Monthly archive

July 2011

June 2011 SDR – Voice for the Defense Vol. 40, No. 5

Voice for the Defense Volume 40, No. 5 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Cullen v. Pinholster, 131 S. Ct. 1388 (U.S. 2011); Reversed: Thomas (5–4)

A California state court convicted Pinholster of double murder and sentenced him to death. After exhausting state court remedies, he petitioned for habeas corpus relief in a California federal district court, arguing he was denied effective assistance at both the guilt and sentencing phases of trial. The district court upheld his conviction but granted habeas relief on his death sentence. The Ninth Circuit reversed, holding that the denial of habeas relief during the guilt phase was appropriate, but not during the penalty phase. The court noted that Strickland v. Washington requires trial counsel to investigate mitigating evidence at the penalty phase. Here, the court reasoned that counsel failed to meet his obligations.

HELD: A federal court cannot overturn a state criminal conviction on the basis of facts the defendant could have alleged, but did not, in state court. Limiting “review to the state-court record is consistent with our precedents.” Justice Breyer dissented in part: “I do not join Part III, for I would send this case back to the Court of Appeals so that it can apply the legal standards that Part II announces to the complex facts of this case.” Justice Sotomayor dissented in full: “Some habeas petitioners are unable to develop the factual basis of their claims in state court through no fault of their own.”

Fifth Circuit

Hunter v. Tamez, 622 F.3d 427 (5th Cir. 2010)

District court did not err in denying defendant’s habeas petition, filed pursuant to 28 U.S.C. §2241, challenging the Federal Bureau of Prisons’ (BOP’s) failure to grant him (by means of a nunc pro tunc designation) credit against his federal sentence for time spent in Texas state custody for unrelated state convictions. Although defendant argued that the BOP’s failure to give effect to the state court’s direction that the state sentence run concurrently with the federal sentence violated principles of federalism and comity, that argument was foreclosed by Leal v. Tombone, 341 F.3d 427 (5th Cir. 2003). Nor were there separation of powers problems; in the absence of specific direction from the federal sentencing judge, the federal sentence was presumed to be consecutive. The request for a nunc pro tunc designation, so as to make the federal sentence effectively concurrent, was thus equivalent to a request for clemency or commutation of sentence, which are traditionally prerogatives of the Executive Branch. Finally, the Fifth Circuit denied relief on defendant’s claim that the frustration of the parties’ understanding about his sentences running concurrently rendered his state plea involuntary; while possibly true, that claim was not cognizable here because defendant was no longer “in custody” on the state conviction.

United States v. Jefferson, 623 F.3d 227 (5th Cir. 2010).

(1) COA had jurisdiction, pursuant to 18 U.S.C. §3731, over the government’s interlocutory appeal of the district court’s order ruling inadmissible proof of defendant’s prior convictions for bribery and obstruction of justice. The district court erred in concluding that §3731 permits an interlocutory appeal only when the excluded evidence relates to an element of the charged offense; §3731 contains no such limitation and instructs courts to liberally construe the statute to effectuate its purpose. Moreover, the statute itself limits such appeals to evidence that is “substantial proof of a fact material in the proceeding,” not evidentiary rulings concerning matters that involve elements of the charged offense. Finally, under the statute, this evaluation is to be made by the United States Attorney, not by the district court; indeed, once the government files a timely appeal under § 3731 and the United States Attorney makes the required certification, COA cannot evaluate the materiality of the excluded evidence to decide whether or not to hear the appeal. Because COA did acquire jurisdiction upon filing of the government’s notice of appeal, the district court was divested of jurisdiction to take further action in the case. The Fifth Circuit vacated all orders issued by the district court following the filing of the notice of appeal.

(2) On the merits, district court erred, in a RICO conspiracy trial, in excluding evidence of defendant’s prior convictions for bribery and obstruction of justice for purposes of impeaching the defendant’s testimony. These offenses were ones involving dishonesty or false statement, and thus were proper fodder for impeachment pursuant to Fed. R. Evid. 609(a)(2). Moreover, the court had no discretion to exclude these convictions because Rule 609(a)(2) required their admission. The Fifth Circuit vacated the court’s order prohibiting impeachment with these convictions.

Arriaza Gonzalez v. Thaler, 623 F.3d 222 (5th Cir. 2010)

The Supreme Court’s decision in Lawrence v. Florida, 549 U.S. 327 (2007), did not overrule Roberts v. Cockrell, 319 F.3d 690 (5th Cir. 2003); thus, defendant’s Texas state conviction became “final” for AEDPA purposes when the time for seeking discretionary review from CCA expired (August 2006), not when the Texas appellate court issued its mandate (September 2006). Accordingly, defendant’s federal habeas petition was untimely under the AEDPA. The Fifth Circuit noted, but rejected as unpersuasive, the contrary decision in Riddle v. Kemna, 523 F.3d 850 (8th Cir. 2008) (en banc).

United States v. Schmidt, 623 F.3d 257 (5th Cir. 2010)

Defendant’s prior federal conviction for theft of a firearm from a licensed gun dealer, in violation of 18 U.S.C. §922(u), was a “violent felony” within the meaning of 18 U.S.C. §924(e)(2)(B) of the Armed Career Criminal Act (ACCA); therefore, district court did not err in enhancing defendant’s sentence under ACCA.

United States v. Gomez, 623 F.3d 265 (5th Cir. 2010)

District court did not err in denying defendant’s motion to suppress because the decision to stop defendant’s vehicle was supported by reasonable suspicion. Even if the tip on which the stop decision was based (that the defendant had a pistol) is considered an anonymous tip (which, the Fifth Circuit said, was doubtful under the circumstances), the officers still had reasonable suspicion under the 4-factor test in United States v. Martinez, 486 F.3d 855 (5th Cir. 2007).

Hale v. King, 624 F.3d 178 (5th Cir. 2010)

The Americans with Disabilities Act of 1990 (ADA) validly abrogates a state’s Eleventh Amendment sovereign immunity under §5 of the Fourteenth Amendment only to the extent that causes of action under the ADA are “congruent and proportional” to violations of the Fourteenth Amendment. Prisoner’s claim that he was denied educational training and access to prison work programs because of a medical disability did not state an equal protection violation under the applicable rational-basis review, and hence the ADA did not validly abrogate state sovereign immunity for that claim.

United States v. Mata, 624 F.3d 170 (5th Cir. 2010)

In alien transporting case, district court did not err in applying the reckless-endangerment enhancement of USSG §2L1.1(b)(6); the enhancement was supported by findings that (1) a baby stroller, under which the alien was hidden, would impede their ability to exit the vehicle quickly in case of an accident, and (2) the stroller could cause serious injury to the alien in the event of an accident, and those findings were not clearly erroneous. Nor did the court err by applying the use-of-a-minor enhancement under USSG §3B1.4; a defendant who decides to bring a minor along during the commission of a previously planned crime as a diversionary tactic or in an effort to reduce suspicion is subject to this enhancement. Not every defendant who brings a minor child along while smuggling drugs or aliens will be subject to this enhancement, and the court should consider additional circumstantial evidence to determine whether the defendant used the minor to avoid detection. Here, the district court’s findings, none of which were clearly erroneous, supported its determination that the minor was brought along to avoid de­tection.

United States v. Templeton, 624 F.3d 215 (5th Cir. 2010)

(1) In prosecution for (a) using a firearm and committing murder during and in relation to a drug trafficking crime, and (b) possession of cocaine with intent to distribute, district court did not abuse its discretion in admitting, under Fed. R. Evid. 404(b), evidence that defendant had previously sold large amounts of crack cocaine and that defendant had previously been arrested for possession of nine ounces of cocaine. Even though defendant offered to stipulate as to intent to distribute, the evidence was admissible not just to show intent, but also knowledge plus the motive for the decedent’s murder. United States v. Yeagin, 927 F.2d 798 (5th Cir. 1991) (finding reversible error in the admission of evidence after an offer to stipulate was refused), was distinguishable because the evidence there went only to intent, to which defendant offered to stipulate, and the admitted evidence in that case was far less relevant and far more prejudicial.

