Monthly archive

March 2011

March 2011 SDR

In this issue: Abbott v. United States; Los Angeles County, CA v. Humphries; United States v. Pack; United States v. Blocker; United States v. Bustillos-Peña; United States v. McCann; United States v. Ortiz; United States v. Clayton; United States v. Goncalves; United States v. Chavira; Stone v. Thaler; Pierce v. Holder; Garland v. Roy; United States v. Zapata-Lara; Gray v. Epps; Foster v. State; Wirth v. State; Lujan v. State; Witkovsky v. State; Martinez v. State; Benson v. Montgomery County Dist. Clerk; Ex parte Panetti; Ex parte Martinez; State v. Fine; State v. Posey; Rogers v. State; Winningham v. State; Banda v. State; Tucker v. State; State v. Roberts; Harpole v. State; Alonzo v. State; State v. Klendworth; Bresee v. State; State v. Rothrock; Ervin v. State; Johnson v. State; Gilmore v. State; McCormick v. State; Barriere v. State

Supreme Court

Abbott v. United States, 562 U.S. ___, 09-479 (11/15/10); Affirmed: Ginsburg (8-0)

In these cases, the defendants engaged in drug trafficking using a firearm. Both defendants received an additional five-year sentence for using or carrying a firearm in furtherance of a drug trafficking crime pursuant to 18 U.S.C § 924(c)(1)(A), even though they received longer mandatory minimum sentences under the Armed Career Criminal Act. On appeal, they argued that the sentencing enhancement provided by 18 U.S.C. § 924(c)(1)(A) should run concurrently with their already longer minimum sentences. The Third and Fifth Circuits rejected the defendants’ arguments.

HELD: In accord with the courts below, and in line with the majority of the Courts of Appeals, a defendant is subject to a mandatory, consecutive sentence for a § 924(c) conviction, and is not spared from that sentence by virtue of receiving a higher mandatory minimum on a different count of conviction. Under the “except” clause, a § 924(c) offender is not subject to stacked sentences for violating § 924(c). If he possessed, brandished, and discharged a gun, the mandatory penalty would be 10 years, not 22. He is, however, subject to the highest mandatory minimum specified for his conduct in § 924(c), unless another provision of law directed to conduct proscribed by § 924(c) imposes an even greater mandatory minimum. Justice Elena Kagan did not take part in the decision because of her involvement in the case as Solicitor General.

Los Angeles County, CA v. Humphries, 562 U.S. ___, 09-350 (11/30/10); Reversed, remanded: Breyer (8-0)

Craig and Wendy Humphries were accused by one of their children of abuse. They were charged with child abuse and felony torture, but the charges were dismissed once it became clear the allegations were false. Despite the dismissal, the Humphries were placed on California’s Child Abuse Central Index (CACI)—a database for known and suspected child abusers. The Humphries sued L.A. County and various officials in a California federal district court, arguing that California’s maintenance of the CACI violates the Due Process Clause of the Fourteenth Amendment because identified individuals are not given fair opportunity to challenge the allegations. The district court dismissed their claims. On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed, holding that the erroneous listing of the Humphries on the CACI violated the Due Process Clause. The Humphries then moved for attorneys’ fees. The Ninth Circuit awarded the fees, reasoning that the limitations to liability established in Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978), do not apply to claims for declaratory relief.

HELD: L.A. County does not have to pay attorneys’ fees in the case. Monell applies to claims against municipalities for prospective relief as well as claims for damages. Justice Kagan did not take part because of her involvement in the case as Solicitor General.

Fifth Circuit

United States v. Pack, 612 F.3d 341 (5th Cir. 2010)

Assuming arguendo that defendant (a passenger in a vehicle stopped for speeding) had “standing” to assert a violation of his Fourth Amendment rights arising from an overlong detention (the district court found that he did not have “standing”), defendant still did not make out a violation of his Fourth Amendment rights:

(1) As made clear in United States v. Brigham, 382 F.3d 500 (5th Cir. 2004) (en banc), an officer may, in the course of a traffic stop, question and require identification of passengers and run computer checks on them.

(2) Turning to the question of reasonable suspicion, the Fifth Circuit held that the later en banc decision in Brigham had abrogated the requirement, found in United States v. Dortch, 199 F.3d 193 (5th Cir. 1999), of particularized suspicion of a specific crime, in the sense of something like or generally equivalent to direct evidence of a particular, specific offense. However, Brig­ham does require both the scope and length of the officer’s investigation to be reasonable in light of the facts articulated as having created the reasonable suspicion of criminal activity; each crime he investigates should, if established, be reasonably likely to explain those facts.

(3) After Brigham, a detention during a valid traffic stop does not violate the detainees’ Fourth Amendment rights where it exceeds the amount of time needed to investigate the traffic in­frac­tion that initially caused the stop, so long as (a) the facts that emerge during the officer’s investigation of the original offense create reasonable suspicion that additional criminal activity warranting additional present investigation is afoot, (b) the length of the entire detention is reasonable in light of the suspicion facts, and (c) the scope of the additional investigation is reasonable in light of the suspicious facts, meaning that it is reasonable to believe that each crime investigated, if established, would likely explain the suspicious facts that gave rise to the reasonable suspicion of criminal activity.

(4) Under these principles, there was no unconstitutionally overlong detention. By the time all the checks relating to the traffic stop were accomplished, the officer had reasonable suspicion of criminal activity warranting further investigation. Even if inconsistent stories alone might sometimes be insufficient to establish reasonable suspicion, here the inconsistencies were serious and likely intentionally deceptive, plus the government also relied on other factors to establish reasonable suspicion. Moreover, the length of the entire detention (eight minutes beyond the computer checks) was reasonable in light of the suspicious facts the officer observed. Finally, the scope of the investigation during the detention was reasonable in light of the suspicious facts. The decision to investigate the possibility of drug trafficking was reasonable because drug trafficking provided a reasonably likely explanation for the suspicious facts.

(Judge Dennis dissented. He would hold that under Brendlin v. California, 551 U.S. 249 (2007), defendant clearly had “standing” to challenge the stop/detention; and because the district court based its denial on lack of standing, Judge Dennis would vacate and remand to allow the district court to decide the ques­tion of reasonable suspicion in the first instance. In the alternative, he also dissented from the majority’s discussion and application of the law governing whether a detention is constitutionally overlong.)

United States v. Blocker, 612 F.3d 413 (5th Cir. 2010)

District court erred in assessing two criminal history points to defendant’s Guideline criminal history score pursuant to USSG § 4A1.1(d) (on the ground of an outstanding bench warrant for probation revocation). Under USSG § 4A1.2(m) and Application Note 4 to USSG § 4A1.1, a violation warrant of this type is countable under USSG § 4A1.1(d) only if the underlying criminal justice sentence is also countable. Because the prior sentence was over 21 years old, it was not countable, and thus neither was the active probation revocation bench warrant. Although this error raised defendant’s Criminal History Category from I to II and his Guideline imprisonment range from 70–87 months to 78–97 months, the error did not, on plain-error review, require reversal of defendant’s sentence; defendant’s sentence of 85 months’ imprisonment fell within the correct Guideline range, and defendant did not carry his burden of proving a reasonable probability that the sentence would have been different, given the district court’s refusal to depart downward or even to sentence at the bottom of the incorrect range.

United States v. Bustillos-Peña, 612 F.3d 863 (5th Cir. 2010)

Where defendant (1) was convicted of delivery of marijuana and sentenced to 10 years’ probation in 2001; (2) was deported to Mexico and illegally reentered in 2003; and, (3) had his probation revoked for the delivery offense and had a 5-year prison sentence imposed in 2005, district court reversibly erred in enhancing defendant’s sentence under USSG § 2L1.2(b)(1)(A)(i) for deportation or unlawfully remaining in the United States following a drug trafficking conviction for which the sentence imposed exceeded 13 months’ imprisonment. Because the Fifth Circuit found that it was ambiguous whether the USSG § 2L1.2(b)(1)(A)(i) enhancement applied where defendant was deported before being sentenced to more than 13 months’ imprisonment on a conviction that predated his deportation, it applied the rule of lenity and held that the revocation sentence did not relate back to the date of the original conviction. The Fifth Circuit vacated the sentence and remanded for resentencing. (Judge Clement dissented.)

United States v. McCann, 613 F.3d 486 (5th Cir. 2010).

(1) In felon-in-possession trial, prosecutor’s remark (made in the first part of the government’s closing) that the testifying officers would put their careers on the line if they lied in order to convict the innocent was not improper. In contrast to other cases where this type of remark was found to be problematic, here the prosecutor had actually elicited testimony from a police officer on redirect about the consequences he would face if he lied on the stand. The prosecutor’s remark, therefore, was merely restating evidence. However, it was improper for the prosecutor, in the rebuttal portion of the government’s closing, to make a largely emotional appeal to the jury to credit the arresting officers’ testimony because they were police officers with a hard job to do. This improper remark did not affect the defendant’s substantial rights, given that the prosecutorial misconduct was balanced against a significant counterweight of improper defense argument that at least partially prompted the prosecutor’s argument.

(2) District court did not reversibly err in admitting, over defendant’s objection, a death threat shouted at the arresting officer after defendant’s arrest. Evidence that a defendant engaged in conduct more serious than the charged offense can create sub­stantial unfair prejudice; that was not the case here, as the threat was less severely punished than the felon-in-possession offense for which defendant was being tried. The Fifth Circuit did agree that the evidence of the death threat still created a moderate risk of unfair prejudice; however, the statement had material probative value because it suggested that defendant was conscious of his guilt and wanted to intimidate the principal witness; accordingly, the Fifth Circuit could not say that the district court abused its discretion in holding that the material probative value outweighed the risk of unfair prejudice.

(3) Fifth Circuit declined to decide whether admission of photograph of defense witness, with text added that made it arguably resemble a mug shot or a “wanted” poster, was an abuse of discretion because, even if it was, admission of the exhibit did not affect defendant’s substantial rights, given its extremely minor role in defendant’s trial.

(4) District court committed reversible plain error in characterizing, solely on the basis of the presentence report, defendant’s prior Louisiana manslaughter conviction as a “crime of violence” warranting an enhancement under USSG § 2K2.1. Louisiana manslaughter includes offenses that do not fit within § 2K2.1’s “crime of violence” definition, since it is possible to be convicted of manslaughter in Louisiana if a death occurred during a non-violent offense like theft. Because (as the government admitted) the documents that could permissibly have been used, under Shepard v. United States, 544 U.S. 13 (2005), to narrow defendant’s manslaughter conviction to a “crime of violence” were lost in Hurricane Katrina, the district court would have been compelled to apply a lower offense level had it used the correct procedure at sentencing. Moreover, defendant’s substantial rights were affected because the correction of the error would lower the Guideline imprisonment range from 92–115 months (defendant received 100 months) to 63–78 months. Accordingly, the Fifth Circuit vacated the sentence and remanded for resentencing (but noted that the government could introduce any Shepard-approved documents it could locate to narrow defendant’s prior conviction).

United States v. Ortiz, 613 F.3d 550 (5th Cir. 2010)

In the Guideline sentencing calculation for a conviction for possession of marijuana with intent to distribute, district court reversibly erred by including as “relevant conduct” a quantity of cocaine discovered in a suitcase (belonging to another person) found in a condominium leased by defendant for his girlfriend and where marijuana was stored. The cocaine was not shown to be part of a “common scheme or plan” with respect to the of­fense of conviction; nor was the cocaine shown to be part of the “same course of conduct.” Because the exclusion of the cocaine produced a lower Guideline range than that under which defendant was sentenced, the Fifth Circuit vacated the sentence and remanded for resentencing, with an additional admonition that the offense of conviction was carrying a five-year mandatory minimum prison sentence, not a ten-year mandatory minimum.

