nor statute.
criminal proceedings. Following a nine-day evidentiary hearing, the court denied relief after applying the twopart test from Strickland v. Washington, 466 U.S. 668 (1984). The court found that trial counsel's performance was not deficient because Kayer had refused to cooperate with his mitigation team’s efforts to gather more mitigation evidence. And, in the alternative, the court held that even if counsel had been deficient, there was no evidence of prejudice. In reaching this conclusion, the court said it had considered Kayer’s assertion of mental illness, physical illness, jail conditions, childhood development, and any alcohol or gambling addictions. The Arizona Supreme Court denied Kayer's petition to review the denial of postconviction relief.
IX. FEDERAL LAW A. Federal appellate court reviewing state inmate’s federal post-conviction claim did not give proper deference to the state court’s decision. George Kayer, Delbert Haas, and Lisa Kester went on a trip to gamble in Nevada. While there, Kayer borrowed money from Haas and lost it gambling. Kayer then devised a plan to rob Haas, but when Kester questioned whether he could get away with robbing someone he knew, Kayer decided to kill Haas. On the way home, Kayer took a detour to a secluded area. After Haas exited the vehicle to urinate, Kayer shot him pointblank in the head. Kayer dragged Haas’ body into bushes and stole his wallet, watch, and jewelry before driving away. When Kayer realized that he had forgotten to take Haas’ house keys, he returned to the scene of the crime. Fearing that Haas might not be dead, Kayer shot him in the head again. Subsequently, Kayer stole a variety of firearms and other things of value from Haas’ home. A jury found Kayer guilty of premeditated first-degree murder and related offenses. After the guilty finding, Kayer refused to fully cooperate with a mitigation specialist. Specifically, he refused to agree to a continuance despite his counsel’s statement that the specialist needed more time to evaluate the case. At sentencing, the judge again asked Kayer whether he would like more time for investigation, but Kayer “refused the offer and stated he would not cooperate with [the specialist] no matter how long sentencing was delayed.” The court proceeded to sentencing. Arizona law authorized a death sentence only if a judge found at least one aggravating circumstance and found no mitigating circumstance sufficient to call for leniency. Finding two aggravating factors (a previous conviction and murder for pecuniary gain) and only one non-statutory factor (importance in his son’s life), the trial judge sentenced Kayer to death. The Arizona Supreme Court affirmed his conviction and sentence.
Kayer then filed a habeas petition in Federal District Court. The District Court rejected Kayer’s IAC claim, concluding that Kayer had not shown prejudice because “he [had] waived an extension of the sentencing date and thereby waived presentation of the full-scale mitigation case.” Moreover, the court reasoned that Kayer's mitigation evidence “fell short of the type of mitigation information that would have influenced the sentencing decision.” A divided Ninth Circuit panel reversed. As to trial counsel’s performance, the panel rejected the state court’s judgment because, in its opinion, Kayer’s attorneys should have begun to pursue mitigation evidence promptly after their appointment. As to prejudice, the court conducted its own review of the evidence and found that trial counsel’s alleged failings likely affected Kayer’s sentence. The court concluded that (1) there was sufficient evidence to establish a statutory mitigating circumstance of mental impairment; and (2) there was a reasonable probability that the Arizona Supreme Court would have vacated Kayer’s death sentence on direct review had it been presented with the mitigating evidence offered at the state postconviction relief hearing. Consequently, there was a reasonable probability that Kayer’s sentence would have been less than death, and the postconviction state court was unreasonable in concluding otherwise. Arizona sought rehearing en banc, which the Ninth Court denied. Arizona then filed a petition for certiorari.
Kayer subsequently filed a petition for postconviction relief in Arizona Superior Court. Kayer argued that he received ineffective assistance of counsel (IAC) because his attorneys failed to investigate mitigating circumstances at the outset of the
The United States Supreme Court reversed and remanded the case to the Court of Appeals. Shinn v. 53
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Kayer, 141 S. Ct. 517 (Dec. 14, 2020) (6:3). In a per curiam opinion, the Supreme Court first addressed the proper framework for assessing IAC claims. Under Strickland, Kayer must show that his counsel provided “deficient” performance that “prejudiced the defense.” In the capital sentencing context, the prejudice inquiry asks “whether there is a reasonable probability that, absent the errors, the sentencer—including an appellate court, to the extent it independently reweighs the evidence—would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” And when an IAC claim is presented in a federal habeas petition, a state prisoner faces additional burdens— including that no relief may be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. The Supreme Court said that because the state court had applied the correct governing legal principle to the facts of Kayer’s case, the question was whether its decision involved an “unreasonable application of ” the Court’s precedent. To meet that standard, a prisoner must show far more than that the state court’s decision was merely wrong; they must show that the state court’s decision is so obviously wrong that its error lies “beyond any possibility for fairminded disagreement.” The Strickland standard is a general standard; therefore, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.
the Supreme Court vacated the Court of Appeals’ judgment. It explained that federal courts may not disturb the judgments of state courts unless “each ground supporting the state court decision is examined and found to be unreasonable.” Applied here, if a fairminded jurist could agree with either the state court’s deficiency or prejudice holding, the reasonableness of the other is irrelevant. Focusing on the state court’s prejudice determination, the Court first determined what arguments or theories could have supported that holding. It said that the most probable was that the new mitigation evidence offered in the postconviction proceeding did not create a substantial likelihood of a different sentencing outcome. The Ninth Circuit generally considered that possibility, but in so doing impermissibly “substituted its own judgment for that of the state court” instead of applying deferential review. While some jurists may have agreed with the Court of Appeals’ view, that is not the relevant standard; it is whether fairminded jurists could take a different view. And the answer to that question was yes. A fairminded jurist could see Kayer’s past conviction involving a gun (an aggravating factor) as having substantial weight in the context of the present murder by shooting. And a fairminded jurist could also reasonably conclude, like the state court, that Kayer’s evidence of mental impairment (a mitigating circumstance) was “hardly overwhelming.” Therefore, the Court of Appeals exceeded its authority in rejecting the state court’s determination that Kayer’s had failed to show prejudice because it was not so obviously wrong as to be “beyond any possibility for fairminded disagreement.”
The Court concluded that the Ninth Circuit had resolved the case in a manner fundamentally inconsistent with the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which restricts the power of federal courts to grant writs of habeas corpus based on claims that were “adjudicated on the merits” by a state court. As the Supreme Court has recognized, the AEDPA framework in cases involving Strickland is important; IAC claims can drag federal courts into resolving questions of state law. The panel had essentially evaluated the merits de novo; it made conclusions without ever framing the relevant question as whether a fairminded jurist could reach a different conclusion. Applying the proper standard of review,
B. Qualified Immunity – Prison officials responsible for Texas-inmate’s confinement were not entitled to qualified immunity because cell conditions were so egregious that they had fair warning that their specific acts were unconstitutional. Trent Taylor was a state inmate in Texas. Taylor alleged that, for six full days, correctional officers confined him in a pair of shockingly unsanitary cells. The first cell was covered in massive amounts of feces: all over the floor, the ceiling, the window, the walls, and even packed inside the water faucet. Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. Correctional officers then moved 54
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Taylor to a second cell, which was extremely cold and equipped with only a clogged drain in the floor to dispose of bodily wastes. Taylor held his bladder for over 24 hours, but he eventually (and involuntarily) relieved himself, causing the drain to overflow and raw sewage to spill across the floor. Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage.
Justice Alito filed a concurring opinion. He argued that the Court should not have granted review because the well-known criteria for granting review were not met in this case. Specifically, the Court’s decision added nothing to the law going forward; it was not clear that the Court’s decision was necessary to protect Taylor’s interests; and the Court’s decision did not conclusively resolve the issue of qualified immunity on the cell-conditions claim. But Justice Alito nevertheless concurred in the judgment because he agreed that summary judgment should not have been awarded on the issue of qualified immunity. A reasonable corrections officer would have known that their conduct—choosing to place and keep Taylor in horrific-conditioned cells, making no effort to have the cells cleaned, and not exploring the possibility of assignment to cells with better conditions—was unconstitutional.
Taylor brought § 1983 action alleging that prison officials housed him in unconstitutional conditions and were deliberately indifferent to his health and safety, in violation of his Eighth Amendment rights, and seeking declaratory and injunctive relief. The officials asserted qualified immunity and moved for summary judgment, which the United States District Court granted. Taylor appealed. The Court of Appeals for the Fifth Circuit affirmed in part and reversed in part; it affirmed all claims at issue except Taylor’s toilet-access claim. It reasoned that, although Taylor had shown that his Eighth Amendment Rights were violated, the prison officials responsible for Taylor’s confinement were entitled to qualified immunity because they did not have “fair warning that their specific acts were unconstitutional” since the law wasn’t clearly established that prisoners couldn’t be housed in cells teeming with human waste for only six days.
Justice Thomas dissented without a written opinion. C. Seizure – Police who shot fleeing woman committed a “seizure” under the Fourth Amendment. Four New Mexico State Police officers arrived at an apartment complex in Albuquerque to execute an arrest warrant for a woman accused of committing white-collar crimes and suspected of being involved in drug trafficking, murder, and other violent crimes. The officers observed Roxanne Torres standing with another person near a Toyota FJ Cruiser in the parking lot of the complex. Officer Richardson Williamson concluded that neither Torres nor her companion was the target of the warrant. As the officers approached the vehicle, the companion departed and Torres—at the time experiencing methamphetamine withdrawal—got into the driver’s seat. The officers attempted to speak with her, but she did not notice their presence until one of them tried to open the door of her car. Although the officers wore tactical vests marked with police identification, Torres saw only that they had guns. She thought the officers were carjackers trying to steal her car, and she hit the gas to escape them. Neither Officer Janice Madrid nor Officer Williamson, according to Torres, stood in the path of the vehicle, but both fired their service pistols to stop her. The two officers fired 13 shots at Torres, striking her twice in the back and temporarily paralyzing her left arm. Steering with her right arm,
The United States Supreme Court reversed the court of appeals’ judgment as to the cell-conditions claim and remanded. Taylor v. Rojas, 141 S. Ct. 52 (Nov. 2, 2020) (per curiam). Although it agreed with the court of appeals holding that the conditions of confinement violated the Eighth Amendment, the Supreme Court concluded that the court of appeals erred in granting the officers qualified immunity. The Supreme Court explained that “[q]ualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.” The prison officials responsible for Taylor’s confinement had fair warning that their specific acts were unconstitutional because, under the extreme circumstances of this case, no reasonable officer could have concluded that it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time. 55
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Torres accelerated through the fusillade of bullets, exited the apartment complex, drove a short distance, and stopped in a parking lot. After asking a bystander to report an attempted carjacking, Torres stole a Kia Soul that happened to be idling nearby and drove to Grants, New Mexico. Police arrested her the next day. She pleaded no contest to aggravated fleeing from a law enforcement officer, assault on a peace officer, and unlawfully taking a motor vehicle.
arrest only requires the application of force—not control or custody—and that any touching, however slight, is enough. The Court said that the analysis does not change because the officers used force from a distance to restrain Torres. The required “corporal seising or touching the defendant’s body” can be as readily accomplished by a bullet as by the end of a finger. The focus of the Fourth Amendment is “the privacy and security of individuals,” not the particular form of governmental intrusion.
Torres later sought damages from Officers Madrid and Williamson under 42 U.S.C. § 1983, which provides a cause of action for the deprivation of constitutional rights by persons acting under color of state law. She claimed that the officers applied excessive force, making the shooting an unreasonable seizure under the Fourth Amendment. The District Court granted summary judgment to the officers. The Court of Appeals affirmed on the ground that “a suspect’s continued flight after being shot by police negates a Fourth Amendment excessive-force claim.”
The Court then explained that the application of the common law rule does not transform every physical contact between a government employee and a member of the public into a Fourth Amendment seizure. A seizure requires the use of force with intent to restrain, as opposed to force applied by accident or for some other purpose. Moreover, the appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain. This test does not depend on either the subjective motivation of the officer or the subjective perception of the suspect. Finally, a seizure by force (absent submission) lasts only as long as the application of force unless the suspect submits. Applying these principles to the facts viewed in the light most favorable to Torres, the officers’ shooting applied physical force to her body and objectively manifested an intent to restrain her from driving away. The Court, therefore, concluded that the officers seized Torres for the instant that the bullets struck her.
The United States Supreme Court vacated the Court of Appeals’ judgment and remanded the case to it. Torres v. Madrid, 141 S. Ct. 989 (Mar. 25, 2021) (5:3). Writing for the Court, Justice Roberts explained that that the Fourth Amendment protects against unreasonable searches and seizures. This case concerned the “seizure” of a “person,” which can take the form of “physical force” or a “show of authority” that “in some way restrains the liberty” of the person. Consequently, the question before the Court was whether the application of physical force is a seizure [under the Fourth Amendment] if the force, despite hitting its target, fails to stop the person. The Court answered “yes.”
The Court then rejected the approach put forth by the officers—that all seizures should be assessed under the “intentional acquisition of control” test—because that approach was not supported by the history of the Fourth Amendment nor the Court’s precedents. The Court also rejected the officers attempt to recast the common law doctrine recognized in Hodari D. as a rule applicable only to civil arrests. The Court reasoned that the common law did not define the arrest of a debtor any differently from the arrest of a felon. Treatises and courts discussing criminal arrests articulated a rule indistinguishable from the one applied to civil arrests at common law. Finally, the Court explained that the officers’ approach would improperly erase the distinction between seizures by control and seizures by force. Each type of seizure enjoys a separate common law pedigree that gives rise to a separate rule. A seizure by acquisition of control
The Court first adopted the common law rule announced in California v. Hodari D., 499 U.S. 621, (1991). According to the Court, its precedents have interpreted the term “seizure” by consulting the common law of arrest, the “quintessential” seizure of the person. In Hodari D., the Court explained that the common law considered an officer’s application of physical force to the body of a person for the purpose of arresting him was itself an arrest—not an attempted arrest—even if the person did not yield. Common law arrests are Fourth Amendment seizures. Moreover, American federal and state courts have held that an 56
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involves either voluntary submission to a show of authority or the termination of freedom of movement. Under the common law rules of arrest, actual control is a necessary element for this type of seizure. Such a seizure requires that “a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result.” But that requirement of control or submission never extended to seizures by force. And as common law courts recognized, any such requirement of control would be difficult to apply to seizures by force. Consequently, the officers’ test will often yield uncertainty about whether an officer succeeded in gaining control over a struggling suspect.
The employee tried to follow the vehicle, but it sped away.
In conclusion, the Court held that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued. But a seizure is just the first step in the analysis. The Fourth Amendment does not forbid all or even most seizures—only unreasonable ones. And here, all the Court decided was that the officers seized Torres by shooting her with intent to restrain her movement. It left open on remand any questions regarding the reasonableness of the seizure, the damages caused by the seizure, and the officers’ entitlement to qualified immunity.
Hines told his family a different story. His sister noticed the blood, and Hines admitted that he had stabbed somebody at the motel—although he described the victim as a male employee who had assaulted him. Despite his inability to pay for a bus ticket just a few days earlier, Hines informed his sister that he had acquired a substantial sum of money. Family members also noticed that he had the keys to Jenkins’s car, which were on a distinctive keychain. According to Hines, he had taken the keys in a struggle with yet another man who had tried to rob him. Hines changed his story again when he surrendered to law enforcement. Before the sheriff started questioning him, Hines volunteered that he had taken the car but had not murdered the woman. Hines changed his mind again and offered to confess if guaranteed the death penalty. The investigation turned up other physical evidence connecting Hines to the crime. Police found Jenkins’s wallet where Hines had abandoned her car. And a search of his motel room revealed stab marks on the walls that were similar in size to the wounds on Jenkins’ body.
Later that afternoon, a group of travelers found Hines next to Jenkins’s broken-down car along the side of the road. They offered to drive him toward his sister’s home in Bowling Green, Kentucky. During the trip, the travelers observed that Hines had dried blood on his shirt; that he was carrying a folded-up jacket; that he seemed really nervous and talked a lot; that he kept contradicting himself; and that at one point, he claimed that he had purchased the car from an “old lady for $300 or $400.”
Justice Gorsuch filed a dissenting opinion, in which Justices Thomas and Alito joined. Justice Gorsuch argued that neither the Constitution nor common sense supported the majority’s definition of a seizure. D. Habeas Corpus – Federal court of appeals violated prohibition on disturbing state court judgment in absence of error lying “beyond any possibility for fairminded disagreement.” Anthony Hines, armed with a hunting knife, was traveling from North Carolina to Kansas when he stopped in the outskirts of Nashville, Tennessee. He checked into a motel, where Katherine Jenkins worked as a maid. In the early afternoon, another visitor, Kenneth Jones, found Jenkins’s body wrapped in a bloody bedsheet in one of the rooms. An autopsy later revealed several knife wounds that included deep punctures to her chest and genitalia. Her money, wallet, car keys, and vehicle were missing. Around the same time, another employee saw a man leaving the motel in Jenkins’s car.
The jury heard all of this evidence at trial. It also heard testimony from Jones, the man who discovered Jenkins’s body. According to Jones, he knew the owners of the motel and had stopped by on the afternoon of the murder. Finding no one in the office, Jones had lingered outside before realizing that he needed to use the bathroom. He returned to the office, took a key, and entered the room. Hines’s counsel stressed to the jury this odd sequence of events. The jury heard discrepancies between Jones’s account of finding the body and the timeline given by first 57
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by casting doubt on Jones’s credibility or portraying him as a viable suspect ignores that Jones’ testimony about discovering the body did not indicate that Hines was the culprit. Ample other evidence did that. If Jones’ credibility mattered, the jury had several good reasons to be skeptical—for example, his peculiar tale of discovering the body; the insinuations of Hines’ attorney; and the discrepancies between Jones’ exact description of finding the body and the account of the first responders. None of these made a difference. Had the Sixth Circuit properly considered the entire record, it would have had little trouble deferring to the Tennessee court’s conclusion that Hines suffered no prejudice. Indeed, the Tennessee court reasonably looked to the substantial evidence of Hines’s guilt, and it reasonably rejected the farfetched possibility that Jones committed and self-reported a gruesome murder, in the presence of a witness, at a place where he was well known to the staff.
responders. The jury ultimately found Hines guilty of first-degree murder. Several years later when Hines sought postconviction review in the state courts, Jones admitted that he was at the motel with a woman other than his wife (as he had been every Sunday for at least two years). After waiting to no avail for a motel employee, Jones helped himself to a room key. Upon finding the body, he quickly returned to his vehicle—a fact confirmed by his companion who watched through the room’s open curtains. Jones then called the authorities, drove his companion home, and returned to the motel to meet the sheriff. Hines’s attorney was aware of Jones’s affair but had decided to spare him the embarrassment of aggressively pursuing the matter. Despite Hines’s insistence that this choice amounted to ineffective assistance of counsel, the Tennessee postconviction court found no prejudice. Sixteen years later, a divided panel of the U.S. Court of Appeals for the Sixth Circuit disagreed and granted habeas relief.
Justice Sotomayor dissented without written opinion.
The United States Supreme Court reversed the Sixth Circuit’s judgment. Mays v. Hines, ___S. Ct.___, 2021 WL 1163729 (Mar. 29, 2021) (8:1). In a per curiam opinion, the Court explained that because a state court considered and rejected Hines’s theory, a federal court shall not grant a writ of habeas corpus unless the earlier decision took an “unreasonable” view of the facts or law. This standard is difficult to meet; “unreasonable” refers to extreme malfunctions in the state criminal justice system. In other words, federal courts are prohibited from disturbing state-court judgments on federal habeas review absent an error that lies “beyond any possibility for fairminded disagreement.” This rule means that a federal court must carefully consider all the reasons and evidence supporting the state court’s decision.
[The. End.]
Here, the Sixth Court did not do that. Rather than considering the substantial evidence linking Hines to the crime—e.g., his flight in a bloody shirt; his possession of the victim's keys, wallet, and car; his recurring association with knives; or his ever-changing stories about tussling with imaginary assailants—the Sixth Circuit instead focused on all the reasons why it thought Jones could have been a viable alternative suspect. Moreover, the Sixth Circuit’s theory that a more aggressive attorney could have changed the result 58
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Judge David Newell was elected to the Texas Court of Criminal Appeals on November 4, 2014. The son of Thomas and Linda Newell, David was born at the Bethesda Naval Hospital in Maryland, though he grew up in Sugar Land, Texas with his much taller, older brother, Robert Newell. David graduated cum laude from William P. Clements High School. He earned his undergraduate degree in English with a concentration in Creative Writing at the University of Houston. He graduated magna cum laude, earning University honors and honors in his major. He received his J.D. from the University of Texas School of Law in 1997 before returning home to work in the Fort Bend County District Attorney's Office. He served as an appellate prosecutor for 16 years, first in Fort Bend County and later in the Harris County District Attorney's Office from 2007 until his election to the Court. Judge Newell has twice served as the Chairman of the Editorial Board for the Texas District and County Attorney's bi-monthly journal, The Texas Prosecutor. He also co-authored a regular byline for the journal, "As the Judges Saw It," a column that analyzed and summarized the significant decisions of the Court of Criminal Appeals and the United States Supreme Court. He served repeatedly on the planning committee for the Advanced Criminal Law Course for the State Bar of Texas. And he has presented the Court of Criminal Appeals Update at the Texas Conference on Criminal Appeals, the TDCAA Criminal and Civil Law Update, and the Texas State Bar's Advanced Criminal Law Course. On the Court, he currently serves as the Chairperson of the Court of Criminal Appeals Rules Advisory Committee. He is also the co-course director, along with Judge Barbara Hervey, for the “Robert O. Dawson Conference on Criminal Appeals,” a biennial criminal appellate seminar for the University of Texas School of Law CLE. Judge Newell is board certified by the Texas Board of Legal Specialization in both criminal law and criminal appellate law. He is also licensed by the State Bar of Texas and admitted to practice before the Fifth Circuit Court of Appeals and the United States Supreme Court. In 2013, David received the C. Chris Marshall Award for Distinguished Faculty from the Texas District and County Attorneys' Association. David and his beautiful wife, Shayne, currently live in the Houston area with their two sons.
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Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course June 24-26, 2021 Hyatt Regency San Antonio, TX
Topic: The New Supreme Court
Speaker:
Gerald Goldstein
Goldstein & Orr 29th Floor Tower Life Building 310 S. St. Mary’s Street, Ste 2900 San Antonio Texas 78205 (210) 226-1463 phone gerrygoldsteinlaw@gmail.com email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
THE SUPREMES Some Hot New Tunes, Some Not So Hot (THE 4TH AMENDMENT, A RIGHT WITHOUT A REMEDY?)
34nd Annual Rusty Duncan Advanced Criminal Law Seminar Hyatt Regency 123 Losoya Street San Antonio, Texas June 18 – 20, 2019 Presented by: GERRY GOLDSTEIN 29th Floor Tower Life Building San Antonio Texas 78205 (210) 226-1463 gerrygoldsteinlaw@gmail.com
GOLDSTEIN & ORR 29TH FLOOR TOWER LIFE BUILDING 310 S. ST. MARY’S STREET, SUITE 2900 SAN ANTONIO, TEXAS 78205
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Table of Contents INTRODUCTION......................................................................................................................... 5 WHAT CONSTUTES A SEARCH FOR 4TH AMENDMENT PURPOSES ........................... 5 CONTINUED VIABILITY OF THE “EXCLUSIONARY RULE” ........................................ 6 Hudson v. Michigan, 547 U.S. 586 (2006): ............................................................................ 7 Herring v. U.S., 555 U.S. 135 (2009): .................................................................................... 9 Davis v. U.S., 564 U.S. 229 (2011): ...................................................................................... 10 PROTECTING THE CITIZENRY FROM ITS PROTECTORS .............................................. 11 U.S. v. Leon, 468 U.S. 897 (1984): ....................................................................................... 12 SUBJECTIVE VS OBJECTIVE INTENT OF THE OFFICER ................................................ 14 COLLECTIVE BAD FAITH .................................................................................................... 14 (WHAT IS GOOD FOR THE GOOSE) .................................................................................... 14 FRANKS-TYPE MISREPRESENTATIONS............................................................................ 15 MATERIAL OMMISSIONS AS MISSTATEMENTS ............................................................ 15 MAGISTRATE MUST BE “NUETRAL AND DETACHED” ................................................ 16 AFFIDAVIT TOTALLY LACKING IN PROBABLE CAUSE ............................................... 16 FACIALLY DEFICIENT WARRANT .................................................................................... 17 RELIABILITY OF THE INFORMANT AND INFORMATION ............................................ 17 MISTAKE OF LAW BY POLICE IS AN EXCUSE ................................................................. 17 Heien v. North Carolina, 135 S.Ct. 530 (2014): ................................................................... 17 “ATTENUATION” OF THE INITIAL ILLEGALITY.......................................................... 18 Utah v. Strieff, 136 S.Ct. 27 (2015): ..................................................................................... 18 UNAUTHORIZED DRIVER’S STANDONG TO COMPLAIN OF THE SEARCH OF A RENTAL VEHICLE .................................................................................................................. 20 Byrd v. United States, 138 S.Ct. 1518 (2018) ....................................................................... 20 District of Columbia v. Wesby, 138 S.Ct. 577 (2018): ......................................................... 21 WARRANTLESS BLOOD DRAW FROM UNCONSCIOUS SUSPECT ............................ 22 Mitchell v. Wisconsin, 139 S. Ct. 2525, 204 L. Ed. 2d 1040 (2019):.................................... 22 DIGITAL IS DIFFERENT ........................................................................................................ 23 Riley v. California, 134 S. Ct. 2473 (2014): ......................................................................... 23 CELL TOWER LOCATION INFORMATION (CSLI) ......................................................... 26 Carpenter v. United States, 138 S.Ct. 2206 (2018): ............................................................. 26 FROM PORCHES TO DRIVEWAYS ..................................................................................... 29 Florida v. Jardines, 569 U.S. 1 (2013): ................................................................................ 29 Collins v. Virginia, No. 138 S.Ct. 1663 (2018): ................................................................... 32 TRACKING WITH A GLOBAL POSITIONING SYSTEM (GPS) ..................................... 33
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U.S. v. Jones, 565 U.S. 400 (2012): ...................................................................................... 34 OVER BREADTH AND GENERAL SEARCHES ................................................................. 35 NEXUS BETWEEN PROBABLE CAUSE AND .................................................................... 37 THE PLACE TO BE SEARCHED ........................................................................................... 37 PROSECUTION SHOULD BEAR THE BURDEN ................................................................. 39 OF DEMONSTRATING “GOOD FAITH” .............................................................................. 39 “GOOD FAITH” RELIANCE ON SUMMONS ....................................................................... 40 “GOOD FAITH” EXCEPTION APPLIES TO WARRANTLESS ADMINISTRATIVE SEARCHES AUTHORIZED BY STATUTE LATER FOUND UNCONSTITUTIONAL . 40 Illinois v. Krull, 480 U.S. 340 (1987): .................................................................................. 40 OTHER WARRANTLESS SEARCHES.................................................................................. 41 City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015): .......................................................... 41 Rodriguez v. United States, 135 S. Ct. 1609 (2015): ............................................................ 43 Akinmboni v. United States, 126 A.3d 694 (D.C. Ct. App. 2015): ........................................ 43 DIGITAL SEARCHES............................................................................................................... 45 USE OF SOPHISTICATED TECHNOLOGY ........................................................................ 46 “GOOD FAITH” MUST BE OBJECTIVE .............................................................................. 47 “UNREASONABLE DELAY” BEFORE PRESENTMENT AS GROUNDS FOR SUPPRESSION OF CONFESSION ......................................................................................... 49 Corley v. United States, 556 U.S. 303 (2009) ....................................................................... 49 STATES ARE FREE TO PROVIDE GREATER PROTECTIONS TO THEIR CITIZENS .... 50 Lego v. Twomey, 404 U.S. 477 (1972). ................................................................................. 50 SEVERAL STATES HAVE REJECTED ANY LEON “GOOD FAITH” EXCEPTION ......... 53 SUBJECTIVE INTENT OF THE OFFICERS ........................................................................ 56 INVADING THE THRESHOLD OF ONE’S HOME............................................................. 59 CONSENSUAL SEARCHES ................................................................................................... 59 REMOVING THE NON-CONSENTING ................................................................................ 59 SPOUSE FROM PREMISIS ..................................................................................................... 59 Fernandez v. California, 571 U.S. 292 (2014). .................................................................... 59 EXIGENT CIRCUMSTANCES ................................................................................................ 60 Kentucky v. King, 563 U.S. 452 (2011)................................................................................. 60 WARRANTLESS BLOOD DRAW ......................................................................................... 62 Missouri v. McNeely, 569 U.S. 141 (2013). .......................................................................... 62 DNA SAMPLE TAKEN AT BOOKING.................................................................................. 64 Maryland v. King, 569 U.S. 435 (2012)................................................................................ 64 DEADLY FORCE AND THE FOURTH AMENDMENT ....................................................... 66 Mullenix v. Luna, 136 S.Ct. 305 (2015) (per curiam)........................................................... 66 EROSION OF THE EXCLUSIONARY REMEDY ................................................................ 68 BURDEN SHIFTING ............................................................................................................... 70 3
THE VANISHING “FRUIT OF THE POISONOUS TREE” DOCTRINE .............................. 70 CONCLUSION ........................................................................................................................... 72
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INTRODUCTION Despite early signs to the contrary, the new majority of the Supreme Court appears on course to continue the slow-but-steady deconstruction of many time-honored Constitutional protections, once considered sacrosanct by fellow lawyers, courts and the citizenry in general. Nowhere has this trend been more evident than with respect to a citizen’s right to privacy. Whether addressing the continuing debate over the appropriate test for what constitutes a 4th Amendment violation in the first instance, or what remedy to apply if we conclude that such a violation has occurred, the future course of protecting our citizens’ Constitutional right to privacy appears to be in jeopardy. The Constitutional protections provided by the 5th and 6th Amendment appear to be fairing not much better. This paper is one lawyer’s modest attempt to address these and other timely issues confronting the Court and our Country in these times of turmoil and crisis. Hopefully, by examining what may be going wrong, together we can find a way to right our ship of state and set her back on course, preserving the rights and liberties our founding fathers intended the Constitution to protect.
WHAT CONSTUTES A SEARCH FOR 4TH AMENDMENT PURPOSES There remains a continuing debate as to precisely what the 4th Amendment right of privacy protects. In one camp are those clinging to the belief that the test for determining whether a search has occurred depends upon whether the police have physically trespassed upon one of the areas expressly enumerated in the Constitution (i.e. persons, houses, papers and effects). See Justice Scalia’s majority opinion in United States v. Jones, 565 U.S. 400 (2012), and Justice Gorsuch’s dissent in Carpenter v. United States, 138 S.Ct. 2206 (2018), where he notes that “[t]he Amendment's protections do not depend on the breach of some abstract ‘expectation of privacy’ whose contours are left to the judicial imagination”: “Under its plain terms, the Amendment grants you the right to invoke its guarantees whenever one of your protected things (your person, your house, your papers, or your effects) is unreasonably searched or seized. Period.” 5
On the other hand, there are those who have a more expansive view, holding to Justice Harlan’s analysis, that the right of privacy protects “people not places,” and that the correct test for determining whether a search has occurred is dependent upon whether the citizen’s “reasonable expectation of privacy” has been invaded.
See Katz v. U.S., 389 347 (1967) (Harlan, J.,
concurring); See also Justice Kagan’s concurrence in Jardines, 569 U.S. 1 (2013). To further complicate the matter, Justice Scalia suggests in Jardines that the two tests are not mutually exclusive, rather the Katz’ “expectation of privacy” test for determining what constitutes a search “is not a substitute for, but…an alternate to the physical intrusion approach.” And then there is the view expressed by Justice Gorsuch as a sitting judge on the 10th Circuit Court of Appeals, before he was appointed to the Supreme Court, that this whole dispute is really a distinction without a difference. “So, it seems that, whether we analyze the ‘search’ question through the lens of the government’s preferred authority — Katz — or through the lens of the traditional trespass test suggested by Jones, they yield the same (and pretty intuitive) result [opening someone’s] email constitute[s] a search.” If a search has occurred, the next step is whether or not that search is one requiring the government obtain a warrant. For this determination, an additional test is performed. The Court must analyze whether, in addition to being a search that invades one’s privacy, the search was required for the promotion of legitimate governmental interests. See Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) citing Riley v. California, 573 U.S. 373, 134 S. Ct. 2473 (2014). Regardless which definition or test the Court ultimately settles upon, the question of what, if any remedy will be applied has been a subject of some debate among the Justices; a matter discussed in greater detail hereafter.
CONTINUED VIABILITY OF THE “EXCLUSIONARY RULE” Once thought to be a given, the concept that evidence acquired as the fruit of illegal police conduct would be suppressed at trial has recently been called into serious question. In a trilogy of cases, Hudson v. Michigan, 547 U.S. 586 (2006), Herring v. U.S., 555 U.S. 135 (2009), and Davis v. U.S., 564 U.S. 229 (2011), the United States Supreme Court has questioned the continued
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viability of the exclusionary remedy for violations of a citizen’s privacy rights, except in limited and very difficult to prove circumstances.1 Since the landmark case of Mapp v. Ohio, 367 U.S. 643 (1961), the exclusionary rule has functioned as the only practical mechanism to discourage and remedy violations of individuals’ rights by law enforcement officers.2
Where evidence was discovered as the result of an
unreasonable (i.e. an unconstitutional) search or seizure, same necessarily mandated the suppression of that tainted evidence, except in certain well-defined cases.3 As Justice Sotomayor recently noted, dissenting in Utah v. Strieff, 136 S. Ct. 2056 (2016): “When ‘lawless police conduct’ uncovers evidence of lawless civilian conduct, this Court has long required later criminal trials to exclude the illegally obtained evidence.” Recently, this seemingly well-settled and time-honored concept has been called into question. Hudson v. Michigan, 547 U.S. 586 (2006): With little fanfare and even less warning, Justice Scalia made the startling revelation that: “We have never held that evidence is ‘fruit of the poisonous tree’ simply because `it would not have come to light but for the illegal actions of the police.'" See Hudson, 547 U.S., at 592 (emphasis supplied) (Scalia, writing for a 5 to 4 majority).4 1 Based upon the Court’s reasoning in Hudson, Herring, Davis, and Heien the majority now seem to require a showing that illegal police conduct resulting in the discovery of incriminating evidence be demonstrably “deliberate,” “culpable,” and “flagrant” in order to warrant the exclusionary remedy. 2 The Court in Mapp held that the exclusionary remedy, "founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice." Commonly referred to as the “imperative of judicial integrity.” See Mapp, 367 U.S., at 660 (Justice Clark, speaking for a 6 to 3 majority, held that “the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments” and “is not only the logical dictate of prior cases, but it also makes very good sense.” Justice Clark notes, as well that “by admitting evidence unlawfully seized, serves to encourage disobedience to the Federal Constitution which it is bound to uphold.” At 667). 3 As Justice Powell noted in U.S. v. Watson, 423 U.S. 411 (1976) "There is no more basic constitutional rule in the Fourth Amendment area than that which makes a warrantless search unreasonable except in a few 'jealously and carefully drawn' exceptional circumstances." at p. 427, Powell, J. concurring. Examples of recognized exceptions to the warrant requirement, include situations involving “exigent circumstances,” making obtaining a warrant difficult, if not impossible, See South Dakota v. Opperman, 428 U.S. 364 (1976), and vehicle searches, See Carroll v. U.S., 267 U.S. 132 (1925) (where the Court created a bright-line rule based upon the exigent circumstances rational). 4 Scalia’s pronouncement is, at best, arguable. See Alito’s subsequent opinion in Davis, where he explicitly calls into question Scalia’s suggestion that the Court had “never held that evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police,” noting that the Court has “abandoned the old, ‘reflexive’ application of the [exclusionary] doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits.” All of which also calls into question Wong Sun’s time honored “fruit of the poisonous tree” doctrine (that
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Previously, the Supreme Court had held in a unanimous opinion by Justice Thomas, that requiring officers with a search warrant to “knock and announce” their presence before entering a residence is a Constitutionally mandated requirement, See Wilson v. Arkansas, 514 U.S. 927 (1995).5 Nevertheless, eleven years later, in an opinion authored by Justice Scalia, for a 5 to 4 majority, the Court determined that violations of the Fourth Amendment’s “knock-and-announce” requirement do not implicate the exclusionary rule. See Hudson v. Michigan, 547 U.S. 586 (2006). This idea, that citizens have Constitutional protections without any real mechanism to remedy their violations, is perplexing.6 The opinion seems to have three lines of reasoning justifying that conclusion. The first is that the social costs of the exclusionary rule (i.e. suppression of material evidence in a criminal prosecution) substantially outweigh the potential deterrent effect of exclusion in knock-andannounce violations. Second, there now exist other means of deterring police actions that violate individual rights, including civil rights suits and civilian review boards. Finally, there is a substantially attenuated causal connection between the failure to announce entry and the recovery of evidence once inside. The Hudson Court reasoned that whether the exclusionary sanction is appropriate in a given case is an issue separate and apart from the question of whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police misconduct in the first place. Scalia writes: “Suppression of evidence…has always been our last resort, not our first impulse. The exclusionary rule generates ‘substantial social costs’…which sometimes include setting the guilty free and the dangerous at large…. We have…repeatedly emphasized that the rule’s
all evidence and information obtained as a result of the police’s illegal conduct are suppressible as fruit of the poisonous tree). 5 In Wilson v. Arkansas, 514 U.S. 927 (1995), Justice Thomas, writing for a unanimous Supreme Court, had held that the “[t]he common law ‘knock and announce’ principle forms a part of the reasonableness inquiry under the Fourth Amendment.” Although it appears that waiting just 15 seconds after knocking, before breaking in, is sufficient to satisfy the knock-and-announce requirement in either the statute or the Constitution. See United States v. Banks, 540 U.S. 31 (2003), Justice Souter, writing for a unanimous Supreme Court. 6 Scalia writes in Hudson that a § 1983 civil rights lawsuit provides sufficient remedy for a 4th Amendment violation, noting that “[w]e cannot assume that exclusion in this context is a necessary deterrence simply because we found that it was a necessary deterrence in different contexts and long ago. That would be forcing the public today to pay for the sins and inadequacies of a legal regime that existed almost half a century ago. Dollree Mapp could not turn to 42 U. S. C. §1983 for meaningful relief.” However, it would seem axiomatic that neither judges or juries are likely to award substantial damages to one whose Constitutional violations have revealed evidence of their guilt in serious criminal activity.
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‘costly toll’ upon the truth-seeking and law enforcement objectives presents a high obstacle for those urging its application.” The opinion in Hudson is perhaps most disturbing for what it portends than what it holds. For many readers, the Court’s opinion foretells a future where constitutional rights are stripped of what may be the only truly effective means of judicial enforcement. If the exclusionary rule does not function to enforce a right, as a practical matter, does that right really exist? Will police and executive policy makers truly be deterred from constitutionally offensive conduct by the threat of a civil rights lawsuit? What other constitutional rights will the Court deem unworthy of a remedy such as the exclusionary rule? Relying upon the Supreme Court’s rationale in Hudson, lower courts have held the exclusionary rule inapplicable in a variety of circumstances. For example, the Ninth Circuit has now held that under Hudson, an officer’s failure to leave a copy of the executed warrant on the premises does not warrant suppression, even if the requirements to serve a copy of the warrant is of a constitutional dimension. See U.S. v. Hector, 474 F.3d 1150 (9th Cir. 2007). The Seventh Circuit, following a Hudson analysis, held that the failure to create a written search warrant, required by the federal telephonic search warrant statute, does not trigger the 4th Amendment’s exclusionary rule. The Fourth Circuit takes Hudson even further, holding that fingerprints taken following an illegal arrest are subject to suppression only if taken for an “investigative,” rather than an “administrative” purpose. See U.S. v. Oscar-Torres, 507 F.3d 224 (4th Cir. 2007). Herring v. U.S., 555 U.S. 135 (2009): Bennie Herring had driven to the Coffee County, Alabama Sheriff's Department to check on his impounded pickup truck . Mark Anderson, an investigator with the Coffee County Sheriff's Department, who had a long and contentious history with Herring, asked the department's warrant clerk to check for any outstanding warrants; the warrant clerk in the neighboring county’s Sheriff's Department was contacted, and advised there was an outstanding warrant. Although the Dale County clerk called back within 15 minutes to warn the Coffee County Sheriff's Department a clerical mistake was made (the warrant had been recalled five months prior),it was too late; Anderson had already arrested Herring and searched his vehicle, discovering firearms and methamphetamine.
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Chief Justice Roberts, writing for another 5 to 4 majority, held Herring’s arrest and the subsequent search based on the invalid warrant did not necessitate suppression of the evidence discovered as a result of this Constitutional error,7 because the mistake was not based on a “systematic error or reckless disregard of constitutional requirements.” Citing Hudson, the Court reasoned that: “Our cases establish that such suppression is not an automatic consequence of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here the error was the result of isolated negligence, attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence.” Davis v. U.S., 564 U.S. 229 (2011): In Davis, Officer Curtis Miller arrested Petitioner Willie Davis for using a false name during a routine traffic stop. Incident to arrest, Officer Miller searched the vehicle and discovered a gun Davis’s jacket. Davis was charged with being a convicted felon in possession of a firearm. Following a jury trial, Davis was convicted and sentenced to 220 months in prison. The U.S. Court of Appeals for the Eleventh Circuit found that while the search was illegal, the evidence found in the vehicle was still admissible. Davis obtained a writ of certiorari on the issue of whether the good-faith exception to the exclusionary rule applies to a search that was authorized by precedent at the time of the search but is subsequently ruled unconstitutional. 8 The Court devotes a considerable amount of time to its pre-Arizona v. Gant searchincident-to-arrest cases because Davis’s arrest pre-dated Gant. At first glance, such an approach would seem most peculiar, until one reads the language which follows. The Court follows a summary of New York v. Belton and similar automobile search-incident-to-arrest cases with a frightening description of the exclusionary rule; not as a personal, individual right, but rather as a tool only to find application when the benefit of deterring future violations of the Fourth Amendment outweigh the heavy social costs of letting the guilty go free and the dangerous to
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Justice Roberts questioned whether there was a Constitutional violation, but for purposes of the decision, assumed a violation, without deciding same. 8 See Arizona v. Gant, 556 U.S. 332 (2009), where Justice Stevens, writing for what amounted to a 5 to 4 majority, held that officers are permitted to conduct a New York v. Belton-type warrantless search of the passenger compartment of a legitimately stopped vehicle only if it was reasonable to believe that the arrestee might access the vehicle at the time of the search, that the vehicle contained evidence of the offense of arrest or that the officers had, at the time, cause to believe evidence of some other crime would be found within the car’s passenger compartment.
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remain at large. The Court adopts this stance not withstanding its well-established precedent that the exclusionary remedy is “synonymous with violations of the Fourth Amendment.” Arizona v. Evans, 514 U.S. 1, 13 (1995) [citing Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560 (1971)]. It is important to note that an officer’s understanding of the law and court decisions undoubtedly requires officers to make subjective judgments in carrying out their duties. However, the Supreme Court has previously made clear that courts should not consider the particular officer’s “subjective intent” in determining probable cause for an arrest and/or search. See Whren v. U.S., 517 U.S. 806 (1996), and in Davis, Justice Alito, speaking for a 7 to 2 majority, holds the officers’ objectively reasonable reliance on binding appellate precedent rendered their conduct inapplicable to the exclusionary rule, noting that for exclusion to be appropriate, the deterrence benefits of suppression must outweigh the rule’s heavy costs. Of significance is Justice Alito’s chiding response to Scalia’s suggestion that the Court has “never held that evidence is ‘fruit of the poisonous tree’ simply because `it would not have come to light but for the illegal actions of the police.'" See Hudson, 547 U.S., at 592. Alito
tersely retorts that: “We came to acknowledge the exclusionary rule for what it undoubtedly is—a ‘judicially created remedy’ of the Court’s own making…We abandoned the old, ‘reflexive’ application of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits…We also recalibrated our cost-benefit analysis in exclusion cases to focus the inquiry on the ‘flagrancy of the police misconduct at issue.”
PROTECTING THE CITIZENRY FROM ITS PROTECTORS Despite this recent trend, the exclusionary rule remains today as the primary vehicle for enforcing compliance with the Fourth Amendment. For over a half century the Court had recognized that the prohibition against admitting illegally obtained evidence9 not only served to deter illegal police conduct, but also maintained the “imperative of judicial integrity” by extricating courts from participation in illegal and unconstitutional police conduct.10
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See Mapp v. Ohio, 367 U.S. 643 (1961), written by Justice Tom Clark, a Texan. As succinctly expressed in Terry v. Ohio, 392 U.S. 1 (1968), “Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the Constitutional rights of citizens by permitting use of the fruits of such invasions.”
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The Supreme Court has repeatedly reiterated that the judiciary stands as the citizens’ only meaningful protection against our protectors. “[Fourth Amendment rights]... are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.... But the right to be secure against searches and seizures is one of the most difficult to protect. Since the officers are themselves the chief invaders, there is no enforcement outside the court.” Illinois v. Gates, 462 U.S. 213, 274-75 (1983) [Brennan, J., dissenting]. In 1984 the Court was confronted with the opportunity to closely re-examine the underpinnings of the exclusionary remedy for illegal police conduct. After all, nowhere does the exclusionary rule, or any other remedy, for that matter, appear in the text of the 4th Amendment prohibition against illegal searches. U.S. v. Leon, 468 U.S. 897 (1984): Over two decades after their landmark decision in Mapp, a majority of the Court, seemingly ignoring Mapp, Gates and their progeny, rejected the time-honored “imperative of judicial integrity” or any justification other than the “deterrence rationale” for excluding illegally obtained evidence from criminal trials, noting that “[t]he rule thus operates as ‘a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal right of the person aggrieved’” See U.S. v. Leon, 468 U.S. 897, 905 (1984). Over the quarter century since, the Court has found application of the exclusionary remedy inappropriate based upon a balancing test, weighing the competing interests of the often guilty accused’s Constitutional rights against society’s competing interest in protecting the safety of the public in general.11 See INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) [refusing to apply the exclusionary rule to deportation proceedings because the deterrent effect was outweighed by the social costs
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A seemingly no-win balancing test, to which the Court would return in a series of cases decades later. See Hudson, Herring and Davis discussed hereafter. Suffice it to say that the outcome would appear a foregone conclusion, when balancing the rights of an apparently guilty defendant (caught with incriminating contraband), against society’s interest in protecting the public from the prospect of “allowing the guilty to go free” or “the dangerous to remain at large.”
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involved in the context of “unique immigration proceedings” that are “preventative as well as punitive”]; U.S. v. Janis, 428 U.S. 433 (1976) [noting evidence illegally seized by state officers not excluded in federal civil tax proceeding as additional deterrence deemed outweighed by social costs]; U.S. v. Calandra, 414 U.S. 338 (1974) [stating exclusionary rule not applicable to grand jury proceedings]; Stone v. Powell, 428 U.S. 465 (1976) [suppression issues are not cognizable in writs of habeas corpus, because the proceeding is so removed from the prior police illegality as to have lost its deterrent effect]. In U.S. v. Leon, a majority of the Supreme Court established the most significant exception to the “exclusionary rule,” allowing use of admittedly illegally obtained evidence where the officer acted in “objective good faith” reliance upon a warrant signed by a neutral and detached magistrate. U.S. v. Leon, 468 U.S. 897 (1984). See also Massachusetts v. Sheppard, 468 U.S. 981 (1984) [holding officer’s reliance on warrant reasonable, since it lacked particularity due to magistrate’s clerical error and magistrate said he would edit the form to include objects sought by police who relied on magistrate’s assertions] and U.S. v. Gomez, 652 F. Supp. 461 (E.D.N.Y. 1987), holding that a “reasonably well-trained officer” could not have determined that a magistrate-authorized search was illegal, under good-faith exception. As the Court in Leon acknowledges, the so-called “good faith” exception does not apply where the magistrate has been misled by the officer who obtained the warrant. See Franks v. Delaware, 438 U.S. 154 (1978) [good faith exception does not apply when determining whether officer obtained a warrant by making material misrepresentations to the magistrate in reckless disregard for the truth] or where the warrant is based upon “affidavits so lacking in evidence of probable cause as to render official belief in its existence entirely unreasonable do not fall within this exception.” See United States v. Fisher, 22 F.3d 574, 578 (5th Cir. 1994). In addition, courts do not consider the Leon “good faith” exception when deciding whether to suppress evidence preindictment, pursuant to a motion for return of seized property. Richey v. Smith, 515 F.2d 1239, 1245 (5th Cir. 1975); Gurleski v. U.S., 405 F.2d 253 (5th Cir. 1968). The rationale for nonapplication of the “good faith” exception here, is that the court is exercising its authority to correct the misconduct of the prosecutor and his agents. Other circumstances under which the “good faith” exception does not apply include situations where the warrant is so facially deficient in particularly describing the place to be searched or the
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things to be seized that the executing officers cannot reasonably presume it to be valid. See U.S. v. Russell, 960 F.2d 421, 423 (5th Cir.), cert. denied, 506 U.S. 953 (1992). While Leon specifically and expressly dealt with an officer’s “good faith” reliance upon a warrant lacking in probable cause (expressing a “preference for warrant practice” among law enforcement), its rationale has been extended to warrantless arrests and seizures, as well. See Davis and Herring, discussed supra. See also Illinois v. Krull, 107 S.Ct. 1160 (1987). See contra U.S. v. Winsor, 846 F.2d 1569 (9th Cir. 1988) (en banc).
SUBJECTIVE VS OBJECTIVE INTENT OF THE OFFICER The Court notes that “[t]he officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable...and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.” Leon, 468 U.S. at 922-23.12 How one determines an officer’s good faith without evaluating his or her subjective intent, is a question left for another day.
COLLECTIVE BAD FAITH (WHAT IS GOOD FOR THE GOOSE) Just as courts may cumulate officers’ knowledge to determine whether probable cause existed to justify a search, officers obtaining or executing a warrant may not insulate their knowledge or good intentions from fellow officers acting in bad faith. Instead, according to the Court in Leon: “It is necessary to consider the objective reasonableness, not only of the officers who eventually executed a warrant, but also of the officers who originally obtained it or who provided information material to the probable cause determination. Nothing in our opinion suggests, for example, that an officer could obtain a warrant on the basis of a “bare bones’ affidavit and then rely on colleagues who are ignorant 12
In Whren v. United States, 517 U.S. 806 (1996) a unanimous Supreme Court held that courts do not look to the officer’s subjective intent in determining probable cause for a search or seizure, noting that “subjective intentions play no role in ordinary probable cause Forth Amendment analysis.”
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of the circumstances under which the warrant was obtained to conduct the search....” Leon, 468 U.S. at 923 n.24. As the Court recognized in Franks v. Delaware, 438 U.S. 154 (1978) the “...police [can]not insulate one [sic] officer’s deliberate misstatement merely by relaying it through an officer-affiant personally ignorant of its falsity.” See also U.S. v. Cortina, 630 F.2d 1207, 1212, 1217 (7th Cir. 1980) [the good faith exception would become a “Maginot Line”, laughingly circumvented by police if courts were to insulate falsehoods in an affidavit from invalidating a warrant simply because the executing officer was unaware of the lies]; U.S. v. Calisto, 838 F.2d 711, 714 (3d Cir. 1988) (en banc) [quoting Franks “police [can] not insulate one officer’s deliberate misstatement...”]; U.S. v. Coplon, 185 F.2d 629, 640 (2d Cir. 1950) [matters obtained through a violation of law by one official may not be introduced in evidence by the prosecution]. Furthermore, evidence which is based on information which is the product of an illegal search cannot serve as probable cause for the issuance of a search warrant entitling the executing officers to good faith reliance. U.S. v. Vasey, 834 F.2d 782 (9th Cir. 1981). Moreover, this “objective reasonableness” standard must be applied to all officers involved, not merely those who executed the warrant, but also to those who obtained or provided information to secure it. Leon, 468 U.S. at 923 n.1; see also U.S. v. DeLeon-Reyna, 898 F.2d 486 (5th Cir. 1990).
FRANKS-TYPE MISREPRESENTATIONS The Leon Court “noted” that the deference accorded to a magistrate's finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based. Leon, 468 U.S. at 317. “Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.” Leon, 468 U.S. at 923.
MATERIAL OMMISSIONS AS MISSTATEMENTS Furthermore, material omissions from the officer’s affidavit have been considered equivalent to misstatements. United States v. Martin, 615 F.2d 318, 328 (5th Cir. 1980). “[R]ecklessness
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can in some circumstances be inferred directly from the omission itself.” United States v. Tomblin, 46 F. 3d 1369 (5th Cir. 1995).
MAGISTRATE MUST BE “NUETRAL AND DETACHED” The Leon Court also recognized the “good faith exception” to the exclusionary rule should not apply where the issuing magistrate wholly abandoned his role as a “neutral and detached” judicial officer. Leon, 468 U.S. at 923 citing Lo-Ji Sales Inc. v. New York, 442 U.S. 319 (1979) (magistrate utilizing prepared form warrants joined and led search); but see U.S. v. Orozco-Prader, 732 F.2d 1076, 1088 (2d Cir.), cert. denied, 469 U.S. 845 (1984) (judge was neutral and detached despite his statement at time of issuing the search warrant that government agents and U.S. Attorney “know proof and know significance ... and therefore the court has to accept their representations without question”]; U.S. v. Rome, 809 F.2d 665 (10th Cir. 1987) (the Magistrate’s failure to follow letter of Rule in issuing telephonic warrant by neglecting the requirements of (1) a verbatim record (2) a “duplicate original warrant” (3) particularity and (4) his immediate signature of the “original warrant” did not abandon detached and neutral rol); U.S. v. Breckenridge, 782 F.2d 1317 (5th Cir. 1985) (stating a neutral and detached magistrate who failed to read warrant affidavit had not abandoned his judicial role and did not spoil officer’s good faith reliance on warrant); and U.S. v. Harper, 802 F.2d 115 (5th Cir. 1986).
AFFIDAVIT TOTALLY LACKING IN PROBABLE CAUSE The Leon Court further indicated that the “good faith exception” to the exclusionary rule would not apply where the warrant affidavit was so totally lacking in probable cause as to make any reliance thereupon unreasonable. See Illinois v. Gates, 462 U.S. 213 (1983). “Nor would an officer’s manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable’.” Leon, 468 U.S. at 923.
16
See People v. Mitchell, 678 P.2d 990 (Colo. 1984) (Colorado “good faith” statute inapplicable where individual arrested and searched on strength of arrest warrant “totally devoid of factual support”). “...The warrant was void not because the facts supporting it fell somewhat below the Constitutional threshold of probable cause, but so far as the record shows, because there were no facts at all to support its issuance.” Mitchell, 678 P.2d at 2004. See also U.S. v. Cardall, 773 F.2d 1128 (10th Cir. 1985) (a warrant should not be considered to be so deficient as to defeat an officer’s “good faith” reliance upon it unless the underlying affidavit is totally devoid of factual support); Cassias v. State, 719 S.W.2d 585 (Tex. Crim. App. 1986) (Court holds that, under the “totality of the circumstances”, the “facts and circumstances presented... are too disjointed and imprecise to warrant…belief that [drugs] would be found at the described residence”).
FACIALLY DEFICIENT WARRANT The Court in Leon also recognized that reliance may be unreasonable where the warrant is “facially deficient,” such as failing to particularize the place to be searched or the things to be seized. Leon, 468 U.S. at 923.
RELIABILITY OF THE INFORMANT AND INFORMATION A mere statement by law enforcement that affiants have received reliable information from a credible source is insufficient to provide a substantial basis for determining probable cause. Illinois v. Gates, 462 U.S. 213, 239 (1983).
MISTAKE OF LAW BY POLICE IS AN EXCUSE Heien v. North Carolina, 135 S.Ct. 530 (2014): Heien involved a traffic stop stemming from the initiating police officer’s misinterpretation of a North Carolina statute involving break light requirements. The officer believed that the statute required all lights on the rear of the vehicle to be in good working order. However, North Carolina did not require all rear brake lights to function, but rather only one break light.
17
The majority opinion, written by Chief Justice Roberts, held that the police officer’s objectively reasonable mistaken interpretation of an ambiguous statute would excuse any 4th Amendment violation. That ruling is interesting, because the Court finds that a reasonable mistake of law by law enforcement personnel does not violate the Fourth Amendment, while it is wellsettled that a citizen’s “ignorance of the law is no excuse.” In her dissent, Justice Sotomayor touches on the potential consequences of the majority’s opinion, noting that the exclusionary rule “is a remedial concern, and the protections offered by the Fourth Amendment are not meant to yield to accommodate remedial concerns. Our jurisprudence draws a sharp ‘analytica[l] distinct[ion]’ between the existence of a Fourth Amendment violation and the remedy for that violation.” Hein v. North Carolina, 135 S.Ct. 530, 545 (2014) (Sotomayor, J., dissenting) (citing Davis, 564 U.S. at 243-44). A concept that has come back to haunt both the Justice and those particularly concerned with the preservation of Constitutional rights and remedies. Judge Gorsuch’s prescient dissent while he was serving as a judge on the 10th Circuit Court of Appeals in United States v. Nicholson, 721 F.3d 1236 (10th Cir. 2013), abrogation recognized 630 Fed. Appx. 873, anticipated Chief Justice Robert’s 8 to 1 opinion in Heien v. North Carolina. Dissenting from a majority holding that an officer’s seizure, based upon a mistake of law, is per se a violation of the 4th Amendment, Judge Gorsuch opines: “My colleagues suggest that an investigative detention resting on an officer’s mistake of law always violates the Fourth Amendment—even when the law at issue is deeply ambiguous and the officer’s interpretation entirely reasonable. Having found a Fourth Amendment violation, they proceed to order the suppression of all evidence found during the detention and direct the dismissal of all charges. Respectfully, I have my doubts.” Nicholson, 721 F.3d at 1247 (emphasis supplied) (Gorsuch, J., dissenting).
“ATTENUATION” OF THE INITIAL ILLEGALITY Utah v. Strieff, 136 S.Ct. 27 (2015): There had been an anonymous message left on a drug tip line that narcotics activity was taking place at a residence. Id. at 536. Throughout the week, an officer monitored the home for about 3 hours total and observed what he felt was suspicious “short term traffic” at the home. Id. Based upon this information the officer concluded that the traffic indicated possible drug sales activity. During his observations, the officer did not see Strieff enter the home but saw him leave 18
the residence and walk toward a convenience store. The officer ordered Strieff to stop so that he could ask what was going on in the home. The officer asked Strieff for his identification, called his license into the police dispatcher, and discovered Strieff had an outstanding “small traffic warrant.” Id. The officer arrested Strieff based on this information and found a baggie of methamphetamine and drug paraphernalia during the search incident to arrest.
The State
acknowledged that the Terry-type stop was without probable cause or reasonable suspicion but argued the discovery of the valid outstanding traffic warrant “attenuated” the initial police illegality. On February 22, 2016, the first oral arguments were heard on the case since Justice Scalia’s passing. The government argued that the officer’s stop was a reasonable and good faith mistake and that suppression would harm society far more than deterring similar mistakes. Justice Thomas, writing for a 5 to 3 majority, held that despite the uncontested fact the officer acted purposely without reasonable suspicion in stopping Strieff, the resulting discovery of the outstanding traffic warrant, “attenuated” that illegality warranting admission of the methamphetamine, glass pipe and triple beam scale discovered by the search of his person, incident to the arrest on the outstanding warrant. Justice Sotomayor expressing her exacerbation in dissent, noted that 80% of the population in Ferguson, Missouri has outstanding traffic warrants and that in the past the Court had not hesitated to suppress evidence which constituted the fruit of police illegality. “When ‘lawless police conduct’ uncovers evidence of lawless civilian conduct, this Court has long required later criminal trials to exclude the illegally obtained evidence.” (Sotomayor, J., dissenting). Sotomayor caustically chides the Court’s insensitivity to the plight of those systematically subjected to such police intimidation, noting: "We must not pretend that the countless people who are routinely targeted by police are 'isolated.' They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but."
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UNAUTHORIZED DRIVER’S STANDING TO COMPLAIN OF THE SEARCH OF A RENTAL VEHICLE Byrd v. United States, 138 S.Ct. 1518 (2018) Tarrance Byrd’s fiance, Latasha Reed rented a Ford Fusion from Budget rent-a-car in her name as the only authorized driver. She walked out of the rental office and handed the rental car keys to Byrd, who as luck would have it, was a convicted felon (for weapons and drugs). Byrd had an outstanding warrant for a probation violation, and if that was not enough, Byrd had no valid driver’s license. Byrd took the keys and drove directly home, picked up a laundry bag containing 49 bricks of heroin and put the bag in the trunk of the rental vehicle. A State Trooper stopped Byrd, because he was “suspicious of Byrd for driving with his ‘hands at the 10 and 2 position’ on the steering wheel.” A search of the trunk revealed the drugs. Justice Kennedy, writing for a unanimous Court held: “[T]he mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy in that vehicle.” However, the Court remanded the case for a determination as to whether “one who intentionally uses a third party to procure a rental car by fraudulent scheme for the purpose of committing a crime is no better situated than a car thief.” As might be expected, on remand the 3rd Circuit held the search of the rental vehicle’s trunk would be justified if Ms. Reed’s fraudulent use of a straw renter deprived Byrd of standing (legitimate expectation of privacy), or if probable cause existed to conduct the search, even if Byrd had standing, or if Byrd consented to the search of the car’s trunk, remanding the case back to District Court with instruction that: “As any one of the three grounds discussed would justify the denial of Byrd’s motion to suppress if supported by a more developed record, we will remand this case to the District Court for further proceedings consistent with this opinion.”
20
District of Columbia v. Wesby, 138 S.Ct. 577 (2018): In District of Columbia v. Wesby, the D.C. Metropolitan Police Department responded to a noise complaint. After hearing loud music, the police entered the home. Inside, the officers found partygoers drinking and watching “scantily clad women with money tucked into garter belts.” The individual hosting the party aptly named “Peaches” was then confronted by the police, who inquired whether she was the owner of the home. “Peaches” acknowledged that she was in the process of renting the property. The actual owner of the home was contacted and confirmed that they had not given consent or permission for the party. As a result, the police arrested the partygoers for trespassing. Ultimately, all charges were dropped and the partygoers sued for false arrest. Among the questions presented to the court was whether the officers had probable cause to arrest the party goers for unlawful entry under D.C. law, which at the time required that the arrestees knew or should have known that they entered the house against the will of the owner. The party goers claimed they were present on the premises relying in good-faith on the invitation of one who had apparent authority, a claim the D.C. District Court found to be valid. Another issue was whether the District’s law was so clearly established
thearresting officers were
precluded from immunity. Justice Thomas, writing for a unanimous Court, held that “[t]he police officers had probable cause to arrest several of the partygoers” and that the officers were entitled to qualified immunity.”13
The issue of law enforcement officers entitlement to qualified immunity from liability for their Constitutional violations has recently come into considerable debate as the result of the proliferation of police deadly encounters between police and African American and Latino suspects and in a per curium opinion the Supreme Court recently recognized that such immunity protection is not absolute. See Taylor v. Riojas, 592 U.S. __ (2020), where the Court found that officers who placed an inm ate into a solitary cell covered in feces and requiring him to sleep nude on the feces covered cell for 3 days were not entitled to even qualified immunity. “Confronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution. We therefore grant Taylor’s petition for a writ of certiorari, vacate the judgment of the Court of Appeals for the Fifth Circuit, and remand the case for further proceedings consistent with this opinion.” Slip Op. p. 3. Justice Thomas dissented and Alito, J., writes a concurring opinion placing form over substance by stating that the Supreme Court should not review a Court of Appeals decision that applies the correct legal 13
21
WARRANTLESS BLOOD DRAW FROM UNCONSCIOUS SUSPECT Mitchell v. Wisconsin, 139 S. Ct. 2525, 204 L. Ed. 2d 1040 (2019): Police found Mitchell walking near a beach after receiving reports he appeared intoxicated before he had gotten into a van and drove away. Police officers noted Mitchell had trouble maintaining his balance and speaking, and he admitted to drinking before driving. Officers arrested him and took him to a hospital to have his blood drawn after determining based on his physical condition it would be unsafe to perform a field sobriety test. At the hospital Mitchell was unconscious. Nonetheless, the officer read a form entitled “Informing the Accused” to the unconscious Mitchell and proceeded with the blood draw, pursuant to Wisconsin’s implied consent law. The Supreme Court, in a four-justice plurality opinion by Justice Alito, held that when a driver is unconscious and cannot be given a breath test, the exigent circumstances doctrine generally allows a blood test without consent or a warrant. Mitchell v. Wisconsin, 139 S. Ct. 2525, 204 L. Ed. 2d 1040, (2019). The Court made clear, however, that they were not addressing exigent circumstances involving a broad category of driving under the influence cases, only the instance of an unconscious motorist. The focus of the majority opinion was the necessity of collecting evidence before it dissipated, and the compelling public interest in deterring drunk driving. The Court’s discomfort in approving a blanket exception to the warrant requirement is obvious in its parsing and limiting language, and inclusion of counter examples that would not justifyimplementingexigent circumstance warrantless blood draws. Moreover, the Court remanded the case for further proceedings to determine if the police would have sought a BAC test first before considering a blood draw and to determine if a warrant application would have labored the police officer’s other duties. Justices Sotomayor, Ginsburg, and Kagan vigorously dissented, noting that technology is rapidly diminishing the burden and delay in procuring a search warrant, portending that the Court
standard, regardless how disgusting, offensive or unconstitutional the particular prison conditions may have been,
22
may revisit this limited exception to the warrant clause in the future. Justice Gorsuch dissented, criticizing the majority’s failure to address the issue of Wisconsin’s implied consent law.
DIGITAL IS DIFFERENT Riley v. California, 134 S. Ct. 2473 (2014): During a valid traffic stop, the police discovered that Riley was driving on a suspended driver’s license. Based upon “department policy,” the vehicle was impounded and an inventory search was conducted. A loaded firearm was found under the hood of Riley’s vehicle and he was arrested. Incident to arrest, Riley was searched and a cell phone (“smart phone”) was found in his pocket. The arresting officers searched the cell phone’s contents without a warrant.
The cell phone
content searches identified videos and photos showing an affiliation with a gang (“the Bloods”) and other incriminating evidence. All of which was offered at Riley’s trail. Under the Court’s prior precedent, officers may search and seize items found on the person of an arrestee (or within his or her reach), incident to that person’s lawful arrest, including any writings, journals or other items found on their person, See Chimel v. California, 395 U.S. 752 (1969). In a surprising unanimous decision, the Chief Justice wrote for the Court holding that digital content is very different inrespect to what arresting officers may generally searchincident to a valid arrest. . For example, it is well settled arresting officers are entitled to read and review any notes, writings and/or ledgers seized from the arrestee’s person or within his or her immediate reach. However, when it comes to digital devices, such as cell phones or computers, the vast amount of personal information that may be stored on such devices warrants a different result. As the Chief Justice notes: “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’...The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.” (emphasis supplied).
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DIGITAL IS DIFFERENT, BUT NOT AT THE BORDER Alasaad v. Mayorkas, 988 F.3d 8 (C.A.1 (Mass.), 2021) In the present case, a civil suit attempted to enjoin U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) policies. Both policies address border searches of electronic devices and differentiate between “basic” and “advanced” searches. Basic searches are permitted with or without suspicion; whereas, Advanced searches should only be performed on reasonable suspicion of violations of the law. Both policies also allow officers or agents to detain electronic devices for a reasonable time based on the particular circumstances of the search. It is uncontested that these policies contain no meaningful differences. The suit was filed by ten U.S. citizens and one lawful permanent resident. Appellants electronic devices were seized and searched by CBP or ICE on one or more occasions. Appellants assert these searches and seizures violated both the First and Fourth Amendments and point to Riley that searches of electronic devices require a warrant. The Court explains Riley does not implicate border searches. Additionally, the holding in Riley did not preclude exceptions.
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The 1st Circuit held neither a warrant nor probable cause is required for searches of electronic devices at the border pointing to various other circuit courts which have reached the same conclusion—11th, 4th, and 9th.14 Further, the Court states agents and officers may perform “routine” searches at the border without reasonable suspicion, and that only “non-routine”, more intensive searches examinations of devices contents requires reasonable suspicion which must be determined on a case by case basis. Although the Court acknowledges electronic devices contain “a trove of sensitive personal information,” those concerns are tempered by the fact that the searches are taking place at the border, where the “Government's interest in preventing the entry of unwanted persons and effects is at its zenith.” United States v. Flores-Montano, 541 U.S. 149 (2004). The Supreme Court has repeatedly said that routine searches “are reasonable simply by virtue of the fact that they occur at the border.” United States v. Ramsey, 431 U.S. 606, 616, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977) Going further, the border search exception's purpose is not limited to interdicting contraband; it serves to bar entry to those “who may bring anything harmful into this country” and then gives as examples “whether that be communicable diseases, narcotics, or explosives.” United States v. Montoya de Hernandez, 473 U.S. 531, 539-40, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985). The Court defers to Congress to pass laws related to what is or is not acceptable in terms of searches and seizures at the border. When it comes to the period the electronic device may be seized, is a question of fact addressed under the concept of reasonableness and therefore requires a case-by-case analysis based on the circumstances.
14
United States v. Vergara, 884 F.3d 1309, 1311-12 (11th Cir. 2018); United States v. Aigbekaen, 943 F.3d 713, 719 n.4 (4th Cir. 2019); United States v. Cano, 934 F.3d 1002, 1016 (9th Cir. 2019), petition for cert. filed (Jan. 29, 2021) (No. 20-1043). 25
CELL TOWER LOCATION INFORMATION (CSLI) Carpenter v. United States, 138 S.Ct. 2206 (2018): Typically cell service providers such as AT&T, Verizon, Sprint, and T-Mobile utilize cell towers to facilitate their communication network.15 Cell phones search for the nearest cell tower to transmit and receive digital communications.16 Generally, these cell service providers maintain this data for approximately 5-years. Retrieving or mining this digital information provides an approximate location of a cell phone at a given time.17 Law enforcement uses this historical location information to demonstrate where a particular cell phone (and generally the subscriber/owner/user of that cell phone) was located. While investigating a string of 9 armed robberies targeting Radio Shack and T-Mobile retail stores in Michigan and Ohio between 2010 and 2011, the FBI sought and obtained this location data for suspects covering a 127-day period during the time the robberies took place. The Government obtained the digital records pursuant to a disclosure order under the Stored Communications Act of 1986,18 rather than by securing a warrant based upon probable cause. Using that data, the FBI produced maps placing Carpenter’s phone near 4 of the charged robberies at the time they were committed.
15
Cell phone service providers such as AT&T, Sprint, Verizon and T-Mobile connect to their customers’ cell phones by means of a series of cell towers which pass the communications between mobile phones. As one travels from one locale to another, the smart phone communicates with the nearest cell tower, whether it is in use, or not. The cell service providers maintain this digital data reflecting this information (known as CSLI) for the primary purpose of maintaining this communication system. A corollary use of this digital data is to approximate the location of the cell phones communicating with the provider’s cell towers is utilized by both commercial entities and law enforcement agencies. 16 The cell phone will search for the nearest cell tower, whether it one is communicating conversations, texts or any digital data, or not. As one travels from one point to another, one’s cell phone is constantly seeking out the nearest cell tower in order to maintain the strongest signal. 17 This location information is only approximate and will only reveal whether the particular cell phone is within that cell towers range, which is usually some 2 to 5 miles, depending on the concentration of that provider’s towers, the more towers in that area, the more accurate the location data. There are other variables as well, such as during times of heavy traffic, weather conditions and the like, a cell tower will pass on that transmission to the nearest available tower in order to continue one’s service, which would give the false impression as to the approximate location of that particular cell phone. 18 The Stored Communications Act of 1986, 18 U.S.C. §§ 2701-2712, permits law enforcement to obtain CSLI by summons, without probable cause or a warrant. Rather the statute permits a summons process without notice to the subscriber with only a showing that the governmental entity “offers specific and articulable facts showing that there are reasonable grounds to believe that the…records or other information sought, are relevant and material to an ongoing criminal investigation.’
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Previously the Supreme Court held that bank records actually belong to the bank, See U.S. v. Miller, 425 U.S. 435 (1976), and telephone toll records belong to the telephone service provider. See Smith v. Maryland, 425 U.S. 435 (1976). A concept that became known as the “third-party doctrine.” Writing for a 5 to 4 majority, Chief Justice Roberts first interestingly points out that “[t]here are 396 million cell phone service accounts in the United States—for a Nation of 326 million people.” Rejecting the notion that the third-party doctrine the Court applied to telephone toll records captured on the pen register in Smith v. Maryland could be applied to the sophisticated cell phone location information utilized to determine Carpenter’s location during the critical period relating to the armed robberies, the majority notes this new technology "has afforded law enforcement a powerful new tool to carry out its important responsibilities. At the same time, this tool risks Government encroachment of the sort the Framers [of the US Constitution], after consulting the lessons of history, drafted the Fourth Amendment to prevent.” “[S]eismic shifts in digital technology made possible the tracking of not only Carpenter’s location but also everyone else’s, not for a short period but for years and years. Sprint Corporation and its competitors are not your typical witnesses. Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible. There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today.” Apparently relying on Alito’s concurring opinion in U.S. v. Jones, 565 U.S. 400 (2012) (regarding monitoring a GPS device), Roberts’ notes that the “[c]ourt has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements.” “In fact, historical cell-site records present even greater privacy concerns than the GPS monitoring considered in Jones: They give the Government near perfect surveillance and allow it to travel back in time to retrace a person's whereabouts.”19 As in Riley v. California,20 the Chief Justice goes on to hold that “[b]efore compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s obligation is a familiar one—get a
19
Nevertheless, Justice Alito dissents from the Chief Justice’s opinion. Chief Justice Roberts requotes his language from Riley v. California (the cell phone search case), noting that “[a]llowing government access to cell-site records-which ‘hold for many Americans the 'privacies of life-contravenes’” those citizens’ expectations of privacy. 20
27
warrant.” (emphasis supplied).21 Justices Kennedy, Thomas, Alito and Gorsuch each write separate and, at times caustic, dissents. Justice Thomas first bashes the majority’s reliance on the “reasonable expectation of privacy” test for what constitutes a search, and then, agreeing with Justice Kennedy’s lead dissent, goes on to suggest that under the third-party doctrine he would have held that “[b]y obtaining the cell-site records of Metro P.C.S. and Sprint, the Government did not search Carpenter’s property,” the records belonged to the provider. Justice Alito, in dissent distinguished the Stored Communications Act summons from an actual search, noting that: “The Court ignores the basic distinction between an actual search (dispatching law enforcement officers to enter private premises and root through private papers and effects) and an order merely requiring a party to look through its own records and produce certain documents—must every grand jury subpoena duces tecum be supported by probable cause?” While recognizing the dilatory effect of new technology on a citizen’ reasonable expectation of privacy, Justice Alito expressed the view that on balance the cost to judicial economy and law enforcement efficiency were of paramount concern. “I share the Court’s concern about the effect of new technology on personal privacy, but I fear that today’s decision will do far more harm than good. The Court’s reasoning fractures two fundamental pillars of Fourth Amendment law, and in doing so, it guarantees a blizzard of litigation while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely.” Justice Gorsuch’s dissent is more complex. On the one hand Gorsuch finds that Miller and Smith’s “third-party doctrine” was not consistent with the original meaning of the 4th Amendment and there is no basis, either historically or in the text of the 4th Amendment to resort to the “reasonable expectation of privacy” test relied upon by the majority. On the other hand, in what reads more like a concurrence, Gorsuch opines these cell phone location records are the “property”
21
Responding to some of the concerns expressed by the dissenters, the Chief Justice took considerable pain to point out that their opinion was not intended to “affect other parts of the third-party doctrine, such as banking records, nor does it prevent collection of cell tower data without a warrant in emergencies or for national security issues”.
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of the cell phone owners, and accordingly the 4th Amendment would require a warrant to obtain same. An apparent nod to Scalia’s property-trespass test espoused by Justice Thomas. On remand, the 6th Circuit affirmed, citing the officers’ good faith reliance on the Stored Communications Act of 1986 and Carpenter was sentenced to 116 years in prison. “The unconstitutionality of the Government’s search was not clear until after the Supreme Court reversed our decision....Because these agents reasonably relied on the Stored Communications Act (SCA), we AFFIRM the judgment of the district court.” In a post-Carpenter case, the Texas Court of Criminal Appeals tackled the issue of whether a person is entitled to a reasonable expectation of privacy in real-time cell site location information (CSLI) stored in a cell phone’s electronic storage. See Sims v. State, 569 S.W.3d 634 (Tex. Crim. App. 2019). Sims was charged with the murder of his grandmother, Annie Smith, after police officers witnessed Sims and his girlfriend purchasing items at a Walmart with the victim’s credit card and driving off in her vehicle. Officers were able to “ping” Sims’s cell phone in order to obtain his location information without a warrant by using an “Emergency Situation Disclosure” form provided by Sims’s wireless carrier. The Court of Criminal Appeals, relying on Carpenter reasoned these cases must be determined on a case-by-case basis. The CSLI data collected in Carpenter consisted of seven days of surveillance, and thus was long-term, which is distinguished from the location data collected in Sims which consisted of less than three hours of real-time CSLI. Furthermore, Sims did not have a legitimate expectation of privacy in his physical movements or location.
FROM PORCHES TO DRIVEWAYS THE “CURTILAGE” OF A HOME Florida v. Jardines, 569 U.S. 1 (2013):
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Based on an uncorroborated, anonymous tip, officers of the Florida Bureau of Investigation brought their drug sniffing dog by the name of “Franky” to the front porch of Joeliss Jardines’s home in an attempt to determine if there were drugs inside the home. The dog alerted, a warrant was obtained, and the search of Jardines’s home revealed marijuana growing inside. While the issue on which certiorari was granted was whether the dog sniff constituted a search, Justice Scalia, writing for a 5 to 4 majority held the officers and their drug dog were trespassers on Mr. Jardines’s porch when they conducted the dog sniff at his front door. “When the government obtains information by physically intruding on persons, houses, papers, or effects, a ‘search’ within the original meaning of the Fourth Amendment has undoubtedly occurred.” While Scalia takes pains to note that a home is one’s castle and is “first among equals” when it comes to 4th Amendment analysis, neither the officers nor the dog ever entered Mr. Jardines’s house. The Court resolves this seeming dilemma, by noting the porch is within the home’s “curtilage,” and as such, is entitled to the full protection of the 4th Amendment’s warrant and probable cause requirements. “We…regard the area ‘immediately surrounding and associated with the home’— what our cases call the curtilage—as part of the home itself for Fourth Amendment purposes…That principle has ancient and durable roots.” Courts have long held that the increased protection afforded to houses by the Fourth Amendment “has never been restricted to the interior of the house”, but includes the “area immediately surrounding the dwelling”, known as the “curtilage”, as well. Wattenberg v. U.S., 388 F.2d 853, 857 (9th Cir. 1968). See also Fullbright v. U.S., 392 F.2d 434-35 (10th Cir. 1968); U.S. v. Davis, 423 F.2d 974, 977 (5th Cir. 1970); Fixel v. Wainwright, 492 F.2d 480, 483 (5th Cir. 1974); U.S. v. Whaley, 781 F.2d 417, 419–21 (5th Cir. 1986). As in U.S. v. Jones, 566 U.S. 400 (2012), the majority is divided on the reasoning employed to answer the question posed. Justice Scalia answers the question of “whether using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a ‘search’ within the meaning of the Fourth Amendment,” by noting the Fourth Amendment establishes a simple baseline, that “[w]hen ‘the Government obtains information by physically intruding’ on persons, houses, papers, or effects, ‘a search within the original meaning of the Fourth Amendment’ has
30
‘undoubtedly’ occurred.” Jardines, 569 U.S. at 5 (quoting U.S. v. Jones, 565 U.S. 400, 406 n. 3 (2012)). Justice Kagan notes in her concurring opinion (joined by Justices Ginsberg and Sotomayor) that while the Court decided the case under the property rubric, in her judgment, the Court, “could just as happily have decided it by looking to Jardines’s privacy interests,” based upon Mr. Jardines’s “reasonable expectation of privacy.” Id. at 13 (Kagan, J., concurring). Justice Kagan notes police officers approached the door of Jardines’ home with a “super-sensitive instrument” which they used to detect things inside that otherwise would have remained undetected. Id. (Kagan, J., concurring). “Was this activity a trespass? Yes, as the Court holds today. Was it also an invasion of [his reasonable expectation of] privacy? Yes, that as well.” Id. (Kagan, J., concurring). Justice Alito begins his dissent in Jardines, much like his dissent in Jones, by describing the reasoning employed by the Court’s majority as deciding an important Fourth Amendment issue by using “a putative rule of trespass law.” Id. at 16 (Alito, J., dissenting). Justice Alito notes the custom of allowing members of the public to approach a front door extends to friends, relatives, and delivery persons, as well as solicitors and peddlers who would likely be unwelcomed. Id. (Alito, J., dissenting). As to the issue of privacy noted by the concurrence, Justice Alito explains that “[a] reasonable person understands that odors emanating from a house may be detected from locations that are open to the public, and a reasonable person will not count on the strength of those odors remaining within the range that, while detectible by a dog, cannot be smelled by a human. Id. at 1421 (Alito, J., dissenting). Nonetheless, the holding remains, “[t]he government’s use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.” Id. at 1417–18.
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In an interesting case, prior to his appointment to the Supreme Court, Judge Gorsuch, then sitting on the 10th Circuit Court of Appeals took issue with his colleagues’ interpretation of the Supreme Court’s decision in Florida v. Jardines, 133 S.Ct. 1409 (2013), noting that if a resident impliedly consents to the general public approaching their front door, that resident has the ability to withdraw that implied invitation, as well. See United States v. Carloss, 818 F.3d 988 (10th Cir.), cert. denied, 137 S. Ct. 231 (2016). “[T]he homeowner is traditionally said to invite even ‘solicitors’ and ‘hawkers’ to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave… But what happens when the homeowner manifests an obvious intention to revoke the implied license to enter the curtilage and knock at the front door? When the owner literally substitutes the knocker with a No Trespassing sign, one smack in the middle of the front door? When she adds two more No Trespassing signs at the driveway's mouth to the street, one on either side of the only clear access route from the street to the front door— and along the very route any visitor would use to approach the home? And when, for good measure, she posts still another No Trespassing sign between the driveway and the house? So that to enter the home’s front porch, its constitutionally protected curtilage, visitors would have to disregard four separate and plainly visible warnings that their presence is wholly unwelcome? May officers still—under these circumstances—enter the curtilage to conduct an investigation without a warrant and absent an emergency?...Respectfully, I dissent.” Gorsuch goes on to emphasize the dangers inherent in the ever-increasing use of the “knock-and-talk” ruse. “Because everything happens with the homeowner’s consent…a warrant isn’t needed…No doubt for just this reason law enforcement has found the knock and talk an increasingly attractive investigative tool. But in the constant competition between constable and quarry, officers sometimes use knock and talks in ways that test the boundaries of the consent on which they depend.” Collins v. Virginia, No. 138 S.Ct. 1663 (2018): Officers pursuing a motorcycle for traffic offenses, suspected the motorcycle was stolen, but lost sight of their prey. The following day, in the same neighborhood, the officers observed a motorcycle in plain view, partially covered by a tarp in Collins’s driveway next to his garage. Suspecting this was the same motorcycle they had been chasing the day before, and relying on the
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automobile exception to the warrant requirement, the officers walked up Collins’s driveway and lifted the tarp. The officers called in the license number and registration of the motorcycle and confirmed it was reported stolen. Justice Sotomayor, writing for an 8 to 1 majority, and relying upon the Court’s reasoning in Jardines held the officers’ intrusion onto Collins’s driveway violated his home’s “curtilage,” and required a warrant. “In physically intruding on the curtilage of Collins’s home to search the motorcycle, Officer Rhodes not only invaded Collins’s Fourth Amendment interest in the…motorcycle, but also invaded Collins’s Fourth Amendment interest in the curtilage of his home.” Nevertheless, the Court remanded the case back to the Virginia Supreme court: “We leave for resolution on remand whether Officer Rhodes’ warrantless intrusion on the curtilage…may have been reasonable on a different basis, such as the excigent circumstances exception to the warrant requirement.” On remand, the Virginia Supreme Court held that: “In our opinion, the exclusionary rule does not apply in this case even if no exigent circumstances existed because, at the time of the search, a reasonably well-trained officer would not have known that a search of the motorcycle, located a few feet across the curtilage boundary of a private driveway was unconstitutional.” Moreover, in a troubling reference to the requirement in Hudson, Herring and Davis’ the officers’ conduct must be shown to be “deliberate,” “culpable,” and “flagrant,”to invoke the exclusionary rule.The Virginia Supreme Court goes on to note that: “We begin with a settled but often overlooked premise. Standing alone, ‘[t]he fact that a Fourth Amendment violation occurred…does not necessarily mean that the exclusionary rule applies…The Fourth Amendment prohibits unreasonable searches and seizures but “says nothing about suppressing evidence obtained in violation of this command.”
TRACKING WITH A GLOBAL POSITIONING SYSTEM (GPS)
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U.S. v. Jones, 565 U.S. 400 (2012): In Jones the Court determined whether the attachment of a Global Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.
Believing Jones was involved in narcotics trafficking, the District of
Columbia police obtained a warrant to install and monitor a GPS device on the undercarriage of Jones’ pickup truck. However, their monitoring exceeded both the geographical and time limits of that warrant. Accordingly, the Supreme Court treated both the installation and monitoring of the device as warrantless. While the decision was unanimous, the rationale for same was divided 5 to 4. Scalia, writing for the 5-Justice majority, held that the “attaching” of the GPS device constituted a search, requiring a warrant, reasoning the installation constituted a physical trespass on one of the 4th Amendment’s expressly protected areas, namely “persons, houses, papers and effects.” “At bottom, we must ‘assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted…As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas it enumerates.” Scalia, J. Scalia’s majority opinion does not address the issue of monitoring, noting that "It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.” Alito, concurring, reaches the same conclusion with regard to attaching of the device, relying upon the “reasonable expectation of privacy” standard, noting that: “[T]he search of one’s home or office no longer requires physical entry, for science has brought forth far more effective devices for the invasion of a person’s privacy than the direct and obvious methods of oppression which were detested by our forebears and which inspired the Fourth Amendment.”
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However, Scalia goes a step further to find that under the expectation of privacy test, the lengthy monitoring presented in this case, constituted an invasion of Jones’ expectation of privacy, requiring a warrant. “I would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove…I conclude that the lengthy monitoring that occurred in this case constituted a search under the Fourth Amendment.” Alito, J. Sotomayor writes separately opining that even cases involving “short-term” monitoring may violate one’s reasonable expectation of privacy. That would make 5 votes for the proposition that any monitoring would constitute a search, requiring a warrant. Given that almost every person and vehicle now come equipped with a GPS device (already furnished with their cellphones, digital devices or their “intelligent” vehicles), five Justices held that the continued warrantless monitoring of that device was an illegal “search.” In March of 2013, the First Circuit examined a case in which FBI agents attached a GPS tracking device to the vehicle of a suspected bank robber. U.S. v. Sparks, 711 F.3d 58 (1st Cir. 2013). Although the ruling in Jones controls the case, the First Circuit concluded the good-faith exception “applied in cases like this one (or Davis itself), where new developments in the law have upended the settled rules on which the police relied.” Id. at 68. The court noted that the officer’s actions had been guided by binding precedent in that circuit. Id. at 67.
OVER BREADTH AND GENERAL SEARCHES Courts have not hesitated to find that a warrant lacking in particularity will not pass Constitutional muster. “Th[e] particularity requirement serves three related purposes: preventing general searches, preventing the seizure of objects upon the mistaken assumption that they fall within the magistrate’s authorization, and preventing the issuance of warrants without a substantial factual basis.” U.S. v. Young, 745 F.2d 733 (2d Cir. 1984), cert. denied, 470 U.S. 1084 (1985).
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In U.S. v. LeBron, 729 F.2d 533, 536-39 (8th Cir. 1984), the Eighth Circuit held that a warrant for “other stolen property” or “any records which would document illegal transactions involving stolen property” lacks the requisite particularity: “A valid warrant should describe the things to be taken and the place to be searched with particularity such that it provides a guide to the exercise of informed discretion of the officer executing the warrant.... We recognize that, despite the dangers, a warrant may issue to search and seize records if there is probable cause to believe that records which are evidence or instrumentality of a crime will be there and the description is stated with sufficient particularity....The warrant in the instant case, without more, authorized a search for ‘any records which would document illegal transactions involving stolen property’. There is no attempt to particularize the description of the property or of the records themselves. The only limiting factor is the reference to ‘stolen property’. As earlier discussed, this generic classification is not sufficient to provide any guidance to an executing officer. Absent as well is any explanation of the method by which the officers were to distinguish such records from any documents relating to legal transactions.” LeBron, 729 F.2d at 536, 538-39. See also U.S. v. Guarino, 729 F.2d 864 (1st Cir. 1984) [striking down a warrant authorizing seizure of “obscene” films “of the same tenor” as certain enumerated items]; U.S. v. Spilotro, 800 F.2d 959 (9th Cir. 1986) [items relating to loan sharking and bookmaking not described with sufficient particularity]; U.S. v. LeBron, 729 F.2d 533, 539 (8th Cir. 1984) [a search for any records that would show transactions in stolen property was too generic a classification and thus constituted an impermissible general search]. Contra U.S. v. Gomez, 652 F. Supp. 461 (E.D.N.Y. 1987) [similar case with opposite result]; U.S. v. Burke, 718 F. Supp. 1130 (S.D.N.Y. 1989); U.S. v. Buck, 813 F.2d 588 (2d Cir. 1987), cert. denied, 484 U.S. 857 (1987) [even though warrant lacked sufficient particularity, same was not so apparent that executing officers could not rely on the warrant, especially in light of fact that officers searching in 1981 could not reasonably have anticipated developments in the law]; U.S. v. Villegas, 899 F.2d 1324 (2d Cir. 1990) [“sneak peek” warrant authorizing covert entry to take pictures was held constitutional]. A search warrant which utterly fails to describe the persons or things to be seized has been held to be per se invalid, even if the particularized description is provided in search warrant application. Groh v. Martinez, 540 U.S. 551 (2004).