(2) District court did not abridge defendant’s Confrontation Clause rights or otherwise err by preventing defense counsel from cross-examining a witness (defendant’s sister) about abuse allegedly inflicted on her by her husband. Although the defense alleged that the sister had been coerced or intimidated by her husband into testifying against her brother (defendant), questioning of the sister outside the presence of the jury failed to substantiate this theory of bias, and the defense failed to present any other evidence to substantiate this theory.

(3) District court did not abuse its discretion by instructing the jury that evidence of flight could reflect a consciousness of guilt. A flight instruction is proper when the evidence supports four inferences: (1) the defendant’s conduct constituted flight; (2) the defendant’s flight was the result of consciousness of guilt; (3) the defendant’s guilt related to the crime with which he was charged; and (4) the defendant felt guilty about the crime charged because he in fact committed the crime. The evidence here supported each of the four inferences; moreover, even if the court had erred in this regard, any error was harmless in light of the strong evidence of defendant’s guilt.

United States v. Mendez-Casarez, 624 F.3d 233 (5th Cir. 2010)

Where Application Note 5 to USSG §2L1.2 provides that the list of qualifying enhancement predicate offenses “include[s] the offenses of aiding and abetting, conspiring, and attempting” to commit such offenses, that list does not constitute an exclusive list. Other offenses may be comprehended within Application Note 5, provided they are sufficiently similar to the listed offenses. The Fifth Circuit then determined that solicitation under North Carolina law was sufficiently similar. Accordingly, defendant’s North Carolina solicitation to commit assault with a deadly weapon inflicting seriously bodily injury was properly countable as a “crime of violence” for purposes of USSG §2L1.2(b)(1)(A)(ii).

United States v. Roberts, 624 F.3d 241 (5th Cir. 2010)

Where the government agreed in its plea agreement with defendant to a particular base offense level but the parties left open that other adjustments might or might not apply, it was a breach of the plea agreement for the government to support the PSR’s application of the career offender Guidelines to defendant. The career offender Guidelines were not simply an adjustment to the Guidelines (as to which the government retained its discretion to advocate) but rather resulted in a new base offense level, in contravention of the government’s plea-bargain stipulation to a base offense level of 30. The government’s conduct was inconsistent with defendant’s reasonable understanding of the plea agreement, and defendant was entitled to specific performance of the agreement. The Fifth Circuit vacated defendant’s sentence and remanded to the district court for reassignment to a different judge and for resentencing consistent with this opinion. Judge DeMoss dissented, being of the view that the career offender enhancement was a Guideline adjustment for which the government remained free to advocate.

United States v. Banks, 624 F.3d 261 (5th Cir. 2010)

Where (following a limited remand for clarification) it was determined that defendant had proceeded to a bench trial on stipulated facts, the evidence was sufficient to support defendant’s conviction for aggravated identity theft under 18 U.S.C. §1028A. Particularly, the Fifth Circuit noted that in a Memorandum of Agreement attached to the Stipulation of Evidence, defendant expressly stipulated that the facts in the Stipulation “constitute[d] sufficient evidence for the [c]ourt to find him guilty as charged . . . beyond a reasonable doubt.” Because defendant’s agreement on this point foreclosed any challenge to the sufficiency of the evidence, the Fifth Circuit affirmed the conviction.

Pearson v. Holder, 624 F.3d 682 (5th Cir. 2010)

Where Texas state prisoner sued under 42 U.S.C. §1983, challenging SORNA and state sex-offender registration laws as unconstitutional, district court reversibly erred in dismissing prisoner’s claims as not ripe. In determining ripeness, a court must balance the issues’ fitness for judicial decision against the hardship to the parties resulting from withholding court consideration. Inasmuch as the prisoner’s release date was only some two years hence, the Fifth Circuit concluded that his case was sufficiently ripe for adjudication; there was no further factual uncertainty, and the prisoner could suffer harm if his claims were not adjudicated as soon as practicable. The Fifth Circuit reversed the judgment dismissing the prisoner’s claims and remanded for further proceedings.

United States v. Jeong, 624 F.3d 706 (5th Cir. 2010)

Where defendant, a South Korean national, was prosecuted for bribery in an American court on the basis of the same bribery scheme for which he had been previously convicted in South Korea, his subsequent American conviction was not barred by the Convention on Combating Bribery of Foreign Officials. Article 4.3 of this Convention does not prohibit two signatory countries from prosecuting the same offense. Rather, it imposes an obligation only to consult on jurisdiction when one of the countries so requests; here, no such request was made. Nor did the United States waive its jurisdiction to prosecute defendant by dint of assisting South Korea in that country’s investigation of defendant or by dint of the United States’ representation, in its request for mutual legal assistance, that it was “not seeking to further prosecute [defendant]”; no source of domestic or international law suggested that the United States either impliedly or expressly ceded its right of prosecution to South Korea.

United States v. Fisher, 624 F.3d 713 (5th Cir. 2010)

Where district court sua sponte declared a mistrial after two prosecution witnesses became unavailable to testify as scheduled, defendant did not impliedly consent to the mistrial by failing to sufficiently object. This is a case-by-case determination, and under the circumstances here—most prominently the district judge’s finding that defendant had sufficiently objected—there was no implied consent to the mistrial. That being the case, to retry defendant after this mistrial would violate his double jeopardy rights unless there was a manifest necessity for the mistrial. Because the basis for the mistrial was the unavailability of critical prosecution evidence, the district court’s decision was subject to the strictest scrutiny, which requires the government to show that the district court carefully considered whether reasonable alternatives existed but that the court found none. Here, the government did not show, nor did the record independently show, that the court carefully considered reasonable alternatives before declaring a mistrial. Nor was the mistrial excused by defendant’s refusal to stipulate to the testimony of the two witnesses. Because defendant did not consent to the mistrial and because the district court did not carefully consider reasonable alternatives to a mistrial, defendant’s prosecution was barred by double jeopardy. The Fifth Circuit reversed the district court’s denial of defendant’s motion to dismiss the indictment, and it rendered a dismissal.

United States v. Wanambisi, 624 F.3d 724 (5th Cir. 2010)

In denying defendant’s motion for reduction of sentence under 18 U.S.C. §3582(c)(2), the district court erroneously treated defendant’s motion as having been filed under Amendment 706 (pertaining only to crack cocaine offenses) rather than under Amendment 505 (applicable to heroin offenses like defendant’s). This was harmless error. The Fifth Circuit agrees with COA, affirming the denial of defendant’s motion on the alternate ground that Amendment 505 did not reduce the base offense level for the amount of heroin for which defendant was responsible.

Wiley v. Epps, 625 F.3d 199 (5th Cir. 2010)

District court did not err in holding a federal evidentiary hearing on death-sentenced Mississippi defendant’s claim under Atkins v. Virginia, 536 U.S. 304 (2002), that he was ineligible for the death penalty due to being mentally retarded. Because the Mississippi Supreme Court improperly denied defendant’s Atkins claim without a hearing, the district court was not required to afford the state court decision deference under the AEDPA. Finally, the district court did not clearly err in finding defendant mentally retarded under the 4-prong test applicable in Mississippi. The Fifth Circuit affirmed the district court’s grant of federal habeas relief invalidating the death sentence imposed.

Maldonado v. Thaler, 625 F.3d 229 (5th Cir. 2010)

Death-sentenced Texas defendant was not entitled to federal habeas relief on his claim under Atkins v. Virginia, 536 U.S. 304 (2002), that he was ineligible for the death penalty due to being mentally retarded; defendant did not overcome the presumption of correctness attached to the state habeas court’s conclusion that he did not meet his burden of establishing mental retardation. Therefore, the state court’s denial of relief was neither an unreasonable application of federal law nor an unreasonable determination of the facts in light of the evidence, as required for federal habeas relief under the AEDPA. The Fifth Circuit affirmed the district court’s denial of federal habeas relief.