United States v. Clayton, 613 F.3d 592 (5th Cir. 2010)

Where defendant was ordered to pay restitution in connection with his convictions for failing to file federal income returns (in violation of 26 U.S.C. § 7203), the Consumer Credit Protection Act (CCPA) (15 U.S.C. § 1673) did not preclude the government from garnishing more than 25% of his earnings. Section 1673(b)(1)(C) exempts from the protections of the CCPA “any debt due for any State or Federal tax.” Because defendant only appealed from the garnishment order, and not from his underlying convictions, the Fifth Circuit refused to consider defendant’s arguments on the merits of the restitution order.

United States v. Goncalves, 613 F.3d 601 (5th Cir. 2010)

District court did not err in refusing to group, pursuant to USSG § 3D1.2, defendant’s convictions for passing counterfeit notes (in violation of 18 U.S.C. § 472) and for using a falsely altered military discharge certificate (in violation of 18 U.S.C. §§ 498 & 2). Grouping is not mandatory or automatic simply because a defendant is charged with an offense that falls under a guideline listed in § 3D1.2(d); because the crimes involved different schemes, different objectives, and different victims, and took place at different times, the crimes were not of “the same general type.” Furthermore, the offense levels for the two crimes were not “determined largely on the basis of the total amount of harm or loss”; nor was the offense level calculated pursuant to Guidelines written to cover “behavior [that] is ongoing or continuous in nature.” Likewise, the district court did not err in applying the Guidelines for the passing-counterfeit-notes conviction, a two-level enhancement under USSG § 2B5.1(b)(5), on the ground that part of the offense occurred outside the United States. The Sentencing Commission did not exceed its authority when it extended this enhancement to convictions under 18 U.S.C. § 472, even though the congressional enactment from which this stemmed required the enhancement only for convictions under 18 U.S.C. § 470. The Commission may enact Guidelines that are not inconsistent with federal law, but which are broader than a congressional directive, when the Commission evinces a clear intent to do so. Finally, the district court did not clearly err in finding that part of defendant’s counterfeit-notes offense occurred outside the United States.

United States v. Chavira, 614 F.3d 127 (5th Cir. 2010)

In prosecution for making a false statement to Customs and Border Patrol Officers (particularly, that the illegal minor girl accompanying defendant was her daughter and a United States citizen), the district court reversibly erred in denying defendant’s motion to suppress her statements, because those statements were taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966); under the circumstances of this case, defendant was in “custody” for purposes of Miranda; these circumstances included the facts that during questioning, (1) defendant was isolated in a small windowless room, in a trailer in the secondary processing area not accessible to the public and was surrounded by a ten-foot chain-link fence; and (2) defendant’s left hand was handcuffed to the chair in which she was seated; the Fifth Circuit also rejected the government’s argument that the questioning of defendant did not constitute “interrogation” for purposes of Miranda. The Fifth Circuit noted defendant, in connection with her bench trial, had stipulated to facts wholly apart from the tainted statements that might be sufficient to sustain her conviction; however, because the district court, in finding her guilty, relied on the entire stipulation, including the statements held inadmissible under Miranda, and because nothing indicated that the district court would have found her guilty without those statements, the Fifth Circuit vacated the judgment of conviction and sentence and remanded.

Stone v. Thaler, 614 F.3d 136 (5th Cir. 2010)

Where Texas state prisoner filed federal habeas petitions complaining of his parole revocation and errors in the calculation of his time-served credit, the AEDPA’s statute of limitations was tolled for 180 days following prisoner’s filing of a time-credit dispute-resolution request (TDR) pursuant to Tex. Gov’t Code § 501.0081. Texas law requires prisoners disputing time-served credit to file a TDR and to wait until they receive a written decision, or until 180 days elapse, before filing a state habeas application; a modest extension of the reasoning of Wion v. Quarterman, 367 F.3d 146 (5th Cir. 2009), leads to the conclusion that filing a TDR impedes a prisoner’s ability to file for state habeas relief, so the AEDPA limitations period was tolled during prisoner’s time-served credit dispute; however, defendant was not entitled to tolling for the entire time the dispute was pend­ing because after 180 days, defendant was entitled to file a state habeas petition; however, because the courts below had identified two different dates on which the limitations period commenced (one that would render the petitions timely and one that would render them time-barred), and because the certificate of appealability granted by the Fifth Circuit did not authorize them to resolve that issue, the Fifth Circuit simply vacated the decisions below and remanded.

Pierce v. Holder, 614 F.3d 158 (5th Cir. 2010)

Where federal prisoner filed a habeas petition, pursuant to 28 U.S.C. § 2241, seeking a nunc pro tunc designation of the state facility where he had served a previous sentence as the place in which he would serve his federal sentence (which would have had the effect of causing the federal sentence to run concurrently with the state sentence, thus giving the prisoner back credit for the time spent in state custody), district court should have dismissed petition for lack of jurisdiction. Until the Attorney General has made a determination of a federal prisoner’s time credit (including a final decision on the prisoner’s nunc pro tunc request), there is no case or controversy ripe for review; because the Bureau of Prisons had not done so at the time prisoner filed his federal habeas petition, the district court lacked jurisdiction to rule on the petition. The Fifth Circuit vacated the district court’s decision denying prisoner’s petition on the merits and remanded to the district court with instructions to dismiss the petition for lack of jurisdiction.

Garland v. Roy, 615 F.3d 391 (5th Cir. 2010)

Federal prisoner’s claim—namely, that in light of United States v. Santos, 128 S. Ct. 2020 (2008), he was wrongfully convicted of multiple nonexistent money laundering offenses because the indictment and jury instructions did not require the government to prove he used “profits” to pay returns to investors in his illegal pyramid scheme—was properly brought under 28 U.S.C. § 2241 pursuant to the “savings clause” of 28 U.S.C. § 2255 (which allows for a habeas corpus action if the § 2255 remedy is “inadequate or ineffective to test the legality of [a prisoner’s] detention”). The savings clause of § 2255 allows a § 2241 petition where (1) the petition raised a claim that is based on a retroactively applicable Supreme Court decision, (2) the claim was previously foreclosed by circuit law at the time when it should have been raised in petitioner’s trial, appeal, or first § 2255 motion, and (3) that retroactively applicable decision establishes that petitioner may have been convicted of a nonexistent offense. The Fifth Circuit found all these requirements satisfied; notably, in holding that the third requirement was satisfied, the Fifth Circuit disagreed with every other circuit to have decided the question of what, exactly, was the precise holding of the splintered decision in Santos; because petitioner’s claim satisfied all three requirements, the district court erred in dismissing that claim. The Fifth Circuit reversed and remanded the district court’s denial of petitioner’s § 2241 petition.

United States v. Zapata-Lara, 615 F.3d 388 (5th Cir. 2010)

In sentencing defendant for conspiracy to possess cocaine with intent to distribute, district court reversibly erred in applying a two-level enhancement under USSG § 2D1.1(b)(1) for possession of a dangerous weapon. The district court did not make adequate findings to support application of the enhancement to defendant either via the relevant conduct provisions of USSG § 1B1.3 or on a theory of personal possession. Accordingly, the Fifth Circuit vacated the sentence and remanded for resentencing, with instructions that if the district court again applied the enhancement on remand, it should make the appropriate findings and state plainly the basis for its decision.

Gray v. Epps, 616 F.3d 436 (5th Cir. 2010)

District court did not err in denying death-sentenced Mississippi defendant’s federal habeas petition alleging ineffective assistance of counsel at the penalty phase of his capital murder trial. The Fifth Circuit pretermitted the question whether trial counsel had provided deficient performance by failing to present mitigating evidence about defendant’s childhood, psychological condition, low intelligence, and good character because, even if counsel was deficient, the Mississippi Supreme Court was not unreasonable in concluding that the proffered mitigation evi­dence does not establish prejudice (i.e., a reasonable likelihood of a different outcome with respect to the sentence).

Court of Criminal Appeals

State’s PDRs

Foster v. State, 326 S.W.3d 609 (Tex.Crim.App. 2010); Reversed COA, affirmed trial court

Appellant was charged with a Class B misdemeanor DWI after a late-night stop near Austin’s bar district. Following the trial court’s denial of appellant’s motion to suppress, appellant pled nolo contendere and was put on community supervision for 18 months. Appellant appealed the trial court’s ruling on his motion to suppress, and COA decided that reasonable suspicion of intoxication did not exist when the police detained appellant to investigate whether he was intoxicated.

HELD: Time of day is a relevant factor in determining reasonable suspicion. Location near a bar district where police have made numerous DWI arrests is also a relevant factor.

Wirth v. State, 327 S.W.3d 164 (Tex.Crim.App. 2010); Vacated & remanded

Appellant was indicted for theft of property over $200,000. A jury convicted appellant of the lesser offense of theft of $20,000 or more but less than $100,000. He was sentenced to ten years’ incarceration, fined, and ordered to pay restitution of $128,103. COA held that the evidence was factually insufficient to support a finding of intent to commit theft, pursuant to Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996).

HELD: At the time COA considered this case, CCA had not issued its opinion in Brooks v. State, which overrules Clewis.

Lujan v. State, __S.W.3d__ (Tex.Crim.App. No. 0303-10, 1/12/11); Reversed COA, affirmed trial court

Appellant was stopped at a traffic checkpoint where officers were checking drivers licenses and insurance. Both appellant and his passenger failed to produce a drivers license or any identification. Both parties gave the arresting officer conflicting stories as to where they were coming from. While issuing the citation, dispatch informed the officer that the passenger had outstanding warrants, and the passenger was arrested. Appellant was then patted down for safety reasons, and the officer found a large amount of cash on his person. Given that the totality of the circumstances gave rise to reasonable suspicion, the officer then asked appellant for permission to search the vehicle. Appellant consented. A K-9 unit alerted the officer to search inside the door panel, where bags of a white powdery substance were found.

The trial court denied appellant’s motion to suppress. The trial court did not make any written findings of fact or conclusions of law. Appellant pled guilty to a lesser-included offense and was sentenced to four years’ imprisonment. On direct appeal, appellant argued that the checkpoint was not merely to check for drivers licenses and insurance; it was a checkpoint for general criminal activity. COA held that a checkpoint used to determine if there are any ongoing criminal violations is too deep of an intrusion upon an individual’s Fourth Amendment rights and reversed the trial court.

HELD: If the primary purpose of the checkpoint is lawful—a license check as opposed to general law enforcement—police can act on other information that arises at the stop. In denying the motion to suppress, the trial court implicitly found that the primary purpose of this checkpoint was permissible. The record supported this finding.

State’s Motion for Rehearing

Witkovsky v. State, 327 S.W.3d 741 (Tex.Crim.App. 2010); Denied

HELD: CCA refuses to reconsider dismissal of the State’s PDR as untimely under Tex. R. App. P. 50.

Direct Appeal

Martinez v. State, 327 S.W.3d 727 (Tex.Crim.App. 2010); Affirmed

Appellant was convicted of capital murder in 1989 and sentenced to death. The conviction and sentence were affirmed on direct appeal. In 2007, CCA granted habeas corpus relief, set aside appellant’s death sentence, and remanded the case to the trial court for new punishment. In 2009, the trial court held a new punishment hearing. Based on the jury’s answers to the special issues, the trial court sentenced appellant to death. Direct appeal to CCA is automatic.

HELD: CCA reviewed seven points of error and overruled all of them. In points of error one and two, appellant relied on Clewis v. State, concerning future dangerousness; however, that decision was overruled in Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010). In point of error three, appellant similarly relied on Clewis and Wardrip v. State, 56 S.W.3d 588 (Tex.Crim.App. 2001), which was also overruled in Brooks. Point of error five alleges a confrontation clause violation. CCA finds appellant was not deprived of his right to confront the witness, where the witness died since testifying in the 1989 trial and that testimony was reintroduced in the 2009 trial because the parties, issues, and underlying purpose of the jury charge were the same in both 1989 and 2009.