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NEXUS BETWEEN PROBABLE CAUSE AND THE PLACE TO BE SEARCHED There must be sufficient “nexus” between probable cause to believe that the contraband will be located at the place to be searched. “For a probable cause determination to be meaningful there must be a nexus among (1) criminal activity, (2) the things to be seized, and (3) the place to be searched.” W. LaFavre Search and Seizure, 33.7(d) (1978). See also Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 358 (1974); U.S. v. Freeman, 685 F.2d 942, 949 (5th Cir. 1982); U.S. Maestas, 546 F.2d 1177, 1189 (5th Cir. 1977). It also should be clear that an arrest at one location does not give sufficient particularized probable cause to believe evidence of that crime will be located at some distant location, even if same constitutes the arrestee’s residence. U.S. v. Gramlich, 551 F.2d 1359 (5th Cir. 1977) [“This fact alone is insufficient to justify the inference that incriminating evidence existed at that residence”]. This is because warrants are directed against evidence of crime and not against persons. Thus, “[t]he fact that there is probable cause to arrest a person for a crime does not automatically give police probable cause to search his residence or other area in which he has been observed for evidence of that crime.” U.S. v. Savoca, 739 F.2d 220, 224 (6th Cir. 1984). “The affidavit in Gramlich stated that the defendant had been observed over a period of several weeks. During that time, he purchased a van, motorboat and radio equipment under an assumed name. The defendant was also known to possess a 23-foot motorboat named “Pronto” which, according to the affidavit had been docked at the pier outside of the defendant’s residence. Gramlich, 551 F.2d at 1362 n.7. The affidavit went on to relate that on several occasions the defendant had been observed piloting “Pronto” out into the Gulf of Mexico in order to rendezvous with other boats. Based upon the surveillance described, in addition to the arrest of the defendant fifty miles away while he was unloading marijuana from a motorboat, the magistrate granted a search warrant for the defendant’s house. The Fifth Circuit suppressed the evidence obtained as a result of that search because the information in the affidavit failed to establish an adequate connection between the residence searched and the alleged drug smuggling activities.” U.S. v. Gramlich, 551 F.2d 1359 (5th Cir. 1977). Likewise, reliable information that a known felon has committed a burglary and was arrested with some of the proceeds some distance from his home, will not authorize a search of his residence. U.S. v. Flanagan, 423 F.2d 745 (5th Cir. 1970); see also U.S. v. Bailey, 458 F.2d 408
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(9th Cir. 1972); U.S. v. Whitlow, 339 F.2d 975 (7th Cir. 1964); Gillespie v. U.S., 368 F.2d 1 (8th Cir. 1966). “The statement (in an affidavit), even if reliable, that a named person who is a known felon has committed a burglary, plus possession by the suspect of some of the proceeds when arrested, does not without more authorize the issuance of a warrant to search the residence of the accused miles away.” Flannagan, 423 F.2d at 747. In U.S. v. Green, 634 F.2d 1222 (5th Cir. 1981), the Fifth Circuit noted that while a “careful review of the affidavit reveals ample evidence from which the magistrate could conclude that (the defendant) was engaged in criminal activity in California,” . . . “no evidence, other than residence, was set forth in the affidavit that connected the Key West, Florida, home to the criminal activity.... The motion to suppress should have been granted.” Green, 634 F.2d at 1225-26. Similarly, in U.S. v. Lockett, 674 F.2d 843 (11th Cir. 1982) the only statement evidencing a nexus between explosives and the residence to be searched, in an affidavit reciting numerous other events and activities of George Lockett, read: “On July 11, 1980, this affiant observed these premises from the public county road and I saw no structures which would indicate proper storage facilities on the premises for storing high explosives. Record, Vol. 1 at 16. There follows a hand written statement by the affiant to the effect that he believes that dynamite is on the premises.” Lockett, 674 F.2d at 845. In the Eleventh Circuit’s view, “such a conclusory statement, without more, of course has no probative value.” As a result, the Lockett Court concluded the affidavit set forth no facts from which the magistrate could infer that dynamite was located at that particular place”. Lockett, 674 F.2d at 846. See U.S. v. Algie, 721 F.2d 1039, 1042 (6th Cir. 1983) [fifteen phone calls from an apartment “which authorities knew to be used for gambling coupled with an affiant’s belief that telephones are often used to make lay-off bets”, is “insufficient to convince a reasonably prudent person that contraband or evidence of a crime would be found on the premises”].
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Another court, however, has applied the good faith exception despite any lack of nexus between the house to be searched and the evidence seized. U.S. v. Hendricks, 743 F.2d 653 (9th Cir. 1984). “Federal agents were in possession of a cocaine-bearing package from Brazil, which they anticipated would be picked up by the individual to whom it was addressed, ...the warrant stated that the package ‘is now being concealed’ at defendant’s residence and added’ the search warrant is to be executed only upon the condition that the above described box is brought to the aforesaid premises’.” The Court concluded the warrant lacked probable cause and explained the magistrate abdicated to the agents “an important judicial function—the determination that probable cause exists to believe that the objects are currently in the place to be searched”. Nevertheless, the court determined the agents acted in “reasonable reliance on the warrant and hence declines to order suppression of the fruits of the search”. Hendricks, 743 F.2d at 655; see also U.S. v. Gant, 759 F.2d 484 (5th Cir. 1985); Commonwealth v. Way, 492 A.2d 1151 (Pa. Super. 1985) [holding lack of substantial nexus between the street crime and the premises to be searched renders the warrant facially invalid]; U.S. v. Marriott, 638 F. Supp. 333 (N.D. Ill. 1986). But see U.S. v. Asselin, 775 F.2d 445 (1st Cir. 1985) [officers were found to have acted in “good faith” interpreting the word “premises” to include surroundings so as to authorize two searches of a disabled car adjacent to the carport and a birdhouse hanging from tree fifteen feet from trailer steps]; U.S. v. Kenney, 595 F. Supp. 1453 (D.C. Ma. 1984) [“probable cause existed to search safety deposit box for cash “because officers had probable cause to believe defendant was engaged in trafficking”, but there existed no nexus between the gold, silver and jewelry found in the box and suspected drug trafficking].
PROSECUTION SHOULD BEAR THE BURDEN OF DEMONSTRATING “GOOD FAITH” The Supreme Court in Leon appeared to place the burden on the prosecution “to establish objective good faith”.
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“The good-faith exception for searches conducted pursuant to warrants is not intended to signal our unwillingness strictly to enforce the requirements of the Fourth Amendment, and we do not believe that it will have this effect. As we have already suggested, the goodfaith exception, turning as it does on objective reasonableness, should not be difficult to apply in practice. When officers have acted pursuant to a warrant, the prosecutions should ordinarily be able to establish objective good faith without a substantial expenditure of judicial time.” Leon, 468 U.S. at 924. See also U.S. v. Gant, 587 F.Supp. 128 (S.D. Tex. 1984), rev’d on other grounds 759 F.2d 484 (5th Cir. 1985), cert. denied, 474 U.S. 851 (1985) [allocating burden of proof upon the Government, “which if proved by the government, would save the evidence from the effects of the exclusionary rule”]; U.S. v. Hendricks, 743 F.2d 653, 656 (9th Cir. 1984)[“The standard to be employed [in determining the officers’ good faith reliance] is an objective one and the prosecution bears the burden of proof’].
“GOOD FAITH” RELIANCE ON SUMMONS The good faith exception also applies in other areas where law enforcement officers are acting in reliance on the issuance of process by a grand jury or prosecutor on its behalf. U.S. v. Gluck, 771 F.2d 750 (3d Cir. 1985) [“good faith” exception applies to IRS summons based on facially valid grand jury disclosure order unauthorized under U.S. v. Baggot, 771 F.2d 750, 103 3164, 77 L.Ed.2d 785 (1983)].
“GOOD FAITH” EXCEPTION APPLIES TO WARRANTLESS ADMINISTRATIVE SEARCHES AUTHORIZED BY STATUTE LATER FOUND UNCONSTITUTIONAL Illinois v. Krull, 480 U.S. 340 (1987): The Supreme Court extended the good faith exception to a warrantless administrative search conducted in objectively reasonable reliance on a statute later held unconstitutional. Illinois v. Krull, 480 U.S. 340 (1987). However, constraints similar to those set forth in Leon apply.
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“A statute cannot support objectively reasonable reliance if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws. Nor can a law enforcement officer be said to have acted in good-faith reliance upon a statute if its provisions are such that a reasonable officer should have known that the statute was unconstitutional.... [T]he standard of reasonableness we adopt is an objective one; the standard does not turn on the subjective good faith of individual officers.” Krull, 480 U.S. at 355 [citing Leon, 468 U.S. at 919 n.10]. The Court also recognized the risks involved in its holding. “It is possible, perhaps, that there are some legislators who, for political purposes, are possessed with a zeal to enact a particular unconstitutionally restrictive statute, and who will not be deterred by the fact that a court might later declare the law unconstitutional. ...[W]e are not willing to assume...legislators ... perform their legislative duties with indifference to the constitutionality of the statutes they enact. If future empirical evidence ever should undermine that assumption, our conclusions may be revised accordingly. Krull, 480 U.S. at 352 n.8 [citing Leon, 468 U.S. at 927-28]. Justice O’Conner, writing for the 4 dissenting justices, noted that: “Providing legislatures a grace period during which the police may freely perform unreasonable searches in order to convict those who might have otherwise escaped creates a positive incentive to promulgate unconstitutional laws. . . . [i]t cannot be said that there is no reason to fear that a particular legislature might yield to the temptation offered by the Court’s good faith exception.” Krull, 480 U.S. at 352 [O’Connor, J., dissenting].
OTHER WARRANTLESS SEARCHES Brown v. Polk County, Wisconsin, 141 S. Ct. 1304 (2021) Although the Supreme Court denied certiorari, Justice Sotomayor provided a 6 pg. statement, regarding the inmate complaint that jail officials had demonstrated insufficient cause to conduct intrusive body searches of Ms. Brown’s anal and vaginal cavities. In this case, the defendant contested an invasive search of her body during pre-trial detention. In this search, the petitioner was examined by a doctor who used a speculum to spread open her vagina and shine a light inside to search for contraband; the same was done to her rectum. The 7th Circuit found mere reasonable suspicion justified this search—the same degree used for Terry stops. Petitioner
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argues the extreme invasiveness of these procedures should require probable cause and a warrant or exigent circumstances. Justice Sotomayor emphasizes “the degree of suspicion required for a search should be substantially informed by the availability of less intrusive alternatives.” Justice Sotomayor chastises the 7th Circuit for failing to consider whether other alternatives were available before holding reasonable suspicion alone was sufficient justification to perform “this degrading search” on a person who had not even been convicted of any crime. Petitioner was arrested for shoplifting and during her second day in jail, two inmates reported petitioner was hiding drugs in her body. Based on the inmates word alone, petitioner was taken to the hospital and although an ultrasound found no foreign objects the doctor proceeded to perform the visual inspections of her vagina and anus. Jail personnel indicated these searched were ordered whenever someone made such an accusation without any consideration of the source’s reputation for honesty, or any other investigation of the accusation. Justice Sotomayor expressly states the 7th Circuit’s failure to consider something less intrusive that would still meet the interest of ensuring jail security was error. There were a myriad of less invasive alternatives and the method used should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion. Florida v. Royer, 460 U.S. 491, 500 (1983). City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015): The Los Angeles Municipal Code (LAMC) required hotel and motel operators to keep records with detailed information about their guests. The LMAC also authorized police officers to inspect these records at any time without requiring a search warrant. The Patels, who owned and operated a hotel in Los Angeles, filed a petition, arguing the LMAC violated their Fourth Amendment protection against unreasonable seizures.
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Justice Sotomayor delivered the 5-4
majority opinion and held that an individual may challenge a statute for violating the Constitution on its face without needing to allege unconstitutional enforcement, and that the municipal ordinance in question is unconstitutional on its face because it does not allow for hotel operators to engage in pre-compliance review by questioning the reasonableness of the subpoena in district court. The Court also held that hotels are not a “closely regulated” business and therefore do not fall under that exception to the warrant requirement. Justice Scalia wrote a dissent, arguing the ordinance is constitutional because it is not unreasonable under the circumstances. Rodriguez v. United States, 135 S. Ct. 1609 (2015): Rodriguez was pulled over for a minor traffic violation for which he received a warning. After giving the warning, the officer asked permission to walk his K-9 unit around Rodriguez’s vehicle, which he refused. The officer ordered Rodriguez to exit the vehicle and walked the K-9 around his car and the dog alerted. A search revealed a large bag of methamphetamine. Rodriguez argued the K-9 search violated his Fourth Amendment rights. The Court held the use of a K-9 unit after completion of an otherwise lawful traffic stop exceeded the time reasonably required to handle the matter and therefore unreasonable under the Fourth Amendment. The Court clarified that a seizure unrelated to the reason for the stop is lawful only if it doesn’t measurably extend the stop’s duration. Akinmboni v. United States, 126 A.3d 694 (D.C. Ct. App. 2015): In Akinmbomi, The court held the warrantless search and removal of items from an individual’s body cavity violates the Fourth Amendment. Akinmboni v. United States, 126 A.3d 694, (2015). Here, the defendant was pulled over for a broken taillight. The officer smelled burnt marijuana when approaching the defendant’s car and noticed the defendant placed an item in his mouth and began chewing. Id. at 695. Unable to retrieve that item. the officer conducted a search
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of the vehicle, found marijuana, and arrested the defendant. At the stationhouse, the officer conducting a pat down search of defendant felt a foreign object. They asked the defendant to remove all of his clothing and to permit visual inspection of his anal cavity. Id. at 696. Upon inspection, officers found three separate baggies containing marijuana, pills of assorted colors, crack, and cocaine. Defense counsel subsequently filed a motion to suppress the evidence under the Fourth Amendment, arguing that officers lacked a warrant and a doctor should have been involved. Id. The trial court denied the motion, and after a jury trial, Akinmboni was convicted of possession of controlled substances. Appeal followed. On appeal, it is uncontested that the officer directive to the defendant to remove the items from his anal cavity constituted a Fourth Amendment search and seizure Determining whether a search or seizure was conducted in a reasonable manner requires a balancing of the needs of the government against the invasiveness of the intrusion and its impact on the suspect. Bell v. Wolfish, 441 U.S. 520, 559 (1979). In assessing reasonableness, courts “must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Id.; see also, e.g., Washington v. United States, 594 A.2d 1050, 1052 (D.C. 1991). Where a search or seizure involves the removal of items from sensitive body cavities, including anal or vaginal cavities, the reasonableness of the methods used may depend upon “a variety of factors including hygiene, medical training, emotional and physical trauma, and the availability of alternative methods for conducting the search.” United States v. Fowlkes, 804 F.3d 954, 963 (9th Cir. 2015). It was argued that the officer acted in accordance with official policy, and therefore the search was constitutional. Id. However, the fact a search was conducted in accordance with an applicable policy does not by itself establish that the search was reasonable. See, e.g., Way v.
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County of Ventura, 445 F.3d 1157, 1160–62 (9th Cir.2006). Therefore, the court found that even though officers complied with their established policy, the removal of the items was substantially more intrusive than a search that entails only visual inspection.
DIGITAL SEARCHES In U.S. v. Ackerman, 831 F.3d 1292 (10th Cir. 2016), the 10th Circuit was confronted with the practice of 3rd party providers (in this case AOL) scanning all outgoing e-mails with an “automated filter”22 for known images of child pornography, upon receiving a “positive hit,” sending that e-mail, together with any attachments to the National Center for Missing and Exploited Children (NCMEC), a private entity, who in turn open the e-mail and, if finding evidence of child pornography, refers same to criminal investigators. As for whether the opening of the e-mail by NCMEC, a private entity, constitutes “state action” for 4th Amendment analysis, Judge Gorsuch makes short shrift, holding that NCMEC is the Government for 4th Amendment purposes, and even if it isn’t, it is an agent of the Government under these circumstances. “[NCMEC is an] organization that was statutorily obliged to operate as official national clearinghouse for information about missing and exploited children [and thus] was a government entity for purpose of determining whether its search of defendant’s e-mail violated [the] Fourth Amendment.” Ackerman, 831 F.3d at 1292. With regard to whether the opening of that e-mail constituted a “search” for 4th Amendment purposes, Judge Gorsuch again has no problem reaching that conclusion in simple, concise and piercing terms:
Utilizing an algorithm that produces a hash value, some consider a “digital fingerprint.” See Richard P. Salgado, Fourth Amendment Search and the Power of the Hash, 119 Harv. L. Rev. F. 38, 38-40 (2005).
22
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“We are dealing…with the warrantless opening and examination of (presumptively) private correspondence that could have contained much besides potential contraband for all anyone knew. And that seems pretty clearly to qualify as exactly the type of trespass to chattels that the framers sought to prevent when they adopted the Fourth Amendment.” “Of course, the framers were concerned with the protection of physical rather than virtual correspondence. But a more obvious analogy from principle to new technology is hard to imagine.” Moreover, Judge Gorsuch cuts to the quick of the long-standing dispute between whether we analyze the search issue in terms of Scalia’s property-trespass approach or in terms of Alito’s reasonable expectation of privacy analysis.23 Without taking sides, Gorsuch describes the opening of Ackerman’s e-mail intuitively as a “trespass to chattels that the framers sought to prevent when they adopted the Fourth Amendment,” noting: “So it seems that, whether we analyze the search question through the lens of the government’s preferred authority— Katz —or through the lens of the traditional trespass test suggested by Jones, they yield the same (and pretty intuitive) result: NCMEC conducted a ‘search’ when it opened and examined Mr. Ackerman’s email.”
USE OF SOPHISTICATED TECHNOLOGY In U.S. v. Denson, 775 F.3d 1214 (10th Cir. 2014) Gorsuch was confronted with the use of a small hand-held “Doppler radar device” capable of detecting the presence of individuals inside a residence. Taking his lead from the Supreme Court’s thermal imaging case24, the new Justice had no difficulty determining that using such a “powerful tool to search inside homes poses grave Fourth Amendment questions.” Denson, 775 F.3d at 1218. “The government brought with it a Doppler radar device capable of detecting from outside the home the presence of ‘human breathing and movement within.’…. New technologies bring with them not only new opportunities for law enforcement to catch criminals but also new risks for abuse and new ways to invade constitutional rights. See, e.g., Kyllo v. United States, 533 U.S. 27, 33–35 (2001) (holding that using warrantless thermal imaging to show activity inside a home
See Comparison between Scalia’s lead opinion and Alito’s concurrence in U.S. v. Jones, 565 U.S. 400 (2012) 24 See Kyllo v. United States, 533 U.S. 27, 33–35 (2001) [use of a “thermal imaging” device]. However, Scalia’s 5 to 4 opinion rests on the finding that such technology was “not readily available,” a scary concept, not mentioned in Gorsuch’s holding that the use of a Doplar radar device constituted a search. 23
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violated the Fourth Amendment). Unlawful searches can give rise not only to civil claims but may require the suppression of evidence in criminal proceedings.25 We have little doubt that the radar device deployed here will soon generate many questions for this court and others along both of these axes.” Id. Nevertheless, Gorsuch, applying the “independent source rule,” easily affirms Denson’s conviction, noting that “all of the facts we’ve outlined above were discovered independently of the potentially problematic radar search—a fact that requires us to defer those questions to another day.” Id. at 1218-19.
“GOOD FAITH” MUST BE OBJECTIVE The standard for applying the “good faith” exception to the exclusionary rule is an objective, not subjective one. “Many objections to a good-faith exception assume that the exception will turn on the subjective good faith of individual officers. ‘Grounding the modification in objective reasonableness, however, retains the value of the exclusionary rule as an incentive for the law enforcement profession as a whole to conduct themselves in accord with the Fourth Amendment.’ The objective standard we adopt, moreover, requires officers to have a reasonable knowledge of what the law prohibits.” U.S. v. Leon, 468 U.S. 897, 919 n. 20 (1984) (internal citations omitted). As Professor Jerold Israel has observed: “The key to the [exclusionary] rule’s effectiveness as a deterrent lies, I believe, in the impetus it has provided to police training programs that make officers aware of the limits imposed by the Fourth Amendment and emphasize the need to operate within those limits. [An objective good-faith exception]...is not likely to result in the elimination of such programs, which are now viewed as an important aspect of police professionalism. Neither is it likely to alter the tenor of those programs; the possibility that illegally obtained evidence may be admitted in borderline cases is unlikely to encourage police instructors to pay less attention to Fourth Amendment limitations. Finally, [it] ...should not encourage officers to pay less attention to
Gorsuch’s statement that “unlawful searches…may require suppression of evidence in criminal proceedings,” would appear to be a subtle recognition of the Supreme Court’s recent insistence that evidence obtained through the violation of an individual’s constitutionally protected right to privacy is not necessarily subject to the exclusionary remedy. Compare Hudson v. Michigan, 547 U.S. 586 (2006) with Davis v. U.S., 546 229 (2011) and see discussion regarding erosion of the exclusionary rule hereafter. 25
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what they are taught, as the requirement that the officer act in ‘good faith’ is inconsistent with closing one’s mind to the possibility of illegality.” Israel, Criminal Procedure, the Burger Court, and the Legacy of the Warren Court, 75 Mich. L.Rev. 1319, 1414 n. 396 (1977). Whether the officer acted in good faith is a question of law which receives an independent review in the courts of appeal. For example, the Supreme Court found that a mistake in the execution of a warrant might, under the circumstances of the case, warrant application of the “good faith” exception. However, the exception will not apply if officers are negligent in execution of a warrant and their mistake is unreasonable. In Maryland v. Garrison, the Court found the objective good faith standard was met where officers made a mistake conducting a search where the warrant did not authorize. The officers obtained a warrant for an apartment on the third floor of a building, but mistakenly thought the apartment named in the warrant covered the entire floor. The court held that the officers made a “good faith” mistake in searching the wrong apartment. Maryland v. Garrison, 480 U.S. 79 (1987). But see U.S. v. Palacios, 666 F. Supp. 113 (S.D. Tex. 1987) [stating evidence is not admissible under good faith exception when arrest warrant is negligently executed thereby arresting wrong person; mistake was not reasonable]. While the Supreme Court has voiced concern over the “substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights” it leaves no question as to the rule’s continued viability. U.S. v. Leon, 468 U.S. 897, 907 (1984). “The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern....” “...Nevertheless, the balancing approach that has evolved in various contexts—including criminal trials—forcefully suggest[s] that the exclusionary rule be more generally modified to permit the introduction of evidence obtained in the reasonable good-faith belief that a
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search or seizure was in accord with the Fourth Amendment.” U.S. v. Leon, 468 U.S. 897, 907 (1984). Despite the Court’s concern, a study regarding the practical effect of the “good faith” exception on warrants indicates no increase in their quality and quantity. Rather, some studies suggest that the effect of the Leon decision has been to encourage prosecuting authorities to seek warrants in situations where previously they would not. Police Executive Research Forum, The Effects of United States v. Leon on Police Search Warrant Policies and Practice (1988). Texas’ Statutory equivalent to the Federal Exclusionary Rule also provides for a good faith exception. Tex. Code Crim. P. art. 38.23(b) (Vernon 1989). [where a defective warrant has been issued by a magistrate and the warrant was based on probable cause, if the executing officer believes in good faith the warrant is valid, the evidence is nevertheless admissible].
“UNREASONABLE DELAY” BEFORE PRESENTMENT AS GROUNDS FOR SUPPRESSION OF CONFESSION Corley v. United States, 556 U.S. 303 (2009) A divided Court held in Corley v. United States, 556 U.S. 303 (2009), that 18 U.S.C. § 3501 did not overrule the Court’s line of cases following McNabb v. United States, 318 U.S. 332 (1943) superseded by statute 556 U.S. 303, and Mallory v. United States, 354 U.S. 449 (1957) superseded by statute 354 U.S. 449.
In his opinion for the Court, Justice Stevens considered rationale of
McNabb-Mallory and the legislative history of § 3501 to conclude that Congress only intended to limit McNabb-Mallory and not to eliminate it. Corley, 556 U.S. at 306. Stevens went on to state that “Justice Frankfurter’s point in McNabb is as fresh as ever: ‘The history of liberty has largely been the history of observance of procedural safeguards.’” Id. at 321 (citing McNabb). The result of Corley, however, is not that a confession obtained prior to presentment is automatically suppressed, but rather “… a district court with a suppression claim must find whether the defendant
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confessed within six hours of arrest (unless a longer delay was ‘reasonable considering the means of transportation and the distance to be traveled to the nearest available [magistrate]’). If the confession came within that period, it is admissible, subject to other Rules of Evidence, so long as it was “made voluntarily and … the weight to be given to [it] is left to the jury.” If the confession occurred before presentment and beyond six hours, however, the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed. Corley at 322.
STATES ARE FREE TO PROVIDE GREATER PROTECTIONS TO THEIR CITIZENS Lego v. Twomey, 404 U.S. 477 (1972). Since United States Constitution sets a floor below which our constitutional rights cannot fall and the states set the ceiling, states are free to provide greater protections than afforded citizens under the federal system. Lego v. Twomey, 404 U.S. 477 (1972); Oregon v. Hass, 420 U.S. 714 (1975); Texas v. White, 423 U.S. 67 (1975); Michigan v. Mosley, 423 U.S. 96 (1975). “[I]t is appropriate to observe that no state is precluded from adhering to higher standards under state law. Each state has the power to impose higher standards governing police practices under the state law than is required by the federal constitution.” Mosley, 423 U.S. at 120. For example, Pennsylvania has rejected the Leon good faith exception to the exclusionary rule. See Com. v. Edmunds, 586 A.2d 887 (Pa. 1991) [finding that the exclusionary rule also protects the individual’s right to privacy the Court rejected the Leon good faith exception]; State v. Santiago, 492 P.2d 657 (Haw. 1971) [rejecting Harris v. New York, 401 U.S. 222 (1971)]; State v. Johnson, 346 A.2d 66 (N.J. 1975) [rejecting waiver of constitutional right approach of Schneckloth v. Bustamonte, 412 U.S. 218 (1975)]; Blue v. State, 558 P.2d 636 (Alaska 1977) [rejecting Kirby v. Illinois, 406 U.S. 682 (1972) [interpretation of right to counsel at pre-indictment lineups)]; State
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v. Kaluna, 520 P.2d 51 (Haw. 1974) [rejecting Supreme Court’s interpretation of right to search incident to an arrest in U.S. v. Robinson, 414 U.S. 218 (1973) and Gustafson v. Florida, 414 U.S. 260 (1973)]; State v. Jackson, 688 P.2d 136 (Wash. 1984) [rejecting the Gates “totality” test]; State v. Sidebotham, 474 A.2d 1377 (N.H. 1984) [Jones-type automatic standing held still available in New Hampshire]; State v. Bolt, 689 P.2d 519 (Ariz. 1984) [refusing to allow securing premises for purposes of obtaining warrant as per Segura]; Sanchez v. State, 707 S.W.2d 575 (Tex. Crim. App. 1986) [noting independent state constitution restricts use of even uncounseled silence]; State v. Jewitt, 500 A.2d 233 (Vt. 1985); State v. Young, 867 P.2d 593 (Wash. 1994). “Since 1970 there have been over 250 cases in which state appellate courts have viewed the scope of rights under state constitutions as broader than those secured by the federal Constitution as interpreted by the United States Supreme Court.... ‘A lawyer today…who does not argue that the state constitution provides…protection is skating on the edge of malpractice’…. [T]he philosophy of the U.S. Supreme Court may ebb and flow…. The development of state constitutional jurisprudence will call for the exercise of great judicial responsibility as well as diligence from the trial bar. It would be a serious mistake for this court to use its state constitution chiefly to evade the impact of the decisions of the U.S. Supreme Court. Our decisions must be principled, not result oriented.” State v. Jewett, 500 A.2d 233, 222-24 (Vt. 1985). The Supreme Court dismissed as improvidently granted a writ of certiorari on the ground that the court below had rested its suppression decision “on independent and adequate state grounds”. This was in spite of the fact that the Court had decided the same issue on the same day differently in a Federal case where the decision below rested solely on Federal Constitution standards, reaffirming that States are free to prescribe greater protections for their citizenry. Florida v. Casal, 462 U.S. 637 (1983). Even in Gates, the Supreme Court recognized that a different rule would attach if it were considering actions of state officials under state statutes:
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“‘Due regard for the appropriate relationship of this Court to state courts,’ demands that those courts be given an opportunity to consider the constitutionality of the actions of state officials...we permit a state court, even if it agrees with the state as a matter of federal law, to rest its decision on an adequate and independent state ground.” Gates, 462 U.S. at 221-22. In California v. Ramos, the Supreme Court, speaking through Justice O’Connor, reiterated that: “It is elementary that States are free to provide greater protections in their criminal justice system than the Federal Constitution requires.” California v. Ramos, 463 U.S. 992 (1983). Again, as set out above, Texas has a statutory exclusionary rule, Tex. R. Cr. P. 38.23. However, note that the Texas Court of Criminal Appeals, in an en banc opinion, held that the Texas Constitution contains no requirement that a seizure or search be authorized by a warrant, and any seizure or search that is otherwise reasonable will not be found to be in violation of Texas Constitution because it was not authorized by a warrant. Hulit v. State, 982 S.W.2d 431 (Tex. Crim. App. 1998). Additionally, the court added that it had “expressly conclude[d] that this court, when analyzing and interpreting article I, section 9 of the Texas Constitution, will not be bound by Supreme Court decisions addressing the comparable Fourth Amendment issue,” quoting Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991); see also Polk v. State, 704 S.W.2d 929, 934 (Tex. Crim. App. 1986); Oliver v. State, 711 S.W.2d 442, 445 (Tex. App.—Fort Worth, 1986) [the independent source and inevitable discovery exceptions to the judicially created exclusionary rule do not apply to article 38.23 and will not, short of an amendment]; Com. v. Upton, 476 N.E.2d 548 (1985) [twopronged Aguilar-Spinelli test retained for state law purposes instead of the Gates totality of the circumstances standard. Court noted that the Aguilar standard had been working well for twenty years, encouraged careful police work and tended to reduce the number of unreasonable searches]; State v. Jackson, 688 P.2d 136 (Wash. 1984).
It should be noted, however, that even if a state
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provides protections greater than those required by the Constitution, it does not necessarily trigger constitutional protections. See Virginia v. Moore, 553 U.S. 164 (2009) [Fourth Amendment did not require exclusion of evidence obtained as a result of a search based on an arrest permission under federal constitutional protections but illegal under state law].
SEVERAL STATES HAVE REJECTED ANY LEON “GOOD FAITH” EXCEPTION A number of state courts rejected the Leon “good faith” exception to the exclusionary rule on state constitutional grounds: “By treating the federal exclusionary rule as a judicially created remedy rather than a constitutional right, the Supreme Court’s decision focuses, not on interpretation of the federal constitution, but on an attempted empirical assessment of the costs and benefits of creating a good faith exception to the federal exclusionary rule. This empirical assessment can inform this Court’s decision on the good faith exception only to the extent that it is persuasive. If the assessment is flawed, this Court cannot simply accept the conclusion the Supreme Court draws from it. To do so would be contrary to our obligation to ensure that our state exclusionary rule effectuates [our State Constitutional provisions], and would deserve those rights. “When the [United States Supreme] Court’s analysis is examined carefully, however, it is clear that we have not been treated to an honest assessment of the merits of the exclusionary rule, but have instead been drawn into a curious world where the ‘costs’ of excluding illegally obtained evidence loom to exaggerated heights and where the ‘benefits’ of such exclusion are made to disappear with a mere wave of the hand.” “The exclusionary rule’s deterrent effect, however, does not rest primarily on ‘penalizing’ an individual officer into future conformity with the Constitution. Rather, it rests on ‘its tendency to promote institutional compliance with Fourth Amendment requirements on the part of law enforcement agencies generally.’...It creates an incentive for the police as an institution to train its officers to conform with the Constitution. Consequently, the important question is not whether it is of any benefit to ‘penalize’ the objectively reasonable conduct of an individual officer, but rather whether failure to do so will lower the incentive for institutional compliance.” State v. Oakes, 598 A.2d 119 (Vt. 1991); see also Com. v. Edmunds, 586 A.2d 887, 899 (Pa. 1991). “Indeed, we disagree with that Court’s suggestion in Leon that we in Pennsylvania have been employing the exclusionary rule all these years to deter police corruption. We flatly reject this notion. We have no reason to believe that police officers or district justices in the Commonwealth of Pennsylvania do not engage in ‘good faith’ in carrying out their 53
duties. What is significant, however, is that our Constitution has historically been interpreted to incorporate a strong right of privacy, and an equally strong adherence to the requirement of probable cause under Article 1, Section 8. Citizens in this Commonwealth possess such rights, even where a police officer in ‘good faith’ carrying out his or her duties inadvertently invades the privacy or circumvents the strictures of probable cause. To adopt a ‘good faith’ exception to the exclusionary rule, we believe, would virtually emasculate those clear safeguards which have been carefully developed under the Pennsylvania Constitution over the past 200 years.” Com. v. Edmunds, 586 A.2d at 399. “Initially, we note that the exclusionary rule, although primarily directed at police misconduct, is also appropriately directed at the warrant issuing process, and that it is somewhat odd to suppose that the exclusionary rule was not designed to deter the issuance of invalid warrants.... If we were to adopt the good faith exception, our practice of declining to address doubtful constitutional issues unless they are essential to the disposition of a case would preclude our consideration of probable cause beyond reviewing whether an officer had an ‘objectively reasonable’ belief in its existence. Absent a meaningful necessity to review probable cause determinations, we conclude that close cases will become ‘both the hardest to decide and the easiest to dispose of under the good faith exception; in such cases the officer’s objective good faith is clearest’...In short, we are simply unable to sanction a practice in which the validity of search warrants might be determined under a standard of ‘close enough is good enough instead of under the ‘probable cause’ standard mandated by article 1 section 7, of our state constitution.” State v. Marsala, 579 A.2d 58 (1990), remanded, 620 A.2d 1293 (Conn. 1993). See also State v. Guzman, 842 P.2d 660, 672, 677 (Idaho 1992). “In sum, the United States Supreme Court has abandoned the original purposes of the exclusionary rule as announced in Weeks and adopted by this Court in Arregui, in that the federal system has clearly repudiated any purpose behind the exclusionary rule other than that of a deterrent to illegal police behavior. Thus, the change in federal law has provided an impetus for a return by this Court to exclusive state analysis.... The exclusionary rule unencumbered by the good faith exception provides incentives for the police department and the judiciary to take care that each warrant applied for and issued is in fact supported by probable cause. In addition to encouraging compliance with the constitutional requirement that no warrant shall issue but upon probable cause, it also lessens the chances that innocent citizens will have their homes broken into and ransacked by the police because of warrants issued upon incomplete or inaccurate information. We believe these are laudable effects of the exclusionary rule which appear to have gone unrecognized by the Leon majority.” State v. Guzman, 842 P.2d at 672, 677. “The Leon good faith exception contemplates that appellate courts defer to trial courts and trail courts defer to the police. It fosters a careless attitude toward details by the police and issuing judicial officers and it even encourages them to attempt to get away with conduct which was heretofore viewed as unconstitutional.... The decision in Leon represents a serious curtailment of the Fourth Amendment rights
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of the individual. But under the broader protection guaranteed the individual under our State Constitution, the State is not permitted to introduce evidence in its case in chief which has been seized without probable cause.” State v. Novembrino, 491 A.2d 37, 45-46 (N.J. 1985). “Whether or not the police acted in good faith here, however, the Leon rule does not help the People’s position. That is so because if the People are permitted to use the seized evidence, the exclusionary rule’s purpose is completely frustrated, a premium is placed on the illegal police action and a positive incentive is provided to others to engage in similar lawless acts in the future. We therefore decline, on State constitutional grounds, to apply the good-faith exception the Supreme Court stated in United States v. Leon.” People v. Bigelow, 488 N.E.2d 451 (N.Y. 1985); See also State v. Grawien, 367 N.W.2d 816 (Wisc.), rev. denied, 371 N.W.2d 375 (1985); State v. Joyce, 639 A.2d 1007 (1994). Other state courts have come to the same conclusion on statutory grounds. See Com. v. Upton, 476 N.E.2d 548 (Mass. 1985); Gary v. State, 422 S.E.2d 426 (Ga. 1992), aff’d, State v. Gary, 432 S.E.2d 123 (Ga. 1993). But see State v. Wills, 524 N.W.2d 507 (Minn. App. 1994); Gordon v. State, 801 S.W.2d 899 (Tex. Crim. App. 1990). Texas has a statutory exclusionary rule, Tex. R. Cr. P. art. 38.23(a) which provides that: “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” TEX. R. CRIM. P. Art. 38.23(a). Tex. R. Cr. P. Art. 38.23(b) provides that: “It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based upon probable cause.” TEX. R. CRIM. P. Art. 38.23(b). The Texas Court of Criminal Appeals has interpreted the language of this particular statute to constitute an express legislative rejection of any Leon “good faith” exception. “We also note the appeals court was incorrect in finding the statute a codification of United States v. Leon,...because Art. 38.23(b) requires a finding of probable cause, while the exception enunciated in Leon appears more flexible in allowing a good faith exception if the officer’s belief in probable cause is reasonable. Thus, we must direct our attention to the validity of the warrant and affidavit without
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recourse to any ‘good faith’ exception to the warrant requirement.” Gordon v. State, 801 S.W.2d 899, 912–13 (Tex. Crim. App. 1990).
SUBJECTIVE INTENT OF THE OFFICERS The Supreme Court has repeatedly held that the “motivations of individual officers,” their “subjective intentions play no role in ordinary probable cause Forth Amendment analysis.” Whren v. U.S., 517 U.S. 806 (1996).
Supreme Court reiterates that it will “not entertain Fourth
Amendment challenges based on the actual motivations of individual officers.” “A traffic-violation arrest will not be rendered invalid by the fact that it was ‘a mere pretext for a narcotics search.” Arkansas v. Sullivan, 532 U.S. 769 (2001). Furthermore, in a unanimous opinion the Supreme Court held that officers may enter a residence without a warrant where there exists an emergency, regardless of the officers “subjective intent.” See Brigham City Utah v. Stuart, 547 U.S. 398, 405 (2006) (“[i]t therefore does not matter here…whether the officers entered the kitchen to arrest respondents and gather evidence against them or to assist the injured and prevent further violence.” The distinction between an “inventory” and a “search” is “based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence of crime.” Florida vs. Wells, 495 U.S. 1 (1990). In City of Indianapolis v. Edmond, “[t]he primary purpose of the Indianapolis narcotics checkpoints is in the end to advance the general interest in crime control…. We decline to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes.” 531 U.S. 32 (2000). The Court held that it “cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.” However, in practice, courts, of necessity, regularly look to an officers, purpose or subjective intent when making such determinations. For instance, in Bond v. U.S., an officers purpose in
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squeezing a bag in a closed compartment was “exploratory”, and thus a “physical manipulation of petitioner’s bag [that] violated the Fourth Amendment.” 529 U.S. 334, 339 (2000). In U.S. v. Green, officers could not search the passenger compartment of a vehicle pursuant to New York v. Belton, where Defendant was arrested some six to ten feet away from his vehicle. “The principle behind Belton and Chimel is [protection of] police officers and citizens who may be standing nearby from the actions of an arrestee who might gain access to a weapon or destructible evidence…. Although Green tried to flee…at the time the search occurred he was handcuffed and lying face down on the ground surrounded by four police officers, approximately six to ten feet from his vehicle.… Because none of the concerns articulated in Chimel and Belton regarding law enforcement safety and the destruction of evidence [were] present in this case, the Government cannot justify the search of Green’s vehicle under Belton or Chimel.” U.S. v. Green, 324 F.3d 375, 379 (2003). Driver’s license roadblocks used to enforce general criminal investigations are prohibited, in Texas. “While the statute purports to give peace officers the right to stop and detain motorists for the limited purpose of checking their driver’s or operator’s licenses, it does not authorize fishing expeditions.” Meeks vs. State, 692 S.W.2d 504 (1985). Torres v. Madrid, 141 S. Ct. 989 (2021) The Supreme Court clarified that shooting a fleeing suspect constitutes a "seizure" for 4th Amendment purposes, stressing that the test is not: (1) whether the officer physically seized the individual, or (2) whether the defendant believed he was seized, but (3) whether the officer "objectively" intended to restrain the defendant's freedom of movement restating that only an objective test is appropriate because it “allows the police to determine in advance whether the
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conduct contemplated will implicate the Fourth Amendment.” Michigan v. Chesternut, 486 U.S. 567, 574, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988). At issue is whether police use of force in attempting arrest results in a seizure, even when the person ultimately evades capture. Here, after mistaking the petitioner for another person, police officers opened fire when the person fled. The Petitioner was shot twice but managed to escape, ending up at a hospital over 75 miles away. However, based on the nature of her injuries, that hospital airlifted her back to the city she fled and she was promptly arrested. Petitioner brought suit under 42 U.S.C. §1983, claiming the police officers “eprived her of her constitutional rights when acting under the color of state law by applying excessive force, “making the shooting an unreasonable seizure under the Fourth Amendment.” The majority explains the long, precedential history culminating in two distinct types of seizures under the Fourth Amendment, one by control and the other by force. Each of these seizures is subject to its own rule. California v. Hodari D., 499 U.S. 621 (1991). The Court states arrest is a seizure by control. However, the seizure at issue here is one by force, which does not require control or submission. The reason for the distinction of seizure by force results from its nature which makes it difficult, if not impossible, to know the specific instant when the subject becomes seized (is it when a subject is grabbed, tackled, pinned down, hand-cuffed, etc.?) or how long the control must be maintained (for a moment, seconds, minutes, etc.?). Justice Gorsuch dissenting states the majority’s definition of seizure isn’t support by the Constitution or common sense. He argues the reasoning presented by Torres uses nothing more than the dicta provided in Hodari which is non-binding. He accuses the majority of resorting to a “schizophrenic reading” of the word seizure and surmises this is a signal something “has gone seriously wrong.” He likens the majorities use of precedent and history to “wandering about and
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randomly grabbing volumes off the shelf, plucking out passages [they] like, scratching out bits [they] don’t, before pasting [a] new pastiche in the U.S. Reports.”
INVADING THE THRESHOLD OF ONE’S HOME “[T]he Fourth Amendment has drawn a firm line at the entrance to the house, holding that absent exigent circumstances, the threshold of the home may not reasonably be crossed without a warrant.” Payton v. New York, 445 U.S. 573 (1980). Police must obtain an arrest warrant to arrest someone in their home, even where the suspect voluntarily opens the door and exposes himself to public view in response to police knocks. Payton establishes a bright-line rule that “any physical invasion of the structure of the home, ‘by even a fraction of an inch,’ is too much.” McClish v. Nugent, 483 F.3d 1231 (11th Cir. 2007).
CONSENSUAL SEARCHES (CO-OCCUPANT’S REFUSAL) In Georgia v. Randolph, 547 U.S. 103 (2006), the Court held that law enforcement officers’ warrantless search of a shared home pursuant to the consent of one resident violated the Fourth Amendment rights of another resident who is present and expressly objects to the search. The Court reasoned that the Fourth Amendment’s prohibition of unreasonable searches and seizures forbade law enforcement officers to conduct a warrantless search of a home pursuant to the consent of the wife when the husband was present on the scene and objected to the search.
REMOVING THE NON-CONSENTING SPOUSE FROM PREMISIS Fernandez v. California, 571 U.S. 292 (2014). Police entered the Fernandez residence, responding to a family disturbance. When officers asked for consent to search Fernandez refused. After arresting and removing Fernandez from the
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premises, those same officers returned about an hour later, and after obtaining his wife’s consent proceeding to search the home. Justice Alito, writing for the majority, noted: “[t]he Court’s opinion [in Randolph] went to great lengths to make clear that its holding was limited to situations in which the objecting occupant is present.” Id. at 301. The Court held “that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason.” Id. at 303. Justices Scalia and Thomas concurred in the judgment, yet wrote separately to state that they would “find this a more difficult case if it were established that property law did not give petitioner’s cotenant the right to admit visitors over petitioner’s objection.” Id. at 1138 (Scalia, J., concurring). This rationale is consistent with Justice Scalia’s previously employed reasoning in U.S. v. Jones, 565 U.S. 400 (2012) and Florida v. Jardines, 569 U.S. 1 (2013), where he used property law to decide Fourth Amendment issues. In their dissent, Justices Ginsburg, Sotomayor, and Kagan note that the case should have been easily resolved adhering to the warrant requirement. “Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it, never mind ample time to secure the approval of a neutral magistrate.” Fernandez v. California, 571 U.S. 292 (2014).
EXIGENT CIRCUMSTANCES Kentucky v. King, 563 U.S. 452 (2011) Although warrantless searches are presumptively unreasonable under the Fourth Amendment, the Court has carved out exceptions to that general rule for (among other things) exigent circumstances, such as the imminent destruction of evidence. The lower courts had held that the exigent circumstances rule did not apply when the exigency was created by police conduct,
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but there was no consensus on how to determine when police impermissibly create such exigencies. In Kentucky v. King, the Court, in an opinion by Justice Alito, held that the exigent circumstances rule applies as long as the police do not use an actual or threatened violation of the Fourth Amendment to gain entry to a premises. The case arose from efforts by police to follow a suspected drug dealer into an apartment building. Although the officers were unsure which apartment the suspect had entered, they smelled marijuana wafting from one apartment: they then knocked on that door and identified themselves as police. When they heard shuffling noises inside the apartment after the knock, the police believed evidence was being destroyed and entered the apartment without a warrant; inside, they found respondent Hollis Deshaun King, along with drugs and drug paraphernalia. In reaching its holding, the Court rejected several other tests adopted by lower courts generally and the Kentucky Supreme Court in this case: it reasoned, for example, that a “bad faith” requirement would be inappropriate because only objective reasonableness is relevant; that a “reasonable foreseeability” test would be too unpredictable and difficult to quantify; that requiring police to get a warrant as soon as they have probable cause would “unjustifiably interfere[] with legitimate law enforcement strategies” and is inefficient; that a test that inquires into whether police used standard or good investigative tactics would “fail[] to provide clear guidance for law enforcement officers”; and that a test that examines whether the police action “would cause a reasonable person to believe that entry is imminent and inevitable” turns on too many “subtleties.” The Court explained that its test will still provide “ample protection for the privacy rights that the Amendment protects.” Occupants may still decline to open the door or speak with police, and if they choose to open the door they can refuse to answer questions or allow the police to come
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inside. “Occupants who…elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue,” the Court warns. In her dissent, Justice Ginsburg contends that the Court’s decision “arms police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases”. In a largely rhetorical question, she also asks whether our homes will actually remain secure “if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity[.]” To maintain the protections of the Fourth Amendment, she argues, the exigent circumstances must exist “when the police come on the scene, not subsequent to their arrival, prompted by their own conduct.” Justice Ginsburg notes that if the police had not knocked, no evidence would have been destroyed; she emphasizes that even the Court’s opinion concedes that “[p]ersons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police,” and here the suspects would not have anticipated police discovery but for the knock. The police could have posted officers outside the apartment while obtaining a warrant for entry because there was “very little risk” that the evidence would have been destroyed while awaiting a warrant. In its opinion, the Kentucky Supreme Court had assumed without deciding that exigent circumstances were present in this case, and the Court’s opinion did not resolve that question, instead leaving that factual question open for the Kentucky Supreme Court to decide on remand.
WARRANTLESS BLOOD DRAW Missouri v. McNeely, 569 U.S. 141 (2013). Shortly after 2am, a Missouri police officer stopped McNeely’s truck after observing him speed and cross the centerline repeatedly. Id. After failing field-sobriety tests and declining to take a portable breath analysis test, McNeely was arrested. Id. While in transport to the station
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house, McNeely indicated that he would refuse to take a breath test at that location. Id. Without attempting to secure a warrant, the officer took McNeely to the hospital. Id. There, he advised McNeely that refusal to submit voluntarily to a blood draw to test for alcohol would result in an automatic suspension of his license. Id. McNeely nonetheless refused. Id. “The officer then directed a hospital lab technician to take a blood sample, and the sample was secured at approximately 2:35 a.m. Subsequent laboratory testing measured McNeely’s BAC at 0.154 percent, which was well above the legal limit of 0.08 percent.” Id. The Court noted that a warrantless search of a person is reasonable only if it falls within a recognized exception. Id. at 148 (citing United States v. Robinson, 414 U.S. 218, 224 (1973)). “That principle applies to the type of search at issue in this case, which involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual’s “most personal and deep-rooted expectations of privacy.” Winston v. Lee, 470 U.S. 753, 760 (1985); see also Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 616 (1989); McNeely, 569 U.S. at 148. The Court noted that there are exigencies which are so compelling that law enforcement may engage in a warrantless search which is, at that time, objectively reasonable. Id. These include: “law enforcement’s need to provide emergency assistance to an occupant of a home, Michigan v. Fisher, 558 U.S. 45, 47–48 (2009) (per curiam), engage in “hot pursuit” of a fleeing suspect, United States v. Santana, 427 U.S. 38, 42–43 (1976), or enter a burning building to put out a fire and investigate its cause, Michigan v. Tyler, 436 U.S. 499, 509–510 (1978). As is relevant here, we have also recognized that in some circumstances law enforcement officers may conduct a search without a warrant to prevent the imminent destruction of evidence. See Cupp v. Murphy, 412 U.S. 291 (1973); Ker v. California, 374 U.S. 23, 40–41 (1963) (plurality opinion). While these contexts do not necessarily involve equivalent dangers, in each a warrantless search is potentially reasonable because “there is compelling need for official action and no time to secure a warrant.” Tyler, 436 U.S., at 509; McNeely, 569 U.S. at 159 (emphasis added).
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The Court went on to note that “[w]hether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” Id. at 145. “While the desire for a bright-line rule is understandable, the Fourth Amendment will not tolerate adoption of an overly broad categorical approach that would dilute the warrant requirement in a context where significant privacy interests are at stake.” Id. at 158. Further, “the general importance of the government’s interest in this area does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impracticale in a particular case.” Id. at 160. Writing for another 5 to 4 majority, Justice Sotomayor holds that: “…natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment’s search warrant requirement for nonconsensual blood testing in all drunk-driving cases, and instead, exigency in this context must be determined case by case based on the totality of the circumstances.” McNeely, 569 U.S. at 145 (2013). In a characteristically short dissent, Justice Thomas wrote: “Because the body’s natural metabolization of alcohol inevitably destroys evidence of the crime, it constitutes an exigent circumstance. As a result, I would hold that a warrantless blood draw does not violate the Fourth Amendment.” McNeely, 569 U.S. at 176 (Thomas, J., dissenting).
DNA SAMPLE TAKEN AT BOOKING Maryland v. King, 569 U.S. 435 (2012). In 2009, Alonzo King was arrested for assault. King, 569 U.S. at 440. As part of the booking procedure for serious crimes used in Wilcomico County, Maryland, King’s DNA sample was taken by applying a buccal swab to the inside of his cheeks. Id. The DNA was found to match that from a rape case, six years prior. Id. The Court of Appeals of Maryland later “ruled that the DNA taken when King was booked for the 2009 charge was an unlawful seizure because obtaining and using the cheek swab was an
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unreasonable search of the person” and set aside his conviction. Id. In an opinion authored by Justice Kennedy, the Supreme Court reversed the judgment of the Maryland court. Id. Justice Kennedy noted that “[a]lthough the DNA swab procedure used here presents a question the Court has not yet addressed, the framework for deciding the issue is well established.” Id. at 1968. The Justice went on to note that “[a] buccal swab is a far more gentle process than a venipuncture to draw blood. It involves but a light touch on the inside of the cheek; and although it can be deemed a search within the body of the arrestee, it requires no ‘surgical intrusions beneath the skin.’” Id. at 446 (citing Winston v. Lee, 470 U.S. 753, 760 (1985)). In some circumstances, such as “[w]hen faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable.” Illinois v. McArthur, 531 U.S. 326 (2001). “Those circumstances diminish the need for a warrant, either because ‘the public interest is such that neither a warrant nor probable cause is required,’ or because an individual is already on notice, for instance because of his employment, or the conditions of his release from government custody, that some reasonable police intrusion on his privacy is to be expected. The need for a warrant is perhaps least when the search involves no discretion that could properly be limited by the “interpo[lation of] a neutral magistrate between the citizen and the law enforcement officer.” Maryland v. King, 569 U.S. 435, 447 (2013) (internal citations omitted). Under this background, Justice Kennedy went on to note that the Maryland DNA Collection Act, which allowed the collection of King’s DNA, calls for “all arrestees charged with serious crimes [to] furnish the sample on a buccal swab applied, as noted, to the inside of the cheeks.” Id. at 447–448. In this scenario, the arrestee is “already in valid police custody for a serious offense supported by probable cause.” Id. Justice Kennedy also described how he determined the sample taking to be reasonable when compared to the interest served. “The legitimate government interest served by the Maryland
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DNA Collection Act is one that is well established: the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.” Id. Further, “[a] suspect’s criminal history is a critical part of his identity that officers should know when processing him for detention.” Id. at 450. In conclusion, Justice Kennedy offered: In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent, not only so that the proper name can be attached to his charges, but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment. King, 569 U.S. at 465-466. Justice Scalia in his dissent, which was joined by Justices Ginsburg, Sotomayor, and Kagan, Justice Scalia sarcastically opined that: “Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.” King, 569 U.S. at 482 (Scalia, J., dissenting).
DEADLY FORCE AND THE FOURTH AMENDMENT Mullenix v. Luna, 136 S.Ct. 305 (2015) (per curiam). In Mullenix, a police officer approached Israel Leija, Jr., at a drive-in restaurant with an arrest warrant. 136 S.Ct. 305, 306 (2015). The suspect next took police on a high-speed chase for nearly 20 minutes at speeds between 85 and 100 miles per hour. Id. Leija called police dispatch
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twice during the chase, claiming he had a gun and threatening to shoot at the police if they did not terminate their pursuit. Id. Trooper Chadrin Mullenix and other officers continued to pursue Leija. Officer Mullenix drove to a nearby location to set up spikes to stop the suspect, but after learning that other spikes had been set up at different locations, he began to consider shooting at Leija’s car to disable it instead. Id. When Leija’s car approached, Mullenix fired six shots, the car struck the spike strips, hit the median and rolled several times. Id. at 307. It was later determined that Leija died as a result of being shot my Mullenix. Id. Respondents sued Mullenix, alleging he violated the Fourth Amendment by using excessive force against Leija. Id. Mullenix moved for summary judgment, arguing he was entitled to qualified immunity, but the District Court denied his motion. Id. The District Court found that there were genuine questions of fact regarding whether, under the circumstances, Mullenix acted as a reasonable officer would have. Id. Mullenix appealed, but the Fifth Circuit affirmed and subsequently denied his petition for a hearing. In a per curiam opinion, the Court held that there was no clearly established law that the use of deadly force directed at a fleeing suspect posing a danger to others violates the Fourth Amendment. The Court held that the proper question in such scenarios is whether, under the specific context of the case, the Fourth Amendment prohibited the officer’s conduct. Id. at 308. The Court concludes that because it was not clearly established that Officer Mullenix’s actions were inappropriate under the specific circumstances, the appellate court and district court erred in holding that he was not entitled to qualified immunity. Id. at 312. In a concurring opinion, the late Justice Scalia articulated that it was conceded in the case that Mullenix did not shoot to kill or wound Leija, but only to cause the car to stop by destroying
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the engine. Id. at 313. Scalia wrote that the Fourth Amendment requires us to ask whether it was reasonable to shoot at the engine in light of the risk Leija. Id. Justice Sotomayor dissented, arguing that it was clear under Fourth Amendment precedent that an officer in Mullenix’s position should not have acted as he did unless there was a significant interest that outweighed the intrusion into Leija’s Fourth Amendment rights.
Id.
Justice
Sotomayor asserts that under the circumstances, Mullenix had no plausible reason to choose to shoot at the suspect rather than wait for the results of the spike strips. Id. at 315. She concludes that because of this, she would hold that Mullenix violated Leija’s “clearly established right to be free of intrusion absent some governmental interest.” Id. Sotomayor also asserts that the majority focused on the wrong legal question by dwelling on the imminence of the threat posed by the suspect. Id. at 316.
EROSION OF THE EXCLUSIONARY REMEDY Given the steady erosion of that remedy in recent years, Justice Gorsuch’s views may prove critical, particularly given that many of the opinions limiting the application of the exclusionary remedy were decided by a 5 to 4 vote on the Court. Obviously, Gorsuch and Kavanagh’s vote will prove critical with respect to whether the exclusionary rule will continue as an effective and meaningful remedy for Constitutional violations. This past decade has seen a trend toward a much more forgiving attitude when it comes to illegal and unconstitutional police conduct. The Court’s new majority seems increasingly willing to sacrifice citizens’ Constitutional rights and liberties in order to obtain evidence and convictions of those that our Constitution and those same officers are supposed to protect. For example, in Hudson v. Michigan, 547 U.S. 586 (2006), Justice Scalia, writing for a 5 to 4 majority, opines that
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the Court has never held evidence inadmissible, simply because it was obtained by reason of an unconstitutional search or seizure. “We have never held that evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police.” (emphasis supplied). In Herring v. U.S., 555 U.S. 235 (2009) the Chief Justice, writing for another 5 to 4 majority, takes this concept one step further, holding that in order to warrant suppression of evidence obtained by exploitation of an illegal search or seizure the law enforcement’s unconstitutional conduct must have been “culpable” and “deliberate.” “Our cases establish that such suppression is not an automatic consequence of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here the error was the result of isolated negligence, attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence…The principal [social] cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free—something that offends basic concepts of the criminal justice system.” In Davis v. U.S., 569 U.S. 229 (2011) Justice Alito goes even further, taking issue with Scalia’s insistence that the Court has never held that evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Justice Alito announces that the Court has now “abandoned the old ‘reflexive’ application” of the exclusionary remedy, opting instead for a balancing test, a “cost-benefit analysis,” limiting exclusion to those where the police’ misconduct is culpable and flagrant. “We came to acknowledge the exclusionary rule for what it undoubtedly is—a ‘judicially created remedy’ of the Court’s own making…We abandoned the old, ‘reflexive’ application of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits…We also recalibrated our cost-benefit analysis in exclusion cases to focus the inquiry on the ‘flagrancy of the police misconduct at issue.”
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Again, Justice Alito, writing for a 6-member majority,26 makes clear that whether courts will apply the exclusionary remedy depends upon a cost/benefit balancing test. “But when the police act with an objectively ‘reasonable good-faith belief’ that their conduct is lawful…the ‘deterrence rationale loses much of its force,’ and exclusion cannot ‘pay its way.’”
BURDEN SHIFTING However, there is considerable difference between excusing illegal police conduct (not applying an exclusionary remedy) where it can be shown to have been engaged in “reasonable good faith,” and shifting the burden to the accused to show that same was “deliberate,” “culpable,” and “flagrant.”
THE VANISHING “FRUIT OF THE POISONOUS TREE” DOCTRINE s
Even more troubling is the most recent of these exclusionary rule cases. In Utah v. Strieff, 136 S.Ct. 2056 (2016), Justice Thomas, writing for a 5-member majority,27 held that an outstanding warrant, discovered as the direct result of his illegal stop, admittedly without reasonable suspicion, somehow “attenuated” the contraband discovered incident to that arrest. “To enforce the Fourth Amendment's prohibition against ‘unreasonable searches and seizures,’ this Court has at times required courts to exclude evidence obtained by unconstitutional police conduct. But the Court has also held that, even when there is a Fourth Amendment violation, this exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits…We hold that the evidence the officer seized as part of the search incident to arrest is admissible because the officer's discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.” Strieff, 136 S.Ct. at 2059.
Kagan joined Alito’s opinion and Sotomayor wrote a concurrence. This opinion, written after Justice Scalia’s death, was 5 to 3, with Justice Breyer joining the majority. Accordingly, the addition of Justice Gorsuch would, in all likelihood, not change the outcome. 26 27
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This balancing test, weighing the “deterrence benefits” of applying the exclusionary rule against its “social costs,” described by the Court as “letting guilty and possibly dangerous defendants go free,” is a test that will leave the accused citizen with a difficult, if not impossible burden. In her dissent, Justice Sotomayor seems to understand the sophistry of accepting the prospect that we have been promised fundamental Constitutional rights, without providing any meaningful remedy for their violation. “It is tempting in a case like this, where illegal conduct by an officer uncovers illegal conduct by a civilian, to forgive the officer. After all, his instincts, although unconstitutional, were correct. But a basic principle lies at the heart of the Fourth Amendment: Two wrongs don’t make a right. When ‘lawless police conduct’ uncovers evidence of lawless civilian conduct, this Court has long required later criminal trials to exclude the illegally obtained evidence.” Strieff, 136 S.Ct. at 2065 (internal citations omitted). Whether a long-time, well-settled doctrine or a fresh new concept, the impact of this new cost/benefit balancing test upon remedying constitutional violations is obvious. It would appear that henceforth it may become incumbent upon defense counsel not just to establish that the contraband or incriminating evidence was discovered by reason of a Constitutional violation, but to demonstrate that the police conduct was culpable, deliberate and flagrant, as well as illegal. Moreover, Gorsuch’s vote could be critical to any interpretation and/or reevaluation of this more “rigorous” test for whether to provide a meaningful remedy for Constitutional violations, particularly given the close majority insistent upon this requirement. Perhaps Justice Sotomayor’s pithy and telling dissent will have some impact on our junior Justice: “We must not pretend that the countless people who are routinely targeted by police are ‘isolated.’ They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.”
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CONCLUSION “Federal prosecutors, when they rise in court, represent the people of the United States. But so do defense lawyers—one at a time.” Kaley v. U.S., 571 U.S. 320 (2014), Roberts, Ch.J., dissenting. The Chief Justice is speaking to each one of us, Brothers and Sisters, paying tribute to the critically important role our defense function plays in the criminal justice system we all serve. Our collective voices are strong and our skills and talents formidable. Let us stand up to injustice and raise our voices in protest. We owe that to ourselves, our clients and our profession. .
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Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course June 24-26, 2021 Hyatt Regency San Antonio, TX
Topic: Intersection of Hip Hop in the Criminal Justice System When Your Art Form Can and Will be Used Against You
Speaker:
Drew Findling
The Findling Law Firm, P.C. One Securities Centre 3490 Piedmont Road, Suite 600 Atlanta, Georgia 30305 (404) 460-4500 phone drew@findlinglawfirm.com email www.findlinglawfirm.com web
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
34th Annual Rusty Duncan Advanced Criminal Law Course Presented by the Texas Criminal Defense Lawyers Association
Saturday, June 26, 2021 Hyatt Regency San Antonio Riverwalk San Antonio, Texas Drew Findling The Findling Law Firm, P.C. One Securities Centre 3490 Piedmont Road, Suite 600 Atlanta, Georgia 30305 (404) 460-4500 drew@findlinglawfirm.com www.findlinglawfirm.com
Intersection of Hip Hop in the Criminal Justice System: When Your Art Form Can and Will be Used Against You
Some say that Hip Hop developed in the 1970’s as an urban movement in New York City. Since its inception, in state and federal courts, rural and urban areas, around the United States, we have seen law enforcement/prosecutors attempt to use this art form unfairly to investigate/arrest/prosecute individuals. Below we have created a worksheet so that defense attorneys have a reference point for ensuring that Hip Hop remains solely an artistic form of expression and not a symbol of crime.
I. Lyrics as Criminal Evidence: Cases A. State v. Skinner, 95 A.3d 236 (N.J. 2014) i. New Jersey rapper, Vonte Skinner was convicted for attempted murder, aggravated assault, and aggravated assault with a deadly weapon with an aggregated 30-year sentence after prosecution read 13 pages of rap lyrics to the jury from Skinner’s notebooks as evidence of his violent intention. ii. Lyrics: “Yo, look in my eyes. You can see death comin' quick. Look in my palms, you can see what I'm gunnin' with. I play no games when it comes to this war shit. If death was a jacket, you would see how the floor fits. Crackin' your chest when I show you how the force spits, Makin’ your mother wish she would have had an abortion.” But these people keep testin' my weapons. I hold my head just to keep from stressin'; Got Beef, I can spit from a distance for instance; A person wouldn’t listen so I hit him with the Smithen; Hauled off 15 rounds, seven missed him; Two to the mask and six to the ribs, listed and flipped him. The safe street squad found him, half his shell missin. I play my position, fall back and watch people keep my enemies real. Close to my twin bitches, hollow heads in the back of they throats mercury drippin'. They spit sickness, poison a person right when they clip him. They don’t call me Threat for nothin’, so pay attention.” iii. The New Jersey Supreme Court reversed Mr. Skinner’s conviction based on the prosecution’s introduction of the lyrics, stating that: 1. “Violent, profane, and disturbing rap lyrics authored by defendant constitute highly prejudicial evidence that bore little or no probative value as to any motive or intent behind the attempted murder offense.” 2. “Probative evidence may not be found in an individual’s artistic endeavors absent a strong nexus between specific details of the artistic composition and the circumstances of the offense.” iv. Montague v. Maryland, 02-CR-17-000378 (2020) 1. Maryland Court of Appeals upheld the admission of rap lyrics under Maryland Rules 401, 402, and 403 which “matched the details of” the underlying murder offense and made references to shooting snitches, which were overheard on a jail call.
2. The Court relied heavily on the connection between these rap lyrics and the underlying accusation as being substantive evidence of the offense rather than being used for impeachment. “Indeed,some rap lyrics—and other artistic expressions—that have a close nexus to the details of an alleged crime should be admitted if they are relevant and survive a weighing of probative value against unfair prejudice.” At 12. B. Elonis v. US, 135 U.S. 2001 (2015) i. After Anthony Elonis’ wife left him, he posted rap lyrics on Facebook that threatened his ex-wife, coworkers, a kindergarten class, local police and an FBI agent. Mr. Elonis was charged with five counts of violating 18 U.S.C. §875(c), making it a federal crime to transmit “any communication containing any threat…to injure the person of another.” Federal prosecutors used the aforementioned Facebook posts as evidence. As an aspiring rap artist, Elonis moved to exclude those posts, claiming that they were a form of artistic expression. His motion was denied, and he was convicted. ii. Writing for the majority to reverse the conviction, Chief Justice Roberts stated that Prosecution must show that Elonis’ posts were intended to be threats and not merely artistic expressions, which the government failed to prove. Therefore, the government’s efforts were not sufficient to support a conviction. C. US v. Moore, 639 F.3d 443 (2011) i. Mr. Moore was charged with conspiracy to distribute crack cocaine and cocaine. Prosecution introduced videos of Moore rapping as evidence, which included lyrics stating “The police all know me and I have narcotics…I brought the rack even though cocaine prices are up.” The state court ruled that the lyrics were admissible under Rule 404(b) because the government showed Defendant’s knowledge of drug distribution (he knew cocaine prices, drug code words, etc.). ii. The U.S. Court of Appeals, District of Columbia Circuit, affirmed the conviction, holding that the recordings were appropriate “to prove that he knew cocaine prices, used drug code words, and sold drugs to supplement his income.” D. Jamal Knox v. Commonwealth of Pennsylvania, 3 WAP 2017. Supreme Court Cert. Denied OT 2018 (Doc. 18-949). i. Mr. Knox uploaded a song on YouTube titled “Fuck the Police” which referenced by name two Pennsylvania officers who had arrested Knox in an earlier case. Knox was charged with and convicted of two counts of terroristic threats and two counts of intimidation of witness. On appeal, the Pennsylvania supreme court affirmed the conviction but the justices were split on the intent required to criminalize speech which would otherwise be protected under the first amendment. ii. Two Amicus briefs are of particular note here, one filed by NACDL and one by a group of artists and industry professionals including Michael Render “Killer Mike” and Chancelor Bennett “Chance the Rapper”,
which outline the history and development of Hip Hop as an art form and the potential impact of this case. II. Lyrics as Criminal Evidence: Articles A. Elizabeth Shumejda, The Use of Rap Music Lyrics as Criminal Evidence, 25 Ent., Arts, & Sports L.J. 3 (2014) i. In this law review article, Elizabeth Shumejda presents a groundbreaking analysis wherein she discusses how rap lyrics have been used in the past for criminal evidence, whether as confessions, proof of motive or intent, character evidence, or past criminal acts. Whichever way lyrics are used in court, Shumejda argues they are seriously problematic in guaranteeing a defendant’s rights in court. First, “negative connotations [are] associated with rap music as a genre in general,” and, therefore, juror bias is likely to occur when prosecutors create a direct link between the defendant and his authoring of rap lyrics. Shumejda also accurately explains that introducing a defendant’s lyrics as evidence is a direct violation of the First Amendment because of rap’s political/social commentaries of inner city life and artistic expression. B. Lorne Manly, “Legal Debate on Using Boastful Rap Lyrics as a Smoking Gun” New York Times (26 March 2014) http://www.nytimes.com/2014/03/27/arts/music/using-rap-lyrics-as-damningevidence-stirs-legaldebate.html. i. In this New York Times article, Manly introduces one example of the many unfair uses of rap lyrics by discussing the case of Antwain Steward, a local Virginia rapper who was charged with murder after detectives found a YouTube video of Mr. Steward rapping violent lyrics. In addition, this article is helpful in listing numerous examples where prosecutors used the tactic of introducing rap lyrics as evidence. C. Alyssa Rosenberg, “How cops and prosecutors are putting rap music on trial” Washington Post (21 May 2014) https://www.washingtonpost.com/news/actfour/wp/2014/05/21/how-cops-and-prosecutors-are-putting-rapmusic-on-trial/ i. Washington Post writer Rosenberg uses Erik Nielson, a University of Richmond professor studying the relationship between African American culture and law enforcement as a guiding light in this article. While more and more people are growing up listening to Hip Hop, and therefore may understand it better, others do not and, as jurors, will likely misinterpret a rapper’s intentions. Nielson points out that jurors, and listeners alike, should remember that rappers have “real and fictional personas.” Rappers’ lyrics are less of a reflection of their criminal acts and tendencies, and more of pressure to “meet authenticity requirements” and making a “rhymed verse.” D. Nick Wing, “If The Criminal Justice System Treated Other Music The Way It Treats Rap” Huffington Post (4 April 2015) http://www.huffingtonpost.com/2015/04/02/criminal-justice-system-raplyrics_n_6978682.html i. Wing raises the million-dollar question in this Huffington Post article by showing music lyrics of pop, to rock, to country artists with equally
violent words: “Would we ever have suspected Johnny Cash of actually being a cold-blooded killer?” Wing’s answer is no, arguing that prosecutorial practice is solely being used against rap, and therefore solely being used against young black men. E. Drew Findling, “When Your Art Can and Will Be Used Against You: Hip-hop, Expression, and the Criminal Justice System.” The Champion, December 2018 issue. Available at https://www.nacdl.org/champion.aspx?id=54279, also attached with these materials. III. Linguistics’ effect on access to Constitutional rights A. Louisiana v. Demesme, 228 So.3d 1206 (2017) i. After two minor females claimed he sexually assaulted them, Mr. Demesme was interrogated by two New Orleans officers. Demesme told the detectives, “…just give me a lawyer dog.” After not being provided with a lawyer, he later admitted to the crime and was charged with aggravated rape and indecent behavior with a juvenile. Despite the defense arguing that Mr. Demesme’s constitutional rights were denied after asserting his right to counsel, the court ruled that “the defendant’s ambiguous…reference to a ‘lawyer dog’ does not constitute an invocation of counsel that warrants termination of the interview.” ii. The Supreme Court of Louisiana upheld the conviction, stating “if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable police officer in light of the circumstances would have understood only that the suspect might be invoking his right to counsel, the cessation of questioning is not required.” iii. ***While this case is not necessarily about Hip Hop, linguistic slang associated with this case is utilized in the previously discussed cases regarding rap lyrics. IV. Black Speech vs. Freedom of Speech A. Andrea Dennis, Poetic (In)Justice? Rap Lyrics as Art, Life, and Criminal Evidence, 31 Colum. J.L. & Arts 1 (2007) i. Dennis takes a deep analytical dive into both the use and meaning of rap lyrics, warning society that this scrutiny of rap lyrics may only negatively impact the “production and quality of art when individuals must worry that their artistic sensibilities and creative expressions might later be used against them in a criminal prosecution.” Nevertheless, aside from creating an article to forewarn, Dennis discredits “the judicial assumptions” of admitting rap lyrics and suggests a solution to “evaluating the admissibility and credibility of lyrical evidence.
Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course June 24-26, 2021 Hyatt Regency San Antonio, TX
Topic: The Integrity of our Convictions: Holding Stakeholders Accountable in an Era Of Criminal Justice Reform
Speaker:
Barry Scheck
40 Worth St Rm 701 New York, NY 10013-2994 (917) 796-1150 phone bscheck@innocenceproject.org email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
48 GEO. L.J. ANN. REV. CRIM. PROC. (2019)
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PREFACE THE INTEGRITY OF OUR CONVICTIONS: HOLDING STAKEHOLDERS ACCOUNTABLE IN AN ERA OF CRIMINAL JUSTICE REFORM BARRY SCHECK* INTRODUCTION Over the last twenty-seven years, I’ve been privileged to work with colleagues on hundreds of cases where the innocent are exonerated and, with surprising frequency, the guilty are identified. This work inevitably raises the perennial National Transportation Safety Board question the “innocence movement” has asked from the beginning: What went wrong and how do we fix it so it doesn’t happen again?1 By its very nature, this is a “system” question involving multiple stakeholders that intersects with complex ethical, legal, and scientific issues. In the last decade, drawing from a rich “safety” literature in the high-risk fields of medicine and aviation, an interdisciplinary cadre of researchers and reformers have been seeking to translate some of the successful models from aviation and medicine to the criminal justice arena.2 A rich interdisciplinary “sentinel event” literature has developed3 involving “safety experts,” psychologists, and criminal justice stakeholders from practice and academia. These experts have explored everything from how to develop effective “checklists” for specific tasks to all stakeholder reviews of “near misses” and total system failures like wrongful convictions.4 The goal is to create mechanisms that help multiple stakeholders continually learn from error, investigate root causes, and develop a “non-blaming,” “just culture,” with “forward-looking accountability.”5 At the same time, however, there is no real dispute that deliberate rule breakers must be
* I am a Professor of Law, Benjamin N. Cardozo School of Law, a Co-Founder of the Innocence Project, a past president of the National Association of Criminal Defense Lawyers, and a Trustee of the NACDL Foundation. I list these affiliations to make it clear that the views expressed here are entirely my own and should not be attributed to these organizations. Importantly, I got all the good ideas from colleagues at those institutions and the bad ideas are entirely mine. A special thanks to Clyde Rastetter, Tim Pellegrino, Gabriela Figueras, and Alexandra Skinnion for their research, patience, and good editing; Ellen Yaroshefsky, Jeff Fagan, Cynthia Conti-Cook, Julie Ciccolini, Nina Morrison, Rebecca Brown, Vanessa Potkin, Meryl Schwartz, Norman Reimer, and Jim Doyle for their insight and encouragement; and Dmitriy Tishyevich, Jay Lefkowitz, Jackie Haberfeld, and their colleagues at Kirkland & Ellis for their support on the police misconduct database project. © 2019, Barry Scheck. 1. See JIM DWYER ET AL., ACTUAL INNOCENCE xx–xxi, 361 (2003). 2. See James M. Doyle, Essay: A “Safety Model” Perspective Can Aid Diagnosis, Prevention, and Restoration After Criminal Justice Harms, 59 SANTA CLARA L. REV. (forthcoming 2019) (manuscript at 5–7). See generally Symposium, Voices from the Field: An Inter-Professional Approach to Managing Critical Information, 31 CARDOZO L. REV. 2037 (2010) [hereinafter Voices from the Field]. 3. For the latest compilation of citations, see Doyle, supra note 2 (manuscript at 6 n.20). The National Institute of Justice also has a continually updated bibliography of “sentinel event” literature. See Sentinel Events Initiative: A Compiled Bibliography, NAT’L INST. OF JUSTICE, https://www.nij.gov/topics/justicesystem/Pages/sentinel-events-bibliography.aspx [https://perma.cc/8T5S-3NQM] (last updated Mar. 13, 2019). 4. See Doyle, supra note 2 (manuscript at 3–25); see also New Perspectives on Brady and Other Disclosure Obligations: Report of the Working Groups on Best Practices, 31 CARDOZO L. REV. 1961, 1972–77, 2005–06, 2011–13, 2018–22, 2033 (2010) [hereinafter New Perspectives on Brady: Report of Working Groups]; Voices from the Field, supra note 2, at 2038–56, 2061–74; see also Ellen Yaroshefsky, Foreword: New Perspectives on Brady and Other Disclosure Obligations: What Really Works, 31 CARDOZO L. REV. 1943, 1943–46 (2010). 5. See Doyle, supra note 2 (manuscript at 2, 14, 29–33); see also Yaroshefsky, supra note 4, at 1943–46.
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identified and appropriately sanctioned.6 This is no easy task. Even in medicine, a “non-blaming” culture that helps increase the reporting of errors often conflicts with sanctioning “errors committed by incompetent, intoxicated or habitually careless clinicians, or by those unwilling to follow reasonable safety rules and standards.”7 In the criminal justice realm, efforts to obtain transparency and consensus about sanctioning reckless or deliberate rule breaking by prosecutors, police, defense counsel, and even judges—the sworn stakeholders in our system we count on the most to act with integrity, follow the law, and uphold justice— routinely encounter deep-seated institutional resistance.8 Nonetheless, this is an especially exciting time to address these system integrity issues. We have extraordinarily powerful tools to collect, assess, and analyze criminal justice data as never before so that the actions of all the stakeholders in our system can become more transparent. And we are unquestionably in an era of criminal justice reform where there is a determination to make fundamental changes. There is agreement on the left and the right that misconduct by prosecutors and police must be addressed more systematically and transparently to ensure public respect and trust.9 There is agreement on the left and the right that all criminal justice stakeholders have an ethical obligation to ensure that only validated and reliable forensic science is used in courts and that multiple stakeholders have a duty to correct and notify litigants who could have been adversely affected by unreliable scientific tests or testimony.10 There is agreement on the left and the right that strong measures must be taken to redress the problem of mass incarceration on the “front end” (bail reform, diversion, decriminalization) as well as the “back end” (reform of mandatory minimum sentencing, parole, and probation)11 such that redressing prior excessive, unfair, or racially biased sentences ought to be seen as a “conviction integrity” issue by prosecutors, defense attorneys, courts, and governors. What follows is a discussion about a series of related initiatives that have emerged organically from the trenches to hold different criminal justice stakeholders accountable to ethical rules and constitutional norms. I will discuss (1) Brady orders; (2) the need for the public, prosecution, and defense to each maintain databases of police misconduct; (3) the 6. See Doyle, supra note 2 (manuscript at 14); see also Cynthia E. Jones, Here Comes the Judge: A Model for Judicial Oversight and Regulation of the Brady Disclosure Duty, 46 HOFSTRA L. REV. 87, 109 (2017); Yaroshefsky, supra note 4, at 1943–46. 7. ROBERT M. WACHTER, PERSONAL ACCOUNTABILITY IN HEALTHCARE: SEARCHING FOR THE RIGHT BALANCE 1 (2012), http://www.ajustnhs.com/wp-content/uploads/2012/06/accountability-and-patient-safety2012.pdf [https://perma.cc/36MU-DVWK]; see Robert M. Wachter & Peter J. Pronovost, Balancing “No Blame” with Accountability in Patient Safety, 361 NEW ENG. J. MED. 1401, 1402 (2009); see also Voices from the Field, supra note 2, at 2038–56. 8. See Bruce A. Green, Prosecutors and Professional Regulation, 25 GEO. J. LEGAL ETHICS 873, 879 (2012); Bruce Green & Ellen Yaroshefsky, Prosecutorial Accountability 2.0, 92 NOTRE DAME L. REV. 51, 79– 80 (2016); see also infra note 44 and accompanying text. 9. See Green & Yaroshefsky, supra note 8, at 66–85. 10. See PRESIDENT’S COUNCIL OF ADVISORS ON SCIENCE AND TECHNOLOGY, FORENSIC SCIENCE IN CRIMINAL COURTS: ENSURING SCIENTIFIC VALIDITY OF FEATURE-COMPARISON METHODS 124–45 (2016), https://bit.ly/2xKHNwS [https://perma.cc/3ZUL-3FLK]; see also TEX. CODE CRIM. PROC. ANN. art. 38.01 (West 2019); Ex parte Robbins, 478 S.W.3d 678, 695–706 (Tex. Crim. App. 2014) (Cochran, J., concurring); Brandi Grissom, Forensic Science Panel Calls for Review of Past Arson Cases, TEX. TRIBUNE (Sept. 9, 2011, 2:00 PM), https://www.texastribune.org/2011/09/09/science-panel-agrees-review-past-arson-evidence [https:// perma.cc/VDA5-RD53]. 11. See Nicholas Fandos, Senate Passes Bipartisan Criminal Justice Bill, N.Y. TIMES (Dec. 18, 2018), https://www.nytimes.com/2018/12/18/us/politics/senate-criminal-justice-bill.html [https://nyti.ms/2GqmNnb]; Osita Nwanevu, The Improbable Success of a Criminal-Justice-Reform Bill Under Trump, NEW YORKER (Dec. 17, 2018), https://www.newyorker.com/news/news-desk/the-improbable-success-of-a-criminal-justice-reformbill-under-trump [https://perma.cc/5JJH-Q7XJ].
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importance of Police Standards and Training (POST) Decertification Statutes; (4) New York’s newly established Prosecutorial Conduct Commission; (5) the need to establish ethical rules for prosecutors, defense lawyers, and judges to help forensic science service providers correct errors and protect the integrity of forensic science testimony; and (6) three new developments in the work of Conviction Integrity Units. Each of these initiatives requires transparency, ongoing collection of data, and cooperative action by multiple stakeholders. If expanded and undertaken together, they would be synergistic, help stakeholders do their jobs, and promote public confidence in the integrity of our system. I. BRADY ORDERS The Brady order initiative arose in 2011 as a direct result of two high-profile cases involving prosecutorial misconduct that had dramatically different outcomes: the Michael Morton exoneration in Williamson County, Texas, and the trial of U.S. Senator Ted Stevens in Washington, D.C.12 The Innocence Project had been representing Michael Morton for decades in an effort to obtain DNA testing on probative biological evidence to prove he did not murder his wife Christine.13 Michael’s defense at trial was that after he left home to go to work at 6 A.M., someone entered his home from a wooded area behind the house, bludgeoned Christine to death while she was sleeping in her bed (their three-and-ahalf-year-old son Eric was in the house), and left after stealing some property.14 On a Friday before a Monday trial, Michael’s defense lawyers asked that the trial court examine in camera the lead investigator’s report because they believed it contained “Brady material.”15 The trial court asked prosecutor Ken Anderson whether he had any favorable information to disclose to the defense, to which Anderson said he did not. The trial court ordered the report produced, prosecutor Ken Anderson delivered it in a sealed manila envelope, and on Monday the court ruled the report contained no Brady information.16 The prosecution proceeded to trial without the lead investigator testifying so that the defense, under Texas rules at the time, never saw the investigator’s complete report.17 Morton was convicted and sentenced to life in prison.18 Twenty-five years later, DNA testing was conducted on a blue bandana found outside the Morton home in a wooded area.19 Blood on the bandana was determined to be from Christine Morton.20 Male epithelial cells, a CODIS hit revealed, came from a convicted felon, Mark Alan Norwood.21 Around the same time, the Innocence Project defense team,22 through an open record act request, obtained the lead investigator’s file that contained indisputable exculpatory information, such as a report from a neighbor that he saw a green van suspiciously parked behind the Morton home around the time of the murder 12. See Green & Yaroshefsky, supra note 8, at 75–77, 100; Barry Scheck, Four Reforms for the TwentyFirst Century, 96 JUDICATURE 323, 330–33 (2013). 13. See Pamela Colloff, The Innocent Man, Part Two, TEX. MONTHLY (Dec. 2012), http://www. texasmonthly.com/articles/the-innocent-man-part-two [https://perma.cc/CD78-6BPG] [hereinafter Colloff, Innocent Man, Part Two]. 14. See Pamela Colloff, The Innocent Man, Part One, TEX. MONTHLY (Nov. 2012), http://www. texasmonthly.com/politics/the-innocent-man-part-one [https://perma.cc/NX8U-ZVY5] [hereinafter Colloff, Innocent Man, Part One]. 15. See Scheck, supra note 12, at 331; Colloff, Innocent Man, Part Two, supra note 13. 16. See Scheck, supra note 12, at 330–31; Colloff, Innocent Man, Part Two, supra note 13. 17. See Colloff, Innocent Man, Part One, supra note 14. 18. See Colloff, Innocent Man, Part Two, supra note 13. 19. See id. 20. See id. 21. See id. 22. To name just a few members, Nina Morrison, countless pro bono lawyers from Weil, Gotschal in New York, Texas counsel John Raley, Gerry Goldstein, Cynthia Orr, Patricia Cummings, and myself.
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and “had observed its driver walking into the overgrown area that extended up to his privacy fence” as if planning a break-in.23 When the sealed manila envelope prosecutor Ken Anderson submitted to the trial court was opened, the exculpatory information in the lead investigator’s report was not present, plainly removed by Anderson.24 Although Anderson’s conduct arguably violated a number of Texas criminal statutes, the safest course to avoid statute of limitations problems was to charge him with continuing contempt of court, a misdemeanor, for deliberately misrepresenting that he had disclosed all favorable Brady information.25 Utilizing a rarely invoked Texas procedure known as a Court of Inquiry, which allows criminal charges to be brought against public officials upon a showing of probable cause, the Innocence Project team was able to get former prosecutor Anderson, then a sitting felony court judge, charged with contempt for this Brady violation.26 He entered a plea, was sentenced to ten days in jail (served five), was disbarred, and resigned from the bench.27 In the midst of those tumultuous and widely publicized proceedings, the Innocence Project team discovered a similar unsolved break-in murder in Austin, Texas: Debra Baker had been killed two years after Christine Morton’s murder. At the Innocence Project’s request, the Austin police reinvestigated the Baker homicide, found probative biological evidence at the crime scene, and conducted DNA tests that matched Norwood.28 He was ultimately convicted of both homicides.29 The Morton case, and Michael Morton’s powerful personal advocacy30 shook the Texas criminal justice system, and especially prosecutors, to the core.31 A proud “Tea Party” red legislature passed the Michael Morton Act, which instituted open file discovery and contains an explicit order and acknowledgment before a plea or trial that prosecutors “shall disclose” and itemize all “information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged”32—tracking the language of ABA Rule 3.8(d) and the same longstanding Texas ethical rule.33 The Morton Act also amended the State’s ethical rules to start the statute of limitation for grievances 23. Colloff, Innocent Man, Part Two, supra note 13. 24. See id. 25. See id.; Scheck, supra note 12, at 332 n.50. 26. See Scheck, supra note 12, at 331–32. 27. Chuck Lindell, Ken Anderson Gets 10-Day Sentence, Surrenders Law License, STATESMAN (Nov. 9, 2013, 12:01 AM), https://www.statesman.com/news/20131109/ken-anderson-gets-10-day-sentence-surrenders-law-license [https://perma.cc/7AW7-T8V9]; Claire Osborn, How Ken Anderson Was Released After Only Five Days in Jail, STATESMAN (Nov. 16, 2013, 12:01 AM), https://www.statesman.com/NEWS/20131116/How-Ken-Anderson-wasreleased-after-only-five-days-in-jail [https://perma.cc/AB37-U24Q]. 28. See Colloff, Innocent Man, Part Two, supra note 13. 29. Ryan Autullo, Another Life Sentence for Norwood, and Some Comfort for Victim’s Family, STATESMAN (Sept. 24, 2016, 12:01 AM), https://www.statesman.com/news/20160924/another-life-sentence-for-norwoodand-some-comfort-for-victims-family [https://perma.cc/2UVR-XC3F]. 30. A television advertisement featuring Michael Morton also ran in New York during a successful “Remove the Blindfold” campaign to reform New York’s discovery statute. See New Yorkers United for Justice, It’s Time to Fix New York’s Outdated Discovery Laws, YOUTUBE (Feb. 19, 2019), https://youtu.be/G7xUmHv-U_k; Dan M. Clark, Cuomo, Lawmakers Announce Deal on State Budget, Criminal Justice Reforms, N.Y.L.J. (Mar. 31, 2019, 8:14 AM), https://www.law.com/newyorklawjournal/2019/03/31/cuomo-lawmakers-announce-deal-on-statebudget-criminal-justice-reforms [https://perma.cc/R6UX-SRX4]. 31. See Gerald S. Reamey, The Truth Might Set You Free: How the Michael Morton Act Could Fundamentally Change Texas Criminal Discovery, or Not, 48 TEX. TECH. L. REV. 893, 899–901 (2016). 32. TEX. CODE CRIM. PROC. ANN. art. 39.14(h), (j) (West 2019); see also Reamey, supra note 31, at 903–29; Brandi Grissom, From the Tea Party, a Softer Line in Criminal Justice Discussions, TEX. TRIBUNE (July 10, 2013, 6:00 AM), https://www.texastribune.org/2013/07/10/tea-party-influence-felt-criminal-justice [https:// perma.cc/4K38-FNHL]. 33. MODEL RULES OF PROF’L CONDUCT r. 3.8(d) (AM. BAR ASS’N 2019); TEX. DISCIPLINARY RULES OF PROF’L CONDUCT r. 3.09(d) (2019).