United States v. Gonzalez, 625 F.3d 824 (5th Cir. 2010)

Where defendant sought to argue that he was not the person convicted in a 1988 drug conviction used to enhance his sentence to mandatory life imprisonment under 21 U.S.C. §851, defendant’s challenge was not barred by the 5-year time limit contained in 21 U.S.C. §851(e). That time limit applies only to challenges to the validity of the prior conviction; it does not prevent a defendant from arguing that he was not the person who was convicted of the offense. However, on the merits, defendant’s challenge to the enhancement failed because the government carried its burden of proving beyond a reasonable doubt—see 21 U.S.C. § 851(c)(1)—that defendant was the person convicted in that prior case, notwithstanding the absence of fingerprint exemplars or other physical evidence to that effect.

Court of Criminal Appeals

Appellee’s PDR

State v. Woodard, __S.W.3d__ (Tex.Crim.App. No. PD-0828-10, 4/6/11); Affirmed

Appellee drove his car off the road into a ditch and then abandoned it by walking away. Appellee filed a pretrial motion to suppress, claiming his warrantless arrest for DWI about a quarter mile from the accident was unlawful.

HELD: COA correctly held that the initial interaction on the sidewalk between appellee and officer, which began with officer asking appellee if he had been involved in a reported accident, was a consensual encounter. Further, the encounter, which eventually escalated into appellee’s arrest for DWI, was supported by probable cause.

State’s PDRs

State v. Rodriguez, __S.W.3d__ (Tex.Crim.App. No. 04-07-00436-CR, 4/6/11); Affirmed

Rodriguez was charged with recklessly discharging a firearm. CCA granted the State’s petition to review whether COA correctly held that the information was defective because it failed to apprise defendant of “the circumstances that indicate [Rodriguez] pulled the trigger of a loaded firearm in a reckless manner.” The issue is not “how” did defendant discharge a firearm (by pulling the trigger), but how did he act “recklessly” in discharging the firearm.

HELD: The State failed to allege with reasonable certainty the act or circumstance which indicated Rodriguez discharged the firearm in a reckless manner. When it is alleged that the accused acted recklessly, Tex. Code Crim. Proc. art. 21.15 requires additional language in the charging instrument. This language must set out “the act or acts relied upon to constitute recklessness[.]” But, as CCA noted in Smith v. State, 309 S.W.3d 10 (Tex.Crim.App. 2010), there is some conceptual difficulty about the specific terms used in Article 21.15. The language of Article 21.15 assumes that the culpable mental state of recklessness can be “constituted” by some “act.” However, the definition of “act,” added in 1974, made this a “conceptual impossibility.” In Smith, CCA explained that because of the “conceptual impossibility, the “act or acts constituting recklessness” under Article 21.15 are really those “circumstances” surrounding the criminal act from which the trier of fact may infer that the accused acted with the required recklessness.

Hereford v. State, __S.W.3d__ (Tex.Crim.App. No. PD-0144-10, 4/6/11); Affirmed

Appellant was arrested for misdemeanor traffic warrants. After officers placed appellant in the back of the police car, they noticed he was hiding something in his mouth that they assumed was cocaine, which they were able to remove after repeated use of Tasers on his groin area and with the assistance of medical personnel. Appellant was charged with and convicted of possession of a controlled substance with intent to deliver: cocaine. Appellant filed a motion to suppress the evidence based on his claims that the officers lacked probable cause to arrest him and used unreasonable force to recover the drugs.

HELD: Emphasizing that neither this opinion, nor that of COA should be construed to imply that the use of a Taser is per se unreasonable, CCA held that the circumstances presented by this case show an excessive use of force that violated the Fourth Amendment prohibition against unreasonable seizures. Officer Arp deliberately chose to administer numerous electrical shocks to an area of appellant’s body chosen because of its exceptional sensitivity, long after the initial arrest was made, when there admittedly was no ongoing attempt by appellant to destroy the evidence, little concern about a drug overdose, and while appellant was restrained in handcuffs behind his back. The unreasonableness of this behavior is shown by comparison with the decisions made by his fellow officers, who stopped using the Taser when its use failed to effect compliance. While those officers could have chosen to continue to shock appellant to recover the drugs, they chose to pursue other methods. Officer Arp should have done the same.

State v. Elias, __S.W.3d__ (Tex.Crim.App. No. PD-0735-10, 4/6/11); Vacated, remanded

In this felony prosecution for possession of marijuana, the State appealed from the trial court’s grant to suppress evidence that appellee contended was obtained as a result of an illegal traffic stop. COA affirmed the court’s ruling, holding that appellee’s initial detention was not justified by specific articulable facts to show a traffic violation occurred, and that the search could not be otherwise justified by the fact that after the initial stop, appellee was found to have an outstanding arrest warrant that might give rise to a valid search incident to arrest because by the time the search of the vehicle was conducted, appellee had been secured in the back of a squad car.

HELD: COA erred in two respects in its disposition of the State’s appeal. First, it erred to affirm the trial court’s grant of appellee’s suppression motion on the basis that the initial detention was illegal without first remanding the cause to the trial court for specific findings of fact with respect to whether the appellee failed to signal his intention to turn within a hundred feet of the intersection. Second, it also erred to affirm the trial court’s grant of appellee’s suppression motion without first addressing the State’s alternative argument that the arrest warrants attenuated the taint of any initial illegality, and that the K-9 sniff provided probable cause to justify the warrantless search of the van under the automobile exception. In the event that COA, on remand, rules in the State’s favor with respect to the second issue, it should reverse the trial court’s ruling on the suppression motion and remand the cause for trial. But if COA rules in appellee’s favor with respect to the second issue, it should then remand the cause to the trial court for specific findings of fact and a ruling of law as to the first issue, viz: whether the initial detention was justified by at least a reasonable suspicion that appellee failed to signal within a hundred feet of the intersection.

Blackman v. State, __S.W.3d__ (Tex.Crim.App. No. 01-08-00138-CR, 4/13/11); Reversed & remanded

Appellant was convicted of possessing a controlled substance (three kilograms of cocaine) with intent to deliver. The cocaine was found behind the driver’s seat of a van in which appellant was a front-seat passenger. During its closing arguments, the defense claimed that the State did not prove beyond a reasonable doubt that appellant “either put [the cocaine] in his car or was aware of it” or that he “aided, assisted and encouraged” any of the others to commit the offense. The State claimed that this defied common sense. COA decided the evidence was legally insufficient to support the possession element.

HELD: COA misapplied the Jackson v. Virginia standard by asking itself whether it believed that the evidence is sufficient to support appellant’s guilt instead of asking whether a rational trier of fact could have found appellant guilty beyond a reasonable doubt.

State v. McLain, __S.W.3d__ (Tex.Crim.App. No. PD-0946-10, 4/13/11); Reversed & remanded

A grand jury indicted appellee on possession with intent to deliver meth. Appellee’s trial counsel filed a motion to suppress the contraband seized as a result of a search authorized by a search warrant. The trial court granted the motion to suppress, and COA affirmed.

CCA granted review on the following grounds: (1) Does an appellate court violate the prohibition on “hypertechnical” review of a warrant affidavit when it strictly applies rules of grammar and syntax in its analysis? (2) Is it appropriate for an appellate court to base its opinion on implications found within a warrant affidavit, rather than deferring to any reasonable inferences the reviewing magistrate could have drawn from the affidavit? (3) Did the appellate court err by failing to address whether the trial court afforded appropriate deference to the reviewing magistrate’s implicit finding that the informant described in the affidavit saw the meth “in the past 72 hours”?

HELD: Reviewing courts should only be concerned with whether the magistrate’s determination in interpreting and drawing reasonable inferences from the affidavit was done in a commonsensical and realistic manner, which bars a “hypertechnical” review of syntax and grammar. Furthermore, reviewing courts should defer to all reasonable inferences that the magistrate could have made.

Writs of Habeas Corpus

Ex parte Ramey, __S.W.3d__ (Tex.Crim.App. No. WR-74,986-01, 4/6/11); Filed & set

CCA voted to file and set this case to decide how or whether CCA’s opinion in Coble v. State, 330 S.W.3d 253 (2010), impacts Ramey’s claim that the trial judge erred to admit an expert witness’ future-dangerousness testimony because it violated the federal Eighth Amendment and Due Process Clause. Dissent argues that Ramey’s claim was rejected in Barefoot v. Estelle, 463 U.S. 880 (1983), and the law has not since changed.