Writ of Mandamus

Benson v. Montgomery County Dist. Clerk, __S.W.3d__ (Tex.Crim.App. No. 076,409, 1/12/11); Conditionally granted

Relator was convicted of aggravated robbery and sentenced to 25 years’ imprisonment. He filed an application for a writ of mandamus contending that the Montgomery County District Clerk refused to file his application for a writ of habeas corpus while another habeas corpus application concerning the same cause was pending in CCA.

HELD: The district clerk has a ministerial duty under Tex. Code Crim. Proc. art. 11.07 to receive, file, and timely forward to CCA applications for writs of habeas corpus when earlier applications in the same cause are pending before CCA. Whether a habeas corpus applicant has other applications pending is irrelevant to the district clerk’s duty. CCA withholds issuance of the writ and allows the district clerk an opportunity to conform with this opinion.

Writs of Habeas Corpus

Ex parte Panetti, 326 S.W.3d 615 (Tex.Crim.App. 2010); Dismissed

Applicant was convicted of capital murder in 1995 and sen­tenced to death. CCA affirmed the conviction and sentence on direct appeal. CCA denied applicant’s initial post-conviction application for writ of habeas corpus and dismissed applicant’s first subsequent application for writ of habeas corpus.

HELD: Applicant’s two allegations fail to meet the dictates of Tex. Code Crim. Proc. art. 11.071 § 5.

Ex parte Martinez, __S.W.3d__ (Tex.Crim.App. No. 76,413, 1/12/11); Denied

Applicant was charged with capital murder as a party to the offense. A jury found her guilty, and she was automatically sentenced to life imprisonment. On direct appeal, COA held that her trial counsel sufficiently objected to all gang-related evidence to preserve appeal, and that the trial court erred when it overruled objections to all gang-related evidence, which was irrelevant and prejudicial. However, on discretionary review, CCA determined that counsel did not properly preserve the objection and reversed COA. Upon remand to consider the remaining issues, COA affirmed applicant’s conviction and sentence. Applicant filed this writ of habeas corpus, claiming she was denied effective representation when counsel failed to object to the introduction of all gang-related evidence; he neither continued to object to the evidence nor obtained a running objection. She further argued that but for the deficient conduct, she would have received a new trial as ordered by COA.

HELD: While CCA acknowledges that gang-related evidence tends to be irrelevant and prejudicial if not accompanied by testimony that puts the evidence into context, the record does not support the conclusion that applicant met the second prong of the Strickland test. There was ample evidence to support a finding of guilt. There is not a reasonable probability that the outcome would have been different if counsel had objected to all the gang-related evidence. The first prong of Strickland need not be addressed.

Motion for Leave to Petition for Writs of Prohibition and Mandamus

State v. Fine, __S.W.3d__ (Tex.Crim.App. No. 76,470/71, 1/12/11); Conditionally granted

The real party in interest in this writ is John Edward Green Jr., the defendant in a pending capital murder case. Green has been charged with capital murder, and the State has given notice of its intent to seek the death penalty. The case has not gone to trial and no one knows what evidence the State will offer. No one knows whether a jury will convict Green or sentence him to death. Nonetheless, Green filed an “Amended Motion to Declare Article 37.071, § 2 of the Texas Code of Criminal Procedure Un­constitutional as Applied” to assert that Article 37.071, the death-penalty sentencing statute, is unconstitutional because “its application has created a substantial risk that innocent people have been, and will be, convicted and executed.” The trial judge eventually commenced a pretrial evidentiary hearing on the motion and State filed the motions at issue in opposition.

HELD: The trial judge does not have legal authority to conduct any such pretrial evidentiary hearing and make any such pretrial declaratory judgment, because there is no basis under Texas law to conduct a pretrial evidentiary hearing to determine the “as applied” constitutionality of a state penal or criminal procedural statute. The trial judge acted beyond the scope of his lawful authority. CCA conditionally grants mandamus and prohibition relief and, if the trial judge does not do so himself, CCA will order the trial judge to dismiss Green’s motion as requesting an unauthorized declaratory judgment.

Appellee’s PDR

State v. Posey, __S.W.3d__ (Tex.Crim.App. Nos. 0034-10 & 0035-10, 1/12/11); Affirmed

A jury convicted appellee of two criminally negligent homicides alleged in separate indictments. The jury found that the vehicle driven by appellee was a deadly weapon, assessed punishment at 2 years’ imprisonment, and recommended that the sentences be probated. The trial court followed that recommendation and placed appellee on community supervision for 5 years for each conviction. Appellee later violated his community supervision and was sentenced to 22 months on each offense. In his oral comments, the trial judge suggested that appellee’s attorney file a motion for shock probation after appellee had been in jail for 75 days.

Pursuant to appellee’s “Motion to Impose Community Supervision,” the trial court conducted a hearing and concluded: “I am going to grant shock probation to Mr. Posey. I’m going to extend the period of his probation to seven years.” The State appealed, and COA agreed. Appellee asserts that COA erred in vacating the trial court’s imposition of shock community supervision. The State argues that COA correctly interpreted Tex. Code Crim. Proc. art. 42.12 by holding that appellee was not eligible for judge-ordered community supervision and was not “otherwise eligible” for shock probation because of the deadly-weapon findings.

HELD: Because the jury verdict included an affirmative finding of the use of a deadly weapon, the trial judge could not grant community supervision without a recommendation from the jury. The jury could, and did, recommend community supervision, but the jury’s recommendation extends only to regular probation. A trial judge may not grant shock probation unless the defendant is eligible for judge-ordered community supervision.

Court of Appeals

Summaries are by Chris Cheatham of Cheatham Law Firm, Dallas, Texas.

Rogers v. State, 2010 WL 2598978 (Tex.App.—Dallas 6/30/10) (No. 05-09-00862-CR)

Following D’s refusal of consent to vehicle search, officer had RS to detain D pending dog sniff, given officer’s observation of two air fresheners and a can of Febreeze and D’s body language indicating, in officer’s view, deception. “When [officer] returned to where [D] was standing and asked for consent to search the vehicle, [D] turned and looked at his vehicle and turned back and ‘kind of hesitated’ before refusing consent to search. As [D] hesitated, [officer] saw [D’s] face began to twitch, and after refusing consent, [D] shuffled his feet and walked back and forth with his arms crossed, indicating he was being deceptive.” Also, D told officer he “had been in trouble before in some other stuff” but did not elaborate and told officer he could “look it up.”

Winningham v. State, 2010 WL 2636175 (Tex.App.—Fort Worth 7/1/10) (No. 2-07-389-CR)

Evidence insufficient to support murder conviction, despite evidence that victim’s blood was present in D’s car trunk and that victim’s body was wrapped in a blue tarp, the same blue material found on bumper of D’s car. In deeming the evidence factually insufficient, the court emphasized there was no weapon linking D to the crime and no indication of blood level consistent with prosecution’s theory that D placed victim’s body in his trunk shortly after he murdered her. Furthermore, investigators did not find any evidence that the murderer drove D’s car, and there was no blue material inside D’s trunk nor any evidence of blue tarp-like material found in victim’s house. Also, investigators failed to gather fingerprint or DNA evidence.

Banda v. State, 317 S.W.3d 903 (Tex.App.—Houston [14 Dist] 7/27/10)

Initial interaction constituted a consensual encounter; officer merely approached an open garage party and asked who had driven a particular vehicle; after D identified himself, officer asked to speak with him. Furthermore, it was necessary to take prompt action to ascertain D’s blood-alcohol level. And, “[t]he short amount of time between [D’s] arrival at his home and [officer’s] arrival at the scene—approximately 10 minutes—also supports a conclusion that [D] was found in a suspicious place.”

Tucker v. State, 2010 WL 2935788 (Tex.App.—San Antonio 7/28/10) (No. 04-09-00046-CR)

D unsuccessfully argued that officers’ refusal to remove D’s son from hot van during traffic stop coerced him into giving consent to search the van. The evidence showed that D only made said request one time. Officer’s question (“You don’t mind if I take a look, do you?”) did not convey to D that search was mandated rather than requested, neither did the tone of officer’s request.

State v. Roberts, 2010 WL 2927481 (Tex.App.—Dallas 7/28/10) (No. 05-09-01328-CR)

As to whether D was “in custody” at the time of the confession, the fact that the interrogating officer had already obtained a warrant for D’s arrest was irrelevant. The officer did not advise D of the existence of the warrant. “Moreover, the remaining facts noted by the trial court—[D] was in a private room with the door closed, a uniformed officer stood outside the door, and ‘the interrogation commenced’—do not show that [D] was in custody at the time in question. The evidence shows that [D] went to the room at the request of his supervisor, not the officers, and the officers did not say anything prior to entering the room. . . . The door to the room was closed but not locked . . . [officer] never promised [D] anything in exchange for making a statement.” Trial court’s suppression of recorded confession reversed.

Harpole v. State, 2010 WL 3001171 (Tex.App.—Fort Worth 7/29/10) (No. 2-09-295-CR)

Search of D’s vehicle was not unreasonable, even though the traffic stop ended before officer obtained consent to search. After issuing D a traffic citation, officer never explicitly indicated to D that he was not free to leave. Officer did not take action (e.g., holding D’s license) to imply that D was not free to leave.

Alonzo v. State, 2010 WL 2957252 (Tex.App.—Corpus Christi 7/29/10) (No. 13-09-00395-CR)

Existence of a newspaper article indicating that D had been serving a life sentence for a prior murder at the time of the prison altercation that led to the prosecution was communicated by one juror to the others during deliberations. Such information was not considered to be “received” by the jurors as to require new trial because the foreman “immediately” informed the trial court after which the court administered a curative instruction.

State v. Klendworth, 2010 WL 3003624 (Tex.App.—Tyler 7/30/10) (No. 12-09-00414-CR)

Burglary is not an inherently violent crime such that mere investigation thereof would justify officer’s act of placing handcuffs on D. “[Officer] articulated no reason to suspect that [D] was carrying any type of weapon, burglary is not an inherently violent crime, and [officer] was not outnumbered.”

Bresee v. State, 2010 WL 3030970 (Tex.App.—San Antonio 8/4/10) (No. 04-09-00696-CR)

Trooper had RS to stop D for DWI, even though trooper did not personally observe any signs of intoxication, where citizen called 911 and reported that D was intoxicated, caused a disturbance at a bar, and had departed the bar in the vehicle. The information provided by the 911 caller was sufficiently corroborated by trooper, including the vehicle’s description, license plate number, and travel route. Importantly, “[trooper] inquired into the reliability of the 911 caller and confirmed that the 911 caller, by giving his name and address, had put himself in a position to be held accountable for his intervention.”

State v. Rothrock, 2010 WL 3064303 (Tex.App.—Austin 8/5/10) (No. 03-09-00491-CR)

D’s “pulling out” of a bar parking lot rapidly was insufficient, by itself, to create RS of D’s intoxication, even though it occurred late at night. “While . . . the officer here also testified that he observed [D’s] vehicle weaving in its lane, the trial court chose not to credit this testimony as sufficient evidence to create reasonable suspicion of intoxication.”

Ervin v. State, 2010 WL 3212095 (Tex.App.—Houston [1st Dist] 8/11/10) (No. 01-08-00121-CR)

That officer towed D’s car and took her keys did not mean D was in custody, where D consented to officers’ actions. Nor did D’s disputed allegation that officer dispossessed her of her cell phone provide a basis for reasonable belief that she was in custody. “[Officer] said [D] was free to call her mother if she wished, and she did not ask to use the telephone. [Officer] acknowledged, however, that he did not offer [D] the use of a telephone.”

Johnson v. State, 2010 WL 3170291 (Tex.App.—Eastland 8/12/10) (No. 11-10-00111-CR)

While an officer awaits the results of a computer warrant check, he may freely question D about matters unrelated to the initial stop because doing so does not elongate the stop.

Gilmore v. State, 2010 WL 3168304 (Tex.App.—Texarkana 8/12/10) (No. 06-09-00233-CR)

Anonymous tip that D was traveling toward county in white truck was not sufficient by itself to create reasonable suspicion because the route was a well-traveled corridor. In addition, “the corroborative tip merely predicted [D’s] current course of travel rather than any future travel itinerary. . . . The travel was down a well-traveled corridor, which was the usual route between Crockett and Trinity, and the tip merely predicted [D’s] current course of travel, not his future travel itinerary.”