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related to a prosecutor’s misconduct that leads to a wrongful conviction at the time of a wrongfully imprisoned person’s release from prison, not the time of the act.34 The result in the Morton case stood in “stark contrast” to the resolution of an investigation into prosecutorial misconduct in the case of Senator Ted Stevens that unfolded during this same period.35 In that high stakes federal prosecution, Judge Emmett Sullivan became so upset at what he believed were serious Brady violations by Assistant United States Attorneys (AUSAs) that he appointed a special prosecutor to investigate.36 The special prosecutor’s report concluded that the Brady violations were “deliberate” and “systematic” but that Judge Sullivan could not hold the AUSAs in contempt because he never issued a direct written or oral order.37 Instead, whenever the defense raised the alarm about a possible failure to disclose favorable evidence, he only intoned, as so many judges have understandably done for years, that the government is mindful of its Brady obligations.38 Now, it must be emphasized, Judge Sullivan has become the leading and most influential judicial proponent of standing Brady orders to be enforced by courts.39 In response to expressions of outrage from the left and right over the Morton and Stevens cases, former federal district court judge Nancy Gertner and I naively proclaimed that if defense lawyers continually filed pretrial motions for an order that tracked their jurisdiction’s version of ABA Rule 3.8(d), judges and prosecutors would welcome the clarity provided by the rule—an “Occam’s razor” which would cut through the “vexing problems that have hamstrung meaningful compliance with Brady.”40 At the very least, we believed, it would be difficult for anyone to insist on the record that prosecutors were not bound by the jurisdiction’s ethical rules, which are often authorized by statute.41 We were wrong. Many defense lawyers were afraid to ask for the order fearing that prosecutors and judges would think, just by requesting it, they were accusing their adversaries of unethical conduct. Nor did prosecutors or judges have much trouble ignoring the ethical rule mandating timely pre-trial disclosure of “favorable information” (information that tends to negate guilt or mitigate the offense). They just assumed that the post-conviction Brady standard for vacating a conviction, “materiality,”42 must be regarded as the pre-trial Brady standard for disclosure.43 Even more troubling, Judge Sullivan, the American Bar Association (ABA), the National Association of Criminal Defense Lawyers (NACDL), and scores of distinguished former prosecutors have encountered implacable resistance from the U.S. 34. TEX. GOV’T CODE ANN. § 81.072(b-1) (West 2019); see also Grissom, supra note 32. 35. Scheck, supra note 12, at 330. 36. See Emmet G. Sullivan, How New York Courts Are Keeping Prosecutors in Line, WALL ST. J. (Nov. 17, 2017, 6:09 PM), https://www.wsj.com/articles/how-new-york-courts-are-keeping-prosecutors-in-line-1510953911 [https://perma.cc/CA2U-Z5U5]. 37. See id. 38. See ROB CARY, NOT GUILTY: THE UNLAWFUL PROSECUTION OF U.S. SENATOR TED STEVENS 94 (2014). 39. See Sullivan, supra note 36; Hon. Emmet G. Sullivan, Enforcing Compliance with ConstitutionallyRequired Disclosures: A Proposed Rule, 2016 CARDOZO L. REV. DE NOVO 138, 138–39 (2016). For a thoughtful and edifying deep dive into the Stevens case, see CARY, supra note 38. 40. Barry Scheck & Nancy Gertner, Combatting Brady Violations with an ‘Ethical Rule’ Order for the Disclosure of Favorable Evidence, 37 CHAMPION 40, 40 (2013). 41. Id. at 41. 42. Information is considered “material” for purposes of vacating a conviction “when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Smith v. Cain, 565 U.S. 73, 75 (2012) (quoting Cone v. Bell, 556 U.S. 449, 469–70 (2009)). “A reasonable probability does not mean that the defendant ‘would more likely than not have received a different verdict with the evidence,’ only that the likelihood of a different result is great enough to ‘undermine[] confidence in the outcome of the trial.’” Id. (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). 43. See Jones, supra note 6, at 99–102.
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Department of Justice (DOJ) over the last decade in their unsuccessful efforts to get agreement on a Brady order for the District of Columbia, an amendment to Federal Rule of Criminal Procedure 16, or even a revision of the DOJ’s Justice Manual that tracks ABA Rule 3.8(d).44 Outside of the Michael Morton Act in Texas, proponents of a Brady order have met with sporadic success from individual state and federal judges.45 But in 2017, there was a significant breakthrough in the State of New York that will hopefully be emulated by state judiciaries and legislatures across the country46: Based on a recommendation from the Justice Task Force (JTF)—a multi-stakeholder group selected by the Chief Judge of the New York Court of Appeals—New York adopted a model Brady order that is distributed to prosecutors and the defense at first appearance when the defense makes a discovery demand.47 The order directs prosecutors to make “timely” disclosure of all “[f]avorable information,” and lays out five specific, but non-exhaustive, categories of such information.48 Two of these categories—“[i]nformation that tends to exculpate, reduce the degree of an offense, or support a potential defense to a charged offense,” and “[i]nformation that tends to mitigate the degree of the defendant’s culpability as to a charged offense, or to mitigate punishment”—track New York’s version of ABA Rule 3.8(d).49 A third category focuses on information that could be used to impeach the credibility of a government witness and offers five specific examples.50 A fourth category addresses “[i]nformation that tends to undermine evidence of the defendant’s identity as [the] perpetrator” of a crime and information that tends to show third-party guilt.51 And a fifth category provides the useful reminder that “[i]nformation that could affect in the defendant’s 44. See Bruce A. Green, Federal Criminal Discovery Reform: A Legislative Approach, 64 MERCER L. REV. 639, 652–55, 660–61 (2013); Green, supra note 8, at 879–82; Jones, supra note 6, at 88–89, 124; Sullivan, supra note 39, at 141–47. Another example of DOJ’s intransigence is illustrated by its vigorous opposition to the creation of additional state rules of professional conduct derived from ABA Model Rules 3.8(g) and (h)— intended to “codify judicial pronouncements regarding prosecutors’ post-conviction obligations”—which were adopted in 2008. Green, supra note 8, at 889–93. Ironically, these provisions had been adopted “without controversy [and] after extensive participation by prosecutors,” some of whom had expressed strong support and praised them for providing a coherent standard for prosecutors to follow. Id. at 890. 45. See Green & Yaroshefsky, supra note 8, at 73–77. 46. See Sullivan, supra note 36. 47. See id.; N.Y. STATE JUSTICE TASK FORCE, REPORT ON ATTORNEY RESPONSIBILITY IN CRIMINAL CASES 1, 15–17 (2017), http://www.nyjusticetaskforce.com/pdfs/2017JTF-AttorneyDisciplineReport.pdf [https://perma. cc/W7C2-ME26]. 48. N.Y. STATE JUSTICE TASK FORCE, supra note 47, at 15–16. 49. Id. at 15 (categories (b) and (c)); see also N.Y. RULES OF PROF’L CONDUCT r. 3.8(b) (N.Y. STATE BAR ASS’N, amended 2018). 50. N.Y. STATE JUSTICE TASK FORCE, supra note 47, at 15 (category (a)): Information that impeaches the credibility of a testifying prosecution witness, including (i) benefits, promises, or inducements, express or tacit, made to a witness by a law enforcement official or law enforcement victim services agency in connection with giving testimony or cooperating in the case; (ii) a witness’s prior inconsistent statements, written or oral; (iii) a witness’s prior convictions and uncharged criminal conduct; (iv) information that tends to show that a witness has a motive to lie to inculpate the defendant, or a bias against the defendant or in favor of the complainant or the prosecution; and (v) information that tends to show impairment of a witness’s ability to perceive, recall, or recount relevant events, including impairment resulting from mental or physical illness or substance abuse. 51. Id. at 16 (category (d)): Information that tends to undermine evidence of the defendant’s identity as a perpetrator of a charged crime, such as a non-identification of the defendant by a witness to a charged crime or an identification or other evidence implicating another person in a manner that tends to cast doubt on the defendant’s guilt.
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favor the ultimate decision on a suppression motion” must be disclosed in a timely fashion before the hearing.52 Most importantly, each category of favorable information is directly based on cases from the New York Court of Appeals, the State’s highest court,53 and the order explicitly warns prosecutors that “[f]avorable information shall be disclosed whether or not it is recorded in tangible form, and irrespective of whether the prosecutor credits the information.”54 The order was carefully designed to serve at least four different, but related, objectives simultaneously: compliance alone helps stakeholders do their jobs; it trains lawyers and judges; its “duty to learn” requirement gets stakeholders to search together for what they do not know individually; and it sets up a “just culture” approach to enforcement, encouraging remediation and reserving serious sanctions only for deliberate rule breakers. First, the order serves as the sort of real-time checklist that cognitive scientists and safety experts recommend. By routinely reviewing all the categories of information required to be disclosed at each court appearance, the order induces the prosecutor, the court, and the defense to communicate and make sure critical information is not missed,55 much in the way flight crews go through their checklists before an airplane takes off or an Intensive Care Unit team goes through a checklist in an emergency room.56 This construct is based on the belief that compliance alone helps stakeholders do their jobs. Secondly, since the requirements laid out in New York’s model Brady order embody black letter state and federal constitutional decisions, the order serves an important educational function not just for the prosecutor but for the judge and the defense.57 Take, for example, the reminder that objectively favorable information must be disclosed even if the prosecutor genuinely believes the information is false.58 I distinctly remember during our JTF Brady Order discussions when a judge cited the cases supporting this rule. I had forgotten them, if I even knew them in the first place! But I was by no means alone in my ignorance in a room full of distinguished prosecutors, judges, and defense counsel. This was quite significant because such disclosure is, by its nature, counterintuitive and very hard for a prosecutor to make in close cases where he or she strongly believes in a defendant’s guilt.59 Similarly, the rule that favorable oral information must be disclosed whether or not it is recorded in tangible form is surprising and counterintuitive to some prosecutors who were taught during long witness interviews not to write anything down until the end to avoid documenting too many evolving and inconsistent statements.60 Notwithstanding the fact that the New York State District Attorneys Association’s Ethics Handbook instructed prosecutors to use the State’s version of ABA Model
52. Id. (category (e)). 53. See id. at 3, 7–8, 12–13, 15–16. 54. Id. at 16 (emphasis added). 55. See Jones, supra note 6, at 113–15; see also New Perspectives on Brady: Report of Working Groups, supra note 4, at 1972–77, 2005–06, 2011–13, 2018–22, 2033. 56. See ATUL GAWANDE, THE CHECKLIST MANIFESTO 32–37 (2009). 57. See Jones, supra note 6, at 128–29; New Perspectives on Brady: Report of Working Groups, supra note 4, at 1972–77, 2005–06, 2018–22; N.Y. STATE JUSTICE TASK FORCE, supra note 47, at 15–16. 58. See N.Y. STATE JUSTICE TASK FORCE, supra note 47, at 16; see also DiSimone v. Phillips, 461 F.3d 181, 195 (2d Cir. 2006) (noting that “[t]o allow otherwise would be to appoint the fox as henhouse guard”); People v. Baxley, 639 N.E.2d 746, 749 (N.Y. 1994) (“[N]ondisclosure cannot be excused merely because the trial prosecutor genuinely disbelieved [the Brady information].”). 59. See Alafair S. Burke, Talking About Prosecutors, 31 CARDOZO L. REV. 2119, 2133–35 (2010). 60. See N.Y. STATE JUSTICE TASK FORCE, supra note 47, at 16; United States v. Rodriguez, 496 F.3d 221, 226 (2d Cir. 2007) (“The obligation to disclose information covered by the Brady and Giglio rules exists without regard to whether that information has been recorded in tangible form.”); see, e.g., People v. Bond, 735 N.E.2d 1279, 1281 (N.Y. 2000).
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Rule 3.8(d) as the disclosure rule,61 and that Formal Opinion 2016-3 of the New York City Bar Association’s Ethics Committee made plain in an extensive opinion that disclosure of favorable information was required “as soon as reasonably practicable” without regard to “materiality,”62 there was still confusion as to whether an ethical rule should be incorporated into a “Brady” order. Probably the pivotal persuasive argument, the crucial framing of the issue, was the need to clarify for the bench and bar that “Brady” is evaluated differently in the pre-trial context than in the post-trial context: The pre-trial Brady disclosure rule is whether information is “favorable,” whereas the post-conviction Brady rule is whether the undisclosed information was material to the outcome of the case.63 It was important to say explicitly that the favorable information test is not just a longstanding ethical rule, but is the clear, easily understood intent of Brady, a prophylactic standard designed to ensure fair trials and prevent post-conviction Brady violations.64 This point is perhaps best illustrated by the memorable oral argument in Smith v. Cain where the attorney for the Orleans Parish District Attorney kept arguing, to the evident distress of Justices Scalia, Kennedy, and Sotomayor, that Brady didn’t require the disclosure of a prior inconsistent statement because it was not material to the outcome of the case: Justice Scalia: . . . [S]top fighting as to whether it should be turned over[.] Of course, it should have been turned over. I think the case you’re making [here] is that it wouldn’t have made a difference. . . . [B]ut surely it should have been turned over. Justice Kennedy: . . . [Y]ou were asked what is—what is the test for when Brady material must be turned over. And you said whether or not there’s a reasonable probability . . . that the result would have been different. That’s the test for when there has been a Brady violation. You don’t determine your Brady obligation by the test for the Brady violation. You’re transposing two very different things . . . . Justice Sotomayor: I said there were two prongs to Brady. Do you have to turn it over, and, second, does it cause harm. And the first one you said not. That—it is somewhat disconcerting that your office is still answering equivocally on a basic obligation as one that requires you to have turned these materials over . . . whether it caused harm or not.65
Third, the Brady order notes the following: The District Attorney and the Assistant responsible for the case have a duty to learn of such favorable information that is known to others acting on the government’s behalf in the case, including the police, and should therefore confer with investigative and prosecutorial personnel who acted in this case and review their and their agencies’ files directly related to the prosecution or investigation of th[e] case.66
Eventually, the “duty to learn” and “confer” requirement will become the most important provision of the Brady order. It is intentionally constructed to be, as much as possible, a cooperative, multi-stakeholder enterprise. Defense lawyers should be making specific requests all the time: Have you examined the homicide, drug, or 61. See DIST. ATTORNEYS ASS’N OF THE STATE OF N.Y., “THE RIGHT THING”: ETHICAL GUIDELINES FOR PROSECUTORS 12 (2016), http://www.daasny.com/wp-content/uploads/2016/02/2016-Ethics-Handbook.pdf [https://perma.cc/LA4J-8WLU]. 62. N.Y. City Bar Ass’n Comm. on Prof’l Ethics, Formal Op. 2016-3 (2016); accord ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 09-454 (2009). 63. See N.Y. STATE BAR ASS’N, REPORT OF THE TASK FORCE ON CRIMINAL DISCOVERY 58–59 (2015), http:// www.nysba.org/WorkArea/DownloadAsset.aspx?id=54572 [https://perma.cc/9E4J-VBVQ]. 64. See, e.g., United States v. Sudikoff, 36 F. Supp. 2d 1196, 1198–99 (C.D. Cal. 1999); see also Jones, supra note 6, at 99–104. 65. Jones, supra note 6, at 103 (quoting Transcript of Oral Argument at 49, 51–53, Smith v. Cain, 565 U.S. 73 (2012) (No. 10-8145)). 66. N.Y. STATE JUSTICE TASK FORCE, supra note 47, at 15.
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other agency’s file yet? Have you checked with Victim Services? Have you talked to Officer Jones yet about any favorable evidence? In far too many wrongful conviction cases, the undisclosed Brady material was in a police file the prosecutors didn’t examine.67 Significantly, in an era where law enforcement is continually employing powerful investigative technologies and collecting huge amounts of data about people, their associations, their social media communications, their proximity to criminal incidents, their movements, their DNA, and their biometric characteristics,68 the defense must be very aggressive: Does the prosecution know if the police conducted facial recognition database searches of videos of the incident, whether it be from surveillance cameras or body cameras, to assist in finding witnesses who could provide favorable information, or alternative suspects? Would the prosecution consent, or the judge order, facial recognition database searches of crucial videos,69 or information from Automated License Plate Readers (ALPRs) in the area of the criminal offense for this purpose?70 Would the prosecution or police consent, or the court order, running probative unidentified fingerprints through the latest version of the national fingerprint database,71 or running a DNA profile obtained from items law enforcement neglected to test through state or federal DNA databases?72 All of these searches could yield decisive exculpatory evidence and they each involve databases and sophisticated technology exclusively in the possession of the state. Pursuant to a Brady order, courts should have the power to order such searches, subject to appropriate protective safeguards that avoid inappropriate disclosure of private information or information that could endanger law enforcement officers.73 Similarly, the neighborhood intelligence databases kept by prosecutors or police are likely repositories of favorable information: Does law enforcement have in its database information about “crime drivers” (people suspected of being involved in criminal activity) who could be alternate suspects? Are there people in the area where the offense was committed who arguably have a motive, or a history of committing similar crimes?74 Such inquiries, Andrew Ferguson correctly warns, highlight the most difficult Brady problem posed by “big data prosecution systems”—they have not been engineered to “flag” Brady information for the defense. Consequently, as the use of these systems spreads, law enforcement is increasingly in constructive possession of an unstructured trove of favorable information with no robust way to search, find, and retrieve it.75 67. See Causes of Wrongful Convictions, MID-ATL. INNOCENCE PROJECT, https://exonerate.org/causeswrongful-convictions/#Government%20Misconduct [https://perma.cc/GM3L-TZN9] (last visited May 17, 2019). 68. See Andrew Guthrie Ferguson, Big Data Prosecution & Brady, 67 UCLA L. REV. (forthcoming 2020) (manuscript at 3) (on file with the author). 69. See id. (manuscript at 29–32). 70. See Sarah Brayne, The Criminal Law and Law Enforcement Implications of Big Data, 14 ANN. REV. L. & SOC. SCI. 293, 299–301 (2018). 71. See generally Simon A. Cole & Barry C. Scheck, Fingerprints and Miscarriages of Justice: “Other” Types of Error and a Post-Conviction Right to Database Searching, 81 ALB. L. REV. 807 (2018) (noting the need for criminal defendants to have access to fingerprint testing both pre- and post-trial). 72. See generally Jason Kreag, Letting Innocence Suffer: The Need for Defense Access to the Law Enforcement DNA Database, 36 CARDOZO L. REV. 805, 810 (2015) (arguing “that there is a constitutional right to post-conviction defense-initiated DNA database searches [under] the Due Process Clause”). 73. New York just recently passed a discovery reform bill that tracks the categories of favorable information outlined in the Brady order and specifically authorizes judges to issue discovery orders for favorable information. See 2019 N.Y. Sess. Laws Ch. 59 (McKinney); see also Clark, supra note 30. 74. See Ferguson, supra note 68 (manuscript at 9) (noting offices across the country that utilize these neighborhood intelligence databases). 75. See id. (manuscript at 56–69).
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Finally, the New York Brady order ends by warning that “[o]nly willful and deliberate conduct will constitute a violation of this order or be eligible to result in personal sanctions against a prosecutor.”76 In keeping with a “just culture” orientation, the objective of the order is to engage judges in finding out what went wrong with the Brady disclosure process, encourage judges to find practical ways to fix it involving multiple stakeholders, and punish only deliberate rule breakers.77 One hopes and expects that judges would encourage prosecutors who make untimely disclosure of favorable information covered by the order to inquire into why the problem occurred. Was it a bureaucratic issue involving a law enforcement entity? The district attorney’s office? Or simply human error? Even if the line prosecutor was blameless, the prosecutor’s supervisor should be notified and a written record made of what occurred for the benefit of other judges, the district attorney’s office, police officials, and judicial administrators, so as to avoid future problems.78 The defense, of course, should get adjournments (or other requested relief) and should be informed of the court’s views as to why the untimely disclosure occurred and what other action, if any, the judge took. But the most critical part of this process is that judges make inquiries and systematically record what they discover.79 Without routine judicial recordkeeping of Brady order violations, systemic bottlenecks will not be identified and prosecutors who deliberately break the rules will not be identified or sanctioned.80 Defense counsel, of course, must zealously call out all failures to make timely disclosure of favorable information. But it’s the judiciary, in the final analysis, that can get all the stakeholders working together and, when appropriate, sanction bad actors.81 New York just passed a comprehensive discovery reform statute that will go into effect in January 2020.82 The statute is not a substitute for the Brady order, but instead contemplates working within the Brady order framework.83 Indeed, having the Brady order in place undoubtedly helped criminal justice stakeholders in New York finally work out this discovery bill, if only because the absence of an “open file” statute put enormous pressure on individual prosecutors to produce favorable information in a timely fashion without a full-fledged commitment from the entire law enforcement bureaucracy to assist. Importantly, the Brady order, working in conjunction with an open file discovery statute, will focus the attention of judges, prosecutors, and defense counsel where it belongs in an era of big data: on all the favorable information in the constructive possession of law enforcement that no one has been able to identify, locate, or retrieve. Statutes that require discovery and Brady disclosure are not self-executing. The best way to ensure that all stakeholders work together to make sure favorable information is disclosed, and to avoid the intentional suppression of exculpatory evidence that caused so much damage to so many people in the Michael Morton and Ted Stevens cases, is to have a court system where a Brady order is fairly and systematically enforced by judges.84
76. N.Y. STATE JUSTICE TASK FORCE, supra note 47, at 16. 77. Id. at 7–8. 78. See Jones, supra note 6, at 129–38. 79. See id. 80. See id. 81. See id. at 87–89. The defense bar in New York is collecting data about the impact of the Brady order and one expects an assessment by the Office of Court Administration will also be forthcoming. 82. See 2019 N.Y. Sess. Laws Ch. 59 (McKinney); Clark, supra note 30. 83. See 2019 N.Y. Sess. Laws Ch. 59 (McKinney). 84. See Jones, supra note 6, at 110–38.
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II. POLICE MISCONDUCT DATABASES FOR THE PUBLIC, DEFENDERS, AND THE PROSECUTION The inability of litigants to see adjudicated findings of misconduct against police officers handed down internally by police departments based on complaints by police personnel or a citizen has long been, in Jonathan Abel’s memorable phrase, “Brady’s blind spot.”85 In twenty-two states and the District of Columbia, internal findings of misconduct are treated as “confidential” employment information beyond the reach of freedom of information law requests and generally only made available to prosecutors or defense lawyers when a case is about to go to trial.86 In fifteen states, police disciplinary records are available on a limited basis, usually arising from suspension, termination, or designated categories of conduct.87 Only thirteen states generally make police disciplinary records public, like other public employees, subject only to protections against unnecessary privacy violations that are standard provisions of freedom of information act statutes.88 Because ninety-seven percent of cases don’t go to trial,89 the full extent of adjudicated findings of police misconduct, as well as the history of civilian complaints against an officer, remains an invisible and dangerous iceberg created by strong police unions.90 Tragically, there have been recent shipwrecks, a series of notorious cases where officers with serious hidden histories of misconduct engaged in problematic behavior that resulted in the death of civilians—frequently members of minority communities—or were personally engaged in corruption that led to wrongful convictions.91 The secrecy that initially enveloped the police misconduct information in 85. Jonathan Abel, Brady’s Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team, 67 STAN. L. REV. 743, 779 (2015). 86. See Robert Lewis et al., Is Police Misconduct a Secret in Your State?, WNYC NEWS (Oct. 15, 2015), https://www.wnyc.org/story/police-misconduct-records [https://perma.cc/4Q6S-EDDD] (collecting relevant authority from Alaska, Colorado, Delaware, the District of Columbia, Idaho, Iowa, Kansas, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, South Dakota, Virginia, and Wyoming). See generally People v. Gissendanner, 399 N.E.2d 924 (N.Y. 1979) and Pitchess v. Superior Court, 522 P.2d 305 (Cal. 1974), for the typical balancing tests judges use in deciding whether to disclose confidential misconduct information when a case is about to go to trial. 87. See Lewis et al., supra note 86 (collecting relevant authority from Arkansas, Hawaii, Indiana, Kentucky, Louisiana, Massachusetts, Michigan, New Mexico, Oklahoma, South Carolina, Tennessee, Texas, Vermont, and West Virginia). Given the passage of California Senate Bill 1421, discussed infra notes 130–40, California now falls into this “limited basis” category. 88. See Lewis et al., supra note 86 (collecting relevant authority from Alabama, Arizona, Connecticut, Florida, Georgia, Maine, Minnesota, North Dakota, Ohio, Utah, Washington, and Wisconsin); Massive Expansion of Police Misconduct Data Tool in Chicago, INVISIBLE INST., http://invisible.institute/press-release/ massive-expansion-of-police-misconduct-data-tool-in-chicago [https://perma.cc/7TT8-VM7H] (last visited June 14, 2019) (noting that police disciplinary records in Illinois are public records). 89. NAT’L ASS’N OF CRIMINAL DEF. LAWYERS, THE TRIAL PENALTY: THE SIXTH AMENDMENT RIGHT TO TRIAL ON THE VERGE OF EXTINCTION AND HOW TO SAVE IT 14 (2018), https://www.nacdl.org/ trialpenaltyreport [https://perma.cc/6R3C-Z6EZ]. 90. See Catherine L. Fisk & L. Song Richardson, Police Unions, 85 GEO. WASH. L. REV. 712, 747–59 (2017). 91. Take just three cases, the deaths of Laquan McDonald, Eric Garner, and Tamir Rice. Officer Jason Van Dyke of the Chicago Police Department, who was convicted of second-degree murder in 2018 for shooting McDonald sixteen times without justification, had a long history of misconduct that included both excessive force allegations and racially insensitive conduct. See Rachel Moran, Police Privacy, 10 U.C. IRVINE L. REV. (forthcoming 2019) (manuscript at 10). NYPD officer Daniel Pantaleo, who used an improper chokehold that was part of the police activity in 2014 that led to the suffocation and death of Eric Garner in Staten Island, New York, had a history of fourteen prior complaints involving excessive force and abusive behavior, including an adjudicated finding of an improper stop. See Carimah Townes & Jack Jenkins, EXCLUSIVE DOCUMENTS: The Disturbing Secret History of the NYPD Officer Who Killed Eric Garner, THINK PROGRESS (Mar. 21, 2017,
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these cases—the “deflections, delays, and denials”—exacerbated volatile situations.92 It intensified the trauma experienced by families of victims, the public, and other members of law enforcement who felt stereotyped and unfairly under suspicion; it distracted from reasoned public discourse about what are invariably hard cases; and it undermined belief in the legitimacy of the courts.93 But the case for developing police misconduct databases for the primary stakeholders at the beginning of a case, not at the end, does not rest on minimizing the prejudicial impact secrecy can have in volatile cases. On the contrary, the case for developing these databases is that controlled and coordinated disclosure of police misconduct information at the commencement of a prosecution will greatly improve the assessment, investigation, and fair adjudication of cases that pass through the justice system every day. Indeed, the very creation of these databases has generated a “virtuous cycle” of change and cooperation in the jurisdictions where they have developed. Ultimately, the impact of developing public, defense, and prosecution police misconduct databases in tandem will be a major step forward in improving the professionalism of policing in America. The “Virtuous Cycle” in New York. The “virtuous cycle” is best illustrated by the history of Legal Aid’s “Cop Accountability” database in New York.94 The project began in 2015, led brilliantly by Cynthia Conti-Cook (a lawyer with a background in civil rights litigation) and Julie Ciccolini (a data analyst).95 By 2016, they had created a database that Legal Aid attorneys could interrogate on their smart phones at first appearance upon learning of the officer who had arrested their clients.96 Every day, the following “public” data is collected: any state or federal judicial decision that finds the officer did not tell the truth or engaged in an act of misconduct; all federal
2:09 PM), https://thinkprogress.org/daniel-pantaleo-records-75833e6168f3 [https://perma.cc/W7CK-SGKN]; see also Cynthia H. Conti-Cook, A New Balance: Weighing Harms of Hiding Police Misconduct Information from the Public, 22 CUNY L. REV. 148, 171–75 (2019) (arguing that disclosure of the prior misconduct would have focused public attention on systemic issues rather than personalizing blame). And the two police officers involved in the fatal shooting of Tamir Rice, a 12-year-old who was playing with a toy gun at a playground, both had significant histories of misconduct—the shooter, Timothy Loehman, had concealed in his application for employment to the Cleveland Police Department that he had been deemed emotionally unstable and unfit for duty by a department in the Cleveland suburb of Independence, and his more experienced partner, Frank Garmback, was the defendant in a civil rights lawsuit (settled for $100,000) that was not in his personnel file. See John Caniglia, Cleveland Paid Out $100,000 to Woman Involving Excessive Force Lawsuit Against Officer in Tamir Rice Shooting, CLEV. PLAIN DEALER (Dec. 4, 2014), http://s.cleveland.com/qZ0pEGF [https://perma. cc/76TP-8B8F]; Christine Mai-Duc, Cleveland Officer Who Killed Tamir Rice Had Been Deemed Unfit for Duty, L.A. TIMES (Dec. 3, 2014, 5:38 PM), https://www.latimes.com/nation/nationnow/la-na-nn-clevelandtamir-rice-timothy-loehmann-20141203-story.html [https://perma.cc/629D-S29P]; James F. McCarty, Justice Department Wants Sweeping Changes in Cleveland Police Department; Report Finds “Systemic Deficiencies”, CLEV. PLAIN DEALER (Dec. 4, 2014), http://s.cleveland.com/m55mGBR [https://perma.cc/GYP8-X8N9]. These infamous cases are by no means isolated events. For a more expansive list of recent incidents across the country where the officers involved in fatal shootings or police scandals had prior hidden histories of misconduct, see Moran, supra (manuscript at 9–13). 92. See Conti-Cook, supra note 91, at 158; see also id. at 153–75. 93. See generally id. 94. See Robert Lewis, More Defenders Get Access to ‘Bad Cops’ Database, WNYC NEWS (Nov. 9, 2017), https://www.wnyc.org/story/more-defenders-get-access-bad-cops-database [https://perma.cc/BE57-ZBNS]; Ali Winston, Looking for Details on Rogue N.Y. Police Officers? This Database Might Help, N.Y. TIMES (Mar. 6, 2019), https://www.nytimes.com/2019/03/06/nyregion/nypd-capstat-legal-aid-society.html [https://nyti.ms/ 2HhR5XV]. 95. See Lewis, supra note 94; Winston, supra note 94. 96. See Jason Tashea, Databases Create Access to Police Misconduct Cases and Offer a Handy Tool for Defense Lawyers, AM. BAR ASS’N J. (Feb. 1, 2016, 3:00 AM), http://www.abajournal.com/magazine/article/databases_ create_access_to_police_misconduct_cases_and_offer_a_handy_tool_f [https://perma.cc/VJ2H-6R9J]; see also Lewis, supra note 94; Winston, supra note 94.
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civil rights settlements or judgments as posted on PACER; and all newspaper articles mentioning the officer.97 Even public information on officer overtime can serve as a valuable source of monitoring information.98 In addition to this impressive trove of “public” data, Legal Aid lawyers can access “work product” information about the officers obtained from clients, lawyers, and investigations of the social media sites of the officers.99 By 2019, Legal Aid launched a “public” misconduct website using some of the public data from its database.100 Prosecutors across New York City were stunned by the impact of the Legal Aid database. Legal Aid lawyers, and other defender offices given access to the database, knew much more about the police who arrested their clients than the prosecutors. Accordingly, counsel to New York County District Attorney Cyrus Vance wrote an angry letter to the NYPD, citing the “frustrations” of all four district attorney offices and demanding that all police misconduct data be shared online with prosecutors at the beginning of the case when charges are being determined and bail is being set.101 The letter makes clear that “[t]his is especially important in an age when media outlets and defense providers are creating their own databases of information about police officer discipline: data that, ironically, is often denied to our office by the NYPD itself.”102 Even more promising, the campaign to repeal Civil Rights Law 50-a (CRL 50-a), and have police rely, like other public servants, on the privacy protections afforded by New York’s freedom of information law, is gaining momentum.103 NYPD 97. See Leon Neyfakh, The Bad Cop Database, SLATE (Feb. 13, 2015, 11:43 AM), https://slate.com/newsand-politics/2015/02/bad-cops-a-new-database-collects-information-about-cop-misconduct-and-provides-it-todefense-lawyers.html#correction [https://perma.cc/6E3T-82LH]; Tashea, supra note 96. 98. See Esha Ray & Graham Rayman, NYPD Cop Lied About Working Overtime, Got Promotion While Under Investigation: ‘The Disciplinary System is Dysfunctional’, N.Y. DAILY NEWS (Mar. 16, 2018, 4:00 AM), https://www.nydailynews.com/new-york/bilks-nypd-unearned-overtime-promoted-article-1.3877314 [https:// perma.cc/4A2P-E55W] (profiling Sgt. Ruben Duque, whose movement log contradicted his cell phone records that showed calls from his home in Staten Island; all told, Sgt. Duque stole over 130 hours of straight time and approximately $15,000 of overtime); see also Sarah Ryley & Dareh Gregorian, EXCLUSIVE: NYPD’s MostSued Cop Also Among Top Overtime Earners for Past Two Years, N.Y. DAILY NEWS (Feb. 17, 2014, 2:30 AM), https://www.nydailynews.com/new-york/exclusive-nypd-most-sued-top-overtime-earners-article-1.1616649 [https://perma.cc/74AZ-SDEW] (profiling Detective Peter Valentin, and noting that nine other officers, who had each been sued seventeen or more times during the past ten years, were in the top fifteen percent of overtime earners in a force of over 33,000). 99. See Tashea, supra note 96. As long as defense organizations and prosecutors make sure to protect and keep confidential the database information they collect and curate themselves, it should be protected against disclosure by public record requests or subpoenas from police unions or others. See Abel, supra note 85, at 783–87 (discussing techniques police officers have employed to access misconduct databases); see also Coronado Police Officers Ass’n v. Carroll, 131 Cal. Rptr. 2d 553, 555–56 (Cal. Ct. App. 2003) (concluding that a public defender’s police officer misconduct file was not subject to disclosure under California’s Public Records Act because the information did not qualify as a public record). 100. See NYC Federal Civil Rights Lawsuit Data, 2015 to June 2018, CAPSTAT, https://capstat.nyc [https:// perma.cc/GX36-SMNM] (last visited Apr. 23, 2019); Winston, supra note 94. 101. See Mike Hayes & Kendall Taggart, The District Attorney Says The NYPD Isn’t Telling Prosecutors Which Cops Have a History of Lying, BUZZFEED NEWS (June 2, 2018, 5:18 PM), https://www.buzzfeednews.com/ article/mikehayes/nypd-cops-lying-discipline-disrict-attorneys-prosecutors [https://perma.cc/3SPY-3STF]; see also James C. McKinley Jr., Manhattan District Attorney Demands Access to Police Records, N.Y. TIMES (July 8, 2018), https://www.nytimes.com/2018/07/08/nyregion/manhattan-district-attorney-police-records.html [https:// nyti.ms/2J91F0G]. 102. See Letter from Carey R. Dunne, Gen. Counsel, Manhattan Dist. Attorney’s Office, to Lawrence Byrne, Deputy Comm’r for Legal Matters (May 18, 2018), as reprinted in Hayes & Taggart, supra note 101. 103. See Yasmeen Khan, NYPD Agrees to Reforms on Disciplinary Practices, Including Pushing for Transparency, WNYC NEWS (Feb. 1, 2019), https://www.wnyc.org/story/panel-concludes-nypd-must-be-farmore-transparent-how-it-disciplines-officers [https://perma.cc/XM5C-QPYK]; City Bar Urges Repeal of Civil Rights Law 50-a to Allow Public Disclosure of Police Records Relating to Police Misconduct – Thirty Two Other Organizations Also Support, N.Y.C. BAR (Apr. 30, 2018), https://www.nycbar.org/media-listing/media/
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Commissioner O’Neill requested an admittedly quick report from an “independent panel” of distinguished experts to address NYPD disciplinary policies and the repeal of CRL 50-a.104 The Report found “a fundamental and pervasive lack of transparency into the disciplinary process and about disciplinary outcomes.”105 It recommended that CRL 50-a be repealed with respect to adjudicated findings of misconduct, and the Police Commissioner wrote an editorial advocating that position.106 The Report expressed concern that “false statement” cases were not being adequately investigated or prosecuted and recommended renewed efforts to monitor evidentiary rulings in suppression hearings that question an officer’s credibility, applicable findings from civil suits, and referrals from prosecutors.107 The Report stopped short of recommending that “unsubstantiated” complaints should be treated as public information, as opposed to “unfounded” complaints, which are complaints shown to have no merit. This is a troubling issue. There is a legitimate concern that the public and stakeholders ought to know about officers who generate numerous serious but “unsubstantiated” complaints because that could be a strong indicator of a problem officer. After all, so many “unsubstantiated” complaints come down to an officer’s word versus a civilian’s, and it’s hard for a civilian without professional assistance to meet the preponderance of the evidence standard under those circumstances, or to retrieve prior complaints to establish a pattern of abuse. On the other hand, making “unsubstantiated” complaints public could invite civilians with a bias against an officer, but not proof, to engage in harassment. Yet, the Report did observe that in Chicago the Invisible Institute posted 240,000 police disciplinary records online within a searchable database, and there was “no increase in threats against officers or their families,” an assessment confirmed by the President of the Chicago Fraternal Order of Police.108 All things considered, given the public distrust of the internal disciplinary system of police departments, it seems best to track and publicly disclose “unsubstantiated” complaints. In short, even before CRL 50-a is repealed, New York City already has three robustly functioning police misconduct databases in each borough: Legal Aid’s public database; Legal Aid’s work-product database supplemented by additions from local defender offices;109 and prosecutor work product databases consisting of their own judgments as to officer credibility that is based on information from assistant district attorneys, witnesses, and the comparatively greater access to adjudicated acts of misconduct within police entities than is available to the defense.110 Mechanisms
detail/city-bar-urges-repeal-of-civil-rights-law-50-a-to-allow-public-disclosure-of-police-records-relating-topolice-misconduct [https://perma.cc/UBQ8-UVTS]. 104. See MARY JO WHITE ET AL., THE REPORT OF THE INDEPENDENT PANEL ON THE DISCIPLINARY SYSTEM OF THE NEW YORK CITY POLICE DEPARTMENT 1–3 (2019), https://www.independentpanelreportnypd.net/assets/ report.pdf. 105. See id. at 17. 106. See id. at 44–46; James O’Neill, Opinion, Let NYC See Police Records, Now: We Must Reform State Law Keeping Disciplinary Actions Secret, N.Y. DAILY NEWS (Feb. 7, 2019, 7:10 PM), https://www. nydailynews.com/opinion/ny-oped-let-nyc-see-police-records-now-20190207-story.html [https://perma.cc/ AV4X-UHYD]. 107. See WHITE ET AL., supra note 104, at 53–54. 108. See id. at 46; see also id. at 45. 109. Except for information released to a defender office pursuant to protective orders that forbid distribution outside the defender office, each defender in New York (Bronx Defender, New York Defender, Brooklyn Defender, and the Queens Defender) has access to the Legal Aid work product website and contributes work product data of its own so that officers can be tracked as they change boroughs. See Lewis, supra note 94. 110. See George Joseph, New York City’s DAs Keep Secret Lists of Cops with Questionable Credibility, GOTHAMIST (Apr. 22, 2019, 9:43 AM), http://gothamist.com/2019/04/22/district_attorney_cop_lists.php [https://perma.cc/6JMK-EHZT].
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for the defense and prosecution to pool resources, share investigative information confidentially, and efficiently identify officers engaged in patterns of misconduct are easy to devise and will become increasingly important when CRL 50-a is repealed. The “Virtuous Cycle” in Chicago. In Chicago, Jamie Kalven, a journalist for the Invisible Institute, and his colleague Craig Futterman, a University of Chicago Law School professor at the Mandel Legal Aid Clinic, worked together on a number of lawsuits seeking access to police misconduct information that culminated in Kalven v. City of Chicago.111 The resulting decision provided public access to adjudicated findings going back decades.112 Based on the Kalven decision, the Invisible Institute systematically collected publicly available misconduct data on Chicago police officers and used it to create the Citizens Police Data Project.113 The positive impact of the Invisible Institute database and the informed journalism it engendered cannot be overstated. Jason Van Dyke, the detective who shot Laquan McDonald, had a history of misconduct that should have been made transparent and resulted in discipline or discharge before the shooting.114 Kalven’s articles in The Intercept, citing community sources, also helped expose the “massive criminal enterprise” Sergeant Ronald Watts and his team ran from inside the Chicago Police Department.115 For “a tax,” Watts and his team protected drug dealers from police and deliberately focused police efforts on competitors; they ran their own drug trade, and planted evidence and fabricated charges against anyone who got in their way.116 To date, sixty-three people framed by Watts and his cohorts have had a combined eighty-two convictions overturned.117 Most importantly, the model of having an independent journalism entity and an academic institution work together to curate a public police misconduct database has distinct advantage in being able to identify patterns that will generate good scholarship and deepen the understanding of stakeholders and the public about the social context of the disciplinary system. For example, the Invisible Institute team was able to show soon after the database was launched that the rate of discipline for 56,459 complaints in the database was about three percent. More than half of the discipline concerned comparatively less serious behavior (wearing uniforms incorrectly, 111. 7 N.E.3d 741, 742–43 (Ill. App. Ct. 2014); see also Lydialyle Gibson, Law Prof and Journalist Team Up to Hold Police Accountable for their Actions, AM. BAR ASS’N J. (Sept. 1, 2016, 4:30 AM), http://www.abajournal.com/ magazine/article/craig_futterman_jamie_kalven_chicago_police_accountability [https://perma.cc/NL3G-LZE6]; Jamie Kalven, Invisible Institute Relaunches the Citizens Police Data Project, INTERCEPT (Aug. 16, 2018, 9:00 AM), https://theintercept.com/2018/08/16/invisible-institute-chicago-police-data [https://perma.cc/634B-XTRQ]; Nissa Rhee, The Transparency Crusaders, CHI. MAG. (Feb. 13, 2017), https://www.chicagomag.com/ChicagoMagazine/March-2017/Why-We-Love-Chicago/The-Transparency-Crusaders [https://perma.cc/B42S-AY3V]. 112. See Gibson, supra note 111; Kalven, supra note 111. 113. See Gibson, supra note 111; Kalven, supra note 111; see also CITIZENS POLICE DATA PROJECT, https:// cpdp.co [https://perma.cc/UBG9-XAP4] (last visited Apr. 24, 2019). 114. See Moran, supra note 91 (manuscript at 10). 115. See Jamie Kalven, Code of Silence: Two Chicago Police Officers Uncovered A Massive Criminal Enterprise Within the Department. Then They Were Hung Out to Dry, INTERCEPT (Oct. 6, 2016, 9:00 AM), https://theintercept.com/series/code-of-silence [https://perma.cc/HES9-V8XD]; see also Jennifer Gonnerman, How One Woman’s Fight to Save Her Family Helped Lead to a Mass Exoneration, NEW YORKER (May 21, 2018), https://www.newyorker.com/magazine/2018/05/28/how-one-womans-fight-to-save-her-family-helpedlead-to-a-mass-exoneration [https://perma.cc/Q237-E2NR]. 116. See Kalven, supra note 115; Gonnerman, supra note 115. 117. See Christine Hauser, ‘A Stain on the City’: 63 People’s Convictions Tossed in Chicago Police Scandal, N.Y. TIMES (Feb. 13, 2019), https://www.nytimes.com/2019/02/13/us/chicago-exonerations-drugsentences.html [https://nyti.ms/2Eag7GB]; Matt Masterson, 4 More Cleared in Latest Exonerations Tied to Former Chicago Police Sergeant, WTTW (Feb. 13, 2019, 2:13 PM), https://news.wttw.com/2019/02/13/4more-cleared-latest-exonerations-tied-former-chicago-police-sergeant [https://perma.cc/J8BQ-VVBG].
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tardiness, not showing up for work, or insubordination) than for illegal searches, improper seizures, or false statements. Black officers were more likely to be disciplined than white officers and more severely. Complaints by white citizens were more likely to result in discipline. And abusive officers were a small fraction of the force—“[m]any police officers go their whole careers without a single complaint” (the average is one and a half per career). With over 12,000 officers, only ten percent of officers have ten or more complaints.118 Similarly, the Invisible Institute also assisted with, and served as a model for, an ambitious nationwide database just launched by USA Today to track the movements of officers who have been sanctioned for misconduct and fired in one jurisdiction but move on to be hired in another.119 In turn, prosecutors in Seattle, Philadelphia, Brooklyn, Houston, Manhattan, St. Louis, and other jurisdictions have begun creating their own police misconduct databases that rely, in part, on public records and “work product” information—social media sites of police, early access (if permitted in the jurisdiction) to ongoing investigations of officers, and a “Brady list” of complaints from prosecutors within an office about officers who lied or engaged in some other misconduct.120 California Senate Bill 1421 and its Potential to Generate Databases. California, without question, had the worst laws governing the disclosure of adjudicated findings of police misconduct until this year. In California, disclosure was long governed by the Pitchess v. Superior Court case and related statutes.121 Both the prosecution and the defense were precluded from seeing a police officer’s personnel file and any adjudicated findings of misconduct until it was disclosed to a judge for in camera inspection, ordinarily just before a case went to trial, to see if there was “good cause” for disclosure.122 The information sought about acts of misconduct could not be more than five years old.123 If granted, disclosures under a Pitchess motion were done under a protective order.124 Upon completion of the case, both the prosecution and defense had to keep the misconduct information secret and were prohibited from releasing it to other lawyers in their respective offices.125 Therefore, if the officer in question was involved in another case, yet another Pitchess motion had to be made by the defense or prosecution, and the entire in camera proceeding had to be repeated; any witnesses who were the sources of the misconduct allegations against the officer had to be contacted again if either side wanted to call them.126 The tide turned against the absurdities of the Pitchess process, unpopular with the defense bar and prosecutors, after a ground-breaking article in the Los Angeles Times 118. See Gibson, supra note 111. 119. See James Pilcher et al., Fired for a Felony, Again for Perjury. Meet the New Police Chief, USA TODAY (Apr. 24, 2019, 9:15 PM), https://www.usatoday.com/in-depth/news/investigations/2019/04/24/policeofficers-police-chiefs-sheriffs-misconduct-criminal-records-database/2214279002 [https://perma.cc/4F3R-5RVN]; see also John Kelly & Mark Nichols, Search the List of More than 30,000 Police Officers Banned by 44 States, USA TODAY (Apr. 26, 2019, 2:24 PM), https://www.usatoday.com/in-depth/news/investigations/2019/04/24/biggestcollection-police-accountability-records-ever-assembled/2299127002 [https://perma.cc/R6U7-JMF5]. 120. See Joseph, supra note 110; Justin George & Eli Hager, One Way to Deal With Cops Who Lie? Blacklist Them, Some DAs Say, MARSHALL PROJECT (Jan. 17, 2019, 6:00 AM), https://www.themarshallproject. org/2019/01/17/one-way-to-deal-with-cops-who-lie-blacklist-them-some-das-say [https://perma.cc/5KCY-UKS5]. 121. 522 P.2d 305, 308–09 (Cal. 1974); CAL. EVID. CODE §§ 1043, 1045–1047 (West 2019); CAL. PENAL CODE § 832.7 (West 2017); see also Abel, supra note 85, at 762–67; Miguel A. Neri, Pitchess v. Brady: The Need for Legislative Reform of California’s Confidentiality Protection for Peace-Officer Personnel Information, 43 MCGEORGE L. REV. 301, 305–15 (2012). 122. See Abel, supra note 85, at 762–67; Neri, supra note 121, at 305–15. 123. See Neri, supra note 121, at 314. 124. See Abel, supra note 85, at 802–04. 125. See id. 126. See id.
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about a secret “Brady list” kept by the Los Angeles County Sheriff’s Department of three hundred deputies who should not be called as witnesses because of findings of misconduct against them.127 The malfeasance documented on the list ranged from a deputy who had put taco sauce on a shirt and falsely claimed it was blood to deputies accused of sexual misconduct.128 When the Sheriff’s Department tried to give this Brady list to the Los Angeles County District Attorney’s office, the deputies union successfully moved to enjoin the disclosure on the grounds that a Pitchess motion was the only way such adjudicated findings of misconduct could be disclosed—even to the prosecution.129 In reaction, State Senator Nancy Skinner130 successfully sponsored Senate Bill 1421 (SB 1421)131 that went into effect January 1, 2019.132 SB 1421 redefines as “public records” three buckets of previously confidential police records so that this information can now be accessed through California’s robust Public Records Act.133 The first bucket covers records “relating to an incident in which a sustained finding was made . . . of dishonesty . . . relating to the reporting, investigation, or prosecution of a crime, or directly relating to [similar misconduct by another officer,] including, but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence.”134 The second bucket concerns sustained findings that an officer engaged in a “sexual assault involving a member of the public,”135 with “sexual assault” being defined as “the commission or attempted initiation of a sexual act with a member of the public by means of force, threat, coercion, extortion, offer of leniency or other official favor.”136 Under this definition, “the propositioning for or commission of any sexual act while on duty is considered a sexual assault.”137 And the third bucket of information concerns records from incidents where the officer discharged his or her weapon at a person and use-offorce incidents that resulted in death or great bodily injury.138 Records from this last bucket are subject to delay during an active criminal investigation by a district attorney or a police agency that can show “the interest in delaying disclosure clearly outweighs the public interest in disclosure.”139 This third bucket is directed at
127. See Maya Lau et al., Inside a Secret 2014 List of Hundreds of L.A. Deputies with Histories of Misconduct, L.A. TIMES (Dec. 8, 2017, 5:00 AM), https://www.latimes.com/local/la-me-sheriff-brady-list20171208-htmlstory.html [https://perma.cc/X3MB-8Z8A]; see also Liam Dillon, California Legislature Passes Major Police Transparency Measures on Internal Investigations and Body Cameras, L.A. TIMES (Sept. 1, 2018, 3:25 PM), https://www.latimes.com/politics/la-pol-ca-police-transparency-bill-passes-20180831story.html [https://perma.cc/2PA3-HFR7]. 128. See Lau et al., supra note 127. 129. See id.; Ass’n for L.A. Deputy Sheriffs v. Superior Court, 221 Cal. Rptr. 3d 51, 448 (Cal. Ct. App. 2017). 130. Senator Skinner was supported by a strong coalition led by the ACLU of Southern California and the California News Publishers Association. See John Diaz, When California Cops Act Against the Law, S.F. CHRON. (Feb. 11, 2019, 1:19 PM), https://www.sfchronicle.com/opinion/diaz/article/When-California-copsact-against-the-law-13602923.php [https://perma.cc/M37R-CXKX]. 131. See id.; California Passes Landmark Police Transparency and Accountability Legislation, ACLU S. CAL. (Aug. 31, 2018), https://www.aclusocal.org/en/press-releases/california-passes-landmark-police-transparency-andaccountability-legislation [https://perma.cc/H5CA-LHW3]. 132. See Alexander Brand & Christine N. Wood, Opening Secrets, L.A. LAW. (Feb. 2019), https://www.lacba. org/docs/default-source/lal-magazine/2019-test-articles/february2019testarticle.pdf [https://perma.cc/M9XV-4298]. 133. See id.; ACLU S. CAL., supra note 131. 134. CAL. PENAL CODE § 832.7(b)(1)(C) (West 2019). 135. CAL. PENAL CODE § 832.7(b)(1)(B)(i) (West 2019). 136. CAL. PENAL CODE § 832.7(b)(1)(B)(ii) (West 2019). 137. Id. 138. CAL. PENAL CODE § 832.7(b)(1)(A)(i), (ii) (West 2019). 139. CAL. PENAL CODE § 832.7(b)(7)(A)(i) (West 2019).
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controversial cases where officers are involved in a shooting or the use of great bodily force but do not face any charges as a result. Most importantly, it should be noted these three buckets of records are pretty big. They include “all investigative reports; photographic, audio and video evidence; transcripts or recordings of interviews; [and] all materials compiled and presented for review to the district attorney or to any person or [adjudicative] body charged with determining whether [an officer should be charged criminally or for violating internal disciplinary rules].”140 As soon as SB 1421 was passed, the ACLU, in coordination with other entities, filed public record act requests with more than four hundred police agencies for all three buckets of SB 1421 information going back decades.141 News organizations participating in a coalition have filed eleven hundred requests and have covered all fifty-eight counties as of March 28, 2019.142 The reaction of police unions to SB 1421 has been predictably swift, with unions moving to enjoin disclosure of all past records prior to January 1, 2019.143 At least one jurisdiction, Inglewood, California, which had a well-known history of police misconduct, began destroying past records before the law went into effect.144 So far, the unions have been losing the cases but disclosure has been stayed, with one notable exception, while they appeal.145 It is clear that the issue will ultimately have to be decided by the California Supreme Court, hopefully before the end of the year. The key question in the SB 1421 cases is not whether the police officers in the unions had any “vested” privacy right in the misconduct records that would have prevented the legislature from legislating to disclose them if they had not been previously protected by statute, nor whether there were any arguments supporting a “freestanding claim of privacy” preventing disclosure beyond the fact that the records had been previously protected by statute. Counsel for the unions conceded those issues.146 Nor have the courts been required to balance “the competing public policies of protection of officer privacy interests, on one hand, versus disclosure to the public of potential police misconduct, on the other,” which is plainly a matter for the legislature.147 Rather, the key question is whether SB 1421 should be classified as a statute
140. CAL. PENAL CODE § 832.7(b)(2) (West 2019); see also Brand & Wood, supra note 132. 141. See Access to CA Police Records, ACLU S. CAL., https://www.aclusocal.org/en/know-your-rights/ access-ca-police-records [https://perma.cc/V9DQ-CD7P] (last visited Apr. 24, 2019). 142. See Thomas Peele et al., Police Accountability: Statewide Media Coalition Pushing Hard to Acquire Police Records, MERCURY NEWS (Mar. 28, 2019, 11:09 AM), https://www.mercurynews.com/2019/03/19/policeaccountability-statewide-media-coalition-pushing-hard-to-acquire-police-records [https://perma.cc/98TX-KV5R]. 143. See Annie Ma, Cops Are Battling Journalists Over California’s New Police Transparency Law, MOTHER JONES (Feb. 5, 2019), https://www.motherjones.com/crime-justice/2019/02/california-policerecrords-transparency-lw [https://perma.cc/BC4J-3WSV]. 144. See Liam Dillon & Maya Lau, California Police Unions Are Preparing to Battle New Transparency Law in the Courtroom, L.A. TIMES (Jan. 9, 2019, 12:05 AM), https://www.latimes.com/politics/la-pol-capolice-records-law-challenges-20190109-story.html [https://perma.cc/4BYS-8T74]. 145. See Thomas Peele & Alex Emslie, Records Police Unions Tried to Keep Secret Show East Bay Cop Suspended for Filing False Reports, MERCURY NEWS (Mar. 28, 2019, 11:09 AM), https://www.mercurynews. com/2019/03/19/records-police-unions-tried-to-keep-secret-show-east-bay-cop-suspended-for-filing-false-reports [https://perma.cc/3LL9-L3GE]; see also Ben Poston & Maya Lau, Secret Records of Police Misconduct and Shootings Must Be Released Under New Law, L.A. Judge Rules, L.A. TIMES (Feb. 20, 2019, 5:30 PM), https://www.latimes.com/local/lanow/la-me-police-records-los-angeles-20190219-story.html [https://perma. cc/YC9B-HTRB]. 146. See Decision Den. Prelim. Injs. at 9–10, Walnut Creek Police Officers’ Ass’n v. City of Walnut Creek, No. N19-0109 (Cal. Super. Ct. Feb. 8, 2019), https://porac.org/wp-content/uploads/9-Decision-DenyingPreliminay-Injuctions.pdf [https://perma.cc/HD69-XLKH]. 147. Id. at 10.
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that has “retroactive” rather than “prospective” application.148 So far, the courts have ruled the application is prospective: The statute says certain records now being “maintained” by police agencies are “public” and subject to disclosure, it doesn’t say records being “maintained now and created only after 2018” are subject to disclosure.149 Nor are there unfair retroactive consequences to any vested right or reliance interest.150 Finally, one very promising development with respect to the impact of SB 1421 is the formation of a coalition of competing news organizations seeking to obtain the police misconduct data across the state, and the continually updated tracking of the disclosure of SB 1421 information.151 Hopefully, if the California Supreme Court ultimately rules that public record act requests can move forward under the statute, the coalition of media organizations can work together, or in conjunction with, academic institutions, to curate public police misconduct databases across the state while defenders and prosecutors create their own work-product protected databases. Benefits and Costs. Much has been written lately in law journals about the potential benefits and costs of disclosing more information about allegations and adjudications of police misconduct, and the great weight of the commentary favors more disclosure.152 This trend in the legal literature seems to have foreshadowed dramatic developments in California (the passage of SB 1421) and indications that New York may soon take the same path.153 Abstractly, it is difficult to make an argument that police officers have any greater right to privacy with respect to acts of misconduct in their personnel files than other professional public employees. The cautionary objections are practical and political: Transparency alone is not a panacea, and “without thinking through the instrumental goals” of individualized transparency of police disciplinary records, “there is no reason to believe that visibility alone will solve complex, institutional, and organizational problems that have plagued police departments for decades.”154
148. See id. at 17. 149. Id. at 22–23. 150. Id. at 23–31 (“Here, there is nothing whatsoever in SB 1421 that changes the legal consequences for police officers (or police agencies) of their pre-2019 conduct. SB 1421 criminalizes no conduct that was not criminal in 2018. It creates no legal claim or cause of action that did not exist in 2018. . . . It does not even change the procedures by which alleged police misconduct is to be investigated, administratively adjudicated, sued on in court, or criminally prosecuted. . . . So what has changed? Only who can find out the facts and obtain the evidence of incidents of police conduct (whether it is misconduct, as in sexual assaults, or conduct that may be lawful or unlawful, as in officer-involved shootings). Providing information to people who could not previously get it is not changing the substantive legal effect of prior acts.”). 151. See Lisa Fernandez, Interactive Map: Who is Releasing Police Personnel Files Under New Law, and Who Is Not, KTVU, http://www.ktvu.com/news/ktvu-local-news/interactive-map-who-is-releasing-policepersonnel-files-under-new-law-and-who-is-not [https://perma.cc/S2DV-KNQD] (last updated Apr. 23, 2019); Peele & Emslie, supra note 145. 152. Compare the commentary supporting much greater transparency, Abel, supra note 85, at 807–08, Conti-Cook, supra note 91, at 190–92, Fisk & Richardson, supra note 90, at 797–99, Kevin M. Keenan & Samuel Walker, An Impediment to Police Accountability? An Analysis of Statutory Law Enforcement Officers’ Bills of Rights, 14 B.U. PUB. INT. L.J. 185, 242 (2005), Moran, supra note 91 (manuscript at 47–48), Rachel Moran, Ending the Internal Affairs Farce, 64 BUFF. L. REV. 837, 843–44 (2016), and Katherine J. Bies, Note, Let the Sunshine In: Illuminating the Powerful Role Police Unions Play in Shielding Officer Misconduct, 28 STAN. L. & POL’Y REV. 109, 112 (2017), with the literature supporting just a little more transparency, Kate Levine, Discipline and Policing, 68 DUKE L.J. 839, 900–05 (2019). 153. See supra notes 103–08, 130–40, and accompanying text. 154. Levine, supra note 152, at 845.
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This is a useful admonition and brings to mind at least five instrumental goals that the development of public, defense, and prosecutor databases of police misconduct information can serve. First, these databases will go a long way towards ending what is sometimes referred to as “testilying.”155 By “testilying” I mean the false, talismanic incantation of events that either fit the requirements of Fourth Amendment law (such as suspects dropping contraband, having bulges of certain shapes, or making furtive movements), justify the use of physical force (such as threatening gestures, or sudden movements to pull weapons or use physical force), or even take credit for actions of a fellow officer who doesn’t want to testify.156 Testilying will diminish not just because the defense or prosecution internal databases will flag suspicious patterns seen by clients, defense lawyers, or district attorneys, but because, with robust police misconduct databases, the officer only has to be caught once.157 If one defense lawyer, one prosecutor, or one judge catches an officer in an unexplainable, intentional lie, the databases will ensure the officer is impeached with it consistently. Indeed, the most powerful proof of this kind is not merely a clear transcript or court opinion but videotape from a surveillance camera or a body-cam.158 Secondly, these databases will help the defense bar gather the kind of proof Chief Justice Roberts believes best fits the purposes of the exclusionary rule: “As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.”159 As Andrew Ferguson points out, the trick is to redesign “the same big data policing technologies built to track movements, actions, and patterns of criminal activity . . . to foster data-driven police accountability.”160 The model for how this can be done lies with the successful stop and frisk litigation in New York161 and Philadelphia,162 as well as Section 14141 reports produced by the Civil Rights Division of DOJ during the Obama administration.163 The key to the successful litigation in this area has 155. See, e.g., I. Bennett Capers, Crime, Legitimacy, and Testilying, 83 IND. L.J. 835, 835 (2008); Christopher Slobogin, Testilying: Police Perjury and What to Do About It, 67 U. COLO. L. REV. 1037, 1040 (1996); Joseph Goldstein, ‘Testilying’ by Police: A Stubborn Problem, N.Y. TIMES (Mar. 18, 2018), https:// www.nytimes.com/2018/03/18/nyregion/testilying-police-perjury-new-york.html [https://nyti.ms/2GE3piY]. 156. See Capers, supra note 155, at 835–36; Slobogin, supra note 155, at 1041–48; Goldstein, supra note 155. 157. See Moran, supra note 91 (manuscript at 43–44); Joseph Goldstein, Police ‘Testilying’ Remains a Problem. Here Is How the Criminal Justice System Could Reduce It., N.Y. TIMES (Mar. 22, 2018), https://www. nytimes.com/2018/03/22/nyregion/police-lying-new-york.html [https://nyti.ms/2uhILCQ]. 158. See Goldstein, supra note 157. 159. Herring v. United States, 555 U.S. 135, 144 (2009); see also Utah v. Strieff, 136 S. Ct. 2056, 2063 (2016) (declining to invoke the exclusionary rule given the lack of evidence or data “indicat[ing] that the stop [at issue] was part of any systemic or recurrent police misconduct”). 160. Andrew Guthrie Ferguson, The Exclusionary Rule in the Age of Blue Data, 72 VAND. L. REV. 561, 561 (2019). 161. See Floyd v. City of New York, 959 F. Supp. 2d 540, 557–63 (S.D.N.Y. 2013) (relying on statistical data to conclude that NYPD search and seizure policies violated the Fourth and Fourteenth Amendments); see also Andrew Gelman et al., An Analysis of the New York City Police Department’s “Stop-and-Frisk” Policy in the Context of Claims of Racial Bias, 102 J. AM. STAT. ASS’N 813, 821–22 (2007) (relying on statistical data to conclude that the NYPD seizure policies were racially biased). 162. See Bailey v. City of Philadelphia, No. 10-cv-05952-SD (E.D. Pa. June 21, 2011), ECF No. 14 (order approving settlement and consent decree). 163. See CIVIL RIGHTS DIV., U.S. DEP’T OF JUSTICE, INVESTIGATION OF THE FERGUSON POLICE DEPARTMENT 2–3 (2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/ 04/ferguson_police_department_report.pdf [https://perma.cc/W7NS-9CSB] (finding the Ferguson Police Department’s policies to have been “geared toward aggressive enforcement,” with officers “demand[ing] compliance even when they lack[ed] legal authority”); CIVIL RIGHTS DIV., U.S. DEP’T OF JUSTICE, INVESTIGATION OF THE BALTIMORE CITY POLICE DEPARTMENT 24 (2016), https://www.justice.gov/crt/file/
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always been getting access to data, or forcing the government to collect it. Put simply, what gathering stop-data did for studies of police action on the New Jersey turnpike164 and the streets of New York, Philadelphia, and Baltimore, the police misconduct databases could do for studies of wrongful arrests and searches. The data mining expertise exists at many academic institutions. They have the capabilities to do it reliably, efficiently, and for comparatively small costs.165 The only entry barriers are modest investments in developing primarily defender and public databases. The benefit derived from statistically powerful and reliable challenges to bad arrests and searches is not only protection of the constitutional rights of citizens, but improved supervision and professionalization of police forces. Third, the police misconduct databases will help identify more wrongful convictions. Just as the Brooklyn Conviction Review Unit reviewed and vacated eight convictions involving Detective Scarcella after discovering his deceptive conduct in the David Ranta case,166 and just as the Conviction Integrity Unit in Chicago reviewed and vacated eighty-two convictions involving Sergeant Watts after he was convicted by federal authorities of theft of government funds,167 discovering previously unknown adjudications of dishonesty or misconduct will lead to the discovery of more wrongful convictions in a jurisdiction. The principle is simple. If the officer in question was adjudicated to have engaged in acts of dishonesty on, let’s say, September 1, 2000, then all cases where that officer offered material evidence of guilt after that date have to be reviewed, asking whether the newly discovered acts of dishonesty would create a reasonable probability of a new outcome. If so, the conviction should be vacated and, if appropriate, the defendant should be retried or the indictment should be dismissed. It is fair to characterize all such cases that are vacated and dismissed as “wrongful convictions” even though it might not be possible to prove that the defendants are actually innocent. Fourth, knowing that the police officer who made an arrest has a significant history of misconduct when charges are being brought, bail is being set, and investigative activities are launched, will inevitably, as a matter of common sense, improve the assessment of every day cases. Yet, in most jurisdictions, the misconduct data has been hidden for decades and not readily accessible at the beginning of a case. Fifth, the databases, as the analyses of the Invisible Institute’s data demonstrates, have the potential to expose racial disparities in the way citizen complaints against police are adjudicated and the way officers themselves are disciplined. Is it only in Chicago that the complaints of white citizens are more likely to be upheld and that black officers are more likely to be disciplined? We need to know the answers to those questions based on reliable data. In conclusion, when jurisdictions get three police misconduct databases functioning (public, defense, and prosecution) the opportunities for the defense and prosecution to
883296/download [https://perma.cc/U4CT-49ZN] (finding that the Baltimore Police Department “engages in a pattern or practice of making stops, searches, and arrests in violation of the Fourth and Fourteenth Amendments and Section 14141”). 164. See David Kocieniewski & Robert Hanley, An Inside Story Of Racial Bias And Denial; New Jersey Files Reveal Drama Behind Profiling, N.Y. TIMES (Dec. 3, 2000), https://www.nytimes.com/2000/12/03/nyregion/insidestory-racial-bias-denial-new-jersey-files-reveal-drama-behind-profiling.html [https://nyti.ms/2sRzjno]. 165. See Sharad Goel et al., Combatting Police Discrimination in the Age of Big Data, 20 NEW CRIM. L. REV. 181, 182–89 (2017) (showing how a statistically sophisticated Stop-level Hit Rate (SHR) calculation can be performed on a stop and frisk data set as a way that “big data” methods can strengthen police accountability and improve police practices). 166. See Elizabeth Rosner & Lia Eustachewich, Disgraced Cop Now Says He Can’t Recall Facts in 1998 Murder Case, N.Y. POST (Mar. 29, 2019, 8:57 PM), https://nypost.com/2019/03/29/disgraced-cop-now-sayshe-cant-recall-facts-in-1998-murder-case [https://perma.cc/K4KK-WACG]. 167. See Hauser, supra note 117; Masterson, supra note 117.
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share “work product” misconduct information or witnesses with each other, informally or formally, increases. This has the potential to increase trust and break down a climate of suspicion between prosecutors, defenders, community groups, and police leadership. The blue wall of silence, the fear good cops have of bad ones, the fear victims have of coming forward, especially when crimes are committed by police, creates profound barriers to successful investigations, prosecutions, and even the presentation of meritorious criminal defense cases. Once the public sees that all three databases are truly functioning—that misconduct by named officers has actually been made public—it becomes easier to believe that the stakeholders will perform their jobs with integrity. III. POST DECERTIFICATION STATUTES The development of police misconduct databases, and the passage of legislation providing greater disclosure of misconduct generally, should renew interest in an important and venerable initiative: Police Standards and Training (POST) decertification statutes. Currently, forty-six states have passed POST decertification statutes.168 The unimpeachable rationale behind such statutes is that just like doctors, lawyers, architects, and other professionals whose work bears so heavily on matters of life and liberty, police officers should have their licenses or certificates revoked for acts of serious misconduct.169 Currently forty-three of the forty-six POST decertification states report their decertifications of police and correction officers to the National Decertification Index (NDI), which is kept by the International Association of Directors of Law Enforcement Standards and Training (IADLEST).170 NDI, in turn, is funded by the Bureau of Justice Administration (BJA).171 President Obama’s Task Force on 21st Century Policing strongly endorsed the NDI and urged its expansion to cover all agencies within the United States and its territories but stopped well short of recommendations that Professor Roger Goldman, the leading scholar in this field, has laid out for making the decertification system truly effective.172 Goldman recommends: (1) The standard for decertification should not be conviction for a felony. Many states make that the standard.173 Rather, a model statute for decertification should allow decertification for “gross misconduct,” such as the Missouri statute that allows decertification for “any act while on active duty or under color of law that involves moral turpitude or a reckless disregard for the safety of the public or any person.”174 (2) Referral for decertification to the state POST entity can be made by someone other than the police chief in the jurisdiction.175 168. Roger L. Goldman, NDI: Tracking Interstate Movement of Decertified Police Officers, POLICE CHIEF ONLINE (Sept. 12, 2018), http://www.policechiefmagazine.org/ndi-tracking-decertified-police-officers/?ref= 5ba4f7e2c3d68dfa72dee2195ad59dcb [https://perma.cc/X89H-CBTP]. 169. See id.; Candice Norwood, Can States Tackle Police Misconduct With Certification Systems?, ATL. MONTHLY (Apr. 9, 2017), https://www.theatlantic.com/politics/archive/2017/04/police-misconduct-decertification/ 522246 [https://perma.cc/TP3T-BLSJ]. 170. Goldman, supra note 168. 171. Id. 172. See PRESIDENT’S TASK FORCE ON 21ST CENTURY POLICING, FINAL REPORT OF THE PRESIDENT’S TASK FORCE ON 21ST CENTURY POLICING 29–30 (2015), https://ric-zai-inc.com/Publications/cops-p311-pub.pdf [https://perma.cc/3CPQ-2HAD]; see also Roger Goldman, Importance of State Law in Police Reform, 60 ST. LOUIS L.J. 363, 369–86 (2016) [hereinafter Goldman, Importance of State Law]; Roger L. Goldman, A Model Decertification Law, 32 ST. LOUIS U. PUB. L. REV. 147, 150–55 (2012) [hereinafter Goldman, Model Decertification Law]. 173. Goldman, Model Decertification Law, supra note 172, at 150–51. 174. MO. REV. STAT. §§ 590.080.1(3), .070.2(3) (2018); see also Goldman, Model Decertification Law, supra note 172, at 150–53. 175. Telephone Interview with Roger Goldman, Callis Family Professor of Law Emeritus, Saint Louis University School of Law (Apr. 19, 2019); see MO. REV. STAT. §§ 590.070.2, .070.3, .080.2, .118.2 (2018).
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(3) Whether to decertify an officer should not be precluded by the decision of an arbitrator to keep an officer employed over a police chief’s decision to terminate, but should instead be made by an independent fact-finding entity based on the merits of a case.176 Without Goldman’s recommendations being adopted and strictly enforced, the decertification system will not be effective.177 As of 2015, the last published full accounting of national decertifications, two states, Florida and Georgia, accounted for fifty-two percent of all decertifications.178 This is deeply troubling because the conduct at issue for decertification is, at the least, some form of gross misconduct or a felony conviction.179 The advent of police misconduct databases for the public, defenders, and prosecutors can finally heighten pressure on local and state police entities to decertify and fire officers who are egregious rule breakers as well as fortify the determination of law enforcement leadership nationally to create an NDI that really works. The recent efforts of USA Today to create a national public database that tracks disgraced officers who should already be in the NDI demonstrates the extraordinary potential of this approach. The first big story they covered featured David Cimperman, an officer who was fired for lying in a drug case, convicted of a felony after tampering with police radios in order to make untraceable calls, and disciplined for repeatedly crashing his cruiser but, amazingly, got a job as the Chief of Police in Amsterdam, Ohio, without city leaders in this small town discovering his prior misconduct. Through their investigation, USA Today identified thirty-two other similar situations.180 Hopefully, this is just the beginning and the development of public, prosecution, and defender databases across the country will have a multiplier effect. IV. NEW YORK’S PROSECUTION COMMISSION Over the past decade, there has been a debate about whether prosecutorial misconduct is, as one federal appeals court judge declared, “epidemic,”181 or, as the National District Attorneys Association has often responded, “episodic.”182 Framing the question that way has never been useful because prosecutorial misconduct is certainly more than “episodic” and there has never been any systematic data collection that would permit a definitive answer as to its prevalence, much less as to whether it is an “epidemic.”183 Cutting to the heart of the issue, New York has now attempted to 176. Telephone Interview with Roger Goldman, Callis Family Professor of Law Emeritus, Saint Louis University School of Law (Apr. 19, 2019). Generally, states have adopted three different positions regarding this issue: (1) POST cannot decertify if an arbitrator reverses the termination decision. See, e.g., WASH. REV. CODE §§ 43.101.105, .155, .380(3) (2019). (2) POST is not bound by an arbitrator’s decision and is able to decertify. See ARIZ. REV. STAT. ANN. § 41-1822 (2019); KAN. STAT. ANN. § 74-5616 (2019); MO. REV. STAT. §§ 590.070, .080, .090 (2018); VT. STAT. ANN. tit. 20, § 2355 (2019). (3) POST is unable to decertify the officer if the arbitrator finds the misconduct in question did not occur, but is free to decertify the officer if the arbitrator finds the misconduct did occur but that termination is not an appropriate penalty. See FLA. STAT. § 943.1395 (2019). 177. See sources cited supra notes 172–73, 175–76; see also Roger L. Goldman, Opinion, Rogue Cops Should Not Be Recycled from One Police Department to the Next, GUARDIAN (May 20, 2015, 7:15 AM), https://www. theguardian.com/commentisfree/2015/may/20/rogue-cops-should-not-be-recycled-from-one-police-departmentto-the-next [https://perma.cc/H3RN-MM8R]. 178. See Matthew J. Hickman, POST Agency Certification Practices, 2015, 3 (Apr. 5, 2016) (unpublished working paper) (on file with the author). 179. See supra notes 173–74 and accompanying text. 180. See sources cited supra, note 119. 181. United States v. Olsen, 737 F.3d 625, 626 (9th Cir. 2013) (Kozinski, C.J., dissenting from denial of rehearing en banc) (“There is an epidemic of Brady violations abroad in the land.”); see Alex Kozinski, Criminal Law 2.0, 44 GEO. L.J. ANN. REV. CRIM. PROC. viii (2015). 182. See Green & Yaroshefsky, supra note 8, at 59–60. 183. See id. at 59–70, 86–87 & n.201.
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create a multi-stakeholder institution that comprehensively assesses prosecutorial misconduct as a system issue and makes its findings public in a responsible fashion.184 In August 2018, following close on the heels of New York’s implementation of its Brady order rule, Governor Andrew Cuomo signed a bill creating the nation’s first state-wide commission aimed at addressing prosecutorial misconduct.185 The bill setting up the commission arose organically from distress on both sides of the political aisle about unchecked prosecutorial misconduct. It was sponsored in the Senate by John A. DeFrancisco, a Republican, and in the Assembly by N. Nick Perry, a Brooklyn Democrat.186 The strong bipartisan support and sponsorship the bill garnered from lawmakers across New York made it a rarity in the predictably partisan atmosphere of Albany, and its success is a testament to the current bipartisan consensus that it is time to systematically and transparently address misconduct by prosecutors.187 The commission’s structure is based on New York’s admirable and successful effort to establish a standalone commission to regulate the conduct of judges, and its purpose is aimed not merely at punishing law breaking by prosecutors, but also fundamentally changing the “win-at-all-costs mentality” that sometimes plagues their offices.188 It will be comprised of eleven experienced criminal law practitioners, endowed with broad powers to hold hearings, compel witnesses to testify, issue subpoenas, and request any records it deems relevant in order to investigate complaints and “determine whether prosecutors have engaged in unprofessional, unethical, or unlawful conduct.”189 A few specific features of the commission warrant emphasis. Even if no individual prosecutor is ever sanctioned by the commission, these features will nonetheless ensure that the commission plays a pivotal role in promoting transparency, cooperative action by multiple stakeholders, and public confidence in the integrity of our system. To start with, the law requires the eleven commission members to be comprised in nearly equal parts of experienced criminal defense practitioners, current, former, or retired prosecutors, and retired judges with public defense or prosecutorial backgrounds (as well as one academic “with significant criminal law experience”).190 In order for the commission to exercise many of its powers, the concurrence of at least six of its members is necessary, meaning that the very workings of the commission require and embody a cooperative, all stakeholder approach to criminal justice reform.191 184. See Clyde Rastetter, Note, The New York Prosecutorial Conduct Commission and the Dawn of a New Era of Reform for Prosecutors, 41 CARDOZO L. REV. DE NOVO (forthcoming 2019) (manuscript at 29–34); Andrew Strickler, Amid Pushback, NY Bolsters New Tool to Police Prosecutors, LAW360 (Apr. 7, 2019, 8:02 PM), https://www.law360.com/articles/1146986 [https://perma.cc/8D6S-HUDM]. 185. Governor Cuomo Signs Legislation to Establish Nation’s First Commission on Prosecutorial Conduct, GOVERNOR ANDREW M. CUOMO (Aug. 20, 2018), https://www.governor.ny.gov/news/governor-cuomo-signslegislation-establish-nations-first-commission-prosecutorial-conduct [https://perma.cc/FV9D-EFJC]. The legislation was subsequently amended to address concerns about its constitutionality and reauthorized by Governor Cuomo in March of 2019. See Jan Ransom & Ashley Southall, Prosecutors Sometimes Behave Badly. Now They May Be Held to Account., N.Y. TIMES (Apr. 5, 2019), https://www.nytimes.com/2019/04/05/nyregion/ny-prosecutors-cuomo.html [https://nyti.ms/2D1hFBG]. 186. See Jesse McKinley, A New Panel Can Investigate Prosecutors. They Plan to Sue to Block It., N.Y. TIMES (Aug. 23, 2018), https://www.nytimes.com/2018/08/23/nyregion/cuomo-prosecutors-oversight-commission.html [https://nyti.ms/2o3hQVl]. 187. See id.; Strickler, supra note 184 (noting the “rare degree of bipartisan support” behind the bill). 188. Editorial, Prosecutors Need a Watchdog, N.Y. TIMES (Aug. 14, 2018), https://www.nytimes.com/2018/ 08/14/opinion/new-york-prosecutors-cuomo-district-attorneys-watchdog.html [https://nyti.ms/2MLjshg]. 189. See Rastetter, supra note 184 (manuscript at 30); N.Y. JUD. LAW §§ 499-a, -c, -d (McKinney 2019). 190. N.Y. JUD. LAW § 499-c(1) (McKinney 2019). 191. Id. § 499-c(6); see also Ellen Yaroshefsky, Wrongful Convictions: It Is Time to Take Prosecution Discipline Seriously, 8 UNIV. D.C. L. REV. 275, 297 (2004) (“However configured, a system of highly regarded
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Secondly, unlike most state disciplinary proceedings where “secrecy is the hallmark,” and whose deterrent effect is therefore inhibited,192 records of the commission’s proceedings and its findings are required to be made publicly available upon completion of an investigation where it determines that a prosecutor should be admonished, censured, or removed from office for cause.193 This will help ensure that any discipline meted out by the commission will actually serve as a real deterrent to other prosecutors from engaging in misconduct, and that its process is transparent to all stakeholders involved.194 Finally, and perhaps most importantly, the commission’s duties include reporting annually “to the governor, the legislature and the chief judge of the court of appeals, with respect to proceedings which have been finally determined by the commission.”195 These reports may also include recommendations to the legislature and the executive based on what it has uncovered during the course of its investigations, regardless of whether or not any sanction was issued.196 In many ways, this feature is the commission’s saving grace in terms of a systems-wide, all stakeholders approach to transparent criminal justice reform, as it allows for the commission’s proceedings to continually spur system reform even if no individual prosecutors are ultimately sanctioned. The District Attorneys Association of the State of New York (DAASNY) has moved to enjoin implementation of the commission on state constitutional grounds, primarily putting forth separation of powers arguments.197 Without making a judgment about the merits of their arguments, one hopes whether or not DAASNY is successful, it would ultimately support a statewide all stakeholder “system” approach that is the objective of many who support the commission. The next project should be a similar all stakeholder “system” approach to the assessment of the criminal defense function. V. ETHICAL RULES FOR PROSECUTORS, DEFENSE LAWYERS, AND JUDGES TO HELP FORENSIC SCIENCE SERVICE PROVIDERS PROTECT THE INTEGRITY OF FORENSIC SCIENCE The 2009 National Academy of Sciences Report, Strengthening Forensic Science in the United States: A Path Forward (“NAS Report”) recommended the creation of a national code of ethics for all of the forensic science disciplines and encouraged professional forensic science associations to align their respective codes with the national code.198 In 2016, in an effort to respond to the NAS Report and build on the work of the ASCLD/LAB Guiding Principles of Professional Responsibility, the National Commission on Forensic Science developed a “National Code of Professional
professionals independent of prosecutors’ offices is essential to a workable system of accountability. Only such a commission can assume the mantle of authority and engender the respect necessary to undertake such a task. To be a serious effort, it should be one of peer review by experienced criminal justice professionals with the power to sanction prosecutors who engage in misconduct.”). 192. Yaroshefsky, supra note 191, at 297. 193. N.Y. JUD. LAW § 499-f(7) (McKinney 2019). 194. See Yaroshefsky, supra note 191, at 297 (emphasizing that “[i]f discipline is to serve as a deterrent to prosecutorial misconduct, the process and its results cannot be secret”). 195. N.Y. JUD. LAW § 499-d(4) (McKinney 2019). 196. See id. 197. See Verified Am. Compl. for Declaratory and Injunctive Relief, Soares v. New York, No. 906409-18 (N.Y. Sup. Ct. Apr. 1, 2019), NYSCEF Doc. No. 33; Pls.’ Mem. of Law in Supp. of their Mot. for Prelim. Inj., Soares v. New York, No. 906409-18 (N.Y. Sup. Ct. Apr. 1, 2019), NYSCEF Doc. No. 53. 198. COMM. ON IDENTIFYING THE NEEDS OF THE FORENSIC SCI. CMTY., NAT’L RESEARCH COUNCIL, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD 26, 214 (2009).
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Responsibility for Forensic Science and Forensic Medicine Service Providers.”199 Most notably and thoughtfully, the Texas Forensic Science Commission adopted its own code, modeled on the approach of the National Commission, that governs crime laboratories in Texas.200 However, all of these admirable efforts have encountered a stumbling block when it comes to enforcement: developing a mechanism that requires lawyers (prosecutors, criminal defense lawyers, civil practitioners, and judges) to work in tandem and play by the same rules. This problem is best illustrated by what’s known as the “duty to correct and notify.”201 Rule 16 in the National Commission Code, which is specifically delegated to laboratory management, requires the following: Appropriately inform affected recipients (either directly or through proper management channels) of all nonconformities or breaches of law or professional standards that adversely affect a previously issued report or testimony and make reasonable efforts to inform all relevant stakeholders, including affected professional and legal parties, victim(s) and defendant(s).202
The nonconformities and breaches of law or professional standards can include everything from laboratory personnel not running controls, “dry labbing” (not running the tests at all), and failing to disclose conflicting results, to “change of science” situations where all tests were performed as required but the underlying science is no longer considered valid or the analyst’s testimony is now considered to have exceeded the scientific limitations of the discipline.203 What should happen in these situations is easy enough to outline. The affected parties are notified and ultimately a hearing is held to see if the non-conformity or breach of ethical or professional standards is material to the outcome of the case. The great difficulty, however, as forensic science service providers properly complain, is the absence of any direct and specific ethical requirement for prosecutors, defense counsel, judges, and civil counsel to provide substantial assistance in this onerous, labor-intensive process. The cases where errors arise can be very old; the clients, the transcripts, the original lawyers, and the files of each stakeholder can be hard to find. Under ordinary circumstances, no one stakeholder in the system can effectively enforce and administer the duty to correct and notify in such cases. Each stakeholder must take on the responsibility of finding the relevant records, appointing, if necessary, new lawyers to review the matter and consult with the affected party. This 199. See NAT’L COMM’N ON FORENSIC SCI., RECOMMENDATION TO THE ATTORNEY GENERAL NATIONAL CODE PROFESSIONAL RESPONSIBILITY FOR FORENSIC SCIENCE AND FORENSIC MEDICINE SERVICE PROVIDERS 1–4 (2016); COMM. ON IDENTIFYING THE NEEDS OF THE FORENSIC SCI. CMTY., NAT’L RESEARCH COUNCIL, supra note 198, at 214. The Attorney General adopted several of the National Commission on Forensic Science’s recommendations on September 6, 2016. See Mem. from Loretta E. Lynch, Attorney Gen. of the U.S., to Heads of Dep’t Components, Dep’t of Justice (Sept. 6, 2016), https://www.justice.gov/opa/file/891366/download [https:// perma.cc/8MWD-CPEW]. 200. See 37 TEX. ADMIN. CODE § 651.219 (2019); see also NAT’L COMM’N ON FORENSIC SCI., supra note 199. 201. See Misapplication of Forensic Science, INNOCENCE PROJECT, https://www.innocenceproject.org/ causes/misapplication-forensic-science/ [https://perma.cc/8NMX-SLSE] (last visited May 14, 2019). 202. NAT’L COMM’N ON FORENSIC SCI., supra note 199, at 4. The Code defines “nonconformities” as “any aspect of laboratory work that does not conform to its established procedures.” Id. Rule 8 of the Texas Code, which is also directed at laboratory management, is similar, requiring a laboratory policy that “explicitly address[es] how to inform potentially affected recipients of any non-conformances or breaches of law or ethical standards that may adversely affect either a current case or a previously issued report or testimony.” 37 TEX. ADMIN. CODE § 651.219(c)(8) (2019). 203. See, e.g., Jordan Michael Smith, FORGET CSI: A Disaster Is Happening in America’s Crime Labs, BUS. INSIDER (Apr. 30, 2014, 1:00 PM), https://www.businessinsider.com/forensic-csi-crime-labs-disaster2014-4 [https://perma.cc/S2DE-EKMQ] (collecting instances of misconduct in forensic laboratories across the country).
OF
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should apply whether the affected party is a criminal defendant, a victim of a crime, or a civil litigant. The best mechanisms for making this happen are bound to differ to some degree in local, state, and federal cases, but developing a clear set of ethical rules for each stakeholder—lawyers, judges, and forensic science service providers— that requires them to work together to enforce the duty to correct and notify is the best way the integrity of forensic science evidence can be preserved over time. Two examples of how this process can work involved reviews of “composite bullet lead analysis” and microscopic hair analysis conducted by FBI examiners. In both instances, the FBI acknowledged their analysts had testified beyond the limits of science in many cases and entered into a formal agreement with the Department of Justice (DOJ), the Innocence Project, and the National Association of Criminal Defense Lawyers (NACDL).204 Processes were set up to find the relevant files, purchase transcripts, notify local prosecutors and judges, find the original lawyers or appoint new counsel, and review testimony to see, based on pre-ordained standards, whether agreement could be reached that the FBI’s examiners had testified beyond the limits of science.205 In the hair cases, the FBI agreed to perform mitochondrial DNA testing on the original hairs in question if they could be found.206 The DOJ also agreed to waive all objections based on procedural bars.207 Similar “hair reviews” are being attempted in different states.208 An efficient and well run “hair review” is being done in Texas by its outstanding Forensic Science Commission which has, as previously noted, a code of ethics, and has even conducted “duty to correct and notify” reviews of errors in DNA mixture interpretation.209 There are other areas covered by codes of ethics for forensic science service providers that are designed to protect the integrity of forensic science analysis and impartial, science based testimony. Developing explicit corresponding rules for lawyers and judges to prevent them from inducing forensic service providers to violate their code of ethics would be very helpful. A multi-disciplinary working group and advisory committee convened by the Criminal Justice Section of the American Bar Association is currently working on these matters.210 I am hopeful this entity will make progress on this complex, but important, issue in the months ahead.
204. See Three Freed, and FBI Continues to Review Ballistic Cases, INNOCENCE PROJECT, https://www. innocenceproject.org/three-freed-and-fbi-continues-to-review-ballistic-cases/ [https://perma.cc/J4YW-3R3N] (last visited May 14, 2019) [hereinafter INNOCENCE PROJECT, Ballistic Cases Review]; Innocence Project and NACDL Announce Historic Partnership with the FBI and Department of Justice on Microscopic Hair Analysis Cases, INNOCENCE PROJECT, https://www.innocenceproject.org/innocence-project-and-nacdl-announce-historic-partnershipwith-the-fbi-and-department-of-justice-on-microscopic-hair-analysis-cases/ [https://perma.cc/8KKA-NAF6] (last visited May 14, 2019) [hereinafter INNOCENCE PROJECT, Microscopic Hair Cases Review]. 205. See Paul C. Giannelli, Comparative Bullet Lead Analysis: An Update, 23 CRIM. JUST. 24, 27 (2008); Microscopic Hair Comparison Review Project, NAT’L ASS’N OF CRIMINAL DEF. LAWYERS, https://www.nacdl. org/haircomparison/ [https://perma.cc/T5UY-XCWG] (last visited May 14, 2019). 206. See INNOCENCE PROJECT, Microscopic Hair Cases Review, supra note 204. 207. See id. 208. See Microscopic Hair Comparison Review Project, supra note 205. 209. See Statement Regarding Texas Hair Microscopy Review, TEX. FORENSIC SCI. COMM’N, http://www. txcourts.gov/media/1440418/statement-re-texas-hair-microscopy-review.pdf [https://perma.cc/C8EV-9ERN] (last visited May 14, 2019); Letter from Vincent J.M. Di Maio, Presiding Officer, Tex. Forensic Sci. Comm’n, to Tex. Criminal Justice Cmty. (Aug. 21, 2015), http://www.txcourts.gov/media/1440411/letter-re-unintendedeffects-of-fbi-database-corrections-on-assessment-of-dna-mixture-interpretation-in-texas-20150821.pdf [https://perma.cc/64GG-X7ZM]. 210. See Task Forces, AM. BAR ASS’N (Apr. 26, 2019), https://www.americanbar.org/groups/criminal_ justice/committees/taskforces/ [https://perma.cc/27CD-R5AE].