Ex parte Spencer, __S.W.3d__ (Tex.Crim.App. No. AP-76, 244, 4/20/11); Denied

Applicant was convicted of murder and sentenced to 35 years’ confinement. His motion for new trial was granted. On retrial, he was convicted of aggravated robbery and sentenced to life in prison. The conviction was affirmed on appeal. Applicant filed an application for writ of habeas corpus claiming that he is innocent, that trial counsel rendered ineffective assistance, and that the State violated Brady v. Maryland, 373 U.S. 83 (1963), and Mooney v. Holohan, 294 U.S. 103 (1935).

Having been remanded to the trial court for consideration twice already, CCA filed and set this case for submission and ordered the parties to brief whether applicant properly raised a free-standing actual innocence claim, whether the evidence he relies on is newly discovered or newly available, whether CCA should consider advances in science and technology when determining whether evidence is newly discovered or newly available, and whether applicant has shown by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.

HELD: Both CCA and the trial court rejected all claims except for the bare innocence claim. The most relevant piece of evidence is whether certain eyewitnesses could have facially identified the applicant under various light conditions, as determined by expert witness testimony. CCA concluded that even if the evidence was reviewed as new, it does not unquestionably establish applicant’s innocence and fails to meet the threshold elucidated in Ex parte Franklin, 72 S.W.3d 671 (Tex.Crim.App. 2002).

Writ of Mandamus

In re Brown, __S.W.3d__ (Tex.Crim.App. No. WO-75,485-01, 4/13/11); Denied

Relator requests CCA order the trial court to enter a judgment nunc pro tunc awarding him a certain period of pretrial jail-time credit.

HELD: COA rightly denied relator mandamus relief. In denying the motion again, CCA wrote additionally to alert unwary trial counsel of the need to address an issue such as the one presented in this case at the appellate level rather than relying upon the illusory promise of a post-conviction remedy. A motion for judgment nunc pro tunc or a writ of mandamus to the appellate court, if such a motion is denied, will provide a remedy only if the right to pretrial jail-time credit is absolutely indisputable under the terms of Tex. Code Crim. Proc. art. 42.03, § 2(a)(1). In summary, if a claim of pretrial jail-time credit involves a question of the proper construction of the statute trial counsel would do well to try to preserve the issue for appellate resolution; post-conviction remedies will prove to be of no avail.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Thomas v. State, No. 01-08-00902-CR, 2010 WL 4925846 (Tex.App.—Houston [1st Dist] 11/30/10)

Officer’s statement to D during traffic stop, to the effect that officer was going to take D’s refusal to answer as a refusal to consent to breath test, did not render D’s consent to breath test involuntary. Officer, after repeatedly asking D whether he was willing to consent to a breath test and failing to get a clear answer, stated to D that he was going to take D’s refusal to answer as a refusal to consent. Said statement did not impose the level of psychological pressure necessary to render D’s consent involuntary.

Overshown v. State, 329 S.W.3d 201 (Tex.App.—Houston [14th Dist] 12/2/10)

“[A] traffic stop made for the purpose of issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.”

Flores v. State, No. 13-09-00413-CR, 2010 WL 4901408 (Tex.App.—Corpus Christi 12/2/10)

Even though D sustained head lacerations in car accident, D’s post-accident behavior (e.g., unsteady gait) was attributed to intoxication to provide sufficient evidence that D was intoxicated at the time of the accident. “Each officer testified that he believed [D] was intoxicated. Each based his opinion on one or more of the following: (1) the smell of alcohol on [D’s] breath; (2) the smell of alcohol emanating from his vehicle; (3) [D’s] non-compliance, his red, bloodshot eyes, his slurred, loud speech, and his unsteady gait and balance; (4) the results of his field sobriety tests; and (5) the results of the portable breath test. . . . When [officer] and [D] arrived at the Cameron County Jail, the medic advised [officer] that, because of the lacerations, the bleeding, and the dried blood, the jail personnel would not accept [D] until he received a medical clearance. According to [officer], this decision had nothing to do with a head injury.”

Alford v. State, 333 S.W.3d 358 (Tex.App.—Fort Worth 2010)

Although D was in custody when officer held up a flash-drive and asked D what it was and if it belonged to D, the question was deemed an administrative booking question rather than a custodial interrogation. The court likened the flash-drive inquiry to cases holding that officer’s asking arrestee for his name, address, name of spouse, and like information deemed “routine booking questions.”

Woodruff v. State, 330 S.W.3d 709 (Tex.App.—Texar­kana 2010)

A defendant’s age and whether or not he engages in arguments with investigators deemed relevant factors in determining whether a non-custodial or post-Miranda statement is made voluntarily. Here, D “was a 19-year-old college student and did not appear to be unduly intimidated during the interview.”

Prosecutors, by instructing sheriff’s office to record D’s phone communications with his attorneys and provide prosecutors with copies of recordings, did not prejudice D in manner as to require dismissal of indictment; recordings supposedly did not provide State with useful information and district attorney’s office recused itself, letting State’s Attorney General’s Office prosecute. “The State does not challenge the trial court’s conclusion that [D’s] Sixth Amendment right to counsel was violated. . . . In our review of the record, we have reviewed the telephone calls recorded by the Hunt County Sheriff’s Office at the request of the Hunt County District Attorney’s Office. . . . Approximately 54 of the calls were made to [D’s] defense counsel or his office staff. . . . Our review failed to discover any privileged information of even the most marginal value to the State. Although not for lack of trying, the Hunt County District Attorney’s Office failed to discover anything of value when it violated [D’s] constitutional rights.”

State v. Pina, No. 05-10-00026-CR, 2010 WL 4946140 (Tex.App.—Dallas 12/7/10)

The nervousness with which gun show patron purchased a gun, along with what appeared to officer to be a prison-gang tattoo on patron’s neck, provided RS that patron was a felon in possession of firearm. “[Officer in parking lot] was notified that officers inside the complex had seen three individuals ‘acting in suspicious manners . . . [with] tattoos indicative of gang affiliations . . . purchasing weapons and ammunition.’ One of those individuals, later identified as [D], had a star tattoo on his neck that allegedly was ‘indicative of an affiliation to the Tango Blast gang.’ Although [officer] did not specialize in gang affiliation, he did have some knowledge of the Tango Blast Gang. He knew that Tango Blast was a prison gang and, to be a member, the person had to have had a conviction and been to prison.” The appellate court, in finding RS existed, reversed the trial court’s granting of D’s motion to suppress.

Valdez v. State, No. 04-09-00420-CR, 2010 WL 5269818 (Tex.App.—San Antonio 12/15/10)

Purported common-law spouse of D did not have actual or apparent authority to consent to officer’s warrantless search of D’s lock box stored in bedroom of home, given that she did not know where box was located and that she reportedly knew nothing about box.

D’s mother had apparent authority to consent to search of the lock box, even though she was not owner of box and did not have authority to unlock it, where she appeared to officer to be owner of home (even though she did not own it), she invited officer directly to bedroom upon officer’s request to collect adult videos for evidence, she retrieved box from closet, unlocked box with key, and placed adult videos on bed. “[Mother’s] recollection of the event, however, was very different. She stated that she did not give [officer] permission to enter the house. She explained that [officer] told her [D] had given consent to search, and that she needed to accompany him to the bedroom. She stated that [officer] took the lock box from the closet, and ordered her to unlock it. She had a key ring in her pocket, and after unsuccessfully trying several keys, [officer] got mad, grabbed the keys from her, and opened the box himself. [Mother] claimed the police threatened to arrest her if she did not cooperate.” However, the appellate court, in viewing the evidence in the light most favorable to the trial court’s ruling, adopted the officer’s account, to wit: “[Officer] testified that he believed that [mother] was the owner of the home because she was the person in control. It appeared to [officer] that [mother] had common authority over the lock box because she knew exactly where it was located and had the key.”