Although the Texarkana court (like other courts) declined to officially establish a standard for conducting visual body-cavity searches on pretrial detainees, RS was enough in this instance; a tip from informants justified a visual body-cavity search of D, who had been arrested for possession of controlled substance with intent to deliver. “Notwithstanding the lack of an absolute standard requiring reasonable suspicion, we believe the deputies had reasonable suspicion to search [D].” Furthermore, a person’s arrest record may be considered by officer in determining whether RS exists.

McCormick v. State, 2010 WL 3341541 (Tex.App.—Tyler 8/25/10) (No. 12-10-00025-CR)

Interaction with officer deemed a “consensual encounter,” despite officer’s statement to D that D’s removal of petrified wood from a federal forest was illegal, because D and officer joked during the conversation. Although officer wore a uniform and had a gun and badge, there was no evidence that officer subjected D to physical force or a show of authority.

Barriere v. State, 2010 WL 3369858 (Tex.App.—Austin 8/26/10) (No. 03-09-00026-CR)

D was not under “arrest,” even though he was asked by officer to remove his shoes and socks. [Officer] asked [D] to remove his shoes and socks, both so that [Officer] could search them for additional evidence and so that [D] would have a harder time running if he tried to flee. . . . The degree of intrusion was minimal. . . .

Reactive Attachment Disorder – By John Niland

This article addresses the mental health issue of Reactive Attachment Disorder a defense counsel might encounter when representing the person charged with a serious crime, particularly a capital crime. Reactive Attachment Disorder is a major personality disorder and a condition that impacts many of those in the criminal justice system. Suggestions will include how to challenge a diagnosis that is damaging to your client, how to develop mental health evidence and present that evidence effectively.

 

Prosecutors like to categorize symptoms as personality disorders because such disorders are more likely to put the client in the worst possible light and scare the jury. While some personality disorders will “age out”1 such that the disorder will become less of an influence on behavior, there is a belief that a personality disorder cannot be treated. As noted in the DSM, counsel may be able to avoid the stigma of an Axis II personality disorder if the pattern of behavior is better accounted for as a manifestation or consequence of another mental disorder or the symptoms are due to the direct physiological effects of a substance (e.g., drug abuse or medication) or a general medical condition such as head trauma.2 In other words, counsel will need to learn as much as possible about the client’s bio-psycho-social history so that the explanation for the behavior is something other than a personality disorder.

The Major Personality Disorders

Major Personality Disorders are set out in the DSM.3 These are characterized as “an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual’s culture, is pervasive and inflexible; has an onset in adolescence or early adulthood, is stable over time, and leads to distress or impairment.” This definition seems to suggest that anything the client has been doing for a long time that the mental health professional finds to be irritating is a personality disorder.

The DSM lists the ten disorders as: (1) Paranoid Personality Disorder; (2) Schizoid Personality Disorder; (3) Schizotypal Personality Disorder; (4) Antisocial Personality Disorder; (5) Bor­derline Personality Disorder; (6) Histrionic Personality Dis­order; (7) Narcissistic Personality Disorder; (8) Avoidant Personality Disorder; (9) Dependent Personality Disorder; (10) Obsessive-Compulsive Personality Disorder, and a “catch all” “Personality Disorder Not Otherwise Specified” (NOS). This essentially means that the client has been irritating for a long time, but science does not know what to call it.

These ten specific disorders are grouped into three clusters based on “descriptive similarities.” These clusters include Cluster A, which includes the Paranoid, Schizoid, and Schizotypal Personality Disorders. Cluster B includes the Antisocial, Borderline, Histrionic, and Narcissistic Personality Disorders. Cluster C includes the Avoidant, Dependant, and Obsessive-Compulsive Personality Disorders. The writer believes that the Cluster A and B disorders are those that the defense will most often encounter in the criminal justice system. Those disorders falling into the Cluster B category are likely the most challenging for defense counsel. Accordingly, this article will focus on the disorders within that cluster and will discuss methods to challenge a prejudicial diagnosis that has no basis in fact, or to humanize a diagnosis that is accurate.

As the behavior that underlies the disorder is required to be “enduring,” the diagnosis of Personality Disorders requires an evaluation of the client’s long-term patterns of functioning back to childhood. While the DSM suggests says it is possible to make the diagnosis after one interview, “it is often necessary to conduct more than one interview and to space these over time.”4 The importance of a thorough psycho-social history in making an accurate diagnosis of personality and mental disorders is discussed later in this article.

Reactive Attachment Disorder

The major personality disorders will certainly be seen in many clients charged with serious crimes. Counsel must do everything possible to challenge the unwarranted diagnosis attributed to the client. However, there will be situations where no matter how hard the defense challenges the diagnosis of APD, it may be an accurate one. How can we humanize the client that the state will describe to the jury as a remorseless criminal without a conscience?

The prosecution will often tell the jury that the client “had a choice,” and that his choice was to commit a violent crime. One way to humanize the client in this situation is to acknowledge that certain choices were in fact made by the client. However, those conditions and life experiences that shaped the client and made him who he was at the time of the crime were more than likely made by genetics, parents, caregivers, siblings, and others over whom the client had no control. The explanation for the client’s behavior may be found in the condition known as Reactive Attachment Disorder, or simply Attachment Disorder.

This disorder is briefly described in the DSM-IV-TR.5 The Diagnostic Features state that “[T]he essential feature of Reactive Attachment Disorder is markedly disturbed and developmentally inappropriate social relatedness in most contexts that begins before age 5 years and is associated with grossly pathological care.”6 Unfortunately, the Diagnostic Features as outlined by the DSM are not adequate to alert the criminal defense practitioner to the significance of this disorder. Reactive Attachment Disorder is another example of the expression that is often heard “Childhood matters.” How our clients are treated before, during, and after birth has a significant impact on the development of their brains and personalities. “It is the experiences of childhood that express the potential of the brain.” Bruce D. Perry, M.D., www.childtrauma.org.

During the first 36 months of life, humans learn to trust others and feel a sense of security in their world. This feeling will customarily arise from the bonding that the infant has with the caregiver (usually the mother) and the love that the caregiver feels and exhibits for the child. This interaction tells the infant that he or she is safe and the caregivers can be trusted to meet the child’s needs when they arise. When the infant expresses a need (usually by crying), the caregiver satisfies the need (feeding, holding, diaper-changing), and a sense of trust and reliance (healthy attachment) is created by that interaction. As the needs of the child are routinely met, the health attachment becomes a secure attachment and the infant’s development can take on a normal course. Kate Allen, Ph.D., “Attachment Disorder,” Capital Mitigation Seminar, Center for American and International Law, (August 26, 2006).

However, when the needs are not met, often because of parental abuse or neglect, the necessary attachment to the caregiver is not formed and the message to the child is that he (or she) is on his own, he cannot rely on anyone else to meet his needs, he can trust only himself, and he must be in control in order to meet the needs. The sense of trust is replaced by anger and rage, and his very survival depends on his ability to control and meet his needs.

Some of the causes of attachment disorder include:

  • Neglect;
  • Abuse;
  • Separation from the primary caregiver;
  • Changes in the primary caregiver;
  • Frequent moves and/or placements;
  • Traumatic Experiences;
  • Maternal depression;
  • Maternal addiction to drugs or alcohol;
  • Undiagnosed, painful illness such as colic, ear infections, etc.
  • Lack of attunement between mother and child;
  • Young or inexperienced mother with poor parenting skills

Counsel has likely represented clients who could not trust the trial team, exhibited an unreasonable level of anger, was hyper-vigilant to minor or misperceived threats, had difficulty telling the truth even when the truth would serve them better, appeared to have no conscience about their criminal behavior and no empathy for those who were harmed. Reactive Attachment Disorder may provide an explanation, and while it is not termed a “Major Personality Disorder,” it can be the cause of an antisocial personality, the borderline personality, or the narcissistic personality. These are among the most difficult of clients to represent. In order to fully understand who the client is, counsel must seek a thorough bio-psycho-social history developed by a competent mitigation specialist.

Counsel might ask, “Why are those charged in the criminal justice system so often victims of attachment disorder?” A bulletin from the Office of Juvenile Justice and Delinquency Prevention’s Study Group on Serious and Violent Juvenile Offenders devoted two years to analyzing the research on risk and protective factors for serious and violent juvenile offending, including predictor of juvenile violence derived from the findings of long-term studies. Hawkins, J.D., et al. (April 2000), “Predictors of Youth Violence,” Juvenile Justice Bulletin, U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention. The predictors of juvenile violence were arranged in five domains: individual, family, school, peer-related, and community and neighborhood factors. It has been shown that attachment disorder is most commonly caused by abuse, neglect, or disinterest by the caregiver, usually the mother.

The family sector risk factors are:

  • Parental criminality;
  • Child maltreatment;
  • Poor family management practices;
  • Low levels of parental involvement;
  • Poor family bonding and family conflict;
  • Parental attitudes favorable to substance use and violence;
  • Parent-Child separation.

If one were to compare the common causes of Reactive Attachment Disorder with those Family Factors identified in the OJJDP Bulletin, the similarities are striking.

Performing the thorough bio-psycho-social history that will allow the defense to identify conditions that might lead to a conclusion that the client suffers from Reactive Attachment Disorder is critical. However, realizing that the disorder can form the basis of those personality disorders that can be so damaging, it is important for counsel to again focus on the concept that the diagnosis is not what is important. What is important is an explanation for the behavior and the behavior can be explained through the genetics, pre-natal, peri-natal, and life experiences of the client.

Notes

1. American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revised (Washington, D.C), at 704.

2. DSM-IV-TR at 688–689.

3. Id. at 685.

4. Id. at 686. DSM-IV-TR at 127–130.

5. DSM-IV 313.89.

A 1971 UT Law School graduate, John initially practiced in El Paso, where he was President of the El Paso Young Lawyers Association and chosen Outstanding Young Lawyer. He served as a member of the Board of Directors of the Texas Young Lawyers and past Director of the Texas Criminal Defense Lawyers Association. From 1992 until February of 2000, John practiced law in Kentucky, during which time he was contract manager for Kentucky’s Department of Public Advocacy (DPA). He also served as directing attorney of the Warren County public defender office and was one of five regional managers for DPA. The recipient of countless awards for his work, John has been Director of the Texas Defender Service (TDS) Capital Trial Project since May 2000. There he consults with, and provides training to, lawyers across the country on death penalty issues.

Tell Me a Story: 60 Minutes-Style Opening Statement – By Doug Murphy

After the jury is selected, trial lawyers must began telling their client’s story in opening statement. During voir dire, lawyers ask prospective jurors questions to see which jurors will be the most and least receptive to our trial theme and our client’s story. Those questions also help plant the seeds of our trial theme and client’s story early on. A University of Chicago study concluded that 80% of jurors decide a case after opening statements.

Legendary trial lawyer Gerry Spence believes you win your case in voir dire and opening statement. My experience leads me to the same conclusion. One of the main challenges we face as lawyers is jurors rushing to judgment faster than some police officers who arrest our clients. Despite understanding how quickly jurors make up their minds with their first impression, many lawyers dedicate the least amount of trial preparation towards constructing a persuasive opening statement, and instead focus more on cross-examination and closing argument. Most of us have been guilty of this practice too.

Good lawyers know that there is no unimportant phase of a bench or jury trial. In terms of jurors and/or judges forming early opinions, voir dire and opening statements are the best op­por­tunity to jump out of the gate with the jury on your side before jurors hear any evidence. Legendary trial lawyer Michael Tigar once joked that the lawyer’s job is to talk, and the jurors job is to listen—and the key is to make sure that the jurors do not finish listening before the lawyer stops talking. This illustrates the point that lawyers need to quickly score points so that the jurors will be receptive to our side of the story and see the evidence from our perspective, or our vantage point. As the old saying goes, there are two sides to every pancake.