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VI. THREE NEW DEVELOPMENTS IN THE WORK OF CONVICTION INTEGRITY UNITS I have written extensively on the development of Conviction Integrity Units (CIUs), divisions within prosecutorial offices that work to prevent, identify, and rectify wrongful convictions.211 I will avoid repeating what I’ve already said except to note that the initiatives discussed in this Preface follow the same principles that should guide good CIUs: cooperation among multiple stakeholders, creating an “interests of justice” orientation to fact evaluation that avoids focus on procedural bars, designing mechanisms for effective sharing of data that breaks down an adversarial framework, use of checklists, investigative protocols designed to avoid cognitive bias, and a commitment to learning from error.212 There are, however, three new developments in this area worth noting. First, according to the National Registry of Exonerations, there are now forty-four CIUs, close to a three-fold increase from five years earlier, and an increase of eleven since 2017. There is also encouraging evidence that cooperation between innocence organizations (IOs) and CIUs has been remarkably successful.213 In 2018, IOs and CIUs coordinated to produce forty-five exonerations; IOs set a record with involvement in eighty-six exonerations, and CIUs were involved in fifty-eight.214 Together, the work of IOs and CIUs led to ninety-nine exonerations, two-thirds of all exonerations that occurred last year.215 The Registry has been tracking the development of CIUs since their inception and has not hesitated to point out that a number of them were little more than “window dressing” and unlikely to produce exonerations.216 But the proliferation of new CIUs this year, particularly those begun by self-described “progressive” prosecutors, has given the Registry reason to believe it’s a positive trend that will continue.217 Secondly, there are now efforts underway to form statewide CIUs with the assistance of state Attorney General offices.218 This is a helpful development because it provides a way that very small offices can review cases and adopt best practices to prevent wrongful convictions.219 There are approximately twenty-three hundred prosecutorial offices in the United States and the forty-four CIUs are primarily located in major metropolitan areas.220 The most developed and promising statewide plan was just announced in New Jersey after a comprehensive study cochaired by former New Jersey Supreme Court Justice Virginia Long and former United States Attorney Paul Fishman.221
211. See generally Barry C. Scheck, Conviction Integrity Units Revisited, 14 OHIO ST. J. CRIM. L. 705 (2017); Barry Scheck, Professional and Conviction Integrity Programs: Why We Need Them, Why They Will Work, and Models for Creating Them, 31 CARDOZO L. REV. 2215 (2010). 212. See Scheck, Conviction Integrity Units Revisited, supra note 211, at 727, 749–50. 213. See NAT’L REGISTRY OF EXONERATIONS, EXONERATIONS IN 2018, at 2, 12 (2019), http://www.law. umich.edu/special/exoneration/Documents/Exonerations%20in%202018.pdf [https://perma.cc/L2BM-7MEX]. 214. Id. at 2. 215. Id. 216. See NAT’L REGISTRY OF EXONERATIONS, EXONERATIONS IN 2016, at 15 (2017), http://www.law.umich. edu/special/exoneration/Documents/Exonerations_in_2016.pdf [https://perma.cc/NFF4-BG2F]. 217. See NAT’L REGISTRY OF EXONERATIONS, supra note 213, at 12–15. 218. See, e.g., Press Release, State of N.J. Office of the Attorney Gen., AG Grewal Announces Creation of Statewide Conviction Review Unit and Statewide Cold Case Network (Apr. 11, 2019), https://www.nj.gov/oag/ newsreleases19/pr20190411a.html [https://perma.cc/HBD3-P3JL]. 219. See JOHN HOLLWAY, CONVICTION REVIEW UNITS: A NATIONAL PERSPECTIVE 21–22 (2016). 220. See NAT’L REGISTRY OF EXONERATIONS, supra note 213, at 14–15. 221. See VIRGINIA LONG & PAUL J. FISHMAN, REPORT TO THE HONORABLE GURBIR S. GREWAL, ATTORNEY GENERAL OF NEW JERSEY: PROPOSAL FOR A STATEWIDE CONVICTION REVIEW UNIT 5–7 (2019); Press Release, State of N.J. Office of the Attorney Gen., supra note 218.
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Finally, some CIUs have expanded their mission to include reconsideration of cases involving excessive sentences.222 Specifically, as suggested in Twenty-One Principles for Twenty-First-Century Prosecutors, CIUs should create “a process for reviewing and supporting clemency and pardon requests, as well as other relief for long sentences that raise concerns about proportional punishment and fairness, or that are being served by individuals who are elderly or ill and no longer pose a danger to the community.”223 Rachel Barkow’s new book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration, provides powerful arguments and solid data to support this development. Barkow points out that parole and clemency should be viewed as “back-end checks” on earlier prosecutorial decisions about charging and sentencing recommendations in light of how people learn, change, and develop.224 Just as administrative agencies routinely revisit their own policies and procedures when faced with new information, prosecutors and courts should revisit long sentences. Most significantly, there is solid data showing that “long sentences themselves become criminogenic because of the barriers to reentry they create.”225 CONCLUSION: A MARSHALL PLAN FOR INDIGENT DEFENSE All of the initiatives to protect the integrity of our convictions discussed in this Preface presume, with some justification, that prosecutors and judges have, or can fairly easily obtain, the resources to adopt these changes if they are willing. The same presumption does not apply to those who defend the indigent and it’s irresponsible not to say so forcefully. The initiatives proposed here would have a much greater chance of succeeding if the defense function approached adequate funding. Indeed, the agendas of progressive prosecutors—efforts to reform bail, responsibly accelerate re-entry, provide for early and responsible termination of parole, and diversion of the mentally ill and substance abusers out of the criminal justice system to better outcomes—will all have a much better chance of success if defenders are capable partners in the process. Between sixty to ninety percent of defendants charged in serious criminal cases require, because they are indigent, a state provided lawyer.226 But, as John Pfaff persuasively points out, state and local governments underfund these programs, spending about two percent of what they spend on the totality of criminal justice activities on such programs, which is thirty percent less than they spend on state prosecutors. That point is concerning because prosecutors don’t have to pay much for investigative services, which are primarily provided by police, and they have comparatively greater control over their caseloads than defenders because they can, to some degree, regulate it by dropping minor cases. Although real spending on indigent defense has gone up over the 1990s and 2000s by roughly four percent, it didn’t keep pace with a forty percent increase in felony case filings during this time frame. So indigent 222. See POST-CONVICTION JUSTICE BUREAU, http://www.brooklynda.org/post-conviction-justice-bureau/ [https://perma.cc/6Y9L-YR59] (last visited May 14, 2019); Eli Hager, The DAs Who Want to Set the Guilty Free, MARSHALL PROJECT (Mar. 20, 2018, 6:00 AM), https://www.themarshallproject.org/2018/03/20/the-daswho-want-to-set-the-guilty-free [https://perma.cc/UP36-NUJ3]. 223. See EMILY BAZELON, CHARGED: THE NEW MOVEMENT TO TRANSFORM AMERICAN PROSECUTION AND END MASS INCARCERATION 327 (2019). 224. See RACHEL ELISE BARKOW, PRISONERS OF POLITICS: BREAKING THE CYCLE OF MASS INCARCERATION 147 (2019). 225. Id. at 147–48. 226. Tina Peng, Opinion, I’m a Public Defender. It’s Impossible for Me to do a Good Job Representing My Clients., WASH. POST (Sept. 3, 2015), https://www.washingtonpost.com/opinions/our-public-defender-systemisnt-just-broken–its-unconstitutional/2015/09/03/aadf2b6c-519b-11e5-9812-92d5948a40f8_story.html [https:// perma.cc/M6HR-5BQN].
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defense is continually in crisis whereas prosecutor caseloads remain stable over time.227 What’s worse, the effect of mandatory minimums and sentencing guidelines have not only created a justly condemned problem of “mass incarceration,” it has produced a “trial penalty” which dramatically reduces trials, unfairly pressures the innocent to plead guilty, and undermines the cleansing benefits of an adversary system where the defense can expose bad science, corrupt police, and overreaching prosecutors.228 For all these reasons and more, the proposal John Pfaff made three years ago to create a Marshall Plan for indigent defense deserves a lot more attention than it has received from criminal justice reformers. As Pfaff points out, an annual grant of four billion dollars to state and local governments would be three times that currently spent on indigent defense, “especially if the grant was tied to pre-existing spending by local governments so they couldn’t [reduce] their own spending one-for-one with the grant.”229 Better still, federal spending should provide incentives for defender systems to provide “holistic” defense, an approach where “public defenders work in interdisciplinary teams to address both the immediate case and the underlying life circumstances—such as drug addiction, mental illness, or family or housing instability—that [complicate] client contact with the criminal justice system.”230 A recent extensive and thorough evaluation of the effect of holistic defense on criminal justice outcomes over a ten-year period in the Bronx produced exciting findings. While holistic defense did not affect conviction rates, it decreased the likelihood of a custodial sentence by over fifteen percent and reduced the anticipated sentence length by almost twenty-five percent. During the study period, holistic defense resulted in 1.1 million fewer days of custodial punishment.231 For those who want to protect the integrity of our convictions, and truly hold criminal justice stakeholders accountable in an era of criminal justice reform, a Marshall Plan for indigent defense should be near the top of the list when designing a Criminal Justice Reform Act in 2021.
227. See JOHN F. PFAFF, LOCKED IN: THE TRUE CAUSES OF MASS INCARCERATION—AND HOW TO ACHIEVE REAL REFORM 137–38 (2017). 228. See NAT’L ASS’N OF CRIMINAL DEF. LAWYERS, supra note 89, at 7, 9–10, 61. 229. See John Pfaff, Opinion, A Mockery of Justice for the Poor, N.Y. TIMES (Apr. 29, 2016), https://www. nytimes.com/2016/04/30/opinion/a-mockery-of-justice-for-the-poor.html [https://nyti.ms/1TaXwqx]. 230. See James M. Anderson, The Effects of Holistic Defense on Criminal Justice Outcomes, 132 HARV. L. REV. 819, 820 (2019). 231. Id. at 822–23.
Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course June 24-26, 2021 Hyatt Regency San Antonio, TX
Topic: Voire Dire
Speaker:
Robert Hirschhorn
2300 Highland Village Road Suite 470 Highland Village, TX 75077 (972) 434-5879 phone rbh@cebjury.com email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
81 CRIMINAL JURY SELECTION TIPS PREPARING FOR JURY SELECTION 1.
Voir dire begins the day the client walks through your door.
2.
Keep a voir dire notebook. Issues will arise throughout the discovery process that will help you prepare for jury selection.
3.
Every case, like every good book, has a trial theme. The purpose of the trial theme is to grab the jury’s attention like a newspaper uses headlines to grab the readers’ attention.
4.
Use visual aides in voir dire. Examples would be: Explaining the burden of proof, showing who the key witnesses are, showing a diagram of the location in question, showing a sample verdict form, etc.
5.
Trilogies are a Powerful, Permanent and Profound communication tool.
6.
Determine from the Judge the size of the panel in advance of jury selection.
7.
Determine from the Judge or other Court staff how the jurors will be seated in the courtroom and prepare a seating chart.
8.
Once you know how many jurors the Judge intends to call, make 8½” x 11" cards that contain the juror numbers. The jurors can hold the cards up when answering questions during voir dire. Have the cards laminated. Consider leaving the cards with the Court once the case is over.
9.
In cases where the jury will be assessing the punishment (i.e., Death Penalty case), decide whether you want a Guilt / Innocence or punishment jury. In our view, it is a fatal mistake to try to combine the two because you’ll get the worst of both worlds.
10.
No matter how many cases you have tried, there are no two trials that are exactly alike. Therefore, regardless of your experience in front of a jury, practice your voir dire on laypeople, not your office staff or law partners.
11.
Have someone assist you with jury selection. This person will become your eyes and ears. This will allow you the freedom to truly listen to and have a conversation with the jurors. You will not have to worry about remembering or writing down what the jurors have said, someone will be doing this for you.
12.
If a juror questionnaire is used, the lawyer should complete one as well. This is another way to humanize yourself in front of the jury.
13.
Try to persuade the Judge to deal with challenges for cause at the end of voir dire as opposed to when they arise. It is always more time efficient to do the challenges for cause at the end of voir dire.
14.
If the Judge will not allow the use of a juror questionnaire and intends to place unreasonable time limits on voir dire, prepare a Motion for Additional Time to Conduct Voir dire.
DRESSED FOR SUCCESS 15.
Remember the wise advice we got from our parents: First impressions are lasting impressions; and, You never get a second chance to make a first impression. You and your client are the center of attention and your goal is to make a favorable and lasting first impression on the jury.
16.
Never wear power clothing during voir dire unless you have to give your Opening Statement the same day. Power clothing should be worn when you want the jury to focus their attention on you. Thus, Opening Statements, critical cross examinations and Closing Arguments are the proper time to wear power clothing. During voir dire, warm and friendly colors should be worn.
17.
A trial lawyer should not wear a double-breasted suit. Jurors perceive it as too slick. Male lawyers should not wear clear polish on their nails. Jurors perceive it as too slick.
18.
19.
Don’t wear: Expensive jewelry, diamonds, pinky rings (or more than one ring on each hand), earrings that dangle, fancy rings, Rolex watches, gold bracelets, etc.
20.
All of the tips stated above apply to your clients, their spouses and your witnesses.
21.
Never have your client wear new shoes. It is a dead giveaway that you’ve told them what to wear.
22.
Research has shown that jurors trust married men who wear wedding bands more than married men who don’t wear wedding bands.
23.
Tell your clients that they are being observed from the minute they leave their house to the time they get back home. They need to remember to act the same way in the elevator, bathroom and hallways as they do in the courtroom.
JUROR QUESTIONNAIRE 24.
With a simple and straightforward case, your questionnaire should be no longer than 2 or 3 pages. The more complex the issues and the more time you have to review the questionnaires, the longer the questionnaires can be.
25.
Logically organize your questionnaire. The first section should be biographical, the next section should be issue-specific to your case, the third section should be psychological profile questions, and the final section should contain questions to determine any connections jurors have to the parties, lawyers or witnesses and any hardship issues.
26.
At least 10% of the questions should be open-ended, 10% should be scaled, and remaining questions on the questionnaire should be the YES NO variety.
27.
Every YES NO question should have a follow-up question (i.e., why, please explain your answer, please tell us why you feel this way, etc.).
28.
Provide the Court with black ink pens and clipboards for the jurors.
29.
Give the Judge a diskette that contains your juror questionnaire. If the Court has to resolve any disagreement on the questionnaire, many Judges will make the changes right on the disk. It is easier and more time efficient to process and analyze information on a questionnaire that you are accustom to using.
GENERAL VOIR DIRE PRINCIPLES 30.
During voir dire, a lawyer should only have with him/her a seating chart of the jurors and the questions that are going to be asked of the jury.
31.
Use your seating chart to address the jurors by name rather than by juror numbers.
32.
Never do your voir dire from behind a podium or counsel table unless required to do so by the Judge or local rule.
33.
Don’t flirt with jurors. The other jurors will notice it and punish you and your client for it.
34.
Studies suggest that most people tend to favor (speak to) one side of a room over the other. During voir dire, be sure to speak to jurors on both the left and right sides of the courtroom. This also applies to Opening Statements and Closing Arguments.
35.
Jurors will remember the first and last things they hear and see. This is known as primacy and recency. Therefore, it is critically important that you start and end your voir dire on strong points. This concept also applies to Opening Statements, cross and direct examination of witnesses and Closing Arguments.
BEGINNING YOUR VOIR DIRE 36.
Don’t talk like an attorney, talk like a person.
37.
Begin your voir dire with your trial theme.
38.
Concisely explain your theory of the case in the beginning of voir dire. The theory of the case tells a jury, in a nutshell, why you should win. Reinforce your theory in Opening Statements, examination of witnesses and Closing Arguments.
39.
Before you begin questioning the panel, explain to the jurors that when lawyers refer to bias or prejudice, they mean pre-judgment or strong opinions. Tell the jurors that if they have any pre-judgment or strong opinions about any of the issues, to please let you know.
40.
Let the jury know that many times jurors want to talk privately about an answer to a question. Tell them if any juror would feel more comfortable sharing an answer in private, that person should simply let you know.
41.
Tell the jurors there are no right or wrong answers. All that you are asking is that the jurors be honest and forthright. Never tell the jurors that you are looking for 12 (or 6), “...fair and impartial jurors.” This will condition the jurors to give the fair and impartial response rather than the honest response.
42.
Tell your panel that, “Being a good juror and a good citizen means that if this case is not the right one for you to serve on, just let the lawyers and Judge know.”
43.
Tell the jurors that it’s been your experience that many jurors believe that if they don’t talk, they won’t be selected. Then tell the jurors that the quickest way to be selected is not to say anything. In other words, jurors who talk, walk. Jurors who have nothing to say, stay!
44.
At some point during the beginning of voir dire, a lawyer should employ an effective communication technique called self-disclosure. If a lawyer wants (and expects) to learn about his/her jurors, those jurors will feel more comfortable if the lawyer reveals something about herself/himself.
THE BODY OF VOIR DIRE 45.
If a lawyer has a habit, trait or any other characteristic that is obvious or noticeable (i.e. stuttering, nervousness, sweating, stumbling over words, loud voice, soft voice, object often, bald, overweight, ponytail, etc.), share that up front with the jury. Ask one or two jurors if this habit, etc., will affect them or cause them any discomfort if they serve on the jury in this case. This will eliminate the distraction and allow the juror to focus on the issues.
46.
Never be condescending or dismissive to a juror.
47.
Your voir dire questions should be short, simple and to the point.
48.
Don’t ask the same question in voir dire that you ask on the questionnaire. For example, do not ask a juror, “Where do you work?” or “How many children do you have?”, when the juror has shared this information on his/her questionnaire.
49.
Follow up in voir dire on information you obtain from the questionnaire.
50.
Listening is an active skill, not a passive skill. You should focus on the jurors’ answers and not worry about your next question. If your defense is reasonable doubt, never end your voir dire by talking about the State’s burden of proving their case beyond a reasonable doubt. Jurors will think you are more interested in winning on a technicality than justice.
51.
52.
Use this as a measuring stick: One open-ended question for every 15 minutes of voir dire. Pick 4 to 6 people to specifically answer the openended question, then go row by row and find out who agrees and who disagrees.
53.
Another type of question that can be asked very quickly of each juror is called a “scaled question”. An example would be as follows: “I want to ask everyone on the jury panel the following question: in general how reliable do you think eyewitness testimony is- very reliable, reliable, unreliable or very unreliable?” Another example would be: “how likely is it that the police would arrest and charge an innocent person: very likely, likely, unlikely or very unlikely?” Still another example would be, “When you hear that a person is accused of [insert the type of crime], how likely is it that the person is guilty, very likely, likely, unlikely or very unlikely.” The purpose of the scaled question is that you can ask ever juror to give their answer to the question and it will take very little time. If fact, we would encourage lawyers to write the answers on a flip chart and then ask the potential jurors to tell you which answer reflects their opinion or feeling on the issue. Explain to the jurors that you only have a limited amount of time and as much as you’d like to know the reason for their opinion, you simply don’t have the time, so if the jurors would please tell you which answer, you can quickly find out everyone’s opinion on this issue.
54.
Rather than asking people to raise their hands when posing a general question to your panel, pick one juror to get the ball rolling. After that juror answers your question, go row by row and find out, by a show of hands, who agrees and who disagrees. Jurors who often end up serving on a jury are the ones who don’t raise their hands...yea or nay. Those are the ones to whom you should go back and talk. Have the person who is helping you give you a list of the jurors who didn’t raise their hands.
55.
Resist the temptation to stereotype jurors. Jurors will make decisions based on their value system and life experiences. Ask yourself, “What kind of life experiences or value system must a juror have in order to be open to the issues in my case?”
56.
Never ask a juror more than 3 questions on one topic. If you don’t reach the point you want to get to, thank the juror and say that you may have some more questions for him/her later.
57.
Listen and learn. Let your jurors educate each other.
58.
Some jurors constantly volunteer their answers preventing you from visiting with other jurors. Thank the talkative juror and tell him/her you want to hear what he/she has to say, but that you need to visit with a few others on the panel. This will acknowledge that person’s interest while allowing you to move on. If the juror has previously said something that would subject him/her to a challenge for cause, tell the juror, “If you don’t
mind, we are going to visit later so we can talk at that time about this issue as well. Is that all right with you?” 59.
Be sure to raise with the jurors potential problems with your case (client’s “confession”, client not testifying, client’s prior criminal record if that will come into evidence, flight, etc). Refer to these “problem” areas as concerns that you have about the case. Also do the problem areas in the middle of your voir dire, and not at the beginning or the end.
60.
Try to rehabilitate the cause jurors identified by the Prosecution by explaining the applicable law and find out if the juror’s view would prevent him/her from following the law in your case.
61.
If a juror gives an answer that is unfavorable or could subject him/her to a challenge for cause, thank the juror for being honest, reinforce that everyone is entitled to an opinion and ask the juror if he/she would mind talking about the issue in more detail a little bit later. This approach allows you to bring closure to the issue with that particular juror and it signals to the other jurors that you really do want to know the feelings and opinions of the jurors.
62.
Looping is another tool that is critical to effective communication. Looping is when a juror has said something that is extremely helpful to your case. You then want to go to another juror and say, “[Juror’s name], you just heard Mrs. Jones say that the police often jump to conclusions. What is your reaction to what Mrs. Jones just said?” There are two key components to looping. First, use the name of the juror who gave the answer. The reason you use the name is because it makes the juror feel important or special. Second, repeat the juror’s exact words. This will condition the other jurors to this concept. The more times a jury hears something, the more likely they are going to believe it.
63.
If in the process of looping, a juror gives an answer you don’t like, you can go to the juror who gave the good answer and ask him/her for a response or, you can say to the panel, “You see, that’s the beauty of the jury system, we are all entitled to our own opinions and beliefs. You heard Mrs. Jones say that police often jump to conclusions, but Mr. Green said that he believes the police would never arrest an innocent person. I want to see who agrees with Mrs. Jones and who agrees with Mr. Green. Mr. Rodriguez, let me start with you. Who do you agree with, Mrs. Jones or Mr. Green?”
ENDING YOUR Voir dire 64.
Consistent with the primacy / recency notion, you want to end your voir dire strongly.
65.
Another question we like to end with is to ask each and every juror a question such as, “[Juror’s name], can you look [client’s name] in the eye and say, Charlie, I will give you a fair trial.” It is simply amazing how jurors will react to such a question. Some jurors will look to the Judge or the prosecutor before answering, other jurors will give an equivocating response. Some jurors will simply say, “Yes”, and still other jurors will look your client right in the eye and say, “Charlie, I will give you a fair trial.”
66.
We have dubbed the final questions in voir dire the, “Oyster” questions. By that we mean, you have to shuck a bunch of oysters before you find a pearl. The same holds true with these concluding questions: “Is there anything else you want to tell us or you feel we should know?’; “Is there any other reason why you might not be a totally fair and impartial juror in a case like this?”; “Now that you have had a few hours (or overnight) to think about the issues in this case, is there anyone on the panel who feels they might be starting out this case favoring the prosecution, or who feels for whatever reason that they would not be totally fair, please raise your hand and let me know.”; or, “ Is there anyone who is sitting and thinking, ‘You know, if the lawyer had only asked me this question, he really would have found out something important about me’.”
CHALLENGE FOR CAUSE 67.
When a juror gives an answer that could well be a challenge for cause, thank the juror for his/her honesty and then say, “[Juror’s name], is it okay with you if we visit (talk) some more about this later?”
68.
When a juror has expressed a strong opinion that gives rise to a challenge for cause, ask the juror: 1) “[Juror’s name], would it be fair to say that this is a strong opinion you have about this issue?” and, 2) “You’d agree with me that you have had this opinion or feeling for quite some time?”
69.
When doing your challenges for cause, start by repeating the juror’s answer and then ask why he/she feels this way. This should be the only time you ask an open-ended question in a challenge for cause.
70.
When doing your challenge for cause, always ask closed-ended questions.
71.
Do an analogy such as this: “[Juror’s name], given the opinions you’ve shared with us, would it be fair to say that if this were a race, we would not be starting off even with the other side, that we would be starting a little behind?”
72.
Conclude the challenge for cause questioning by asking the juror the following final question: “Given what you have just shared with us, do you mind if I ask the judge to excuse you from serving as a juror in this case?”
73.
Always remember you are questioning a juror and not a witness. You never want a juror to feel as if he/she is being cross-examined, since the jury has the final say in the case. Some of your challenges for cause will be denied and if you don’t have enough peremptory strikes, that juror could very well end up serving on the case.
MISCELLANEOUS TIPS 74.
75.
Resist the temptation of saying to the jury: “I take it from your silence. . .”; “Can every member of the jury panel promise me that . . . “ ; “ Does anyone have a problem with . . .” and, “Does anyone on the panel have any feelings about . . .”. Humanize your client, even if you represent a corporation. Never refer to your client as “...the Defendant” or, “...my client.” Use your client’s name when talking about him or her.
76.
Listen for jurors who use equivocating phrases such as “I think”, “I’ll try”, “I hope”, “I believe”, etc. While some jurors simply talk in this manner, many other jurors will be expressing actual hesitation about the case when they use such equivocating words. When you hear a juror express hesitation, be certain to follow-up on the words used by the juror.
77.
Do not argue with a juror. It will send a very negative message to the other jurors. Thus, while you can use a challenge for cause or peremptory strike to get rid of that juror, other jurors will remember and resent you for arguing with the juror, especially if the juror’s position seemed somewhat reasonable.
78.
In cases involving allegations of violence, do not have your client reading juror questionnaires in front of the jury panel. During voir dire the potential jurors have only heard horrible things about the crime and your client. Many jurors are initially apprehensive or frightened. Their fear is exacerbated if they feel your client knows their address, phone number or place of employment.
79.
When exercising your peremptory strikes, you should also analyze which jurors the prosecution is likely to strike. Some jurors are potential strikes by both sides and therefore, you should use your last one or two strikes on those jurors.
80.
In some cases, a hung jury is your best shot at winning. Therefore, you may want to consider leaving on the jury an otherwise unacceptable juror if you feel that person will alienate or denigrate other jurors.
81.
Unless prohibited by local rule, you should arrive at the courtroom early enough to claim the counsel table closest to the jury. This is particularly important in cases where your client will not be testifying. Prosecutors understand the tactical advantage to being next to the jury, that is why the jealously guard this sacred ground. When “first come, first serve” was not sufficient to convince the Judge that we should be allowed to sit next to the jury, consider arguing that for the past 1000 trials, the prosecution has had the privilege of sitting at that table, we would like that privilege for this trial.
Voir Dire - State v. George Zimmerman State Attorney’s Office Does anyone on the jury panel know anyone who works in the State Attorney’s Office?
Already Formed Opinion Is there anyone on the panel that is sitting there saying to yourself, I think the Defendant is guilty of the charge? It ok if you feel that way, we just need to know. Anyone feel this way?
Mark O’Mara and Don West As the Judge told you, my name is Mark O’Mara and I have practiced law in the Orlando area for more than 30 years. No, I am not related to the great golfer, Mark O’Meara and you would know that if you ever saw me swing a golf club (Mark - poking a little humor at yourself is always a good thing). With me is my friend and co-counsel, Don West. We are criminal defense lawyers. Does anyone on the panel have a negative opinion of criminal defense lawyers in general?
George Zimmerman We stand here today with my client and my friend, George Zimmerman. Is there anyone on the panel that knows or has met George?
Voir Dire - George Zim m erm an
Attorney-Client and W ork Product Privileges
Page 1 of 7
Publicity What is your main source of news (newspaper, tv, radio, internet, friends, etc.)? And what specific newspaper, tv or radio station, website do you listen to most often? This case, as you know, has received a great deal of publicity. If you have heard of Trayvon Martin, George Zimmerman or this case, please raise your hand. How many times have you heard, read or talked about this case? Of all the things you have heard or read about this case, what stands out the most in your mind? What else do you recall reading or hearing? Do you recall reading or hearing anything about the injuries to George that night? What opinions or feelings have you formed about George or this case? Based on what you have heard or read, have you formed any opinions on whether George is guilty of the charge in this case? On a scale of 0 to 10, how strongly held are those opinions? Some people can set opinions aside and other people can not. Are you the type of person who can set an opinion aside?
Voir Dire - George Zim m erm an
Attorney-Client and W ork Product Privileges
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Holding George to the Same Standard The prosecutor asked if anyone would hold George to a lower standard because of the publicity surrounding this case. I want to ask you the reverse of this question. Because of the publicity in this case, is there anyone that would hold George to a higher standard? Let me ask this question this way. On a scale of 0 - 10, how strongly do you agree or disagree with the following statement: In a high profile case, I would hold George to the same standard and not a higher standard than anyone else. 0 means strongly disagree and 10 means strongly agree.
People Who Start Fights Has anyone ever known a person that liked to start fights? If Yes, can you give me an example of a time when this person started a fight?
Fights I want to ask the following question regarding you, your spouse and your kids: Have you, your spouse or any of your kids ever been in a fist fight? Let me ask this question a little differently - have you, your spouse and your kids NEVER been in any type of fist fight? On a scale of 0 - 10 how strongly do you agree or disagree with this statement - People who start fights deserve what happens to them. Has anyone on the panel ever heard or read of a situation where a person punched someone and killed them? Voir Dire - George Zim m erm an
Attorney-Client and W ork Product Privileges
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Military Service Has anyone on the panel or your spouse ever served in the military? (First and foremost, thank them for their service to our country.) If yes, who, highest rank attained and did you (this person) ever serve in a combat situation?
Law Enforcement Has anyone on the panel or your spouse ever worked for any law enforcement agency? If yes, who, what law enforcement agency an for how many years?
Split Second Decision Ever been in a situation where you had to make a split second decision? Would you agree with me that you did what you thought you had to do at the time? In retrospect, there was probably something else you could have done but at the time you made the best decision that you could. Please raise you hand if you agree with me? Anyone disagree?
Voir Dire - George Zim m erm an
Attorney-Client and W ork Product Privileges
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Gun Ownership Please raise your hand if you currently own a handgun, rifle or shotgun? Why do you own a handgun? On a scale of 0 - 10 (0 being strongly disagree and 10 being strongly agree) how strongly do you agree or disagree with the 2 nd Amendment Right to Bear Arms? Do you currently favor or oppose gun control? Have you ever favored gun control? Do you or any family members belong to any group or organization that favors or advocates gun control? Have you or any family member ever had a bad experience involving any type of gun, rifle or shotgun? If Yes, would that experience affect your ability to be a fair and impartial juror in this case?
Voir Dire - George Zim m erm an
Attorney-Client and W ork Product Privileges
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Self Defense Speaking of split second decisions, I now want to ask you some questions about your views and opinions on self defense. Has anyone on the panel ever heard or read of a situation where a person was acting in self defense to protect themselves or someone else? Has anyone ever been in any situation from a school ground fight to a bar fight to even defending our country where you hit someone to defend yourself? Show of hands: Has anyone ever been in a situation where you feared that someone was going to hit you or physically hurt you? Anyone on the panel feel it is just wrong to defend yourself if you honestly believe you are about to be seriously hurt? I want to ask each person on the panel this question - If you honestly believed that someone was about to seriously hurt you and you could not get away, would you defend yourself? [If anyone says they would not defend themselves, ask the following question] Can you think of any situation or circumstance where you would defend yourself in a fight? (If there is an objection, simply ask, Can you think of any situation or circumstance where you would defend yourself) [To those jurors who do NOT raise their hands] So are the rest of the members of the panel telling us that each of you are the type of juror that is open to the idea that a person has that right to defend himself if they honestly believe that someone was about to seriously hurt or harm them. The law in Florida says that when deciding if a person was acting in self defense, you have to decide that question by looking at the situation from the defendant’s standpoint. Voir Dire - George Zim m erm an
Attorney-Client and W ork Product Privileges
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Can everyone promise the Judge that you will follow the law and decide the issue of self defense from the defendant’s perspective? Can each you assure the prosecutor that you will follow the law as it relates to self defense? And finally, can each of you promise George that you will follow the law of self defense and consider what happened as if you were standing in his shoes?
Miscellaneous Is there any question I should have asked but haven’t that would tell us something very important about you being a juror in this case? Is there anything else that we should know about you that would be important in deciding if you should or should not be a juror in this case? What 3 words or adjectives would you use to describe yourself? Name 3 people you admire or respect? Name 3 people you do not admire or respect? Why would you be a good juror for this case? If at the end of the case, you have a reasonable doubt, do you have the courage to find George Not Guilty?
Voir Dire - George Zim m erm an
Attorney-Client and W ork Product Privileges
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Voir Dire - State of Texas v. John Doe Hardship - Cause 1. 2. 3. 4. 5. 6.
You feel that you have a genuine hardship? Do you believe that your hardship would distract you from paying 100% attention? You are likely to be thinking about [insert the hardship] during the trial? Agree that you would be willing and able to serve if you did not have this hardship? If the prosecutor or judge asked you these same questions, would your answers be the same? Do you have any objection if I ask the Judge to excuse you from being a juror in this case?
Hardship - Rehabilitation 1.
Would you agree that a trial of this length is a hardship on virtually every single juror.
2.
Do you agree that it is important to have a cross section of the community to serve on our juries?
3.
That is why we are needing to qualify 50 people and of that number only 14 will end up serving on the jury. Are you with me?
4.
Do you agree that serving on a jury is both an honor and a privilege?
5.
If a loved one of your was on trial for a very serious matter, wouldn’t you want people such as yourself to make the sacrifice and serve on the jury?
6.
I understand it is a hardship but would you be willing to make the sacrifice and serve as a juror if you end up being selected.
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Voir Dire - State of Colorado v. John Doe
Publicity - Cause 1.
Have you heard about this case or the Defendant from the radio, television, newspaper, magazines, Internet or any other media source? If Yes, a. How did you hear about this case? b. How many times have you heard or read about this case? c. Generally, what do you recall hearing or reading about this case? d. What was the first thing you read or heard about this case? e. What was the last thing you heard or read about this case?
2.
Did you tend to believe the publicity in this case? Why?
3.
Based on what you heard, read or saw, what opinions have you formed about the Defendant or this case?
4.
My sense is, given the publicity, you start out thinking that my client is guilty of the charge. Would you agree with me (or, “Is my sense right?”)
5.
Would you agree that you feel strongly about this?
6.
A person should not serve as a juror if they start out believing, as you do, that the person on trial is guilty, fair to say?
7.
If the prosecutor or judge asked you these same questions, would your answers be the same?
8.
Do you have any objection if I ask the Judge to excuse you from serving as a juror in this case? Page 1 of 1
The Good, the Bad, and the Ugly of an Effective 30-Minute Voir Dire in a Criminal Case By: Robert B. Hirschhorn & Alexandra C. Figari
Often, the process of jury selection is akin to making sausage – the process is ugly but the finished product is a thing of beauty. Witness a recent aggravated assault with a deadly weapon prosecution: An argument in a bar escalated into a serious confrontation involving deadly weapons outside. A jury was left to sort out criminal culpability or lack thereof. Prior to trial, the defense, lead by the legendary criminal defense attorney Dick DeGuerin, was under the impression from the lead counsel that the judge only gave the parties in a felony criminal case an hour for voir dire, and that the judge only used jury questionnaires in capital murder cases. The defense wanted to use a questionnaire because jurors are hesitant to convey their true thoughts, feelings, and opinions in the courtroom.1 The defense enlisted the assistance of the authors, who prepared a specialized one-page questionnaire2 on triplicate carbonless paper with a cardboard backing.3 This methodology was employed for its efficiency.4 It takes a prospective juror 15 minutes or less to fill out the one-page questionnaire, and the triplicate carbonless paper eliminates the need for copies to be made. Before presenting the questionnaire to the judge, Mr. DeGeurin sent a copy to the prosecutor. After negotiating with the prosecutor, changes were made and the questionnaire was sent to a copier service.5 The judge liked the concept and efficiency of the one-page, triplicate carbonless questionnaire and approved its use. The jurors were brought into the courtroom and told by the judge that there were pre-trial matters that needed to be addressed. Rather than having the jurors wait around all day, he told the
1
The authors believe there are several reasons that motivate jurors not to disclose their true beliefs: (a) the fear of public speaking; (b) an unwillingness to publicly express private thoughts; (c) the desire not to be judged by their peer group; (d) their discomfort that they would not want to disclose such thoughts to people on the panel that they might know from their neighborhood, work, school, civic organizations, church, etc.; and, (e) jurors have the mistaken belief that if they speak up they are likely to be chosen to serve on the jury. 2
A copy of the actual questionnaire used in this case is attached as Appendix A.
3
The purpose of the cardboard backing is to provide the jurors with a hard surface for filling out their questionnaire. Thus, the need for a clipboard is eliminated. 4
Time is spent filling out the questionnaire, copying the instrument, and then giving the lawyers a reasonable amount of time to review the completed questionnaires. 5
The triplicate carbonless form with a cardboard backing costs approximately 50 cents per questionnaire. The Champion
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panel to please take their time in filling out the questionnaire and then asked them to return at 9 a.m. the following day for jury selection. He also admonished the panel not to discuss the case nor do any internet research. We believe that giving the attorneys the night to review the completed questionnaires has benefits that far outweigh the detriments. The detriments are immediate but limited: The start of trial is delayed and the entire jury panel is required to return the following day. However, the benefits maximize efficiency: (1) the lawyers have the opportunity to review the information contained in the questionnaire; (2) the lawyers have the time to carefully prepare the substance of their voir dire and prepare relevant and meaningful follow-up questions to individual panel members; (3) the lawyers may reach an agreement on jurors that should be excused based on their questionnaire answers because of a hardship or clear cause; (4) the parties may review the questionnaires and decide to settle the case, thereby saving valuable judicial time and resources; (5) the additional time allows the court to hear and resolve any outstanding pre-trial matters relating to the case; and (6) the court can utilize the time to deal with other matters on the docket. In this case, Dick DeGeurin mirrored what each juror did: He filled out the questionnaire and showed it to the jury on the Elmo document display system. At the very least, he demonstrated he was willing to go public on what a juror might believe to be intrusive questions.6 In addition to personalizing Mr. DeGeurin, this approach also proved to be helpful because it provided some relief to the jurors since he didn’t immediately start off his voir dire by posing questions to the panel members. During voir dire, Dick DeGuerin focused on a series of specific, non-commitment questions,7 the answers to which he would either “loop”8 to other jurors or use to find out who on the panel had a different point of view. The different point of view approach was used when a juror gave an answer that was favorable to the defense. Finding out who had a different point of view would yield important information with respect to potential 6
Caveat: Be careful of controversial answers. One of the questions on the questionnaire asked the jurors to name three people they do not admire, and one of the people on Dick DeGuerin’s list was former Vice President Dick Cheney. This case was tried in McLennan County, the county where former President George W. Bush had his ranch, and many of the jurors admired George W. Bush and did not share this negative opinion of Cheney. 7
A copy of the voir dire questions prepared by Author Hirschhorn and used by Dick DeGuerin is attached as Appendix B. 8
This is a term coined by one of the authors whereby a lawyer asks an open-ended question to one of the jurors and then “loops,” or repeats, that answer to another juror and asks for their response. This technique of looping is remarkably effective at stimulating a discussion among the jurors, but it is also extremely time consuming and can only be effectively used when the lawyer has an hour or more to conduct voir dire. The Champion
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challenges for cause or peremptory strikes. The key to an effective voir dire is to minimize your expectations and maximize your time. To accomplish this, it is essential that you know what your judge will expect, tolerate, and allow. Before the start of trial, you need to look into a number of key considerations: How your judge conducts voir dire; how much time will be given for voir dire; will the judge allow a questionnaire; how the judge handles challenges for cause (that is, does the judge take up cause issues as they arise or will the judge take up cause at the end of voir dire); does the judge want challenges for cause fully developed during voir dire or will the jurors be brought back at the conclusion of voir dire for further questioning; does the judge conduct the questioning of the cause jurors or does the judge allow the lawyers to ask the additional questions; and does the judge handle hardship, if at all, at the beginning of voir dire or at the end. To conduct an effective voir dire, it is imperative that the lawyer learns how the judge handles voir dire and what the judge will allow and will not allow. Once you have this critical information, there is a very simple five-step method for effectively using the time allotted: (1) break the ice; (2) primacy – starting strong; (3) elimination questions – designed to identify unfavorable jurors; (4) catch-all questions; and (5) recency– ending strong.
BREAKING THE ICE By the time the jury panel arrives in the courtroom, they have been inconvenienced, herded like cattle, and feel frustrated at the apparent inefficiencies of the criminal justice system. Many members of the panel are mad and frustrated. You can’t really blame them. In this day and age of fast food, the internet, Google, and Twitter, people expect things to happen at light speed, not at snail’s place. By the time you stand up to start the voir dire process, the range of emotions felt by the panel range from disinterest to outright contempt. Your job is to disarm and bond with this hostile group of strangers in a matter of seconds. Before launching into your remarks, we recommend you break the ice by saying “Good morning/afternoon, ladies and gentlemen.” A simple “hello” works well, too. When there is virtually no response, you should say, “I really need your help. When I said hello, not many folks responded. I didn’t do a good job so let me try this again.” This time say the same ice breaking words slower and a little louder. Your panel will respond and the ice will be broken.
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PRIMACY – START STRONG Research has shown that jurors will remember the first thing and the last thing you talk to them about.9 Therefore, start strong with your power statement. Your power statement is a simple one-sentence reason for why the jury should find in your favor. From the prosecutor’s perspective, the power statement can be as simple as, “This is a case about a man who intentionally chose to... .” The power statement for the defense is often a reflection on the theory of defense. If you have an affirmative defense, the power statement must reflect that – e.g., “When [name of client] believed his life was threatened, he did what the law allows of him and what his instincts told him: Fire the gun to protect yourself.” In many criminal cases, the trial is about “reasonable doubt” and not an affirmative defense. In that situation, the lawyer needs to frame “reasonable doubt” in terms of “could, would, and should.” That is, the power statement needs to be along the lines of what the police could have done, would have done, or should have done.10 This type of power statement gives the jury food for thought and reasons to look for reasonable doubt. After the power statement, you should ask your first question.11 As a general rule, this question should be an open-ended education question.12 The purpose of an education question is to make the jury aware of some important aspect of your case. For example, in a case where the basis of the charge is the conduct of the defendant, you might start out by asking the jurors to tell you about a time when their conduct was misunderstood or misinterpreted. If the juror you ask can’t think of a time, or if you don’t like the answer he or she gives, ask another juror the same question. If you like the answer the second juror gives, you will want to ask the remaining panel members to raise their hands or number cards13 if they agree with the answer that the juror just gave (Note: You should repeat the
9
This concept is referred to as primacy and recency.
10
You will notice that this power statement contains a trilogy. The power of trilogies is well established: “friends, Romans, countrymen,” “red, white, and blue,” “the good, the bad, and the ugly,” “they came, they saw, they conquered,” and our favorite, “If the glove, doesn’t fit, you must acquit.” 11
In most courts, the judge will introduce the prosecutors and defense attorneys. If that does not occur, then at this point, you should make the introductions before starting with your first question. 12
Voir dire questions are designed to either educate or eliminate prospective jurors.
13
We strongly believe in using numbered cards. In fact, many district courts now provide them. The numbered cards correspond to each juror’s number, and are put on laminated, letter-size-paper. These cards are extremely helpful to the court, the court reporter, and the parties to determine who is responding to a question. The Champion
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exact answer just given by the juror).14 You should then ask the jurors who disagree to please raise their cards. In a truncated voir dire, you will not have the time to find out why the juror disagrees – just note the fact that they disagree.
ELIMINATION QUESTIONS The bulk of your time in a 30- or 45-minute voir dire should be spent asking questions designed to identify unfavorable jurors. We refer to these types of questions as “elimination questions.” The purpose of asking elimination questions is to make sure a person’s belief system is not in conflict with your theory of the case. For example, from the prosecution’s perspective, there are some jurors whose value system does not allow them to pass judgment upon others. Another example is that there are some jurors who believe that if a defendant raises self-defense, it must have merit. From the defense perspective, an example is the belief that if a person has been charged with a crime, they are most likely guilty. Additionally, some jurors have a strong belief or value system that the only people who should carry guns are police. The effective use of elimination questions is the true art of a 30-minute voir dire. This is where time management is crucial for the lawyer. As we said earlier, you need to limit your expectations. By that we mean it is unrealistic to expect that you can cover 10 or 15 topics in a 30-minute voir dire. We believe that you can effectively cover four to six topics and that you should allot approximately five minutes per topic. Your job is to determine what the most important topics are for you to cover. In advance of trial, you need to list your voir dire topics and rank them in order of importance. In most criminal cases, when deciding what questions to ask, you should consider questions that relate to publicity, nature of the charge, prior record for same or similar crime, any affirmative defense, reasonable doubt, and the defendant not testifying. Because of the limitations placed on attorneys by virtue of cases such as Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001), it is improper in many jurisdictions for lawyers to ask commitment questions. Therefore, you must think in terms of global issues and not case-specific facts. Ask yourself, “What will cause me to lose this case?” Think conceptually, not factually. By sticking to this agenda, you will have the time to ask proper and important questions. How you ask these questions is equally important. Open-ended questions are the best vehicle for quality information, but a 30-minute 14
This is the concept known as “looping.”
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voir dire does not afford you the luxury of time you need when asking this type of question. Our rule of thumb is for every 15 minutes of voir dire, you can ask one openended question. Thus, you typically only have time to ask a couple of open-ended questions. With this limitation, you need to think carefully about the two areas that you really need to hear jurors express their views about. When you ask an open-ended question, follow the same protocol that we outlined earlier. Pick a juror and ask the openended question. If the juror does not have an opinion or if you do not like the answer, pick another juror and ask the same question. If you do not like that answer either, pick a third juror and try the question one last time. If this juror does not give a favorable answer, then you should give the answer you are looking for, and ask a fourth juror what their reaction or opinion is. Once the favorable answer is out there, you should “loop” the answer and ask the jurors to raise their cards if they agree. Finish this topic by requesting that the jurors raise their cards if they disagree.15 Close-ended questions are most often used by trial lawyers, but this type of question does not give you the crucial information needed to exercise cause challenges and peremptory strikes. This type of question is typically asked in a “yes” or “no” format. There is value in asking close-ended questions, but we suggest making a few changes. First, when you ask a close-ended question, ask the jurors to raise their cards if their answer to the question would be “yes.” Then ask the jurors to raise their card if their answer is “no.” Keep track of this information to find out which jurors did not raise their hand at all. These are usually the jurors who end up serving on the jury, and yet you know virtually nothing about them. We suggest that you find out which jurors did not raise their hands and ask them whether they would answer the question “yes,” “no,” or “I just don’t know.” Second, we suggest that the question should be framed as one in which the juror has to agree or disagree (as opposed to a yes or no answer). Finally, ask the jurors if they have “ever had an experience with ... ” or “ever felt or believed that ... .” No more than one-third of your time and questions should be of the close-ended variety. Finally, we come to what the authors call “scaled” questions. We believe that these are the most efficient and helpful questions in a short voir dire. The premise behind the
15
You need to keep track of the jurors who disagree. What works best is if you have someone keep track of the numbers of the jurors who have raised their cards. Even if you do not have someone that can assist you with this task (and in cases of violent crimes, it is never a good idea to have your client keep track of this information – it will scare some of the jurors), you should always slowly and loudly call out the numbers. This way, there is no confusion on your team as to whether a certain juror raised their card. It will also assist the court reporter and the trial judge. This will be important if the question goes to the issue of a potential challenge for cause. The Champion
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scaled question is that on any given topic there are a variety of opinions that will be harbored by the jury pool, and your job is to ask each of the jurors their opinion. An example of a scaled question is, “On a scale of 0 (very negative) to 10 (very positive), what is your opinion of the police?” You should plan on using two or three scaled questions during your voir dire. Here are a few words of advice regarding scaled questions. First, sprinkle them throughout the voir dire. Do not ask them in succession because there is a tendency for the jurors to give the same answer each time without giving much thought to the question or their answers. Second, ask the panel to please tell you the number that reflects their honest and true beliefs and to not worry about how the other jurors answered the same question. Third, we would recommend putting your scaled questions in a PowerPoint presentation.16 In the past we used either poster board or flip charts to display scaled questions, but we found that the jurors in the back rows couldn’t read the question or the scaled answers. We have also found that verbally stating the scaled question is counterproductive because the jurors will ask you to repeat the question or the scaled options and that takes away from the efficiency and flow. Fourth, repeat the answer given by each juror. This will serve the purpose of making sure you have written down the correct information given by the juror. Fifth, if a juror asks if he or she can explain their answer, you need to politely tell them that you would love to hear their reasons, but the judge has only given you a limited amount of time, and you have a few more matters that you need to cover before your time is up. Assure the juror that if you have any time left over, you will come back to them and give them the opportunity to tell you their reason. Finally, if you have substantially more jurors than you realistically expect to reach, tell the panel that you are not going to visit with the remaining jurors because it is unlikely you will reach them. In a typical felony case, you will be exercising your strikes to the first 32 qualified jurors. Add to that number any alternates that will be empaneled. Many judges will empanel one or two alternates. Therefore, your qualified pool will be 35 or 36 members of the panel.17 We would recommend obtaining the scaled answers to 36 jurors, plus the number of jurors you expect to lose for hardship or cause.
16
A sample PowerPoint presentation is attached as Appendix C. In addition to using a PowerPoint to display your scaled questions, it can also be used to introduce other topics such as a visual depiction of burden of proof. 17
The Texas Government Code states that each side is entitled to one peremptory strike if one or two alternates will be empaneled. Texas Govt. Code Section 62.02. The Champion
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CATCH-ALL The last substantive area of your voir dire requires you to end with a “catch-all question” that is designed to find out if there is any other important information for the jurors to share with you, and if there are any other reasons why a juror could not be fair and impartial. We recommend asking the following questions: “Is there anyone sitting out there saying to themselves, if only the lawyer had asked me this question, he would have learned something very important about me?” and “Other than those jurors who have already told us that they would have a problem serving as a juror in this case, is there anyone else on the jury panel, for whatever reason, who feels they cannot be a completely fair and impartial juror?” Your goal is to give the jury every possible opportunity to inform the lawyers and the court that this is not the right case for them.
RECENCY – END STRONG Finally, you always want to end strong. In most instances, this means you should either repeat the power statement that you used to start voir dire, or, if a juror has said something profoundly helpful during voir dire, you should consider reminding the panel of what their fellow juror has said. The power that a jury possesses is enormous. You may want to consider leaving the jury with this thought: Juries in this country have a profound power and responsibility, and in this case, you will have the power and responsibility to decide if [name of client] had the right to defend himself or herself.
CONCLUSION The foundation for an effective, time-limited voir dire largely depends on your level of preparedness. If you enter voir dire with an understanding of the judge’s expectations, the issues most central to your case, and the best way to approach those issues in voir dire, then you’ve already won half the battle of jury selection. Employing the techniques discussed in this article, such as the use of a juror questionnaire, the concept of primacy and recency, and an approach focused on elimination questions, will allow you to keep the jury engaged and get valuable feedback on the most important issues in your case. Streamlining your time with the panel using these methods is the most effective way to approach a 30-minute voir dire, and will lead to a successful jury selection that will likely translate into a successful outcome at the end of trial.
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TO PROSPECTIVE JURORS This questionnaire is designed to obtain information from you with respect to your qualifications to sit as a juror in this case. By the use of the questionnaire, the process of jury selection will be shortened. Please respond to the following questions as completely as possible. The information contained within the questionnaire will become part of the Court's permanent record, but it will not be distributed to anyone except the attorneys in the case and the judge. During the questioning by the attorneys, you w ill be given an opportunity to explain or expand any answers, if necessary. If for any reason you do not want to answer any of the questions asked, please write the word 'PRIVATE' next to the question and we will take this matter up with you in private.
This questionnaire is part of the jury selection process. The questions must be answered by you under penalty of perjury and you should fill out this questionnaire by yourself without consulting any other person.
If you do not understand a question, please write "I DO NOT UNDERSTAND" and the question will be explained to you in Court.
PLEASE REALIZE THERE ARE NO
RIGHT OR WRONG ANSWERS -- JUST HONEST ONES .
CONFIDENTIAL
JUROR NAME:
Age:
1. How far did you go in school (If college, please tell us all degrees you received)?
Juror #
2. Marital Status:
3. List the sex, age & occupation of your children and step-children:
What is the occupation of your spouse? What jobs have you held in the past? What jobs has your spouse held in the past?
4. Circle any of the following in which you have had training or education: Child development
Law
Criminal justice
Law enforcement
Family counseling
Psychology
Human sexuality
Religion
7. Have you ever contributed time or money to any crisis center, child abuse agency or any other organization dedicated to helping victims of crime? YES NO If YES, please explain:
10. What are your thoughts or opinions about people from India?
5. Have you ever served as a juror in a: Criminal case Grand Jury Civil case
6. Have you or any family members ever worked for any law enforcement agency? YES NO If YES, who and at what law enforcement agency?
Never served
What kind(s) of criminal case(s): What was the verdict? Were you the foreperson? YES NO 8. Have you or anyone you know ever been the victim of sexual assault, or any other unwanted sexual contact? YES NO If YES, please explain:
9. Have you or anyone you know ever been accused of sexual assault, sexual abuse, or any other unwanted sexual contact? YES NO If YES, please explain:
11. The defendant in this case, Swami Ji, is a Hindu religious leader. Circle the number below that best describes your opinion of:
12. Do you recall reading or hearing about this case? YES NO IF YES, what do you recall reading or hearing?
People who follow the Hindu religion Have you or anyone you know ever had a bad experience with someone from India? YES NO IF YES, PLEASE EXPLAIN:
1
2
Very negative
3
4
Neutral
5 Very positive
Have you formed any opinions on whether the defendant is guilty of the charges? YES NO If YES, please explain:
Hindu Religious leaders 1 Very negative
2
3 Neutral
4
5 Very positive
13. Have you heard or read about cases where a person was falsely accused of inappropriately touching someone? YES NO If YES, please explain:
14. In a situation where a man is accused of inappropriate sexual contact, would you always start out believing the accuser? YES MAYBE NO Please explain your answer:
15. Have you ever been indicted or convicted of any crime other than a traffic ticket? YES NO If YES, please explain:
16. Which of the following describes you
17. Name 3 people that you admire or respect:
18. The Defendant is accused of inappropriately touching two young women. Is there anything about the nature of these charges that would prevent you from being a fair and impartial juror? YES NO If YES, please explain:
[check all that apply]: 1.
Analytical
Opinionated
Careful
Perceptive
2.
Child Advocate
Religious
3.
Emotional
Sensitive
Family oriented
Skeptical
Name 3 people that you do not admire or respect:
Feminist
Snap decisions
1.
Law and Order
Visual
Other:
2. 3.
The answers contained in this questionnaire are true and correct to the best of my knowledge and ability.
Juror’s Name
CONFIDENTIAL
Date
TO PROSPECTIVE JURORS This questionnaire is designed to obtain information from you with respect to your qualifications to sit as a juror in this case. By the use of the questionnaire, the process of jury selection will be shortened. Please respond to the following questions as completely as possible. The information contained within the questionnaire will become part of the Court's permanent record, but it will not be distributed to anyone except the attorneys in the case and the judge. During the questioning by the attorneys, you will be given an opportunity to explain or expand any answers, if necessary. If for any reason you do not want to answer any of the questions asked, please write the word, 'PRIVATE', next to the question and we will take this matter up with you in private.
This questionnaire is part of the jury selection process. The questions must be answered by you under penalty of perjury. You should fill out this questionnaire by yourself without consulting any other person. If you wish to make further comments regarding any of your answers, please use the back of the page to do so. Remember to indicate the number of the question you are answering.
If you do not understand a question, please write, “I DO NOT UNDERSTAND", and the question will be explained to you in Court. PLEASE REALIZE THERE ARE NO RIGHT OR WRONG ANSWERS
-- JUST HONEST ONES. You are instructed not to seek out, read or research about the Defendant in this case. Specifically, you must not do any research using any internet search engine (e.g., Google, Yahoo!, Bing, YouTube etc.), message boards, chat rooms, blogs, social media (e.g., Facebook, Twitter, Google+, Foursquare, etc.). Do not read any articles in the newspaper or online, and do not listen to any news reports on the radio or on television.
If any juror does such research, this would be jury misconduct, all of our time and effort will be wasted and it will be necessary to start this process all over. Furthermore, if a juror violates this Order from the Court, the juror may be subjected to Contempt of Court charges, punishable by a fine and/or jail time.
JUROR QUESTIONNAIRE The information you provide in this questionnaire will be confidential and w ill only be used during jury selection. Full Name:__________________________________
Age: ______
1. How long have you lived in the Santa Barbara area?
2. Your c u rrent em ployer [if retired/unem ployed, what & where was your last job]:
Highest grade you com pleted in school (if college, please list any degree(s) received):
W hat is your job title/duties:
4. Spouse/partner’s job and where em ployed [if retired/unem ployed, what & where was last job]:
Years em ployed: 5. List the sex, age & occupation of your children and step-children:
W hat is this person’s job title & duties:
Years em ployed: 7. Do you know any Santa Barbara police officers or anyone in law enforcem ent? YES NO If YES, whom do you know and how do you know this person?
3. W hat jobs have you held in the past?
Have you ever been responsible for hiring, firing or supervising em ployees? YES NO 6. Have you ever served as a juror in a: Crim inal case Grand Jury Civil case Never served W hat kind of crim inal case(s): W hat was the verdict:?
8. Have you ever had a good or bad experience with a police officer? YES NO If YES, please explain:
Circle the num ber that best describes your opinion of Santa Barbara police officers: 1 2 3 4 5 Very Positive
10. How often do you have one or m ore alcoholic drinks: Daily Once a week Occasionally Rarely Never
Juror # _________
Very Negative
11. Have you ever had one or two alcoholic drinks and then driven a vehicle? YES NO If YES, please tell us why you felt it was safe to drive:
W ere you the foreperson? YES NO 9. W hat would you consider to be excessive force used by a police officer?
How strongly do you agree or disagree with the following statem ent: It is wrong for the police to use excessive force on a person they have pulled over. 1 2 3 4 5 Strongly Disagree
Strongly Agree
12. Do you know anyone who was accused, charged or convicted of D.U.I.? YES NO Do you know anyone who has been falsely accused of D.U.I.? YES NO If YES, please explain:
W hat are som e signs that a person is intoxicated?
13. Have you or anyone you know ever had a bad experience with som eone you believed was intoxicated? YES NO If YES, please explain:
14. Have you or anyone you know ever belonged to M.A.D.D. (Mothers Against Drunk Driving) or any other group which supports stricter laws against driving under the influence? YES NO If YES, please explain:
15. Do you feel the D.U.I. laws in our state are: Not Strict Enough Too Strict Fair W HY DO YOU FEEL THIS W AY?
16. Have you heard or read about the D.U.I. charges filed against Tony DeNunzio? YES NO If YES, what have you heard or read about this case:
17. W hat three (3) words or adjectives woul you use to describe yourself?
18. Is there any reason why you would be unwilling/unable to serve as a juror in this Driving Under the Influence case? YES NO If YES, please explain:
TO PROSPECTIVE JURORS This questionnaire is designed to obtain information from you with respect to your qualifications to sit as a juror in this case. By the use of the questionnaire, the process of jury selection will be shortened. Please answer the questions as completely as possible. The information contained within the questionnaire will become part of the Court's permanent record, but it will not be distributed to anyone except the attorneys in the case and the judge. During the questioning by the Court or the attorneys, you will be given an opportunity to explain or expand any answers, if necessary. If for any reason you do not want to answer any of the questions asked, please write the word 'PRIVATE' next to the question and we will take this matter up with you in private.
This questionnaire is part of the jury selection process. The questions must be answered by you under penalty of perjury and you should fill out this questionnaire by yourself without consulting any other person.
If you do not understand a question, please write "I DO NOT UNDERSTAND" and the question will be explained to you in Court.
PLEASE REALIZE THERE ARE NO
RIGHT OR WRONG ANSWERS -- JUST HONEST ONES .
C O N FID EN TIAL
The inform ation you provide in this questionnaire will be confidential and will only be used for this trial. JUROR NAM E:
Juror #
1. W here do you live?
2. Marital Status:
Highest grade you com pleted in school: If college, please list any degrees received:
If m arried, for how long?
W hat jobs have you held in the past?
W hat jobs has your spouse/partner held in the past?
4. Circle any of the following in which you have had training, education or experience: Alcohol abuse Guns
5. Have you ever served as a juror in a: Crim inal case Grand Jury
Cocaine abuse
Law enforcem ent
Crim inal law
Marijuana abuse
Fear Responses
Self Defense
3. List the sex, age & occupation of your children and step-children:
If m arried, how m any tim es?
Civil case
6. Do you own any guns? YES If YES, what type:
NO
Never served
W hat kind(s) of crim inal case(s):
Have you ever had a concealed gun perm it? YES NO
W hat was the verdict? Have you ever had a bad experience with a gun? YES NO W ere you the foreperson? YES NO
7. Have you or anyone close to you ever worked for any law enforcem ent agency? YES NO If YES, who and at what law enforcem ent agency?
8. Do you know anyone who has been injured or died in a fight? YES NO If YES, please explain:
9. Have you ever felt in fear for your life? YES NO If YES, please explain:
10. If you were in fear for your life and you had a gun, would you defend yourself or would you try to run away? Defend m yself Try to run away
11. How strongly do you agree or disagree with the following statem ent of the law: A person is justified in using deadly force w hen and to the extent he reasonably believes such force is immediately necessary to protect himself or another against the other person’s use or attempted use of unlaw ful deadly force. 1 2 3 4 5
12. Have you heard or read about this case? YES NO If Yes, please explain:
Have you ever been a m em ber of N.R.A.? YES NO Have you or any m em ber of your fam ily ever been a m em ber of a group that supports gun control? YES NO
Strongly disagree
Strongly Agree
W hich of the following describes your opinion of the defendant, Christopher Deedy: 1 2 3 4 5 Very Negative
13. Nam e 3 people that you adm ire:
14. W hat 3 words or adjectives would you use to describe yourself?
1. 2. 3. Nam e 3 people that you do not adm ire:
Very Positive
15. Christopher Deedy is accused of second degree m urder. Mr. Deedy asserts that he was acting in self-defense. Is there anything about the nature of this charge that would prevent you from being a fair and im partial juror? YES NO If YES, please explain:
1. 2. 3.
The answers contained in this questionnaire are true and correct to the best of my ability.
Juror’s Name C O N FID EN TIAL
Date
JUROR QUESTIONNAIRE
Juror #:
FULL NAME:
You have been selected to serve as a potential juror in a civil case. This trial is expected to last between six to ten trial days. The court realizes that this is a very busy time of the year, and that jury service creates an inconvenience or hardship on many jurors. Would you be able to assist the court and serve as a juror in this case?
YES
NO, and the reason is because:
Confidential Juror Questionnaire
PUBLICITY QUESTIONNAIRE You have been chosen to serve as a potential juror in the case of State of Hawaii v. Christopher Deedy. Christopher Deedy is charged with the shooting death of Kollin Elderts. There has been a great deal of media attention regarding this case. It would not surprising or improper if you have heard, read, seen or discussed this matter or formed any opinions. The purpose of this questionnaire is to assist the Court in determining 3 things: 1. Have you been exposed to the publicity surrounding this matter; 2. As a result of the publicity, have you have formed any views about this case or Christopher Deedy; and, 3. Have you formed any opinions on whether Christopher Deedy is guilty or not guilty of the charges. Please answer the questions as thoroughly and as honestly as possible so the Court and the attorneys involved with this case can give full consideration to your answers. 1.
Your name:
2.
What are your main sources of news [check (U) all that apply]: Other newspapers
Television
Radio
Local newspaper
Family/friends
Internet
Other: 3.
Approximately how many times do you remember reading, hearing or seeing any media reports about Christopher Deedy, Kollin Elderts or this case? More than 100
4.
25 to 100
10 to 25
Less than 10
None
Of all the things you have heard, read or seen about Christopher Deedy, Kollin Elderts or this case, what stands out the most in your mind?
5.
Have you formed any opinions on whether the defendant, Christopher Deedy is guilty of the charges in this case? YES NO If YES, please explain:
6.
Which of the following best reflects your opinion of whether the defendant, Christopher Deedy is guilty or not guilty of the charges in this case:
7.
Definitely Guilty
Guilty
Probably Guilty
Possibly Guilty
Definitely Not Guilty
Not Guilty
Probably Not Guilty
Possibly Not Guilty
Not sure
Don’t Know
No opinion
Is there any other reason why you could not serve as a totally fair and impartial juror in this case? YES
Juror Questionnaire
NO If YES, please explain:
Circuit Court Judge Karen Ahn
SAMPLE SEXUAL ASSAULT VOI R DI R E QUESTIONS ASSOCIATIONS 1.
Have you, any family members or friends ever worked for, volunteered time or donated money to any rape crisis center, children’s shelter, battered women’s shelter or any similar organization? If yes: a. Who? b. What organization? c. What was the affiliation? d. Why did you (or this person) affiliated with the organization? e. How will that affect your ability to be a fair juror in this case?
2.
Do you, any family members or friends belong to any groups or organizations that support the rights of victims?
CREDIBILITY 3.
Have you ever known a person who made up a story about what happened to him or her? If yes: a. What did the person say happened? b. What really happened? c. Why did this person make up a story?
4.
The victim involved in this case claims that she was sexually assaulted by a young man who she met on the Internet. The young man says that this did not happen. What would be important to you in deciding who is telling the truth?
5.
In a he said/she said situation, what would be important to you in deciding who was telling the truth?
EMOTIONAL REACTIONS 6.
What do you believe are important qualities for jurors to have?
7.
In a situation where you or someone you love was falsely accused of sexual assault, what kind of juror would you want to sit on that case? Why?
8.
It is easy to listen to a criminal case and make a decision based on an emotional reaction. It is more difficult to listen to all of the evidence, weigh it and make a decision based on whether the State proved or did not prove its case. Give me an example of a time when you took a more difficult path because you felt it was the best course?
9.
There are some crimes which so upset people that just knowing that someone is accused of that crime is enough to make people believe that the person is guilty. What is your reaction to that? ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES
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10.
Give me an example of crimes which would have that effect on you.
11.
Some people believe that if a man is accused of sexual assault, the charge is so awful that the man who is accused of the crime must be guilty. What is your reaction to that?
FALSE ALLEGATIONS 12.
What would you imagine the most difficult part would be in defending yourself against false charges?
13.
How would false charges of sexual assault affect a person?
14.
How do you prove something did not happen? For example, if you were in a room with a person and that person claimed you sexually assaulted them, how would you prove you didn’t?
15.
Some people feel that a woman would never falsely accuse anyone of sexual assault. Other people feel that a woman would falsely accuse someone of sexual assault. What is your opinion on this?
16.
What are some reasons why a woman would falsely accuse someone of sexual assault?
17.
Some people think that a woman would not make up a story about being sexually assaulted. Other people believe that a woman could make up such a story. What do you think?
18.
There has also been a great deal of publicity about false allegations of rape or sexual assault. What have you heard or read about those cases and what was your reaction?
19.
Have you heard or read of any cases where a person was falsely accused of sexual assault? If yes: a. What did you read or hear? b. Why did you follow the case? c. What was the outcome? d. What was your reaction to the outcome?
FALSE STATEMENT TO THE POLICE 20.
Have you or anyone you know ever been questioned or interrogated by the police? If yes: a. What were the circumstances? b. What were your feelings at the time? c. Did you make any mistakes? d. Did the police misinterpret what you said? ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES
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21.
How would you feel if someone accused you of lying?
22.
How can a person prove something is the truth and not a lie?
INTEREST/STUDIES 23.
Have you, any family member or close friend ever studied any of the following areas: Domestic violence, women’s studies, rape, molestation, sexual disorders, sex education, or psychology?
24.
Have you, any family member or close friend ever worked as a social worker, welfare worker, family service worker, child psychologist, parapsychologist, psychiatrist, counselor, or similar occupation?
25.
Have you, any family member or close friend ever wanted to go into social work or in the mental health profession?
JURY DUTY 26.
Being a good citizen means voting, paying taxes and serving on jury duty. Being a good citizen does not mean that you must vote for a certain candidate, that you must pay the same amount of taxes each year, or that you must be a juror on a certain case. A good juror is the one who says, "This case makes me feel uncomfortable and is the not right case for me." How many jurors feel this way about this case?
27.
How would your friends and family members react if you sat on this jury and returned a verdict of not guilty?
28.
Given what you know to this point about this case, why would you be a good juror?
29.
If you were the one on trial instead of [NAME OF DEFENDANT], would you want someone such as yourself as a juror in this case? Why?
30.
What qualities do you possess that you feel will make you a good juror in this case?
MICHAEL IRVIN 31.
Did you hear about rape charges being brought against Michael Irvin of the Dallas Cowboys?
32.
What was your reaction when the woman admitted the charges were false?
NOT TESTIFYING 33.
Some people think that when someone is tried for sexual assault, they should testify and others think it is okay if they do not. What do you think about that? ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES
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34.
[Juror’s Name], would you agree that if [NAME OF DEFENDANT] testifies, that some people think he will say anything to save his skin. Others may believe that if he does not testify, he has something to hide. I am between a rock and a hard place here. What do you think I should do?
35.
What might be some reasons why an innocent person would not testify?
36.
What are some reasons why a person falsely accused of sexual assault would not testify?
37.
Do you believe a truthful witness could be made to look like he was not telling the truth? Why?
38.
Have you ever said something to someone and they turned what you said around so that it meant something completely different? How did this make you feel?
39.
Some people feel that attorneys can take an innocent person’s statement and twist it around until it appears to be an admission of guilt. How do you feel about this?
40.
If a prosecutor could make you look like a bad witness even though you were telling the truth, would you testify? Why?
41.
If you were on trial, and you had a choice of testifying and possibly having your words turned against you, or not testifying, what would you do? Why?
42.
If you were on trial and you had the choice of testifying and running the risk that some jurors would not believe you even though you are telling the truth, or not testifying, what would you do?
43.
Why do you think one of our Constitutional rights that our Founding Fathers fought for was the right not to testify?
44.
I am afraid that some jurors are going to think that if [NAME OF DEFENDANT] is innocent, he would testify. However, other jurors have said that an innocent person could do himself more harm that good if he does testify. How do you feel this situation should be handled?
OPINIONS/ATTITUDES 45.
What can we do to stop or reduce the number of molestations or sexual assaults?
46.
What can we do to stop or reduce the number of false allegations of sexual assault or molestation?
47.
Tell me about a situation where someone took your conduct out of context? How did that make you feel? Why do people do that sometimes? How would you feel if they accused you of committing a crime? ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES
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48.
How would you feel if someone misinterpreted and misrepresented your conduct in a particular situation?
49.
How do you think [NAME OF DEFENDANT] must feel being accused of a crime he did not commit?
POLICE 50.
Have you ever worked in the field of law enforcement? For whom did you work and for how long?
51.
Do you have any family or friends who work now, or have worked in the past, in law enforcement?
52.
When the police are investigating a charge, do you think they are fair to both sides?
53.
Have you ever heard of a situation where the police jumped to a conclusion and it turned out they were wrong? Tell us about that?
54.
Under what circumstances do you feel it is appropriate for a lawyer to aggressively cross-examine a police officer?
55.
Have any jurors, family members or friends ever had any business with or know any police officers or have you/they ever worked for, or applied for a job with, the Police Department?
56.
Do you think there would be a public outcry if it was learned that the police arrested someone on false charges?
PUBLICITY 57.
Have you heard about this case from the radio, television, newspaper, magazines or word of mouth? a. How did you hear about this case? b. What do you recall hearing, seeing or reading about this case? c. What was your reaction? d. Have you formed any opinion? e. What opinion did you form? f. Do you honestly believe that you could still be fair and impartial if you were selected as a juror in this case?
58.
Have friends, co-workers, neighbors, or family members talked about this case? If yes: a. Who? b. How long ago? c. How often has this case been discussed? d. What was said? e. What was your reaction to what was said? ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES
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59.
Have a. b. c. d.
you heard or read about the charges against [NAME OF DEFENDANT]? When did you read or hear about him? What was the source of your information? What did you read or hear? What was your reaction?
60.
How many articles or stories have you read or seen about this case?
61.
What is the first thing you remember reading or hearing about this case?
62.
How many times have you discussed this case? a. When? b. With whom? c. What did the other people say about this case? d. What did you have to say about this case?
63.
Of all the things you have read or heard about this case, what stands out in your mind the most?
64.
Why does that [fact, event] stand out?
65.
Have a. b. c. d.
66.
Have you ever overheard any discussion or conversation about [NAME OF DEFENDANT] or this case? a. When? b. Who participated? c. What was said? d. What was your reaction?
67.
Do you have any family members or friends who work for the media (newspaper, radio, television, magazine, etc.)? a. Who? b. What is this person’s job? c. What is your relationship with this person? d. Has this person expressed any opinion about this case? e. What was the opinion? f. What was your reaction?
68.
Do you feel the media fairly presents both sides when they report on a criminal case? Why?
69.
Do you feel it would be easy or difficult for a person accused of a crime to receive a fair trial when there has been publicity? Why?
you ever participated in a discussion or conversation involving this case? When? With whom? What did the other people say about this case? What did you have to say about this case?
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES
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70.
Sexual assault has received a great deal of publicity in the last few years. Some people think it is not as widespread as the media makes it, other people feel that it is even more widespread than the media suggests. What is your opinion?
SEXUAL ASSAULT 71.
Have you or anyone you know ever been the victim of any unwanted sexual contact? If it is not too personal, would you mind telling us about that?
72.
Some people believe that there is so much publicity about sexual abuse of young girls because the incidents have increased and the public needs to know. Other people believe that the reason there is so much publicity is that there aren’t more cases, it’s just that sensationalism sells. What is your opinion? Many people have strong feelings about sexual assault. What are yours?
73. 74.
Given the strong feelings many people have about sexual assault, how can [NAME OF DEFENDANT] get a fair trial?
75.
Have a. b. c. d.
76.
Has anyone ever told you about an experience involving sexual assault, abuse or molestation? If yes, was the person: a. an adult or child; b. male or female; c. victim or molester. d. What were you told? e. What was your reaction? f. What was your advice? g. What was the outcome?
77.
Has there ever been an accusation of sexual assault directed at someone you knew? If yes, a. What was the allegation? b. What was the outcome? c. What could have been done, if anything, to have prevented that allegation?
78.
The statistics show that one out of every three females, and one out of every five males, experience an unwanted sexual contact by the time they reach the age of eighteen. To many people this is a shocking fact. What is your reaction to this statistic?
79.
Because of these statistics, do you feel that every time someone brings these charges the charges are true? Why or why not?
you followed any cases of alleged sexual assault or abuse in the media? What case did you follow? What was the outcome of that case? Why did you follow that case? What was your reaction?
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES
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80.
Are you, any family member or close friends associated in any way with any group or association that wants to change the law as it relates to sexual assault, abuse or molestation?
81.
What would you do if you were falsely accused of sexual assaulting a woman?
82.
Prior to today, what was your opinion on the issue of sexual assault, abuse or molestation? a. What is your opinion now? b. If you were sitting in [NAME OF DEFENDANT]'s shoes, what would you do to make sure you got a fair trial?
SEXUAL ABUSE/SEXUAL ASSAULT/RAPE 83.
Have you, any family member or friend ever experienced unwanted sexual contact? a. Who? b. When? c. What happened? d. What did you or this person do? e. Were criminal charges filed? f. What was the outcome? g. How did you or this person feel about the outcome?
84.
It would be unusual not to know someone who has at some time in their life been molested, had some kind of unwanted sexual contact or was raped. I know it is embarrassing to talk about what has happened to this person and if you want to talk about this privately, please tell me. It is important that we know what kind of experiences you have had or someone that you know has had along those lines. It is my concern that if someone has had some kind of unwanted sexual experience that these feelings would affect their ability to be a fair juror in this case. Please raise your hand if you, a family member or any friend has ever been molested, had some kind of unwanted sexual contact or was raped. If yes, please raise your hand so we can talk about it in private.
85.
Have you, any family member or any friends ever had a bad experience of a sexual nature with a family member, religious leader, babysitter, doctor, teacher, acquaintance, or anyone else?
86.
The following question is very personal and sensitive. Many people, including myself, would answer the following question "yes" and would want to talk about in private. If anyone feels uncomfortable with answering the following question, I can assure you we can talk in private. With that assurance, let me ask you this: Have you, any family member or close friend ever had a bad experience of a sexual nature with anyone?
87.
I am concerned that if a juror has had an unwanted sexual experience they will have strong feelings and will hold it against [NAME OF DEFENDANT] Is my concern a valid one? Why? ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES
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88.
Do you know anyone who has ever been accused of sexual assault or molestation? If yes, a. Was there an arrest? b. When did this occur? c. What was the outcome? d. What were your feelings at the time? e. How do you feel about the incident now? f. In light of that experience, how would you feel about serving as a juror in this case?
89.
Has anyone ever told you about an experience involving sexual assault, abuse or molestation? If yes, a. Was that person an adult or child? b. Male or female? c. Victim or molester? d. Was anyone arrested? e. What was the outcome? f. How did you feel about the outcome?
90.
Has there ever been an accusation of sexual assault or molestation directed at someone you knew? If yes, a. What was the allegation? b. What was the outcome? c. What could have been done, if anything, to have prevented that allegation? d. What was your reaction at the time? e. In light of that experience, how would you feel about serving as a juror in this case?
91.
Have you, a family member or close friend ever been sexually propositioned? If yes, please tell us about that, or we can talk about it in private.
92.
THE FOLLOWING QUESTION IS EXTREMELY IMPORTANT AND EXTREMELY SENSITIVE. IF ANYONE WANTS TO TALK ABOUT IT IN PRIVATE, JUST RAISE YOUR HAND AND I KNOW HIS HONOR WILL LET US TALK PRIVATELY. Have you, any family members or friends ever been sexually abused or had any type of unwanted sexual contact?
93.
Do you know anyone who has been raped or had any unwanted sexual contact? What happened, what was the outcome and how did you feel about the outcome?
TESTIFYING 94.
Every citizen accused of a crime has a right not testify. This is because the law says the prosecution has the burden of proving a person guilty and a Defendant does not have to prove he is innocent. How do you feel about this law? ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES
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95.
What are some reasons why an innocent person would not testify?
96.
What if the State did not prove their case. Do you still feel the person should testify? Why?
97.
If you were accused of a crime like this, would you testify? Why?
98.
What if the jurors didn’t believe you?
99.
I want to be the first one to tell you that [NAME OF DEFENDANT] is going to testify. What is your reaction to that?
100.
I have a concern that some jurors may feel that [NAME OF DEFENDANT] will not be truthful because there is so much at stake. What do you think about my concerns?
101.
How difficult do you think it would be for anyone accused of a crime like this to testify?
102.
Why do you believe that the Constitution guarantees each person the right not to testify in their own behalf? How do you feel about that guarantee?
103.
Some people think that when someone is charged with a crime that they should testify and others think its okay if they do not. What do you think about that?
104.
Some people would feel that a person has something to hide if he chooses not to testify. Other people would feel that a person would say just about anything to save his own neck. If you were in [NAME OF DEFENDANT]’s shoes, what would you do?
105.
What might be some reasons that a person accused of sexual assault would not testify?
106.
Do you believe that a truthful witness could be made to look like a liar? Why or why not?
107.
If you were given a choice of whether or not to testify on your own behalf and you knew that the prosecutors would do their best to make it look like you were not telling the truth, what would you do?
108.
We will be the first to tell you that [NAME OF DEFENDANT] will not hide behind the 5th Amendment, and that he will testify. What is your reaction to that?
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES
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PUNISHMENT 109.
In a trial involving criminal charges there are two phases: One phase is for deciding guilty or not guilty; The other phase is known as the punishment phase. We do not expect to ever get to the second phase of this trial, however, it is necessary that we explore your feelings about the various punishment options. What are your feelings about discussing this issue even though we believe the jury will find [NAME OF DEFENDANT] not guilty?
110.
If a person is found guilty of sexual assault, what would you consider to be the appropriate punishment? Why?
111.
What factors would you want to consider in determining an appropriate punishment?
112.
People have many different reasons for wanting to impose a sentence on a person convicted of sexual assault. Some reasons are for rehabilitation, punishment or retribution. Which would be your reason for imposing a sentence?
113.
Some people could never consider probation for a person convicted of sexual assault. Other people feel the offender should be placed on probation and receive treatment. What do you feel?
REASONABLE DOUBT 114.
What does reasonable doubt mean to you?
115.
Do you think it is fair that a person can only be found guilty if the prosecution has proven it’s case “beyond a reasonable doubt”?
116.
Give me an example of a time when you had reasonable doubt about something.
MISCELLANEOUS 117.
What qualities do you possess that would make you a good juror in this case?
118.
Would you like to be a juror in this case? Why?
119.
[TO WOMEN JURORS] Would you describe yourself as a feminist, traditionalist or humanist?
120.
Is there any questions I should have asked but haven’t?
121.
Is there anything else I should know about you that would be important in deciding if you should be a juror in this case?
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES
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Challenge For Cause
PUBLICITY 1.
[Juror's Name], you told us earlier that you had heard or read about this case?
2.
When we read or hear about a case we all tend to form some kind of opinion. Isn't that just human nature?
3.
For example, when you heard about the O.J. Simpson case, didn't you and millions of other people form some opinion on whether he was guilty or not guilty?
4.
There is nothing wrong with that. And when you heard or read about this case, it would have been only natural to form an opinion about this case. Wouldn’t you agree?
5.
I sense that the opinion you formed was that [NAME OF DEFENDANT] was probably guilty.
6.
You would agree with me that once a person forms an opinion, it is difficult, if not impossible, to set that opinion aside?
7.
And if a person said they could set that opinion aside, in reality, they might not be able to?
8.
I know that if I were a juror who had formed an opinion, I would not be able to set my opinion aside. So, wouldn't you agree that you might not be able to set your opinion aside?
9.
Wouldn't it be fair to say that in your mind [NAME OF DEFENDANT] starts out with one strike against him?
10.
You agree with me that in a case as serious as this that it wouldn't be fair if there were jurors who felt the Defendant had a strike against him?
11.
I honestly believe that if you had not heard or read about this case, you could be totally and completely fair. Wouldn't you agree?
12.
[Juror's Name], I appreciate how honest and candid you have been. Would you mind if I ask the judge to excuse you from being a juror in this particular case?
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES
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Challenge For Cause
VICTIM OF SEXUAL ASSAULT 1.
Being a good citizen means a person should vote, pay taxes and serve on a jury. A good citizen does not have to vote for a particular candidate, pay the same amount of taxes each year or serve on a particular case. Would you agree or disagree with that?
2.
A good citizen is the one who says, “I do not feel I could be a fair and impartial juror in a case like this.” Do you agree that if a person feels that way, he/she should say that?
3.
It is human nature for people to make decisions based on things that have happened in their own life. Wouldn't you agree that this is human nature?
4.
Wouldn't you agree that in order for us to have the fairest possible jury, people who have been the victim of sexual assault probably could not be totally, completely and absolutely impartial in view of their own experiences?
5.
I have the feeling that if this was a burglary case or a theft case, you would be totally and completely impartial. Don't you agree with me?
6.
But because of your own experiences, it is only human nature that you could not be totally, completely and absolutely impartial in this case.
7.
And if I, the prosecutor or the judge asked you to set your own experiences aside, as human beings it is really impossible to do that?
8.
Would it be okay with you if I ask the judge to excuse you from being a juror in this particular case?
ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES
Page 13 of 13
VOIR DIRE QUESTIONS - DWI ELIMINATION QUESTIONS (BIAS OR PREJUDICE) 1.
Have you, any family members or close friends ever had a bad experience with a drunk driver? W ould you mind telling us about that? a.) b.)
W as there an accident? W as anyone injured?
c.) d.)
W hat happened to the drunk driver? W ould that experience cause you to start the trial believing that [client’s name] was guilty?
2.
There are people who have very negative feelings about drunk drivers. [Juror’s name], do you have very negative opinions about people who are accused of drunk driving?
3.
W ho else on the first row please raise your hand if you agree with [Juror’s name] that you also have very negative feelings about drunk drivers. [go row by row on this question].
4.
[Go back to the first juror who admitted having very negative feelings about drunk drivers] [Juror’s name], so would it be fair to say that given your very negative feelings about drunk drivers, that since the charge in this case is DW I, you would have a leaning or prejudgement, what lawyers call a bias or prejudice, against a person charged with drunk driving?
5.
[Go to all the other jurors who raised their hands to question #12] It would be fair to say that you would also have a bias or prejudice against a defendant in this kind of case?
6.
W hen you heard that the charge in this case was DW I, how many of you were thinking that the Defendant [DO NOT use your client’s name in this question. Humanizing your client will reduce the number of people who will answer this question]
7.
If the police arrest someone for D.W .I., how likely or unlikely is it that the person is guilty: Very likely Likely Somewhat Likely Very Unlikely
8.
Please tell me how strongly you agree or disagree with the following statements: A. If the police arrest someone for DW I, that person is probably guilty. 1 2 3 4 5 6 7 8 9 10 Strongly Agree Somewhat Agree Strongly Disagree Page 1 of 9
B. It should be against the law for a person to have 1 drink or more and then drive. 1 2 3 4 5 6 7 8 9 Strongly Agree
Somewhat Agree
10
Strongly Disagree
9.
On a scale of 1 to 10, how strongly do you support or oppose the law that says you can drink and drive? [1 = you strongly support it to 10 = you oppose it.]
10.
Have you had any experience with alcohol or intoxicated people that would have a bearing on (or influence you) your serving as a juror in a DW I case?
11.
Some people believe that certain types (races) of people have a more difficult time handling liquor. Do you agree or disagree with this statement?
12.
If you agree, what types (races) of people have a more difficult time handling liquor?
13.
If a person accused of DW I refused to take a breath test, would you believe that he was guilty?
EDUCATION QUESTIONS 14.
W hat would you consider to be too much to drink and drive?
15.
Do you agree or disagree with the following statement: a person can have 1 or 2 drinks and still have the normal use of their mental and physical faculties?
16.
Have you ever had one or two drinks at a friend’s house and then driven home?
17.
Did you have the normal use of your mental and physical faculties?
18.
If you were stopped by a police officer, would you be guilty, of DW I?
19.
W hat can we do to make sure that a person who has been accused of driving while intoxicated get a fair trial?
20.
W hy would you be a good juror in a DW I case?
21.
If a person is a diabetic and forgets to take their insulin, gets in their car, goes into insulin shock, and causes an accident, has that person committed a crime? W hy? Page 2 of 9
JUMPING TO CONCLUSIONS 22.
How likely is it that the officer would jump to a conclusion if he learned that the person he stopped had previously plead guilty to DW I?
23.
All of us have had a situation where we jumped to a conclusion and it turned out we were wrong. [Juror’s name], can you give me an example of a time when this happened to you?
24.
How likely or unlikely is it that a police officer could jump to a conclusion and be wrong: Very Likely Likely Somewhat Likely Unlikely Very Unlikely
25.
How likely or unlikely is it that a police officer could jump to a conclusion about a person being intoxicated and the officer is wrong: Very Likely Likely Somewhat Likely Unlikely
Very Unlikely
OUT ON YOUR FEET 26.
W hat does the term, “out on your feet” mean to you?
27.
Have you or any family members ever had an experience where you were out on your feet?
LEAVING THE SCENE OF AN ACCIDENT 28.
Do you know anyone who ever continued to drive after having an accident?
29.
W hat are some reasons why a person would continue to drive after getting into a minor accident?
CHARACTERISTICS ASSOCIATED WITH DRUNK DRIVERS 30.
W hat are some reasons other than alcohol that would cause someone to weave while driving?
31.
W hat are some reasons, other than alcohol, for why a person’s eyes would be bloodshot?
Page 3 of 9
32.
W hat are some reasons, other than alcohol, for why a person would stagger when they walk?
33.
W hat are some reasons, other than alcohol, for why a person would be unsteady on their feet?
34.
W hat are some signs that a person is exhausted, tired or sleepy?
35.
W hat are some signs that a person has high blood sugar?
36.
W hat are some signs that a person has had a stroke?
TESTS 37.
Have you ever known anyone who had to take any type of test that the police call field sobriety tests, but are actually coordination tests? W ould you tell us about that?
38.
W hat are your feelings about coordination tests, in general?
39.
W hat are your feelings about breath tests (where a person is asked to blow into a device designed to measure the amount of alcohol a person has consumed)?
40.
W hat are some reasons why an innocent person would refuse to take a breath test?
41.
Do you think it would be easy or difficult to prove that a breath test machine did not work properly?
42.
How reliable or unreliable do you believe breath test machines are: 1 2 3 4 5 6 7 Very Reliable
43.
Somewhat Reliable
8
9
10
Very Unreliable
W hy would a person, who is accused of driving while intoxicated, request a blood/alcohol test?
44.
How would you feel if you knew that [Client’s Name] requested a blood/alcohol test but the police refused? Page 4 of 9
45.
How do you feel you might perform on coordination tests if you were upset about being stopped by the police?
46.
How well would you perform on coordination tests when you are very nervous?
47.
How likely is it that a lab would make a mistake or mix up test results: Very Likely
48.
Likely
Very Unlikely
How reliable or unreliable are police administered coordination tests for determining if a person is intoxicated? Extremely Reliable
49.
Somewhat Likely
Reliable
Somewhat Reliable
Not Reliable
Please tell me how strongly you agree or disagree with the following statements: A. Police should use coordination tests that are so easy to pass, only an intoxicated
50.
person would fail them. 1 2 3 4 5 6 Strongly Agree Somewhat Agree Have you ever heard of a HGN?
51.
W hat is your understanding of how the HGN works?
52.
How reliable or unreliable do you believe such a test to be for determining intoxication: Very Reliable
Reliable
Somewhat Reliable Unreliable
7
8
9 10 Strongly Disagree
Very Unreliable?
DRINKING AND DRIVING 53.
On a scale of 1 to 10, how careful a driver are you? [1 = very careful to 10 = not very careful at all.]
54.
55.
Have you ever had a beer, a glass of wine or a cocktail and then later driven your car? a.) W ould you tell us about that? b.)
How long after you had a beer, glass of wine or a cocktail would you feel it was safe to drive?
c.)
W e want to be the first to tell you that [Client’s Name] did have two or three beers several hours before he was stopped by the police. W hat is your reaction to that?
How many times in the past 5 years have you had 1 or 2 drinks and driven your car? Page 5 of 9
56.
Have you ever been driving and saw another driver that you thought was under the influence? W hat did you do in that situation?
57.
Have you ever stopped someone from driving because they had too much to drink?
58.
Has anyone ever stopped you from driving because you had too much to drink?
ADDICTION 59.
Do you feel alcoholism is an illness, addiction or weakness?
W hy?
60.
I am addicted to [smoking, caffeine, chocolate]. Bubba will tell you [or you will learn] that he is addicted to alcohol. If it is not too personal, will you share with Bubba and me something to which you are addicted? OR: W hat are some examples of addictions you have heard of and believe are true.
61.
W ITHOUT MENTIONING ANY NAMES, do you know anyone who is addicted to alcohol?
62.
How do you break the cycle of addiction?
SPECIAL INTEREST GROUPS 63.
Have you or any family members ever contributed time or money to MADD or DADD or SADD?
64.
W hat is your opinion of MADD?
65.
Tell us how strongly you agree or disagree with the views of groups such as MADD: Strongly agree
Agree
Somewhat Agree
Disagree
Strongly Disagree
POLICE OFFICERS 66.
Some people believe that police officers who have been assigned to a DW I task force believe every driver they stop is intoxicated. Other people feel that a task force officer would be more qualified than the average police officer to determine if a person is intoxicated. W hat is your view or opinion? Page 6 of 9
67.
How often do you believe the police charge an innocent person with DW I: Always
Very Often
Occasionally
Rarely
Never
68.
If your closest friend was stopped by the police and charged with DW I, would you assume he or she was guilty?
69.
W hat if you saw the police stop and charge someone you did not know with DW I, would you assume that person was guilty?
ALCOHOL 70.
How many times a month do you have some type of alcoholic drink?
71.
W hen you drink, do you usually have beer, wine or liquor?
72.