State v. Kidd, No. 03-09-00620-CR, 2010 WL 5463893 (Tex.App.—Austin 12/30/10)

Even though D admitted he failed to signal lane change 100 feet in advance of turn, the trial court granted motion to dismiss based on conclusion that strict enforcement of the 100-foot requirement was “a violation of one’s right to be free from unreasonable seizures.” The appellate court, in reversing the trial court, observed that a driver’s unfamiliarity with the neighborhood and indecisiveness about which direction to turn simply does not excuse his turn-signal violation. “Although the trial court concluded that enforcement of the 100-foot rule ‘leads to unreasonable, perhaps unforeseen, circumstances,’ we cannot say that the statute’s mandatory requirement that a driver intending to turn must ‘signal continuously for not less than the last 100 feet’ leads to absurd results.”

Farhat v. State, No. 02-10-00030-CR, 2011 WL 56056 (Tex.App.—Fort Worth 1/6/11)

D’s erratic driving plus the presence of an empty pill bottle found in D’s vehicle was insufficient to support issuance of a blood-draw search warrant. “[C]ontrary to the trial court’s finding that the officer saw ‘pills in the console’ of [D’s] vehicle, the affidavit states only that the officer saw two pill bottles in the center console. The affidavit does not state that the bottles actually contained pills, and even if a reasonable inference could be drawn that the bottles did contain pills, the affidavit was silent as to the type of pill bottles, whether they were prescription or over-the-counter medicine bottles, whether [D] admitted to consuming pills from the bottles, or whether [D’s] demeanor or appearance suggested that he had consumed them. . . . The remaining facts contained in the affidavit show that [D] was driving ten miles below the speed limit shortly before 1:00 a.m., that he ‘was weaving from sided [sic] to side,’ that he turned on his right-turn signal before turning the opposite direction into the parking lot, and that he refused field sobriety tests. We do not know from the affidavit the extent of [D’s] weaving or whether he was weaving outside of his lane or into oncoming traffic nor is it reasonable to infer such facts. . . . [W]e hold that the magistrate did not have a substantial basis for concluding that there was a fair probability or substantial chance that [D] had committed the offense of DWI or that evidence of intoxication would be found in [D’s] blood.”

Alleman v. State, No. 09-10-00173-CR, 2011 WL 193496 (Tex.App.—Beaumont 1/19/11)

D’s act of pretending to talk on his cell phone during the traffic stop was among the circumstances that provided officer RS to expand scope of stop. “While looking in the console, [D] opened his cellular telephone and held it to his ear. [Officer] did not hear the phone ring and he noticed that [D] was not speaking into the phone. [Officer] found this ‘kind of odd.’ . . . While conducting the traffic stop, [officer] observed several facts that led him to believe that another offense was occurring: (1) [D] stepped out of his vehicle almost immediately after being stopped, (2) [D] silently held his telephone to his ear, (3) [D] claimed to be on a business trip, but had no clothing or other items to corroborate this claim, (4) [officer] smelled marijuana when [D] retrieved his insurance papers, and (5) [officer] saw what appeared to be marijuana residue when he walked to the drivers side door of the vehicle.”

Arroyo v. State, No. 01-10-00136-CR, 2011 WL 286136 (Tex.App.—Houston [1st Dist] 1/27/11)

“Sunday at 4:50 a.m.” deemed “a time at which more individuals drive intoxicated.” Driving below the speed limit weighed in favor of RS for DWI.

June 14, 2011 SDR

Vol. XXVI, No. 15: Electronic Edition

Please do not rely solely on the summaries below. Each case name links to the full text of the opinion, which we recommend you read in addition to these brief synopses. The SDR is sent to current TCDLA members.

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

SUPREME COURT

Certiorari from the Sixth Circuit

Bobby v. Mitts, 131 S. Ct. 1762 (U.S. 2011)

Reversed: Per curiam

Facts: Harry Mitts drank until he became intoxicated and then shot and killed an African American man, while speaking racial epithets. During the police shoot-out that followed, Mitts shot and killed one police officer and wounded two before being apprehended. At trial, Mitts did not contest the evidence that he had killed two men, but he instead attempted to establish that he was too intoxicated to form the required intent to kill. After a penalty hearing, the jury recommended the death penalty on both aggravated murder counts and terms of imprisonment for the attempted murders. The trial court sentenced Mitts to death for the aggravated murders and to terms of imprisonment for the attempted murders.

The Ohio Court of Appeals affirmed the convictions and sentences, and the Ohio Supreme Court affirmed and denied rehearing, ruling that the trial court should have instructed the jury to merge duplicative death penalty specifications, but holding that the error did not influence the jury and was resolved by re-weighing on appeal. Mitts filed a petition for a writ of habeas corpus. A federal judge in Cleveland affirmed the sentence, but the U.S. Court of Appeals for the Sixth Circuit decided to vacate.

Question: Were the jury instructions given at the penalty phase of the murder trial contrary to clearly established law for purposes of the Antiterrorism and Effective Death Penalty Act?

Conclusion: No. The Supreme Court summarily reversed the appellate court.

Certiorari from the Supreme Court of Kentucky

Kentucky v. King, 179 L. Ed. 2d 865 (U.S. 2011)

Reversed, remanded: Alito (8-1); Ginsburg dissented

Facts: Police officers entered an apartment building in pursuit of a suspect who sold crack cocaine to an undercover informant. The officers lost sight of the suspect and mistakenly assumed he entered an apartment from which they could detect the odor of marijuana. After police knocked on the door and identified themselves, they heard movements, which they believed indicated evidence was about to be destroyed. Police forcibly entered the apartment and found Hollis King and others smoking marijuana. They also found cash, drugs and paraphernalia. King entered a conditional guilty plea, reserving his right to appeal denial of his motion to suppress evidence obtained from what he argued was an illegal search.

The Kentucky Court of Appeals affirmed the conviction, holding that exigent circumstances supporting the warrantless search were not of the police’s making and that police did not engage in deliberate and intentional conduct to evade the warrant requirement. The Kentucky Supreme Court reversed the lower court, finding the entry was improper. The court held that the police were not in pursuit of a fleeing suspect when they entered the apartment, since there was no evidence that the original suspect knew he was being followed by police.

Question: Does the exclusionary rule, which forbids the use of illegally seized evidence except in emergency situations, apply when the emergency is created by lawful police actions?

Conclusion: Yes: “The exigent circumstances rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.” Justice Ginsburg dissented, contending “the Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases.”

Appeal From the U.S. District Courts for the Eastern and Northern Districts of California

Brown v. Plata, 563 U.S. ____, 09-1233 (5/23/11)

Affirmed: Kennedy (5-4); Scalia dissented w/Thomas; Alito dissented w/Roberts

Facts: The Prison Law Office in Berkeley, Calif., filed a class-action lawsuit in 2001 on behalf of Marciano Plata and several other prisoners, alleging that California prisons were in violation of the Eighth Amendment to the Constitution, which bans “cruel and unusual punishment.” Following a lengthy trial, a special panel of three federal judges determined that serious overcrowding in California’s 33 prisons was the “primary cause” for violations of the Eighth Amendment. The court ordered the release of enough prisoners so the inmate population would come within 137.5 percent of the prisons’ total design capacity. That amounts to between 38,000 and 46,000 inmates being released.

Question: Does a court order requiring California to reduce its prison population to remedy unconstitutional conditions in its correctional facilities violate the Prison Litigation Reform Act?

Conclusion: No: “The court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights and is authorized by the PLRA.” Justice Scalia filed a dissenting opinion in which he admonished the majority for affirming “what is perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.” Justice Alito filed a dissenting opinion in which he wrote that the “Constitution does not give federal judges the authority to run state penal systems.”

Summaries by Oyez. For a list of issues pending before the Court, click here.

FIFTH CIRCUIT

Rocha v. Thaler, 626 F.3d 815 (5th Cir. 2010).