Trial lawyers and television news producers and television reporters share a similar dilemma—our audiences have short attention spans, and we have limited time to get information across. All the great trial lawyers know how to tell a story. Trial lawyers can learn a lot from television news producers when it comes to telling a story. The pioneer of how modern television news reporting is credited to the late Don Hewitt, the creator in 1968 of the most popular television show in history: 60 Minutes.

The format of 60 Minutes is three investigative stories of no more than 15 minutes each (the rest of the time allotment is for commercials and Andy Rooney’s musings), which copied the similar approach of magazine journalism. Don Hewitt had a simple four-word mandate: “Tell me a story!” Mr. Hewitt did not want his journalists citing and reporting facts as if they were competing in a debate; he wanted to hear a story about how people’s lives were affected by the facts they were reporting. This deceptively simple motto sometimes becomes an incredibly difficult task in breaking down a complicated legal and factual scenario into a story that can be easily understood by either a jury, or a television audience, in a short period of time.

Television reporters utilize many of the same concepts in storytelling that we do as trial lawyers to captivate our audience.

Theme

The first step in telling the story is developing the theme of the trial. There is an old maxim that if you allow your client to be the one on trial, your client is going to lose. Use of a persuasive theme in opening statement can re-frame the issue and take the focus off your client and damaging evidence the jury will later see and hear. Having a power statement to identify your theme is helpful so that when the jurors finally see and hear the evidence, they will give less or no weight to that evidence due to your theme in your opening statement because of the unfairness, improper administration, medical history, injury, etc. The theme can help empower the jury to see the evidence in the correct light and make the right decision. It is true that a sense of injustice drives people, but empowerment gives them the will to bring justice to your client. The theme helps also provide the jury with understanding, thus empowering jurors to want to help your client. If the DWI case involves an accident, your power statement could simply be that “this is an accident case, not a DWI case.” The theme needs to be simple to be understood. It needs to be short, just like a “sound bite” a reporter leads with to begin a news story.

In terms of trial preparation and creating the trial theme, I prefer to begin my trial preparation backwards. I start first with preparing my closing arguments I intend to make based upon the evidence. My theme is based on these arguments. I then prepare my cross-examination with the intent of repetitiously weaving my theme throughout my questions. My opening statement comprises the power statement, theory, and client’s story to enable the jury to assemble the pieces of the puzzle they receive from our vantage point.

Let the Jury Know How Much You
Care About Your Client in Your Delivery

The courtroom is the theater where a trial lawyer performs. The manner in which a lawyer delivers his/her opening statement will affect the jurors’ attitudes toward the information to be conveyed. Jurors will rarely, if ever, be impressed with how smart a lawyer is, but jurors can be, and often are, impressed with how much a lawyer cares. The classic gesture of just putting your hands on your client’s shoulders during trial is not enough. It has to be real, not staged. I once heard a funny cigar-chomping cowboy named Kinky Friedman say: “Money can buy you a fine dog, but only love will make its tail wag.”

If a lawyer does not care for his client and demonstrate it to a jury, how can he/she expect the jury to care about the client? Jurors can see right through lawyers who are not genuine. Credibility and confidence are key factors in your delivery. Do not try to imitate another lawyer you respect and admire. Be your­self. Be professional. One of the best ways to be a persuasive lawyer is to not talk like a lawyer. Speak from your heart, not your lawyer brain. Speak with confidence, use good eye contact and pauses when speaking with—not to—the jury. Cicero taught that what reaches the mind also moves the heart. Use passion, reason, and commonsense logic. Communicate your passion and logic in words the jury will understand. Above all, humanize your client by referring to him/her by first name and last name throughout the trial (not “my client”), and tell their story so that they know your client as someone they can relate to.

A powerful and persuasive opening statement does not just provide a road map for the jury before they see and hear the evidence; your opening also sets up your closing argument. In this regard, consider using rhetorical questions. “Is that fair?” you ask after describing the scene where the officer had your client perform roadside gymnastics, or describe the drill sergeant-like manner the officer treated your client. “Is that how we would want our loved one to be treated?” Rhetorical questions suggest the answer and your arguments without you having to make them. They also plant the seed of unfairness—i.e., reasonable doubt. Above all, you might be surprised by the head nods, or even verbal responses, you might receive from jurors. Posing rhetorical questions to jurors is equally persuasive in closing arguments as well. They are also fun in cross-examination too.

Make Concessions

There are going to be unfavorable facts in every trial case. If there were no unfavorable facts, our clients would not need us. Do not run or hide from ugly facts. Embrace them up front. It is imperative that you disclose and concede certain unfavorable facts. The jury is going to hear about them anyway, so they might as well hear about them from you. If the prosecutor already dis­closed the facts, use those facts in your client’s story so that they are neutralized or mitigated, or at least presented from a different point of view. By disclosing them and mitigating them, you draw the sting and minimize the pain they cause to your case. You also gain credibility in the eyes of the jury. You cannot win every battle in a trial, but by conceding certain things or facts and focusing on other things and facts, you can put yourself in a credible position to win the war.

Things to Avoid in an Opening Statement

Never overstate, embellish, or exaggerate any fact or statement you make in your opening statement. Doing so will undermine your credibility and do irreparable damage. The trial could be over for you before it even begins. Your relationship with the jury is the same as your personal relationships—trust and credibility that are lost can never be regained. You will be deemed untrustworthy by jurors, and your arguments will be summarily rejected, even if they are meritorious arguments. A jury will not buy into your client’s story unless they trust you.

Never respond and answer the prosecution’s opening statement. Present your story, and let the jury understand the other side of the pancake.

Do not promise something that you cannot, or will not, deliver. Jurors will hold you accountable and responsible for most everything you say. One important exception is in telling your client’s background in opening. Do not tell the jury your client will testify and you will hear this and I will prove it to you—unless you intend to do just that. The client’s background needs to be introduced or prefaced with other facts you refer to in your opening statement, even if you don’t know whether your client will testify. Jurors are mostly forgiving of defense counsel who does not bring in evidence to prove the client’s background so long they are continually reminded that the State always has burden of proof. Understand the risk of presenting good information about your client in your opening without presenting evidence during trial and proceed with caution, or at the very least tactfully present the client’s background information. Choose your words carefully.

Never assume a burden of proof you do not have. Let the focus be on what the State has to prove.

Never tell jurors that what you say is not evidence. A lawyer who prefaces his opening statement with such a statement totally undermines the effectiveness of a good opening statement and shoots him/herself in the foot. Such a statement is also a waste of time and breath. Also, do not waste time talking about trial procedure. Leave that for the prosecutor and judge. If the prosecutor wants to bore the jury with talking about how a trial takes place, let it be. Focus on your client’s story, not the state’s allegations against your client. Focus on your theme: The officer rushed to judgment, or failed to thoroughly investigate, etc. If you allow the state to frame the issue and put your client on trial, you will likely lose. Having a theme with a story to back the theme will help the jury focus on the unfairness of how your client was treated, or whatever theme you determine. You want the jurors to view the evidence from your client’s perspective, not the state’s or the arresting officer’s perspective.

Avoid personal attacks on the prosecutor, police officers, and opposing witnesses. You can attack their arguments all day long without attacking them personally. Jurors will more easily believe an officer is mistaken than the officer is a liar. Even when I feel the evidence proves an officer is lying, I try to avoid calling the officer a liar because not all jurors may agree. You can infer the officer is lying by simply saying: “I know where I grew up we had a name for people like that, and I’m quite sure you do too.”

Primacy and Recency

Psychology and human experience tell us that a listener tends to remember the first and last words the listener hears. Jurors are no different. Jurors will tend to remember what is said to them first and last. Have a plan. What is it that you want the jurors to talk about in the jury room? Choose the first and last thing you want them to hear and communicate it to them in understandable terms. If you want them to focus on reasonable doubt, consider some of these approaches:

As I talked about at the beginning of this trial, the burden of proof is on the government to prove each and every element of the crime that is charged beyond a reasonable doubt. What is reasonable doubt? I expect the judge to tell you that it means what it sounds like: a doubt for which you can give a reason. As this list of reasons for doubt will show, the State has failed to meet their burden (then use a visual aid to list “reasons for doubt”).

Ladies and Gentlemen, I have tried my share of cases over the years, but I still can’t get over the butterflies I feel when I stand before a jury and am charged with speaking to you about the fate of Mr. Smith. I fear that some jurors might decide this case on how much they dislike drunk drivers rather than making sure that the State has presented enough evidence in this case to prove Mr. Smith is guilty beyond a reasonable doubt.

This is not a contest, there are no winners and losers. Surely the State of Texas comes out a winner when one of its citizens avoids a wrongful conviction. The officer told you that it’s not going to have an impact on his job if Mr. Smith is found not guilty. He told you that he arrested Mr. Smith on suspicion of driving under the influence. And that’s OK. The night of January 25th was the time to act on suspicion, today is the time to serve justice. The prosecutor will call in the next case for trial, she is going to go on doing her job, and Mr. Smith? Well, he’s been through quite a bit with being arrested and put on trial—he can go on with the rest of his life as you can go on with yours.

If you’re in the jury room and are having a hard time deciding this case, don’t fight it! You have already reached a conclusion. It is okay to say at that point, “my mind is unsatisfied.” That is the doubt of the law, and I expect the judge will instruct you that under those circumstances, it would be your duty to acquit the defendant and find him not guilty.

Use of Trilogies

Literature and history have taught us that there is a dramatic benefit to communicating in sets of three. Roger Dodd and Larry Pozner devote an entire chapter to “trilogies” in their Cross-Examination: Science and Techniques book that no trial lawyer should be without. Trilogy is a technique of finesse, not force. The power of trilogy stems from its content. Its form makes it memorable, and it is therefore a more likely topic of conversation in the jury room. Here are a few examples:

He walked normally, talked normally, and stood normally on the videotape.

Without a check for calibration with each test, this machine is inaccurate, unreliable, and unscientific.

I expect the judge to tell you that reasonable doubt may come from the evidence, a lack of evidence, or a conflict in the evidence. (Then consider using a chart where you can list facts in each category.)

If your minds are wavering, unsettled, or unsatisfied, then that is the doubt of the law, and in that event you should acquit the defendant.

You must start strong with your sound bite or power statement. You must also finish strong, tying your story back to your power statement and theme. Research by marketing experts determined that repetition sells cigarettes. Repetition—by way of using trilogies—also helps persuade a jury.

Visual Aids

We have become an increasingly visual society. A lawyer who takes the time to develop effective visual aids when it is time to advocate for his client will be light years ahead of his opponent. We form our opinions about the world around us based upon our senses. The more senses we can reach in closing argument, the better our chances are that our point will get across.

Some lawyers have attempted to re-create in the courtroom the experience of being stopped by the police and asked to perform field sobriety tests. The limits on re-creating any scene in a courtroom environment are limited only by the imagination (and, of course, the trial judge). We have found that creating reusable exhibits helps not only in communicating our point to the jurors, but also in helping us develop and organize our closing. When you are freed from your notepad and your preparation is centered around the use of exhibits, you are free to express more emotion, and to feel more confident that you will say everything that needs to be said.

Conclusion

The above ideas and suggestions successfully persuade jurors every week in courtrooms throughout America. These ideas also help captivate television audiences each and every day. It is my hope that these approaches will inspire criminal defense lawyers to apply their creative abilities as much to opening statement as they apply to other areas of a criminal trial. As trial lawyers, we must personally work on new and different ways of persuading a jury of finding reasonable doubt in our cases.