Do you or any family members own a business that sells alcohol or alcoholic drinks?
73.
Do you have any family members or close friends that you feel drinks too much or is an alcoholic?
74.
If that person was stopped by the police and charged with DW I, would you assume that person was guilty?
IMPAIRMENT 75.
After how many (beers, glasses of wine or drinks) would your driving been impaired?
76.
After how many (beers, glasses of wine or drinks) would the average person’s driving be impaired?
77.
It is not against the law to drink and then drive. W hat is against the law is if a person is mentally or physically impaired when driving. Do you agree or disagree with this law?
78.
W hat does, “mental impairment” mean to you?
79.
W hat are some characteristics of mental impairment?
80.
W hat does, “physical impairment” mean to you? Page 7 of 9
81.
W hat are some characteristics of physical impairment?
82.
Do you think that anybody who has 1 or 2 drinks and drives, is going to be mentally impaired?
83.
Do you think that anybody who has 1 or 2 drinks and drives, is going to be physically impaired?
PRIOR DWI CONVICTIONS 84.
W e will be the first to tell you that [client’s name] has previously plead guilty to three prior DW I charges. W ould you start the trial believing that if a person had previously plead guilty to DW I charges that he must be guilty in this case?
85.
If a police officer learned that a person he had stopped had been previously been convicted of a DW I offense, how would that fact affect or influence the officer?
86.
If a person has previously plead guilty to a charge, if that person is charged with another crime, in your mind, would that person start the trial out with a strike against him or with a clean slate?
PUNISHMENT (TEXAS) 87.
W ho would agree with and who would disagree with, a law which says that a person who is convicted of DW I for a third time shall be sent to prison as punishment? W hy?
88.
[Depends upon the case / I’d have to hear the facts.] Give me an example of a situation where a person had been convicted three (3) or more times of DW I, but deserves probation and not prison.
89.
If a person had been convicted of DW I three (3) or more times, some people could never consider sending that person to prison. Other people could never consider probation. W hich of these two (2) categories do you fall into?
90.
W hat kinds of conditions of probation would you feel would be appropriate for a person who had been convicted of DW I three (3) or more times?
Page 8 of 9
91.
There have been a number of studies which have shown that education, family support and medical treatments are far more effective and less costly when a person is suffering from alcohol addiction. Do you agree or disagree with these studies? W hy?
92.
Studies have shown that people who complete treatment programs are much less likely to commit another crime than people who complete a prison sentence. Do you agree or disagree with these studies? W hy?
93.
How many times would a person have to be convicted of DW I before you would say that you could not even consider giving them probation? W hy?
94.
Fill in the blank for us: If a person was convicted of DW I for prison time. W hy do you feel this way?
times, I would always vote
95.
W hat would be some of the benefits of giving a person probation as opposed to sending them to prison?
MISCELLANEOUS 96.
Have you ever served on a jury or grand jury where alcohol was an issue in the case?
97.
Do you have any moral, religious or personal views that disapprove of drinking alcohol?
98.
Is there any question that I should have asked you that would have given me an insight as to your serving as a juror in a DW I case?
99.
As you sit there right now, are you thinking to yourself that [your client’s name] is probably guilty of the charge?
100. Is there anyone who is sitting there right now thinking to yourself that you are already leaning in favor of the prosecution? 101. W hat was your initial reaction when you heard the charges in this case? 102. W hen you heard the charges and looked at [your client’s name], what went through your mind?
Page 9 of 9
Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course June 24-26, 2021 Hyatt Regency San Antonio, TX
Topic: Preservation of Error
Speaker:
Jani Maselli Wood 1201 Franklin St Floor 13 Houston, TX 77002 (713) 274-6721 phone jani.maselli@pdo.hctx.net email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Planting Error Making Your Record for Appeal
** Attached are two “cheat sheet[s]” to take to trial. One is specific to voir dire. The other covers issues from the Code of Criminal Procedure an the Rules of Evidence. It hopefully includes most errors, how to preserve them, and case law to support your objections. As an introductory note, always make your objection under any Constitutional provision as well as statutory authority. For appellate purposes, this makes the argument infinitely easier. In every objection, argue that there besides being a constitutional violation, the error affects the defendant’s “substantial rights.” Remember to bring your objection to an adverse riling. Object, and if sustained, ask for a limiting instruction. If the instruction is given, move for a mistrial. Only when the defendant’s objection has received an adverse ruling, is error preserved.
Jani Maselli Wood Harris County Public Defender’s Office Jani.Maselli@pdo.hctx.net 713.274.6700
Planting Error Top Ways to Make Your case for an Appeal 1.
It is up to you. A.
2.
McGirt v. Oklahoma, 140 S.Ct. 2452 (2020); Sharp v. Murphy, 140 S.Ct. 2412 (2020).
Voir Dire and Jury Charge error are fertile grounds for reversal A
Time limits with voir dire
A two-part test applies when a party complains of an inability to address proper questions to the whole venire panel: (1) whether the complaining party attempted to prolong the voir dire, and (2) whether the questions that the party was not permitted to ask were proper voir dire questions. McCarter v. State, 837 S.W.2d 117, 119-20 (Tex.Crim.App.1992). A third prong is added when a party is not permitted to ask questions of individual jurors: (3) whether the party was not permitted to examine prospective jurors who actually served on the jury. Id. at 120. B.
Jury charge requests.
If you do not ask - you will not receive. Texas Pattern Jury Charges vs. what we receive: “...a six-page impenetrable forest of legal “argle-bargle” Reeves v. State, 420 S.W.3d 812, 817 (Tex. Crim. App. 2013). C.
Jury charge objections
Article 36.14 of the Texas Code of Criminal Procedure states in part: [I]n each felony case … tried in a court of record, the judge shall, before the argument begins, deliver to the jury…a written charge distinctly setting forth the law applicable to the case. D.
How do we extend Batson and J.E.B.? Religion?
Batson v. Kentucky, 476 U.S. 79 (1986), J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). Batson challenge based on race involves a three-step inquiry: (1) the defendant must make a prima facie showing that a venire member was peremptorily excluded because of race; (2) the State must provide race-neutral reasons for the challenged peremptory strike; and (3) the defendant must rebut the State's explanations. See Tex.Code Crim. Proc. Ann. art. 35.261(a) (Vernon 1989); Simpson v. State, 119 S.W.3d 262, 268 (Tex.Crim.App.2003). Batson challenges may also be based on gender or ethnicity. See J.E.B. v. Alabama, 511 U.S. 127, 146 (1994); Hernandez v. New York, 500 U.S. 352, 370-72 (1991); Guzman v. State, 85 S.W.3d 242, 245 (Tex.Crim.App.2002). However, article 35.261 applies only to race-based peremptory challenges. See Tex.Code Crim. Proc. Ann. art. 35.261. -1-
Why is this still the law: Litigants may use peremptory challenges to exclude persons from service on juries in individual cases on basis of their religious affiliation. Casarez v. State, 913 S.W.2d 468 (Tex. Crim. App. 1994), on reh'g (Dec. 13, 1995) 3.
Reread the Constitutions. Tex. Const. Art. I, sec. 10
U.S. Constitution Amends. V, VI
Sec. 10. RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS. In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself, and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide; and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
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4.
Reread the law. A.
Identify your law issues early in the case. Arrest - TEX. CODE CRIM. PROC. ART. 15 ET SEQ. Search - TEX. CODE CRIM. PROC. ART. 18 ET SEQ. Statements/Confession - TEX. CODE CRIM. PROC. ART. 38.22 Suppression - TEX. CODE CRIM. PROC. ART. 38.23 Accomplices/Law of parties - Tex. Penal Code Complaint or indictment - TEX. CODE CRIM. PROC. ARTS. 21, 28 ET SEQ Elements of the offense - TEXAS PENAL CODE CH. 7 Limitations - TEX. CODE CRIM. PROC. ARTS. 12.01 AND 12.02 Lesser-included offenses - TEX. CODE CRIM. PROC. ART. 37.09 Justifications - TEXAS PENAL CODE CH. 9 Defenses - TEXAS PENAL CODE CH. 8 Enhancements - finality, sequencing, proof - TEXAS PENAL CODE § 12.42
1.
Motion to Set Aside the Complaint (Thanks to Ted Wood, Drew Willey, and Armen Merjanian)
Motion to Quash & Set Aside the Information (charging instrument), seeking the charge(s) be dismissed because the Complaint (a component of the Information) does not meet the basic requirements provided by Texas statute. Tex. Code Crim. Pro. Art. 2.04, 15.05, & 21.22. 1. E-file the Motion to Quash 2. Email the prosecutor these words: "I am requesting discovery disclosure of the identification of the Affiant who signed the complaint in this case." 3. Email the coordinator requesting a hearing setting for your motion. 4. Once you have the name of the affiant, subpoena both the affiant and the ADA who signed the complaint (identified by the bar number on the complaint) for the hearing setting. 5. At the hearing, ask the affiant, "what is the oath written on the wall that you swore to for this case?" (Oath should be "Do you swear that you have read the contents of the DIMS and that the pleadings accurately reflect the allegation contained in the summary paragraph of the DIMS of each such charge you have prepared and is now before you."). 6. Ask the ADA who signed the complaint, "what is the oath written on the wall that the affiant swore to when signing this complaint?" -3-
7. Ask the judge to dismiss the case because the oath does not swear that the affiant has good reason to believe, and does believe, that the accused has committed such offense, as required by Tex. CCP 15.05. 2.
The PSI
The Statute: Have you read it? Does your probation office comply with the statute? Did they comply in this case? Texas Code Criminal Procedure Art. 42A.253. Contents of Presentence Report (a) A presentence report must be in writing and include: (1) the circumstances of the offense with which the defendant is charged; (2) the amount of restitution necessary to adequately compensate a victim of the offense; (3) the criminal and social history of the defendant; (4) a proposed supervision plan describing programs and sanctions that the community supervision and corrections department will provide the defendant if the judge suspends the imposition of the sentence or grants deferred adjudication community supervision; (5) if the defendant is charged with a state jail felony, recommendations for conditions of community supervision that the community supervision and corrections department considers advisable or appropriate based on the circumstances of the offense and other factors addressed in the report; (6) the results of a psychological evaluation of the defendant that determines, at a minimum, the defendant's IQ and adaptive behavior score if the defendant: (A) is convicted of a felony offense; and (B) appears to the judge, through the judge's own observation or on the suggestion of a party, to have a mental impairment; (7) information regarding whether the defendant is a current or former member of the state military forces or whether the defendant currently serves or has previously served in the armed forces of the United States in an active-duty status and, if available, a copy of the defendant's military discharge papers and military records; (8) if the defendant has served in the armed forces of the United States in an active-duty status, a determination as to whether the defendant was deployed to a combat zone and whether the defendant may suffer from post-traumatic stress disorder or a traumatic brain injury; and (9) any other information relating to the defendant or the offense as requested by the judge. (b) A presentence report is not required to contain a sentencing recommendation. Tex. Code Crim. Pro. Ann. art. 42A.253
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5.
Offers of proof. “Mr. Smith make an offer of proof regarding the testimony of ___________. I would like to put on the record the testimony that the witness would have given or we can have the jury out and call the witness and do the testimony in question/answer format.” “The Court has excluded testimony by _______ about ______________. The witness _________ would have testified that _____________________.” “Judge, this evidence is admissible, relevant, and needed for _______________. Without this evidence, Mr. Smith is not able to defend his case in violation of due process and the right to a fair trial. We are harmed from this exclusion because _________________. No other witness can present this exact testimony and Mr. Smith needs it for his constitutional right to a fair trial.”
6.
Reread ALL the rules of evidence.
7.
Handle pretrial evidentiary issues as necessary. Provide briefing to the court. Discern what evidence the State has that you want excluded. What evidence do you have that the State may object to. All these issues should be fully briefed with case law for the court.
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8.
State’s experts. Have your Daubert hearing. “under the regime of Daubert a district judge asked to admit scientific evidence must determine whether the evidence is genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist.” Co b le v . State , 330 S.W.3d 253, 277 (Tex. Crim. App. 2010). Brantley v. State, 606 S.W.3d 328 (Tex. App.--Houston [1st Dist.] 2020, no pet.). “The test for reliability of an expert’s opinion differs depending on whether the testimony is based on hard science or soft science. Hard sciences are ‘areas in which precise measurement, calculation, and prediction are generally possible,’ and ‘include mathematics, physical science, earth science, and life science.’ Soft sciences, on the other hand, ‘are generally thought to include such fields as psychology, economics, political science, anthropology, and sociology.’ ‘The distinctions between hard and soft sciences may be blurred, and the reliability inquiry is flexible.’ The test for reliability of soft-science expert testimony ... ‘centers on the principles and methodology, and not on conclusions an expert generates by using those principles or methodology.’ An expert’s opinion is inadmissible if it is ‘connected to existing data only by the expert's own assertions.’ If an analytical gap exists between the data and the expert’s opinion, the opinion should be excluded as unreliable.” Daubert v. Merrell Dow Pharms., 509 U.S. 579, 592-93 (1993). Faced with a proffer of expert scientific testimony, … the trial judge must determine at the outset, pursuant to [FRE] 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. Paredes v. State, 462 S.W.3d 510, 517-18 (Tex.Crim.App.2015). “[S]everal general principles [regarding the Confrontation Clause and lab reports] are clear, assuming a defendant was afforded no prior opportunity to cross-examine. Hall v. State, 297 S.W.3d 294, 297 (Tex.Crim.App.2009). TRE 101 “specifically provides that the [TREs], with the exception of those that concern privileges, do not apply to suppression hearings. Thus, evidence that is otherwise inadmissible at trial under the [TREs] may well be admissible at a suppression hearing. So in this case, because [TRE] 702’s requirements, as set out in Kelly [v. State, 824 S.W.2d 568 (Tex.Crim.App.1992)], do not apply to suppression hearings, there is no threshold admissibility determination under the [TREs]. Vela v. State, 209 S.W.3d 128, 130 (Tex.Crim.App.2006). TRE 104(a), 401, 402, and 702 “set out three separate conditions regarding admissibility of expert testimony. At 131: These rules require a trial judge to make three separate inquiries, which must all be met before admitting expert testimony: (1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case. These -6-
conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance.
9.
Defense experts. Have one. Even if you are hired counsel, if your client is indigent they are entitled to expert assistance. Ex parte Briggs, 187 S.W.3d 458, 469 (Tex. Crim. App. 2005). If any reasonable attorney appointed to represent an indigent defendant would be expected to investigate and request expert assistance to determine a deceased infant's cause of death, a privately retained attorney should be held to no lower standard. As the Supreme Court has explained, “The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant's entitlement to constitutional protection.... [W]e see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers.”
10.
Watch for trends in the law. A.
Pending PDRs. Pending writ issues. Cert petitions granted. https://www.txcourts.gov/media/1451624/pdr-issues.pdf https://www.txcourts.gov/media/1450086/article-1107-filed-and-set-writ-issues.pdf https://www.scotusblog.com/
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Preservation of Error in Voir Dire By Jani Maselli Wood General Rule Tex. R. App. P. 33.1 Preservation; How Shown (a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion that: (A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and (B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and (2) the trial court: (A) ruled on the request, objection, or motion, either expressly or implicitly; or (B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal. Request Voir Dire Be Recorded Without a transcript of voir dire, no error can be presented. Villarreal v. State, 617 S.W.2d 703 (Tex. Crim. App. 1981). Erroneous Denial of Challenge for Cause **Special Rules for Preservation** To preserve error on appeal regarding a trial court's denial of a challenge for cause, “an appellant must: (1) assert a clear and specific challenge for cause; (2) use a peremptory strike on the complained-of veniremember; (3) exhaust his peremptory strikes; (4) request additional peremptory strikes; (5) identify an objectionable juror; and (6) claim that he would have struck the objectionable juror with a peremptory strike if he had one to use.” Allen v. State, 108 S.W.3d 281, 282-83 (Tex. Crim. App.2003). Upon a challenge for cause, the examination is not confined to the answers of the juror, but other evidence may be heard for or against the challenge. Tex. Code Crim. P. art. 35.18, Prewitt v. State , 167 S.W.2d 194 (Tex. Crim. App. 1942); Garnder v. State, 306 S.W.3d 274 (Tex. Crim. App. 2009). Erroneous Granting State’s Challenge for Cause Object under TRAP 33.1, Object to final compilation of jury, Exhaust peremptory strikes Request an additional peremptory strike Make record that jury actually selected was not composed of qualified persons Ford v. State, 73 S.W.3d 923, 925 (Tex.Crim.App.2002). Shuffle Object to denial of right to shuffle -8-
Make bill showing “that the listing of the panel members was not random.” Ford v. State, 73 S.W.3d 923, 924-26 (Tex.Crim.App.2002) A defendant has an absolute right to have the jury venire shuffled upon timely demand. Tex.Code Crim. Proc. Ann. art 35.11. The parties have the right to view the entire venire in proper sequence before having the names shuffled, and a defendant cannot be deemed to have exercised his right to a jury shuffle without having had the opportunity to present the motion for a shuffle to the judge. Johnson v. State, 977 S.W.2d 137, 138 -139 (Tex.Crim.App.1998). Improper Comments to the Venire by Judge The general rule is that counsel must object to the trial judge's comments during trial in order to preserve error. See Tex.R.App. P. 33.1(a); Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App.2000) (plurality op.) But see Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001)(Blue not necessarily binding precedent). - Object under Sixth Amendment, See Livingston v. State, 782 S.W.2d 12 (Tex. App. – Dallas 1989) - Object under Tex.Code Crim. Proc. Ann. art 38.05: Judge shall not discuss evidence In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case. By State When appellant complains about an improper remark by the prosecutor during voir dire, appellant must object when the remark is made. Beltran v. State, 99 S.W.3d 807, 811 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd); Herring v. State, 758 S.W.2d 849 (Tex. App. – Corpus Christi, 1983, no pet.). Limitations on Questions To preserve error as to the improper limitation of voir dire, an appellant “must show that he was prevented from asking particular questions that were proper.” Sells v. State , 121 S.W.3d 748, 755 -756 (Tex.Crim.App.2003). Make bill of exceptions to show questions you would have asked . See Easterling v. State, 710 S.W.2d 569, 57576 (Tex.1986) (“Before we can determine if the trial court has abused its discretion by improperly restricting the voir dire examination, it is necessary for the record to reflect what questions the defendant desired to ask the jury panel”) A two-part test applies when a party complains of an inability to address proper questions to the whole venire panel: (1) whether the complaining party attempted to prolong the voir dire, and (2) whether the questions that the party was not permitted to ask were proper voir dire questions. McCarter v. State, 837 S.W.2d 117, 119-20 (Tex.Crim.App.1992). A third prong is added when a party is not permitted to ask questions of individual jurors: (3) whether the party was not permitted to examine prospective jurors who actually served on the jury. Id. at 120.
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Right to Ask Questions Previously Asked by State or Court Object Under TRAP 33.1 “Defense counsel may not be precluded from the traditional voir dire examination because the questions asked are repetitious of those asked by the court and prosecutor.” E.g., McCarter, 837 S.W.2d at 121. Defendant has the right to question the prospective jurors in her own individual manner “to emphasize a point or uncover a hidden bias and [should] not be forced to rely on other parties to ask similar questions.” Williams v. State, 804 S.W.2d 95, 107 (Tex.Crim.App.1991). Improper Voir Dire Questions Object under 33.1. Must object before juror answers question. See, Montgomery v. State 198 S.W.3d 67, 74 (Tex.App.-Fort Worth 2006) Time Limits on Voir Dire To preserve error when the trial court limits the time for voir dire, the objecting party must identify the specific questions it was not allowed to ask. Godine v. State, 874 S.W.2d 197, 200-01 (Tex. App.-Houston [14th Dist.] 1994, no pet.). Identifying general topics for questions is insufficient. S.D.G. v. State, 936 S.W.2d 371, 380 (Tex.App.-Houston [14th Dist.] 1996, writ denied); Godine, 874 S.W.2d at 200-01. Limitations must be in the record and defense counsel must request additional time. Little v. State, 758 S.W.2d 551 (Tex. Crim. App. 1988); Guerra v. State, 760 S.W.2d 681 (Tex. App. – Corpus Christi 1988). Court will consider, had counsel adequately managed his time during voir dire, he would have had sufficient time to question the venire members. Wappler v. State 183 S.W.3d 765, 772 -775 (Tex.App.-Houston [1st Dist.] 2005, pet. ref’d.). Commitment Questions General Rule: "[A]n attorney cannot attempt to bind or commit a prospective juror to a verdict based on a hypothetical set of facts." A question is a commitment question if one or more of the possible answers is that the prospective juror would resolve or refrain from resolving an issue in the case on the basis of one or more facts contained in the question. Standefer v. State, 59 S.W.3d 177, 180 (Tex.Crim.App. 2001). All commitment questions are not improper. So long as the law requires a particular type of commitment from jurors-for example, to follow the particular law applicable to the case-then counsel may examine potential jurors concerning their ability to make that commitment. Preservation of Error: Object under TRAP 33.1. To determine whether the question is a proper commitment question, the court first inquires whether one of the possible answers to the question gives rise to a valid challenge for cause. If it does not, then the question is not proper and should be disallowed by the trial court. If the commitment question gives rise to a valid challenge for cause, then the court must determine whether the question contains only those facts necessary to test whether a prospective juror is challengeable for cause. Additional facts supplied beyond what is necessary to sustain a challenge for cause render improper what otherwise would have been a proper question. Standefer v. State, 59 S.W.3d 177, 181 (Tex. Crim. App.2001). Judicial Bias Object under TRAP 33.1 and See U.S. Const. amends. V, VI, XIV; Tex. Const. art. 1 § 19; Abdygapparova v. State 243 S.W.3d 191, 206 -207 (Tex. App.-San Antonio 2007, pet. ref’d)(holding violation for judge and state to engage in ex parte communications).
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Batson and J.E.B. A Batson challenge based on race involves a three-step inquiry: (1) the defendant must make a prima facie showing that a venire member was peremptorily excluded because of race; (2) the State must provide race-neutral reasons for the challenged peremptory strike; and (3) the defendant must rebut the State's explanations. See Tex.Code Crim. Proc. Ann. art. 35.261(a) (Vernon 1989); Simpson v. State, 119 S.W.3d 262, 268 (Tex.Crim.App.2003). Batson challenges may also be based on gender or ethnicity. See J.E.B. v. Alabama, 511 U.S. 127, 146 (1994); Hernandez v. New York, 500 U.S. 352, 370-72 (1991); Guzman v. State, 85 S.W.3d 242, 245 (Tex.Crim.App.2002). However, article 35.261 applies only to race-based peremptory challenges. See Tex.Code Crim. Proc. Ann. art. 35.261. Alternate Juror (present during deliberations) Object under TRAP 33.1 and Tex.Code.Crim. Proc. Ann. art. 33.011(b) . However, alternates are allowed in the jury room as long as they do not vote on the verdict. See Castillo v. State, 319 S.W.3d 966 (Tex. App. – Austin 2010, pet. ref’d). Challenge to the Array Tex.Code.Crim. Proc. Ann. art 35.06 Challenge to array first heard The court shall hear and determine a challenge to the array before interrogating those summoned as to their qualifications. See Esquivel v. State, 595 S.W.2d 516 (Tex. Crim App. 1980). Transcription Voir Dire Object under TRAP 33.1; See Jones v. State, 942 S.W.2d 1, 2 (Tex.Crim.App.1997) (objection required to preserve error stemming from failure to transcribe voir dire proceedings). Juror Withholding Information Object Under TRAP 33.1 and “ describe to the trial court what questions he would ask the juror to establish misconduct or bias.” See Kelly v. State, 60 S.W.3d 299, 304 (Tex.App.-Dallas 2001, no pet.); Cuellar v. State, 943 S.W.2d 487, 490-91 (Tex.App.-Corpus Christi 1996, pet. ref'd). Juror Misconduct “To preserve error caused by juror misconduct, the defendant must either move for a mistrial or file a motion for new trial supported by affidavits of a juror or other person in a position to know the facts alleging misconduct.” Castillo v. State, 319 S.W.3d 966, 970 (Tex. App.—Austin 2010, pet. ref'd) Alternate Jurors The trial court has discretion to determine whether a juror has become disabled and to seat an alternate juror. Article 36.29 requires that a disabled juror suffer from a “ ‘physical illness, mental condition, or emotional state that would hinder or inhibit the juror from performing his or her duties as a juror,’ or that the juror was suffering from a condition that inhibited him from ‘fully and fairly performing the functions of a juror.’ ” When dismissing a juror, the trial court must not dismiss a juror for reasons related to that juror's evaluation of the sufficiency of the evidence. Scales v. State, 380 S.W.3d 780, 783 (Tex. Crim. App. 2012)
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Replacing Jurors Before charge is read: “Article 36.29 of the Texas Code of Criminal Procedure contemplates that a jury in a felony case must begin with twelve members. Tex. Code Crim. Proc. Ann. art. 36.29(a) ... If a juror becomes disabled after the jury is impaneled and sworn, article 36.29(a) gives the remaining eleven jurors the power to render the verdict.” Castro v. State, 233 S.W.3d 46, 49 (Tex. App.—Houston [1st Dist.] 2007, no pet.) After Charge is read: Tex. Code Crim. P. art. 36.29 (c) provides for the trial to proceed with 11 jurors if a juror becomes sick and no alternate is available. Disabled Juror Tex. Code Crim. P. art. 36.29 Whether a juror has become “disabled” and cannot continue is a matter of discretion for the court. Challenges for Cause Tex. Code Crim. P. art. 35.16 Reasons for challenge for cause (a) A challenge for cause is an objection made to a particular juror, alleging some fact which renders the juror incapable or unfit to serve on the jury. A challenge for cause may be made by either the state or the defense for any one of the following reasons: 1. That the juror is not a qualified voter in the state and county under the Constitution and laws of the state; provided, however, the failure to register to vote shall not be a disqualification; 2. That the juror has been convicted of misdemeanor theft or a felony; 3. That the juror is under indictment or other legal accusation for misdemeanor theft or a felony; 4. That the juror is insane; 5. That the juror has such defect in the organs of feeling or hearing, or such bodily or mental defect or disease as to render the juror unfit for jury service, or that the juror is legally blind and the court in its discretion is not satisfied that the juror is fit for jury service in that particular case; 6. That the juror is a witness in the case; 7. That the juror served on the grand jury which found the indictment; 8. That the juror served on a petit jury in a former trial of the same case; 9. That the juror has a bias or prejudice in favor of or against the defendant; 10. That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence the juror in finding a verdict. To ascertain whether this cause of challenge exists, the juror shall first be asked whether, in the juror's opinion, the conclusion so established will influence the juror's verdict. If the juror answers in the affirmative, the juror shall be discharged without further interrogation by either party or the court. If the juror answers in the negative, the juror shall be further examined as to how the juror's conclusion was formed, and the extent to which it will affect the juror's action; and, if it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states that the juror feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that the juror is impartial and will render such verdict, may, in its discretion, admit the juror as competent to serve in such case. If the court, in its discretion, is not satisfied that the juror is impartial, the juror shall be discharged; 11. That the juror cannot read or write.
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No juror shall be impaneled when it appears that the juror is subject to the second, third or fourth grounds of challenge for cause set forth above, although both parties may consent. All other grounds for challenge may be waived by the party or parties in whose favor such grounds of challenge exist. In this subsection "legally blind" shall mean having not more than 20/200 of visual acuity in the better eye with correcting lenses, or visual acuity greater than 20/200 but with a limitation in the field of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees. (b) A challenge for cause may be made by the State for any of the following reasons: 1. That the juror has conscientious scruples in regard to the infliction of the punishment of death for crime, in a capital case, where the State is seeking the death penalty; 2. That he is related within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the defendant; and 3. That he has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment. (c) A challenge for cause may be made by the defense for any of the following reasons: 1. That he is related within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the person injured by the commission of the offense, or to any prosecutor in the case; and 2. That he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor. Tex. Code Crim. P. art. 35.16 Harm Analysis Tex. R. App.Proc. 44.2 Reversible Error in Criminal Cases (a) Constitutional Error. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. (b) Other Errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.
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PRESERVATION OF ERROR or Object, Object, Object Issues
Statute/Constitution
Case Law
Helpful Info
PRETRIAL
Texas Code Crim. Proc. art. 28.01
State v. Velasquez, 539 S.W.3d 289 (Tex. Crim. App. 2018)
Must be filed 7 days before pretrial hrg - and must give 10 days to prepare.
Motion to Suppress Statements
Texas Code Crim. Proc. art. 38.22
Dowthitt v. State, 931 S.W.2d 244 (Tex.Crim. App. 1996); Vasquez v. State, 411 S.W.3d 918 (Tex. Crim. App. 2013) Miranda v. Arizona
File pretrial -request hearing with live testimony
U.S. CONT. AMEND. IV TEX. CONST. ART. 1, sec. 9 Racial Profiling
Texas Code Crim. Proc. art. 2.132/38.23 U.S. CONT. AMEND. IV, XIV TEX. CONST. ART. 1, sec. 9, 19
Ex parte Brooks, 97 S.W.3d 639 (Tex. App. – Waco 2002)
File under Texas Code Crim. Proc. art. 38.23 motion to suppress
Statute of Limitations
Texas Code Crim. Proc. art. 12.01 et. seq.
Ex parte Heilman, 456 S.W.3d 159 (Tex. Crim. App. 2015)
File Motion to Dismiss under Texas Code Crim. Proc. art. 27.08; may be raised by pretrial writ of habeas corpus. Can be waived.
Invalid Warrant arrest
Texas Code Crim. Proc. art. 15.01-15.03
State v. Martin, 833 S.W.2d 129 (Tex.Crim. App. 1992); State v. Toone, 872 S.W.2d 750 (Tex.Crim. App. 1994); Franks v. Delaware, 438 U.S. 154 (1978)
File Motion for Franks v. Delaware hearing; run with trial as well;
Invalid Warrant search
Texas Code Crim. Proc. art. 18.01 et. seq. U.S. CONT. AMEND. IV TEX. CONST. ART. 1, sec. 9
Competency to stand trial
Texas Code Crim. Proc. art. 46B et seq.
Texas Code Crim. Proc. art. 46C et. seq. Insanity
U.S. CONT. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Jurisdiction
Texas Penal Code and Texas Code Crim. Proc. Art. 27.08 TEX. CONST. ART. 5, et seq.
Swearingen v. State, 143 S.W.3d 808 (Tex.Crim. App. 2004); Groh v. Ramirez, 540 U.S. 551 (2004); Massey v. State, 933 S.W.2d 141 (Tex. Crim. App. 1996)
File pretrial; can also be relitigated at trial if testimony differs
Turner v. State,422 S.W.3d 676 (Tex. Crim. App. 2013).
File pretrial motion - but “a suggestion of incompetency” is the standard and can be raised by any credible person.
Defreece v. State, 848 S.W.2d 150 (Tex.Crim. App. 1993)
Must file motion 20 days pretrial or at pretrial hearing, if set.
Puente v. State, 71 S.W.3d 340 (Tex. Crim. App. 2002)
File pretrial - jurisdiction can never be waived and is preserved for app. Review w/out objection
Venue
Texas Code Crim. Proc. art. 13.01 et. seq. U.S. CONT. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Grand Jury
Texas Code Crim. Proc. art. 19.01 et. seq. U.S. CONT. AMEND. V TEX. CONST. ART. 1, sec. 10
Indictment
Texas Code Crim. Proc. art. 21.01 et. seq. U.S. CONT. AMEND. V TEX. CONST. ART. 1, sec. 10
Ten Days to Prepare
Texas Code Crim. Proc. art. 27.11
U.S. CONT. AMEND. XIV TEX. CONST. ART. 1, sec. 19 Amendment to Indictment
Texas Code Crim. Proc. art. 28.10
Misjoinder Election
Texas Code Crim. Proc. art. 21.24 U.S. CONT. AMEND. V, XIV TEX. CONST. ART. 1, sec. 10, 19
Motion for Continuance
Texas Code Crim. Proc. art. 29.01 et. seq.
Stewart v. State, 44 S.W.3d 582 (Tex.Crim. App. 2001); Schmutz v. State, 440 S.W.3d 29 (Tex. Crim. App. 2014); Wilson v. State, 825 S.W.2d 155 (Tex. App. – Dallas 1992)
By pretrial motion or by proper objection at trial, but it can be waived. Not an element of the offense, so it does not affect sufficiency.
Campbell v. Louisiana, 523 U.S. 392, 398 (1998); Gentry v. State, 770 S.W.2d 780 (Tex.Crim. App. 1988)
Due Process violation/motion to quash
Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990); Teal v. State, 230 S.W.3d 172 (Tex. Crim. App. 2007)
Motions to quash - must be filed pretrial
Roberts v. State, 93 S.W.3d 528 (Tex. App. – Houston [14th Dist.] 2002); Ashcraft v. State, 900 S.W.2d 817, 830 (Tex. App. – Corpus Christi 1995, pet. ref’d).
Make objection on record
Puente v. State, 320 S.W.3d 352, 353 (Tex. Crim. App. 2010) Martinez v. State, 225 S.W.3d 550, 554 (Tex. Crim. App. 2007); Mallett v. State, 28 S.W.3d 603, 606-07 (Tex.App.-Corpus Christi 2000), rev'd on other grounds, 65 S.W.3d 59 (Tex. Crim. App.2001)
object if proper when indictment is amended
Heiselbetz v. State, 906 S.W.2d 500 (Tex. Crim. App. 1995)
29.08 - must be in writing & verified/establish specific prejudice on record if denied
Motion to quash for misjoinder/motion for election at trial
U.S. CONT. AMEND. XIV TEX. CONST. ART. 1, sec. 19 Disqualification of judge
Texas Code Crim. Proc. art. 30.01 U.S. CONT. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Gamez v. State, 737 S.W.2d 315 (Tex. Crim. App. 1987); Metts v. State, 510 S.W.3d 1, 4-5 (Tex. Crim. App. 2016)
Review consanguinity rules in Gov’t Code Chapter 573
Change of Venue
Texas Code Crim. Proc. art. 31.01 et. seq. U.S. CONT. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Brimage v. State, 918 S.W.2d 466, 508 (Tex.Crim. App. 1996); Gonzalez v. State, 222 S.W.3d 446 (Tex. Crim. App. 2007)
Must include def. affidavit + at least two more credible persons that are residents of the county
Special Plea
Texas Code Crim. Proc. art. 27.05 U.S. CONT. AMEND. V TEX. CONST. ART. 1, sec. 14
Ex parte Apolinar, 820 S.W.2d 792 (Tex. Crim. App. 1991)
Decided by jury whether prior jeopardy attaches; 27.06 requires def. verification
Ake/funding
U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 19
Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. 1995); Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005)
File motion pretrial ex parte Funding available if counsel is hired upon proper request
Texas Code Crim. Proc. art. 35.07
Pondexter v. State, 942 S.W.2d 577 (Tex.Crim. App. 1996); Garcia v. State, 919 S.W.2d 370, 392 (Tex. Crim. App. 1996)
Must be in writing and supported by affidavit
Green v. State, 934 92 (Tex.Crim. App. 1996); Comeaux v. State, 445 S.W.3d 745, 752 (Tex. Crim. App. 2014); Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007)
To preserve error with respect to a trial court's denial of a challenge for cause, you must: (1) assert a clear and specific challenge for cause, (2) use a peremptory strike on the complained-of veniremember, (3) exhaust your peremptory strikes, (4) request additional peremptory strikes, (5) identify an objectionable juror, and (6) claim that you would have struck the objectionable juror with a peremptory strike if you had had one to use.
TRIAL Challenge to the array
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 15, 19
Erroneous denial of valid challenge for cause
Texas Code Crim. Proc. art. 35.15 U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 10, 15
Erroneous grant of a State's challenge for cause will call for reversal only if the record shows that the error deprived the defendant of a lawfully constituted jury.
Batson, 476 U.S. 79 (1986); J.E.B. 511 U.S. 127 (1994)
Jones v. State, 982 S.W.2d 386 (Tex.Crim.App.1998).
Texas Code Crim. Proc. art. 35.261 U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 10, 19
Guzman v. State, 85 S.W.3d 242 (Tex.Crim. App. 2002)
Must be done before jury is empaneled, make prima facie showing on record.
Tex. R. Evid. 103
Warner v. State, 969 S.W.2d 1 (Tex.Crim. App. 1998); Tatum v. State, 798 S.W.2d 569 (Tex.Crim. App. 1990); Bonilla v. State, 452 S.W.3d 811, 817 (Tex. Crim. App. 2014); Layton v. State, 280 S.W.3d 235 (Tex. Crim.App. 2009).
Error requires objection/and offer of proof - Must be Specific, Timely, and must reach an adverse ruling to preserve error
Evidence Rulings
U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Preservation
Tex. R. Evid. 103(a)(1) U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Mack v. State, 872 S.W.2d 36 (Tex. App. – Fort Worth 1994); Saldano v. State, 70 S.W.3d 873, 888-90 (Tex. Crim. App. 2002); Ethington v. State, 819 S.W.2d 854, 858-59 (Tex. Crim. App. 1991)
Objections made outside presence of jury and preserved do not require objection in front of jury (not limine!) Must be (1) Timely, (2) Specific and (3) Get a ruling. Running objections preferred. Be careful of not letting evidence in elsewhere.
Offer of proof
Tex. R. Evid. 103(a)(2) U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Zillender v. State, 557 S.W.2d 515 (Tex. Crim. App. 1977); Mays v. State, 285 S.W.3d 884, 889-90 (Tex. Crim. App. 2009)
If evidence is excluded, make a bill/take witness on voir dire/make record clear
Admissibility Generally
Tex. R. Evid. 104 U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Bartlett v. State, 270 S.W.3d 147 (Tex. Crim. App. 2008); State v. Petropoulos, 346 S.W.3d 346 S.W.3d 525, 529 (Tex. 2011).
standard is typically abuse of discretion; objecting party has duty to notice whether the conditions of admissibility are met
Relevancy Conditioned on Fact
Tex. R. Evid. 104(b)
Nguyen v. State, 21 S.W.3d 609 (Tex. App. – Houston [1st Dist.] 2000); Harrell v. State, 884 S.W.2d 154, 15960 (Tex. Crim. App. 1994)
May be struck if not properly established by later evidencemust object
Hearing of Jury
Tex. R. Evid. 104(c)
Alvarado v. State, 912 S.W.2d 199 (Tex.Crim. App. 1995); Simmons v. U.S., 390 U.S. 377 (1968)
Mandatory hearing outside presence of jury on voluntariness of def.’s statement and when accused testifies on prelim. matter
Kirsch v. State, 306 S.W.3d 738, 747 (Tex. Crim. App. 2010); Beham v. State, 559 S.W.3d 474, 484 (Tex. Crim. App. 2018).
Proper request requires court to instruct jury on limited purpose of evidence
Wright v. State, 776 S.W.2d 763 (Tex. App. – Corpus Christi 1989)
Must make express showing of what your limited evidence would have shown
Reece v. State, 772 S.W.2d 198 (Tex. App. – Houston [14th Dist.] 1989)
Must object or it is waived allows intro of remainder at time other evidence is presented
Walters v. State, 247 S.W.3d 204, 205 (Tex. Crim. App. 2007); Allridge v. State, 762 S.W.2d 146 (Tex.Crim. App. 1988)
“Opening the door” to prevent the jury receiving a false impression
U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19 Limiting Instruction
Tex. R. Evid. 105(a) U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Offering Evidence for Limited Purpose
Tex. R. Evid. 105(b)
Remainder of or Related Writings
Tex. R. Evid. 106
U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19 Rule of Optional Completeness
Tex. R. Evid. 107 U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Judicial Notice
Tex. R. Evid. 201 U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Relevancy
Tex. R. Evid. 401, 402 U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Exclusion of Relevant Evidence
Tex. R. Evid. 403
Character Evidence
Tex. R. Evid. 404(a)
U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Character Evidence
Tex. R. Evid. 404(b) U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Method of Proving Character
Tex. R. Evid. 405 U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Habit: Routine Practice
Tex. R. Evid. 406 U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Inadmissibility of Pleas & Plea Discussions
Tex. R. Evid. 410 U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Watts v. State, 99 S.W.3d 604 (Tex. Crim. App. 2003); Kubosh v. State, 241 S.W.3d 60, 64 (Tex. Crim. App. 2007)
Objection required - watch for judicial notice vs. fact issue for jury
Morale v. State, 557 S.W.3d 569, 573 (Tex. 2018);Blackburn v. State, 820 S.W.2d 824, 825–26 (Tex. App. —Waco 1991, pet. ref'd);
Two provisions construed in harmony, make objection, abuse of discretion standard
Montgomery v. State, 810 S.W.2d 372 (Tex.Crim. App. 1991); Wheeler v. State, 67 S.W.3d 879 (Tex.Crim. App. 2002)
Test whether prejudicial effect substantially outweighs probative value under 403
Stitt v. State, 102 S.W.3d 845 (Tex. App, – Texarkana 2003); Santellan v. State, 939 S.W.2d 155 (Tex. Crim. App. 1997)
A pertinent character trait is one that relates to a trait involved in the offense charged or a defense raised
Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008); Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007); Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004); Page v. State, 137 S.W.3d 75 (Tex. Crim. App. 2004)
Request notice pretrial from state for 404(b); 609; and Texas Code Crim. Proc. art. 37.07 evidence – do not file motion/request triggers notice requirements.
Turner v. State, 805 S.W.2d 423 (Tex. Crim. App. 1991); Thomas v. State, 669 S.W.2d 420, 423 (Tex. App.—Houston [1st Dist.] 1984, pet. ref'd)
Reputation - “Have you heard?” Opinion - “Do you know?” - although really no distinction within the rule
U.S. v. Angwin, 271 F.3d 786 (9th Cir. 2001); Miller v. State, 882 S.W.2d 936 (Tex. App. – Beaumont 1994)
Examples of admissible habit and routine practice admissible.
Abdel-Sater v. State, 852 S.W.2d 671 (Tex. App. – Houston [14th Dist.] 1993); Jenkins v. State, 493 S.W.3d 583, 607 (Tex. Crim. App. 2016)
While inadmissible - be wary of evidence coming in other way; rule is silent on whether D can offer the evidence.
Evidence of Previous Sexual Conduct in Criminal Case
Tex. R. Evid. 412
Husband-Wife Privilege
Tex. R. Evid. 504
U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19 Competency of Juror as Witness
Tex. R. Evid. 606 U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
Who May Impeach
Tex. R. Evid. 607 U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Evidence of Character & Conduct of a Witness
Tex. R. Evid. 608
Impeachment by Evidence of Conviction of Crime
Tex. R Evid. 609
Writing Used to Refresh Memory
Tex. R. Evid. 612
U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19 Prior Statements of Witnesses
Tex. R. Evid. 613(a) U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
Impeachment & Support
Tex. R. Evid. 613(b) U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
Boyle v. State, 820 S.W.2d 122 (Tex. Crim. App. 1989) overruled on other grounds, Gordon v. State, 801 S.W.2d 899 (Tex. Crim. App. 1990); Todd v. State, 242 S.W.3d 126, 129 (Tex. App.—Texarkana 2007, pet. ref'd)
Preserve through bill any excluded evidence to establish why it relates to any of the exceptions under 412(b)(2)(a)-(e).
Colburn v. State, 966 S.W.2d 511 (Tex. Crim. App. 1998)
Many exceptions; common law marriage applies
Colyer v. State, 428 S.W.3d 117, 123–24 (Tex. Crim. App. 2014).
Juror misconduct almost impossible to establish - try through evidence from one other than juror.(outside influence)
Hughes v. State, 4 S.W.3d 1 (Tex. Crim. App. 1999); Ramirez v. State, 987 S.W.2d 938 (Tex. App. – Austin 1999)
Object under 403 if State uses impeachment evidence primarily to get otherwise inadmissible evidence before jury.
Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997)
Witness called to impeach truthfulness of another witness - cannot be used for general moral character - no specific instances of lying allowed
Lopez v. State, 253 S.W.3d 680, 682 (Tex. Crim. App. 2008); James v. State, 102 S.W.23d 162 (Tex. App. – Fort Worth 2003)
Watch for opening of door/ allowing in crimes not admissible under 609
Powell v. State, 5 S.W.3d 369 (Tex. App. – Texarkana 1999)
Timely request
Goodman v. State, 665 S.W.2d 788 (Tex. Crim. App. 1984)
Request jury be instructed evidence is for impeachment purposes only
Gannaway v. State, 823 S.W.2d 675 (Tex. App. – Dallas 1991)
Common forms of impeachment include racial prejudice, family relationship, personal friendship or enmity, prior “bad blood”, etc.
Opinion Testimony by Lay Witness
Tex. R. Evid. 701
Testimony by Experts
Tex. R. Evid. 702
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
Hearsay
Tex. R. Evid. 801, 802 U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 10
Present Sense Impression
Tex. R. Evid. 803(1) U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 10
Excited Utterance
Tex. R. Evid. 803(2) U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 10
Then existing mental, emotional or physical condition
Tex. R. Evid. 803(3)
Statement for purpose of medical diagnosis or treatment
Tex. R. Evid. 803(4)
Recorded Recollection
Tex. R. Evid. 803(5)
U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 10
U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 10
U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 10
Records of Regularly conducted activity
Tex. R. Evid. 803(6)
Absence of entry in records
Tex. R. Evid. 803(7)
U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 10
U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 10
Osbourn v. State, 92 S.W.2d 531 (Tex. Crim. App. 2002); Hughes v. State, 787 S.W.2d 193 (Tex. App. – Corpus Christi 1990)
The opinion of a witness is not admissible to interpret the “meaning” of the acts, conduct, or language
Vela v. State, 209 S.W.3d 128, 130 (Tex. Crim. App. 2006); Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000)
To get yours in - evidence must be sufficiently reliable and relevant; to keep out reverse
Graham v. State, 643 S.W.2d 920 (Tex. Crim. App. 1981
Timely objection/remember to include constitutional violation of confrontation!
Rabbani v. State, 847 S.W.2d 555 (Tex. Crim. App. 1992)
Statement must be made, if not simultaneous, immediately thereafter
McCarty v. State, 257 S.W.3d 238, 238 (Tex. Crim. App. 2008); Bondurant v. State, 956 S.W.2d 762 (Tex. App. – Fort Worth 1997
Three requirements statement must have 1) occurred; 2) been a spontaneous reaction to the event; and 3) must relate to the event
Dorsey v. State, 24 S.W.3d 921 (Tex. App. – Beaumont 2000)
Must be statement of “present” bodily condition
Taylor v. State, 268 S.W.3d 571, 580 (Tex. Crim. App. 2008)
Two part test - statement made for purpose of receiving treatment and content must be reasonably relied upon by a physician
Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998)
Four prerequisites - 1) W lacks some degree of memory; 2) statement must have been made or adopted by W; 3) recollection must have correctly reflected prior knowledge; must have been recorded when fresh
Johnston v. State, 959 S.W.2d 230 (Tex. App. – Dallas 1997); Garcia v. State, 126 S.W.3d 921, 967 (Tex. Crim. App. 2004)
Four foundation requirements - 1) regularly kept; 2) personal knowledge; 3)made close in time to event 4) foundation laid by custodian of records
Young v. State, 891 S.W.2d 945 (Tex. Crim. App. 1994)
Foundation similar to 803(6) - proponent must show record would have been there had it existed
Public Records and reports
Tex. R. Evid. 803(8) U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 10
Reputation Evidence
Tex. R. Evid. 803(19) U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
Statements against interest
Tex. R. Evid. 803(24) U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
Perry v. State, 957 S.W.2d 894 (Tex. App. – Texarkana 1997)
Law enforcement exception possible reliability issues
Jones v. State, 950 S.W.2d 386 (Tex. App. – Fort Worth 1997)
Must have personal knowledge of family history
Lilly v. Virginia, 527 U.S. 116 (1999); Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999)
Statement must be inculpatory with corroborating circumstances
Wall v. State, 184 S.W.3d 730, 734 (Tex. Crim. App. 2006); Caldwell v. State, 916 SW.2d 674 (Tex. App. – Texarkana 1996); Reyes v. State, 845 S.W.2d 328 (Tex. App. – El Paso 1992)
Unavailability of W is prereq/but that is not the exception - merely the first inquiry
Hearsay Exceptions/Decla rant Unavailable
Tex. R. Evid. 804
Former Testimony
Tex. R. Evid. 804(b)(1) U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10
Coffin v. State, 885 S.W.2d 140 (Tex. Crim. App. 1994)
Key is the prior “opportunity to develop the testimony.”
Dying declaration
Tex. R. Evid. 804(b)(2)
Gardner v. State,, 306 S.W.3d 274 (Tex. Crim. App. 2009)
Three requirements: 1) declarant unavailable; 2) declarant must have believed he was dying when making statement; 3) statement must concern cause or circumstances of impending death
Philpot v. State, 897 S.W.2d 848 (Tex. App. – Dallas 1995)
To admit multiple level hearsay, each statement must be independently admissible
Angleton v. State, 971 S.W.2d 65 (Tex. Crim. App. 1985); Maldonado v. State, 998 S.W.2d 239 (Tex. Crim. App. 1999)
Condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims
Reed v. State, 811 S.W.2d 582 (Tex. Crim. App. 1991)
Authentication allowed under either 901 or 902.
Ali v. State, 26 S.W.3d 82 (Tex. App. — Waco 2000)
Not applied rigidly/abuse of discretion standard
Menefee v. State, 928 S.W.2d 274 (Tex. App. – Tyler 1996)
Objection must assert that the copy or reproduction is inadequate
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10
Hearsay within hearsay
Tex. R. Evid. 805 U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
Requirement of Authentication or Identification
Tex. R. Evid. 901
SelfAuthentication
Tex. R. Evid. 902
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19 “Best Evidence Rule”
Tex. R. Evid. 1001 et. seq. U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Requirement of Originals
Tex. R. Evid. 1002 U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
Admissibility of other evidence of contents
Tex. R. Evid. 1004
Jury charge error
Texas Code Crim. Proc. art. 36.14
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
Coleman v. State, 760 S.W.2d 356 (Tex. App. – Houston [1st Dist. 1988)
If proponent has original, should be offered upon proper objection
Posey v. State, 966 S.W.2d 57 (Tex. Crim. App. 1998)
Must object in writing to “commission and omission” to preserve error or egregious harm standard used under Almanza.
Vasquez v. State, 919 S.W.2d 433 (Tex. Crim. App. 1996)
Written request with ruling by trial court preserves error.
DeGraff v. State, 962 S.W.2d 596 (Tex. Crim. App. 1998)
Must be a disagreement before testimony read back
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19 Requested Special Charges
Texas Code Crim. Proc. art. 36.15 U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
Jury may have witness reexamined or testimony read
Texas Code Crim. Proc. art. 36.28
© May 2021
Jani J. Maselli
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
THE TEXAS CONSTITUTION ARTICLE 1. BILL OF RIGHTS That the general, great and essential principles of liberty and free government may be recognized and established, we declare: Sec. 1. FREEDOM AND SOVEREIGNTY OF STATE. Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States. Sec. 2. INHERENT POLITICAL POWER; REPUBLICAN FORM OF GOVERNMENT. All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient. Sec. 3. EQUAL RIGHTS. All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services. Sec. 3a. EQUALITY UNDER THE LAW. Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative. (Added Nov. 7, 1972.)
Sec. 4. RELIGIOUS TESTS. No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being. Sec. 5. WITNESSES NOT DISQUALIFIED BY RELIGIOUS BELIEFS; OATHS AND AFFIRMATIONS. No person shall be disqualified to give evidence in any of the Courts of this State on account of his religious opinions, or for the want of any religious belief, but all oaths or affirmations shall be administered in the mode most binding upon the conscience, and shall be taken subject to the pains and penalties of perjury. Sec. 6. FREEDOM OF WORSHIP. All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship. Sec. 7. APPROPRIATIONS FOR SECTARIAN PURPOSES. No money shall be appropriated, or drawn from the Treasury for the benefit of any sect, or religious society, theological or religious seminary; nor shall property belonging to the State be appropriated for any such purposes. Sec. 8. FREEDOM OF SPEECH AND PRESS; LIBEL. Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases. Sec. 9. SEARCHES AND SEIZURES. The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation. Sec. 10. RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS. In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself, and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide; and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in
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actual service in time of war or public danger. (Amended Nov. 5, 1918.)
Sec. 11. BAIL. All prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law. Sec. 11a. MULTIPLE CONVICTIONS; DENIAL OF BAIL. (a) Any person (1) accused of a felony less than capital in this State, who has been theretofore twice convicted of a felony, the second conviction being subsequent to the first, both in point of time of commission of the offense and conviction therefor, (2) accused of a felony less than capital in this State, committed while on bail for a prior felony for which he has been indicted, (3) accused of a felony less than capital in this State involving the use of a deadly weapon after being convicted of a prior felony, or (4) accused of a violent or sexual offense committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, after a hearing, and upon evidence substantially showing the guilt of the accused of the offense in (1) or (3) above, of the offense committed while on bail in (2) above, or of the offense in (4) above committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, may be denied bail pending trial, by a district judge in this State, if said order denying bail pending trial is issued within seven calendar days subsequent to the time of incarceration of the accused; provided, however, that if the accused is not accorded a trial upon the accusation under (1) or (3) above, the accusation and indictment used under (2) above, or the accusation or indictment used under (4) above within sixty (60) days from the time of his incarceration upon the accusation, the order denying bail shall be automatically set aside, unless a continuance is obtained upon the motion or request of the accused; provided, further, that the right of appeal to the Court of Criminal Appeals of this State is expressly accorded the accused for a review of any judgment or order made hereunder, and said appeal shall be given preference by the Court of Criminal Appeals. (b) In this section: (1) "Violent offense" means: (A) murder; (B) aggravated assault, if the accused used or exhibited a deadly weapon during the commission of the assault; (C) aggravated kidnapping; or (D) aggravated robbery. (2) "Sexual offense" means: (A) aggravated sexual assault; (B) sexual assault; or (C) indecency with a child. (Added Nov. 6, 1956; amended Nov. 8, 1977; Subsec. (a) amended and (b) added Nov. 2, 1993.)
Sec. 11b. VIOLATION OF CONDITION OF RELEASE PENDING TRIAL; DENIAL OF BAIL. Any person who is accused in this state of a felony or an offense involving family violence, who is released on bail pending trial, and whose bail is subsequently revoked or forfeited for a violation of a condition of release may be denied bail pending trial if a judge or magistrate in this state determines by a preponderance of the evidence at a subsequent hearing that the person violated a condition of release related to the safety of a victim of the alleged offense or to the safety of the community. (Added Nov. 8, 2005; amended Nov. 6, 2007.)
Sec. 11c. VIOLATION OF AN ORDER FOR EMERGENCY PROTECTION INVOLVING FAMILY VIOLENCE. The legislature by general law may provide that any person who violates an order for emergency protection issued by a judge or magistrate after an arrest for an offense involving family violence or who violates an active protective order rendered by a court in a family violence case, including a temporary ex parte order that has been served on the person, or who engages in conduct that constitutes an offense involving the violation of an order described by this section may be taken into custody and, pending trial or other court proceedings, denied release on bail if following a hearing a judge or magistrate in this state determines by a preponderance of the evidence that the person violated the order or engaged in the conduct constituting the offense. (Added Nov. 6, 2007.)
Sec. 12. HABEAS CORPUS. The writ of habeas corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual.
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Sec. 13. EXCESSIVE BAIL OR FINES; CRUEL AND UNUSUAL PUNISHMENT; REMEDY BY DUE COURSE OF LAW. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law. Sec. 14. DOUBLE JEOPARDY. No person, for the same offense, shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense after a verdict of not guilty in a court of competent jurisdiction. Sec. 15. RIGHT OF TRIAL BY JURY. The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. Provided, that the Legislature may provide for the temporary commitment, for observation and/or treatment, of mentally ill persons not charged with a criminal offense, for a period of time not to exceed ninety (90) days, by order of the County Court without the necessity of a trial by jury. (Amended Aug. 24, 1935.)
Sec. 15-a. COMMITMENT OF PERSONS OF UNSOUND MIND. No person shall be committed as a person of unsound mind except on competent medical or psychiatric testimony. The Legislature may enact all laws necessary to provide for the trial, adjudication of insanity and commitment of persons of unsound mind and to provide for a method of appeal from judgments rendered in such cases. Such laws may provide for a waiver of trial by jury, in cases where the person under inquiry has not been charged with the commission of a criminal offense, by the concurrence of the person under inquiry, or his next of kin, and an attorney ad litem appointed by a judge of either the County or Probate Court of the county where the trial is being held, and shall provide for a method of service of notice of such trial upon the person under inquiry and of his right to demand a trial by jury.
(Added Nov. 6, 1956.)
Sec. 16. BILLS OF ATTAINDER; EX POST FACTO OR RETROACTIVE LAWS; IMPAIRING OBLIGATION OF CONTRACTS. No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made. Sec. 17. TAKING, DAMAGING, OR DESTROYING PROPERTY FOR PUBLIC USE; SPECIAL PRIVILEGES AND IMMUNITIES; CONTROL OF PRIVILEGES AND FRANCHISES. (a) No person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person, and only if the taking, damage, or destruction is for: (1) the ownership, use, and enjoyment of the property, notwithstanding an incidental use, by: (A) the State, a political subdivision of the State, or the public at large; or (B) an entity granted the power of eminent domain under law; or (2) the elimination of urban blight on a particular parcel of property. (b) In this section, "public use" does not include the taking of property under Subsection (a) of this section for transfer to a private entity for the primary purpose of economic development or enhancement of tax revenues. (c) On or after January 1, 2010, the legislature may enact a general, local, or special law granting the power of eminent domain to an entity only on a two-thirds vote of all the members elected to each house. (d) When a person's property is taken under Subsection (a) of this section, except for the use of the State, compensation as described by Subsection (a) shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities shall be made; but all privileges and franchises granted by the Legislature, or created under its authority, shall be subject to the control thereof. (Amended Nov. 3, 2009.)
Sec. 18. IMPRISONMENT FOR DEBT. No person shall ever be imprisoned for debt. Sec. 19. DEPRIVATION OF LIFE, LIBERTY, ETC.; DUE COURSE OF LAW. No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land. Sec. 20. OUTLAWRY OR TRANSPORTATION FOR OFFENSE. No citizen shall be outlawed. No person shall be transported out of the State for any offense committed within the same. This section does not prohibit an agreement with another state providing for the confinement of inmates of this State in the penal or correctional facilities of that state. (Amended Nov. 5, 1985.)
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Sec. 21. CORRUPTION OF BLOOD; FORFEITURE; SUICIDES. No conviction shall work corruption of blood, or forfeiture of estate, and the estates of those who destroy their own lives shall descend or vest as in case of natural death. Sec. 22. TREASON. Treason against the State shall consist only in levying war against it, or adhering to its enemies, giving them aid and comfort; and no person shall be convicted of treason except on the testimony of two witnesses to the same overt act, or on confession in open court. Sec. 23. RIGHT TO KEEP AND BEAR ARMS. Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime. Sec. 24. MILITARY SUBORDINATE TO CIVIL AUTHORITY. The military shall at all times be subordinate to the civil authority. Sec. 25. QUARTERING SOLDIERS IN HOUSES. No soldier shall in time of peace be quartered in the house of any citizen without the consent of the owner, nor in time of war but in a manner prescribed by law. Sec. 26. PERPETUITIES AND MONOPOLIES; PRIMOGENITURE OR ENTAILMENTS. Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed, nor shall the law of primogeniture or entailments ever be in force in this State. Sec. 27. RIGHT OF ASSEMBLY; PETITION FOR REDRESS OF GRIEVANCES. The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance. Sec. 28. SUSPENSION OF LAWS. No power of suspending laws in this State shall be exercised except by the Legislature. Sec. 29. PROVISIONS OF BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT; TO FOREVER REMAIN INVIOLATE. To guard against transgressions of the high powers herein delegated, we declare that everything in this "Bill of Rights" is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void. Sec. 30. RIGHTS OF CRIME VICTIMS. (a) A crime victim has the following rights: (1) the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process; and (2) the right to be reasonably protected from the accused throughout the criminal justice process. (b) On the request of a crime victim, the crime victim has the following rights: (1) the right to notification of court proceedings; (2) the right to be present at all public court proceedings related to the offense, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim hears other testimony at the trial; (3) the right to confer with a representative of the prosecutor's office; (4) the right to restitution; and (5) the right to information about the conviction, sentence, imprisonment, and release of the accused. (c) The legislature may enact laws to define the term "victim" and to enforce these and other rights of crime victims. (d) The state, through its prosecuting attorney, has the right to enforce the rights of crime victims. (e) The legislature may enact laws to provide that a judge, attorney for the state, peace officer, or law enforcement agency is not liable for a failure or inability to provide a right enumerated in this section. The failure or inability of any person to provide a right or service enumerated in this section may not be used by a defendant in a criminal case as a ground for appeal or post-conviction writ of habeas corpus. A victim or guardian or legal representative of a victim has standing to enforce the rights enumerated in this section but does not have standing to participate as a party in a criminal proceeding or to contest the disposition of any charge. (Added Nov. 7, 1989.)
Sec. 31. COMPENSATION TO VICTIMS OF CRIME FUND; COMPENSATION TO VICTIMS OF CRIME AUXILIARY FUND; USE OF FUND MONEY. (a) The compensation to victims of crime fund created by general law and the compensation to victims of crime auxiliary fund created by general law are each a separate dedicated account in the general revenue fund. (b) Except as provided by Subsection (c) of this section and subject to legislative appropriation, money deposited to the credit of the compensation to victims of crime fund or the compensation to victims of crime auxiliary fund from any source may be expended as provided by law only for delivering or funding victim-related compensation, services, or assistance. (c) The legislature may provide by law that money in the compensation to victims of crime fund or in the compensation to
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victims of crime auxiliary fund may be expended for the purpose of assisting victims of episodes of mass violence if other money appropriated for emergency assistance is depleted. (Added Nov. 4, 1997.)
Sec. 32. MARRIAGE. (a) Marriage in this state shall consist only of the union of one man and one woman. (b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.
(Added Nov. 8, 2005.)
Sec. 33. ACCESS AND USE OF PUBLIC BEACHES. (a) In this section, "public beach" means a state-owned beach bordering on the seaward shore of the Gulf of Mexico, extending from mean low tide to the landward boundary of state-owned submerged land, and any larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico to which the public has acquired a right of use or easement to or over the area by prescription or dedication or has established and retained a right by virtue of continuous right in the public under Texas common law. (b) The public, individually and collectively, has an unrestricted right to use and a right of ingress to and egress from a public beach. The right granted by this subsection is dedicated as a permanent easement in favor of the public. (c) The legislature may enact laws to protect the right of the public to access and use a public beach and to protect the public beach easement from interference and encroachments. (d) This section does not create a private right of enforcement. (Added Nov. 3, 2009.)
Sec. 34. RIGHT TO HUNT, FISH, AND HARVEST WILDLIFE. (a) The people have the right to hunt, fish, and harvest wildlife, including by the use of traditional methods, subject to laws or regulations to conserve and manage wildlife and preserve the future of hunting and fishing. (b) Hunting and fishing are preferred methods of managing and controlling wildlife. (c) This section does not affect any provision of law relating to trespass, property rights, or eminent domain. (d) This section does not affect the power of the legislature to authorize a municipality to regulate the discharge of a weapon in a populated area in the interest of public safety. (Added Nov. 3, 2015.)
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U.S. Constitution - portion of Bill of Rights Amendment 1 Freedom of Religion, Speech, and the Press Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances. Amendment 2 The Right to Bear Arms A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. Amendment 3 The Housing of Soldiers No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war but in a manner to be prescribed by law. Amendment 4 Protection from Unreasonable Searches and Seizures The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. Amendment 5 Protection of Rights to Life, Liberty, and Property No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation. Amendment 6 Rights of Accused Persons in Criminal Cases In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense. Amendment 8 Excessive Bail, Fines, and Punishments Forbidden Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Amendment 14 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
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Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course June 24-26, 2021 Hyatt Regency San Antonio, TX
Topic: Cross Examination
Speaker:
Eric Davis
Harris County Public Defender’s Office 1201 Franklin Avenue, 13th Floor Houston, TX 77002 (713) 274-6700 phone eric.davis@pdo.hctx.net email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course June 24-26, 2021 Hyatt Regency San Antonio, TX
Topic: Ethics
Speaker:
Richard Anderson Burleson, Pate & Gibson, L.L.P. 900 Jackson Street, Suite 330 Dallas, TX 75202 (214) 728-2208 phone randerson@bp-g.com email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
ETHICS IN THE DEFENSE OF A FEDERAL CASE
RICHARD A. ANDERSON Of Counsel to: Burleson, Pate & Gibson, L.L.P. 900 Jackson Street, Suite 330 Dallas, TX 75202
TCDLA Federal Law Seminar February 11-12, 2016 New Orleans, Louisiana
ETHICS AND ATTORNEY MISCONDUCT A. Confidentiality. One of the major rules of the State Bar is Rule 1.05: (a) "Confidential information" includes both "privileged information" and "unprivileged client information." "Privileged information" refers to the information of a client protected by the lawyerclient 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 information:
may
reveal
confidential
(1) When the lawyer has been expressly authorized to do so in order to carry out the representation. (2) When consultation.
the
client
consents
after
Page 1 (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. (d) A lawyer also may reveal unprivileged client information: (1) When impliedly authorized to do so in order to carry out the representation. (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.
ETHICS AND ATTORNEY MISCONDUCT (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). 1. Communication Between Attorney and Client. a. Definitions of Privileged Communication. The privilege applies only when the person claiming the privilege has as a client consulted an attorney for the purpose of securing a legal opinion or services and not for the purpose of committing a crime or tort and in connection with that consultation has communicated information which was intended to be kept confidential. McCormick, EVIDENCE, Sec. 91 pp. 187-88 (Cleary ed. 1972). Examples: (1) The attorney-client privilege prohibits the disclosure of the substance of communications made in confidence by a client to his attorney for the purpose of obtaining legal advice. United States v. Pipkins, 528 F.2d 559 (5th Cir. 1974). (2) The obligation of a lawyer to preserve the confidence and secrets of his client continues after the termination of his employment. Thus, a lawyer should not attempt to sell a law practice as a going business because, among other reasons, to do so would involve the disclosure of confidences and secrets. b. Tests of Confidentiality. (1) Evidentiary Test. (a) Federal. A communication is protected by the attorney-client privilege -- and we hold today it is protected from government intrusion under the Sixth Amendment -- if it is intended to remain confidential and was made under such circumstances that it was reasonably expected and understood to be confidential. Thus, disclosure made in the presence of third parties may not be
Page 2 intended or reasonably expected to remain confidential. United States v. Melvin, 650 F.2d 641 (5th Cir. 1981). Work product doctrine extends to statements made by the client to government agents while the attorney is present. Doe v United States, 282 F.3d 156 (2nd Cir. 2002) Attorney subpoenaed to testify before grand jury regarding statements made by former client to IRS. The court of appeals discussed the scope of the work product privilege and held that if the attorney’s testimony was being sought to gather evidence for an existing case it was protected. However, if statements made by the client were false and the IRS were seeking new charges for making false statements, the attorney’s testimony may not be protected. c. Agents of Attorney. (1) In appropriate circumstances the privilege may bar disclosures made by a client to non-lawyer who had been employed as agents of an accused. (a) Secretaries, file clerks, telephone operators and messengers. United States v. Kovel, 296 F.2d 918 (2nd Cir. 1961); 8 Wigmore, Evidence, Sec. 2301. (b) Law student, paralegal or investigator. Dabney v. Investment Corp. of America, 82 F.R.D. 464 (E.D. Penn. 1979). (c) Accountants. (d) Interpreters. United States v. Kovel, supra. (e) Psychiatrist. United States v. Alverez, 519 F.2d 1036 (3d Cir. 1975). (f) Polygraph Operator. Brown v. Trigg 791 F.2d 598 (7th Cir. 1986) (2) Not all Disclosures to Third Persons Result in Waiver. (a) Federal. The rule of waiver does not apply if the third persons are associates or clerical staff of the attorney. Himmelfarb v. United States, 175 F.2d 924, 939 (9th Cir. 1949) cert. denied, 338 U.S. 860 (1949).
ETHICS AND ATTORNEY MISCONDUCT The rule of waiver does not apply in the case of communications made in the presence of potential co-defendants, co-defendants or their counsel in discussions of "team strategy." Continental Oil Co. v. United States, 330 F.2d 347, 350 (9th Cir. 1964); Hunydee v. United States, 355 F.2d 183, 185 (9th Cir. 1965); In re LTV Securities Litigation, 89 F.R.D. 595, 604 (N.D. Tex. 1981). The rule of waiver does not apply if the privileged communication is shared with a third person who has a common legal interest with respect to the subject matter of communication. Hodges, Grant & Kaufman v. U.S. Government, Dept. of Treasury, I.R.S., 768 F.2d 719 (5th Cir. 1985). (3) Email Communications with Clients. ABA Committee on Ethics and Professional Responsibility Formal Opinion 99-413 Protecting the Confidentiality of Unencrypted EMail A lawyer may transmit information relating to the representation of a client by unencrypted e-mail sent over the Internet without violating the Model Rules of Professional Conduct (1998) because the mode of transmission affords a reasonable expectation of privacy from a technological and legal standpoint. The same privacy accorded U.S. and commercial mail, land-line telephonic transmissions, and facsimiles applies to Internet email. A lawyer should consult with the client and follow her instructions, however, as to the mode of transmitting highly sensitive information relating to the client's representation. The Committee addresses in this opinion the obligations of lawyers under the Model Rules of Professional Conduct (1998) when using unencrypted electronic mail to communicate with clients or others about client matters. The Committee (1) analyzes the general standards that lawyers must follow under the Model Rules in protecting "confidential client information" n1 from inadvertent disclosure; (2) compares the risk of interception of unencrypted e-mail with the risk of interception of other forms of communication; and (3) reviews the various forms of e-mail transmission, the associated risks of unauthorized disclosure, and the laws affecting unauthorized
Page 3 interception and communications.
disclosure
of
electronic
Possible statutory protection for intercepted email communications. 18 U.S.C.A. §§ 2517. Authorization for disclosure and use of intercepted wire, oral, or electronic communications (4) No otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this chapter [18 UCS §§§§ 2510 et seq.] shall lose its privileged character. Some type of notice of privilege on email communications, possibly a footer is recommended. A sample: INFORMATION CONTAINED IN THIS TRANSMISSION AND ALL ATTACHMENTS ARE INTENDED FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE AND MAY CONTAIN LEGALLY PRIVILEGED AND/OR CONFIDENTIAL INFORMATION. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPY OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE PERMANENTLY DELETE THIS MESSAGE AND IMMEDIATELY NOTIFY US BY TELEPHONE. (4)
Matters that Attorney May Reveal.
(a) Communications made by client in presence of third parties. United States v. Blackburn, 446 F.2d 1089 (5th Cir. 1971). (b) Identity of the client is not normally within the privilege. Frank v. Tomlinson, 351 F.2d 384 (5th Cir. 1965); In re Grand Jury Proceedings in Matter of Fine, 641 F.2d 199, 204 (5th Cir. 1981). Attorney identification of corporation later implicated in drug smuggling activities was not privileged information; there is no connection shown between attorney's establishment of corporation for unnamed client and that client's involvement, if any, in subsequent criminal activities).
ETHICS AND ATTORNEY MISCONDUCT Exceptions: Client's identity may be within the privilege when revelation of the name will implicate the client in the criminal offense concerning which the client sought the attorney's legal advice. United States v. Hodge and Zweig, 548 F.2d 1347 (9th Cir. 1977 ). See also, Matter of Fine, supra at 204 (c) Attorney may be questioned as to their client's whereabouts and whether they have had contact with them. Matter of Grand Jury Subpoenas Served Upon Filed, 408 F. Supp. 1169 (S.D.N.Y. 1976). (d) Attorneys may be questioned regarding physical characteristics of the client, such as complexion, demeanor, dress, (intoxication?). United States v. Kendrick, 408 F. Supp 1169 (S.D.NY. 1976).
Page 4 exposes confidential professional information to non-lawyer employees of the office, particularly secretaries and those having access to the files, and this obligates a lawyer to exercise care in selecting and training his employees so that the sanctity of all confidences and secrets of his client may be preserved. See generally, Former EC 4-5 and Former EC 4-6: (2) . . . a lawyer should be diligent in his efforts to prevent the misuse of such information by his employees and associates. Former EC 4-5. (3) "The obligation of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment." Former EC 4-6. (5) FISA and Privileged Communications.
Exception: In Texas the attorney-client privilege prevents an attorney from testifying as to his impressions of his client's mental capacity. See Pollard v. El Paso Nat'l Bank, 343 S.W.2d 909, 913 (Tex. Civ. App. 1961); Gulf Production Co. v. Colquitt, 25 S.W.2d 989 (Tex. Civ. App. 1930). (e) As a general rule matters involving receipt of fees from a client are not privileged. United States v. Haddad, 527 F.2d 537 (6th Cir. 1975), cert. den., 425 U.S. 974 (1976). In re Grand Jury Subpoena, 926 F.2d 1423 (5th Cir. 1991) the court held that an attorney could be required to disclose the identity of a client who had paid legal fees for three drug smugglers, where the payment of the fees appeared to be part of a continuing drug smuggling conspiracy. In re January 1976 Grand Jury, 534 F.2d 719 (7th Cir. 1976), the court held that the payment of a fee is not a privileged communication since money itself is "nontestimonial." (f) The Fifth Circuit has held that work papers and tax records used by an attorney to prepare his client's tax returns are part of an accounting service and therefore do not come within the attorney-client privilege. United States v. Davis, 636 F.2d 1028, 1043 (5th Cir. 1981), cert. denied, 454 U.S. 862 (1981). See also, United States v. Cote, 456 F.2d 142 (8th Cir. 1972).
28 C.F.R. §§501 permits the monitoring of attorney-client communications for inmates who are subject to special administrative measures based on a determination that unrestricted communication could result in death or serious bodily harm to others. The October 2001 amendment extended to this group of inmates only if the attorney general makes an additional finding that reasonable suspicion exists that a particular inmate may use communications with attorneys to further or facilitate acts of terrorism. The procedure are as follows: First, unless officials have obtained a prior court order permitting surreptitious monitoring, the government must notify the prisoner and his or her attorney of monitoring; Second, no privileged information will be retained by those monitoring the conversations( the only information retained will be unprivileged information that refers to threats); Third, the regulation appears to dictate that there be no connection between the monitoring team and any ongoing prosecution involving the prisoner;
d. Other Considerations. (1) It is a matter of common knowledge that the normal operation of a law office
Fourth, absent an imminent emergency, the government will have to seek court approval before any information from
ETHICS AND ATTORNEY MISCONDUCT monitored conversations is used for any purpose; and Fifth, no information that is protected by the attorney-client privilege may be used for prosecution. The alarming portion of the regulations is 28 C.F.R. §§ 501.3(d)(2) which allows monitoring of attorney-client communications without notice upon the issuance of an ex parte court order. The NACDL has issued a formal opinion in which it takes the position that attorneys are ethically obligated to request notice of monitoring. The text of that opinion is as follows: Formal Opinion 02-01: Monitoring of attorney-client communications The opinion notes that the issue of official monitoring of attorney-client conversations is not new, whether during visits or telephone calls; hence there is no dearth of legal and ethical authority on the problem. The problem of monitored telephones in police stations, jails and prisons is well-known. The issue came to public notoriety, however, in late 2001 with publication of the Attorney General's regulations governing monitoring of attorney-client communications of detainees suspected of terrorism offenses. 66 Fed.Reg. 55062 (Oct. 31, 2002); 28 C.F.R. §§ 501.3(d). The adoption of the regulations, which purport to provide advance notice of warrantless electronic monitoring and a "privilege team" to ensure that valid attorney-client communications are not misused by investigators, has also raised concerns about how to deal with secret court-ordered Title III and Federal Intelligence Surveillance Act (FISA) surveillance of such communications. Many members recall that when the proposed regulations were published for public comment in the Federal Register Oct. 31, 2001, it was audaciously announced that the regulations were already in effect. The Justice Department, however, did allow for a 60-day public comment period. NACDL immediately appointed an ad hoc committee to draft its response, which is posted on NACDL's Web site www.nacdl.org under the Defending Attorney-Client Privilege tab of the "News and Issues" section. In drafting Opinion 0201, the Ethics Advisory Committee endorsed and reaffirmed the ad hoc committee report. It is the view of NACDL that such monitoring infringes defendants' First and Fourth
Page 5 Amendment rights, and probably most importantly, the Sixth Amendment rights to effective assistance of counsel and a fair trial. Moreover, lawyers, and criminal defense lawyers in particular, have the among the highest duties of loyalty and confidentiality to their clients of any profession. Recommendations In general, the opinion advises, when an attorney has a reasonable suspicion that his or her communications with clients in custody are being monitored by government officials, it is NACDL's position that the attorney must take affirmative action to safeguard confidential communications, because once the attorney or the client learns of the monitoring, the relationship is chilled and the Sixth Amendment is violated. "Accordingly, the criminal defense lawyer has a duty to seek to end the surveillance, discover the true extent of it, and find a remedy for what has already happened," in order to protect the client's Sixth Amendment rights. "The [Sixth Amendment] right of the accused to a fair trial is undermined by actions of the government which interfere with the [Sixth Amendment] right to counsel," the opinion continues. "Thus, surreptitious monitoring of attorney-client conversations ultimately interferes with the right to a fair trial. Counsel not armed with the full facts from his or her client is seriously disadvantaged at trial to the prejudice of the client and the 'truth-seeking function' of a trial. Uninformed counsel is ineffective counsel, and, if the government is the cause of counsel being uninformed, the accused has been denied his fundamental right to a fair trial." The other type of monitoring criminal defense lawyers need to be mindful of is monitoring pursuant to a judicial electronic surveillance order issued pursuant to the federal wiretap act, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510 et seq.) or the Foreign Intelligence Surveillance Act. NACDL members have recently reported that they have asked the government whether their attorney-client conversations are under electronic surveillance in jail, and the government's response has been that they are "not under surveillance under §§ 501.3(d)." Since electronic surveillance orders are by nature sealed, not unlike unexecuted search warrants, the government does not answer whether attorney and client are under court-ordered electronic surveillance.
ETHICS AND ATTORNEY MISCONDUCT "Our opinion on this issue is the same as with jail monitoring in general: a criminal defense lawyer must seek disclosure of whether the government is wiretapping or eavesdropping on attorney-client jail communications.... Counsel should seek relief from the courts to assure confidentiality of attorney-client communications. Counsel should argue that past abuses by the government, coupled with attorney-client confidentiality and privilege under the Sixth Amendment, make secretly wiretapping and eavesdropping on attorney-client communications unconstitutional." On the other hand: Indicted attorney’s request for notice as to whether the government is engaging in surveillance of attorney client communications relating to herself, her co-defendants or her other clients was denied by the district court. U.S. v. Sattar, 314 F.Supp.2d 279 (S.D.N.Y. 2004) In refusing the request the court said [Title III and FISA] “allow for surveillance without prior notification precisely because such monitoring can often only be effective if the targets are unaware that they are being monitored.” (6) Procedural Aspects. (a) Assertion of the privilege. i. Federal: The privilege belongs to the client, not the attorney, In re Grand Jury Proceedings, 517 F.2d 666 (5th Cir. 1975); Wirtz v. Fowler, 372 F.2d 315, 332, n. 37 (5th Cir. 1966). Cf., United States v. Ponder, 475 F.2d 37, 39 (5th Cir. 1973) (though Ponder court did not give this rule as a reason, it held for other reasons that an attorney could not claim in response to IRS summons of his personal financial records that the number and size of the legal fees he had received from clients were confidential). But see, Fisher v. United States, 425 U.S. 391 (1976) where the Court acknowledged that the privilege may be raised by the attorney. (b) Burden of Proof. i. Federal: The burden of proof to demonstrate an attorney-client relationship is on the person asserting the privilege. C. McCormick, Evidence, Sec. 88, p. 179 (Clery ed. 1972), cited in United States v. Kelly, 569 F.2d 928, 938 (5th Cir.
Page 6 1978). Burden of proof to disprove waiver of privilege is also on party claiming the privilege. Weil v. Investment/Indicators, Research and Management, Inc., 647 F.2d 18, 24 (9th Cir. 1975). See also, VIII J. Wigmore, Evidence Sec. 2292 p. 554 (McNaughton rev. 1961). However, see Pavlick, infra: Where the government makes a prima facia showing that an agreement to furnish legal assistance was part of a conspiracy, the crime or fraud exception applies to deny a privilege to the identity of him who foots the bill - and this even though he be a client of the attorney and the attorney is unaware of the improper arrangement. Such an arrangement, of course, need only be an effective one, need not be expressed, and might in a proper case be found to arise. In re Grand Jury Proceedings in the Matter of Pavlick, 680 F.2d 1026 (5th Cir. 1982). It seems that even cursory investigations by inside counsel may be subject to the crime-fraud exception. For example, where corporate counsel communicated with employees regarding their immigration status while they were not authorized to work in the United States; these mere communications were held to be “in furtherance” of criminal activity. Therefore the Court held that the communications were subject to disclosure under the crime fraud exception. In re: Grand Jury Proceedings (Appeal of the Corporation) 87 F.3d 377 (9th Cir. 1996) e. Question of Law. (1) Federal: Existence of the privilege is for the court to determine, without the intervention of a jury. Rule 104(a), F.R.Evid. f. Procedure for Federal Judicial Review of Attorney-Client Privilege Claims in Summons and Subpoena Situations. An order enforcing an IRS summons under 26 U.S.C. Sec. 7602 is appealable. Claims of privilege are ordinarily not heard at this stage, but such claims with respect to documents are permitted in the 5th Circuit. United States v. Davis, 636 F.2d 1028, 1039 (5th Cir. 1981). An order enforcing a grand jury subpoena or compelling testimony is not appealable. In re Grand Jury Proceedings (Fine), 641 F.2d 199, 201
ETHICS AND ATTORNEY MISCONDUCT (5th Cir. 1981). Claims of privilege are usually litigated at contempt proceedings for refusal to testify and the most common method of review of such orders is by appeal of the contempt order. United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 29 L.Ed. 85 (1971). Attorney/client privilege and Fifth Amendment do not bar government deposition of attorney as a witness in a property forfeiture. U.S. V. Saccoccia, 63 F.3d 1 (1st Cir. 1995) The 5th Circuit recognizes a unique procedure for judicial review of privilege claims where the attorney is unwilling to risk contempt. In such cases, the anonymous 3rd party client - the real person interested in claiming the privilege may intervene in the enforcement proceedings. The order of enforcement is immediately appealable by the client-intervenor. In re Grand Jury Proceedings in Matter of Fine, supra, at 201-202. Of course, the aggrieved client can always move at his subsequent trial for exclusion of any evidence obtained in violation of his statutory or constitutional rights. United States v. Ryan, supra, at 532, n. 3. Partial disclosure equals waiver: In Re: Columbia/HCA Healthcare Corporation Billing Practices, 293 F.3d 289, (6th Cir. 2002). Sixth Circuit ruled that despite the existence of a confidentiality agreement between the company and the government, disclosed materials were not shielded from discovery in litigation brought by private parties. B.
Conflicts of Interest: General Rules.
This rule adopts the language of Rule 1.7 of the ABA Model Rules of Professional Conduct. Rule 1.06 Conflict of Interest: General Rule. (a) A lawyer shall not represent opposing parties to the same litigation.
Page 7 represent a person if the representation of that person: (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 extent, 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. Comment Two elaborates on loyalty:
(b) In other situations and except to the extent permitted by paragraph (c), a lawyer shall not
A fundamental principle recognized by
ETHICS AND ATTORNEY MISCONDUCT
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paragraph (a) is that a lawyer may not represent opposing parties in litigation. The term "opposing parties" as used in this Rule contemplates a situation where a judgment favorable to one of the parties will directly impact unfavorably upon the other party. Moreover, as a general proposition loyalty to a client prohibits undertaking representation directly adverse to the representation of that client in a substantially related matter unless that client's fully informed consent is obtained and unless the lawyer reasonably believes that the lawyer's representation will be reasonably protective of that client's interests. Paragraphs (b) and (c) express that general concept.
Instead, he "need only to show that the matters embraced within the pending suit are substantially related to the matters or cause of action wherein the attorney previously represented him." Wilson P. Abraham Const. Corp. v. Armco Steel Corp., 559 F.2d 250, 252 (5th Cir. 1977); In re Yarn Processing Patent Validity Litigation, 530 F.2d 83, 89 (5th Cir. 1976); T.C. Theater Corp. v. Warner Bros. Pictures, 113 F.Supp. 265, 268 (S.D.N.Y. 1953).
1. Representing Co-Defendants Where There is a Conflict of Interest is a Violation of the Right to Effective Assistance of Counsel Guaranteed by the Sixth Amendment.
Party seeking disqualification of opposing counsel bears the burden of proving "substantial relationship". Once established, the court will irrefutably presume that relevant confidential information was disclosed. In re American Airlines, Inc., AMR, 972 F.2d 605 (5th Cir. 1992). Denial of a motion to disqualify is not an appealable collateral order, and the standard of review on appeal is abuse of discretion. In re Dresser Industries, Inc., 972 F.2d 540 (5th Cir. 1992). See also Insurance Co. of North America v. Westcapden, 794 S.W.2d 812 (Tex. App.–Corpus Christi 1990); NCNB Texas National Bank v. Coker, 765 S.W.2d 398 (Tex. 1989).
a. The mere fact that one lawyer represents more than one co-defendant does not automatically establish a conflict of interest. Burger v. Kemp, 483 U.S. 776(1987). However, in a capital murder case since the procedure for imposing the death penalty focuses on subjective considerations of the individual offender, representing co-defendants in such a case has been held to be per se ineffective counsel by the California Supreme Court in People v. Chacon, 73 Cal. Rptr. 10, 447 P.2d 106 (S.Ct. Cal. 1968). b. Most courts utilize the "substantial relationship test" In resolving conflict of interest issues relating to former clients. In Duncan v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 646 F.2d 1020 (5th Cir. 1981), cert. denied, 454 U.S. 895, 102 S.Ct. 394 (1981), the Court held: Thus, to disqualify his former counsel, the moving party must prove not only the existence of prior attorney-client relationship but also that there is a genuine threat that confidences revealed to his former counsel will be divulged to his present adversary. The party seeking disqualification is not required, however, to point to specific confidences revealed to his former attorney that are relevant to the pending case.
c. Nothing in the Sixth Amendment requires trial courts, themselves, to initiate inquiry into the propriety of multiple representation. Absent special circumstances, trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accepted such risk of conflict. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708 (1980). Limitation: Conflict between lawyer’s personal interests and those of client may not be as clear. See Beets v. Collins, 986 F.2d 1478 (5th Cir. 1993). d. However, trial of a defendant without adequate representation by counsel is fundamentally unfair and the requisite government involvement for Fourteenth Amendment purposes is present whether or not the responsible governmental official is aware of the conflict. Stephens v. United States, 595 F.2d 1066, 1069 (5th Cir. 1979); Cuyler v. Sullivan, 446 U.S. 335 (1980).
ETHICS AND ATTORNEY MISCONDUCT e. In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance. Cuyler v. Sullivan, supra. f. Once the defendant demonstrates that his counsel had a conflict of interest and that said conflict adversely affected the lawyer's performance, he need not demonstrate any specific prejudice to obtain relief. Cuyler, supra. g. The Sixth Amendment may arise from conduct of the governments attorneys.The defendant’s case was remanded for an evidentiary hearing in U.S. v. Amlani, 111 F.3d 705 (9th Cir. 1997) when the prosecutor repeatedly made disparaging remarks about the defendant’s counsel in front of him. The prosecutor allegedly made statements to the defendant and his wife that his defense counsel did not care about him, was incompetent, and could not prevent the defendant’s conviction. The Court held that if the prosecutor truly made these statements to the defendant and the defendant acting on those comments retained different counsel for trial then this conduct constituted a violation of the defendant’s Sixth Amendment right and the defendant’s conviction should be vacated. 2.
Page 9 case is reversed. Gonzalez v. State, 605 S.W.2d 278 (Tex. Crim. App. 1980). c. Where defendant's attorney concurrently represents a prosecution witness at trial, or where attorney has previously represented such witness on other occasions, there is a conflict of interest and a showing that said conflict adversely affects performance. United States v. Martinez, 630 F.2d 361 (5th Cir. 1980). d. A lawyer representing a murder defendant may stay on a s counsel even though the defense will include pointing the finger at a key state witness whom the same lawyer defended in a criminal case a decade earlier. Daniels v. State, 17 P.3d 75( Alaska, Ct. App. 2001) The American Bar Association Committee of Professional Ethics recognizes that: [T]here are substantial reasons against treating the State as a private enterprise. The Committee has ruled that other Government lawyers should not be disqualified from handling matters in which an associate was involved in his or her former private practice. The Committee concluded that when an individual attorney is separated from any participation in matters affecting his former client, the vicarious disqualification of a Government department is not necessary or wise.
Examples:
a. A and B, co-defendants to murder, represented by same court-appointed lawyer. Testimony developed that B may have perpetrated the actual killing, but the lawyer was prevented from exploiting that testimony to mitigate A's case, because the more he mitigated A's case, the harsher B's case appeared. Under these circumstances the prejudice was obvious and the case was reversed. Foxworth v. Wainwright, 516 F.2d 1072 (5th Cir. 1975). b. Where trial counsel represents all parties charged with joint possession of a large quantity of marijuana and trial counsel puts one of said parties on the witness stand and elicits testimony that inculpates other defendants likewise represented by said counsel, there is both a conflict of interest and a showing that said conflict adversely affected the lawyer's performance and the
Id. 3.