Texas state death-sentenced defendant was not entitled to federal habeas relief, under Brady v. Maryland, 373 U.S. 83 (1963), that the State withheld material impeaching evidence about one of the investigating detectives (namely, his professional and romantic relationship with the sister of a State’s witnesses, and a disciplinary record). The evidence did not create a reasonable probability of a different outcome, and hence was not material under Brady, given the fact that the evidence was redundant of the testimony of the other investigating detective and given defendant’s confession; the same was true with respect to the testimony of the witness himself. Furthermore, defendant was not entitled to a certificate of appealability on the questions of whether the State violated his rights (as a Mexican citizen) under the Vienna Convention and whether such a violation requires suppression of his confession. On initial consideration, the panel held that, under Balentine v. Thaler, 609 F.3d 729 (5th Cir. 2010), withdrawn by 626 F.3d 842 (5th Cir. 2010), defendant had at least a colorable argument that his ineffective-counsel claim (based on the failure to investigate/produce mitigation evidence) was denied by CCA on the merits, not as the result of an adequate and independent state law procedural ground; the panel initially granted a certificate of appealability on this claim. However, on denial of rehearing, the panel held that under a proper view of the law (also reflected in the substituted opinion in Balentine), the state court’s decision on this issue had to be viewed as rested on an adequate and independent state law procedural bar, thus precluding federal habeas relief. (Judge Haynes filed a specially concurring opinion, in which she agreed that precedent required this construction of the state court’s decision, but she suggested it might bear further examination by some court.)

Balentine v. Thaler, 626 F.3d 842 (5th Cir. 2010), withdrawing 609 F.3d 729 (5th Cir. 2010).

In its initial opinion, the Fifth Circuit panel had held that, in light of Ex parte Campbell, 226 S.W.2d 418 (Tex.Crim.App. 2007), and Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007), the district court should have, pursuant to Fed. R. Civ. P. 60(b), set aside its judgment denying Texas death-sentenced defendant federal habeas relief due to a supposedly adequate and independent state procedural default. Accordingly, the Fifth Circuit initially reversed the district court’s order denying defendant’s Rule 60(b) motion and remanded for consideration of defendant’s ineffective-counsel claim, including any necessary evidentiary hearing. However, in the substituted opinion, the panel held that it erred in interpreting Ruiz to mean that uncertainty about the basis of a state-court decision should give rise to a presumption that the state court reached the merits rather than relying upon a state procedural bar. In light of this correct understanding of Ruiz, the district court did not err in denying defendant’s Rule 60(b) motion because the district court did not err in concluding that the state-court decision on defendant’s ineffective-counsel claim was grounded on an adequate and independent state procedural bar; the Fifth Circuit affirmed the district court’s denial of defendant’s Rule 60(b) motion. On petition for rehearing en banc, the poll for rehearing en banc failed by a vote of 11-4. Judge Dennis filed a lengthy dissent from denial of rehearing en banc, in which he was joined by Judge Benavides. Judge Haynes filed a short statement dissenting from denial of rehearing en banc.

United States v. Hoeffner, 626 F.3d 857 (5th Cir. 2010).

The government’s abandonment of the honest-services theory during the first trial meant the Double Jeopardy Clause barred retrial on the honest-services theory where (1) defendant was indicted for mail and wire fraud under alternative theories of deprivation of honest services and deprivation of money and property, (2) the government abandoned the honest-services theory during trial, and (3) the jury failed to reach a verdict, resulting in the declaration of a mistrial. However, retrial was not precluded on the money-and-property-fraud theory; the district court did not err in denying the defendant’s double-jeopardy-based motion to dismiss the indictment filed following the mistrial.

United States v. Garcia-Paulin, 627 F.3d 127 (5th Cir. 2010).

District court committed reversible plain error in finding an adequate factual basis to support defendant’s guilty plea to bringing an alien to the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(i) and 18 U.S.C. § 2; “bringing to the United States” under this statute contemplates that the defendant have actually accompanied the alien, or arranged to have him accompanied, across the border into the United States, or at least lead them to or meet them at the border. Defendant did not commit this offense by his stipulated conduct of obtaining a fraudulent immigration stamp for the alien’s Mexican passport and telling the alien the stamp would not work to accomplish entry at the border, but would allow the alien to work once he came over illegally on his own power. The error was clear and obvious, it affected defendant’s substantial rights, and COA exercised its discretion on plain-error review to vacate the conviction and remand.

United States v. Thomas, 627 F.3d 146 (5th Cir. 2010).

(1) The evidence was sufficient for a rational jury to find defendants guilty of numerous bank robberies and related offenses; circumstantial evidence that is not incriminating standing alone may recur in a pattern, from which jurors can reasonably infer that evidence otherwise susceptible of innocent interpretation is plausibly explained only as part of the pattern. Under this rubric, a reasonable inference is that the defendants committed all the robberies: four of them shared a number of common characteristics. Although the evidence was weaker as to one defendant on the fifth one, the jury could reasonably infer that the other defendant had the same partner on that robbery.

(2) Where two defendants (half-brothers) were charged with numerous bank robberies and related offenses, district court did not abuse its discretion in refusing to sever the two defendants’ trials; the defendants failed to demonstrate, even on appeal, any prejudice which could not be cured by the limiting instructions given.

(3) Defendant’s 1,435-month conviction (151 months for conspiracy and bank robbery, and 1,284 months for firearms offenses) did not constitute cruel and unusual punishment under the Eighth Amendment, because it was not grossly disproportionate to the violent crimes.

(4) District court did not abuse its discretion in denying defendant’s motion for a new trial, or for an evidentiary hearing, on defendant’s allegations that by withholding information during voir dire, a biased juror sat on his jury. A party seeking a new trial on this basis must demonstrate that a juror failed to answer honestly a material question on voir dire, and must further show that a correct response would have provided a valid basis for a challenge for cause. Here, defendant failed to show even that the juror lied, much less any actual or implied bias that would have disqualified the juror from service.

COURT OF CRIMINAL APPEALS

State’s PDR from Dallas County

Archie v. State, __S.W.3d__ (Tex.Crim.App. No. PD-0189-10, 6/8/11)

Reversed, remanded: Price (8-0)

A jury convicted appellant of murder, and the trial judge assessed punishment at 40 years’ imprisonment. COA reversed the conviction and remanded the cause to the trial court, concluding that the trial court abused its discretion by denying appellant’s motion for a mistrial. In its PDR, the State argues that COA erred when it found the prosecutor improperly commented on appellant’s failure to testify during his closing argument. Moreover, even assuming the prosecutor’s argument was improper, the State contends, it was within the trial court’s discretion to deny the motion for mistrial.

CCA concludes that COA did not err in holding that at least two of the rhetorical questions posed by the prosecutor directly to appellant during his final argument constituted improper comment on his failure to testify. However, the prejudice caused by the prosecutor’s two improper questions was not so great that a jury would necessarily have discounted the trial court’s firm instructions to disregard them. It is unlikely that the jury would have ignored the court’s explicit instructions and convicted appellant, not on the compelling evidence introduced against him, but because he failed to take the witness stand to explain himself. See Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App. 1998). Under these circumstances, CCA holds that it was well within the trial court’s discretion to deny appellant’s motion for mistrial.

State’s PDR from Dallas County

Davis v. State, __S.W.3d__ (Tex.Crim.App. No. PD-0845-10, 6/8/11)

Vacated, remanded: Price (8-0); Johnson concurred

A jury convicted appellant of felony escape; he escaped the Dallas County Jail while being treated at Parkland Hospital, stole a taxicab and drove to Oklahoma, leading lawmen on a protracted high-speed chase. On appeal, appellant argued that the State failed to bring him to trial within the time limits of the Interstate Agreement on Detainers Act (IADA) and that the trial court therefore erred in failing to dismiss the indictment with prejudice in accordance with the remedial terms of that statute. COA agreed and ordered the trial court to dismiss the indictment with prejudice. The State argues that the trial court committed an error that prohibited the proper presentation of the case for appeal and, therefore, COA should have remanded the cause to the trial court, under Tex. R. App. P. 44.4, to remedy that error. The State maintains that, upon a proper presentation of the record for appeal, it should be evident to COA that the IADA was not violated.