Credits: Special thanks and credit go to Mike Hawkins of Atlanta, Georgia, for his assistance and sharing his examples of primacy and recency, plus his use of trilogies and visual aids. Mike “Hawk” Hawkins is a gifted and persuasive storytelling trial lawyer. A regent with the National College for DUI Defense, Mike has been Board Certified by NCDD since 2001. He is certified to operate the Intoxilyzer 5000, and is a frequent lecturer on DUI issues in Georgia and across the country. He is AV-rated by Martindale Hubbell and has been named to the Best Lawyers in America, named a Georgia “Super Lawyer” in DUI Defense by his peers, and is one of “Georgia’s Best Lawyers,” named by the Atlanta Journal-Constitution. Hawkins presently serves as Vice-Chair of NACDL’s DUI Committee. Although “Hawk” roots for the Alabama Crimson Tide every weekend in the fall, deep down “Hawk” wants to be a Texan, as he is usually found barbecuing for his friends and family on those weekends.

Doug Murphy is a partner with Trichter & Murphy, P.C., based in Houston, Texas. Doug is a nationally recognized legal seminar lecturer and author of numerous published legal articles. Doug is a Regent with the National College for DUI Defense. He is a co-chair of the DWI program with the Texas Criminal Defense Lawyers Association (TCDLA), in addition to serving his second term on the Board of Directors. Doug is board certified in DUI/DWI Defense by the National College for DUI Defense, and is also board certified in criminal law by the Texas Board of Legal Specialization. Doug has been recognized as a Texas Super Lawyer Rising Star by Texas Monthly magazine every year since the recognition began in 2004, and as a Texas Super Lawyer in 2009. Doug was also recognized as a Top Lawyer for the People for being one of the best DWI lawyers in Texas by H-Texas magazine. Frequently sought after as a news commentator on DWI and other criminal law issues, Doug was referred to as the “Drinking Driver’s Best Friend” by the Houston Press.

Dealing with ICE Holds – By Fernando Dubove

You’re responding to a 2:00 a.m. jail call. Your client’s at the county jail charged with DWI, possession of marihuana, and unlawful carrying of a weapon. Luckily you’re able to get a reasonable bond set, BUT . . . by the time you get to the jail to post your client’s bond, immigration has placed a detainer. Your case is shot. Or is it? And your client is going to be deported. Or is he?

 

Two years ago, Immigration and Customs Enforcement (ICE), the immigration enforcement division of the Department of Homeland Security, began emphasizing the removal of criminal aliens from the United States. ICE began working with local law enforcement to help them identify all non-U.S. citizens arrested. The number of immigration detainers multiplied for persons arrested for even minor traffic violations like driving without a license and misdemeanor offenses. Misconceptions have grown over what rights persons with immigration holds have.

The purpose of this article is to guide criminal defense attorneys on how to handle incarcerated clients with immigration holds.

Legal Authority for Immigration Holds

The Department of Homeland Security can place a detainer advising a state prison, or another law enforcement agency, that ICE seeks custody of an alien presently in their custody. 8 CFR Sec. 287.7(b). The law enforcement agency shall hold the person for up to 48 hours, excluding Saturdays, Sundays, and holidays, to allow ICE to assume custody. 8CFR Sec. 287.7(d). The regulations empower the Department of Homeland Security to issue detainers “for the purpose of arresting and removing the alien.” 8 CFR Sec. 287.7(a) These regulations create three ground rules necessary to understand when dealing with an Immigration hold.

First, an immigration detainer does NOT give ICE immediate custody of your client. A detainer is like a lien. ICE will not take custody of your client until the law enforcement agency detaining him is set to release him. In other words, ICE will not move him, consider the particulars of the case, or (in a worst-case scenario) deport him until he bonds out, the charges are dropped, or he’s completed his sentence. This gives the family and the criminal defense attorney time to map out a plan for dealing with ICE and the Immigration Judge once they get custody of your client. It also gives the criminal defense attorney the chance to explore ways to tailor a plea or sentence to mitigate the client’s immigration exposure.

Second, pending charges cannot be the basis for the detainer. The only legal basis for an immigration detainer is either your client is illegally in the United States, or he is legally in the United States, perhaps as a Lawful Permanent Resident, but has been convicted in the past of a deportable offense.

Third, just because your client is in jail and has an immigration hold does not mean he will be deported or that he will not be released once he is transferred to immigration’s custody. Unless your client has a conviction that subjects him to the mandatory detention or has been previously deported, he is eligible for an immigration bond, to be set initially by the ICE officer who reviews his case once he transferred to their custody. If the ICE officer does not set a bond amount, or sets too high a bond amount, an Immigration Judge can hold a Bond Redetermination Hearing to reconsider your client’s bond amount.

Once the immigration bond is paid, your client will be released pending a future hearing date with an immigration judge. Even persons illegally in the U.S. are eligible for bonds. If an immigration bond is set and paid, the client will have several months before his hearing with an immigration judge. Even if he is ordered to return to his country, it can often be under a voluntary return order, giving your client up to 120 days to leave the U.S. on his own without the penalty of a deportation order.

What to Ask Clients Detained with Immigration Holds

You’ve made the trip to the jail to bond your client out, only to find out he’s got an immigration hold. Before returning to the office, ask your client these questions:

What is his immigration status? Does he have legal status in the U.S.? If he is illegally in the U.S., check if he has an application pending (usually an I-130 petition) through a family member (spouse, parent, sibling). If he has a pending petition, does he have a copy of the receipt or approval notice sent by immigration? Someone without legal status in the U.S., but with a pending petition through a family member, is in better position to secure an immigration bond with ICE and an Immigration Judge.

Has he been deported before? If your client has been deported before, his immigration rights to a bond are severely harmed. Even if your client has a lawful permanent resident card (the “green card”), make sure he has not been previously deported.

What was he arrested for? Does he have any priors? Prior convictions will affect his bond setting by both an ICE officer and an Immigration Judge.

What family with lawful status do they have in the U.S.? Family ties will affect bond settings.

Preparing for Immigration

Let’s go back to the opening scenario. Your client is arrested for DWI, possession of marihuana, and unlawful carrying of a weapon. By the time you try to pay the bond, your client has an immigration hold because your client is illegally in the U.S.—or he is a Lawful Permanent Resident (he has his “green card”) but was previously convicted of a deportable offense. Remember that immigration will not take custody of your client until the state is ready to release your client. This gives you time to address the immigration aspects of his case, pursuant to Padilla vs Kentucky, with your client, his family, and an immigration attorney.

Remember, there are ways of ways of tailoring a sentence or conviction (like pleading to a lesser included offense) that can decrease or eliminate your non-U.S. citizen client’s exposure to deportation. As Justice Stevens wrote in Padilla vs Kentucky, “Counsels who possess the most rudimentary understanding of the deportation consequences of particular criminal offenses may be able to plea bargain creatively with the prosecutor to craft a conviction and sentence that reduce the likelihood of deportation, avoiding a conviction for an offense that automatically triggers removal consequences.”

Once the criminal bond is posted, he will be moved to ICE within 48 hours. There will be two chances at getting the detainee an immigration bond, first with the ICE officer who makes the initial bond setting and, if that doesn’t go so well, a second chance before an immigration judge. A hearing with an Immigration Judge can be scheduled usually within less than one week after filing a Motion for a Bond Redetermination Hearing with the Immigration Court. If the client is in the U.S. illegally—but has a visa petition pending through a family member and lives with family members with legal status in the U.S.—having copies of the visa receipt and proof of the family’s legal status ready to give the ICE officer when the client is transferred to ICE can help secure an immigration bond immediately upon being transferred to ICE custody.

If an immigration bond is set and paid, even under a worst-case scenario, the client will be free for typically 8–10 months by ICE while awaiting a hearing with the immigration judge and complying with any voluntary return order issued. This can give the criminal defense attorney time to resolve the criminal charges in a way that minimize the client’s immigration exposure and leaves the door open for him to stay in the U.S.—or legally return to the U.S. at some future time.

Fernando Dubove received his B.A. and J.D. from the University of Texas at Austin. In 1987, he served as Assistant Director in Texas for a Washington, D.C.,-based immigrant and refugee rights organization. He served as the staff trial attorney for the Diocesan Migrant and Refugee Services in El Paso. He is now in private practice with offices in Dallas and Tyler. Fernando is the author of “Immigration Implications for Crim­inal Convictions,” published in the Voice of the Defense, and co-author of “The North American Free Trade Agreement: Immigration and Labor Considerations,” published in the Texas Bar Journal. He is a member of the American Immigration Lawyers Association. The Dallas Observer named him the best Immigration Attorney in Dallas. Born in Argentina, Fernando is fluent in Spanish and English.

Characters – By Judge Larry Gist

Nobody who has been in any type of business or profession for any length of time hasn’t run into some “characters.” I am certainly no exception, and after working in the criminal justice system for over 36 years, I had some unforgettable people cross my path.

So I thought I might take a moment and reminisce about some of the offenders I’ve dealt with over the years. Unfortunately in so many cases, their lights were on but nobody was home.

Let’s start with Little Joe. When I first became an Assistant District Attorney, I was assigned like most new prosecutors to work in Justice of the Peace Courts. That’s where I first met Little Joe.

I was a young prosecutor and he was a young thief. I prosecuted him several times for Class C misdemeanors. Then I got promoted to County Court at Law cases, and sure enough, here came Little Joe, now stealing in Class A & B amounts.

As my career advanced, I was assigned to felony court. Who do I see there but Little Joe, now committing Third Degree Felonies. I later became the Chief of the Trial Division, and Little Joe moved up to Second Degree offenses. And as a newly elected judge, I got to sentence Little Joe to life in prison under the then-mandatory habitual offender statute.

Our careers paralleled each other. As I went up a notch, so did Little Joe.

And then there was Frank. I was prosecuting misdemeanor offenses when I first ran into him. Way back then, our jail was on the top of the courthouse building. The sheriff didn’t have funds to hire professional cooks for the jail kitchen, so inmates had to handle all of the food preparation. And an inmate who knew how to cook was very valuable.

Frank was a seaman and cooked on ships when he wasn’t in jail. And he had been in almost every jail and prison in the country at one time or another. He was at the time in our jail charged with felony forgery. Frank was so valuable to the sheriff that he asked to have the charges handled as misdemeanors so Frank could serve all of his time in our jail—and do the cooking. The judge agreed, a deal was struck, and Frank got sentences totaling several years in our jail.

About two years later and during the Vietnam War, Frank wrote the judge. He indicated that he had a chance to become a seaman on a ship under contract to the government of Vietnam. If he could get on that ship, he would be in Vietnamese waters for more than three years. He promised that if he wasn’t killed, he would never enter our jurisdiction again for the rest of his life.

All of the county criminal justice officials finally agreed to give Frank some trustee credit and cut him loose early. The ship was to leave the Port of Beaumont at 3 p.m. on Saturday. The Port is exactly one block from the jail, and the judge ordered the sheriff to release Frank at 2:50 p.m., drive him to the ship, watch him board, and watch the ship sail away.

At precisely 2:50 p.m. Frank got in the sheriff’s car for the one-block ride. Next to the only red light at that time was a small building known as “Smokey the Bar.” Frank asked the deputy sheriff if he could go in and get some cigarettes, as the ship wouldn’t get to Vietnam for three months. In a few moments Frank was back in the car, rode to the ship, and the deputy watched it sail away.

The next week I received a forgery complaint from Smokey the Bar. Seems Frank went in there·and forged a check for the cigarettes. Now that’s a criminal. Not only did he commit a new crime; he used a deputy sheriff as the get-away driver! They don’t make many like Frank anymore. By now Frank is certainly deceased and probably residing in an exceptionally hot environment. I’ll bet anything that he’s figured out a way to steal gasoline from the devil!

And finally, there was the Old Gray Fox. He was called that because he had a full head of thick gray hair, and he could break into almost anything. His specialty was safe jobs, and he was a recognized expert. Unfortunately from his standpoint, he got caught fairly often and spent a considerable portion of his life in prison.

But his reputation as a safe burglar remained strong. Let me tell you just how strong. Our police once caught two burglars and were interrogating them about other crimes they had committed. The police told them they would only file one charge against them but wanted to clear the books regarding their other offenses.