"Chinese Walls"
A "Chinese Wall" is a device erected by a law firm intended to "quarantine" a new member with confidential information received from an adversary of one of the firm's clients. a. Conflict of interest where defense attorney carries on covert intimate relationship with Defendant's wife during murder trial. California v. Singer, 275 Cal. Rptr. 911 (Cal. App. 1. Dist. 1990)
ETHICS AND ATTORNEY MISCONDUCT b. Classic conflict where defense counsel represents both the defendant and the defendant's wife who is the beneficiary of the victim's life insurance policy. McConico v. Alabama, 919 F.2d 1543 (11th Cir. 1990) c. Conflict created by nonattorney (staff member). Occidental Chemical Corp. v. Brown, 877 S.W.2d 27 (Tex. App.--Corpus Christi 1994). d. District Attorney can prosecute a criminal case where an Assistant D.A. is the complainant and fact witness. Stanley v. State, 880 S.W.2d 219 (Tex. App.--Ft. Worth 1994). e. Client who gives attorney a bad check or stolen goods does not create a conflict of interest per se so as to avoid a plea. DeLoro v. State, 712 S.W.2d 805 (Tex. App.–Houston[1st Dist.] 1986). 4. Potential Conflict of Interest Can Be Waived By Co-Defendants. If each client consents to the representation after full disclosure of the possible effect of such representation on the exercise of the lawyer's independent and professional judgment on behalf of each client, then the lawyer may represent the multiple parties to the offense. Old DR 5-105(C). Procedure in Trial Courts. a. State Courts Unless a state trial judge knows or reasonably should know that a particular conflict exists, cf. Wood v. Georgia, 450 U.S. 261, 272 (1981), the federal constitution does not require a state trial judge to sua sponte inquire into the existence of any potential or actual conflicts due to multiple or successive representation. Cuyler v. Sullivan, 446 U.S. 335, 346-47 (1980); Calloway v. State, 699 S.W.2d 824 (1985). The Texas Courts have repeatedly held that trial counsel was the primary responsibility for advising the prospective clients of possible conflicts of interests in their positions. Gonzalez v. State, 605 S.W.2d 278 (Tex. Crim. App. 1980); Pete v. State, 533 S.W.2d 808 (Tex. Crim. App. 1976). Where, however, an attorney or the client timely objects to multiple or
Page 10 successive representation a state trial judge must make an inquiry into the existence of any such conflict and take appropriate measures to ensure that effective assistance of counsel is not impaired due to an actual conflict. Holloway v. Arkansas, 435 U.S. 475, 482 (1978); Cuyler v. Sullivan, supra. An actual conflict exists if "counsel's introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense of another defendant whom the same counsel is representing." Baty v. Balkcom, 661 F.2d 391, 395 (5th Cir. 1981). See also, Annotation, Multiple Representation of Defendants in Criminal Cases as Violative of the Sixth Amendment Right to Counsel - Federal Cases, 65 L.Ed.2d 907-983 (1980). The Texas Courts have held that an actual and significant conflict of interest exists where "one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of a co-defendant whom counsel is also representing." Ferguson v. State, 639 S.W.2d 307 (Tex. Crim. App. 1982); Amaya v. State, 677 S.W.2d 159, 162 (Tex. App. 1 Dist. 1984). b. Federal Courts Although the constitutional considerations are fully applicable to federal courts, the federal courts have historically placed a duty upon federal trial judges to ensure that defendants are afforded conflict-free counsel. See Notes of Advisory Committee on Rules, 1979. That duty was codified in 1979 in Rule 44(c), Federal Rules of Criminal Procedure, which states:
5.
Joint Representation. Whenever two or more defendants have been jointly charged pursuant to Rule 8(b) or have been joined for trial pursuant to Rule 13, and are represented by the same retained or assigned counsel or by retained or assigned counsel who are associated in the practice of law, the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of his right to the effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant's right to counsel.
ETHICS AND ATTORNEY MISCONDUCT The Fifth as well as the Fourth and Eleventh Circuits have held that even where a trial court fails to comply fully with the mandate of Rule 44(c), a defendant must still demonstrate an actual conflict of interest before an alleged Sixth Amendment violation will result in a reversal. See United States v. Arias, 678 F.2d 1202, 1205 (4th Cir. 1982), cert. denied, 459 U.S. 910, 103 S.Ct. 218 (1983); United States v. Benavidez, 664 F.2d 1255, 1258-59 (5th, Cir), cert. denied, 457 U.S. 1121 (1982), United States v. Alvarez, 696 F.2d 1307, 1309-10 (11th Cir.), cert. denied, 461 U.S. 907, 103 S. Ct. 1878 (1983). These opinions recognize that the inquiry and advice provided for by Rule 44(c) are not ends in themselves, but a procedure designed to prevent conflicts of interest. This interpretation of Rule 44(c) is consistent with Holloway, supra and Cuyler, supra. However, see Cole v. White, 376 S.E.2d 599, 44 Crim. L. Rep. (BNA) 2350 (1989) where West Virginia Appellate Court in interpreting their state's Rule 44(c) equivalent held that the trial court's failure to give warnings about joint representation requires a new trial if conflict "likely" existed. The most important issues embodied within Rule 44(c) are: (1) what action the trial court can take to protect each defendant's right to counsel; and (2) whether the Government can initiate a Rule 44(C) hearing. The answers to these issues are discussed below in connection with disqualification of defense counsel. 6. Counsel.
Disqualification
of
Defense
a. Federal Prosecutor's Motions To Disqualify Defense Counsel. The Federal Government has embarked upon a course of conduct designed to thwart a client's constitutional right to counsel and his right to waive his right to conflict-free counsel. See Margolin & Culver, Pretrial Disqualification of Criminal Defense Counsel, 20 AM. Crim. L. Rev. 227 (1982) (hereinafter cited as M&C, supra). The Government's attempts have occurred during grand jury investigations. See e.g., In re Gopman, 531 F.2d 262 (5th Cir. 1976); In re Grand Jury, 536 F.2d 1009 (3rd Cir. 1976); and cases cited at M&C, supra at 234 n. 37 and accompanying text. The Government's attempts have also occurred after
Page 11 indictment but prior to trial. See e.g., United States v. Garcia, 517 F.2d 272 (5th Cir. 1975); United States v. Mahar, 550 F.2d 1005 (5th Cir. 1977); United States v. Agosto, 675 F.2d 965 (8th Cir. 1982). While Rule 44(c), discussed above, certainly applies to a post-indictment, pretrial situation, thereby mandating that trial courts make appropriate inquiries into the existence of conflicts of interest, it is not clear that Rule 44(c) applies to grand jury proceedings. Yet, the absence of specific statutory authority under Rule 44(c) has not deterred prosecutors or the courts from disqualifying defense counsel who attempt to represent witnesses or targets summoned before grand juries. In re Gopman, supra, illustrates the problem. There, the Fifth Circuit held that, based on alleged conflicts of interest, the government had standing to move to disqualify an attorney who represented certain labor unions and official of those unions who were summoned before the grand jury. The Fifth Circuit also held that federal district judges have jurisdiction to consider governmental motions to disqualify. The Fifth Circuit went on to uphold the district court's order disqualifying the attorney and noted that the attorney "had placed himself in a situation where conflicting loyalties could affect his professional judgment." Id. at 267. The Court noted the importance of a client's sixth Amendment right to counsel of his choice, but added that it must yield to an overriding public interest. Id. at 268. The Court concluded by stating: "We hold only that the public interest in a properly functioning judicial system must be allowed to prevail in the case presently before us. Appellant had placed himself in a clear conflict situation from which the district court had the duty to rescue both the lawyer and his clients." Id. at 268. While there may be logic to the Gopman analysis, it is difficult to reconcile that analysis with the Sixth Amendment right to counsel and the right to waive conflict-free counsel. In the context of post-indictment, pretrial motions to disqualify, a defendant's waiver of conflict-free counsel and his right to counsel of his
ETHICS AND ATTORNEY MISCONDUCT choice should prevail. In the context of grand jury investigations, however, a witness has no Fifth or Sixth Amendment right to counsel. See e.g., Miranda v. Arizona, 384 U.S 436 (1966); Kirby v. Illinois, 406 U.S. 682 (1977). Thus, since it is impossible to waive a right you do not possess, logically a witness should not rely upon a waiver of the right to conflict-free counsel as a device to overcome a motion to disqualify his counsel at the grand jury. See Rule 44(c), Federal Rules of Criminal Procedure. b. Consistent with the Sixth Amendment, a District Court has great latitude in refusing waivers of conflict of interest not only in cases where actual conflict is demonstrated, but also where potential conflict may burgeon into actual conflict as the trial progresses. Wheat v. U.S. 108 S. CT. 1692 (1988). However, state constitutions may be used to grant greater rights than the U.S. Constitution, and may limit the trial court's power to disqualify counsel because of conflict. Alcocer v. Superior Court, 206 Cal. App. 3d 951, 254 Cal. Rptr. 72 (Cal. App. 2 Dist. 1988), 44 Crim. L. Rep. (BNA) 2284. c. A government's motion for disqualification of defense counsel may not be grounded on appearance of impropriety. A showing of an actual conflict of interest is required. U.S. v. Washington, 797 F.2d 1461 (9th Cir. 1986); McFarlan v. District Court, 718 P.2d 247 (Colo. 1986). d. Appealability Disqualify Defense Counsel.
of
Motions To
As of February 21, 1984 an order disqualifying a defense attorney from representing a witness or target before the grand jury or from representing a defendant under indictment is not immediately appealable under 28 U.S.C. sec. 1291. Flanagan v. United States, 104 S.Ct. 1051 (1984). Flanagan resolved the prior conflict among the circuits as to this issue. The issue of whether the government may appeal a denial of a motion for disqualification is still unresolved. Although the Supreme Court has held that there is no right to appeal an order denying a motion for disqualification in a civil case,
Page 12 pursuant to 28 U.S.C. sec. 1291, Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981), the Court declined to express any view on the appealability of such an order in a criminal case. Firestone, supra at 372 n. 8. See also In re Dresser Industries, supra. 7. Tactical Evaluation of Facts.
Considerations:
a. Do the facts permit the attorney to fashion a consistent defense for both potential clients? If not, no multiple representation should be attempted. United States v. Marshall, 488 F.2d 1169 (9th Cir. 1973) (Retained attorney represented D1 and D2 in a conspiracy to distribute amphetamine prosecution. D1's only possible defense was entrapment, and attorney pursued this line. Entrapment unavailable to D2 since he never dealt with law enforcement personnel. Held: D2 had ineffective counsel). b. Do the facts suggest possible inconsistent defenses? (1) If not, multiple retainer is possible. Courtney v. United States, 486 F.2d 1108 (9th Cir. 1973) (Retained attorney represented D1 and D2 in obstruction of justice prosecution. Both testified as to same facts regarding discussions with complaining witness); United States v. Valenzuela, 521 F.2d 414 (8th Cir. 1975) (Retained attorney represented D1 and D2 in possession of stolen property prosecution. Both relied on alibi defenses). (2) If facts suggest possible inconsistent and consistent defenses, relative strengths of each must be evaluated. 8. Tactical Considerations: Trial Tactics. a. Will the attorney be able to adequately examine all witnesses on behalf of both clients?
ETHICS AND ATTORNEY MISCONDUCT (1) U. S. ex rel. Horta v. DeYoung, 523 F.2d 807 (3rd Cir. 1975) (Retained attorney represented D1-D3 in an unlawful lottery prosecution. Government witnesses testified males were present at lottery operation. Held: Counsel ineffective as to D3, a female. Counsel failed to pursue distinction with witnesses and failed to ask for cautionary instructions). (2) Foxworth v. Wainwright, 516 F.2d 1072 (5th Cir. 1975) (Appointed counsel represented D1 and D2 in murder prosecution. Government medical witness suggested victim died from beating. D2 was not involved in beating victim. Motives established for D1 and another defendant only. Held: Counsel ineffective as to D2. Counsel failed to pursue distinction). b. Will the attorney be able to effectively respond to events during course of trial? (1) Larry Buffalo Chief v. State of South Dakota, 425 F.2d 271 (8th Cir. 1970) (Retained attorney represented D1 and D2 in murder prosecution. Unanticipated testimony of only disinterested witness failed to identify assailants as wearing light colored shirts. D2 wore dark long sleeved coat. Court effectively returned case to state court to clarify a confused record). (2) Craig v. United States, 217 F.2d 355 (6th Cir. 1957) (Retained counsel represented D1 and D2 in tax fraud prosecution. No apparent conflict when trial began. Government witnesses testified about some transactions with D1 which occurred prior to D2's involvement. Counsel failed to pursue the distinction. Held: Counsel ineffective as to D2). 9.
Prior Representation as a Conflict.
What to do when the government witness against your client is a former client? "Substantial relationship test:, i.e., is the matter on trial so substantially related to the prior representation that there is a conflict because there is no chance that information gained through one relationship would not be used in the new relationship.
Page 13 See Duncan v. Merrill, Lynch, Etc. 646 F.2d 1020 (5th Cir. 1981); Wheat v. United States, 108 S.Ct. 1692 (1988). Actual transfer of attorney/client information that could be used to the detriment of the former client. United States v. Agosto, 675 F.2d 965 (8th Cir. 1982). What about if a partner or associate is the one who participated in the prior representation? United States v. Varca, 896 F.2d 900 (5th Cir. 1990). See also Davis v. Stansbury, 824 S.W.2d 278 (Tex. App.-Houston[1st Dist.] 1992). Sometimes the Court saves us from ourselves. Mickens v. Taylor 122 S. Ct. 1237; 152 L. Ed. 2d 291(2002). In a capital case, trial counsel did not reveal his prior representation of the victim to his client, co-counsel or the trial judge. On habeas review the district court and court of appeals held that the Petitioner showed no harm. The Supreme Court ultimately had the last word when it held in order to demonstrate a Sixth Amendment violation where the trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known, a defendant must establish that a conflict of interest adversely affected his counsel's performance. C.
Organization as Client
The State Bar has adopted a new rule for areas of group representation such as banks and corporations. Remedial actions should first be taken within the organization (cf., Rule 1.12(b) & (c). Rule 1.12 Organization as a Client. (a) A lawyer employed or retained by an organization represents the entity. While the lawyer in the ordinary course of working relationships may report to, and accept direction from, an entity's duly authorized constituents, in the situations described in paragraph (b) the lawyer shall proceed as reasonably necessary in the best interest of the organization without involving unreasonable risks of disrupting the organization and of revealing information relating to the representation to persons outside the organization. (b) A lawyer representing an organization
ETHICS AND ATTORNEY MISCONDUCT must take reasonable remedial actions whenever the lawyer learns or knows that: (1) an officer, employee, or other person associated with the organization has committed or intends to commit a violation of a legal obligation to the organization or a violation of law which reasonably might be imputed to the organization; (2) the violation is likely to result in substantial injury to the organization; and (3) the violation is related to a matter within the scope of the lawyer's representation of the organization. (c) Except where prior disclosure to persons outside the organization is required by law or other Rules, a lawyer shall first attempt to resolve a violation by taking measures within the organization. In determining the internal procedures, actions or measures that are reasonably necessary in order to comply with paragraphs (a) and (b), a lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer's representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters, and any other relevant considerations. Such procedures, actions and measures may include, but are not limited to, the following: (1) asking reconsideration of the matter; (2) advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and (3) referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act in behalf of the organization as determined by applicable law. (d) Upon a lawyer's resignation or
Page 14 termination of the relationship in compliance with rule 1.15, a lawyer is excused from further proceeding as required by paragraphs (a), (b) and (c), and any further obligations of the lawyer are determined by Rule 1.05. (e) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when it is apparent that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing or when explanation appears reasonably necessary to avoid misunderstanding on their part. 1. The comments assist the lawyer to interpret this new Rule 1.12. a. Sarbanes Oxley Act: Disclosure Section 307 of the Act now 15 USCA 7245 introduced a very controversial provision affecting lawyers. The Act compels the SEC to adopt new rules of professional conduct applicable to attorneys practicing before it in any way in the representation of issuers. The text of 15 UCS §§ 7245 is as follows: Not later than 180 days after the date of enactment of this Act [enacted July 30, 2002], the Commission shall issue rules, in the public interest and for the protection of investors, setting forth minimum standards of professional conduct for attorneys appearing and practicing before the Commission in any way in the representation of issuers, including a rule-(1) requiring an attorney to report evidence of a material violation of securities law or breach of fiduciary duty or similar violation by the company or any agent thereof, to the chief legal counsel or the chief executive officer of the company (or the equivalent thereof); and (2) if the counsel or officer does not appropriately respond to the evidence (adopting, as necessary, appropriate
ETHICS AND ATTORNEY MISCONDUCT
Page 15
remedial measures or sanctions with respect to the violation), requiring the attorney to report the evidence to the audit committee of the board of directors of the issuer or to another committee of the board of directors comprised solely of directors not employed directly or indirectly by the issuer, or to the board of directors.
attorney, whether outside or in-house, who reasonably believes was discharged because they fulfilled their reporting obligations. Under the proposed protection provision, the attorney may report their discharge to the SEC without violating the attorney-client privilege, presumably based on the whistleblower protections provided by 806 of the Act.
In response the SEC has proposed rule 205 to reflect the requirements of 307 in 67 Fed. Reg. 71670, 71673 to be codified at 17 C.F.R. pt. 205. The proposed rule incorporates several corollary provisions that are not explicitly required by section 307.
Section 602 of the Act, now 15 U.S.C. 78d-3, provides the SEC with the authority to "censure any person, or deny, temporarily or permanently, to any person the privilege of appearing or practicing before the Commission" (for, among other reasons, willful violation or willful aiding and abetting the violation of the securities law or the rules and regulations issued thereunder).
Section 205.3(b) codifies an attorney's duty to report when he becomes aware of information that would lead a reasonable attorney to believe a material violation has occurred, is occurring, or is about to occur. The attorney is required to report the material violation to the issuer's chief legal officer or chief executive officer. The CLO or CEO is obligated to determine whether the report has any merit, and if it does, to remedy the situation. If the CLO or CEO find that the report does not have merit, then they must report their findings to the attorney. An attorney only fulfills their obligations once they receive an appropriate response within a reasonable time and has taken reasonable steps to document his or her report and the response to it has satisfied his or her obligations under the rule. An attorney who does not receive an appropriate response, or believes that reporting the violation to the CLO or CEO is futile, must report the violation to the issuer's audit committee or a subcommittee of the board of directors containing independent directors or to the full board. The attorney is also required to document the response, or absence thereof. Proposed rule 205.3(d) outlines the obligations of both outside and in-house attorneys who report material violations and do not receive an appropriate response. An outside attorney who does not receive an appropriate response is required to withdraw from representation, notify the SEC of their withdrawal on the basis of "professional considerations," and disaffirm any submission to the SEC that they have participated in that may be tainted by the violation. Rule 205.3(d)(4),
provides protection to an
b.
Clarifying the Lawyer's Role.
Comment 4: There are times when the organization's interest may be or become adverse to those of one or more of its constituents. In such circumstances the lawyers should advise any constituent, whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation. Care should be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged insofar as that individual is concerned. Whether such a warning should be given by the lawyer for the organization to any constituent individual may turn on the facts of each case. Comment 5: A lawyer representing an organization may, of course, also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject to the provisions of Rule 1.06. If the organization's consent to the dual representation is required by Rule 1.06, the consent of the organization should be given by the appropriate official or officials of the organization other than the individual who is to be represented, or by the shareholders.
ETHICS AND ATTORNEY MISCONDUCT See In re Office Products of America, Inc., 136 B.R. 983 (W.D. Tex. 1992). Attorney owes allegiance to the entity, not to any person connected with the entity. I.
LAWYER AS COUNSELOR
In keeping with the ABA model rules, the Texas State Bar has adopted the new Rule 2.01: A.
Page 16 Rule 3.03 covers the difficult area of Perjury. (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;
Rule 2.01 Lawyer as Advisor
In advising or otherwise representing a client, a lawyer shall exercise independent professional judgment and render candid advice. Comment Five adds some more generalities to this already basic rule regarding the offering of advice: In general, a lawyer is not expected to give advice until asked by the client. However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, duty to the client may require that the lawyer act if the client's course of action is related to the representation. A lawyer ordinarily has no duty to initiate investigation of a client's affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client's interest. B. Imputed Disqualification of Fellow Attorneys: For lawyers in firms, a prohibited transaction will keep the rest of the lawyers in the firm from handling the case. See, Rules 1.06(f), 1.07(e), 1.08(i), 1.09(b).
II.
LAWYER AS ADVOCATE
A.
Rule 3.03 Candor Towards the Tribunal
(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. 1. The comments provide further help in this touchy area. Comment 9: Whether an advocate for a criminally accused has the same duty of disclosure has been intensely debated. While it is agreed that in such cases, as in others, the lawyer should seek to persuade the client to refrain from suborning or offering perjurious testimony or other false evidence, there has been dispute concerning
ETHICS AND ATTORNEY MISCONDUCT the lawyer's duty when that persuasion fails. If the confrontation with the client occurs before trial, the lawyer ordinarily can withdraw. Withdrawal before trial may not be possible, however, either because trial is imminent, or because the confrontation with the client does not take place until the trial itself, or because no other counsel is available. Comment 10: T h e p r o p e r resolution of the lawyer's dilemma in criminal cases is complicated by two considerations. The first is the substantial penalties that a criminal accused will face upon conviction, and the lawyer's resulting reluctance to impair any defenses the accused wishes to offer on his own behalf having any possible basis in fact. The second is the right of a defendant to take the stand should he so desire, even over the objections of the lawyer. Consequently, in any criminal case where the accused either insists on testifying when the lawyer knows that the testimony is perjurious or else surprises the lawyer with such testimony at trial, the lawyer's effort to rectify the situation can increase the likelihood of the client's being convicted as well as opening the possibility of a prosecution for perjury. On the other hand, if the lawyer does not exercise control over the proof, the lawyer participates, although in a merely passive way, in deception of the court. Comment 11: Three resolutions of this dilemma have been proposed. One is to permit the accused to testify by a narrative without guidance through the lawyer's questioning. This compromises both contending principles; it exempts the lawyer from the duty to disclose false evidence but subjects the client to an implicit disclosure of information imparted to counsel. Another suggested resolution is that the advocate be entirely excused from the duty to reveal perjury if the perjury is that of the client. This solution, however, makes the advocate a knowing instrument of perjury. The answer seems to be in Comment Twelve: Comment 12: T h e o t h e r resolution of the dilemma, and the one this Rule adopts, is that the lawyer must take reasonable remedial measure which may include revealing the client's perjury. A criminal accused has a right to the assistance of an advocate, a right to testify and
Page 17 a right of confidential communication with counsel. However, an accused should not have a right to assistance of counsel in committing perjury. Furthermore, an advocate has an obligation, not only in professional ethics but under the law as well, to avoid implication in the commission of perjury other than falsification of evidence. See Virzi v. Grand Trunk Warehouse and Cold Storage Co., 571 F. Supp. 507 (E.D. Mich. 1983). 2.
Perjury Problem.
a. No Definitive Solution in this State. "It may be seen that there is no accepted solution to the problem of the perjurious client. The question is not whether the appellant's attorneys followed the only acceptable course, for no such course is established." Maddox v. State, 613 S.W.2d 275, 283 (Crim. App. 1981). b. Anticipates Perjury.
What to Do if Counsel
(1) Head it off at initial interview, i.e., "anything you tell me is privileged. But, I can reveal information about a crime you are planning in the future, like perjury. So if you try to lie on the stand, I can reveal that. Now, I don't think that you would lie, but I want you to know that I will investigate what you tell me, and in fairness, you should know how the attorney-client privilege works." (2) If client insists on testifying falsely does the 6th amendment require the lawyer to call the client to the stand? ABA Formal Opinion 87-353 (4/20/87) says "no"; and see Nix v. Whiteside, 106 S.Ct. 988, 998 (1986); "Whatever the scope of the right to testify, it is elementary that such a right does not extend to testifying falsely" (emphasis the court's). Notion of allowing client to testify in narrative form expressly rejected in ABA Formal Opinion 87-353 (4/20/87), but cf., Maddox v. State, 613 S.W.2d 275, 284 (Crim. App. 1981): "We hold that the appellant was not deprived of effective assistance of counsel when he was permitted to testify in narrative form rather than in answer to questions from his attorney."
ETHICS AND ATTORNEY MISCONDUCT Revealing a client’s perjurious testimony to the court outside the presence of the jury does not necessarily require the attorney to withdraw from representation. People v. DePallo,96 N.Y.2d 437 (Ct. App. 2001). (3) Apparently, attorney can ethically reveal client's intent to commit perjury if client insists on testifying falsely. ABA Ethics Opinion 353 so states and see Helton v. State, 670 S.W.2d 644 (Tex. Crim. App. 1984) holding that counsel acted properly by advising court, out of jury's presence, that he could not question a witness whom defendant insisted be called, because lawyer believed that witness would commit perjury. c. What To Do When Perjury is Not Anticipated. (1) Make an effort to cause the witness to recant. (2) Do not develop the perjury further either through questions or through jury argument, doing so violates DR7-102 (A) (4) id. (3) Some authority that lawyers should reveal to court if client refuses to rectify, but not clear; see Nix vs. Whiteside, 106 S.Ct. 988 (1986) holding no violation of 6th amendment when defendant`s lawyer reveals anticipation of perjury to the trial court; but cf., old DR 4-101 (C)(3) giving a lawyer the option to reveal his client's intention to commit a crime in the future. ABA Formal Opinion 87-353 (4/20/87) states that failing to reveal the unrectified perjurious event amounts to assisting the client to commit perjury, therefore, lawyer must reveal. This ABA opinion is based on Model Rule 3.3(b), not adopted in Texas, but cf., old DR 7-102 (A)(7) containing similar language. See, Jackson v. United States, 928 F.2d 245 (8th Cir. 1991), 49 Crim. L. Rep. (BNA) 1004. d. Real World before Rule 3.03. Maddox v. State, supra, provides real world guidelines for testimonial perjury: (a) when counsel is not told directly of contemplated perjury, a Motion to Withdraw is not justified by mere
Page 18 conjecture; (b) when counsel is told of contemplated perjury before trial, he may seek to withdraw, but the court should not be advised of the attorney's reason for so doing either directly or indirectly, but by using a Motion to Withdraw based upon "vague ethical considerations"; (c) when counsel learns of contemplated perjury during trial, for his own protection, and simultaneously, to preserve the attorney/client privilege, he should make a confidential notation, ideally signed by the client and witnessed by another attorney of his efforts to dissuade the client from committing perjury. Counsel should not inform trial court of the situation because of attorney/client privilege. Federal: see U.S. ex rel. Wilcox v. Johnson, 555 F.2d 115 (3rd Cir. 1977). e. Motion for instructed verdict. Still necessary to preserve certain error in Federal (note: FRCP Rule 29). Sufficiency of evidence is of constitutional dimension and can be raised for the first time on appeal with no objection necessary to preserve error. Burks v. U.S. 437 U.S. l (1978); Greene v. Massey 437 U.S. 19 (1978). f. Useful discussion with numerous practical examples of "bounds of the law." Zunker, Zealous Representation Within the Bounds of the Law, 47 Tex. B. J. 530 (May 1984). B. Handling Otherwise.
Evidence,
Physical
or
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
ETHICS AND ATTORNEY MISCONDUCT 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;
Page 19 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
(3) a reasonable fee for the professional services of an expert witness;
(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.
(c) except as stated in paragraph (d), in representing a client before a tribunal:
1. Evidence.
(1) habitually violate an established rule of procedure or of evidence;
a. Lawyer's rights and obligations the same as those of the client.
(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;
Problems in how to deal with physical evidence may be analyzed by placing the attorney "in the shoes of the client" i.e., the attorney has roughly the same privileges to deal with the evidence as the client has. For example, a client has the privilege against self-incrimination, and cannot be made to say anything incriminating. Consequently, the attorney, himself, has a privilege of confidentiality and cannot be forced to reveal what his client tells him, e.g., the location of physical evidence. However, the police can enter the defendant's home or office and search for physical evidence if they have probable cause. Since the purpose of a lawyer is to protect the rights which the law grants to the accused, and not to give the accused additional rights, physical evidence should not be hidden from the State by being placed in the lawyer's possession. Consequently, an attorney may be obligated to turn incriminating physical evidence in his possession over to the prosecution, or to withdraw from the case if the client refuses to agree to this tactic. Consider the following examples:
(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 urge 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
Handling Incriminating Physical
(1) Attorney removed money and shotgun used in robbery from client's safe deposit box and placed in his own safe deposit box. Attorney suspended. In re Ryder, 263 F.Supp. 360 (E.D. Va. 1967).
ETHICS AND ATTORNEY MISCONDUCT (2) "The attorney should not be a depository for criminal evidence (such as a knife, other weapons, stolen property, etc.) . . . It follows that the attorney, after a reasonable period, should, as an officer of the court, on his own motion turn the same over to the prosecution . . . The State, when attempting to introduce such evidence at the trial, should take extreme precautions to make certain that the source of the evidence is not disclosed in the presence of the jury and prejudicial error is not committed. By thus allowing the prosecution to recover such evidence, the public interest is served, and by refusing the prosecution an opportunity to disclose the source of the evidence, the client's privilege is preserved and a balance is reached between these conflicting interests. State ex rel. Sowers v. Olwell, 394 P.2d 681 (Wash. 1964). (3) Where the client delivered stolen items to the attorney's receptionist, neither the attorney nor his receptionist could be required to divulge the source of the stolen items which the attorney forwarded to the prosecution, and in order for the attorney-client privilege to be meaningfully preserved, the prosecution cannot introduce into evidence the fact that they received the items from the attorney's office. Anderson v. State, 297 So.2d 871 (Fla. 1974). (4) Although the attorney is obligated to turn the physical evidence, itself, over to the State, any information obtained by the attorney or the attorney's investigator during the course of the investigation that leads to the finding of the evidence (e.g. the location and physical position of the evidence at the time it is discovered) is privileged and need not be revealed. However, there is an exception to this rule,if in removing the evidence, the attorney or the attorney's investigator thus forever precluded the State from making the same discovery (as to a case where incriminating evidence is removed from the scene of the crime). In such event the testimony of the attorney or of the investigator as to the location and physical placement of the evidence at the time it was removed is not privileged and the attorney or the investigator may be called to testify about same. People v. Meredith, 631 P.2d 46, 175 Cal. Rptr. 612 (S.Ct. Cal. 1981). (5) Attorney's instructions to client by phone, "Get rid of the weapon and sit tight, and
Page 20 don't talk to anyone and I will fly down in the morning."was not a privileged statement.". . .No shield such as the protection afforded to communications between attorney and client shall be interposed to protect a person who takes counsel on how he can safely commit crime." Clark v. State, 261 S.W.2d 339 (Tex. Crim. App. 1953). (6) Defense attorney received incriminating physical evidence from a friend of the defendant. Held: Attorney obligated to turn the evidence over to the prosecution. Morrell v. State, 575 P.2d 1200 (S.Ct. Alaska 1978); Hitch v. Pima County Superior Court, 708 P.2d 72 (Ariz. S.Ct. 1985). (7) Accountant's working papers, delivered to attorney by client in a tax fraud case, can be reached by government subpoena. Fisher v. United States, 425 U.S. 391 (1976). b.
Federal Rule.
(1) Rule 16(b) of the FEDERAL RULES OF CRIMINAL PROCEDURE requires the defendant to permit inspecting and copying of documents, tangible objects, examinations and tests which he has in his possession or control and intends to introduce as evidence in chief at trial, if the defendant requests disclosure of the same items. Rule held constitutional in United States v. Bump, 605 F.2d 548 (10th Cir. 1979). (2) Rule 12.1 of the FEDERAL RULES OF CRIMINAL PROCEDURE requires a written notice of his intention to offer a defense of alibi if prosecutor makes written demand which states time, date and place at which the alleged offense was committed. The notice must state the specific place or places and names and addresses of witnesses. (a) Trial court did not abuse discretion by barring alibi witnesses because of defendant's untimely response to the government's requests for notice. The opinion noted the defendant's refusal to cooperate with appointed counsel. United States v. Barron, 575 F.2d 752 (9th Cir. 1978).
ETHICS AND ATTORNEY MISCONDUCT (b) Failure to know address does not alleviate duty to disclose. United States v. White, 583 F.2d 899 (6th Cir. 1978). C.
Lawyers’s First Amendment Rights.
1. Lawyer's First Amendment Rights are Abridged When Acting as Counsel. a. First Amendment rights may be abridged when the expression threatens a significant state interest. An attorney may be disciplined for speech if it interferes with the State's significant interest in the process of administration of justice. NAACP v. Button, 371 U.S. 415 (1963). b. Examples. (1) In order to encourage a finding of insanity, defense counsel released information to newspapers regarding the horror and brutality of the murders committed by his client. In discussing this lawyer's unethical strategy, the court stated: "A defendant is entitled to be tried on the evidence and arguments before a jury in open court under the guidance of a judge." U.S. ex rel. Bloeth v. Denno, 313 F.2d 364 (2nd Cir. 1963) (2) In re Bailey, 273 A.2d 563 (Mass. 1971), the court found an unethical attempt to try the defendant in the news media where defense counsel (F. Lee Bailey) wrote a letter to the governor (and to 150 members of the legislature) which letter counsel knew would be picked up by the press. The letter charged that the state's case was rigged. Counsel was barred from practice in the state for one year. (3) Gentile v. State Bar of Nevada, 111 S.Ct. 2720 (1991). Rule which prohibits an attorney from making extra judicial statements that a reasonable person would expect to be disseminated by public communication if the attorney knew or should have known that the statements would have a substantial likelihood of materially prejudicing the trial does not violate the First Amendment.
Page 21 (4) Sanctions: see Susman Godfrey L.L.P. v. Marshall, 832 S.W.2d 105 (Tex. App.--Dallas 1992). (5) When lawyer’s comments violate local rules governing statements to media. U.S. v. Cutler, 58 F,3d 825 (2nd Cir. 1995) 2. When Not Acting as Counsel, a Lawyer Retains His First Amendment Rights. a. A lawyer issued a press statement criticizing the judge and the district attorney for dishonest and unethical conduct in a criminal case where the lawyer was charged with a crime. The Federal District Court in the Northern District of Texas permanently enjoined the grievance committee from issuing a reprimand. The court stated: "It cannot be seriously asserted that a private citizen surrenders his right to freedom of expression when he becomes a licensed attorney in this state."Polk v. State Bar of Texas, 374 F.Supp. 784 (1974). b. The prosecutor's action in criticizing a trial judge at a post-trial press conference ("The actions of the judge were unethical, illegal and grounds for reversible error") did not violate any disciplinary rule, but is questionable conduct. c. Note: New rules hold prosecutor responsible to prevent persons employed or controlled by the prosecutor (i.e. police witnesses) from making an extrajudicial statement that the prosecutor would be prohibited from making. Rule 3.09(e). D. Rule 3.09 Special Responsibilities of a Prosecutor. The prosecutor in a criminal case shall: (a) refrain from prosecuting or threatening to prosecute a charge that the prosecutor knows is not supported by probable cause;
ETHICS AND ATTORNEY MISCONDUCT (b) refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonable efforts to be assured that the accused has been advised of any right to, and the procedure for, obtaining counsel and has been given reasonable opportunity to obtain counsel; (c) not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights;
Page 22 "The responsibility of a public-prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict. This special duty exists because: (1) the prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of governmental powers, such as in the selection of cases to prosecute; (2) during trial the prosecutor is not only an advocate but he also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all; and (3) in our system of criminal justice the accused is to be given the benefit of all reasonable doubt."
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and
c. American Bar Association Project on Standards for Criminal Justice: Standards Relating to the Prosecution Function and the Defense Function (approved draft, 1971). This volume contains a complete dialogue relating to the responsibilities and ethical duties of both prosecution and defense.
(e) exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07.
d. National Prosecution Standards (National District Attorneys Association), (Chicago 1977). Standard 25.1 of the National Prosecution Standards, enacted by the prosecutors themselves, applies the Code of Professional Responsibility to prosecutors:
1. Codification of Prosecutorial Ethical Standards. Standards of ethical conduct for prosecutors are codified in several different sources: a. Article 2.01, TEX. CODE CRIM. PROC. ANN.: "It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secret witnesses capable of establishing the innocence of the accused." Note that it is the primary duty "to see that justice is done" that distinguishes the prosecutor's role from that of the defense attorney in the adversary system. b. Old Code of Professional Responsibility. Only portions of the Code of Professional Responsibility specifically applied to prosecutors. The Old Ethical Consideration 7-13 provided:
"A. To insure the highest ethical conduct and maintain the integrity of prosecution and the legal system, the prosecutor shall be thoroughly acquainted with and shall adhere to at all times to the Code of Professional Responsibility as promulgated by the American Bar Association and as adopted by the various state bar associations.
ETHICS AND ATTORNEY MISCONDUCT*
Page 1
I. CLIENT-LAWYER RELATIONSHIP
subject to discipline.
A. Competent and Diligent Representation.
1. Effective Assistance of Counsel, as set out in the cases.
Rule 1.01. The rule is a little more specific than the former DR 6-101. (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 or 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. Comment Six gives an elucidation as to what is Competent and Diligent Representation: 6. Having accepted employment, a lawyer should act with competence, commitment and dedication to the interest of the client and with zeal in advocacy upon the client's behalf. A lawyer should feel a moral or professional obligation to pursue a matter on behalf of a client with reasonable diligence and promptness despite opposition, obstruction or personal inconvenience to the lawyer. A lawyer's workload should be controlled so that each matter can be handled with diligence and competence. As provided in paragraph (a), an incompetent lawyer is
a. Deceptive Trade Practice Act - Tort Standards. The Texas Deceptive Trade Practices Act (DTPA) was enacted in 1973 to protect consumers from deceptive and fraudulent business practices. Tex. Bus. & Comm. Code Ann. sec. 17.41 et seq. (1973). The courts may construe "services" and "consumer" to include an attorney who sells legal services to a client. DeBakey v. Staggs, 605 S.W.2d 631 (Tex. Civ. App. Houston 1980), aff'd 612 S.W.2d 924 (Tex. 1981) (attorney failed to timely obtain a name change); Barnard v. Mecom, 650 S.W.2d 123 (Tex. Civ. App. - Corpus Christi 1983, no writ) (attorney retained client's settlement funds). Parker v. Carnahan, 772 S.W.2d 151 (Tex. Civ. App. - Texarkana 1989); Lucas v. Nesbitt, 653 S.W.2d 883 (Tex. Civ. App. - Corpus Christi 1983). b. Constitutional Standard The standard for retained and appointed counsel is the same: "Counsel reasonably likely to render and rendering reasonably effective assistance," Hurley v. State, 606 S.W.2d 887 (Tex. Crim. App. 1980); Hernandez v. State, 988 S.W.2d 770. (Tex.Crim. App. 1999) Strickland v. Washington, 462 U.S. 1105 (1984); Butler v. State, 716 S.W.2d 48 (Tx. Crim. App. 1986); Ex parte Roland Cruz, 739 S.W.2d 53 (Tex. Crim. App. 1987). Cantu v. State 930 S.W.2d 594 (Tex.Crim. App.1996) c. Test Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) Test for determining effectiveness of counsel is whether counsel's conduct so undermined the proper functioning of the adversary process that the trial cannot be relied on as having produced a just result. There is a strong presumption of reasonableness.
ETHICS AND ATTORNEY MISCONDUCT* Defendant must also show that but for counsel's errors there is a reasonable probability the outcome would have been different. d. Presumption in Favor of Counsel Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, supra; Hill v. Lockhart, 474 U.S. 52 (1984); Butler, supra; Ex parte Adams, 707 S.W.2d 646 (Tex. Crim. App. 1986). e. Caveat for Specialist It seems logical to assume that a certified specialist will be held to a higher standard, although there are no cases as yet. Such a holding could lead to unanticipated exposure. See, e.g., Griffith vs. Kentucky, 107 S.Ct. 708 (1987), in which the Supreme Court of the United States held that any new constitutional rule of criminal law or procedure announced by the court will automatically be applied retroactively to all convictions on appeal or otherwise not yet final at the time of the Supreme Court decision. Therefore, is a certified criminal law specialist bound to know all criminal law issues pending before the Supreme Court of the United States so as to advise client to appeal in order to preserve the point for possible retroactive application of a favorable United States Supreme Court decision? f. Additional Burden on Defendant to Show Harm. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error has no effect on the judgment. The defendant must show that there is a reasonable probability that, but for counsel's professional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra; Hill, supra; Butler, supra; and Ex parte Adams, supra.
Page 2 (1) A criminal defense attorney's response to a client-defendant's intention to commit perjury, consisting of an attempt to dissuade the defendant from committing perjury and a threat to withdraw from the defendant's representation and disclose his perjury, are not ineffective assistance of counsel according to the two pronged test in Strickland, supra. See also, Nix v. Whiteside, 475 U.S. 157 (1986). g. Preparation and Investigation of the Case. (1) Knowledge of the Law. As a general proposition, counsel's ignorance of applicable law, either prior appellate decisions or pivotal statutory provisions, will be held ineffective assistance of counsel. For a comprehensive and lucid discussion, see Clinton and Wice, Assistance of Counsel in Texas, 12 St. Mary's L. J. 1 (1980). (2) Time Spent. It is axiomatic that the brevity of time spent in consultation, without more, does not establish that counsel is ineffective. Jones v. Estelle, 632 F.2d 490, 492 (5th Cir. 1980). (3) Duty to Investigate. "In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments . . . and when a defendant has given counsel reason to believe that pursuing certain investigation would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. "Strickland v. Washington, 462 U.S.1105 (1984), Burger v. Kemp, 483 U.S. 776 (1987). Failure to obtain DNA test results - counsel ineffective. Wisconsin v. Hicks - 549 N.W.2d 435 (Wis., June 25, 1996)
ETHICS AND ATTORNEY MISCONDUCT* (4) Examples. i. Reliance upon discussions with prosecutor, without more, is inadequate. Ex parte Raborn, 658 S.W.2d 602 (Tx. Crim. App. 1983). Butler vs. State, 716 S.W.2d 48 (Tex. Crim. App. 1986). Defense counsel must investigate law and facts and cannot rely on discussions with district attorney. ii. If an appointed attorney requires the assistance of expert witnesses to prepare a defense which is strongly indicated under the facts, and government resources are available to pay for the expertise then it is a denial of effective assistance of counsel not to seek the expert assistance. See United States v. Fessel, 531 F.2d 1275 (5th Cir. 1976), where the court stated: "When an insanity defense is appropriate and the defendant lacks the funds to secure private psychiatric assistance, it is the duty of his attorney to seek such assistance through 18 U.S.C. 3006A(3). "Where trial counsel fails to request the appointment of a psychiatrist at state expense, especially the appointment of a psychiatrist at state expense, especially when evidence of guilt is virtually uncontested and the only defense issue for development is the sanity of the accused at the time of the offense, trial counsel has been ineffective. Ex parte Duffy, 607 S.W2d 507, 520 (Tex. Crim. App. en banc 1980). It is not clear whether this would be considered ineffective in light of the court of criminal appeals decision in Hernandez v. State, 988 S.W.2d 770 (Tex.Crim.App. 1999) iii. Appeal - Ex parte Dietzman, 790 S.W.2d 305 (Tex. Crim. App. 1990). There is some authority that failure to file a PDR is ineffective assistance on appeal. Colorado v. Valdez, 789 P.2d 406 (Colo. 1990). iv. Failure to pay Bar dues results in attorney suspension, trial counsel is not per se ineffective. Reese v. Peters, 926 F.2d 668 (7th Cir. 1991); Minnesota v. Smith, 464 N.W.2d 730 (Minn. App. 1991). However, see People v. Tin Trung Ngo, 44 Cal. Rptr. 2d 319 Calif. Ct.App. 6th Dist. 1995) - failure of attorney to maintain minimum
Page 3 CLE hours. v. Representation by an attorney suspended by the State Bar is not per se ineffective. Cantu v. State, 930 S.W.2d 594, (Tex. Crim. App. 1996) (Baird, J. and Mansfield, J., concurring) h. Duty to Communicate Plea Offers. Failure to communicate a plea offer is ineffective counsel, per se, if defendant ultimately receives a higher sentence. Ex parte Wilson, 724 S.W.2d 72 (Tex. Crim. App. 1987). i. Sleeping In and Out of Court Sleeping through the client’s capital murder trial is ineffective. McFarland v. Texas, 928 S.W.2d 482(Tex.Crim.App. 1996) Burdine v. Johnson 262 F.3d 336 (5th Cir. 2001)However, sleeping with client’s wife without a show of prejudice is not. Hernandez v. State, 750 So.2d 50 (Fla. Dist Ct. App. 1999) j. Staying for Trial
Counsel’s two day absence from client’s multi-defendant conspiracy to possess marijuana and cocaine with an intent to distribute and conspiracy to launder money was presumptively prejudicial U.S. v. Russell, 205 F.3d 768 (5th Cir 2000). k. Advising Immigrant Clients Although Texas has yet to address this directly. Trial counsel’s failure to advise his immigrant client about the almost certain deportation as a result of plea was ineffective. People v. Sandoval, 86 Cal.Rptr.2d 431 (Cal. Ct. App. 1999) l. Being on Time
An attorney was sanctioned by the District Court for being 25 minutes late. The 2nd Circuit held that the District Court has the
ETHICS AND ATTORNEY MISCONDUCT*
power to sanction an attorney as officer of court for misconduct unrelated to client representation without a finding of bad faith. U.S. v. Seltzer, 227 F.3d 36 (2nd Cir. 2000) m. No mitigating evidence. Counsel’s choice to not present any evidence during the punishment hearing or make a closing argument did not constitute ineffective assistance of counsel. Counsel made the decision to present mitigating evidence during the guilt innocence phase and felt that a closing argument was not needed and would prevent a compelling rebuttal by the government. 2002 U.S. Lexis 4020; 05/28/02
B. Scope and Objectives of Representation. 1. What are the Bounds of the Law? Rule 1.02. Widens the scope from DR7-101: (a) Subject to paragraphs (b), (c), (d), and (e), (f), and (g), a lawyer shall abide by a client's decisions: (1) concerning the objective 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
Page 4 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. (g) A lawyer shall take reasonable action to secure the appointment of a guardian or other legal representative for, or seek other protective orders with respect to, a client whenever the lawyer reasonably believes that the client lacks legal competence and that such action should be taken to protect the client. Comment Seven - Criminal, Fraudulent and Prohibited Transactions: A lawyer is required to give an honest opinion about the actual consequences that appear likely to result from a client's conduct. The fact that a client uses advice in a course of action that is criminal or fraudulent does not, of itself, make a lawyer a party to the course of action. However, a lawyer may not knowingly assist a client in criminal or fraudulent conduct. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means
ETHICS AND ATTORNEY MISCONDUCT* by which a crime or fraud might be committed with impunity.
Page 5 (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
Comment Eight: When a client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer may not reveal the client's wrongdoing, except as permitted or required by Rule 1.05. However, the lawyer also must avoid furthering the client's unlawful purpose, for example, by suggesting how it might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposes is legally proper but then discovers is criminal or fraudulent. Withdrawal from the representation, therefore, may be required. See Rule 1.15(a)(1). 2. Some Case Law Examples: a. A person commits an offense if he offers or confers any benefit on a prospective witness to testify falsely, to withhold testimony, or to elude process. TEX. PENAL CODE ANN. art. 36.05 (hereinafter cited as PEN. C.). b. A person commits an offense if he alters, destroys, or conceals any physical evidence with the intent to affect the outcome of an investigation or official proceeding. PEN. C. Art. 37.09. c. Giving client advice to throw the gun in the river held to make a lawyer an accessory to the crime. Clark v. State, 261 S.W.2d 339, cert. den., 346 U.S. 855 (1953). d. This rule broadens substantially the attorney's obligation to reveal what would otherwise be privileged information. Issue now is whether lawyer civilly liable to damaged third party who could have been warned by lawyer of client's fraudulent conduct. See Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976). C. Rule 1.03 Communication with the Client. A new rule in the State Bar Code which requires interaction:
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Comment Two expands on the rule: The guiding principle is that the lawyer should reasonably fulfill client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation. D. Fees in General. 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; (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
ETHICS AND ATTORNEY MISCONDUCT*
Page 6
relationship with the client;
(ii) made with a forwarding lawyer; or
(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 deduced from the recovery, and whether such expenses are to be deduced 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 agreement for division of a fee between lawyers who are not in the same firm shall not be made unless: (1) the division is: (i) in proportion to the professional services performed by each lawyer;
(iii) made, by written agreement with the client, with a lawyer who assumes joint responsibility for the representation; (2) the client is advised of, and does not object to, the participation of all the lawyers involved; and (3) the aggregate fee does not violate paragraph (a), (g) Paragraph (f) of this Rule does not prohibit payment to a former partner or associate pursuant to a separation or retirement agreement 1.
Unconscionability of Fees.
Obviously contingent fees and fee-splitting are the more important areas of coverage, but the vague definition of "unconscionable fee" is covered again in Comment Seven: Two principal circumstances combine to make it difficult to determine whether a particular fee is unconscionable within the disciplinary test provided by paragraph (a) of this Rule. The first is the subjectivity of a number of the factors relied on to determine the reasonableness of fees under paragraph (b). Because those factors do not permit more than an approximation of a range of fees that might be found reasonable in any given case, there is a corresponding degree of uncertainty in determining whether a given fee is unconscionable. Secondly, fee arrangements normally are made at the outset of representation, a time when many uncertainties and contingencies exist, while claims of unconscionability are made in hindsight when the contingencies have been resolved. a.
Other Sources:
Note that the Code of Professional Responsibility does not list the client's ability to pay as a factor in determining what is a reasonable fee,
ETHICS AND ATTORNEY MISCONDUCT* however, ABA Defense Function, sec. 3.3(a) states that in " . . . determining the amount of the fee in a criminal case it is proper to consider . . . the capacity of the client to pay the fee." See Kershner v. State Bar of Texas, 879 S.W.2d 343 (Tex. App.–Houston [14th Dist.] 1994), holding that a $2500 fee for three to five hours of legal work is clearly excessive. b.
Burden of Proof:
Burden of proving that the fee is reasonable is on the attorney. Nolan v. Foreman, 665 F.2d 738 (5th Cir. 1982). 2. Fees Paid to Court-Appointed Attorneys Under Art. 26.05. a. An attorney appointed to defend an indigent defendant in a criminal case may accept partial fee from the family, as well as fee from the court, as long as full disclosure is made. Texas Bar Ethics Op. No. 348 (Oct. 1969). For a full discussion of the issue of collecting fees in a court appointed case, see Comment, Court-Appointed Attorney: Unauthorized Solicitation of Fees from Indigent Client, The Journal of the Legal Profession 171 (1982). b. In setting a "reasonable" fee under art. 26.05, the court may take into consideration time spent on legal research and investigation outside of the courtroom. Attorney General Op. H-909 (Dec. Dec. 14, 1976). In Williamson v. Vardeman, 674 F.2d 1211 (8th Cir. 1982), the court held that it is a violation of an attorney's Fourteenth Amendment due process rights to require said attorney to pay expenses incurred in indigent defense and that the said payment constitutes a "taking" of the attorney's property without just compensation. c. Even in Texas, the client's consent is required before a referral fee can be made. Old Rule, DR 2-107(A) (1) expressly required the client's consent. See also, Fleming v. Campbell, 537 S.W.2d 118 (Tex. App.–Houston [14th Dist.] 1976, writ ref'd n.r.e.), holding that a
Page 7 referral fee contract was void and unenforceable because client had not been informed and had not consented. 3.
Cash Fees.
Cash fees in advance must be deposited into trust account. All fees paid in advance are not yet earned by definition. Consequently, unless a lawyer had collected some kind of non-refundable retainer, any and all advance fees must be deposited into a trust account and withdrawn periodically as earned. Until earned, said advance fees belong to the client, and hence must be placed in a trust account. Texas State Bar Op. No. 391 (Feb. 1978; April 1978). Furthermore, an attorney may not keep the money in the trust account at interest and retain the interest himself. Texas State Bar Op. No. 404 (June 30, 1982). Note rule of criminal conduct on cash fees in excess of $10,000. (IRS form §8300). Consequences of failure to report. DeGuerin v. U.S., 214 F. Supp. 2d 726; 2002 U.S. Dist. LEXIS 15992; 2002-2 U.S. Tax Case. (CCH) P50,606; 90 A.F.T.R.2d (RIA) 5866 (S.D. Tex. 2002) Attorney must reveal the names of cash paying clients or pay the IRS. In a case involving the requirement to file a Form 8300 for all cash transactions greater than 10,000, the Court ruled that unless the attorneys can show that the names of the clients are protected confidential communications, they will be subject to IRS penalties. 4.
Third Party Payment of Fees
The payment of a fee by a third party is not per se prohibited, as long as no potential for conflict arises between the interests of the client and the party who is paying the fee. See Wood v. Georgia, 540 U.S. 261 (1981). In addition, the Texas Disciplinary Rules of Professional Conduct require that: the client must consent after consultation; there must be no interference with the lawyer's independence of professional judgment; and information relating to the representation of the client must remain confidential. Rule 1.08(e).
ETHICS AND ATTORNEY MISCONDUCT* E.
Confidentiality. One of the major rules of the State Bar is Rule 1.05:
(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 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
Page 8 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. (d) A lawyer also may reveal unprivileged client information: (1) When impliedly authorized to do so in order to carry out the representation.
ETHICS AND ATTORNEY MISCONDUCT* (2) When the lawyer has reason to believe it is necessary to do so in order to: (i) representation effectively;
carry
out
the
(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.
Page 9 Examples: (1) The attorney-client privilege prohibits the disclosure of the substance of communications made in confidence by a client to his attorney for the purpose of obtaining legal advice. United States v. Pipkins, 528 F.2d 559 (5th Cir. 1974). (2) The obligation of a lawyer to preserve the confidence and secrets of his client continues after the termination of his employment. Thus, a lawyer should not attempt to sell a law practice as a going business because, among other reasons, to do so would involve the disclosure of confidences and secrets. b. Tests of Confidentiality. (1) Evidentiary Test.
(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). 1. and Client.
Communication Between Attorney
(a) Federal. "A communication is protected by the attorney-client privilege -- and we hold today it is protected from government intrusion under the Sixth Amendment -- if it is intended to remain confidential and was made under such circumstances that it was reasonably expected and understood to be confidential. Thus, disclosure made in the presence of third parties may not be intended or reasonably expected to remain confidential. United States v. Melvin, 650 F.2d 641 (5th Cir. 1981). (b) State.
a. Definitions Communication.
of
Privileged
The privilege applies only when the person claiming the privilege has as a client consulted an attorney for the purpose of securing a legal opinion or services and not for the purpose of committing a crime or tort and in connection with that consultation has communicated information which was intended to be kept confidential. McCormick, EVIDENCE, Sec. 91 pp. 187-88 (Cleary ed. 1972).
Rule 503(b) Lawyer-Client Privilege, Tex. Rules of Criminal Evidence Effective 9/1/86: "A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional level services to the client and made: (1) between himself or his representative and his lawyer or his lawyer's representative, (2) between his lawyer and his lawyers's representative, (3) by him or his representative or his lawyer or representative of the
ETHICS AND ATTORNEY MISCONDUCT* lawyer to a lawyer, or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the clients or between the client and a representative of the client or (5) among lawyers and their representatives representing the same client. A client has a privilege to prevent the lawyer or the lawyer's representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer's representative by reason of the attorney-client relationship."
Page 10 Wigmore, Evidence, Sec. 2301. (b) Law student, paralegal or investigator. Dabney v. Investment Corp. of America, 82 F.R.D. 464 (E.D. Penn. 1979). (c) Accountants. United States v. Kovel, supra. See also, Parker v. Carnahan, 772 S.W.2d 151 (Tex. App.–Texarkana 1989). (d)
Interpreters.
United States v. Kovel, supra. See Pittsburgh Corning Corporation v. Caldwell, 861 S.W.2d 423 (Tex. App.–Houston[14th Dist.] 1993), which holds that once it is established that a document contains confidential communication, attorney-client privilege extends to the entire document. Except in the rarest of circumstances, documents falling within the attorney-client privilege are not discoverable, even when interwoven with factual information. Work product doctrine extends to statements made by the client to government agents while the attorney is present. Doe v United States, 282 F.3d 156 (2nd Cir. 2002) Attorney subpoenaed to testify before grand jury regarding statements made by former client to IRS. The court of appeals discussed the scope of the work product privilege and held that if the attorney’s testimony was being sought to gather evidence for an existing case it was protected. However, if statements made by the client were false and the IRS were seeking new charges for making false statements, the attorney’s testimony may not be protected. c.
Agents of Attorney.
(1) In appropriate circumstances the privilege may bar disclosures made by a client to non-lawyer who had been employed as agents of an accused. (a) Secretaries, file clerks, telephone operators and messengers. United States v. Kovel, 296 F.2d 918 (2nd Cir. 1961); 8
(e) Psychiatrist. United States v. Alverez, 519 F.2d 1036 (3d Cir. 1975). In a Texas case of first impression, Ballew v. State, 640 S.W.2d 237 (Tex. Crim. App. 1982), the Texas Court of Criminal Appeals held that although the attorney-client privilege extends to psychiatrists employed by the defense, said privilege is waived if the psychiatrists employed by the defense takes the stand and the notes made by the psychiatrist may become admissible as a part of the "recollection refreshed" rule. See concurring opinion by Judge Clinton in Ballew v. State, 640 S.W.2d 237, 244 (Tex. Crim. App. 1982). Subsequently, in Burnett v. State, 642 S.W.2d 765 (Ct. Crim. App. 1982) (en banc), the Court of Criminal Appeals unequivocally held that a recording of a conversation with the defendant made by a hypnotist employed by defense counsel was protected by the attorney-client privilege from discovery by the State. (f) Polygraph Operator. Brown v. Trigg 791 F.2d 598 (7th Cir. 1986) (2) Not all Disclosures to Third Persons Result in Waiver. (a) Federal. The rule of waiver does not apply if the third persons are associates or clerical staff of the attorney. Himmelfarb v. United States, 175 F.2d 924, 939 (9th Cir. 1949) cert. denied, 338 U.S. 860 (1949).
ETHICS AND ATTORNEY MISCONDUCT* The rule of waiver does not apply in the case of communications made in the presence of potential co-defendants, co-defendants or their counsel in discussions of "team strategy." Continental Oil Co. v. United States, 330 F.2d 347, 350 (9th Cir. 1964); Hunydee v. United States, 355 F.2d 183, 185 (9th Cir. 1965); In re LTV Securities Litigation, 89 F.R.D. 595, 604 (N.D. Tex. 1981). The rule of waiver does not apply if the privileged communication is shared with a third person who has a common legal interest with respect to the subject matter of communication. Hodges, Grant & Kaufman v. U.S. Government, Dept. of Treasury, I.R.S., 768 F.2d 719 (5th Cir. 1985). (b) Texas: The privilege does not apply to information that the client intends his attorney to impart to others. United States v. Pipkins, supra, at 563.
Page 11 mail, land-line telephonic transmissions, and facsimiles applies to Internet e-mail. A lawyer should consult with the client and follow her instructions, however, as to the mode of transmitting highly sensitive information relating to the client's representation. The Committee addresses in this opinion the obligations of lawyers under the Model Rules of Professional Conduct (1998) when using unencrypted electronic mail to communicate with clients or others about client matters. The Committee (1) analyzes the general standards that lawyers must follow under the Model Rules in protecting "confidential client information" n1 from inadvertent disclosure; (2) compares the risk of interception of unencrypted e-mail with the risk of interception of other forms of communication; and (3) reviews the various forms of e-mail transmission, the associated risks of unauthorized disclosure, and the laws affecting unauthorized interception and disclosure of electronic communications.
Disclosure of privileged materials by a defendant's lawyer "standing alone" is not dispositive of the issue of waiver and it does not create a "presumptive" waiver Carmona v. State, 941 S.W.2d 949 (Tex. Cr. App. 1997)
Possible statutory protection for intercepted email communications.
(3) Email Communications with Clients
(4) No otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this chapter [18 UCS §§§§ 2510 et seq.] shall lose its privileged character.
ABA Committee on Ethics and Professional Responsibility Formal Opinion 99-413
18 U.S.C.A. §§ 2517. Authorization for disclosure and use of intercepted wire, oral, or electronic communications
Some type of notice of privilege on email communications, possibly a footer is recommended.
Protecting the Confidentiality of Unencrypted EMail
A sample:
A lawyer may transmit information relating to the representation of a client by unencrypted e-mail sent over the Internet without violating the Model Rules of Professional Conduct (1998) because the mode of transmission affords a reasonable expectation of privacy from a technological and legal standpoint. The same privacy accorded U.S. and commercial
INFORMATION CONTAINED IN THIS TRANSMISSION AND ALL ATTACHMENTS ARE INTENDED FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE AND MAY CONTAIN LEGALLY PRIVILEGED AND/OR CONFIDENTIAL INFORMATION. IF THE READER OF THIS MESSAGE IS NOT THE
ETHICS AND ATTORNEY MISCONDUCT* INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPY OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE PERMANENTLY DELETE THIS MESSAGE AND IMMEDIATELY NOTIFY US BY TELEPHONE. (4)
Matters that Attorney May Reveal.
(a) Communications made by client in presence of third parties. United States v. Blackburn, 446 F.2d 1089 (5th Cir. 1971). (b) Identity of the client is not normally within the privilege. Frank v. Tomlinson, 351 F.2d 384 (5th Cir. 1965); In re Grand Jury Proceedings in Matter of Fine, 641 F.2d 199, 204 (5th Cir. 1981). Attorney identification of corporation later implicated in drug smuggling activities was not privileged information; there is no connection shown between attorney's establishment of corporation for unnamed client and that client's involvement, if any, in subsequent criminal activities). Exceptions: Client's identity may be within the privilege when revelation of the name will implicate the client in the criminal offense concerning which the client sought the attorney's legal advice. United States v. Hodge and Zweig, 548 F.2d 1347 (9th Cir. 1977 ). See also, Matter of Fine, supra at 204 (c) Fact that client visited with attorney at a certain location at a certain time, e.g., State can force attorney to testify that client was in town on the day of the crime. Brasfield v. State, 600 S.W.2d 288 (Tex. Crim. App. 1980). (d) Attorney may be questioned as to their client's whereabouts and whether they have had contact with them. Matter of Grand Jury Subpoenas Served Upon Filed, 408 F. Supp. 1169 (S.D.N.Y. 1976).
Page 12 (e) Attorneys may be questioned regarding physical characteristics of the client, such as complexion, demeanor, dress, (intoxication?). United States v. Kendrick, 408 F. Supp 1169 (S.D.NY. 1976). Exception: In Texas the attorney-client privilege prevents an attorney from testifying as to his impressions of his client's mental capacity. See Pollard v. El Paso Nat'l Bank, 343 S.W.2d 909, 913 (Tex. Civ. App. 1961); Gulf Production Co. v. Colquitt, 25 S.W.2d 989 (Tex. Civ. App. 1930). (f) As a general rule matters involving receipt of fees from a client are not privileged. United States v. Haddad, 527 F.2d 537 (6th Cir. 1975), cert. den., 425 U.S. 974 (1976). In re Grand Jury Subpoena, 926 F.2d 1423 (5th Cir. 1991) the court held that an attorney could be required to disclose the identity of a client who had paid legal fees for three drug smugglers, where the payment of the fees appeared to be part of a continuing drug smuggling conspiracy. In re January 1976 Grand Jury, 534 F.2d 719 (7th Cir. 1976), the court held that the payment of a fee is not a privileged communication since money itself is "nontestimonial." (g) The Fifth Circuit has held that work papers and tax records used by an attorney to prepare his client's tax returns are part of an accounting service and therefore do not come within the attorney-client privilege. United States v. Davis, 636 F.2d 1028, 1043 (5th Cir. 1981), cert. denied, 454 U.S. 862 (1981). See also, United States v. Cote, 456 F.2d 142 (8th Cir. 1972). (h) Texas Family Code Duty to Report: Texas Family Code § 261.101. (a) A person having cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this Subchapter. (b) If a professional has cause to believe that a child
ETHICS AND ATTORNEY MISCONDUCT* has been abused or neglected or may be abused or neglected, or that a child is a victim of an offense under Section 21.11, Penal Code, and the professional has cause to believe that the child has been abused as defined by Section 261.001, the professional shall make a report not later than the 48th hour after the hour the professional first suspects that the child has been or may be abused or neglected or is a victim of an offense under Section 21.11, Penal Code. A professional may not delegate to or rely on another person to make the report. In this subsection, "professional" means an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children. The term includes teachers, nurses, doctors, day-care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers. (c) The requirement to report under this section applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, and an employee of a clinic or health care facility that provides reproductive services. (d) Unless waived in writing by the person making the report, the identity of an individual making a report under this chapter is confidential and may be disclosed only:
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d. Other Considerations. (1) It is a matter of common knowledge that the normal operation of a law office exposes confidential professional information to non-lawyer employees of the office, particularly secretaries and those having access to the files, and this obligates a lawyer to exercise care in selecting and training his employees so that the sanctity of all confidences and secrets of his client may be preserved. See generally, Former EC 4-5 and Former EC 4-6: (2) . . . a lawyer should be diligent in his efforts to prevent the misuse of such information by his employees and associates. Former EC 4-5. (3) "The obligation of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment." Former EC 4-6. (5) FISA and Privileged Communications 28 C.F.R. §§501 permits the monitoring of attorneyclient communications for inmates who are subject to special administrative measures based on a determination that unrestricted communication could result in death or serious bodily harm to others. The October 2001 amendment extended to this group of inmates only if the attorney general makes an additional finding that reasonable suspicion exists that a particular inmate may use communications with attorneys to further or facilitate acts of terrorism.
(1) as provided by Section 261.201; or The procedure are as follows: (2) to a law enforcement officer for the purposes of conducting a criminal investigation of the report. §§ 261.202. Privileged Communication In a proceeding regarding the abuse or neglect of a child, evidence may not be excluded on the ground of privileged communication except in the case of communications between an attorney and client.
First, unless officials have obtained a prior court order permitting surreptitious monitoring, the government must notify the prisoner and his or her attorney of monitoring; Second, no privileged information will be retained by those monitoring the
ETHICS AND ATTORNEY MISCONDUCT* conversations( the only information retained will be unprivileged information that refers to threats); Third, the regulation appears to dictate that there be no connection between the monitoring team and any ongoing prosecution involving the prisoner; Fourth, absent an imminent emergency, the government will have to seek court approval before any information from monitored conversations is used for any purpose; and Fifth, no information that is protected by the attorney-client privilege may be used for prosecution. The alarming portion of the regulations is 28 C.F.R. §§ 501.3(d)(2) which allows monitoring of attorneyclient communications without notice upon the issuance of an ex parte court order. The NACDL has issued a formal opinion in which it takes the position that attorneys are ethically obligated to request notice of monitoring. The text of that opinion is as follows: Formal Opinion 02-01: Monitoring of attorney-client communications The opinion notes that the issue of official monitoring of attorney-client conversations is not new, whether during visits or telephone calls; hence there is no dearth of legal and ethical authority on the problem. The problem of monitored telephones in police stations, jails and prisons is well-known. The issue came to public notoriety, however, in late 2001 with publication of the Attorney General's regulations governing monitoring of attorney-client communications of detainees suspected of terrorism offenses. 66 Fed.Reg. 55062 (Oct. 31, 2002); 28 C.F.R. §§ 501.3(d). The adoption of the regulations, which purport to provide advance notice of warrantless electronic monitoring and a "privilege team" to ensure that valid attorney-client
Page 14 communications are not misused by investigators, has also raised concerns about how to deal with secret court-ordered Title III and Federal Intelligence Surveillance Act (FISA) surveillance of such communications. Many members recall that when the proposed regulations were published for public comment in the Federal Register Oct. 31, 2001, it was audaciously announced that the regulations were already in effect. The Justice Department, however, did allow for a 60-day public comment period. NACDL immediately appointed an ad hoc committee to draft its response, which is posted on NACDL's Web site www.nacdl.org under the Defending Attorney-Client Privilege tab of the "News and Issues" section. In drafting Opinion 0201, the Ethics Advisory Committee endorsed and reaffirmed the ad hoc committee report. It is the view of NACDL that such monitoring infringes defendants' First and Fourth Amendment rights, and probably most importantly, the Sixth Amendment rights to effective assistance of counsel and a fair trial. Moreover, lawyers, and criminal defense lawyers in particular, have the among the highest duties of loyalty and confidentiality to their clients of any profession. Recommendations In general, the opinion advises, when an attorney has a reasonable suspicion that his or her communications with clients in custody are being monitored by government officials, it is NACDL's position that the attorney must take affirmative action to safeguard confidential communications, because once the attorney or the client learns of the monitoring, the relationship is chilled and the Sixth Amendment is violated. "Accordingly, the criminal defense lawyer has a duty to seek to end the surveillance, discover the true extent of it, and find a remedy for what has already happened," in order to protect the client's Sixth Amendment rights. "The [Sixth Amendment] right of the accused to a fair trial is undermined by actions of the government which interfere with the [Sixth Amendment] right to counsel," the opinion continues. "Thus, surreptitious monitoring of
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attorney-client conversations ultimately interferes with the right to a fair trial. Counsel not armed with the full facts from his or her client is seriously disadvantaged at trial to the prejudice of the client and the 'truth-seeking function' of a trial. Uninformed counsel is ineffective counsel, and, if the government is the cause of counsel being uninformed, the accused has been denied his fundamental right to a fair trial."
In refusing the request the court said [Title III and FISA] “allow for surveillance without prior notification precisely because such monitoring can often only be effective if the targets are unaware that they are being monitored.”
The other type of monitoring criminal defense lawyers need to be mindful of is monitoring pursuant to a judicial electronic surveillance order issued pursuant to the federal wiretap act, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510 et seq.) or the Foreign Intelligence Surveillance Act. NACDL members have recently reported that they have asked the government whether their attorney-client conversations are under electronic surveillance in jail, and the government's response has been that they are "not under surveillance under §§ 501.3(d)." Since electronic surveillance orders are by nature sealed, not unlike unexecuted search warrants, the government does not answer whether attorney and client are under court-ordered electronic surveillance.
i. Federal: The privilege belongs to the client, not the attorney, In re Grand Jury Proceedings, 517 F.2d 666 (5th Cir. 1975); Wirtz v. Fowler, 372 F.2d 315, 332, n. 37 (5th Cir. 1966). Cf., United States v. Ponder, 475 F.2d 37, 39 (5th Cir. 1973) (though Ponder court did not give this rule as a reason, it held for other reasons that an attorney could not claim in response to IRS summons of his personal financial records that the number and size of the legal fees he had received from clients were confidential). But see, Fisher v. United States, 425 U.S. 391 (1976) where the Court acknowledged that the privilege may be raised by the attorney.
"Our opinion on this issue is the same as with jail monitoring in general: a criminal defense lawyer must seek disclosure of whether the government is wiretapping or eavesdropping on attorney-client jail communications.... Counsel should seek relief from the courts to assure confidentiality of attorney-client communications. Counsel should argue that past abuses by the government, coupled with attorneyclient confidentiality and privilege under the Sixth Amendment, make secretly wiretapping and eavesdropping on attorney-client communications unconstitutional." On the other hand: Indicted attorney’s request for notice as to whether the government is engaging in surveillance of attorney client communications relating to herself, her co-defendants or her other clients was denied by the district court. U.S. v. Sattar, 314 F.Supp.2d 279 (S.D.N.Y. 2004)
(6) Procedural Aspects. (a) Assertion of the privilege.
ii. Texas: The attorney-client privilege is personal to the client. Cruz v. State, 586 S.W.2d 861 (Tex. Crim. App. 1979); Burnett v. State, 642 S.W.2d 765 (Tex. Crim. App. 1982). (b)
Burden of
Proof. i. Federal: The burden of proof to demonstrate an attorneyclient relationship is on the person asserting the privilege. C. McCormick, Evidence, Sec. 88, p. 179 (Clery ed. 1972), cited in United States v. Kelly, 569 F.2d 928, 938 (5th Cir. 1978). Burden of proof to disprove waiver of privilege is also on party claiming the privilege. Weil v. Investment/Indicators, Research and Management, Inc., 647 F.2d 18, 24 (9th Cir. 1975). See also, VIII J. Wigmore, Evidence Sec. 2292 p. 554 (McNaughton rev. 1961). However, see Pavlick, infra:
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Where the government makes a prima facia showing that an agreement to furnish legal assistance was part of a conspiracy, the crime or fraud exception applies to deny a privilege to the identity of him who foots the bill - and this even though he be a client of the attorney and the attorney is unaware of the improper arrangement. Such an arrangement, of course, need only be an effective one, need not be expressed, and might in a proper case be found to arise. In re Grand Jury Proceedings in the Matter of Pavlick, 680 F.2d 1026 (5th Cir. 1982).
1922).
It seems that even cursory investigations by inside counsel may be subject to the crime-fraud exception. For example, where corporate counsel communicated with employees regarding their immigration status while they were not authorized to work in the United States; these mere communications were held to be “in furtherance” of criminal activity. Therefore the Court held that the communications were subject to disclosure under the crime fraud exception. In re: Grand Jury Proceedings (Appeal of the Corporation) 87 F.3d 377 (9th Cir. 1996)
An order enforcing a grand jury subpoena or compelling testimony is not appealable. In re Grand Jury Proceedings (Fine), 641 F.2d 199, 201 (5th Cir. 1981).
ii. Texas: The party claiming the existence of the privilege must show that the confidential communication was made when the relation of attorney and client in fact existed. Cruz v.State, 586 S.W.2d 861 (Tex. Crim. App. 1980); Jackson v. State, 516 S.W.2d 167 (Tex. Crim. App. 1974); Frost Nat'l Bank v. Mitchell, 362 S.W.2d 198 (Tex. Crim. App. 1962); Hurley v. McMillan, 268 S.W.2d 229 (Tex. Crim. App. 1954); Simmons Hardware Co. v. Kaufman, 8 S.W. 283 (1888); Flack's Adm'r v. Neill, 26 Tex. 273 (1862). e. Question of Law. (1) Federal: Existence of the privilege is for the court to determine, without the intervention of a jury. Rule 104(a), F.R.Evid. (2) Texas: "The questions of privilege and waiver . . . were for the trial court to determine and not for the relator as a witness." Ex parte Lipscomb, 239 S.W. 1101, 1103 (Tex.
f. Procedure for Federal Judicial Review of Attorney-Client Privilege Claims in Summons and Subpoena Situations. An order enforcing an IRS summons under 26 U.S.C. Sec. 7602 is appealable. Claims of privilege are ordinarily not heard at this stage, but such claims with respect to documents are permitted in the 5th Circuit. United States v. Davis, 636 F.2d 1028, 1039 (5th Cir. 1981).
Claims of privilege are usually litigated at contempt proceedings for refusal to testify and the most common method of review of such orders is by appeal of the contempt order. United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 29 L.Ed. 85 (1971). Attorney/client privilege and Fifth Amendment do not bar government deposition of attorney as a witness in a property forfeiture. U.S. V. Saccoccia, 63 F.3d 1 (1st Cir. 1995) The 5th Circuit recognizes a unique procedure for judicial review of privilege claims where the attorney is unwilling to risk contempt. In such cases, the anonymous 3rd party client - the real person interested in claiming the privilege - may intervene in the enforcement proceedings. The order of enforcement is immediately appealable by the client-intervenor. In re Grand Jury Proceedings in Matter of Fine, supra, at 201-202. Of course, the aggrieved client can always move at his subsequent trial for exclusion of any evidence obtained in violation of his statutory or constitutional rights. United States v. Ryan, supra, at 532, n. 3. Partial disclosure equals waiver: In Re: Columbia/HCA Healthcare Corporation Billing
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Practices, 293 F.3d 289, (6th Cir. 2002). Sixth Circuit ruled that despite the existence of a confidentiality agreement between the company and the government, disclosed materials were not shielded from discovery in litigation brought by private parties.
materially affected; and
F.
(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.
Conflicts of Interest: General Rules.
This rule adopts the language of Rule 1.7 of the ABA Model Rules of Professional Conduct. 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: (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
(2) each affected or potentially affected client consents to such representation after full disclosure of the extent, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any.
(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. Comment Two elaborates on loyalty: A fundamental principle recognized by paragraph (a) is that a lawyer may not represent opposing parties in litigation. The term "opposing parties" as used in this Rule contemplates a situation where a judgment favorable to one of the parties will directly impact unfavorably upon the other party. Moreover, as a general proposition loyalty to a client prohibits undertaking representation directly adverse to the representation of that client in a substantially related matter unless that client's fully informed consent is obtained and unless the lawyer reasonably believes that the lawyer's representation will be reasonably protective of that client's interests. Paragraphs (b) and (c) express that
ETHICS AND ATTORNEY MISCONDUCT* general concept. 1. Representing Co-Defendants Where There is a Conflict of Interest is a Violation of the Right to Effective Assistance of Counsel Guaranteed by the Sixth Amendment. a. The mere fact that one lawyer represents more than one co-defendant does not automatically establish a conflict of interest. Burger v. Kemp, 483 U.S. 776(1987). However, in a capital murder case since the procedure for imposing the death penalty focuses on subjective considerations of the individual offender, representing co-defendants in such a case has been held to be per se ineffective counsel by the California Supreme Court in People v. Chacon, 73 Cal. Rptr. 10, 447 P.2d 106 (S.Ct. Cal. 1968), and the Texas Court of Criminal Appeals in Ex parte McCormick, 645 S.W.2d 801, 806 (Ct. Crim. App. 1983) (en banc) has strongly suggested that it may, itself, also hold at the next opportunity. b. Most courts utilize the "substantial relationship test" In resolving conflict of interest issues relating to former clients. In Duncan v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 646 F.2d 1020 (5th Cir. 1981), cert. denied, 454 U.S. 895, 102 S.Ct. 394 (1981), the Court held: Thus, to disqualify his former counsel, the moving party must prove not only the existence of prior attorney-client relationship but also that there is a genuine threat that confidences revealed to his former counsel will be divulged to his present adversary. The party seeking disqualification is not required, however, to point to specific confidences revealed to his former attorney that are relevant to the pending case. Instead, he "need only to show that the matters embraced within the pending suit
Page 18 are substantially related to the matters or cause of action wherein the attorney previously represented him." Wilson P. Abraham Const. Corp. v. Armco Steel Corp., 559 F.2d 250, 252 (5th Cir. 1977); In re Yarn Processing Patent Validity Litigation, 530 F.2d 83, 89 (5th Cir. 1976); T.C. Theater Corp. v. Warner Bros. Pictures, 113 F.Supp. 265, 268 (S.D.N.Y. 1953). Party seeking disqualification of opposing counsel bears the burden of proving "substantial relationship". Once established, the court will irrefutably presume that relevant confidential information was disclosed. In re American Airlines, Inc., AMR, 972 F.2d 605 (5th Cir. 1992). Denial of a motion to disqualify is not an appealable collateral order, and the standard of review on appeal is abuse of discretion. In re Dresser Industries, Inc., 972 F.2d 540 (5th Cir. 1992). See also Insurance Co. of North America v. Westcapden, 794 S.W.2d 812 (Tex. App.–Corpus Christi 1990); NCNB Texas National Bank v. Coker, 765 S.W.2d 398 (Tex. 1989). c. Nothing in the Sixth Amendment requires trial courts, themselves, to initiate inquiry into the propriety of multiple representation. Absent special circumstances, trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accepted such risk of conflict. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708 (1980). Limitation: Conflict between lawyer’s personal interests and those of client may not be as clear. See Beets v. Collins, 986 F.2d 1478 (5th Cir. 1993). d. However, trial of a defendant without adequate representation by counsel is fundamentally unfair and the requisite government involvement for Fourteenth Amendment purposes is present whether or not the responsible governmental official is aware of the conflict. Stephens v. United States, 595 F.2d 1066, 1069 (5th Cir. 1979); Cuyler
ETHICS AND ATTORNEY MISCONDUCT* v. Sullivan, 446 U.S. 335 (1980). e. In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance. Cuyler v. Sullivan, supra; Gonzalez v. States, 605 S.W.2d 278, 282 (Tex. Crim. App. 1980); Ex parte Parham, 611 S.W.2d 103 (Tex. Crim. App. 1981) (en banc); Slater v. State, 646 S.W.2d 528, 531 (Tex.App. 1 Dist. 1982); Simons v. State, 805 S.W.2d 519, 521 (Tex. App.--Waco 1991). f. Once the defendant demonstrates that his counsel had a conflict of interest and that said conflict adversely affected the lawyer's performance, he need not demonstrate any specific prejudice to obtain relief. Cuyler, supra; Gonzalez, supra; Ex parte Parham, supra; Calloway v. State, 699 S.W.2d 824 (Tex. Crim. App. 1985). g. The Sixth Amendment may arise from conduct of the governments attorneys.The defendant’s case was remanded for an evidentiary hearing in U.S. v. Amlani, 111 F.3d 705 (9th Cir. 1997) when the prosecutor repeatedly made disparaging remarks about the defendant’s counsel in front of him. The prosecutor allegedly made statements to the defendant and his wife that his defense counsel did not care about him, was incompetent, and could not prevent the defendant’s conviction. The Court held that if the prosecutor truly made these statements to the defendant and the defendant acting on those comments retained different counsel for trial then this conduct constituted a violation of the defendant’s Sixth Amendment right and the defendant’s conviction should be vacated. 2.
Examples:
a. A and B, co-defendants to murder, represented by same court-appointed
Page 19 lawyer. Testimony developed that B may have perpetrated the actual killing, but the lawyer was prevented from exploiting that testimony to mitigate A's case, because the more he mitigated A's case, the harsher B's case appeared. Under these circumstances the prejudice was obvious and the case was reversed. Foxworth v. Wainwright, 516 F.2d 1072 (5th Cir. 1975); Ex parte Parham, 611 S.W.2d 103 (Tex. Crim. App. 1981) (en banc). b. Where trial counsel represents all parties charged with joint possession of a large quantity of marijuana and trial counsel puts one of said parties on the witness stand and elicits testimony that inculpates other defendants likewise represented by said counsel, there is both a conflict of interest and a showing that said conflict adversely affected the lawyer's performance and the case is reversed. Gonzalez v. State, 605 S.W.2d 278 (Tex. Crim. App. 1980). but see also: Gaston v. State, 136 S.W.3d 315, Tex. App. –Houston [1st Dist] 2004) c. Where defendant's attorney concurrently represents a prosecution witness at trial, or where attorney has previously represented such witness on other occasions, there is a conflict of interest and a showing that said conflict adversely affects performance. United States v. Martinez, 630 F.2d 361 (5th Cir. 1980). d. A lawyer representing a murder defendant may stay on a s counsel even though the defense will include pointing the finger at a key state witness whom the same lawyer defended in a criminal case a decade earlier. Daniels v. State, 17 P.3d 75( Alaska, Ct. App. 2001) 3.
Other Examples:
a. County attorney's disqualification to defend criminal cases extends to his partners and
ETHICS AND ATTORNEY MISCONDUCT* associates in all courts throughout the state whether privately employed or court appointed. Tex. Op. No. 323 (Oct. 1966). b. Where an attorney is a city judge and also a member of a law firm, it would be improper for him or another member of his firm: (1) To represent civil litigants in a suit ancillary to criminal proceedings determined by him in his capacity as a city judge. (2) To represent defendants in a criminal action in another court where the arresting officers are city policemen. (3) To represent Civil Service employees of the city at hearings before the Civil Service Commission of the city. (4) To represent defendants convicted in the city court upon appeal to a higher court. (5) In the context of a small or mediumsized county prosecutor's office, the issue of whether a prosecutor must recuse himself if he somehow was involved in the defense of the accused before his employment with the District Attorney's Office, arises in an en banc decision of the Court of Criminal Appeals, State ex rel. Eidson v. Edwards, 793 S.W.2d 1 (Tx. Crim. App. 1990). In that case, the judge of the 104th District Court of Taylor County, Texas, disqualified the entire District Attorney's Office "to avoid the appearance of impropriety." The trial court judge felt this was a proper response in light of the fact that an Abilene attorney, who was appointed by the trial judge to represent the defendant in several cases, and did so for several months until the attorney was appointed judge of the County Court at Law No. 2 of Taylor County, withdrew from representing Clayton and later resigned being judge
Page 20 and then became employed by Eidson as an assistant district attorney. The issue was whether the trial judge was authorized to grant the motion to disqualify Eidson and his entire staff from prosecuting the defendant. The Texas Court of Criminal Appeals felt that by preventing the Taylor County District Attorney and his entire staff from participating in the prosecution, the trial court had constructively removed the District Attorney from his elected office with respect to that particular case. The court felt that only under narrow, statutorily defined circumstances may a trial court remove a district attorney and his office. "If there is a conflict of interest on the part of the district attorney or his assistants, however, the responsibility of recusal lies with them, not with the trial court judge." Id. at 6. The Court of Criminal Appeals goes on to note that they are not in any way saying that Texas prosecutors are immune from the Code of Professional Responsibility. They distinguish in Footnote No. 6 at Page 6 that "[T]here is quite a difference in the relationship between lawyers working in private law firms and lawyers representing the State." The American Bar Association Committee of Professional Ethics recognizes that: [T]here are substantial reasons against treating the State as a private enterprise. The Committee has ruled that other Government lawyers should not be disqualified from handling matters in which an associate was involved in his or her former private practice. The Committee concluded that when an individual attorney is separated from any participation in matters affecting his former client, the vicarious disqualification of a Government department is not necessary or wise. Id.
ETHICS AND ATTORNEY MISCONDUCT* Several useful points are raised in the Eidson dissent beginning at Page 7. Beginning with an analyzation of the difference between disqualifying and removing an office or a particular lawyer, and also touching on a point hinted at during the case opinion, but not fully discussed: to wit, Chinese Walls. 4.
Page 21 recognized. It seems, however, that in the criminal law context, after the Eidson case that if the new prosecutor does not discuss the case with anyone else in the office and no one is allowed to discuss it in his presence, that this lack of participation equals a "Chinese Wall" sufficient to block off the appearance of impropriety. See the facts of Eidson, 793 S.W.2d at 3.
"Chinese Walls"
A "Chinese Wall" is a device erected by a law firm intended to "quarantine" a new member with confidential information received from an adversary of one of the firm's clients. On the civil side of Texas law lies an important case, Petroleum Wholesale, Inc. v. Marshall, 751 S.W.2d 295 (Tex.App.-- Dallas, 1988, no writ). The facts of the case are succinctly summarized in the concurrence of Wadley Blood Bank v. Morris, 776 S.W.2d 271, 284 (Tex.App.--Dallas 1989, no writ): If during the course of the same litigation, Lawyer I (the lawyer complained about) departs from Firm I, which is involved in the representation of Client I (the offended party), and if Lawyer I then affiliates with Firm II (the firm sought to be disqualified), which is involved in the representation of Client II (adversary in the same litigation), the mere affiliation between Lawyer I and Firm II acts as an automatic disqualification of Firm II to participate in the litigation. A "Chinese Wall" between Lawyer I and Firm II will not remedy the situation. The reason: the rule or policy against dual representation has been breached. Public policy forbids the relationship. Most Texas cases have consistently taken the position that Chinese Walls will not be
The Court does not wish to imply that a defendant would be left without recourse if the prosecution's failure to recuse itself violated his due process rights. If, for example, a prosecutor who had previously represented a defendant, later personally prosecuted the defendant in the same matter, the defendant's conviction would violate the Fourteenth Amendment of the United States Constitution and Article I, Section 19 of the Texas Constitution. Id. at 6. See also, Indust. Accident Bd. v. Spears, 790 S.W.2d 55 (Tex.App.--San Antonio 1990, n.w.h.). Turbin v. Navajo County Superior Court, 797 P.2d 734 (Ariz.App. 1990); 48 Crim. L. Rep. (BNA) 1076. It would be improper for the attorney to hear cases as city judge where the party involved is or has been a client of the firm. Tex. Op. No. 116 (Sept. 1955). It is improper for an attorney who is mayor or member of the city council to practice in municipal court or to represent defendants in criminal cases initiated by police from the city where the attorney holds office. Tex. Bar Comm. Op. No. 382 (1975). Query: What about county commissioners in county court or representing defendants in cases made by the sheriff's office? c. Conflict of interest where defense attorney carries on covert intimate relationship with Defendant's wife during murder
ETHICS AND ATTORNEY MISCONDUCT* trial. California v. Singer, 275 Cal. Rptr. 911 (Cal. App. 1. Dist. 1990) d. Classic conflict where defense counsel represents both the defendant and the defendant's wife who is the beneficiary of the victim's life insurance policy. McConico v. Alabama, 919 F.2d 1543 (11th Cir. 1990) e. Conflict created by nonattorney (staff member). Occidental Chemical Corp. v. Brown, 877 S.W.2d 27 (Tex. App.--Corpus Christi 1994). f. District Attorney can prosecute a criminal case where an Assistant D.A. is the complainant and fact witness. Stanley v. State, 880 S.W.2d 219 (Tex. App.--Ft. Worth 1994). g. Client who gives attorney a bad check or stolen goods does not create a conflict of interest per se so as to avoid a plea. DeLoro v. State, 712 S.W.2d 805 (Tex. App.–Houston[1st Dist.] 1986). 5. Potential Conflict of Interest Can Be Waived By Co-Defendants. If each client consents to the representation after full disclosure of the possible effect of such representation on the exercise of the lawyer's independent and professional judgment on behalf of each client, then the lawyer may represent the multiple parties to the offense. Old DR 5-105(C). The Texas Court of Criminal Appeals has held that the right to conflict-free counsel may be waived, if done so knowingly and voluntarily. Ex parte Prejean, 625 S.W.2d 731 (Tex. Crim. App. 1981); Juarez v. State, 677 S.W.2d 285 (Tex.App. 1 Dist. 1984). The waiver of the right to conflict-free counsel should include a showing that the defendant is aware of the conflict of interest, realizes the consequences of continuing with said
Page 22 counsel, and is aware of his right to obtain other counsel. Id. Consider the example of several police officers charged with numerous illegal acts and all represented by the same attorney. Trial judge refused to proceed, feeling that there was a conflict between the interests of the several defendants. Defendants insisted on being represented by the same attorney. Held: Reversed. "If defendants may dispense with the right to be represented by counsel altogether . . . it would seem that they may waive the right to have their retained counsel free from conflicts of interests." United States v. Garcia, 517 F.2d 272 (5th Cir. 1975). 6.
Procedure in Trial Courts. a. State Courts
Unless a state trial judge knows or reasonably should know that a particular conflict exists, cf. Wood v. Georgia, 450 U.S. 261, 272 (1981), the federal constitution does not require a state trial judge to sua sponte inquire into the existence of any potential or actual conflicts due to multiple or successive representation. Cuyler v. Sullivan, 446 U.S. 335, 346-47 (1980); Calloway v. State, 699 S.W.2d 824 (1985). The Texas Courts have repeatedly held that trial counsel was the primary responsibility for advising the prospective clients of possible conflicts of interests in their positions. Gonzalez v. State, 605 S.W.2d 278 (Tex. Crim. App. 1980); Pete v. State, 533 S.W.2d 808 (Tex. Crim. App. 1976). Where, however, an attorney or the client timely objects to multiple or successive representation a state trial judge must make an inquiry into the existence of any such conflict and take appropriate measures to ensure that effective assistance of counsel is not impaired due to an actual conflict. Holloway v. Arkansas, 435 U.S. 475, 482 (1978); Cuyler v. Sullivan, supra. An actual conflict exists if "counsel's
ETHICS AND ATTORNEY MISCONDUCT* introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense of another defendant whom the same counsel is representing." Baty v. Balkcom, 661 F.2d 391, 395 (5th Cir. 1981). See also, Annotation, Multiple Representation of Defendants in Criminal Cases as Violative of the Sixth Amendment Right to Counsel - Federal Cases, 65 L.Ed.2d 907-983 (1980). The Texas Courts have held that an actual and significant conflict of interest exists where "one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of a co-defendant whom counsel is also representing." Ferguson v. State, 639 S.W.2d 307 (Tex. Crim. App. 1982); Amaya v. State, 677 S.W.2d 159, 162 (Tex. App. 1 Dist. 1984). b.