CCA agrees with appellant that there is nothing in IADA Article IV that imposes a burden on the trial court, expressly or by necessary implication, to ensure that any proffer of good cause (though it must be made in open court) is memorialized by the court reporter. If no such burden exists by virtue of the IADA, then Rule 44.4 cannot be invoked to require COA to remand the cause for remedial action without first identifying some other provision of law that assigns a burden exclusively to the trial court to secure the presence of a court reporter.

However, appellant, as the appealing party, had an obligation to present a record to COA that demonstrated he was entitled to appellate relief. In the IADA context, this meant he had to show that the State did not satisfy its trial-level burden to present good cause for the continuance, and that the trial court therefore abused its discretion to grant it. On the state of the record, the appellate court could not say that the trial court abused its discretion to find that the continuance was necessary or reasonable for purposes of Article IV. It appears that the State proffered the re-indictment as its good cause.

Appellant’s PDR Granted from Dallas County

11-0064, 11-0065 – William Kyle Walters – Aggravated Assault

Is a court’s refusal to compel testimony from a defense witness based on her invocation of her 5th Amendment rights without a determination of a reasonable basis for “a real and substantial fear of prosecution” a violation of Petitioner’s rights to due process and due course of law?

For a list of issues pending before the court, click here.

COURT OF APPEALS

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Tijerina v. State, Nos. 07-09-00344-CR, 07-09-00345-CR, 2011 WL 667884 (Tex.App.-Amarillo Feb 24, 2011).

After D told officers to leave his property, actions taken by eyewitness, at officer’s behest, in approaching D’s residence and peering through a window constituted a “search” for Fourth Amendment purposes. Because the officers no longer enjoyed the implied authority to approach D’s residence, neither did the eyewitness acting at officer’s behest.

State v. Molder, No. 02-09-00385-CR, 2011 WL 679325 (Tex.App.-Fort Worth Feb 24, 2011).

While trooper’s testimony established that DPS has a general policy to inventory vehicles following arrest, the testimony was deficient in that it related nothing about the scope of said policy and how it affects closed containers such as D’s cloth bag. Thus, D’s motion to suppress deemed properly granted. “We recognize that courts have held that an officer does not need to specifically mention ‘closed containers’ to establish a policy regarding them…. But we hold that in this case, [trooper’s] testimony, as the sole evidence at the suppression hearing, was too barren to show any particular standardized criteria or routine concerning the scope of the inventory; the testimony is therefore insufficient for us to infer the extent of DPS’s policy regarding closed containers. Also, we conclude that we cannot infer DPS’s policy to open closed containers from the mere fact that [trooper] did so; such an inference would eviscerate the requirement described in [Florida v. Wells, 495 U.S. 1 (1990)].”

Wise v. State, No. 02-09-00267-CR, 2011 WL 754415 (Tex.App.-Fort Worth Mar 3, 2011).

Evidence deemed insufficient that D knowingly possessed the child porn discovered on his computer because D bought the computer second-hand at a flea market, the computer contained viruses capable of covertly placing images on the computer, and it was impossible to determine when the images were placed on, accessed, or deleted from, the computer.

Dissent: “the majority holds that when defendants possess illegal pornographic images on their computers but delete them and send them to their hard drives’ free space before the police discover them, the State cannot prove intentional or knowing possession of the images…. The majority mischaracterizes the evidence about the viruses on [D’s] computer. [The] State’s digital forensic examiner, testified that the computer had several viruses and then said that some viruses, hypothetically, are capable of remotely accessing a computer and storing images on it. [The forensic examiner] did not say that the viruses found on [D’s] computer served such a purpose. She did explain, however, that the probability of a malicious outsider using a virus to store child pornography in the free space of another computer is low…. [A] lack of direct evidence and the existence of alternative hypotheses will be common features of many cases in which illegal images have been deleted and reside in a computer’s free space.”

Miller v. State, No. 03-09-00670-CR, 2011 WL 832126 (Tex.App.-Austin Mar 9, 2011).

D was without a reasonable expectation of privacy as to thumb drive (containing child porn) that he left in a computer at his place of employment (a police station) and thus lacked standing to challenge search of the thumb drive because D had previously left the thumb drive in an area accessible to others, the drive did not contain any marks identifying D, and D did nothing to prevent others from accessing the drive (e.g., password) even though he possessed advanced computer knowledge.

Proving Self-Defense: Gunshot Wound Analysis in Crime Scene Reconstruction

In New Mexico v. Jimmy Garcia, criminal defense attorney Lelia “Lee” Hood was faced with the unnerving challenge of trying to save an innocent person from a zealous prosecutor—not an altogether unique mission for a veteran criminal defense attorney, but a perilous one still (Cause No. D-1314 CR 2007-00491, Thirteenth Judicial District Court Valencia County, New Mexico, June 15, 2009). Her client had shot and killed the wrong man to kill in New Mexico—a Bandido, a member of the notorious outlaw motorcycle gang dominant in that state. Because of the inferior investigative abilities of the local police and the precarious position in which it put the local prosecutor (trying Jimmy Garcia or being accused by the Bandidos of letting a killer go), Jimmy Garcia was facing a death sentence. Not an official death sentence: New Mexico had repealed the death penalty a year before. But the New Mexico state prisons were populated with cells of incarcerated Bandidos, and if Jimmy Garcia was sentenced to one, it would be tantamount to an execution.

Danger lurked at the courthouse for Jimmy Garcia and for his family too, even for Lee Hood and her defense team. The danger was made real to everyone both by death threats telephoned to the courthouse and by gang members showing up there with the deceased’s family. Extra security was brought in and sheriff’s deputies were assigned to escort the defendant, his family, and the defense team in and out of the courthouse and to their vehicles parked in the half-acre lot in front.

Theories

In brief, the State admitted that the deceased, Charles Diaz, aka Chucky Bandido, had struck Jimmy Garcia on the forearm with a large heavy flashlight; however, the State asserted that after Chucky Bandido stopped threatening and started to walk away, Jimmy Garcia pulled a gun and shot Chucky Bandido twice, resulting in his death. This scenario meant that Jimmy Garcia was not under assault when he drew the gun and therefore was not defending himself from an attack. His use of deadly force, according to the State, was not self-defense, but voluntary manslaughter. That he had time to reflect on what he was doing and that it was criminally intentional was supported by the assertion that there was a three-second delay between the shots. Thus there was time to carefully aim, think, and form the intent to murder, and, contrarily, time to retreat instead of shooting, or just let it go.

As crime scene analyst for the defense, my opinion was that Chucky Bandido did not strike Jimmy Garcia and start to walk away, but continued the attack and was attempting to strike Jimmy Garcia again at the instant he was shot. In my opinion, Jimmy Garcia had shot in self-defense to prevent himself from being bludgeoned in the head with a deadly weapon. Additionally, the shots came in rapid succession, just as the State’s main witness had said they had when she gave her first statement to the police at the scene. It wasn’t until later, after subsequent police interviews, that she came up with the three-second delay.

The facts of the case, as I saw them, were in favor of Hood’s client as far as they went, but we needed some conclusive piece that would convince the jury to set her client free—free to get out of New Mexico, that is. He’d shot and killed not just any Bandido, but Chucky Bandido, the secretary-treasurer of the state chapter, and being arrested may have saved him from being killed outright at the scene. If he went to prison, even for a year, it would end up the same. If he was found not guilty, he’d have to leave the state with his family by cover of darkness. The piece of evidence that we needed would come in the form of a gunshot wound that didn’t fit the trajectory of a bullet, but I hadn’t drawn that conclusion yet, so more on it later.

How It Began

The series of events that brought Jimmy Garcia into the courtroom began in November 2007, when his sister-in-law Rose Garcia brought Chucky Bandido home to meet her family. Rose, a 40-year-old divorcee, lived with her parents on the same small lot as Jimmy Garcia and his family. Her parents had a doublewide trailer in the center of the lot, and Jimmy Garcia and his family lived in two small trailers connected by a homemade plywood room behind the larger trailer.