And this is the story they told. They had entered a local business one night by cutting a hole in the roof. Once inside, they attempted unsuccessfully to open the safe. Nothing they tried worked. So in desperation they picked up the phone and called the Old Gray Fox, who was at home asleep.

They described their problem, and he told them to put their punch in a particular location. But that didn’t work. So he told them to place their drill in another spot on the safe. Again, their attempts failed.

So the Old Gray Fox got dressed, drove down to the building, climbed on the roof, dropped down to the office, and opened the safe for them. Seems there was almost $40,000 in the vault, and the grateful burglars asked him what part he wanted as his share.

The Old Gray Fox told them that this was their job and he didn’t want anything, but in the future if they couldn’t handle the job, don’t call him at home when he was sleeping! Now that’s a professional.

Way back then, so many criminals were professionals in the sense that when they were caught they knew it. And all they tried to do was lower their business expense and get as little pen time as they could. None of them would think of physically hurting an officer or anybody else for that matter.

In their minds, they were crooks—but besides being thieves, not really bad people.

Things have gotten so much more dangerous throughout the years. Violence has become the overwhelming focus of our modern-day criminal justice system. So in a strange way, it’s refreshing to remember a time when most of the crooks were characters. Not killers.

Senior District Judge Larry Gist of Beaumont, a Presiding Judge at the Drug Impact Court, is also a member of the Judicial Advisory Council (JAC), which advises the director of the Community Justice Assistance Division and the Texas Board of Criminal Justice on matters of interest to the judiciary. He received his undergraduate degree from Notre Dame and graduated from the University of Texas Law School, serving initially as an assistant state’s attorney before the Texas Court of Criminal Appeals. He is a member of the adjunct faculty at South Texas College Law, Houston, teaching criminal law and criminal trial advocacy. Larry previously served as an adjunct professor in the criminal justice department and of psychology and law in the College of Graduate Studies at Lamar University, Beaumont, Texas. Besides writing for the Voice for the Defense, he is a regular contributor to the Texas Prosecutor and the Texas State Trooper.

March 2011 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION


Features

20 | Reactive Attachment Disorder – By John Niland
24 | Tell Me a Story: “60 Minutes”-Style Opening Statement – By Doug Murphy
29 | Dealing with ICE Holds – By Fernando Dubove
32 | Characters – By Judge Larry Gist
43 | Motion for Court to Take Judicial Notice of Nystagmus Causes Other Than Alcohol – By Johnathan Ball

Columns
8 | President’s Message
10 | Executive Director’s Perspective
12 | Editor’s Comment
14 | Federal Corner
18 | Said & Done

Departments
5 | TCDLA Member Benefits
6 | Staff Directory
7 | CLE Seminars and Events
35 | Significant Decisions Report

President’s Message: Elected Officials Should Govern, Not Rule – By William Harris

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Statement by Chief Justice Wallace B. Jefferson on Proposed
Disciplinary Rules Amendments’ Defeat

The Court is grateful to the many lawyers who contributed their time and wisdom to proposing revisions to the Texas Disciplinary Rules of Professional Conduct. The current rules are outdated, and must be amended to account for changes in the practice and in the law that have occurred since the bar last adopted comprehensive revisions 21 years ago. We intend to ask the Bar’s Board of Directors to make prompt recommendations about a timeline for future proceedings relating to the rules. In the meantime, the Court will consider what action, if any, may be necessary to carry out its responsibility to maintain standards of professional conduct that protect our justice system and the people it serves.

From the Supreme Court website

Recently, the State Bar’s referendum on the proposed changes to the Rules of Professional Conduct were resoundingly defeated by the lawyers voting. The statement above was Chief Justice Jefferson’s response to the defeat of the proposed rules changes in the referendum.

I do not know what motivated all the lawyers who voted no, but the Executive Committee of the Texas Criminal Defense Lawyers Association recommended a “no” vote to its members. For criminal defense lawyers, it seemed that the main issues related to the way we charge fees, the circumstances under which we may withdraw from representation for non-payment of fees, and weakening of the protections of confidentiality of client information. There were many who had philosophical issues with the State Bar’s open advocacy for passage of the rules changes. Finally, many of us questioned the need for the massive rewriting of rules that seem to most of us to be working well. In other words, this seemed a solution in search of a problem.

Criminal defense practice is markedly different from civil practice. Particularly from the representation of wealthy individuals or business entities. Those types of clients are most comfortable with hourly billing. They budget for it and are sophisticated purchasers of legal services. They expect to have routine legal expenses and only want to pay for the time necessary to address those needs. The person charged with a crime has a large problem that they want resolved for an acceptable fee. They are not accustomed to routinely using a lawyer’s services. They want to know how much it will cost to secure representation to resolve that problem. They regard hourly billing as the opening of a vein with no specified limit. They prefer fixed fees for services.

The criminal defense attorney often finds that getting paid for services is a struggle. It is almost universally our experience that fees not collected in advance will simply go unpaid. As an old lawyer explained to me years ago, if you win their case the client feels he or she should not have to pay because they were not guilty. If you lose, you are not worth the cost because you did not achieve the result the client wanted. Finally, of course, if you lose and the client goes to prison . . . well, the pay rate is pretty low there. It is essential to the function of a practice that the lawyer be able to pay staff and maintain his or her office as well as make an income. We rightly distinguish the obligations of a profession from a business, but it is still the way we make a living.

These rules are perceived by the vast majority of criminal defense attorneys as fatally flawed. We assumed that the submission of the rules to the membership of the State Bar was in­tended to be a meaningful exercise, and that the Court and the State Bar would honor the result. It is our hope that rather than imposing the rules by fiat, we might open a new dialogue about why changes are needed and what those changes should be. TCDLA stands ready to participate in this process if the Court and the State Bar will allow us to do so. In a democracy, votes should matter. In the best tradition of democratic governance, officials should govern, not merely rule.

Executive Director’s Perspective: Board in Motion – By Joseph A. Martinez

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Special thanks to Doug Murphy, Randy Wilson, and Teana Watson, course directors for the Cross-Examination seminar held in Houston. Thanks to their efforts and the efforts of our speakers, we had 184 attendees. Terry MacCarthy was one of the speakers.

Very special thanks to Lydia Clay-Jackson and Tim Evans, deans of the 35th Annual Texas Criminal Trial College in Huntsville. Very special thanks to our 40 faculty members who helped make this year’s college a big success, hosting 80 students. Thanks to all our members who recommended students to the college. Thanks also to the TCDLEI board for hosting the Hostility Room for the week. Thanks to John Yarabeck, Dean of Sam Houston College, and to Ms. Ann Broussard for their support. Also Mr. A. K. Khan, General Manager of the University Hotel, for his support. We could not put on the college without their help.

Special thanks to course directors Philip Wischkaemper, John Niland, and Brad Levinson for the Capital/Habeas seminar held in Houston February 3–4. A total of 79 attendees endured the chilling weather.

Special thanks to course directors David O’Neil and Bill Habern for the Post-Conviction seminar also held in Houston February 3–4. Thanks to their efforts and the speakers, we had 73 attendees.

Thanks to course director Jimmy Gonzalez, we had a very successful seminar in Edinburg, with 106 attendees—the largest number of lawyers we have ever had in Edinburg.

Special thanks to NACDL for asking TCDLA to co-sponsor a reception in San Antonio on February 18. Bill Harris presented NACDL President and TCDLA member Jim Lavine a Texas gift of appreciation at the NACDL Board meeting also held in San Antonio.

The TCDLA board of directors met in Houston on March 5, 2011. The following were informational items:

  • Grant Scheiner reported the Droid phone application would be ready by this year’s Rusty Duncan Advanced Criminal Law Course.
  • Greg Westfall reported the Voice Online had over 22,000 hits this month. Please visit the site. More information about both items are on the TCDLA home page and in Greg’s column this month.

The following motions were passed by the board:

Approval of Minutes of December 4, 2010, Board Meeting

  • Motion by Michael Gross to approve the December 2010 board meeting minutes.
  • Motion seconded by Gary Trichter. Motion carries.

Approved motion to include in minutes electronic motions passed

Hall of Fame Inductees

  • Email votes on February 15, 2011, approved to select Mr. Charles D. Butts (San Antonio) and Mr. F. R. “Buck” Files (Tyler) to be this year’s inductees into the Hall of Fame.

NACDL Reception

  • Vote on February 1, 2011. Motion by Craig Jett and seconded by Gary Trichter to make a contribution to NACDL for $8,000 for the NACDL reception in San Antonio on Friday, February 18, 2011. The final contribution given was a little over $4,000.

CCA mileage reduced to 45 cents

  • Motion by Gary Trichter to approve mileage rate of 45 cents
  • Motion seconded by Jim Darnell. Motion carries.

Federal Grant for Training Capital Lawyers

  • TCDLA received an email from Monique Gonzales with the Court, asking if TCDLA would consider submitting for a federal grant for training capital attorneys in Texas. The grant would be for a total of $250,000 for two years—$50,000 in administration fees will go to the Court and the remaining $200,000 will be split evenly between training criminal defense lawyers and prosecutors. TCDLA’s grant submission needs to be submitted by March 9, 2011.
  • Motion by Keith Hampton to apply for the grant.
  • Motion seconded by Nicole Deborde. Motion carries.

FY 2011 TCDLA Budget

  • Motion by Gary Trichter to approve the budget.
  • Motion seconded by Stanley Schneider. Motion carries.

Articles for Voice for the Defense

  • Board Members have an obligation to submit two articles to the Voice per year.
  • Motion by Pat Metze to approve that staff does not have to ask a board member for permission to use their materials submitted for seminars.
  • Motion seconded by Emily Detoto.
  • Proposed amendment by Pat Metze to get permission by the author of the material.
  • Question by Stanley Schneider. Motion carries.

Bylaw Committee motion to table discussion because of technical problems with conference call

  • Gary Trichter gives an overview of the proposed bylaw changes.
  • Motion by Susan Anderson to table, seconded by Emily Detoto.
  • Vote is a 15–15 tie.
  • Bill Harris breaks the tie and the motion is tabled.
  • Bill Harris and Gary Trichter will write pro and con articles on the bylaws for publication in the Voice.
  • The bylaws will be voted on at the June Annual meeting in San Antonio.

Committee Reviewing Advertising in the Voice

  • Jim Darnell sent email to Joseph suggesting that advertisements must be beneficial to the members, cannot be in di­rect competition, and have to be approved by the editor of the Voice.
  • Motion by Jim Darnell to approve the criteria for advertising in the Voice.
  • Motion seconded by Stanley Schneider. Motion carries.

Pro Bono Award Committee

  • The committee has extended the deadline for accepting nominees, expressed desire to name the Pro Bono Award the Charles D. Butts Pro Bono Award.
  • Motion by Scrappy Holmes to approve naming the Pro Bono Award after Charles D. Butts.
  • Motion seconded by Adam Kobbs. Motion carries.

Cynthia Orr has requested Bill Harris write a letter to the District Attorney to do what is right in a particular case.

  • Motion by Stanley Schneider to submit the request to the Amicus Committee.
  • Motion seconded by Pat Metze. Motion carries.

Adjourn Meeting

  • Motion by Warren Wolf to adjourn meeting.

Please start making plans to join us in San Antonio June 9–11, 2011, for the 24th Annual Rusty Duncan Advanced Criminal Law Course. Breakout sessions include Appellate, Boot Camp, and Computer/Technology. This year’s event will also celebrate TCDLA’s 40th anniversary. The Hyatt Regency will be the host hotel. The golf tournament has been moved to Thursday, June 9.

TCDLA’s legislative effort is being coordinated by the TCDLA Legislative Committee, chaired by Mark Daniel and Rick Hagen. Allen Place is our senior lobbyist, assisted by Kristin Etter and David Gonzalez. They will keep membership up to date on bills during the session.

We invite all our members to attend the Annual Membership Meeting on Saturday, June 11, immediately following the adjournment of the Rusty Duncan Advanced Criminal Law Course at the Henry B. Gonzales Convention Center in downtown San Antonio.