Federal Courts
Although the constitutional considerations stated above are fully applicable to federal courts, the federal courts have historically placed a duty upon federal trial judges to ensure that defendants are afforded conflict-free counsel. See Notes of Advisory Committee on Rules, 1979. That duty was codified in 1979 in Rule 44(c), Federal Rules of Criminal Procedure, which states: Joint Representation. Whenever two or more defendants have been jointly charged pursuant to Rule 8(b) or have been joined for trial pursuant to Rule 13, and are represented by the same retained or assigned counsel or by retained or assigned counsel who are associated in the practice of law, the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of his right to the effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant's right to counsel.
Page 23 The Fifth as well as the Fourth and Eleventh Circuits have held that even where a trial court fails to comply fully with the mandate of Rule 44(c), a defendant must still demonstrate an actual conflict of interest before an alleged Sixth Amendment violation will result in a reversal. See United States v. Arias, 678 F.2d 1202, 1205 (4th Cir. 1982), cert. denied, 459 U.S. 910, 103 S.Ct. 218 (1983); United States v. Benavidez, 664 F.2d 1255, 1258-59 (5th, Cir), cert. denied, 457 U.S. 1121 (1982), United States v. Alvarez, 696 F.2d 1307, 1309-10 (11th Cir.), cert. denied, 461 U.S. 907, 103 S. Ct. 1878 (1983). These opinions recognize that the inquiry and advice provided for by Rule 44(c) are not ends in themselves, but a procedure designed to prevent conflicts of interest. This interpretation of Rule 44(c) is consistent with Holloway, supra and Cuyler, supra. However, see Cole v. White, 376 S.E.2d 599, 44 Crim. L. Rep. (BNA) 2350 (1989) where West Virginia Appellate Court in interpreting their state's Rule 44(c) equivalent held that the trial court's failure to give warnings about joint representation requires a new trial if conflict "likely" existed. The most important issues embodied within Rule 44(c) are: (1) what action the trial court can take to protect each defendant's right to counsel; and (2) whether the Government can initiate a Rule 44(C) hearing. The answers to these issues are discussed below in connection with disqualification of defense counsel. 7.
Disqualification of Defense Counsel
a. Federal Prosecutor's Motions To Disqualify Defense Counsel. The Federal Government has embarked upon a course of conduct designed to thwart a client's constitutional right to counsel and his right to waive his right to conflict-free counsel. See Margolin & Culver, Pretrial Disqualification of Criminal Defense Counsel, 20 AM. Crim. L. Rev. 227 (1982) (hereinafter cited as M&C, supra). The
ETHICS AND ATTORNEY MISCONDUCT* Government's attempts have occurred during grand jury investigations. See e.g., In re Gopman, 531 F.2d 262 (5th Cir. 1976); In re Grand Jury, 536 F.2d 1009 (3rd Cir. 1976); and cases cited at M&C, supra at 234 n. 37 and accompanying text. The Government's attempts have also occurred after indictment but prior to trial. See e.g., United States v. Garcia, 517 F.2d 272 (5th Cir. 1975); United States v. Mahar, 550 F.2d 1005 (5th Cir. 1977); United States v. Agosto, 675 F.2d 965 (8th Cir. 1982). While Rule 44(c), discussed above, certainly applies to a post-indictment, pretrial situation, thereby mandating that trial courts make appropriate inquiries into the existence of conflicts of interest, it is not clear that Rule 44(c) applies to grand jury proceedings. Yet, the absence of specific statutory authority under Rule 44(c) has not deterred prosecutors or the courts from disqualifying defense counsel who attempt to represent witnesses or targets summoned before grand juries. In re Gopman, supra, illustrates the problem. There, the Fifth Circuit held that, based on alleged conflicts of interest, the government had standing to move to disqualify an attorney who represented certain labor unions and official of those unions who were summoned before the grand jury. The Fifth Circuit also held that federal district judges have jurisdiction to consider governmental motions to disqualify. The Fifth Circuit went on to uphold the district court's order disqualifying the attorney and noted that the attorney "had placed himself in a situation where conflicting loyalties could affect his professional judgment." Id. at 267. The Court noted the importance of a client's sixth Amendment right to counsel of his choice, but added that it must yield to an overriding public interest. Id. at 268. The Court concluded by stating: "We hold only that the public interest in a properly functioning judicial system must be allowed to prevail in the case presently before us. Appellant had placed himself in a clear conflict situation from which the district court had the duty
Page 24 to rescue both the lawyer and his clients." Id. at 268. While there may be logic to the Gopman analysis, it is difficult to reconcile that analysis with the Sixth Amendment right to counsel and the right to waive conflict-free counsel. In the context of post-indictment, pretrial motions to disqualify, a defendant's waiver of conflict-free counsel and his right to counsel of his choice should prevail. In the context of grand jury investigations, however, a witness has no Fifth or Sixth Amendment right to counsel. See e.g., Miranda v. Arizona, 384 U.S 436 (1966); Kirby v. Illinois, 406 U.S. 682 (1977). Thus, since it is impossible to waive a right you do not possess, logically a witness should not rely upon a waiver of the right to conflict-free counsel as a device to overcome a motion to disqualify his counsel at the grand jury. See Rule 44(c), Federal Rules of Criminal Procedure. b. Consistent with the Sixth Amendment, a District Court has great latitude in refusing waivers of conflict of interest not only in cases where actual conflict is demonstrated, but also where potential conflict may burgeon into actual conflict as the trial progresses. Wheat v. U.S. 108 S. CT. 1692 (1988). However, state constitutions may be used to grant greater rights than the U.S. Constitution, and may limit the trial court's power to disqualify counsel because of conflict. Alcocer v. Superior Court, 206 Cal. App. 3d 951, 254 Cal. Rptr. 72 (Cal. App. 2 Dist. 1988), 44 Crim. L. Rep. (BNA) 2284. c. A government's motion for disqualification of defense counsel may not be grounded on appearance of impropriety. A showing of an actual conflict of interest is required. U.S. v. Washington, 797 F.2d 1461 (9th Cir. 1986); McFarlan v. District Court, 718 P.2d 247 (Colo.
ETHICS AND ATTORNEY MISCONDUCT* 1986).
b. Do the facts suggest possible inconsistent defenses?
d. Appealability Disqualify Defense Counsel.
of
Motions To
As of February 21, 1984 an order disqualifying a defense attorney from representing a witness or target before the grand jury or from representing a defendant under indictment is not immediately appealable under 28 U.S.C. sec. 1291. Flanagan v. United States, 104 S.Ct. 1051 (1984). Flanagan resolved the prior conflict among the circuits as to this issue. The issue of whether the government may appeal a denial of a motion for disqualification is still unresolved. Although the Supreme Court has held that there is no right to appeal an order denying a motion for disqualification in a civil case, pursuant to 28 U.S.C. sec. 1291, Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981), the Court declined to express any view on the appealability of such an order in a criminal case. Firestone, supra at 372 n. 8. See also In re Dresser Industries, supra. 8. Tactical Evaluation of Facts.
Page 25
Considerations:
a. Do the facts permit the attorney to fashion a consistent defense for both potential clients? If not, no multiple representation should be attempted. United States v. Marshall, 488 F.2d 1169 (9th Cir. 1973) (Retained attorney represented D1 and D2 in a conspiracy to distribute amphetamine prosecution. D1's only possible defense was entrapment, and attorney pursued this line. Entrapment unavailable to D2 since he never dealt with law enforcement personnel. Held: D2 had ineffective counsel).
(1) If not, multiple retainer is possible. Courtney v. United States, 486 F.2d 1108 (9th Cir. 1973) (Retained attorney represented D1 and D2 in obstruction of justice prosecution. Both testified as to same facts regarding discussions with complaining witness); United States v. Valenzuela, 521 F.2d 414 (8th Cir. 1975) (Retained attorney represented D1 and D2 in possession of stolen property prosecution. Both relied on alibi defenses). (2) If facts suggest possible inconsistent and consistent defenses, relative strengths of each must be evaluated. 9. Tactical Considerations: Trial Tactics a. Will the attorney be able to adequately examine all witnesses on behalf of both clients? (1) U. S. ex rel. Horta v. DeYoung, 523 F.2d 807 (3rd Cir. 1975) (Retained attorney represented D1-D3 in an unlawful lottery prosecution. Government witnesses testified males were present at lottery operation. Held: Counsel ineffective as to D3, a female. Counsel failed to pursue distinction with witnesses and failed to ask for cautionary instructions). (2) Foxworth v. Wainwright, 516 F.2d 1072 (5th Cir. 1975) (Appointed counsel represented D1 and D2 in murder prosecution. Government medical witness suggested victim died from beating. D2 was not involved in beating victim. Motives established for D1 and another defendant only. Held: Counsel ineffective as to D2. Counsel failed to pursue distinction). b.
Will the attorney be able to
ETHICS AND ATTORNEY MISCONDUCT* effectively respond to events during course of trial? (1) Larry Buffalo Chief v. State of South Dakota, 425 F.2d 271 (8th Cir. 1970) (Retained attorney represented D1 and D2 in murder prosecution. Unanticipated testimony of only disinterested witness failed to identify assailants as wearing light colored shirts. D2 wore dark long sleeved coat. Court effectively returned case to state court to clarify a confused record). (2) Craig v. United States, 217 F.2d 355 (6th Cir. 1957) (Retained counsel represented D1 and D2 in tax fraud prosecution. No apparent conflict when trial began. Government witnesses testified about some transactions with D1 which occurred prior to D2's involvement. Counsel failed to pursue the distinction. Held: Counsel ineffective as to D2). G. Conflicts Transactions
of
Interest:
Prohibited
There are many areas that a Texas lawyer must avoid, and they are set out in State Bar Rule 1.08. Texas is stricter than the ABA model rules 1.8(d) regarding literary rights, but more expansive on advanced litigation costs [1.8(e) ABA]. But, this new version reflects the old DR 5-104 generally. Note prohibition of aggregate pleas in Section f. (a) A lawyer shall not enter into a business transaction with a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed in a manner which can be reasonably understood by the client; (2) the client is given a reasonable opportunity to seek the advice of independent
Page 26 counsel in the transaction; and (3) the client consents in writing thereto. (b) A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as a parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee. (c) Prior to the conclusion of all aspects of the matter giving rise to the lawyer's employment, a lawyer shall not make or negotiate an agreement with a client, prospective client, or former client giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation. (d) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation or administrative proceedings, except that: (1) a lawyer may advance or guarantee court costs, expenses of litigation or administrative proceedings, and reasonably necessary medical and living expenses, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. (e) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client consents;
ETHICS AND ATTORNEY MISCONDUCT* (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.05. (f) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregate agreement to guilty or nolo contendere pleas, unless each client has consented after consultation, including disclosure of the existence and nature of all the claims or pleas involved and of the nature and extent of the participation of each person in the settlement. (g) A lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement, or settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith.
Page 27 lawyer while a member of or associated with that lawyer's firm may engage in that conduct. (j) As used in this Rule, "business transactions" does not include standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others. A lawyer shall not acquire an interest in publication rights prior to conclusion of the case. Case remanded to investigate allegation that lawyer acquired interest in right to publish books, plays, or movies about the case in question. Such financial interest may cause the attorney to deliberately compromise the client's interest in order to further the financial success of the books, plays, or movies. Defendant contends that his attorney "forced" him to plead guilty so that the "full story" could be released for the first time in a movie instead of in the courtroom. Ray v. Rose, 491 F.2d 285 (6th Cir. 1974); U.S. v. Hearst, 638 F.2d 1190 (9th Cir. 1980). 1. Unpaid Fee.
Rule 1.08(h) Retaining Lien for
a. Risky. (h) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) acquire a lien granted by law to secure the lawyer's fee or expenses, and (2) contract in a civil case with a client for a contingent fee that is permissible under Rule 1.04. (i) If a lawyer would be prohibited by this Rule from engaging in particular conduct, no other
"[A]ny lawyer contemplating retaining possession of a client's property, papers or money should be cognizant of the possibility that his action may be deemed unethical if enforcement of the lien foreseeably prejudices the client's legal rights." Tx Ethics Op. No. 411 Jan. 84 Tx. Bar J. p. 47. b. Otherwise Lawful. Legal authority for retaining lien by attorney who has made demand for payment exists in this states subject to above limitation. Tx. Ethics
ETHICS AND ATTORNEY MISCONDUCT* Op. No. 411 Jan. 84 Tx. Bar J. p. 47. See also, Sales, Client Files and Attorney's Liens: The rule in Texas, Tx. Bar J. p. 510 May 1984. 2.
Page 28 The State Bar has adopted a new rule for areas of group representation such as banks and corporations. Remedial actions should first be taken within the organization (cf., Rule 1.12(b) & (c).
Prior Representation as a Conflict Rule 1.12 Organization as a Client.
What to do when the government witness against your client is a former client? "Substantial relationship test:, i.e., is the matter on trial so substantially related to the prior representation that there is a conflict because there is no chance that information gained through one relationship would not be used in the new relationship. See Duncan v. Merrill, Lynch, Etc. 646 F.2d 1020 (5th Cir. 1981); Wheat v. United States, 108 S.Ct. 1692 (1988). Actual transfer of attorney/client information that could be used to the detriment of the former client. United States v. Agosto, 675 F.2d 965 (8th Cir. 1982). What about if a partner or associate is the one who participated in the prior representation? United States v. Varca, 896 F.2d 900 (5th Cir. 1990). See also Davis v. Stansbury, 824 S.W.2d 278 (Tex. App.--Houston[1st Dist.] 1992). Sometimes the Court saves us from ourselves. Mickens v. Taylor 122 S. Ct. 1237; 152 L. Ed. 2d 291(2002). In a capital case, trial counsel did not reveal his prior representation of the victim to his client, co-counsel or the trial judge. On habeas review the district court and court of appeals held that the Petitioner showed no harm. The Supreme Court ultimately had the last word when it held in order to demonstrate a Sixth Amendment violation where the trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known, a defendant must establish that a conflict of interest adversely affected his counsel's performance. H.
Organization as Client
(a) A lawyer employed or retained by an organization represents the entity. While the lawyer in the ordinary course of working relationships may report to, and accept direction from, an entity's duly authorized constituents, in the situations described in paragraph (b) the lawyer shall proceed as reasonably necessary in the best interest of the organization without involving unreasonable risks of disrupting the organization and of revealing information relating to the representation to persons outside the organization. (b) A lawyer representing an organization must take reasonable remedial actions whenever the lawyer learns or knows that: (1) an officer, employee, or other person associated with the organization has committed or intends to commit a violation of a legal obligation to the organization or a violation of law which reasonably might be imputed to the organization; (2) the violation is likely to result in substantial injury to the organization; and (3) the violation is related to a matter within the scope of the lawyer's representation of the organization. (c) Except where prior disclosure to persons outside the organization is required by law or other Rules, a lawyer shall first attempt to resolve a violation by taking measures within the organization. In determining the internal
ETHICS AND ATTORNEY MISCONDUCT* procedures, actions or measures that are reasonably necessary in order to comply with paragraphs (a) and (b), a lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer's representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters, and any other relevant considerations. Such procedures, actions and measures may include, but are not limited to, the following: (1) asking reconsideration of the matter; (2) advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and (3) referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act in behalf of the organization as determined by applicable law. (d) Upon a lawyer's resignation or termination of the relationship in compliance with rule 1.15, a lawyer is excused from further proceeding as required by paragraphs (a), (b) and (c), and any further obligations of the lawyer are determined by Rule 1.05. (e) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when it is apparent that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing or when explanation appears reasonably necessary to avoid misunderstanding on their part. 1. The comments assist the Texas lawyer to interpret this new Rule 1.12.
Page 29 a.
The Entity as the Client:
Comment 1: A lawyer employed or retained to represent an organization represents the organization as distinguished from its directors, officers, employees, members, shareholders or other constituents. Unlike individual clients who can speak and decide finally and authoritatively for themselves, an organization can speak and decide only through its agents or constituents such as its officers or employees. In effect, the lawyer-client relationship must be maintained through a constituent who acts as an intermediary between the organizational client and the lawyer. The fact requires the lawyer under certain conditions to be concerned whether the intermediary legitimately represents the organizational client. Comment 2: As used in this Rule, the constituents of an organizational client, whether incorporated or an unincorporated association, include its directors, officers, employees, shareholders, members, and others serving in capacities similar to those positions or capacities. This Rule applies not only to lawyers representing corporations but to those representing an organization, such as an unincorporated association, union, or other entity. Comment 3: When one of the constituents of an organizational client communicates with the organization's lawyer in that person's organizational capacity, the communication is protected by Rule 1.05. Thus, by way of example, if an officer of an organizational client requests its lawyers to investigate allegations of wrongdoing, interviews made in the course of that investigation between the lawyer and the client's employees or other constituents are covered by Rule 1.05. The lawyer may not disclose to such constituents information relating to the representation except for disclosures permitted by Rule 1.05.
ETHICS AND ATTORNEY MISCONDUCT* b. Sarbanes Oxley Act: Disclosure Section 307 of the Act now 15 USCA 7245 introduced a very controversial provision affecting lawyers. The Act compels the SEC to adopt new rules of professional conduct applicable to attorneys practicing before it in any way in the representation of issuers. The text of 15 UCS §§ 7245 is as follows: Not later than 180 days after the date of enactment of this Act [enacted July 30, 2002], the Commission shall issue rules, in the public interest and for the protection of investors, setting forth minimum standards of professional conduct for attorneys appearing and practicing before the Commission in any way in the representation of issuers, including a rule-(1) requiring an attorney to report evidence of a material violation of securities law or breach of fiduciary duty or similar violation by the company or any agent thereof, to the chief legal counsel or the chief executive officer of the company (or the equivalent thereof); and (2) if the counsel or officer does not appropriately respond to the evidence (adopting, as necessary, appropriate remedial measures or sanctions with respect to the violation), requiring the attorney to report the evidence to the audit committee of the board of directors of the issuer or to another committee of the board of directors comprised solely of directors not employed directly or indirectly by the issuer, or to the board of directors. In response the SEC has proposed rule 205 to reflect the requirements of 307 in 67 Fed. Reg. 71670, 71673 to be codified at 17 C.F.R. pt. 205. The proposed rule incorporates several corollary
Page 30 provisions that are not explicitly required by section 307. Section 205.3(b) codifies an attorney's duty to report when he becomes aware of information that would lead a reasonable attorney to believe a material violation has occurred, is occurring, or is about to occur. The attorney is required to report the material violation to the issuer's chief legal officer or chief executive officer. The CLO or CEO is obligated to determine whether the report has any merit, and if it does, to remedy the situation. If the CLO or CEO find that the report does not have merit, then they must report their findings to the attorney. An attorney only fulfills their obligations once they receive an appropriate response within a reasonable time and has taken reasonable steps to document his or her report and the response to it has satisfied his or her obligations under the rule. An attorney who does not receive an appropriate response, or believes that reporting the violation to the CLO or CEO is futile, must report the violation to the issuer's audit committee or a subcommittee of the board of directors containing independent directors or to the full board. The attorney is also required to document the response, or absence thereof. Proposed rule 205.3(d) outlines the obligations of both outside and in-house attorneys who report material violations and do not receive an appropriate response. An outside attorney who does not receive an appropriate response is required to withdraw from representation, notify the SEC of their withdrawal on the basis of "professional considerations," and disaffirm any submission to the SEC that they have participated in that may be tainted by the violation. Rule 205.3(d)(4), provides protection to an attorney, whether outside or in-house, who reasonably believes was discharged because they fulfilled their reporting obligations. Under the proposed protection provision, the attorney may report their discharge to the SEC without violating the attorney-client privilege, presumably based on
ETHICS AND ATTORNEY MISCONDUCT* the whistleblower protections provided by 806 of the Act. Section 602 of the Act, now 15 U.S.C. 78d-3, provides the SEC with the authority to "censure any person, or deny, temporarily or permanently, to any person the privilege of appearing or practicing before the Commission" (for, among other reasons, willful violation or willful aiding and abetting the violation of the securities law or the rules and regulations issued thereunder).
Page 31 See In re Office Products of America, Inc., 136 B.R. 983 (W.D. Tex. 1992). Attorney owes allegiance to the entity, not to any person connected with the entity. II.
In keeping with the ABA model rules, the Texas State Bar has adopted the new Rule 2.01: A.
c.
LAWYER AS COUNSELOR
Rule 2.01 Lawyer as Advisor
Clarifying the Lawyer's Role:
Comment 4: There are times when the organization's interest may be or become adverse to those of one or more of its constituents. In such circumstances the lawyers should advise any constituent, whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation. Care should be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged insofar as that individual is concerned. Whether such a warning should be given by the lawyer for the organization to any constituent individual may turn on the facts of each case. Comment 5: A lawyer representing an organization may, of course, also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject to the provisions of Rule 1.06. If the organization's consent to the dual representation is required by Rule 1.06, the consent of the organization should be given by the appropriate official or officials of the organization other than the individual who is to be represented, or by the shareholders.
In advising or otherwise representing a client, a lawyer shall exercise independent professional judgment and render candid advice. Comment Five adds some more generalities to this already basic rule regarding the offering of advice: In general, a lawyer is not expected to give advice until asked by the client. However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, duty to the client may require that the lawyer act if the client's course of action is related to the representation. A lawyer ordinarily has no duty to initiate investigation of a client's affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client's interest. B. Imputed Disqualification of Fellow Attorneys: For lawyers in firms, a prohibited transaction will keep the rest of the lawyers in the firm from handling the case. See, Rules 1.06(f), 1.07(e), 1.08(i), 1.09(b).
ETHICS AND ATTORNEY MISCONDUCT* III.
LAWYER AS ADVOCATE
Page 32 material fact or law to a tribunal;
The Texas State Bar has written in a new rule specifically to deal with dilatory practices of the Bar.
(2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;
A. Rule 3.02 Minimizing the Burdens and Delays of Litigation
(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.
In the course of litigation, a lawyer shall not take a position that unreasonably increases the costs or other burdens of the case or that unreasonably delays resolution of the matter.
(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
Comment Three deals with Unreasonable Delay: (5) offer or use evidence that the lawyer knows to be false. Dilatory practices indulged in merely for the convenience of lawyers bring the administration of justice into disrepute and normally will be "unreasonable" within the meaning of this Rule. See also, Rule 1.01(b) and (c) and paragraphs 6 and 7 of the Comment thereto. This Rule, however, does not require a lawyer to eliminate all conflicts between the demands placed on the lawyer's time by different clients and proceedings. Consequently, it is not professional misconduct either to seek (or as a matter of professional courtesy, to grant) reasonable delays in some matters in order to permit the competent discharge of a lawyer's multiple obligations.
(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.
Towards the
1. The comments provide further help in this touchy area.
Rule 3.03 covers the difficult area of
Comment 9: Whether an advocate for a criminally accused has the same duty of disclosure has been intensely debated. While it is agreed that in such cases, as in others, the lawyer should seek to persuade the client to refrain from suborning or offering perjurious testimony or other false evidence, there has been dispute concerning the lawyer's duty when that persuasion fails. If the
B. Rule 3.03 Tribunal
Candor
Perjury. (a) A lawyer shall not knowingly: (1) make a false statement of
ETHICS AND ATTORNEY MISCONDUCT* confrontation with the client occurs before trial, the lawyer ordinarily can withdraw. Withdrawal before trial may not be possible, however, either because trial is imminent, or because the confrontation with the client does not take place until the trial itself, or because no other counsel is available. Comment 10: T h e p r o p e r resolution of the lawyer's dilemma in criminal cases is complicated by two considerations. The first is the substantial penalties that a criminal accused will face upon conviction, and the lawyer's resulting reluctance to impair any defenses the accused wishes to offer on his own behalf having any possible basis in fact. The second is the right of a defendant to take the stand should he so desire, even over the objections of the lawyer. Consequently, in any criminal case where the accused either insists on testifying when the lawyer knows that the testimony is perjurious or else surprises the lawyer with such testimony at trial, the lawyer's effort to rectify the situation can increase the likelihood of the client's being convicted as well as opening the possibility of a prosecution for perjury. On the other hand, if the lawyer does not exercise control over the proof, the lawyer participates, although in a merely passive way, in deception of the court.
Page 33 resolution of the dilemma, and the one this Rule adopts, is that the lawyer must take reasonable remedial measure which may include revealing the client's perjury. A criminal accused has a right to the assistance of an advocate, a right to testify and a right of confidential communication with counsel. However, an accused should not have a right to assistance of counsel in committing perjury. Furthermore, an advocate has an obligation, not only in professional ethics but under the law as well, to avoid implication in the commission of perjury other than falsification of evidence. See Virzi v. Grand Trunk Warehouse and Cold Storage Co., 571 F. Supp. 507 (E.D. Mich. 1983). 2.
Perjury Problem.
a. No Definitive Solution in this State. "It may be seen that there is no accepted solution to the problem of the perjurious client. The question is not whether the appellant's attorneys followed the only acceptable course, for no such course is established." Maddox v. State, 613 S.W.2d 275, 283 (Crim. App. 1981). b.
What to Do if Counsel Anticipates
Perjury. Comment 11: Three resolutions of this dilemma have been proposed. One is to permit the accused to testify by a narrative without guidance through the lawyer's questioning. This compromises both contending principles; it exempts the lawyer from the duty to disclose false evidence but subjects the client to an implicit disclosure of information imparted to counsel. Another suggested resolution is that the advocate be entirely excused from the duty to reveal perjury if the perjury is that of the client. This solution, however, makes the advocate a knowing instrument of perjury. The answer seems to be in Comment Twelve: Comment 12:
T h e
o t h e r
(1) Head it off at initial interview, i.e., "anything you tell me is privileged. But, I can reveal information about a crime you are planning in the future, like perjury. So if you try to lie on the stand, I can reveal that. Now, I don't think that you would lie, but I want you to know that I will investigate what you tell me, and in fairness, you should know how the attorney-client privilege works." (2) If client insists on testifying falsely does the 6th amendment require the lawyer to call the client to the stand? ABA Formal Opinion 87-353 (4/20/87) says "no"; and see Nix v. Whiteside, 106 S.Ct. 988, 998 (1986); "Whatever the scope of the right to testify, it is elementary that
ETHICS AND ATTORNEY MISCONDUCT* such a right does not extend to testifying falsely" (emphasis the court's). Notion of allowing client to testify in narrative form expressly rejected in ABA Formal Opinion 87-353 (4/20/87), but cf., Maddox v. State, 613 S.W.2d 275, 284 (Crim. App. 1981): "We hold that the appellant was not deprived of effective assistance of counsel when he was permitted to testify in narrative form rather than in answer to questions from his attorney." Revealing a client’s perjurious testimony to the court outside the presence of the jury does not necessarily require the attorney to withdraw from representation. People v. DePallo,96 N.Y.2d 437 (Ct. App. 2001). (3) Apparently, attorney can ethically reveal client's intent to commit perjury if client insists on testifying falsely. ABA Ethics Opinion 353 so states and see Helton v. State, 670 S.W.2d 644 (Tex. Crim. App. 1984) holding that counsel acted properly by advising court, out of jury's presence, that he could not question a witness whom defendant insisted be called, because lawyer believed that witness would commit perjury. c. What To Do When Perjury is Not Anticipated. (1) Make an effort to cause the witness to recant. (2) Do not develop the perjury further either through questions or through jury argument, doing so violates DR7-102 (A) (4) id. (3) Some authority that lawyers should reveal to court if client refuses to rectify, but not clear; see Nix vs. Whiteside, 106
Page 34 S.Ct. 988 (1986) holding no violation of 6th amendment when defendant`s lawyer reveals anticipation of perjury to the trial court; but cf., old DR 4-101 (C)(3) giving a lawyer the option to reveal his client's intention to commit a crime in the future. ABA Formal Opinion 87-353 (4/20/87) states that failing to reveal the unrectified perjurious event amounts to assisting the client to commit perjury, therefore, lawyer must reveal. This ABA opinion is based on Model Rule 3.3(b), not adopted in Texas, but cf., old DR 7-102 (A)(7) containing similar language. See, Jackson v. United States, 928 F.2d 245 (8th Cir. 1991), 49 Crim. L. Rep. (BNA) 1004. d. Real World before Rule 3.03. Maddox v. State, supra, provides real world guidelines for testimonial perjury: (a) when counsel is not told directly of contemplated perjury, a Motion to Withdraw is not justified by mere conjecture; (b) when counsel is told of contemplated perjury before trial, he may seek to withdraw, but the court should not be advised of the attorney's reason for so doing either directly or indirectly, but by using a Motion to Withdraw based upon "vague ethical considerations"; (c) when counsel learns of contemplated perjury during trial, for his own protection, and simultaneously, to preserve the attorney/client privilege, he should make a confidential notation, ideally signed by the client and witnessed by another attorney of his efforts to dissuade the client from committing perjury. Counsel should not inform trial court of the situation because of attorney/client privilege. Federal: see U.S. ex rel. Wilcox v. Johnson, 555 F.2d 115 (3rd Cir. 1977). e. Quashing indictments. An attorney for the defense is not required to point out defects in an indictment prior to trial. Op. No. 131, Texas Ethics Committee, June, 1956. However, failure to point out the defect may waive any jeopardy claim. "(Mid-trial objection waives) protection of the double jeopardy clause when . . . objections to the indictment are sustained." United States v. Kehoe, 516 F.2d 78 (5th Cir. 1975).
ETHICS AND ATTORNEY MISCONDUCT* f. Note, however, Art. 1.14(b), Tex. Code of Crim. Proc. which states, "If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other post conviction proceeding. Nothing in this article prohibits a trial court from requiring that an objection to an indictment or information be made at an earlier time in compliance with Article 28.01 of this code." g. Motion for instructed verdict. Still necessary to preserve certain error in Federal (note: FRCP Rule 29). In state, remember Art. 36.02, Tex. Code of Crim. Proc. which provides "The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears necessary to a due administration of justice". (emphasis added) Sufficiency of evidence is of constitutional dimension and can be raised for the first time on appeal with no objection necessary to preserve error. Burks v. U.S. 437 U.S. l (1978); Greene v. Massey 437 U.S. 19 (1978). h. Fundamentally defective charge. See Rodriguez v. State, 758 S.W.2d 787 (Tx. Crim. App. 1988). i. Useful discussion with numerous practical examples of "bounds of the law." Zunker, Zealous Representation Within the Bounds of the Law, 47 Tex. B. J. 530 (May 1984). C. Handling Otherwise.
Evidence,
Physical
or
Rule 3.04 Fairness in Adjudicatory Proceedings A lawyer shall not:
Page 35 (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; (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 urge on his analysis of the evidence and other
ETHICS AND ATTORNEY MISCONDUCT* 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. These new rules are essentially the same as DR 7-106 and DR 7-109. 1. Evidence
Handling Incriminating Physical
a. Lawyer's rights and obligations the same as those of the client. Problems in how to deal with physical evidence may be analyzed by placing the
Page 36 attorney "in the shoes of the client" i.e., the attorney has roughly the same privileges to deal with the evidence as the client has. For example, a client has the privilege against self-incrimination, and cannot be made to say anything incriminating. Consequently, the attorney, himself, has a privilege of confidentiality and cannot be forced to reveal what his client tells him, e.g., the location of physical evidence. However, the police can enter the defendant's home or office and search for physical evidence if they have probable cause. Since the purpose of a lawyer is to protect the rights which the law grants to the accused, and not to give the accused additional rights, physical evidence should not be hidden from the State by being placed in the lawyer's possession. Consequently, an attorney may be obligated to turn incriminating physical evidence in his possession over to the prosecution, or to withdraw from the case if the client refuses to agree to this tactic. Consider the following examples: (1) Attorney removed money and shotgun used in robbery from client's safe deposit box and placed in his own safe deposit box. Attorney suspended. In re Ryder, 263 F.Supp. 360 (E.D. Va. 1967). (2) "The attorney should not be a depository for criminal evidence (such as a knife, other weapons, stolen property, etc.) . . . It follows that the attorney, after a reasonable period, should, as an officer of the court, on his own motion turn the same over to the prosecution . . . The State, when attempting to introduce such evidence at the trial, should take extreme precautions to make certain that the source of the evidence is not disclosed in the presence of the jury and prejudicial error is not committed. By thus allowing the prosecution to recover such evidence, the public interest is served, and by refusing the prosecution an opportunity to disclose the source of the evidence, the client's privilege is preserved and a balance is reached between these conflicting interests. State ex rel. Sowers v. Olwell, 394 P.2d 681 (Wash. 1964).
ETHICS AND ATTORNEY MISCONDUCT* (3) Where the client delivered stolen items to the attorney's receptionist, neither the attorney nor his receptionist could be required to divulge the source of the stolen items which the attorney forwarded to the prosecution, and in order for the attorney-client privilege to be meaningfully preserved, the prosecution cannot introduce into evidence the fact that they received the items from the attorney's office. Anderson v. State, 297 So.2d 871 (Fla. 1974).
Page 37 575 P.2d 1200 (S.Ct. Alaska 1978); Hitch v. Pima County Superior Court, 708 P.2d 72 (Ariz. S.Ct. 1985). (7) Accountant's working papers, delivered to attorney by client in a tax fraud case, can be reached by government subpoena. Fisher v. United States, 425 U.S. 391 (1976). b.
(4) Although the attorney is obligated to turn the physical evidence, itself, over to the State, any information obtained by the attorney or the attorney's investigator during the course of the investigation that leads to the finding of the evidence (e.g. the location and physical position of the evidence at the time it is discovered) is privileged and need not be revealed. However, there is an exception to this rule,if in removing the evidence, the attorney or the attorney's investigator thus forever precluded the State from making the same discovery (as to a case where incriminating evidence is removed from the scene of the crime). In such event the testimony of the attorney or of the investigator as to the location and physical placement of the evidence at the time it was removed is not privileged and the attorney or the investigator may be called to testify about same. People v. Meredith, 631 P.2d 46, 175 Cal. Rptr. 612 (S.Ct. Cal. 1981). (5) Attorney's instructions to client by phone, "Get rid of the weapon and sit tight, and don't talk to anyone and I will fly down in the morning."was not a privileged statement.". . .No shield such as the protection afforded to communications between attorney and client shall be interposed to protect a person who takes counsel on how he can safely commit crime." Clark v. State, 261 S.W.2d 339 (Tex. Crim. App. 1953). (6) Defense attorney received incriminating physical evidence from a friend of the defendant. Held: Attorney obligated to turn the evidence over to the prosecution. Morrell v. State,
Federal Rule.
(1) Rule 16(b) of the FEDERAL RULES OF CRIMINAL PROCEDURE requires the defendant to permit inspecting and copying of documents, tangible objects, examinations and tests which he has in his possession or control and intends to introduce as evidence in chief at trial, if the defendant requests disclosure of the same items. Rule held constitutional in United States v. Bump, 605 F.2d 548 (10th Cir. 1979). (2) Rule 12.1 of the FEDERAL RULES OF CRIMINAL PROCEDURE requires a written notice of his intention to offer a defense of alibi if prosecutor makes written demand which states time, date and place at which the alleged offense was committed. The notice must state the specific place or places and names and addresses of witnesses. (a) Trial court did not abuse discretion by barring alibi witnesses because of defendant's untimely response to the government's requests for notice. The opinion noted the defendant's refusal to cooperate with appointed counsel. United States v. Barron, 575 F.2d 752 (9th Cir. 1978). (b) Failure to know address does not alleviate duty to disclose. United States v. White, 583 F.2d 899 (6th Cir. 1978).
ETHICS AND ATTORNEY MISCONDUCT* D. Rule 3.05 Maintaining Impartiality of Tribunal A lawyer shall not: (a) seek to influence a tribunal concerning a pending matter by means prohibited by law or applicable rules of practice or procedure; (b) except as otherwise permitted by law and not prohibited by applicable rules of practice or procedure, communicate or cause another to communicate ex parte with a tribunal for the purpose of influencing that entity or person concerning a pending matter other than: (1) in the course of official proceedings in the cause; (2) in writing if he promptly delivers a copy of the writing to opposing counsel or the adverse party if he is not represented by a lawyer; (3) orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer. (c) For purposes of this rule: (1) "Matter" has the meanings ascribed by it in Rule 1.10(f) of these Rules; (2) A matter is "pending" before a particular tribunal either when that entity has been selected to determine the matter or when it is reasonably foreseeable that entity will be so selected.
Page 38 Old DR 7-110(B) (2) and (3) provided: "In an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending except: in writing if he promptly delivers a copy of the writing to opposing counsel or to the adverse party if he is not represented by a lawyer. [or] Orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer." Note that the Disciplinary Rules of the Code of Professional Responsibility are quasi statutory materials, Touchy v. Houston Legal Foundation, 417 S.W.2d 625 (Tex. Civ. App. - Waco 1967), rev'd on other ground, 432 S.W.2d 690, appeal after remand, 475 S.W.2d 604, writ ref'd. In a recent Texas case, the appellate court vacated the sentence and remanded the cause for further sentencing and ordered the appointment of a new judge to hear the sentencing where the prosecutor had tendered to the judge and the judge had accepted a document containing information about the defendant and the motorcycle gang to which the defendant belonged. All of this was without the knowledge of the defense counsel and when defense counsel learned of the booklet the judge refused counsel the right to review the document. The appellate court pointed out that the court's reception of the evidence ex parte violates the State Bar of Texas's Rules of Professional Responsibility DR 7-110(B) (1) and (2) and violates the State Bar of Texas' Rules and Code of Judicial Conduct, Canon No. 3A(4) (1983). Tamminen v. State, 644 S.W.2d 209, 217 (Tex.App.--San Antonio 1983). Although, later the State's highest court overturned this remedy of remand and order of further proceedings as too severe; while affirming the basic conviction. See, 653 S.W.2d 799, 802-3 (Tex.Crim.App. 1983) (echoing, however, the Fourth Ct. App. findings with respect to the reprehensible conduct of the prosecutor and intolerable behavior of the trial court judge). See also Elbaor v. Smith, 845 S.W.2d 240 (Tex. 1992), Regarding "Mary Carter" agreements.
ETHICS AND ATTORNEY MISCONDUCT* See also, State v. Barker, 420 N.W.2d 695, 227 Neb. 842 (Neb. Sup. Ct. 1988). The Nebraska Supreme Court vacated and remanded the defendant's sentence holding that the sentencing judge should have recused himself as requested by the defendant following the judge's ex parte contact with members of the victim's family. E. Rule 3.06 Maintaining Integrity of Jury System (a) A lawyer shall not: (1) conduct or cause another, by financial support or otherwise, to conduct a vexatious or harassing investigation of a venireman or juror; or (2) seek to influence a venireman or juror concerning the merits of a pending matter by means prohibited by law or applicable rules of practice or procedure. (b) Prior to discharge of the jury from further consideration of a matter, a lawyer connected therewith shall not communicate with or cause another to communicate with anyone he knows to be a member of the venire from which the jury will be selected or any juror or alternate juror, except in the course of official proceedings. (c) During the trial of a case, a lawyer not connected therewith shall not communicate with or cause another to communicate with a juror or alternate juror concerning the matter. (d) After discharge of the jury from further consideration of a matter with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service.
Page 39 (e) All restrictions imposed by this Rule upon a lawyer also apply to communications with or investigations of members of a family of a venireman or a juror. (f) A lawyer shall reveal promptly to the court improper conduct by a venireman or a juror, or by another toward a venireman or a juror or a member of his family, of which the lawyer has knowledge. (g) As used in this Rule, the terms "matter" and "pending" have the meanings specified in Rule 3.05(c). Note: New State Bar Rule 3.06 expands old rules which used to cover this area in the ethical considerations (E.C.'s). F.
Rule 3.07 Trial Publicity
(a) In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not counsel or assist another person to make such a statement. (b) A lawyer ordinarily will violate paragraph (a), and the likelihood of a violation increases if the adjudication is ongoing or imminent, by making an extrajudicial statement of the type referred to in that paragraph when the statement refers to: (1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness; or the expected testimony of party or witness;
ETHICS AND ATTORNEY MISCONDUCT* (2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense; the existence or contents of any confession, admission, or statement given by a defendant or suspect; or that person's refusal or failure to make a statement; (3) the performance, refusal to perform, or results of any examination or test; the refusal or failure of a person to allow or submit to an examination or test; or the identity or nature of physical evidence expected to be presented; (4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; or (5) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial. (c) A lawyer ordinarily will not violate paragraph (a) by making an extrajudicial statement of the type referred to in that paragraph when the lawyer merely states: (1) the general nature of the claim or defense;
Page 40 (5) the scheduling or result of any step in litigation; (6) a request for assistance in obtaining evidence, and information necessary thereto; (7) a warning of danger concerning the behavior of a person involved, when there is a reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (8) if a criminal case: (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
(2) the information contained in a public record; (3) that an investigation of the matter is in progress, including the general scope of the investigation, the offense, claim or defense involved; (4) except when prohibited by law, the identity of the persons involved in the matter;
1. Lawyer's First Amendment Rights are Abridged When Acting as Counsel. a. First Amendment rights may be abridged when the expression threatens a significant state interest. An attorney may be disciplined for speech if it interferes with the State's significant interest in the process of administration of justice. NAACP v. Button, 371 U.S. 415 (1963).
ETHICS AND ATTORNEY MISCONDUCT* b. Examples. (1) In order to encourage a finding of insanity, defense counsel released information to newspapers regarding the horror and brutality of the murders committed by his client. In discussing this lawyer's unethical strategy, the court stated: "A defendant is entitled to be tried on the evidence and arguments before a jury in open court under the guidance of a judge." U.S. ex rel. Bloeth v. Denno, 313 F.2d 364 (2nd Cir. 1963) (2) In re Bailey, 273 A.2d 563 (Mass. 1971), the court found an unethical attempt to try the defendant in the news media where defense counsel (F. Lee Bailey) wrote a letter to the governor (and to 150 members of the legislature) which letter counsel knew would be picked up by the press. The letter charged that the state's case was rigged. Counsel was barred from practice in the state for one year. (3) Gentile v. State Bar of Nevada, 111 S.Ct. 2720 (1991). Rule which prohibits an attorney from making extra judicial statements that a reasonable person would expect to be disseminated by public communication if the attorney knew or should have known that the statements would have a substantial likelihood of materially prejudicing the trial does not violate the First Amendment. (4) Sanctions: see Susman Godfrey L.L.P. v. Marshall, 832 S.W.2d 105 (Tex. App.--Dallas 1992). (5) When lawyer’s comments violate local rules governing statements to media. U.S. v. Cutler, 58 F,3d 825 (2nd Cir. 1995) 2. When Not Acting as Counsel, a Lawyer Retains His First Amendment Rights.
Page 41 a. A lawyer issued a press statement criticizing the judge and the district attorney for dishonest and unethical conduct in a criminal case where the lawyer was charged with a crime. The Federal District Court in the Northern District of Texas permanently enjoined the grievance committee from issuing a reprimand. The court stated: "It cannot be seriously asserted that a private citizen surrenders his right to freedom of expression when he becomes a licensed attorney in this state."Polk v. State Bar of Texas, 374 F.Supp. 784 (1974). b. The prosecutor's action in criticizing a trial judge at a post-trial press conference ("The actions of the judge were unethical, illegal and grounds for reversible error") did not violate any disciplinary rule, but is questionable conduct under EC 8-6. State Bar of Texas Opinion 369 (Nov. 1974). c. Note: New rules hold prosecutor responsible to prevent persons employed or controlled by the prosecutor (i.e. police witnesses) from making an extrajudicial statement that the prosecutor would be prohibited from making. Rule 3.09(e). G.
Rule 3.08 Lawyer as Witness
(a) A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer's client, unless: (1) the testimony relates to an uncontested issue; (2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in
ETHICS AND ATTORNEY MISCONDUCT* opposition to the testimony; (3) the testimony relates to the nature and value of legal services rendered in the case; (4) the lawyer is a party to the action and is appearing pro se; or (5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer's client, unless the client consents after full disclosure.
Page 42 Note that the old DR would prohibit a lawyer from taking the stand to impeach a witness. Accordingly, counsel is wise to avoid talking with witnesses in the absence of a bystander. However, a 1926 Texas case (prior to enactment of the Code) holds that defense counsel is a proper witness in a criminal case to impeach with a prior inconsistent statement that testimony has been offered by the prosecution witness. Shannon v. State, 284 S.W. 586 (Tex. Crim. App. 1926). See also, Harrison v. State 788 S.W.2d 18 (No. 1048-89, (Tx. Crim. App., 1990); Stanley v. State, supra. The first time the Texas Supreme Court has recognized a new State Bar Rule in a case: Rule 3.08 -- Ayres v. Canales, 790 S.W.2d 554 (Tex. 1990). H.
Rule 3.09 Special Responsibilities of a Prosecutor The prosecutor in a criminal case shall:
(c) Without the client's informed consent, a lawyer may not act as advocate in an adjudicatory proceeding in which another lawyer in the lawyer's firm is prohibited by paragraphs (a) or (b) from serving as advocate. If the lawyer to be called as a witness could not also serve as an advocate under this Rule, that lawyer shall not take an active role before the tribunal in the presentation of the matter. Comments: Comment 1: A lawyer who is considering accepting or continuing employment in a contemplated or pending adjudicatory proceeding in which that lawyer knows or believes that he or she may be a necessary witness is obligated by this Rule to consider the possible consequences of those dual roles for both the lawyer's own client and for opposing parties.
(a) refrain from prosecuting or threatening to prosecute a charge that the prosecutor knows is not supported by probable cause; (b) refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonable efforts to be assured that the accused has been advised of any right to, and the procedure for, obtaining counsel and has been given reasonable opportunity to obtain counsel; (c) not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights; (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the
ETHICS AND ATTORNEY MISCONDUCT* accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and (e) exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07. 1. Codification of Prosecutorial Ethical Standards Standards of ethical conduct for prosecutors are codified in several different sources:
Page 43 but he also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all; and (3) in our system of criminal justice the accused is to be given the benefit of all reasonable doubt." c. American Bar Association Project on Standards for Criminal Justice: Standards Relating to the Prosecution Function and the Defense Function (approved draft, 1971). This volume contains a complete dialogue relating to the responsibilities and ethical duties of both prosecution and defense. d. National Prosecution Standards (National District Attorneys Association), (Chicago 1977). Standard 25.1 of the National Prosecution Standards, enacted by the prosecutors themselves, applies the Code of Professional Responsibility to prosecutors:
a. Article 2.01, TEX. CODE CRIM. PROC. ANN.: "It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secret witnesses capable of establishing the innocence of the accused." Note that it is the primary duty "to see that justice is done" that distinguishes the prosecutor's role from that of the defense attorney in the adversary system.
"A. To insure the highest ethical conduct and maintain the integrity of prosecution and the legal system, the prosecutor shall be thoroughly acquainted with and shall adhere to at all times to the Code of Professional Responsibility as promulgated by the American Bar Association and as adopted by the various state bar associations.
b. Old Code of Professional Responsibility. Only portions of the Code of Professional Responsibility specifically applied to prosecutors. The Old Ethical Consideration 7-13 provided:
B. Of the greatest importance to the functioning of the prosecutor is the ability to exercise the ‘independent professional judgment’ of Canon 5. The prosecutor shall be afforded the discretion necessary to exercise 'independent professional judgment' and this judgment shall be tempered by strict adherence to the Code of Professional Responsibility."
"The responsibility of a public-prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict. This special duty exists because: (1) the prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of governmental powers, such as in the selection of cases to prosecute; (2) during trial the prosecutor is not only an advocate
In a civil case where a police officer brought a suit against the San Francisco District Attorney’s Office for refusing to proceed on cases he investigated. The prosecutors concluding that the officer had given false testimony in a prior case, refused to proceed on his cases without independent
ETHICS AND ATTORNEY MISCONDUCT* corroboration of the facts that were the basis of his cases. The prosecutors were granted summary judgment in the officer’s suit for damages and injunctive relief against them. On appeal the 9th Circuit held that a prosecutor is entitled to absolute immunity for the decision not to prosecute. Roe v. City and County of San Francisco, 109 F.3d 578 (9th Cir. 1997) e. No affirmative duty on prosecutor to furnish information on prospective jurors where information is available to defense on voir dire. Linebarger v. State, 469 S.W.2d 165 (Tex. Crim. App. 1971); Enriguez v. State, 429 S.W.2d 141 (Tex. Crim. App. 1968); Martin v. State, 577 S.W.2d 490 (Tex. Crim. App. 1979); Redd v. State, 578 S.W.2d 129 (Tex. Crim. App. 1979). In Armstrong v. State, 897 S.W.2d 361 (Tex. Crim. App. 1995), the court held that prospective juror whose husband was best man in prosecutor's wedding and prosecutor was best man at her wedding, and was treasurer of campaign fund for prosecutor, but failed to disclose information in light of non-specific questions, was not reversible error. f. The State of Texas has recently codified the special responsibilities of the prosecutor. Under Art. 56.08. of the Texas Code of Criminal Procedure the prosecutor has certain duties to the complaining witnesses and crime victims including the following:
Page 44 (2) notification of the rights and procedures under this chapter; (3) suggested steps the victim may take if the victim is subjected to threats or intimidation; (4) notification of the right to receive information regarding compensation to victims of crime as provided by Subchapter B of this chapter, including information about: (A) the costs that may be compensated under Subchapter B of this chapter, eligibility for compensation, and procedures for application for compensation under Subchapter B of this chapter; (B) the payment for a medical examination for a victim of a sexual assault under Article 56.06 of this code; and (C) referral to available social service agencies that may offer additional assistance; (5) the name, address, and phone number of the local victim assistance coordinator; (6) the case number and assigned court for the case;
(a) Not later than the 10th day after the date that an indictment or information is returned against a defendant for an offense, the attorney representing the state shall give to each victim of the offense a written notice containing: (1) a brief general statement of each procedural stage in the processing of a criminal case, including bail, plea bargaining, parole restitution, and appeal;
(7) the right to file a victim impact statement with the office of the attorney representing the state and the pardons and paroles division of the Texas Department of Criminal Justice; and (8) notification of the right of a victim, guardian of a victim, or close relative of a deceased victim, as defined by Section 508.117, Government Code, to appear in person before a member of the
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Board of Pardons and Paroles as provided by Section 508.153, Government Code.
duty to advise an unrepresented criminal defendant with whom he deals to secure legal representation?
(b) If requested by the victim, the attorney representing the state, as far as reasonably practical, shall give to the victim notice of any scheduled court proceedings, changes in that schedule, the filing of a request for continuance of a trial setting, and any plea agreements to be presented to the court.
a. Old DR 7-104(A) (2) stated: "During the course of his representation of a client a lawyer shall not give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interest of his client." New Rules: Rule 4.03; Rule 3.09(c).
(c) A victim who receives a notice under Subsection (a) of this article and who chooses to receive other notice under law about the same case must keep the following persons informed of the victim's current address and phone number: (1) the attorney representing the state; and (2) the pardons and paroles division of the Texas Department of Criminal Justice if after sentencing the defendant is confined in the institutional division. (d) An attorney representing the state who receives information concerning a victim's current address and phone number shall immediately provide that information to the community supervision and corrections department supervising the defendant, if the defendant is placed on community supervision.
I. Frequently Encountered Instance of Conflict Between Prosecutor Conduct and Ethical Standards 1. Dealing with Unrepresented Criminal Defendants. Does an assistant district attorney have a
b. For a complete discussion of this problem, see Henvey, "The Ethics of Prosecutors Dealing with Unrepresented Criminal Defendants," VOICE FOR THE DEFENSE (Spring 1976). The defendant’s case was remanded for an evidentiary hearing in U.S. v. Amlani, 111 F.3d 705 (9th Cir. 1997) when the prosecutor repeatedly made disparaging remarks about the defendant’s counsel in front of him. The prosecutor allegedly made statements to the defendant and his wife that his defense counsel did not care about him, was incompetent, and could not prevent the defendant’s conviction. The Court observed that the crucial issue was not whether the defendant’s counsel was present, although his absence further aggravates the behavior of the prosecutor. The Court ultimately held that if the prosecutor truly made these statements to the defendant and the defendant acting on those comments retained different counsel for trial then this conduct constituted a violation of the defendant’s Sixth Amendment right and the defendant’s conviction should be vacated. 2. Holding Private Parleys with the Court about Pending Cases. "A person commits an offense if he privately addresses a representation, entreaty, argument or other communication to any public servant who exercises or will exercise official discretion in an adjudicatory proceeding with an
ETHICS AND ATTORNEY MISCONDUCT* intent to influence the outcome of the proceeding on the basis of considerations other than those authorized by law." Art. 36.04(a), TEX. CODE ANN. Query: Is a private parley with the court "authorized by law"?
Page 46 feasible opportunity. (c) It is unprofessional conduct for a prosecutor intentionally to avoid pursuit of evidence because he believes it will damage the prosecution's case or aid the defense."
3. Failure to Disclose Mitigating Evidence. a. Old DR 7-103(B) required disclosure of evidence known to the prosecutor "that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment." But cf., United States v. Bagley, 473 U.S. 667, 682, 105 Sup. Ct. 3375, 3383 (1987) wherein the court held that there was no reversible error unless the evidence withheld by the prosecutor was such that it produced a "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Thus, the DR, patterned after Brady is no longer in tune with the legal test for reversibility. b. Old EC 7-13 provided that "with respect to evidence and witnesses, the prosecutor has responsibilities different from those of the lawyer in private practice: the prosecutor should make timely disclosure to the defense of available evidence, known to him that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. Further, a prosecutor should not intentionally avoid pursuit of evidence merely because he believes it will damage the prosecutor's case or aid the accused." c. Section 3.11 of the ABA Standards Relating to the Prosecution Function provides: "(a) It is unprofessional conduct for a prosecutor to fail to make timely disclosure to the defense of the existence of evidence, known to him, supporting the innocence of the defendant. He should disclose evidence that would tend to negate the guilt of the accused or mitigate the degree of the offense or reduce the punishment at the earliest
d. Standard 13.2(c) of the National Prosecution Standards requires the prosecutor to disclose "any material or information within his actual knowledge and within his possession and control which tends to negate or reduce the guilt of the accused pertaining to the offense charged. "For a further discussion of Brady violations by prosecutors, see Rosen, Richard A., "Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger,: 65 N.C. L. Rev. 693 (1987).
Failure of prosecutors to disclose precise terms of plea agreements the state had with key witnesses, coupled with inaccurate statements in the state’s closing argument about the agreements and the witnesses’s motives for testifying, violated the state’s obligation under Brady v. Maryland, 373 U.S. 83 (1963) Wilson v. State, Md., No. 650-2000, 3/9/01. e. Ex parte Lewis, 587 S.W.2d 697 (Tex. Crim. App. (1979), holds that prosecutor's failure to disclose favorable evidence before entry of plea negated knowing and intelligent plea. f. Although not soliciting false evidence, if the State allows false evidence to go uncorrected, there is a failure of due process. Napue v. Illinois, 360 U.S. 264 (1959). g. When an investigating police officer willfully and intentionally conceals material information, regardless of his motivation and otherwise proper conduct of the state attorney, the policeman's conduct must be imputed to the State as
ETHICS AND ATTORNEY MISCONDUCT* a part of the prosecution team. Freeman v. Georgia, 599 F.2d 65, 69 (5th Cir. 1979). h. Court alludes to repeated warnings to government attorneys who fail to comply with Brady. United States vs. Starusko, 729 F.2d 256 (3rd Cir. 1984). i. United States v. Bagley, 105 S. Ct. 3382 (1985). Changes standard on appeal for remedy for prosecutor suppression of Brady material. No reversal "unless failure to disclose provides reasonable probability that result would have been different". j. United States v. Blueford,279 F.3d 1084 (9 Cir. 2001). Prosecution asking the jury to infer that the defendant had fabricated his alibi in certain telephone calls with witnesses in the weeks before the trial, when in fact the government had evidence contradicting its assertions, warranted reversal and a new trial. th
4. Improper Communication with Discharged Jurors: Old DR 7-108(D); New Rules: Rule 3.06(d). After discharge of the jury from further consideration of a matter with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service.
Page 47 Use of two conflicting theories concerning the identity of the shooter to convict both the Defendant and accomplice was prosecutorial misconduct. Stumpf v. Mitchell, 6th Cir. No. 01-3613 J. Remedies for Prosecutor's Unethical Conduct 1. Need for Action: Over 50 years ago, Roscoe Pound recognized the problem: "The number of new trials for grave misconduct of the public prosecutor which may be found in the reports throughout the land in the past two decades is significant. We must go back to the seventeenth century . . . to find parallels for the abuse and disregard of forensic propriety which threatens to become staple in American prosecutors." For a thorough discussion of disciplinary action taken against prosecutors for professional misconduct while performing various aspects of the prosecution function, see Annotation: Disciplinary Action Against Attorney for Misconduct Related to Performance of Official Duties as Prosecuting Attorney, 10 ALR 4th 605. Steele, Unethical Prosecutors and Inadequate Discipline, 38 SW L.J. 965 (1984).
5. Prosecutor a Witness (see also rule 3.08) Prosecutor who was arresting officer but had become a prosecutor by the time of trial was allowed to testify. He was not the prosecutor trying the case and the Court of Criminal Appeals said that the dual role did not affect a substantial right of the Appellant. Tex.Crim.App. No 1380-04, (6/15/05)
The Hyde Amendment. 18 U.S.C. §3006A In 1997, Congress enacted the Hyde Amendment in response to perceived instances of prosecutorial abuse by the United States. The provision that a district court may award attorney’s fees and other costs to a prevailing defendant “where the court finds that the position of the United States was vexatious, frivolous, or in bad faith. United States v. Knott, 256 F.3d 20, 28 (1st Cir. 2001); United States v. Gilbert, 198 F.3d 1293, 1299-1303 (11th Cir. 1999)
6. Prosecutors may not pursue different theories in separate trials of co-defendants
2. Tattle-Tale DR. Old DR 1-103(A); New rule 8.03 requires a lawyer possessing
ETHICS AND ATTORNEY MISCONDUCT* unprivileged knowledge of a violation of any disciplinary rule should report such knowledge to the proper tribunal. "The integrity of the profession can be maintained only if conduct of lawyer in violation of disciplinary rules is brought to the attention of the proper official. A lawyer should reveal voluntarily to those officials all unprivileged knowledge of conduct of lawyer which he believes clearly would be in violation of the disciplinary rules." Old EC 1-4, State Bar of Texas Code. IV.
NON-CLIENT RELATIONSHIPS
A. Rule 4.01 Truthfulness in Statement to Others In the course of representing a client, a lawyer shall not knowingly: (a)make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by a client. This new rule adopting of ABA Model Rule 4.1 provides that as to any third-person, a lawyer cannot make false statements or fail to disclose a material fact, as the comments explain: False Statements of Fact Comment 1:
Paragraph (a) of this Rule
Page 48 refers to statements of material fact. Whether a particular statement should be regarded as one of material fact can depend on the circumstances. For example, certain types of statements ordinarily are not taken as statements of material fact because they are viewed as matters of opinion or conjecture. Estimates of price or value placed on the subject of a transaction are in this category. Similarly, under generally accepted conventions in negotiation, a party's supposed intentions as to an acceptable settlement of a claim are viewed merely as negotiating positions rather than as accurate representation of material fact. Likewise, according to commercial conventions, the fact that a particular transaction is being undertaken on behalf of an undisclosed principal need not be disclosed except where non-disclosure of the principal would constitute fraud.
Failure to Disclose A Material Fact Comment 3: Paragraph (b) of this Rule also relates only to failures to disclose material facts. Generally, in the course of representing a client a lawyer has no duty to inform a third person of relevant or material facts, except as required by law or by applicable rules of practice or procedure, such as formal discovery. However, a lawyer must not allow fidelity to a client to become a vehicle for a criminal act or a fraud being perpetrated by that client. Consequently a lawyer must disclose a material fact to a third party if the lawyer knows that the client is perpetrating a crime or a fraud and the lawyer knows that disclosure is necessary to prevent the lawyer from becoming a party to that crime or fraud. Failure to disclose under such circumstances is misconduct only if the lawyer intends thereby to mislead. Comment 4: When a lawyer discovers that a client has committed a criminal or fraudulent act in the course of which the lawyer's services have been used, or that the client is committing or intends to commit any criminal or fraudulent act, other of
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these rules require the lawyer to urge the client to take appropriate action. See Rules 1.02(d), (e), (f); 3.03(b). Since the disclosures called for by paragraph (b) of this Rule will be "necessary" only if the lawyer's attempts to counsel his client not to commit the crime or fraud are unsuccessful, a lawyer is not authorized to make them without having first undertaken those other remedial actions. See also, Rule 1.05.
omission.
B. Rule 4.02 Communication with One Represented by Counsel
1. District Attorney interviewed defendant without attempting to obtain consent of defendant's court appointed attorney. The issue raised: Does a violation of a Disciplinary Rule constitute a violation of State law? The court ruled that when it comes to interpreting this issue in light of Art. 38.23 (the exclusionary rule of the C.Cr.P.) the Code of Professional Responsibility is not considered state law, and violation thereof will not bar introduction of that evidence at trial. Pannell v. State, 666 S.W.2d 96 (Tex. Crim. App. 1984)(en banc).
Note: The language of (c) explains an important distinction: (a) In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. (b) In representing a client a lawyer shall not communicate or cause another to communicate about the subject of representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. (c) For the purpose of this rule, "organization or entity of government" includes: (1) those persons presently having a managerial responsibility with an organization or entity of government that relates to the subject of the representation, or (2) those persons presently employed by such organization or entity and whose act or omission in connection with the subject of representation may make the organization or entity of government vicariously liable for such act or
(d) When a person, organization, or entity of government that is represented by a lawyer in a matter seeks advice regarding that matter from another lawyer, the second lawyer is not prohibited by paragraph (a) from giving such advice without notifying or seeking consent of the first lawyer.
2. A defendant can negotiate with an Assistant District Attorney just minutes before giving a videotaped confession, in apparent violation of Old DR 7-104 (see New Rule above-4.02) and the confession remains admissible. Gentry v. State, 770 S.W.2d 780, 790-92 (Tex. Crim. App. 1988) (en banc) (Court ruled that Appellant waived his right to counsel prior to the confession, and that a Sixth Amendment issue was not raised on appeal). 3. In light of the aforementioned cases, however, an interesting issue has been raised which may just circumvent and at least partially eliminate these unpunished problems of prosecutorial misconduct. In Holloway v. State, 780 S.W.2d 787, 791 (Tex. Crim. App. 1989)(en banc) the question raised: Was appellant, who had been indicted for capital murder of a Longview police officer, and who had been appointed counsel, capable of waiving his Sixth Amendment right to counsel before he submitted to questioning?
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Unlike the Fifth Amendment, the Sixth Amendment guarantees more than an entitlement to counsel upon invocation. Our adversary system is central to the administration of criminal justice. Parity between participants is critical to prevent unfair and unjust outcomes that would be tainted by one side's superiority... Extending Sixth Amendment right to counsel to certain pretrial "critical stages" was based upon concerns that equalization at trial could prove to be an empty gesture if the government could take advantage of an accused in the earlier phases of post-indictment investigations.
irrespective of whether there was waiver, as in Gentry, is not admissible in light of the Sixth Amendment protections discussed in Holloway.
Id. at 793.
4. District Attorney directed informant to attend and to secretly record proceedings between defendants and their attorney. This violated appellant's Sixth and Fourteenth Amendment rights. Brewer v. State, 649 S.W.2d 628 (Ct. Crim. App. 1983) (en banc).
The Court of Criminal Appeals goes on to say: "Governmental attempts to secure incriminating statements from an accused are among the pretrial phases to which the Supreme Court has extended Sixth Amendment protection." Id. Later in the case after an excellent discussion of the differences between the Fifth and Sixth Amendment rights to counsel, and how the Appellant's Sixth Amendment rights had indeed attached, the court uses the wording "police-initiated interrogation of an indicted person who has retained or has been appointed defense counsel." Id. at 795. Does it not follow that if the context of this decision is the beginning, "police-initiated" phase of the investigation, the Sixth Amendment explicitly protects the criminal defendant from contact by the Prosecutor? In fact the court ruled in the Holloway case that at the time of indictment and establishment of the attorney-client relationship, the Sixth Amendment right to counsel had attached and as such, "Appellant's unilateral waiver of his Sixth Amendment right was invalid despite appellant having received the required Miranda warnings." Id. at 796. (emphasis added). It seems now that a government/defendant dialogue like that which took place in Pannell,
Subsequent to Holloway, the Supreme Court held that an indicted defendant's, voluntary, knowing and intelligent waiver of his Sixth Amendment right to counsel may allow the prosecution to use statements made in police initiated interrogations to impeach the defendant at trial. Michigan v. Harvey 494 U.S. 344, 110 S.Ct. 1176, 108 L.Ed. 2d 293, 58 USLW 4288 (1990)
5. Cases abound wherein prosecuting attorneys or their agents have had conversations with represented defendants, and in most of such cases the courts have explicitly stated that such conduct violates the DRs, e.g., People v. Green, 274 N.W.2d 448 (Mich. 1979); United States v. Weiss, 599 F.2d 730, 739041 (5th Cir. 1979); United States v. Cross, 638 F.2d 1375, 1379 (5th Cir. 1981); Killian v. United States, 639 F.2d 206, 210 (5th Cir. 1981). A prosecuting attorney may not have a defendant in a criminal case examined by doctors during the course of the trial without the knowledge or consent of defendant's attorney." Tex. Op. No. 87 (Nov. 1953). 6. Federal prosecutors meeting with an indicted defendant without obtaining consent from the defendant's attorney caused sufficient prejudice to the defendant to justify a downward departure from the federal sentencing guidelines. (the Court departed downward three levels, not "for governmental misconduct" but, based on the prejudice suffered as a result of the government's conduct.) U.S. v. Lopez 60 Crim. L. Rep. (BNA) 1455 (1997).
ETHICS AND ATTORNEY MISCONDUCT* C. Rule 4.03 Dealing With Unrepresented Person
Page 51 witness or potential witness therein. V.
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. This provision pertains especially to prosecutors and their contact with victims and witnesses. This practice often called, "soaping," is now covered by this new rule, and adoption of ABA Rule 4.3. D. Rule 4.04 Respect for Rights of Third Persons A Texas lawyer could never act in the way described in section (b). But now the additional requirements of section (a) have been put in Rule 4.04. (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
LAW FIRMS AND ASSOCIATIONS
Rule 5.01 Responsibilities of a Partner or Supervisory Lawyers This new rule should be noted for its broad language of part (b): A lawyer shall be subject to discipline because of another lawyer's violation of these rules of professional conduct if: (a) The lawyer is a partner or supervising lawyer and orders, encourages, or knowingly permits the conduct involved; or (b) The lawyer is a partner in the law firm in which the other lawyer practices, is the general counsel of a government agency's legal department in which the other lawyer is employed, or has direct supervisory authority over the other lawyer, and with knowledge of the other lawyer's violation of these rules knowingly fails to take reasonable remedial action to avoid or mitigate the consequences of the other lawyer's violation. VI.
PUBLIC SERVICE
(b) A lawyer shall not present, participate in presenting, or threaten to present:
Rule 6.01 Tribunal
Accepting Appointments by a
(1) criminal or disciplinary charges solely to gain an advantage in a civil matter; or
A new rule regarding the court appointed attorney:
(2) civil, criminal or disciplinary charges against a complainant, a witness, or a potential witness in a bar disciplinary proceeding solely to prevent participation by the complainant,
A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:
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(1) representing the client is likely to result in violation of law or rules of professional conduct;
practice in an advertisement in the public media or in a written solicitation unless the advertising lawyer is competent to handle legal matters in each such area of practice.
(2) representing the client is likely to result in an unreasonable financial burden on the lawyer; or
(b) Rule 7.02(a)(5) does not require that a lawyer be certified by the Texas Board of Legal Specialization at the time of advertising in a specific area of practice, but such certification shall conclusively establish that such lawyer satisfies the requirements of Rule 7.02(a)(5) with respect to the area(s) of practice in which such lawyer is certified.
(3) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client. VII.
INFORMATION SERVICES
ABOUT
(c) A lawyer shall not advertise in the public media that the lawyer is a specialist except as permitted under Rule 7.04.
LEGAL
A. Rule 7.02. Communications Concerning a Lawyer's Services (a) A lawyer shall not make a false or misleading communication about the qualifications or the services of any lawyer or firm. A communication is false or misleading if it: (1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; (2) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate these rules or other law; (3) compares the lawyer's services with other lawyers' services, unless the comparison can be substantiated by reference to verifiable, objective data; (4) states or implies that the lawyer is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official: or (5 designates one or more specific areas of
(d) Any statement or disclaimer required by these rules shall be made in each language used in the advertisement or writing with respect to which such required statement or disclaimer relates; provided however, the mere statement that a particular language is spoken or understood shall not alone result in the need for a statement or disclaimer in that language. B. Rule 7.03 In-Person or Telephone Contact with Prospective Clients As a result of Shapero v. Kentucky Bar Ass'n., 486 U.S. 466, 108 S.Ct. 1916 (1988), Texas formulated the following rule: Rule 7.03 Prohibited Solicitations and Payments (a) A lawyer shall not by in-person or telephone contact seek professional employment concerning a matter arising out of a particular occurrence or event, or series of occurrences or events, from a prospective client or nonclient who has not sought the lawyer's advice regarding employment or with whom the lawyer has no family or past or present attorney-client relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. Notwithstanding the provisions of this paragraph, a lawyer for a qualified nonprofit organization may communicate with the organization's members for the purpose of educating
ETHICS AND ATTORNEY MISCONDUCT* the members to understand the law, to recognize legal problems, to make intelligent selection of counsel, or to use legal services. In those situations where in-person or telephone contact is permitted by this paragraph, a lawyer shall not have such a contact with a prospective client if: (1) the communication involves coercion, duress, fraud, overreaching, intimidation, undue influence, or harassment: (2) the communication contains information prohibited by Rule 7.02(a); or (3) the communication contains a false, fraudulent, misleading, deceptive, or unfair statement or claim.
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VIII. MAINTAINING THE INTEGRITY OF THE PROFESSION A.
Rule 8.02 Judicial and Legal Officials
Particular notice should be paid to (a) in the context of post-trial comments by an attorney to the press. (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory official or public legal officer, or of a candidate for election or appointment to judicial or legal office.
(b) A lawyer shall not pay, give, or offer to pay or give anything of value to a person not licensed to practice law for soliciting prospective clients for, or referring clients or prospective clients to, any lawyer or firm, except that a lawyer may pay reasonable fees for adverting and public relations services rendered in accordance with this Rule and may pay the usual charges of a lawyer referral service that meets the requirements of Article 320(d), Revised Statutes.
(b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Texas Code of Judicial Conduct.
(c) A lawyer, in order to solicit professional employment shall not pay, give, advance, or offer to pay, give, or advance anything of value, other than actual litigation expenses and other financial assistance as permitted by Rule 1.08(d), to a prospective client or any other person; provided however, this provision does not prohibit the payment of legitimate referral fees as permitted by paragraph (b) of this Rule.
Similar standard from the Old DRs:
(d) A lawyer shall not enter into an agreement for, charge for, or collect a fee for professional employment obtained in violation of Rule 7.03(a), (b), or (c). (e) A lawyer shall not participate with or accept referrals from a lawyer referral service unless the lawyer knows or reasonably believes that the lawyer referral service meets the requirements of Article 320(d), Revised Statutes.
(c) A lawyer who is a candidate for an elective public office shall comply with the applicable provisions of the Texas Election Code. B. Rule 8.03 Misconduct
Reporting Professional
(a) Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority. (b) Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority. (c) A lawyer having knowledge or suspecting that another lawyer or judge whose conduct the lawyer is required to report pursuant to
ETHICS AND ATTORNEY MISCONDUCT* paragraphs (a) or (b) of this Rule is impaired by chemical dependency on alcohol or drugs or by mental illness may report that person to an approved peer assistance program rather than to an appropriate disciplinary authority. If a lawyer elects that option, the lawyer's report to the approved peer assistance program shall disclose any disciplinary violations that the reporting lawyer would otherwise have to disclose to the authorities referred to in paragraphs (a) and (b). (d) This rule does not require disclosure of knowledge or information otherwise protected as confidential information:
Page 54 officer in conduct that is a violation of applicable rules of judicial conduct or other law; (7) violate any disciplinary or disability order or judgment; (8) fail to timely furnish to the Chief Disciplinary Counsel's office or a district grievance committee a response or other information as required by the Texas Rules of Disciplinary Procedure, unless he or she in good faith timely asserts a privilege or other legal ground for failure to do so; (9) engage in conduct that constitutes barratry as defined by the law of this state;
(1) by Rule 1.05 or (2) by any statutory or regulatory provisions applicable to the counseling activities of the approved peer assistance program.
(10) fail to comply with section 13.01 of the Texas Rules of Disciplinary Procedure relating to notification of an attorney's cessation of practice;
C. Rule 8.04 Misconduct
(11) engage in the practice of law when the lawyer is on inactive status or when the lawyer's right to practice has been suspended or terminated including but not limited to situations where a lawyer's right to practice has been administratively suspended for failure to timely pay required fees or assessments or for failure to comply with Article XII of the State Bar Rules relating to Mandatory Continuing Legal Education; or
This list has been greatly expanded in the new set of rules. (a) A lawyer shall not: (1) violate these rules, knowingly assist or induce another to do so, or do so through the acts of another, whether or not such violation occurred in the course of a client-lawyer relationship. (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 on other respects; (3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (4) engage in obstruction of justice;
conduct
constituting
(5) state or imply an ability to influence improperly a government agency or official; (6) knowingly assist a judge or judicial
(12) violate any other laws of this state relating to the professional conduct of lawyers and to the practice of law. (b) As used in subsection (a)(2) of this Rule, "serious crime" means barratry; any felony involving moral turpitude, any misdemeanor involving theft, embezzlement, or fraudulent or reckless misappropriation of money or other property; or any attempt, conspiracy, or solicitation of another to commit any of the foregoing crimes. In the context of misconduct subject to disbarment, but not conduct generally within the ambit of the "practice of law," such as what State Bar Rule 8.04 (a) (1)-(3) elucidates, see Minnick v. State Bar of Texas, 790 S.W.2d 87, 91-2 (Tex.App.-
ETHICS AND ATTORNEY MISCONDUCT* -Austin 1990, n.w.h.). IX.
CONTEMPT BY ATTORNEYS
A. Old Disciplinary Rule on Contempt 1. Old DR7-106 (C) states: In appearing in his professional capacity before a tribunal, a lawyer shall not: (1) State or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence. (2) Ask any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person. (3) Assert his personal knowledge of the facts in issue, except when testifying as a witness. (4) Assert his personal opinion as the justness of a cause. (5) Fail to comply with known local customs of courtesy or practice of the Bar of a particular tribunal without giving to opposing counsel timely notice of his intent not to comply. (6) Engage in undignified or discourteous conduct which is degrading to a tribunal. (7) Intentionally or habitually violate any established rule of procedure or of evidence. 2. ABA Defense Function Standard 4-7.1 (C) states that it is unprofessional conduct for a lawyer to engage in behavior or tactics purposely calculated to irritate or annoy the court or the prosecutor. 3. New Rules: The current state of Texas law is found in Rule 3.04. B. Civil Contempt/Criminal Contempt
Page 55 "Criminal contempt results from doing that which the court has prohibited; civil contempt generally results from failing to follow an order of the court.... [A] proceeding which has as it purpose to punish a condemner through fine or imprisonment is classified as criminal; the contempt is considered civil if the purpose of the sentence is coercive or remedial." Ex parte Krupps 712 S.W.2d 144, 149 (Tex. Crim. App. 1986) (emphasis supplied). If the contempt is designed to enforce a court order and terminates upon compliance, then the contempt is "civil"; but if the contempt is designed to vindicate the court for disrespect and does not terminate until penalty paid, then the contempt is criminal. Smith v. Sullivan 611 F.2d 1050 (5th Cir. 1980). There must be a willful or reckless state of mind for criminal contempt. In re Joyce 506 F.2d 373 (5th Cir. 1975). DUE PROCESS CONSIDERATIONS: Hicks v. Feiock, 485 U.S. 624, 108 S.CT. 1423, (1988). Proceeding and remedy are for civil contempt if punishment is remedial and for the complainants benefit; criminal contempt if sentence is punitive to vindicate court's authority. If relief is fine, remedial when paid to complainant, punitive when paid to court. If imprisonment, remedial if committed till performs act, punitive if limited to unconditional imprisonment for a definite period. If criminal, due process requires Constitutional protections, including proof beyond a reasonable doubt. Query: does this outlaw summary contempt? C. Texas Procedure 1. Criminal Contempt Punishment: Government Code 21.002 Contempt of Court: (b) $500 or not more than 6 months in the county jail or both. Private parties criminal contempt action is not double jeopardy for criminal acts underlying the contempt. Ex parte Williams, 799 S.W.2d 304 (Tex.Crim.App. 1990). 2. Must Have Hearing: Summary punishment for contempt of an officer of the court is precluded by what is now
ETHICS AND ATTORNEY MISCONDUCT* Government Code 21.002 (c): "Because of the procedure prescribed by Article 1911a V.A.C.S., an officer of the court may no longer be similarly punished even though his conduct deemed contumacious is before the court. The statute requires that an officer of the court be granted a hearing before another judge. Ex parte Martin, 656 S.W.2d 443 (Tex. Crim. App. 1982), see also Ex parte Krupps, 712 S.W.2d 144 (Tex. Crim. App. 1986) (drawing a distinction between procedures when a civilian contemptor is involved and when an officer of the court is involved). The result that a "civilian" is subject to summary punishment for direct contempt seems unfair, see Ex parte Daniels, 722 S.W.2d 707 (Tex. Crim. App. 1987). 3. Hearing:
Personal Recognizance Pending
Government Code 21.003(d): "A officer of a court...shall on proper motion filed in the offended court, be released on his own personal recognizance pending a determination of his guilt or innocence by a judge of a district court that is not the offended court." 4. Right to Habeas Corpus If No Personal Recognizance. If the offended court refuses to allow the lawyer to be released or to have the case heard by a different judge the lawyer is entitled to habeas corpus on those grounds. Ex parte Griffitts, 711 S.W.2d 225 (Tex. Sup. Ct. 1986). 5. Show Cause Order. The procedure to invoke the jurisdiction of the disinterested district court mentioned in Government Code 21.003(d) and to invoke the jurisdiction over the person of the offending attorney is to issue and personally serve on the offending attorney a show cause order specifying the offending conduct and appointing a time and place for hearing 6. Appeal from finding of contempt.
Page 56 There is no right to appeal from an order of contempt - the remedy is to file an original application for habeas corpus with the Court of Criminal Appeals. Ex parte Moorehouse, 614 S.W.2d 450 (Tex. Crim. App. 1981). 7. "Restraint" is Jurisdictional to Writ Application. A mere order of contempt will not justify habeas corpus - there must be restraint. Consequently, there can be no habeas corpus for a court's order to pay a fine for contempt. CineMatics, Inc. v. State, 578 S.W.2d 530 (Tex. Civ. App. 1979) no writ. One assumes that refusal to pay the fine will result in arrest from which the habeas corpus will then lie. 8. Bail Pending Hearing Court of Criminal Appeals on Habeas Corpus. To be eligible for habeas corpus attorney must be in "custody." Ex parte Eureste, 725 S.W.2d 214 (Tex. Crim App. 1986). Note that the personal recognizance bond mentioned in the Government Code expires once the order of contempt is entered and there can be no valid appeal bond because appeal is not the remedy. The Court of Criminal Appeals is the only court that can set bond, which it will consider upon issuing the writ of habeas corpus. Eureste and Article 11.32 TCCP (writ bond). Therefore, the wise attorney, prior to the hearing on the show cause order specified in Govt. Code 21.003(d) will make arrangements with an Austin lawyer to stand by the telephone on the date of the show cause hearing. If the offending lawyer is found in contempt and ordered to jail (See G id.) jailed lawyer calls Austin with instructions to "throw a writ" on Texas Court of Criminal Appeals. Must deliver original and eleven copies of Application for Writ of Habeas Corpus to Court of Criminal Appeals. Also file written request with Court of Criminal Appeals to be released on personal bond pending hearing on the writ per Art. 11.32 T.C.C.P. Hopefully the Court of Criminal Appeals will routinely grant the request for personal bond and instruct the Executive Administrator of the Court to communicate that order to the person
ETHICS AND ATTORNEY MISCONDUCT* holding the condemner in restraint. D. The Federal Procedure. 1. 18 USC 401. "A court of the United States shall have power to punish by fine or by imprisonment, at its discretion, such contempt of its authority, and none other, as -
a. Misbehavior of any person in its presence.... *** b. Disobedience or resistance to its lawful writ, process, order...command. 2. Rule 42. Two types of Contempt. a. Summary punishment if judge certifies that act was committed in the actual presence of the court and that court saw or heard the conduct. b. Others prosecuted on notice stating facts and setting time and place for hearing. If contempt involves disrespect of judge, that judge disqualified from setting. Condemner entitled to bail. 3. Warning Favored. Although not necessary, a warning is favored by the appellate courts before direct contempt power is exercised. U.S. vs. Brannon, 546 F.2d 1242, 1249 (5th Cir. 1977). 4. Summary Contempt Disfavored. Because of its lack of due process, Rule 42(a) must be used sparely and only in instances where the attorney's conduct tends to bring the administration of justice into disrepute and there is a need for immediate vindication of the dignity of the court. See generally, Attorney's Conduct as Justifying Summary Contempt Order Under Rule 42(a). 58 ALR Fed. 22.
Page 57 5. Appeal. a. Contrary to the common law rule, the federal rule is that judgments of contempt are appealable like other judgments - see cases discussed in Appealability of Contempt Adjudication or Conviction, 33 ALR 3d 448, 46778. b. Since 18 USC 401 sets no limit on the trial court's power, Circuit Court has power to review and to modify an excessive sentence. United States vs. Powers, 629 F.2d 619 (9th Cir. 1980). E. Examples of Contemptuous Conduct by Attorneys 1. Defendant's brother substituted at counsel table in an attempt to produce misidentification by the prosecution witness resulted in contempt. Ex parte Clayton, 350 S.W.2d 926 (Tex. Crim. App. 1961). 2. Failure to file appellate brief, as ordered by appellate court is contempt. In re Taylor, 674 S.W.2d 922 (Ct. App. 1984); In re Ganne, 643 S.W.2d 195 (Ct. App. 1982). 3. Conduct with court. Ex parte Pink, 746 S.W.2d 758 (Tex.Crim.App. 1988) failure to accept court appointment. State v. Jones (In re Banks), 726 S.W.2d 515 (Tenn. 1987). 4. See also, Attorney's Failure to Attend Court or Tardiness as Contempt, 13 ALR 4th 122; Attorney's Addressing Allegedly Insulting Remarks to Court During Course of Trial as Contempt, 68 ALR 3rd 273; Kilgarlin and Ozmun, Contempt of Court in Texas - What you Shouldn't Say to the Judge, 38 Baylor L. Rev. 291 (1986).
ETHICS AND ATTORNEY MISCONDUCT*
*Last updated January 2007
Page 58
ETHICS AND ATTORNEY MISCONDUCT information:
A. Confidentiality. One of the major rules of the State Bar is Rule 1.05: (a) "Confidential information" includes both "privileged information" and "unprivileged client information." "Privileged information" refers to the information of a client protected by the lawyerclient 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
Page 1
may
reveal
confidential
(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. (d) A lawyer also may reveal unprivileged client information: (1) When impliedly authorized to do so in order to carry out the representation. (2) When the lawyer has reason to believe it is necessary to do so in order to:
ETHICS AND ATTORNEY MISCONDUCT (i) effectively;
carry
out
the
representation
(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 (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). 1. Communication Between Attorney and Client. a. Definitions of Privileged Communication. The privilege applies only when the person claiming the privilege has as a client consulted an attorney for the purpose of securing a legal opinion or services and not for the purpose of committing a crime or tort and in connection with that consultation has communicated information which was intended to be kept confidential. McCormick, EVIDENCE, Sec. 91 pp. 187-88 (Cleary ed. 1972). Examples: (1) The attorney-client privilege prohibits the disclosure of the substance of communications made in confidence by a client to his attorney for the purpose of obtaining legal advice. United States v. Pipkins, 528 F.2d 559 (5th Cir. 1974).
Page 2 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. lawyer should not attempt to sell a law practice as a going business because, among other reasons, to do so would involve the disclosure of confidences and secrets. b. Tests of Confidentiality. (1) Evidentiary Test. (a) Federal. A communication is protected by the attorney-client privilege -- and we hold today it is protected from government intrusion under the Sixth Amendment -- if it is intended to remain confidential and was made under such circumstances that it was reasonably expected and understood to be confidential. Thus, disclosure made in the presence of third parties may not be intended or reasonably expected to remain confidential. United States v. Melvin, 650 F.2d 641 (5th Cir. 1981). Work product doctrine extends to statements made by the client to government agents while the attorney is present. Doe v United States, 282 F.3d 156 (2nd Cir. 2002) Attorney subpoenaed to testify before grand jury regarding statements made by former client to IRS. The court of appeals discussed the scope of the work product privilege and held that if the attorney’s testimony was being sought to gather evidence for an existing case it was protected. However, if statements made by the client were false and the IRS were seeking new charges for making false statements, the attorney’s testimony may not be protected. c. Agents of Attorney.
(2) The obligation of a lawyer to preserve the confidence and secrets of his client continues after the termination of his employment. Thus, a
(1) In appropriate circumstances the privilege may bar disclosures made by a client to
ETHICS AND ATTORNEY MISCONDUCT
Page 3
non-lawyer who had been employed as agents of an accused.
(e) Psychiatrist. United States v. Alverez, 519 F.2d 1036 (3d Cir. 1975).
(a) Secretaries, file clerks, telephone operators and messengers. United States v. Kovel, 296 F.2d 918 (2nd Cir. 1961); 8 Wigmore, Evidence, Sec. 2301.
(f) Polygraph Operator. Brown v. Trigg 791 F.2d 598 (7th Cir. 1986)
(b) Law student, paralegal or investigator. Dabney v. Investment Corp. of America, 82 F.R.D. 464 (E.D. Penn. 1979). (c) Accountants. (d) Interpreters. United States v. Kovel, supra. The rule of waiver does not apply in the case of communications made in the presence of potential co-defendants, co-defendants or their counsel in discussions of "team strategy." Continental Oil Co. v. United States, 330 F.2d 347, 350 (9th Cir. 1964); Hunydee v. United States, 355 F.2d 183, 185 (9th Cir. 1965); In re LTV Securities Litigation, 89 F.R.D. 595, 604 (N.D. Tex. 1981). The rule of waiver does not apply if the privileged communication is shared with a third person who has a common legal interest with respect to the subject matter of communication. Hodges, Grant & Kaufman v. U.S. Government, Dept. of Treasury, I.R.S., 768 F.2d 719 (5th Cir. 1985). (3) Email Communications with Clients. ABA Committee on Ethics and Professional Responsibility Formal Opinion 99-413 Protecting the Confidentiality of Unencrypted EMail A lawyer may transmit information relating to the representation of a client by unencrypted e-mail sent over the Internet without violating the Model Rules of Professional Conduct (1998) because the
(2) Not all Disclosures to Third Persons Result in Waiver. (a) Federal. The rule of waiver does not apply if the third persons are associates or clerical staff of the attorney. Himmelfarb v. United States, 175 F.2d 924, 939 (9th Cir. 1949) cert. denied, 338 U.S. 860 (1949). mode of transmission affords a reasonable expectation of privacy from a technological and legal standpoint. The same privacy accorded U.S. and commercial mail, land-line telephonic transmissions, and facsimiles applies to Internet email. A lawyer should consult with the client and follow her instructions, however, as to the mode of transmitting highly sensitive information relating to the client's representation. The Committee addresses in this opinion the obligations of lawyers under the Model Rules of Professional Conduct (1998) when using unencrypted electronic mail to communicate with clients or others about client matters. The Committee (1) analyzes the general standards that lawyers must follow under the Model Rules in protecting "confidential client information" n1 from inadvertent disclosure; (2) compares the risk of interception of unencrypted e-mail with the risk of interception of other forms of communication; and (3) reviews the various forms of e-mail transmission, the associated risks of unauthorized disclosure, and the laws affecting unauthorized interception and disclosure of electronic communications. Possible statutory protection for intercepted email communications. 18 U.S.C.A. §§ 2517. Authorization for disclosure and use of intercepted wire, oral, or electronic
ETHICS AND ATTORNEY MISCONDUCT communications (4) No otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this chapter [18 UCS §§§§ 2510 et seq.] shall lose its privileged character. Some type of notice of privilege on email communications, possibly a footer is recommended. A sample: INFORMATION CONTAINED IN THIS TRANSMISSION AND ALL ATTACHMENTS ARE INTENDED FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE AND MAY CONTAIN LEGALLY PRIVILEGED AND/OR CONFIDENTIAL INFORMATION. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPY OF THIS COMMUNICATION IS STRICTLY Exceptions: Client's identity may be within the privilege when revelation of the name will implicate the client in the criminal offense concerning which the client sought the attorney's legal advice. United States v. Hodge and Zweig, 548 F.2d 1347 (9th Cir. 1977 ). See also, Matter of Fine, supra at 204 (c) Attorney may be questioned as to their client's whereabouts and whether they have had contact with them. Matter of Grand Jury Subpoenas Served Upon Filed, 408 F. Supp. 1169 (S.D.N.Y. 1976). (d) Attorneys may be questioned regarding physical characteristics of the client, such as complexion, demeanor, dress, (intoxication?). United States v. Kendrick, 408 F. Supp 1169 (S.D.NY. 1976). Exception: In Texas the attorney-client privilege prevents an attorney from testifying as to his impressions of his client's mental capacity. See Pollard v. El Paso Nat'l Bank, 343 S.W.2d 909, 913 (Tex. Civ. App. 1961); Gulf Production Co. v.
Page 4 PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE PERMANENTLY DELETE THIS MESSAGE AND IMMEDIATELY NOTIFY US BY TELEPHONE. (4)
Matters that Attorney May Reveal.
(a) Communications made by client in presence of third parties. United States v. Blackburn, 446 F.2d 1089 (5th Cir. 1971). (b) Identity of the client is not normally within the privilege. Frank v. Tomlinson, 351 F.2d 384 (5th Cir. 1965); In re Grand Jury Proceedings in Matter of Fine, 641 F.2d 199, 204 (5th Cir. 1981). Attorney identification of corporation later implicated in drug smuggling activities was not privileged information; there is no connection shown between attorney's establishment of corporation for unnamed client and that client's involvement, if any, in subsequent criminal activities). Colquitt, 25 S.W.2d 989 (Tex. Civ. App. 1930). (e) As a general rule matters involving receipt of fees from a client are not privileged. United States v. Haddad, 527 F.2d 537 (6th Cir. 1975), cert. den., 425 U.S. 974 (1976). In re Grand Jury Subpoena, 926 F.2d 1423 (5th Cir. 1991) the court held that an attorney could be required to disclose the identity of a client who had paid legal fees for three drug smugglers, where the payment of the fees appeared to be part of a continuing drug smuggling conspiracy. In re January 1976 Grand Jury, 534 F.2d 719 (7th Cir. 1976), the court held that the payment of a fee is not a privileged communication since money itself is "nontestimonial." (f) The Fifth Circuit has held that work papers and tax records used by an attorney to prepare his client's tax returns are part of an accounting service and therefore do not come within the attorney-client privilege. United States v. Davis, 636 F.2d 1028, 1043 (5th Cir. 1981), cert. denied, 454 U.S. 862 (1981). See also, United States v. Cote, 456 F.2d 142 (8th Cir. 1972).
ETHICS AND ATTORNEY MISCONDUCT
d. Other Considerations. (1) It is a matter of common knowledge that the normal operation of a law office exposes confidential professional information to non-lawyer employees of the office, particularly secretaries and those having access to the files, and this obligates a lawyer to exercise care in selecting and training his employees so that the sanctity of all confidences and secrets of his client may be preserved. See generally, Former EC 4-5 and Former EC 4-6: (2) . . . a lawyer should be diligent in his efforts to prevent the misuse of such information by his employees and associates. Former EC 4-5. (3) "The obligation of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment." Former EC 4-6. (5) FISA and Privileged Communications. 28 C.F.R. §§501 permits the monitoring of attorney-client communications for inmates who Fourth, absent an imminent emergency, the government will have to seek court approval before any information from monitored conversations is used for any purpose; and Fifth, no information that is protected by the attorney-client privilege may be used for prosecution. The alarming portion of the regulations is 28 C.F.R. §§ 501.3(d)(2) which allows monitoring of attorney-client communications without notice upon the issuance of an ex parte court order. The NACDL has issued a formal opinion in which it takes the position that attorneys are ethically obligated to request notice of monitoring. The text of that opinion is as follows:
Page 5 are subject to special administrative measures based on a determination that unrestricted communication could result in death or serious bodily harm to others. The October 2001 amendment extended to this group of inmates only if the attorney general makes an additional finding that reasonable suspicion exists that a particular inmate may use communications with attorneys to further or facilitate acts of terrorism. The procedure are as follows: First, unless officials have obtained a prior court order permitting surreptitious monitoring, the government must notify the prisoner and his or her attorney of monitoring; Second, no privileged information will be retained by those monitoring the conversations( the only information retained will be unprivileged information that refers to threats); Third, the regulation appears to dictate that there be no connection between the monitoring team and any ongoing prosecution involving the prisoner; Formal Opinion 02-01: Monitoring of attorney-client communications The opinion notes that the issue of official monitoring of attorney-client conversations is not new, whether during visits or telephone calls; hence there is no dearth of legal and ethical authority on the problem. The problem of monitored telephones in police stations, jails and prisons is well-known. The issue came to public notoriety, however, in late 2001 with publication of the Attorney General's regulations governing monitoring of attorney-client communications of detainees suspected of terrorism offenses. 66 Fed.Reg. 55062 (Oct. 31, 2002); 28 C.F.R. §§ 501.3(d). The adoption of the regulations, which purport to provide advance notice of warrantless electronic monitoring and a "privilege team" to ensure that valid attorney-client communications are not misused by investigators, has also raised concerns about how to deal with secret court-
ETHICS AND ATTORNEY MISCONDUCT ordered Title III and Federal Intelligence Surveillance Act (FISA) surveillance of such communications. Many members recall that when the proposed regulations were published for public comment in the Federal Register Oct. 31, 2001, it was audaciously announced that the regulations were already in effect. The Justice Department, however, did allow for a 60-day public comment period. NACDL immediately appointed an ad hoc committee to draft its response, which is posted on NACDL's Web site www.nacdl.org under the Defending Attorney-Client Privilege tab of the "News and Issues" section. In drafting Opinion 0201, the Ethics Advisory Committee endorsed and reaffirmed the ad hoc committee report. It is the view of NACDL that such monitoring infringes defendants' First and Fourth Amendment rights, and probably most importantly, the Sixth Amendment rights to effective assistance of counsel and a fair trial. Moreover, lawyers, and criminal defense lawyers in particular, have the among the highest duties of loyalty and confidentiality to their clients of any profession. Recommendations In general, the opinion advises, when an attorney has a reasonable suspicion that his or her communications with clients in custody are being monitored by government officials, it is NACDL's position that the attorney must take affirmative action to safeguard confidential communications, because once the attorney or the client learns of the monitoring, the relationship is chilled and the Sixth Amendment is violated. "Accordingly, the criminal defense lawyer has a duty to seek to end the surveillance, discover the true extent of it, and find "Our opinion on this issue is the same as with jail monitoring in general: a criminal defense lawyer must seek disclosure of whether the government is wiretapping or eavesdropping on attorney-client jail communications.... Counsel should seek relief from the courts to assure confidentiality of attorney-client communications. Counsel should argue that past abuses by the government, coupled with attorney-client confidentiality and privilege under the Sixth Amendment, make secretly wiretapping and eavesdropping on attorney-client communications unconstitutional."
Page 6 a remedy for what has already happened," in order to protect the client's Sixth Amendment rights. "The [Sixth Amendment] right of the accused to a fair trial is undermined by actions of the government which interfere with the [Sixth Amendment] right to counsel," the opinion continues. "Thus, surreptitious monitoring of attorney-client conversations ultimately interferes with the right to a fair trial. Counsel not armed with the full facts from his or her client is seriously disadvantaged at trial to the prejudice of the client and the 'truth-seeking function' of a trial. Uninformed counsel is ineffective counsel, and, if the government is the cause of counsel being uninformed, the accused has been denied his fundamental right to a fair trial." The other type of monitoring criminal defense lawyers need to be mindful of is monitoring pursuant to a judicial electronic surveillance order issued pursuant to the federal wiretap act, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510 et seq.) or the Foreign Intelligence Surveillance Act. NACDL members have recently reported that they have asked the government whether their attorneyclient conversations are under electronic surveillance in jail, and the government's response has been that they are "not under surveillance under §§ 501.3(d)." Since electronic surveillance orders are by nature sealed, not unlike unexecuted search warrants, the government does not answer whether attorney and client are under court-ordered electronic surveillance. On the other hand: Indicted attorney’s request for notice as to whether the government is engaging in surveillance of attorney client communications relating to herself, her co-defendants or her other clients was denied by the district court. U.S. v. Sattar, 314 F.Supp.2d 279 (S.D.N.Y. 2004) In refusing the request the court said [Title III and FISA] “allow for surveillance without prior notification precisely because such monitoring can often only be effective if the targets are unaware
ETHICS AND ATTORNEY MISCONDUCT that they are being monitored.” (6) Procedural Aspects. (a) Assertion of the privilege. i. Federal: The privilege belongs to the client, not the attorney, In re Grand Jury Proceedings, 517 F.2d 666 (5th Cir. 1975); Wirtz v. Fowler, 372 F.2d 315, 332, n. 37 (5th Cir. 1966). Cf., United States v. Ponder, 475 F.2d 37, 39 (5th Cir. 1973) (though Ponder court did not give this rule as a reason, it held for other reasons that an attorney could not claim in response to IRS summons of his personal financial records that the number and size of the legal fees he had received from clients were confidential). But see, Fisher v. United States, 425 U.S. 391 (1976) where the Court acknowledged that the privilege may be raised by the attorney.
Page 7 identity of him who foots the bill - and this even though he be a client of the attorney and the attorney is unaware of the improper arrangement. Such an arrangement, of course, need only be an effective one, need not be expressed, and might in a proper case be found to arise. In re Grand Jury Proceedings in the Matter of Pavlick, 680 F.2d 1026 (5th Cir. 1982). It seems that even cursory investigations by inside counsel may be subject to the crime-fraud exception. For example, where corporate counsel communicated with employees regarding their immigration status while they were not authorized to work in the United States; these mere communications were held to be “in furtherance” of criminal activity. Therefore the Court held that the communications were subject to disclosure under the crime fraud exception. In re: Grand Jury Proceedings (Appeal of the Corporation) 87 F.3d ( (9th Cir. 1996) 377
b) Burden of Proof.
e . Question of Law.
i. Federal: The burden of proof to demonstrate an attorney-client relationship is on the person asserting the privilege. C. McCormick, Evidence, Sec. 88, p. 179 (Clery ed. 1972), cited in United States v. Kelly, 569 F.2d 928, 938 (5th Cir. 1978). Burden of proof to disprove waiver of privilege is also on party claiming the privilege. Weil v. Investment/Indicators, Research and Management, Inc., 647 F.2d 18, 24 (9th Cir. 1975). See also, VIII J. Wigmore, Evidence Sec. 2292 p. 554 (McNaughton rev. 1961). However, see Pavlick, infra: Where the government makes a prima facia showing that an agreement to furnish legal assistance was part of a conspiracy, the crime or fraud exception applies to deny a privilege to the An order enforcing a grand jury subpoena or compelling testimony is not appealable. In re Grand Jury Proceedings (Fine), 641 F.2d 199, 201 (5th Cir. 1981). Claims of privilege are usually litigated at contempt proceedings for refusal to testify and the most common method of review of such orders is
(1) Federal: Existence of the privilege is for the court to determine, without the intervention of a jury. Rule 104(a), F.R.Evid. f. Procedure for Federal Judicial Review of Attorney-Client Privilege Claims in Summons and Subpoena Situations. An order enforcing an IRS summons under 26 U.S.C. Sec. 7602 is appealable. Claims of privilege are ordinarily not heard at this stage, but such claims with respect to documents are permitted in the 5th Circuit. United States v. Davis, 636 F.2d 1028, 1039 (5th Cir. 1981). by appeal of the contempt order. United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 29 L.Ed. 85 (1971). Attorney/client privilege and Fifth Amendment do not bar government deposition of attorney as a witness in a property forfeiture. U.S. V. Saccoccia, 63 F.3d 1 (1st Cir. 1995)
ETHICS AND ATTORNEY MISCONDUCT
The 5th Circuit recognizes a unique procedure for judicial review of privilege claims where the attorney is unwilling to risk contempt. In such cases, the anonymous 3rd party client - the real person interested in claiming the privilege - may intervene in the enforcement proceedings. The order of enforcement is immediately appealable by the client-intervenor. In re Grand Jury Proceedings in Matter of Fine, supra, at 201-202. Of course, the aggrieved client can always move at his subsequent trial for exclusion of any evidence obtained in violation of his statutory or constitutional rights. United States v. Ryan, supra, at 532, n. 3. Partial disclosure equals waiver: In Re: Columbia/HCA Healthcare Corporation Billing Practices, 293 F.3d 289, (6th Cir. 2002). Sixth Circuit ruled that despite the existence of a confidentiality agreement between the company and the government, disclosed materials were not shielded from discovery in litigation brought by private parties. B.
Conflicts of Interest: General Rules.
This rule adopts the language of Rule 1.7 of the ABA Model Rules of Professional Conduct. 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: (1) involves a substantially related matter in which that person's interests are A fundamental principle recognized by paragraph (a) is that a lawyer may not represent opposing parties in litigation. The term "opposing parties" as used in this Rule contemplates a situation where a judgment favorable to one of the
Page 8 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 extent, 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. Comment Two elaborates on loyalty: parties will directly impact unfavorably upon the other party. Moreover, as a general proposition loyalty to a client prohibits undertaking representation directly adverse to the representation of that client in a substantially
ETHICS AND ATTORNEY MISCONDUCT related matter unless that client's fully informed consent is obtained and unless the lawyer reasonably believes that the lawyer's representation will be reasonably protective of that client's interests. Paragraphs (b) and (c) express that general concept. 1. Representing Co-Defendants Where There is a Conflict of Interest is a Violation of the Right to Effective Assistance of Counsel Guaranteed by the Sixth Amendment. a. The mere fact that one lawyer represents more than one co-defendant does not automatically establish a conflict of interest. Burger v. Kemp, 483 U.S. 776(1987). However, in a capital murder case since the procedure for imposing the death penalty focuses on subjective considerations of the individual offender, representing co-defendants in such a case has been held to be per se ineffective counsel by the California Supreme Court in People v. Chacon, 73 Cal. Rptr. 10, 447 P.2d 106 (S.Ct. Cal. 1968). b. Most courts utilize the "substantial relationship test" In resolving conflict of interest issues relating to former clients. In Duncan v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 646 F.2d 1020 (5th Cir. 1981), cert. denied, 454 U.S. 895, 102 S.Ct. 394 (1981), the Court held: Thus, to disqualify his former counsel, the moving party must prove not only the existence of prior attorney-client relationship but also that there is a genuine threat that confidences revealed to his former counsel will be divulged to his present adversary. The party seeking disqualification is not required, however, to point to specific confidences revealed to his former attorney that are relevant to the pending case. Instead, he "need only to show that the matters embraced within the pending suit are substantially related to the matters or cause of
Page 9 action wherein the attorney previously represented him." Wilson P. Abraham Const. Corp. v. Armco Steel Corp., 559 F.2d 250, 252 (5th Cir. 1977); In re Yarn Processing Patent Validity Litigation, 530 F.2d 83, 89 (5th Cir. 1976); T.C. Theater Corp. v. Warner Bros. Pictures, 113 F.Supp. 265, 268 (S.D.N.Y. 1953). Party seeking disqualification of opposing counsel bears the burden of proving "substantial relationship". Once established, the court will irrefutably presume that relevant confidential information was disclosed. In re American Airlines, Inc., AMR, 972 F.2d 605 (5th Cir. 1992). Denial of a motion to disqualify is not an appealable collateral order, and the standard of review on appeal is abuse of discretion. In re Dresser Industries, Inc., 972 F.2d 540 (5th Cir. 1992). See also Insurance Co. of North America v. Westcapden, 794 S.W.2d 812 (Tex. App.– Corpus Christi 1990); NCNB Texas National Bank v. Coker, 765 S.W.2d 398 (Tex. 1989). c. Nothing in the Sixth Amendment requires trial courts, themselves, to initiate inquiry into the propriety of multiple representation. Absent special circumstances, trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accepted such risk of conflict. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708 (1980). Limitation: Conflict between lawyer’s personal interests and those of client may not be as clear. See Beets v. Collins, 986 F.2d 1478 (5th Cir. 1993). d. However, trial of a defendant without adequate representation by counsel is fundamentally unfair and the requisite government involvement for Fourteenth Amendment purposes is present whether or not the responsible governmental official is aware of the conflict. Stephens v. United States, 595 F.2d 1066, 1069 (5th Cir. 1979); Cuyler v. Sullivan, 446 U.S. 335
ETHICS AND ATTORNEY MISCONDUCT
Page 10
(1980). e. In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance. Cuyler v. Sullivan, supra. f. Once the defendant demonstrates that his counsel had a conflict of interest and that said conflict adversely affected the lawyer's performance, he need not demonstrate any specific prejudice to obtain relief. Cuyler, supra. g. The Sixth Amendment may arise from conduct of the governments attorneys.The defendant’s case was remanded for an evidentiary hearing in U.S. v. Amlani, 111 F.3d 705 (9th Cir. 1997) when the prosecutor repeatedly made disparaging remarks about the defendant’s counsel in front of him. The prosecutor allegedly made statements to the defendant and his wife that his defense counsel did not care about him, was incompetent, and could not prevent the defendant’s conviction. The Court held that if the prosecutor truly made these statements to the defendant and the defendant acting on those comments retained different counsel for trial then this conduct constituted a violation of the defendant’s Sixth Amendment right and the defendant’s conviction should be vacated. 2.
stand and elicits testimony that inculpates other defendants likewise represented by said counsel, there is both a conflict of interest and a showing that said conflict adversely affected the lawyer's performance and the case is reversed. Gonzalez v. State, 605 S.W.2d 278 (Tex. Crim. App. 1980). c. Where defendant's attorney concurrently represents a prosecution witness at trial, or where attorney has previously represented such witness on other occasions, there is a conflict of interest and a showing that said conflict adversely affects performance. United States v. Martinez, 630 F.2d 361 (5th Cir. 1980). d. A lawyer representing a murder defendant may stay on a s counsel even though the defense will include pointing the finger at a key state witness whom the same lawyer defended in a criminal case a decade earlier. Daniels v. State, 17 P.3d 75( Alaska, Ct. App. 2001) The American Bar Association Committee of Professional Ethics recognizes that: [T]here are substantial reasons against treating the State as a private enterprise. The Committee has ruled that other Government lawyers should not be disqualified from handling matters in which an associate was involved in his or her former private practice. The Committee concluded that when an individual attorney is separated from any participation in matters affecting his former client, the vicarious disqualification of a Government department is not necessary or wise.
Examples:
a. A and B, co-defendants to murder, represented by same court-appointed lawyer. Testimony developed that B may have perpetrated the actual killing, but the lawyer was prevented from exploiting that testimony to mitigate A's case, because the more he mitigated A's case, the harsher B's case appeared. Under these circumstances the prejudice was obvious and the case was reversed. Foxworth v. Wainwright, 516 F.2d 1072 (5th Cir. 1975). b. Where trial counsel represents all parties charged with joint possession of a large quantity of marijuana and trial counsel puts one of said parties on the witness
Id. 3.
"Chinese Walls"
A "Chinese Wall" is a device erected by a law firm intended to "quarantine" a new member with confidential information received from an
ETHICS AND ATTORNEY MISCONDUCT adversary of one of the firm's clients. a. Conflict of interest where defense attorney carries on covert intimate b. Classic conflict where defense counsel represents both the defendant and the defendant's wife who is the beneficiary of the victim's life insurance policy. McConico v. Alabama, 919 F.2d 1543 (11th Cir. 1990) c. Conflict created by nonattorney (staff member). Occidental Chemical Corp. v. Brown, 877 S.W.2d 27 (Tex. App.-Corpus Christi 1994). d. District Attorney can prosecute a criminal case where an Assistant D.A. is the complainant and fact witness. Stanley v. State, 880 S.W.2d 219 (Tex. App.--Ft. Worth 1994). e. Client who gives attorney a bad check or stolen goods does not create a conflict of interest per se so as to avoid a plea. DeLoro v. State, 712 S.W.2d 805 (Tex. App.– Houston[1st Dist.] 1986). 4. Potential Conflict of Interest Can Be Waived By Co-Defendants. If each client consents to the representation after full disclosure of the possible effect of such representation on the exercise of the lawyer's independent and professional judgment on behalf of each client, then the lawyer may represent the multiple parties to the offense. Old DR 5-105(C). 5.
Procedure in Trial Courts. a. State Courts Unless a state trial judge knows or reasonably should know that a particular conflict exists, cf. Wood v. Georgia, 450 U.S. 261, 272 (1981), the federal constitution does not require a state trial judge to sua sponte inquire into the existence of any potential or actual conflicts due to multiple or successive representation. Cuyler v. Sullivan, 446 U.S. 335, 346-47 (1980); Calloway v. State, 699 S.W.2d 824 (1985). The Texas
Page 11 relationship with Defendant's wife during murder trial. California v. Singer, 275 Cal. Rptr. 911 (Cal. App. 1. Dist. 1990) Courts have repeatedly held that trial counsel was the primary responsibility for advising the prospective clients of possible conflicts of interests in their positions. Gonzalez v. State, 605 S.W.2d 278 (Tex. Crim. App. 1980); Pete v. State, 533 S.W.2d 808 (Tex. Crim. App. 1976). Where, however, an attorney or the client timely objects to multiple or successive representation a state trial judge must make an inquiry into the existence of any such conflict and take appropriate measures to ensure that effective assistance of counsel is not impaired due to an actual conflict. Holloway v. Arkansas, 435 U.S. 475, 482 (1978); Cuyler v. Sullivan, supra. An actual conflict exists if "counsel's introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense of another defendant whom the same counsel is representing." Baty v. Balkcom, 661 F.2d 391, 395 (5th Cir. 1981). See also, Annotation, Multiple Representation of Defendants in Criminal Cases as Violative of the Sixth Amendment Right to Counsel - Federal Cases, 65 L.Ed.2d 907-983 (1980). The Texas Courts have held that an actual and significant conflict of interest exists where "one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of a co-defendant whom counsel is also representing." Ferguson v. State, 639 S.W.2d 307 (Tex. Crim. App. 1982); Amaya v. State, 677 S.W.2d 159, 162 (Tex. App. 1 Dist. 1984). b. Federal Courts Although the constitutional considerations are fully applicable to federal courts, the federal courts have historically placed a duty upon federal trial judges to ensure that defendants are afforded conflict-free counsel. See Notes of Advisory Committee on Rules, 1979. That duty was codified in 1979 in Rule 44(c), Federal Rules of Criminal Procedure, which states: Joint Representation. Whenever two or
ETHICS AND ATTORNEY MISCONDUCT more defendants have been jointly charged pursuant to Rule 8(b) or have been joined for trial pursuant to Rule 13, and are represented by the same retained or assigned counsel or by retained or assigned counsel who are associated in the practice of law, the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of his right to the The Fifth as well as the Fourth and Eleventh Circuits have held that even where a trial court fails to comply fully with the mandate of Rule 44(c), a defendant must still demonstrate an actual conflict of interest before an alleged Sixth Amendment violation will result in a reversal. See United States v. Arias, 678 F.2d 1202, 1205 (4th Cir. 1982), cert. denied, 459 U.S. 910, 103 S.Ct. 218 (1983); United States v. Benavidez, 664 F.2d 1255, 1258-59 (5th, Cir), cert. denied, 457 U.S. 1121 (1982), United States v. Alvarez, 696 F.2d 1307, 1309-10 (11th Cir.), cert. denied, 461 U.S. 907, 103 S. Ct. 1878 (1983). These opinions recognize that the inquiry and advice provided for by Rule 44(c) are not ends in themselves, but a procedure designed to prevent conflicts of interest. This interpretation of Rule 44(c) is consistent with Holloway, supra and Cuyler, supra. However, see Cole v. White, 376 S.E.2d 599, 44 Crim. L. Rep. (BNA) 2350 (1989) where West Virginia Appellate Court in interpreting their state's Rule 44(c) equivalent held that the trial court's failure to give warnings about joint representation requires a new trial if conflict "likely" existed. The most important issues embodied within Rule 44(c) are: (1) what action the trial court can take to protect each defendant's right to counsel; and (2) whether the Government can initiate a Rule 44(C) hearing. The answers to these issues are discussed below in connection with disqualification of defense counsel. 6. Counsel.
Disqualification
of
Defense
a. Federal Prosecutor's Motions To Disqualify Defense Counsel. The Federal Government has embarked
Page 12 effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant's right to counsel. upon a course of conduct designed to thwart a client's constitutional right to counsel and his right to waive his right to conflict-free counsel. See Margolin & Culver, Pretrial Disqualification of Criminal Defense Counsel, 20 AM. Crim. L. Rev. 227 (1982) (hereinafter cited as M&C, supra). The Government's attempts have occurred during grand jury investigations. See e.g., In re Gopman, 531 F.2d 262 (5th Cir. 1976); In re Grand Jury, 536 F.2d 1009 (3rd Cir. 1976); and cases cited at M&C, supra at 234 n. 37 and accompanying text. The Government's attempts have also occurred after indictment but prior to trial. See e.g., United States v. Garcia, 517 F.2d 272 (5th Cir. 1975); United States v. Mahar, 550 F.2d 1005 (5th Cir. 1977); United States v. Agosto, 675 F.2d 965 (8th Cir. 1982). While Rule 44(c), discussed above, certainly applies to a post-indictment, pretrial situation, thereby mandating that trial courts make appropriate inquiries into the existence of conflicts of interest, it is not clear that Rule 44(c) applies to grand jury proceedings. Yet, the absence of specific statutory authority under Rule 44(c) has not deterred prosecutors or the courts from disqualifying defense counsel who attempt to represent witnesses or targets summoned before grand juries. In re Gopman, supra, illustrates the problem. There, the Fifth Circuit held that, based on alleged conflicts of interest, the government had standing to move to disqualify an attorney who represented certain labor unions and official of those unions who were summoned before the grand jury. The Fifth Circuit also held that federal district judges have jurisdiction to consider governmental motions to disqualify. The Fifth Circuit went on to uphold the district court's order disqualifying the attorney and noted that the attorney "had placed himself in a situation where
ETHICS AND ATTORNEY MISCONDUCT conflicting loyalties could affect his professional judgment." Id. at 267. The Court noted the importance of a client's sixth Amendment right to counsel of his choice, but added that it must yield to an overriding public interest. Id. at 268. The Court concluded by stating: "We hold only that the public interest in a properly functioning judicial system must be allowed to prevail in the case presently before us. In the context of post-indictment, pretrial motions to disqualify, a defendant's waiver of conflict-free counsel and his right to counsel of his choice should prevail. In the context of grand jury investigations, however, a witness has no Fifth or Sixth Amendment right to counsel. See e.g., Miranda v. Arizona, 384 U.S 436 (1966); Kirby v. Illinois, 406 U.S. 682 (1977). Thus, since it is impossible to waive a right you do not possess, logically a witness should not rely upon a waiver of the right to conflict-free counsel as a device to overcome a motion to disqualify his counsel at the grand jury. See Rule 44(c), Federal Rules of Criminal Procedure. b. Consistent with the Sixth Amendment, a District Court has great latitude in refusing waivers of conflict of interest not only in cases where actual conflict is demonstrated, but also where potential conflict may burgeon into actual conflict as the trial progresses. Wheat v. U.S. 108 S. CT. 1692 (1988). However, state constitutions may be used to grant greater rights than the U.S. Constitution, and may limit the trial court's power to disqualify counsel because of conflict. Alcocer v. Superior Court, 206 Cal. App. 3d 951, 254 Cal. Rptr. 72 (Cal. App. 2 Dist. 1988), 44 Crim. L. Rep. (BNA) 2284. c. A government's motion for disqualification of defense counsel may not be grounded on appearance of impropriety. A showing of an actual conflict of interest is required. U.S. v. Washington, 797 F.2d 1461 (9th Cir. 1986); McFarlan v. District Court, 718 P.2d 247 (Colo. 1986). d.
Appealability
of
Motions
To
Page 13 Appellant had placed himself in a clear conflict situation from which the district court had the duty to rescue both the lawyer and his clients." Id. at 268. While there may be logic to the Gopman analysis, it is difficult to reconcile that analysis with the Sixth Amendment right to counsel and the right to waive conflict-free counsel. Disqualify Defense Counsel. As of February 21, 1984 an order disqualifying a defense attorney from representing a witness or target before the grand jury or from representing a defendant under indictment is not immediately appealable under 28 U.S.C. sec. 1291. Flanagan v. United States, 104 S.Ct. 1051 (1984). Flanagan resolved the prior conflict among the circuits as to this issue. The issue of whether the government may appeal a denial of a motion for disqualification is still unresolved. Although the Supreme Court has held that there is no right to appeal an order denying a motion for disqualification in a civil case, pursuant to 28 U.S.C. sec. 1291, Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981), the Court declined to express any view on the appealability of such an order in a criminal case. Firestone, supra at 372 n. 8. See also In re Dresser Industries, supra. 7. Tactical Evaluation of Facts.
Considerations:
a. Do the facts permit the attorney to fashion a consistent defense for both potential clients? If not, no multiple representation should be attempted. United States v. Marshall, 488 F.2d 1169 (9th Cir. 1973) (Retained attorney represented D1 and D2 in a conspiracy to distribute amphetamine prosecution. D1's only possible defense was entrapment, and attorney pursued this line. Entrapment unavailable to D2 since he never dealt with law enforcement personnel. Held: D2
ETHICS AND ATTORNEY MISCONDUCT had ineffective counsel). b. Do the facts suggest possible inconsistent defenses? (1) If not, multiple retainer is possible. Courtney v. United States, 486 F.2d 1108 (9th Cir. 1973) (Retained attorney represented D1 and D2 in obstruction of justice prosecution. Both testified as to same facts regarding discussions with complaining witness); United States v. Valenzuela, 521 F.2d 414 (8th Cir. 1975) (Retained attorney represented D1 and D2 in (1) U. S. ex rel. Horta v. DeYoung, 523 F.2d 807 (3rd Cir. 1975) (Retained attorney represented D1-D3 in an unlawful lottery prosecution. Government witnesses testified males were present at lottery operation. Held: Counsel ineffective as to D3, a female. Counsel failed to pursue distinction with witnesses and failed to ask for cautionary instructions). (2) Foxworth v. Wainwright, 516 F.2d 1072 (5th Cir. 1975) (Appointed counsel represented D1 and D2 in murder prosecution. Government medical witness suggested victim died from beating. D2 was not involved in beating victim. Motives established for D1 and another defendant only. Held: Counsel ineffective as to D2. Counsel failed to pursue distinction). b. Will the attorney be able to effectively respond to events during course of trial? (1) Larry Buffalo Chief v. State of South Dakota, 425 F.2d 271 (8th Cir. 1970) (Retained attorney represented D1 and D2 in murder prosecution. Unanticipated testimony of only disinterested witness failed to identify assailants as wearing light colored shirts. D2 wore dark long sleeved coat. Court effectively returned case to state court to clarify a confused record). (2) Craig v. United States, 217 F.2d 355 (6th Cir. 1957) (Retained counsel represented D1 and D2 in tax fraud prosecution. No apparent conflict when trial began.
Page 14 possession of stolen property prosecution. Both relied on alibi defenses). (2) If facts suggest possible inconsistent and consistent defenses, relative strengths of each must be evaluated. 8.
Tactical Considerations:
Trial
Tactics. a. Will the attorney be able to adequately examine all witnesses on behalf of both clients? Government witnesses testified about some transactions with D1 which occurred prior to D2's involvement. Counsel failed to pursue the distinction. Held: Counsel ineffective as to D2). 9.
Prior Representation as a Conflict.
What to do when the government witness against your client is a former client? "Substantial relationship test:, i.e., is the matter on trial so substantially related to the prior representation that there is a conflict because there is no chance that information gained through one relationship would not be used in the new relationship. See Duncan v. Merrill, Lynch, Etc. 646 F.2d 1020 (5th Cir. 1981); Wheat v. United States, 108 S.Ct. 1692 (1988). Actual transfer of attorney/client information that could be used to the detriment of the former client. United States v. Agosto, 675 F.2d 965 (8th Cir. 1982). What about if a partner or associate is the one who participated in the prior representation? United States v. Varca, 896 F.2d 900 (5th Cir. 1990). See also Davis v. Stansbury, 824 S.W.2d 278 (Tex. App.--Houston[1st Dist.] 1992). Sometimes the Court saves us from ourselves. Mickens v. Taylor 122 S. Ct. 1237; 152 L. Ed. 2d 291(2002). In a capital case, trial counsel did not reveal his prior representation of the victim to his client, co-counsel or the trial judge. On habeas review the district court and court of appeals held that the Petitioner showed no harm. The Supreme Court ultimately had the last word
ETHICS AND ATTORNEY MISCONDUCT when it held in order to demonstrate a Sixth Amendment violation where the trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known, a defendant must establish that a conflict of interest adversely affected his counsel's performance. C.
Organization as Client
The State Bar has adopted a new rule for areas of group representation such as banks and corporations. Remedial actions should first be taken within the organization (cf., Rule 1.12(b) & (c). (b) A lawyer representing an organization must take reasonable remedial actions whenever the lawyer learns or knows that:
Page 15 Rule 1.12 Organization as a Client. (a) A lawyer employed or retained by an organization represents the entity. While the lawyer in the ordinary course of working relationships may report to, and accept direction from, an entity's duly authorized constituents, in the situations described in paragraph (b) the lawyer shall proceed as reasonably necessary in the best interest of the organization without involving unreasonable risks of disrupting the organization and of revealing information relating to the representation to persons outside the organization. include, but are not limited to, the following: (1) asking reconsideration of the matter;
(1) an officer, employee, or other person associated with the organization has committed or intends to commit a violation of a legal obligation to the organization or a violation of law which reasonably might be imputed to the organization; (2) the violation is likely to result in substantial injury to the organization; and (3) the violation is related to a matter within the scope of the lawyer's representation of the organization. (c) Except where prior disclosure to persons outside the organization is required by law or other Rules, a lawyer shall first attempt to resolve a violation by taking measures within the organization. In determining the internal procedures, actions or measures that are reasonably necessary in order to comply with paragraphs (a) and (b), a lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer's representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters, and any other relevant considerations. Such procedures, actions and measures may
(2) advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and (3) referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act in behalf of the organization as determined by applicable law. (d) Upon a lawyer's resignation or termination of the relationship in compliance with rule 1.15, a lawyer is excused from further proceeding as required by paragraphs (a), (b) and (c), and any further obligations of the lawyer are determined by Rule 1.05. (e) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when it is apparent that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing or when explanation appears reasonably necessary to avoid misunderstanding on their part. 1. The comments assist the lawyer to interpret this new Rule 1.12.
ETHICS AND ATTORNEY MISCONDUCT
a. Sarbanes Oxley Act: Disclosure Section 307 of the Act now 15 USCA 7245 introduced a very controversial provision affecting lawyers. The Act compels the SEC to adopt new rules of professional conduct applicable to attorneys practicing before it in any way in the representation of issuers. The text of 15 UCS §§ 7245 is as follows: Not later than 180 days after the date of enactment of this Act [enacted July 30, 2002], the (2) if the counsel or officer does not appropriately respond to the evidence (adopting, as necessary, appropriate remedial measures or sanctions with respect to the violation), requiring the attorney to report the evidence to the audit committee of the board of directors of the issuer or to another committee of the board of directors comprised solely of directors not employed directly or indirectly by the issuer, or to the board of directors. In response the SEC has proposed rule 205 to reflect the requirements of 307 in 67 Fed. Reg. 71670, 71673 to be codified at 17 C.F.R. pt. 205. The proposed rule incorporates several corollary provisions that are not explicitly required by section 307. Section 205.3(b) codifies an attorney's duty to report when he becomes aware of information that would lead a reasonable attorney to believe a material violation has occurred, is occurring, or is about to occur. The attorney is required to report the material violation to the issuer's chief legal officer or chief executive officer. The CLO or CEO is obligated to determine whether the report has any merit, and if it does, to remedy the situation. If the CLO or CEO find that the report does not have merit, then they must report their findings to the attorney. An attorney only fulfills their obligations once they receive an appropriate response within a reasonable time and has taken reasonable steps to document his or her report and the response to it has satisfied his or her obligations
Page 16 Commission shall issue rules, in the public interest and for the protection of investors, setting forth minimum standards of professional conduct for attorneys appearing and practicing before the Commission in any way in the representation of issuers, including a rule-(1) requiring an attorney to report evidence of a material violation of securities law or breach of fiduciary duty or similar violation by the company or any agent thereof, to the chief legal counsel or the chief executive officer of the company (or the equivalent thereof); and under the rule. An attorney who does not receive an appropriate response, or believes that reporting the violation to the CLO or CEO is futile, must report the violation to the issuer's audit committee or a subcommittee of the board of directors containing independent directors or to the full board. The attorney is also required to document the response, or absence thereof. Proposed rule 205.3(d) outlines the obligations of both outside and in-house attorneys who report material violations and do not receive an appropriate response. An outside attorney who does not receive an appropriate response is required to withdraw from representation, notify the SEC of their withdrawal on the basis of "professional considerations," and disaffirm any submission to the SEC that they have participated in that may be tainted by the violation. Rule 205.3(d)(4), provides protection to an attorney, whether outside or in-house, who reasonably believes was discharged because they fulfilled their reporting obligations. Under the proposed protection provision, the attorney may report their discharge to the SEC without violating the attorney-client privilege, presumably based on the whistleblower protections provided by 806 of the Act. Section 602 of the Act, now 15 U.S.C. 78d-3, provides the SEC with the authority to "censure any person, or deny, temporarily or permanently, to any person the privilege of appearing or practicing before the Commission" (for, among other reasons, willful violation or willful aiding and abetting the
ETHICS AND ATTORNEY MISCONDUCT violation of the securities law or the rules and regulations issued thereunder). b.
Clarifying the Lawyer's Role.
Comment 4: There are times when the organization's interest may be or become adverse to those of one or more of its constituents. In such circumstances the lawyers should advise any constituent, whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation. Care should be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent See In re Office Products of America, Inc., 136 B.R. 983 (W.D. Tex. 1992). Attorney owes allegiance to the entity, not to any person connected with the entity. I.
individual, and that discussions between the lawyer for the organization and the individual may not be privileged insofar as that individual is concerned. Whether such a warning should be given by the lawyer for the organization to any constituent individual may turn on the facts of each case. Comment 5: A lawyer representing an organization may, of course, also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject to the provisions of Rule 1.06. If the organization's consent to the dual representation is required by Rule 1.06, the consent of the organization should be given by the appropriate official or officials of the organization other than the individual who is to be represented, or by the shareholders. advice to a client when doing so appears to be in the client's interest. B. Imputed Disqualification of Fellow Attorneys:
LAWYER AS COUNSELOR
In keeping with the ABA model rules, the Texas State Bar has adopted the new Rule 2.01: A.
Page 17
For lawyers in firms, a prohibited transaction will keep the rest of the lawyers in the firm from handling the case. See, Rules 1.06(f), 1.07(e), 1.08(i), 1.09(b).
Rule 2.01 Lawyer as Advisor
In advising or otherwise representing a client, a lawyer shall exercise independent professional judgment and render candid advice. Comment Five adds some more generalities to this already basic rule regarding the offering of advice: In general, a lawyer is not expected to give advice until asked by the client. However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, duty to the client may require that the lawyer act if the client's course of action is related to the representation. A lawyer ordinarily has no duty to initiate investigation of a client's affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate
II.
LAWYER AS ADVOCATE
A.
Rule 3.03 Candor Towards the Tribunal Rule 3.03 covers the difficult area of
Perjury. (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
ETHICS AND ATTORNEY MISCONDUCT 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 Comment 9: Whether an advocate for a criminally accused has the same duty of disclosure has been intensely debated. While it is agreed that in such cases, as in others, the lawyer should seek to persuade the client to refrain from suborning or offering perjurious testimony or other false evidence, there has been dispute concerning the lawyer's duty when that persuasion fails. If the confrontation with the client occurs before trial, the lawyer ordinarily can withdraw. Withdrawal before trial may not be possible, however, either because trial is imminent, or because the confrontation with the client does not take place until the trial itself, or because no other counsel is available. Comment 10: The proper resolution of the lawyer's dilemma in criminal cases is complicated by two considerations. The first is the substantial penalties that a criminal accused will face upon conviction, and the lawyer's resulting reluctance to impair any defenses the accused wishes to offer on his own behalf having any possible basis in fact. The second is the right of a defendant to take the stand should he so desire, even over the objections of the lawyer. Consequently, in any criminal case where the accused either insists on testifying when the lawyer knows that the testimony is perjurious or else surprises the lawyer with such testimony at trial, the lawyer's effort to rectify the situation can increase the likelihood of the client's being convicted as well as opening the possibility of a prosecution for perjury. On the other hand, if the
Page 18 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. 1. The comments provide further help in this touchy area. lawyer does not exercise control over the proof, the lawyer participates, although in a merely passive way, in deception of the court. Comment 11: Three resolutions of this dilemma have been proposed. One is to permit the accused to testify by a narrative without guidance through the lawyer's questioning. This compromises both contending principles; it exempts the lawyer from the duty to disclose false evidence but subjects the client to an implicit disclosure of information imparted to counsel. Another suggested resolution is that the advocate be entirely excused from the duty to reveal perjury if the perjury is that of the client. This solution, however, makes the advocate a knowing instrument of perjury. The answer seems to be in Comment Twelve: Comment 12: The other resolution of the dilemma, and the one this Rule adopts, is that the lawyer must take reasonable remedial measure which may include revealing the client's perjury. A criminal accused has a right to the assistance of an advocate, a right to testify and a right of confidential communication with counsel. However, an accused should not have a right to assistance of counsel in committing perjury. Furthermore, an advocate has an obligation, not only in professional ethics but under the law as well, to avoid implication in the commission of perjury other than falsification of evidence. See Virzi v. Grand Trunk Warehouse
ETHICS AND ATTORNEY MISCONDUCT and Cold Storage Co., 571 F. Supp. 507 (E.D. Mich. 1983). 2.
Page 19 know that I will investigate what you tell me, and in fairness, you should know how the attorney-client privilege works."
Perjury Problem.
a. No Definitive Solution in this State. "It may be seen that there is no accepted solution to the problem of the perjurious client. The question is not whether the appellant's attorneys followed the only acceptable course, for no such course is established." Maddox v. State, 613 S.W.2d 275, 283 (Crim. App. 1981). b. Anticipates Perjury.
What to Do if Counsel
(1) Head it off at initial interview, i.e., "anything you tell me is privileged. But, I can reveal information about a crime you are planning in the future, like perjury. So if you try to lie on the stand, I can reveal that. Now, I don't think that you would lie, but I want you to Revealing a client’s perjurious testimony to the court outside the presence of the jury does not necessarily require the attorney to withdraw from representation. People v. DePallo,96 N.Y.2d 437 (Ct. App. 2001). (3) Apparently, attorney can ethically reveal client's intent to commit perjury if client insists on testifying falsely. ABA Ethics Opinion 353 so states and see Helton v. State, 670 S.W.2d 644 (Tex. Crim. App. 1984) holding that counsel acted properly by advising court, out of jury's presence, that he could not question a witness whom defendant insisted be called, because lawyer believed that witness would commit perjury. c. What To Do When Perjury is Not Anticipated. (1) cause the witness to recant.
Make an effort to
(2) Do not develop the perjury further either through questions or through jury argument, doing so violates DR7-102 (A) (4)
(2) If client insists on testifying falsely does the 6th amendment require the lawyer to call the client to the stand? ABA Formal Opinion 87-353 (4/20/87) says "no"; and see Nix v. Whiteside, 106 S.Ct. 988, 998 (1986); "Whatever the scope of the right to testify, it is elementary that such a right does not extend to testifying falsely" (emphasis the court's). Notion of allowing client to testify in narrative form expressly rejected in ABA Formal Opinion 87-353 (4/20/87), but cf., Maddox v. State, 613 S.W.2d 275, 284 (Crim. App. 1981): "We hold that the appellant was not deprived of effective assistance of counsel when he was permitted to testify in narrative form rather than in answer to questions from his attorney." id. (3) Some authority that lawyers should reveal to court if client refuses to rectify, but not clear; see Nix vs. Whiteside, 106 S.Ct. 988 (1986) holding no violation of 6th amendment when defendant`s lawyer reveals anticipation of perjury to the trial court; but cf., old DR 4-101 (C)(3) giving a lawyer the option to reveal his client's intention to commit a crime in the future. ABA Formal Opinion 87-353 (4/20/87) states that failing to reveal the unrectified perjurious event amounts to assisting the client to commit perjury, therefore, lawyer must reveal. This ABA opinion is based on Model Rule 3.3(b), not adopted in Texas, but cf., old DR 7-102 (A)(7) containing similar language. See, Jackson v. United States, 928 F.2d 245 (8th Cir. 1991), 49 Crim. L. Rep. (BNA) 1004. d. Real World before Rule 3.03. Maddox v. State, supra, provides real world guidelines for testimonial perjury: (a) when counsel is not told directly of contemplated perjury, a Motion to Withdraw is not justified by mere conjecture; (b) when counsel is told of
ETHICS AND ATTORNEY MISCONDUCT
Page 20
contemplated perjury before trial, he may seek to withdraw, but the court should not be advised of the attorney's reason for so doing either directly or indirectly, but by using a Motion to Withdraw based upon "vague ethical considerations"; (c) when counsel learns of contemplated perjury during trial, for his own protection, and simultaneously, to preserve the attorney/client privilege, he should make a confidential notation, ideally signed by the client and witnessed by another attorney of his efforts to dissuade the client from committing perjury. Counsel should not inform trial court of the situation because of attorney/client privilege. Federal: see U.S. ex rel. Wilcox v. Johnson, 555 F.2d 115 (3rd Cir. 1977). e. Motion for instructed verdict. Still necessary to preserve certain error in Federal (note: FRCP Rule 29). Sufficiency of evidence is of constitutional dimension and can be raised for the first time on appeal with no objection necessary to preserve error. Burks v. U.S. 437 U.S. l (1978); (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; (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 established rule of procedure or of evidence;
an
(2) state or allude to any matter that the lawyer does not reasonably believe is
Greene v. Massey 437 U.S. 19 (1978). f. Useful discussion with numerous practical examples of "bounds of the law." Zunker, Zealous Representation Within the Bounds of the Law, 47 Tex. B. J. 530 (May 1984). B. Handling Otherwise.
Evidence,
Physical
or
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. 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 urge 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
ETHICS AND ATTORNEY MISCONDUCT 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. 1. Evidence.
Handling Incriminating Physical
a. Lawyer's rights obligations the same as those of the client.
Page 21 evidence as the client has. For example, a client has the privilege against self-incrimination, and cannot be made to say anything incriminating. Consequently, the attorney, himself, has a privilege of confidentiality and cannot be forced to reveal what his client tells him, e.g., the location of physical evidence. However, the police can enter the defendant's home or office and search for physical evidence if they have probable cause. Since the purpose of a lawyer is to protect the rights which the law grants to the accused, and not to give the accused additional rights, physical evidence should not be hidden from the State by being placed in the lawyer's possession. Consequently, an attorney may be obligated to turn incriminating physical evidence in his possession over to the prosecution, or to withdraw from the case if the client refuses to agree to this tactic. Consider the following examples:
and
Problems in how to deal with physical evidence may be analyzed by placing the attorney "in the shoes of the client" i.e., the attorney has roughly the same privileges to deal with the (2) "The attorney should not be a depository for criminal evidence (such as a knife, other weapons, stolen property, etc.) . . . It follows that the attorney, after a reasonable period, should, as an officer of the court, on his own motion turn the same over to the prosecution . . . The State, when attempting to introduce such evidence at the trial, should take extreme precautions to make certain that the source of the evidence is not disclosed in the presence of the jury and prejudicial error is not committed. By thus allowing the prosecution to recover such evidence, the public interest is served, and by refusing the prosecution an opportunity to disclose the source of the evidence, the client's privilege is preserved and a balance is reached between these conflicting interests. State ex rel. Sowers v. Olwell, 394 P.2d 681 (Wash. 1964). (3) Where the client delivered stolen items to the attorney's receptionist, neither the attorney nor his receptionist could be required to
(1) Attorney removed money and shotgun used in robbery from client's safe deposit box and placed in his own safe deposit box. Attorney suspended. In re Ryder, 263 F.Supp. 360 (E.D. Va. 1967). divulge the source of the stolen items which the attorney forwarded to the prosecution, and in order for the attorney-client privilege to be meaningfully preserved, the prosecution cannot introduce into evidence the fact that they received the items from the attorney's office. Anderson v. State, 297 So.2d 871 (Fla. 1974). (4) Although the attorney is obligated to turn the physical evidence, itself, over to the State, any information obtained by the attorney or the attorney's investigator during the course of the investigation that leads to the finding of the evidence (e.g. the location and physical position of the evidence at the time it is discovered) is privileged and need not be revealed. However, there is an exception to this rule,if in removing the evidence, the attorney or the attorney's investigator thus forever precluded the State from making the same discovery (as to a case where incriminating evidence is removed from the scene of the crime). In such event the testimony of the attorney or of the
ETHICS AND ATTORNEY MISCONDUCT investigator as to the location and physical placement of the evidence at the time it was removed is not privileged and the attorney or the investigator may be called to testify about same. People v. Meredith, 631 P.2d 46, 175 Cal. Rptr. 612 (S.Ct. Cal. 1981). (5) Attorney's instructions to client by phone, "Get rid of the weapon and sit tight, and don't talk to anyone and I will fly down in the morning."was not a privileged statement.". . .No shield such as the protection afforded to communications between attorney and client shall be interposed to protect a person who takes counsel on how he can safely commit crime." Clark v. State, 261 S.W.2d 339 (Tex. Crim. App. 1953). (6) Defense attorney received incriminating physical evidence from a friend of the defendant. Held: Attorney obligated to turn the evidence over to the prosecution. Morrell v. State, 575 P.2d 1200 (S.Ct. Alaska 1978); Hitch v. Pima County Superior Court, 708 P.2d 72 (Ariz. S.Ct. 1985). (7) Accountant's working papers, delivered to attorney by client in a tax fraud case, can be reached by government subpoena. Fisher v. United States, 425 U.S. 391 (1976). (b) Failure to know address does not alleviate duty to disclose. United States v. White, 583 F.2d 899 (6th Cir. 1978). C.
Lawyers’s First Amendment Rights.
1. Lawyer's First Amendment Rights are Abridged When Acting as Counsel. a. First Amendment rights may be abridged when the expression threatens a significant state interest. An attorney may be disciplined for speech if it interferes with the State's significant interest in the process of administration of justice. NAACP v. Button, 371 U.S. 415 (1963).
Page 22 b.
Federal Rule. (1)
Rule 16(b) of the FEDERAL RULES OF CRIMINAL PROCEDURE requires the defendant to permit inspecting and copying of documents, tangible objects, examinations and tests which he has in his possession or control and intends to introduce as evidence in chief at trial, if the defendant requests disclosure of the same items. Rule held constitutional in United States v. Bump, 605 F.2d 548 (10th Cir. 1979). (2) Rule 12.1 of the FEDERAL RULES OF CRIMINAL PROCEDURE requires a written notice of his intention to offer a defense of alibi if prosecutor makes written demand which states time, date and place at which the alleged offense was committed. The notice must state the specific place or places and names and addresses of witnesses. (a) Trial court did not abuse discretion by barring alibi witnesses because of defendant's untimely response to the government's requests for notice. The opinion noted the defendant's refusal to cooperate with appointed counsel. United States v. Barron, 575 F.2d 752 (9th Cir. 1978). b. Examples. (1) In order to encourage a finding of insanity, defense counsel released information to newspapers regarding the horror and brutality of the murders committed by his client. In discussing this lawyer's unethical strategy, the court stated: "A defendant is entitled to be tried on the evidence and arguments before a jury in open court under the guidance of a judge." U.S. ex rel. Bloeth v. Denno, 313 F.2d 364 (2nd Cir. 1963) (2) In re Bailey, 273 A.2d 563 (Mass. 1971), the court found an unethical attempt to try the defendant in the news media where defense counsel (F. Lee Bailey) wrote a letter to the governor (and to 150 members of the
ETHICS AND ATTORNEY MISCONDUCT legislature) which letter counsel knew would be picked up by the press. The letter charged that the state's case was rigged. Counsel was barred from practice in the state for one year. (3) Gentile v. State Bar of Nevada, 111 S.Ct. 2720 (1991). Rule which prohibits an attorney from making extra judicial statements that a reasonable person would expect to be disseminated by public communication if the attorney knew or should have known that the statements would have a substantial likelihood of materially prejudicing the trial does not violate the First Amendment. (4) Sanctions: see Susman Godfrey L.L.P. v. Marshall, 832 S.W.2d 105 (Tex. App.--Dallas 1992). (5) When lawyer’s comments violate local rules governing statements to media. U.S. v. Cutler, 58 F,3d 825 (2nd Cir. 1995) 2. When Not Acting as Counsel, a Lawyer Retains His First Amendment Rights. a. A lawyer issued a press statement criticizing the judge and the district attorney for dishonest and unethical conduct in a criminal case where the lawyer was charged with a crime. The Federal District Court in the Northern District of Texas permanently enjoined the grievance (b) refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonable efforts to be assured that the accused has been advised of any right to, and the procedure for, obtaining counsel and has been given reasonable opportunity to obtain counsel; (c) not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights; (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection
Page 23 committee from issuing a reprimand. The court stated: "It cannot be seriously asserted that a private citizen surrenders his right to freedom of expression when he becomes a licensed attorney in this state."Polk v. State Bar of Texas, 374 F.Supp. 784 (1974). b. The prosecutor's action in criticizing a trial judge at a post-trial press conference ("The actions of the judge were unethical, illegal and grounds for reversible error") did not violate any disciplinary rule, but is questionable conduct. c. Note: New rules hold prosecutor responsible to prevent persons employed or controlled by the prosecutor (i.e. police witnesses) from making an extrajudicial statement that the prosecutor would be prohibited from making. Rule 3.09(e). D. Rule 3.09 Special Responsibilities of a Prosecutor. The prosecutor in a criminal case shall: (a) refrain from prosecuting or threatening to prosecute a charge that the prosecutor knows is not supported by probable cause; with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and (e) exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07. 1. Codification of Prosecutorial Ethical Standards. Standards
of
ethical
conduct
for
ETHICS AND ATTORNEY MISCONDUCT prosecutors are codified in several different sources: a. Article 2.01, TEX. CODE CRIM. PROC. ANN.: "It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secret witnesses capable of establishing the innocence of the accused." Note that it is the primary duty "to see that justice is done" that distinguishes the prosecutor's role from that of the defense attorney in the adversary system. b. Old Code of Professional Responsibility. Only portions of the Code of Professional Responsibility specifically applied to prosecutors. The Old Ethical Consideration 7-13 provided: "The responsibility of a public-prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict. This special duty exists because: (1) the prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of governmental powers, such as in the selection of cases to prosecute; (2) during trial the prosecutor is not only an advocate but he also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all; and (3) in our system of criminal justice the accused is to be given the benefit of all reasonable doubt." c. American Bar Association Project on Standards for Criminal Justice: Standards Relating to the Prosecution Function and the Defense Function (approved draft, 1971). This volume contains a complete dialogue relating to the responsibilities and ethical duties of both prosecution and defense. d. National Prosecution Standards (National District Attorneys Association), (Chicago 1977). Standard 25.1 of the National Prosecution Standards, enacted by the prosecutors themselves, applies the Code of Professional Responsibility to prosecutors:
Page 24 "A. To insure the highest ethical conduct and maintain the integrity of prosecution and the legal system, the prosecutor shall be thoroughly acquainted with and shall adhere to at all times to the Code of Professional Responsibility as promulgated by the American Bar Association and as adopted by the various state bar associations.
Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course June 24-26, 2021 Hyatt Regency San Antonio, TX
Topic: Technology in Today’s Practice
Speaker:
Jeep Darnell
310 N. Mesa St., Ste. 212 El Paso, Texas 79901 (915) 532-2442 phone (915) 532-4549 fax jedarnell@jdarnell.com email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
TECHNOLOGY IN THE MODERN CRIMINAL DEFENSE LAW OFFICE Rusty Duncan Advanced Criminal Law Seminar TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION Thursday, June 25, 2021 San Antonio, Texas
Jeep Darnell jedarnell@jdarnell.com Jim Darnell, P.C. 310 N. Mesa St., Ste. 212 El Paso, Texas 79901 Phone: (915) 532-2442 Fax: (915) 532-4549
Many lawyers and experts speak all the time on the paperless office and the need to go all-electronic. However, that=s not feasible for many criminal defense attorneys and not wanted by a great number as well. Despite those limitations and reservations, lawyers cannot escape technology all together, as was seen during the COVID-19 pandemic.
Many of our
fellow criminal defenders across the State scrambled to catch up and figure out what they needed in order to attend Zoom hearings and keep their practices going. So, the question arises, what virtual office technology should every criminal defense attorney have, at a minimum, to ensure that he or she can continue to work in the hyper-evolving age while maintaining the safety of the privileged information they possess?
I don=t believe there is a single answer to that
over-arching question. Instead, each defender should figure 2
out what works for him or her and consult with an information technology (IT) professional to set up their own office. What is clear though, is that the age of defying technology and remaining entirely in paper is gone and every criminal defense attorney must incorporate technology safely into their practice. Zoom hearings are here to stay in some form or fashion and the transfer of information will forever be almost entirely electronic. Below is a starter checklist to consider and to speak with an IT advisor about as you modernize your office technology. Top 10 Office Technology Checklist: 1.
What are the hardware tools (computers to servers to scanners) I need to run a technologically efficient law firm?
2.
What is the minimum internet speed I need to support Zoom or other videoconferencing services? Do I need increased internet capabilities to support a virtual office, which would allow me to be able to work remotely? 3
3.
Should I utilize cloud computing for my virtual office or should I work entirely over a Virtual Private Network (VPN)?
4.
What safety measures need to be in place in order for me to work remotely and not unethically expose my privileged materials to an attack?
5.
How do I ensure that my email remains privileged and beyond the reach of a subpoena, especially email communications with clients?
6.
How do I organize my virtual office so that it is easy for me to use? (I recommend setting it up to match your paper office).
7.
Where is my network backed up, either to a local server or to the cloud?
8.
What level of support is needed to assist and protect me as I move forward with my virtual office?
9.
What programs should I utilize to integrate calendaring, email, and document production?
10. What are the best programs for me to utilize in order to review electronically produced discovery?
4
This checklist may lead to more questions, but this is the basic list I personally utilized in trying to modernize our office and it worked and allowed us to continue working, even at the worst of the pandemic. We always want our clients to ask for a lawyer before it=s too late, please use the same thought in developing your office technology.
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Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course June 24-26, 2021 Hyatt Regency San Antonio, TX
Topic: Cell/Computer Porn
Speaker:
Eric Devlin
Lone Star Forensic Group 14027 Memorial Dr # 391 Houston, TX 77079 (281) 668-7461 phone edevlin@lfg-texas.com email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Artificial Intelligence in Digital Forensics
If you invoke the name of Skynet, Hal 9000, or Roy Batty for us older readers, or the Machines, Ultron, or the Borg for those of you younger readers, you conjure up the computer villains of The Terminator, 2001 A Space Odyssey, Blade Runner, The Matrix, The Avengers, and Star Trek. For every AI villain, however, there is a fair share of AI heroes such as R2D2, Kitt, or Data. In popular culture, artificial intelligence is often used to warn against the reliance on technological advances, but just as with Hollywood, in the world of Digital Forensics, it is already becoming a useful or even necessary tool. To make sure that all of the readers are on a firm footing for this discussion, we need to establish a few basic definitions. Digital Forensics is the extraction and analysis of information contained within digital devices, including but not limited to computers (laptops, desktops, servers), storage devices (flash drives, external hard drives, storage sticks), mobile devices (smartphones, tablets, smartwatches, other wearables), and cloud data (OneDrive, Google Drive, iCloud). Artificial Intelligence, however, is a more difficult definition in large part because there is not an agreed upon meaning to these words. One proposed definition is “creating a computer process that acts intelligently.” Another one is “creating a computer process that can mimic human behavior”, however, one of the primary arguments against these definitions is humans do not always act intelligently. I have been incredibly fortunate to have a wonderful wife and two amazing daughters, but as with most modern parents, this means we have been subjected to a barrage of childhood classic movies. One of my favorite lines that is relevant to this discussion comes from The Wizard of Oz. When the Scarecrow is first meeting Dorothy the conversation goes like this, “Dorothy: How can you talk if you haven't got a brain? Scarecrow: I don't know... But some people without brains do an awful lot of talking... don't they?” My personal favorite and the definition that will be used for this discussion comes from the Oxford Languages, “the theory and development of computer
1
systems able to perform tasks that normally require human intelligence, such as visual perception, speech recognition, decision-making, and translation between languages.” Having established our baseline definitions, the question arises, is artificial intelligence a futuristic concept or is it in practice at the present? In reality, the earliest stages of artificial intelligence have been assisting examiners for some time now. When explaining the forensic process or testifying about it in court, I will often use the phrase “carving” to indicate the recovery of hidden or deleted material from a storage device. The term “carving” goes back to the processes that I learned when I was first becoming involved with digital forensics. The process of carving originally meant that an examiner while looking through seemingly endless amounts of characters within the file system, would know what a particular file type began with (the file header) and what that same file type would end with (the file footer). When finding this header and footer within the file system, an examiner would carve out the data from the header through the footer, place that carved data into a translation program and if you were correct the file would emerge recovered. This type of technique is extremely time-consuming, but in the early days of digital forensics, it was the only option and one that was workable because of the small size of storage devices. With the explosion of storage drive sizes (right now on Amazon you can purchase an 18TB hard drive for just over $500USD), the ability to effectively manually carve data by an examiner has been lost. The result of this explosion in storage size, however, has led to the use of automated carving processes in most major forensic platforms. Looking back to our definition of artificial intelligence, “the development of computer systems able to perform tasks that normally require human intelligence” we see the effect that such developments can have on digital forensics. While still a time-consuming task, the ability to automate the carving process allows an examiner to take a task that would take months on a single 1TB hard drive and reduce the process to a few days, depending on several factors such as platform, settings, computing power and memory.
2
This type of explosion of storage size has not just been with computers, Apple’s flagship product, the iPhone, comes in storage size options up to 512GB, with the newest iPad Pro having storage sizes up to 2TB. During my practice as a forensic examiner, I have come across many Android phones with 1TB storage, including the Samsung S10 and the One Plus. This storage capacity is an addition to the ability to purchase a 1TB SD card for which some Android phones can support (Amazon is selling a 1TB SD card for 179.99). Due to the complexities in mobile device examinations, the rapidness of updates and changes in their operating systems, and the explosion in their storage size (and corresponding falling prices), modern digital forensic examiners would not be able to keep up with the avalanche of examinations called for today, without the aid of automated processing. One of the most important functions of artificial intelligence in modern digital forensics is the ability to sort through and classify visual media. The most requested artifacts from attorneys (prosecution or defense) are the collection of communications (emails, chat, IM, SMS, MMS), location data, and media (images and video). Since the beginning of my time as a digital forensic examiner, I have seen an explosion in the amount of media recovered from devices. Part of the reason for this is an increase in storage drive sizes, but another reason is a fundamental culture change. I won’t go into the philosophical questions behind the fact that when an accident occurs or a tragedy is occurring, the typical human response is no longer to help or protect, but rather to pull out their smartphone and begin taking pictures or video. I am glad that when I was growing up there was no such thing as cell phone cameras, or else some of the stupid things that we did as kids/teens/young adults might have been preserved. This explosion of images and video has created a particular problem for digital forensic examiners. It is now common to recover a million or more images from a smartphone and sometimes ten times that many on a computer. The amazing number of images that are commonly recovered from electronic devices makes the task of sorting through and tagging potentially relevant ones daunting, especially if it is to be done in a time crunch. (A word of advice to lawyers handing your examiner a smartphone a week
3
before trial in a case that has been pending for two years, can still be done but is not appreciated.) This is another one of the situations in which artificial intelligence comes into play to make the task more manageable. Magnet Forensic’s Magnet AI is one of the great examples of the use of Artificial Intelligence to help in the categorization of media. This program uses machine learning to analyze visual media and communications. When looking at visual material, the artificial intelligence looks for a common angle of shots, color palettes, hash values, naming conventions, and a host of other factors to sort images into categories such as nudity, child sexual abuse, guns, drugs, tattoos, license plates, documents, hate symbols, bedrooms, screenshots and more. Machine learning is also used in the categorization of chat communications, but at present, the categories are limited to sex-related conversations and grooming. In many of my cases, these artificial intelligence tools can reduce the targeted number of images to review individually from the millions to a number in the thousands, which while sounding daunting, is a much more manageable task. The artificial intelligence applications in Magnet are just one example of the tools used to aid examiners, and similar platforms, such as Cellebrite’s Physical Analyzer and Inspector and Access Data’s Forensic Toolkit, make use of their forms of limited artificial intelligence to streamline an examiner’s workload to a manageable level. So far during the discussions, we have seen our artificial intelligence hero that helps to automate formerly time-intensive human tasks into a manageable workflow to help keep pace with the demand of modern digital forensics. So the question comes about, whether there is a villain in this world. Where is our digital forensic version of Skynet or Hal2000? As with Hollywood’s AI Villains, the dangers come about out of complacency and the willingness to surrender control to the computer program. The dangers that I have seen can also be called the rise of push-button forensics and the reluctance of digital forensic examiners to gain the foundations necessary to truly understand their craft. Many of our early digital forensic practitioners came out of our
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various law enforcement agencies. Some of them began working in this area before formalized training and education existed, and many of these early pioneers became the first developers of educational curriculums for this industry. To gain a firm foundation in the area of digital forensics requires a combination of training, experience, and self-study. The training classes are rarely given in your home town, and therefore require travel, tuition, lodging, and living expenses. This education requires additional knowledge of the types of classes that are offered and a willingness to seek out where to receive that training. It also requires a funding commitment that is beyond the reach of many law enforcement agencies. It is not uncommon to spend years and hundreds of thousands of dollars training a forensic examiner to a true expert level only to see that resource jump to the private sector. Law enforcement offers an examiner poor pay, poorer working hours, and the experience of often putting your life on the line. The private sector can offer significantly more money, often more resources, less bureaucracy, and the stability of a safe environment and regular working hours. The frequent loss of this expensive resource often makes law enforcement agencies skittish about investing in the development of a forensic examiner that they will inevitably lose to the private sector. The experience requires time, numerous cases, demo phones and computers, and a mentor or resource to help. I have had the opportunity to compare privately trained examiners coming out of fancy colleges to veteran law enforcement who are forensic examiners. The difference between these wonderfully educated kids and the veterans is often in the tens of thousands of devices examined. The young person coming out of college might have examined less than ten phones in their classes. The veteran law enforcementtrained examiner typically would have examined more than five thousand in their career. The experience when combined with the training will give the examiner a path to success when something does not go as planned. Self-study is often some of the most difficult areas to provide because it requires an examiner to “geek out”, to want to gain that knowledge and to have an inherent interest in
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technology, the changes in that world, and the ways to extract from that technology. Many of the old-school examiner’s that I have worked with in the years since my involvement in this industry genuinely are interested in technology and keep up with the changes and advancements of their craft and the underlying components of the devices they examined. They combine that with sharing new and emerging information with other examiners in a network of continuing education. All of these factors together are elements that go into the quality of an examiner, but this is also where AI runs the risk of causing problems. A new generation of individuals who call themselves forensic examiners lack the background, training, and experience to do any type of work other than what is called push-button forensics. They don’t have the understanding of what they are examining or the willingness to learn, and if the artificial intelligence does not produce the expected results or if it only produces a certain type of results, they lack the tools to overcome those difficulties or to understand the reason behind the results. The work product that emerges runs the risk of being inaccurate or incomplete. Items that may exonerate or convict a person can be missed. A second problem that we see with AI in digital forensics is the willingness to accept the results of its production without doing the work to confirm or reject the findings as accurate. A good example of this was when examining a computer of suspect child exploitation. When the processing and categorization were completed, the results showed tens of thousands of scenic photographs of the Arizona landscape around the Sedona area. The images were classified as pornographic by artificial intelligence because the color palette of the landscape matched the most common color palette for a skin tone. A manual review of the recovered items found that the artificial intelligence had missed the child exploitation images and video because they had been recorded with a black and white pencil camera that the device owner had installed in a bathroom of a school. Pure reliance on artificial intelligence as a substitute for training, experience, and hard work will result in critical evidence being missed.
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A more relevant example is found in what is becoming one of the most common digital forensic platforms for child exploitation cases Griffeye. Griffeye is designed to be able to ingest large amounts of visual media (images and video) and using artificial intelligence categorize the items. The categories include Child Sexual Abuse Material. In reviewing government forensics Griffeye will often categorize images that do not fit the legal definition of these categories. A manual review will often turn up numbers far different than what is reported by the push button examiner to the prosecutor who then takes those numbers as the word of God. A prosecutor reporting these numbers to a judge in a sentencing hearing can artificially inflate the amount of contraband located within a device which can result in the inflation of a sentence with inaccurate results. The villain of AI in digital forensics is not in the abilities or the possibilities, but rather in the complacency that can result from over-reliance and a failure to invest in the proper training and experience of a veteran examiner. Just as with Skynet when the human population turns over its self-defense network to artificial intelligence to rid itself of the burdensome task of standing vigilant in our security, taking the shortcut of relying solely on artificial intelligence can produce dangerous results.
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Cause No. THE STATE OF TEXAS
§
IN THE XXX DISTRICT COURT
V.
§
OF
XXXXXXXXXXXX
§
XXXXXXXXXXXX, TEXAS
MOTION FOR ACCESS, INSPECTION AND DIGITAL FORENSIC EXAMINATION OF PHYSICAL EVIDENCE TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES XXXXXXXXXXXXX Defendant, through counsel, XXXXXXXXXXX herein, and files this Motion for Inspection and Digital Forensic Examination of Physical Evidence, and in support thereof would show the Court as follows: I. STATEMENT OF FACTS Identity of Device
II. In order to provide Defendant effective assistance of counsel, it is necessary that Counsel for Defendant have an opportunity, prior to trial, to observe, inspect, and have a forensically sound digital extraction completed on the device, in accordance with the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, Article I, Sections 10 and 19 of the Texas Constitution, and Articles 1.04, 1.05 and 1.05(a) of the Texas Code of Criminal Procedure. It is the defendant’s belief that evidence that is exculpatory in nature is present on that device and would aid in his defense.
III.
The Defendant would request an opportunity to fully examine such evidence, and to have a reasonable opportunity to conduct independent testing of such evidence. To this end, the court has appointed Eric Devlin of the Lone Star Forensic Group, a licensed digital forensic company, in order for the devices to be forensically examined and for the data to be extracted while leaving the contents of the device unchanged. The Lone Star Forensic Group is a licensed investigative company, and Eric Devlin is a licensed forensic investigator by the Texas Department of Public Safety under License No. A18389.
IV. WHEREFORE, PREMISES CONSIDERED, Defendant herein would pray for an opportunity before trial for independent testing and digital forensic examination of the device in question. Such protective orders as the Court may deem necessary to preserve the evidence are agreed to by the Defendant.
Respectfully Submitted, ________________________ Attorney for Defendant
CERTIFICATE OF SERVICE
As Attorney of Record for Defendant, I do hereby certify that a true and correct copy of the above and foregoing document was hand delivered to the District Attorney's Office,_____________, Texas on this the ________ day of ______________, 20XX
____________________________________ ATTORNEY FOR DEFENDANT
Cause No. XXXXXXXXXXX THE STATE OF TEXAS
§
IN THE XXXXX DISTRICT COURT
V.
§
OF
XXXXXXXX
§
XXXXXXXX COUNTY, TEXAS
ORDER
On this day came on to be considered the above and foregoing Motion for Access, Inspection and Digital Forensic Examination of Physical Evidence. After consideration of the same, it is the opinion of the Court that said motion should be and the same is hereby ( ) GRANTED ( ) DENIED
If Granted, the XXXXXXXXXXXXXXX in the custody of the XXXXXXXXXXXXXXXXXX and Investigator XXXXXXXXXXXXXXXX are hereby ordered to to be turned over to Examiner Eric Devlin for examination. Examiner Devlin will be allowed to obtain a forensic image or clone of each device without altering its contents for examination at his facility.
SIGNED this the __________ day of _____________________, 20___.
___________________________________ Presiding Judge _______ District Court Harris County, Texas
Texas Criminal Defense Lawyers Association
34th Annual Rusty Duncan Advanced Criminal Law Course June 24-26, 2021 Hyatt Regency San Antonio, TX
Topic: Office Management
Speaker:
Lisa Gonzalez 905 Richmond Parkway Richmond, TX 77004 (281) 904-6546 phone lisa@legallylisa.com email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
We are lawyers, not business-ers. Or how to run a practice that is yours and be happy doing it.
Do you run a successful law practice? Whether you answer is yes or no the bigger question is, how do you know for sure? This paper will cover the basics of what you need to be doing to be able to answer that question. It will also guide you to sources for how to improve on what you are already doing. Let’s get started.
Where are you right now? Are you an attorney who is running a practice or is the practice running you? If you are running a practice, most of your time is spent doing actual legal work (i.e. appearing in court, researching the law, drafting pleadings and preparing for trial or hearings). If the practice is running you you are doing the above and answering phones, scheduling meetings with clients, marketing your firm, paying bills, and more (in short, you’re doing everything). The second scenario is what most lawyers do because they think they have to, that there is no alternative. I’m here to tell you there is a way, even as a solo, to do more legal work and less administration which will make you a happier lawyer.
The key to doing more without hiring help is to invest in automation. Invest can mean money, but it definitely means time when starting. Automation will require you to think about where you spend your time and where you want to spend your time. If you don’t already know where your time goes, you must first track your time, all of it, for 5 days. This means logging what is your actual time in court/zoom, what is your time on the phone with clients vs. on the phone doing administrative work, etc. Once you know where your time is wasted and you’ve identified repetitive tasks you will know where to start your automation.
Chances are you are doing repetitive tasks - these can be automated. Think about how police officers don’t actually read miranda- instead they play a video of it; you can and should do this in your practice when it is appropriate to save you time while still providing quality representation. For instance, if you repeatedly talk to potential new clients (PNCs) about the types of punishment, or collateral consequences of a certain charge you should make a video of that talk. It does not need to be fancy or over-produced or edited, it simply needs to be efficient. The video can be kept on your computer and you can email it to PNCs prior to them having a consultation with you or you can have the video public on a YouTube channel and when scheduling a consultation direct them there.
Automation can also be done by creating macro templates for forms or pleadings you regularly use. Macro templates allow you to keep the evergreen content in a document, but change the variables. Typically the document will change with defendant’s name, charge, court and similar, but the essential format of the document will remain mostly the same.
So what areas can you automate in your practice? A non-exhaustive list is:
1. Client consultations - range of punishment, types of punishment, collateral consequences, explaining expectations you have for your client, and discussing the timeline of case. All these would make great sources for videos.
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2. Life of case benchmarks - discovery requests, 39.14, appearance of counsel, withdrawal of counsel, engagement and case closed letters, and letters to clients saying you need documents (pre-trial diversion, PSI, trial prep). These are macro templates.
3. Trial prep- what to expect video, where to go, who to talk to or not talk to, etc. I think video is best for this.
4. Marketing- explain how a trial works, where courts are, how to dress, what to expect at court appearances, case study/review and results. Videos.
5. Any motion you create from scratch or use regularly. ** Macro template. I put stars here because it’s an easy one to miss. ANY motion you use regularly should be in macro format. It will save you hundreds of hours over the life of your practice.
Another form of automation which everyone knows about but may not consider automation is the good old checklist. A checklist will help make your client meetings, file contents, case/trial prep consistent. You all know what a checklist is, so here is where you can use them if you are not already:
1. Client consultations- you can make a list of things to discuss (this would of course be after they have watched all your videos) or a list of things to review to make sure they understand
2. Admonishments before trial setting- a checklist that includes the most recent offer, what the range of punishment is for the case, collateral consequences, etc.
3. Case workup- a simple checklist to ensure you have done all the things (ex. For DWI, run officers in TCOLE, Brady disclosure, certification of operator, etc)
4. File contents- contract, contact information, case information, etc.
Now, you’re probably thinking this is great but what do I do with the finished product or where would the information needed for templates, videos, checklists be kept? That all depends on your workflows.
Workflows are exactly what they sound like, they are written processes in your office that show how a case/client/etc. moves through your firm and documents who, or what is happening at each stage.
You definitely should write down your workflows- the process will show you where you can save time and where you repeatedly get stuck. Knowing this will help you get un-stuck and be more efficient for your clients and courts. For example, you need a workflow to track how a client engages with your office until the case is disposed. Then you need to track all the miniprocesses in that big one. You should ideally have a workflow for everything that happens at your office: what happens when someone hires you; what happens when you request or receive discovery, etc. These workflows obviously contain your firms processes (the details of how the phones are answered, what length of time a phone call returned, etc.) but the workflow shows you what people do with that process.
Once you’ve got your workflows down, now you can deal in the minutia of processes. Processes is where most solos live. We never think of the workflow, or bigger picture- we only think of what needs to be done next. Processes are things like, how you name a document, what information you gather at intake, whether phone messages are emailed/catalogued in software or written on a piece of paper.
There are many ways you can save time on your processes- I am a big believer in Clio, but I also know not everyone can afford/likes Clio. All you really need is to decide how your process is going work. Are you going to keep data in a practice management software like Clio, Practice Panther, etc or are you going to do it with Google Workspace, or Microsoft or Mac
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products. Whatever you choose, just know the information you gather should be used; and you will need to export it into a template, or other device. All pieces of data you collect should go directly to a case, be about a case, or relate to your KPIs.
Where do you want to go? What KPIs are and how they can help you get there. I’ll try not to geek out on you with my love for KPIs but I will tell you if you want to talk KPIs call me. I love talking about them. Seriously, text me that you are interested and I will make time to talk to you. My phone number is 281-529-5472.
Ok so to answer the question, KPI stands for Key Performance Indicator. This is the tool you use to determine the success of your practice, and to know what you need to fix depending on your goals. KPIs, in my opinion, are the best indicator of where you are. They can also show you what you need to do to get to where you want to be. If your goal is to make more money, then you focus your indicators on quality leads, your flat rate/hourly rate, and days you work. If your goal is to spend more time with family (because you are already comfortable financially), your focus will be on hours per case/number of resets, and attorney hours v assistant hours. If your goal is to have a firm where clients are happy you would track, CSCAT (Client Satisfaction Score), NPS (Net promoter score), and the like. In case you don’t know what all those letters mean, CSCAT is how satisfied clients are during your representation. You’ve experienced theses as surveys after calling customer service or emoji indicators in chatbots or emails. NPS is how likely your client is to refer others to you. You’ve seen these as surveys but most commonly as pop-ups in apps on your phone or amazon reviews.
You can track almost anything in your business if you really want. It’s far too in-depth to go into detail here (I will provide a more in-depth conversation about KPIs in the dropbox link below). Just know you can google KPIs and a world will open to you. Don’t go overboard when you start, keep it simple, know what your goal is and track those at the beginning.
A word on goals: Your firm goals should be SMART goals. Specific. Measurable. Achievable. Result based. Time bound. All these elements should be part of your goal. A typical is goal is I want to make more money this year. A SMART goal is, “I want to make ‘x’ number of dollars this year; which means I will make ‘y’ number of dollars each quarter/month. I will make more money by (a) increasing my rate (b) working more hours (c) reducing my overhead, etc.” The main difference is that SMART goals have an inherent plan. They give you a course of action to achieve the goal.
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Why are you suggesting all this work? practicing law!
It doesn’t relate to
Oh, but it does. Seriously. When I sat as a member of my local grievance panel I saw how firms should and shouldn’t run. Overwhelmingly, people who had real issues in the grievance hearing were people who did not properly document, store or back-up information. Taking the time to set up processes, and workflows will help you keep a handle on where documents are or why you can’t find them. For instance, if you needed to find a contract for a client from 2 years ago, would you know where to find it? If you had a client who did not appear for court, and a warrant was issued and you repeatedly texted, called, emailed them informing them of what they needed to do or how you could help and they did not respond, could you find these messages or documentation of them?
Processes and workflows C.Y.A. They are the assurance you get from investing your time upfront when setting or re-vamping your office that you can find any piece of paper on any case at any time. But here’s the catch—— you have to use them. You have to actually do the things in the process and workflow.
It is good to have them written down because that makes training new hires easier (it’s a built in firm manual). And mere documentation of them can be used to defend yourself as standard course of practice in a grievance hearing if you actually do them. Even if you made a mistake this one time and did not. But overwhelmingly, the benefit of creating them yourself is that you know what has to be done and why.
Yes, you can borrow workflows from others and customize them for you, but you need to think about the fact that your firm is different from all other firms. That is why there is no boilerplate, standard thing that will work for everyone. There are standard aspects that all firms will use, but the how or why of them is unique to your firm.
Why are you here to begin with? Why should someone hire you or your firm over someone else? What makes you different? If you don’t know the answers to these questions you absolutely need to figure that out ASAP.
Knowing your why sets you apart because everyone’s story is different. Everyone’s why will be personal to them, based on their life experiences and what matters to them. Your why should be integrated into your firm culture because it IS personal and it will set you apart.
Your why will steer your marketing, and will give focus to what success looks like. It should compliment your goals. Your why will also provide you a framework to establish your mission/ vision statement which will help you streamline your ‘pitch' to clients. It will also help you know what types of cases or clients are not your ideal client.
Knowing who you are helps you find your people. In business it also helps you identify your ideal client- the perfect candidate for your work. You should spend some time thinking of who your perfect client is and what they need. You need to know their age, where they live, their income, what they do for work, etc. the more specific you are the easier it will be to market to them and to show why you are the perfect attorney for them. Ideally, you will have several personal client personas for different areas of practice or different cases. Knowing your ideal client will also help you turn away business.
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Yes, you should turn away business. Even if you are a baby litigator. Why? Because it is rare that you will be all things to all people; (unless you are a small town lawyer- and even then you still have strengths and weaknesses) knowing the cases and clients you love will help you steer clear of red-flags. Red flags are things potential clients or clients say or do that should serve as a warning to you of trouble ahead. Things such as a client who has told you on the phone he has never been in trouble, and when you are in the middle of the consult he says, “yeah I caught this case when…..”, that’s a red flag that they have experience with the system either themselves or with people close to them. Another red-flag can be when talking to a client they either say or give the impression that they are in control or that you need their approval to move forward in the case. Your red flags will be things personal to you. Yes, there are some universal ones, but a lot of the time it is going to depend on your peeves and experience.
What are the details ? Here’s the info for how to start a virtual/paperless office. I am a believer that paperless does not actually mean no paper- it means less paper. In this COVID era, I strongly encourage you to consider going paperless. It’s better for the environment, and if you put systems in place, is better for you. Being paperless means you can have backups of your office and access your office anywhere. Accessibility to your files at any moments notice is becoming a necessity for client centered firms. It shows you are a cutting edge firm who is on top of any clients needs at any time. Let’s start by focusing on the back-house minutia (things that matter to the firm).
Naming files Again, everyone has their system that they love; but if you have made it to this section of the paper and you are reading this there’s a likelihood that you are looking to do something different. So here goes, I highly suggest a file name system that tells you several things: Name of client, date the document was made and what it is. This naming system allows for several versions and is a built in redundancy for knowing when things were done (in case you missed entering this information in your case log). For me, I like to have my files in the following format: YYYY MM DD LAST NAME, First name document version. It looks like this: 2021 07 04 SAM, Uncle OR - this tells me the client is Uncle Sam, the document is an Offense Report, I uploaded (or created it) on 07/04/2021. I keep the last name in caps because there are times when I have a client with a last name that could easily be a first name and when I run a search in my computer I want to know I am pulling the right person/document. I also do all caps on the last name because sometimes I have clients who have several last names and between me, the court, and the DA paperwork we all have different last names for him (Ex. Jesus Garcia Longoria— sometimes his last name shows as Longoria and sometimes it shows as Garcia Longoria- I just make a call sometimes and put the last name I want the file under in caps.)
Saving Folders I suggest a true alphabet folder system. I don’t separate my personal files from my business files (a word on this in a second) and have two alphabets to juggle- this is both in actual file cabinets and in digital storage. I have A-Z and it’s all mixed in. I do Page 5 of 9
this because it’s easier for me. Now if you are reading this and getting anxious, then maybe my system is not for you- and you will need two alphabets. But I strongly encourage a true A-Z system.
NOTE: It is really important you know this- if your computer was stolen or lost or any other tragic thing do you have a backup? If your answer is not yes, then you need to make a plan. My suggestion is simple, have ALL your files in dropbox. That way when you need something it is always available wherever there is wi-fi. On a personal note, there are times when I have not diligently saved my document following my procedures and I will have to do a double-back to get the document to it’s home in the dropbox cloud. And even then I have a backup because I have a Mac and I save my desktop to my iCloud. Redundancies seem unnecessary until you need them.
E-mail/E-fax You need have a system for how you will save or export emails to your case files. If you want to PDF them then move them, that is great. If you want to forward them to your case management software, great. If you want to print them and keep them in a file, that is great too. The point is that there is a system you have in place for how to store them.
You need a system for how to respond to emails. It can be as simple as you will respond within 3 business days. But you need to have a plan for how and when you will respond to emails. Emails are easy distractions, because most of us have the notification bell or notice that pops up while we are working. I disabled that. I want to focus on my work when I am working and handle emails when it is time to handle emails. My system was to check emails in the morning, before lunch, when I came back from lunch and at 4 pm. This allowed me to handle emergencies or forward to someone else or to case management a time to follow up. I tried to follow the 2 minute rule, that if the matter could be handled in two minutes I would do it; if it couldn’t I would schedule time later to address it.
If you are a solo or small firm and you are about to be in trial or an all day hearing or on vacation, please take time to make a vacation/away message for your clients. It is easy and gives the clients and other attorneys notice that they will have to wait. I’m not suggesting your away message be overly casual as in, “hey there, I am out of town on vacation in Mexico and will be back in 7 days, please leave a message and I’ll call you when I get back”, but you need to let people know you are out. A good example is to say you are out of the office and will be back on x date and if it is an emergency to contact y. This is especially helpful if you are in trial/ hearings as you can tell your clients, “I will be in trial (dates). I will have periodic access to my emails and phone during this time, but will likely not be responsive until (date). If you need to contact me because this is an emergency please contact y”. It is also a redundancy if courts are trying to reach you. This goes for emails and phones.
Phones When thinking about how you will manage calls you need to be honest with yourself. Do you want to answer calls on the weekends? On holidays? Do you want to take calls past a certain time everyday? Do you want to call people back? I know that is a lot of things to think about, but I remember every holiday my father was on the phone talking to clients when I was younger. Yes, it is part of the business, but there is an alternative.
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You can tell your clients you don’t take calls on holidays or after certain hours unless it is an emergency. Instead during these times you can take texts, if you want to. I have found if you are honest about your tendencies clients will abide. You will have to make these boundaries clear in your on-boarding meeting with the client when you review the expectations of the firm and the client.
No matter what parameters you decide, you will also need a system for returning calls and recording the call itself. You can do this with a client log in a physical or digital file. I use Clio to document the call occurred, what we spoke about, and most importantly what to do next.
NOTE: If you have a difficult client whose calls you dread don’t wait for them to call- call them. Creating a check-in schedule with clients will relieve your stress and their worry. It allows you to control the time and place of the meeting and the length of the call. It also shows them you are working on their case.
Virtual Assistants If you find you don’t have the time to return all the calls and are too busy with actual work you can get a virtual assistant. There are several companies out there where you can hire someone to answer calls and take messages. You can pick a plan to suit your needs and budget. Many of these services will integrate with case management software. If you are spending a lot of money on virtual assistance, it is time to hire someone to work for you.
Virtual law help. There are also companies out there who will help you research. If you find your time is limited but need work done you can hire a virtual paralegal or lawyer to help out. Lawyerist.com is a great resource for these types of things. They maintain a database with reviews of different companies so you know who to choose based on their experience.
Virtual Appearances for Court Webex and Zoom are here to stay. Most jurisdictions have plans in place to adopt at least some system for these appearances. Some courts plan to keep standard resets and status dockets virtual. The reason is because it reduces non-appearances. So make plans to really learn these formats as they will be around.
In addition to the above, you also need to think about your front-house logistics. If you have a client centered firm you know that the entire focus of what you do is to make the interactions with you and your firm easy for the client. The past year has shown us that a growing percentage of clients like virtual meetings- it means they don’t have to take off work, or meet you after hours; they don’t have to find a babysitter or figure out a ride. Virtual meetings are a growing trend in law. And if you want to stand out from the competition you will offer as many opportunities for virtual access to your firm.
Virtual Appearances for your business. Yes! Court is not the only place you should be virtual! You can have client consultations, client evidence reviews, check-ins and more virtually. This is such a time saver! Almost any meeting you would need to have face-to-face with your client can be done virtually. And what is better is if you use Calendly you can have your clients sign up for the meeting without you having to figure out a good time. Calendly is a web based service that integrates your calendar with your
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zoom account so that if a client clicks a link and sets an appointment on their own; you get a notice in your calendar of the meeting. Their service does have some fees associated with it, but they do allow 1 free meeting (15, 30, or 60 minutes).
TIP: What I did I was set up a 60 minute meeting for free and when I emailed my reset to my client my email template said that we needed to discuss the case before the court date and for them to click the link. I had a different email template with the same link (for 60 minutes) to check-in or review discovery with clients.
Note: When reviewing discovery with clients virtually it is imperative that you tell them not to record, screen shot, etc. the meeting. I got tired of making this disclaimer so I created a slide in powerpoint that had the disclaimer and would start the meeting before the beginning time, share my slide and give a few minutes for them to read it before I switched the screen to me.
Virtual Forms In your client on-boarding process you likely obtain information from your client which will be used to communicate with them, but also to identify the case itself. If this is done in person, it is likely clients are filling out a paper form. I challenge you to re-think this. At a minimum you could turn this paper form into a fillable PDF to create uniformity. But here is what I want you to consider- using a web-based form builder. Google forms or Typeform are examples of web based form builders. A web-based form builder saves you and your firm money by eliminating some of the data entry that can be done by your clients.
When on-boarding you would send your client the form or have it available on your website. The back-end of the form would integrate with your case management system (through Zapier if you really want automation) or you could access from a spreadsheet and use Macros to import the data into motions or other case related documents.
You are not alone. If you are a solo or small firm you really need a team of colleagues to help you. I’m not suggesting that they help with everything, but you need people you can call on if you are needed in 2 or more courts at the same time, much less counties. This team of people can be classmates from law school or people you have met so far, but **** warning big plug for TCDLA coming **** I encourage you to meet your fellow warriors in TCDLA. If you found a speaker engaging or interesting find them and talk to them. If you see someone post on the Listserve or on FaceBook and you are a fan, go find them and tell them (well, maybe not tell them- that might seem stalker-y) or get to know them. I have never been turned away from a TCDLA member when seeking information or advice. In fact, I have found many new connections and resources that have helped me and people I know.
BONUS: If you want to expand your network, get involved with TCDLA. There are several committees with different goals and visions for how to help criminal defense attorneys. Each committee is different and you will meet warriors across the state and get to know them really well with monthly committee meetings. Reach out to Melissa for more information.
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Final note. If this paper was updated with additional material or resources (or if you just want a digital copy) you may download it along with the slide show and other resources at:
https://www.dropbox.com/sh/xzqhikazbhzwrzl/AACpUsfcZIgoeizT7TBNrJ1ga?dl=0
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