Good verdicts to all.

Editor’s Comment: Voice for the Defense Online – By Greg Westfall

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1972

The first video game (PONG) and the first handheld calculator (HP-35) are introduced. Five White House operatives are caught burglarizing the Watergate Hotel. The Volkswagen Beetle sets the record for the most cars sold worldwide. And Voice for the Defense is born as an eight-page hole-punched pamphlet issued four times per year. Over time, we have evolved into a ten times per year publication averaging between 40 and 52 pages per issue.

Thirty-nine years later, we take the logical next step. On February 11, 2011, Voice for the Defense Online was launched. See http://voiceforthedefenseonline.com/. With it, we also launched the Voice for the Defense Blog and the Voice for the Defense Online Facebook page. I affectionately call it “Voice Online,” or “VOL” for short.

The concept for Voice Online began at the 2009 Texas Criminal Trial College. I circulated a rough draft in September 2009, and the Board approved funding. Melissa Schank took the lead on getting a web designer lined up and found Stacy Clifford and Chili Pepper Web (http://www.chilipepperweb.net/). Melissa, Stacy, and Craig Hattersley have all gone way above and beyond in getting VOL off the ground. The support of the Board has been unflagging.

This is a major milestone in our evolution. In fact, fairly shortly we will phase out our print version, which, by the way, is really breathtakingly expensive to produce. This is not just a replacement for our print magazine, however. VOL is quite a bit more. I want to introduce you all to some of the features.

Archives

First of all, the VOL Archives contain almost every Voice for the Defense TCDLA has ever published—all the way back to Winter 1972 (I think we may be missing one issue). The archives section is keyword searchable. If you have ever written an article, run your name. It will probably come up. If the keywords you enter do not pull up what you think they should, just know that keywording is a work in progress and will be for a while. The tables of contents will be, for a while, continuously updated to include more information for searches. To help, there is a downloadable index available on the Archives page.

Each of the back issues has been scanned in as a downloadable PDF file. Click on the cover once and the table of contents will expand to show the features. Click on the cover a second time and the columns become visible as well as a blue button at the bottom of the page you click to download the entire issue. Good quality scanning is also a work in progress. We will be working on improving the quality of the archives for some time.

Voice for the Defense Blog

Click on the “BLOG” button and you will be taken to the blog page. Blog feeds appear on both this page and the front page. This is mainly for search engines and to showcase posts from the blog. You must click “Voice for the Defense Blog Home” at the top of the “BLOG” page to get to the front page of the stand-alone blog. Also, if you click on any of the feeds, you will be taken to that post on the blog, after which you can click either “Voice for the Defense Blog” at the top of the page or the little “Home” button with the green house to take you to the front page.

It is very easy to register with the blog, after which you can leave comments. Please do so. Also, if anyone wants to become an author, just let me know. Authors can post. Everyone else can comment. I would like to have a bunch of authors who would like to post as often as they can. I want both substantive posts and commentary. You can see the categories we have so far. There will be more. New categories will emerge as the content emerges. If someone wants to write on DWI, the Legislature, practice in a small town, whatever—just let me know. We would love to have you.

I have created a how-to PDF slide show that guides you though registering with the blog, viewing the blog, and leaving comments. You can access it by going to the BLOG page.

The Future

As it stands right now, Voice Online is technically not an online magazine. Over the coming weeks, we will become one. When you look at the opening page, across the top of the page you will see buttons for “FEATURES,” “SDR,” etc. At that point, we will be a true online magazine. Searchability will improve dramatically as individual articles become archived. We will still have archives back to 1972, but those will always be dependent on keywords for searchability, as they are scanned-in PDFs. From 2011 on, as actual text gets archived, everything will be searchable by words in the entries themselves. You will immediately see the improvement in searches.

This site is not for our members only. Anyone can research and download the archives. Anyone can leave comments on our blog. The site has been up for five weeks as of this writing, and we have had 75,000 hits. With content constantly changing, I can see a time in the not-too-distant future when we will be getting millions of hits in the space of a year. If some of our members become active bloggers and start to gain a following, we could see tens of millions. This would be a huge benefit to TCDLA as a whole.

Finally, I want to stress that this is still a project in the works. We need your input and suggestions. Every one of us will have a part in making this experiment work.

Federal Corner: 15 Years for 1.5 Seconds of Nudity—Reversed – By F. R. Buck Files Jr.

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On February 25, 2011, the United States Court of Appeals for the Fifth Circuit reversed the conviction of a defendant charged with the production of child pornography. United States v. Steen, ___ F.3d ___, 2011 WL 667977 (5th Cir. 2011). [Panel: Circuit Judges Higginbotham, Smith, and Elrod (per curium) (concurring opinion by Judge Higginbotham)].

Let a voyeur with a video camera into a tanning salon and you can anticipate that he will engage in criminal conduct and be discovered. That’s what happened to Alan Ray Steen. He frequented the Electric Sun Tanning Salon in Odessa, Texas. Because the walls in the rooms did not reach the ceiling, Steen could stand on a chair, hold his camera on top of the partition between the rooms, and film the female in the adjoining room.

Steen had done this several times before being discovered and arrested for a violation of Texas Penal Code §21.15 (Improper Photography or Visual Recording). When investigators examined his camera, they found a recording of C.B. When they learned that she was 16 years old at the time, Steen’s life took a turn for the worse.

Federal authorities made the decision to prosecute Steen for a violation of 18 U.S.C. §2251(a), the federal child pornography statute. At trial, the issue was whether the videotape included a “lascivious exhibition of C.D.’s genitals or pubic area.” An appendix to the opin­ion sets out what was on the video that was admitted into evidence and played for the jury. The entire video is only 44 seconds in length. Below is a description of how the video progresses by the seconds:

Seconds 1–14: Blurry views of the tanning room and ceiling.

Second 15: Tanning bed comes into view.

Seconds 18–21: C.B.’s arm and part of her hair is visible.

Second 21: A more extended part of the C.B.’s back (including her lower back) and long hair may be seen.

Seconds 22–26: Blurry view of the ceiling.

Second 27–34: C.B. comes into view, and she is bending down toward the ground (and toward the camera). The video displays her head, back, and top of her buttocks for about two seconds. She stands up, turning away from the camera and towards the tanning bed; the video does not display any part of the front of her body.

Second 35: C.B. moves out of camera’s view (only the tanning bed is visible).

Second 37: C.B. sits into the tanning bed; her hair, stomach, and upper thigh are visible. Her pubic region is not visible because of how she is seated and the camera angle.

Second 38: The camera moves; C.B. is not visible.

Second 39: C.B. is fully nude lying on her back in the tanning bed. Her breasts are in the center of the shot, and her pubic region is visible on the far right side of the frame. Her legs are outside the camera’s view.

Second 40: The camera is moved, and the view of C.B. is partially obstructed by the wall partition. Her face is visible, but half of her body is hidden. (Part of her pubic region and left breast are visible for about half of a second.)

Second 41: C.B. closes the tanning bed and can no longer be seen.

Seconds 42–44: Blurry view of the ceiling.

[Emphasis added.]

At the conclusion of the evidence, Steen’s lawyer moved for a judgment of acquittal that was denied by United States District Judge Robert Junnel of the Western District of Texas. After the jury convicted Steen, Judge Junnel assessed his punishment at 15 years in a federal correctional facility—the minimum sentence under the statute. Steen timely appealed.

The Court’s per curium opinion contains, in part, the following:

[The Statute]

Section 2251(a) makes it unlawful to “use” a minor “to engage in . . . sexually explicit conduct” for the purpose of producing a visual depiction of that conduct. In assessing conduct under §2251(a), we ask “two questions: Did the production involve the use of a minor engaging in sexually explicit conduct, and was the visual depiction a depiction of such conduct?” Steen clearly used C.B. for the purposes of producing a nude video, but the statute requires more—the film must depict sexually explicit conduct. Accordingly, this court has found, “a child could be used in the production of a photograph, but the image in the ultimate photograph could be one that did not capture the child engaging in sexually explicit conduct. If this were so, a defendant might be charged under a different statute—perhaps child molestation—but not child pornography.”

[“Lascivious Exhibition” and the Dost Factors]

Here, the parties focused on whether the video was a “lascivious exhibition” of C.B.’s genitals or pubic area. The jury instructions included a description of the six factors first proposed in United States v. Dost that have been applied in this circuit to assess lasciviousness. These factors are:

1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area;

2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

4) whether the child is fully or partially clothed, or nude;

5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

This list, however, “is not exhaustive, and no single factor is dispositive.” Any determination of lasciviousness “will have to be made based on the overall content of the visual depiction.” Moreover, we note that these factors have never been deployed where a defendant’s conduct said to be criminal under the statute at issue proved to be no more than voyeurism.

[The Dost factors and the language of 18 U.S.C §2251(a)]

In considering the Dost factors and the statutory text, we find that the evidence was insufficient to find a lascivious exhibition of the genitals. First, the focal point of the visual depiction is not on C.B.’s genitalia or pubic area. Her pubic region is only visible for about 1.5 seconds. Moreover, the film did not accent the pubic area—to the contrary, the brief seconds the pubic region is visible, it is on the far side of the image’s frame. The first factor lacks factual support here. It does not point to a finding of lasciviousness.

The second and third factors consider whether the setting or pose of the depiction is sexually suggestive or unnatural. Traditional settings that meet this standard are beds or bedrooms. A tanning salon is not a sexually suggestive setting, nor are C.B.’s movements unnatural for someone who is tanning. Because she did not know she was being filmed, she is, of course, acting naturally. Under certain circumstances, lying on one’s back may be sexually suggestive, but that is not the case when the non-sexual activity being displayed requires one to lie on the back. The fifth factor, suggesting sexual coyness, is irrelevant in this case because C.B. did not know she was being filmed. She neither acts coy nor willing to en­gage in sexual activity.

The fourth Dost factor is nudity, which Steen’s video satisfies since C.B. was fully nude for her tan. However, the Supreme Court has held that “nudity, without more is protected expression.” Surreptitiously filming a nude tanner, on its own, does not meet the standard for producing child pornography.

The sixth factor is the most difficult to apply—whether the visual depiction is intended or designed to elicit a sexual response in the viewer. Here, the primary evidence of intention to elicit a sexual response is that Steen surreptitiously filmed a nude 16-year-old. However, as a Missouri district court held in a similar case:

These videos could not be considered to have been intended to elicit a sexual response in the viewer any more than mere nudity would, which several courts have concluded is not of a sexual character. We do have some limited context . . . that [the defendant] set up a camera . . . but that context indicates nothing more than an attempt to capture mere nudity and is very different than a person . . . telling a minor to undress, lay on a bed, and open his legs for a nude photo.

Even if one assumes Steen was stirred by his voyeuristic pursuits, there is insufficient evidence to conclude that the image of C.B.’s genitals was designed to elicit a sexual response or whether, perhaps, merely being a voyeur excited Steen. When a photographer selects and positions his subjects, it is quite a different matter from the peeking of a voyeur upon an unaware subject pursuing activities unrelated to sex.

[The Court’s Conclusion]

We have previously adopted the ordinary meaning of the phrase “lascivious exhibition,” which we defined as “a depiction which displays or brings forth to view in order to attract notice to the genitals or pubic area of children, in order to excite lustfulness or sexual stimulation in the viewer.” Here, the government’s evidence cannot meet this standard.

My Thoughts

  • As the Hon. Henry Politz, former Chief Judge of the Fifth Circuit, would have said, “Steen is a rara avis.” The Government has made the decision not to pursue a motion for rehearing or a motion for rehearing en banc. Alan Ray Steen wins.
  • One of the joys of reviewing the cases for this column is the opportunity that I have to see great lawyers at work. Steen was represented by TCDLA stalwarts Dan Cogdell and Brian Wice. Dan set up the issue in the district court, and Brian spiked it at the Fifth Circuit. Steen could not have had better representation.