Parked in front of Jimmy Garcia’s trailer was his “Trike,” a three-wheel motorcycle with an extended front fork that made it nearly 12 feet long. The space between the parked motorcycle and Jimmy Garcia’s trailer was 24 inches. It was just wide enough for someone to comfortably walk through.

Jimmy Garcia was intimidated by Chucky Bandido. That Thanksgiving, for the first time in 16 years, Jimmy refused to take his family to Thanksgiving dinner at his in-laws’ home because Rose had brought the outlaw gang leader.

A couple of weeks later, on December 1, 2007, Jimmy Garcia was expecting his son to arrive in a car he had just purchased. When Chucky Bandido pulled in, Jimmy Garcia thought it was his son and walked out to meet him. Jimmy Garcia was paying attention to what he thought was his son’s new car instead of the driver. He was at the driver’s window before he realized that it was not his son, but Chucky Bandido. Startled, Jimmy Garcia reacted fearfully and aggressively. He told Chucky Bandido to leave. Chucky Bandido snarled back that he would go wherever he f——ing wanted to go. Jimmy Garcia told Chucky Bandido that if he wanted to fight, he would fight him. The words, once blurted out of his mouth, couldn’t be taken back.

According to Jimmy Garcia, Chucky Bandido threw his car in gear and tried to run over him, so Jimmy fled behind a large tree in the yard. Chucky Bandido made another pass at Jimmy Garcia then sped off, spewing dirt from his tires and threatening that he would be back.

Chucky Bandido drove a few blocks then pulled over and called Rose at work. He told her that her brother-in-law had gone crazy, pulled a knife on him, and had thrown rocks at his car. Rose was furious at Jimmy. Chucky Bandido said he wanted to teach Jimmy a lesson. Rose later denied that they actually made any plan to do so.

Immediately, Rose left work. She talked to Chucky by cell phone as she drove to her parent’s property and went to Jimmy Garcia’s front door, where she began angrily screaming at him to come out. Jimmy Garcia was inside with his son, who, by then, had arrived. Jimmy Garcia was afraid that Rose had brought Chucky Bandido back with other Bandidos, so before opening the door he stuck his Taurus .357 revolver in the back of his jeans and pulled his shirt over it.

Jimmy Garcia opened the door of his trailer and looked around. The only person he saw was a red-faced Rose bent forward from the waist, gesticulating wildly and raging at him. He stepped out to appease her and told her that he didn’t know it was Chucky Bandido in the car when it pulled up. Rose accused him of lying, saying that he knew who Chucky Bandido was. She testified later that Jimmy Garcia was shaking and attributed it to his being angry. In his testimony, Jimmy Garcia attributed it to being scared.

What Jimmy Garcia didn’t know as his sister-in-law was screaming in his face was that Chucky Bandido had returned with her and had parked his car on the other side of the doublewide trailer where Jimmy couldn’t see it. He had circled around and came up on Jimmy Garcia’s left side and slightly behind him as Jimmy stood in front of his trailer trying to mollify Rose. Chucky Bandido walked quickly between the side of the trailer and the Trike and struck Jimmy Garcia full force with a 14-inch metal Maglite flashlight, the same as police officers used to carry before they were outlawed by most departments. Seeing Chucky at the last second, Jimmy Garcia raised his left arm reflexively to ward off a blow directed at his head. The resultant injury, according to paramedics, was a severe deformity to his left ulna bone near the wrist.

From that point, stories differed. According to Jimmy Garcia, when Chucky Bandido hit him Jimmy fell back in pain and fear. As Chucky Bandido reared to hit him again Jimmy drew the revolver from his waistband and quickly fired two or three times at Chucky Bandido, hitting him how many times he didn’t know.

But according to Rose, after Chucky Bandido hit Jimmy he just stood there. So she told Chucky Bandido they should leave. Chucky Bandido switched the flashlight to his left hand, and when he started to walk away with her, Rose saw Jimmy pull the gun and point it at Chucky Bandido. Rose said she cried out, and as Chucky Bandido turned, Jimmy Garcia fired and hit him somewhere in the front of his body. Rose yelled at Jimmy not to shoot again, but he aimed and fired again, this time hitting Chucky Bandido a second time as he lay on the ground. Rose insisted on the stand, though she had not mentioned it in two previous statements, that there was a three-second delay between the shots. Three seconds gives a person time to think—to decide.

The Pathologist

When eyewitness testimony is in direct conflict, an analysis of the physical evidence is necessary to help the jury sort out what took place. The medical examiner who performs the autopsy is the person who can describe the wounds of the deceased and the effect they had on his body. The police criminalist would be the expert who explains what the physical evidence at the scene was, how far the muzzle of the revolver had been from the deceased when it was fired, and what kind of ammunition had been used. The crime scene analyst is the person who can put all the evidence together to explain what happened, how it happened, and in what sequence. The defense crime scene analyst may perform some of the same tests as the criminalist. Those three witnesses are the key players on the physical evidence. Lee Hood would bring in another key player, Tom Barker, PhD, a professor of sociology from the University of Kentucky, who would enlighten the jurors on who the ruthless Bandidos were and what kind of hostile men were members of their gang.

After the police officers who had been at the scene testified as to what time they arrived and what they saw, the State called a forensic pathologist. The State’s intention was to establish that Chucky Bandido was dead of gunshot wounds, and that they were not close-range wounds, supporting their theory that he was far enough away he didn’t need to be shot. The pathologist testified under direct examination that Chucky Bandido had suffered two gunshot wounds. One was a tangential flesh wound to his right chest. It entered just above his right nipple and traveled laterally and downward under the skin then emerged and created a three-inch-long laceration of the lower right side of his breast.

The pathologist testified that the second shot entered Chucky Bandido’s left chest, fracturing his sixth rib, puncturing his lung and diaphragm, transecting his aorta, ricocheting off his 12th vertebrae, and fracturing it then tearing a two-inch laceration in his right kidney before exiting his back. In spite of the huge disparity in the damage the two wounds caused, the pathologist would not commit to which shot was fatal or which came first and would not comment on the position of the parties or the timing of the shots other than to say that the gunshot wounds did not have the characteristics of close-range wounds.

In order to establish a foundation for my testimony, I needed Lee Hood to pin down certain things the prosecutor had glossed over. It was imperative that the state’s pathologist answer affirmatively a list of questions I provided to Hood. Amongst other things, the pathologist’s answers would establish that the shot to the right side of the chest would be less likely than the other to knock Chucky Bandido down. Based on that premise, I could testify that the shot to the right side came first—which is what the blood pattern and bullet trajectories told me.

Lee Hood skillfully took the pathologist through the list of questions in a matter-of-fact manner. The pathologist testified that the shot to the right side of the chest did not strike any deep tissues, bones, or organs and would not have been expected to be fatal by itself, and that it would not necessarily disable a person, send them into shock, or make them fall down.

The information had to be pried out, but the pathologist’s affirmative answers to those first three questions opened the door for me to assert that the wound to the right chest came first. Now Hood moved on to the questions and answers needed for my second premise—that the shot to the left chest was fatal and would have sent Chucky Bandido to the ground immediately.

She asked if a shot to the left chest that fractured a person’s ribs and punctured his lung and diaphragm would have collapsed his lung and interfered with his ability to breathe and would likely have caused that person to collapse. The pathologist answered that it could. Hood asked if a shot to the left chest that transected a person’s aorta would leave a person with seconds to live and would likely cause him to collapse, and the pathologist answered that it could. She asked if a shot that ricocheted off a person’s spinal column may well paralyze the person or cause the person to collapse. The pathologist answered that it could. She asked if a shot that tore a two-inch laceration in a person’s kidney would likely cause the person to collapse. The pathologist again answered that it could. Finally, she asked if a shot that did all those things at once would be likely to cause a person to go into shock, lose consciousness, and collapse. The pathologist answered that it could.

While the pathologist would not state which shot came first or which was fatal, she had answered all the questions affirmatively, and Hood had laid the premises for my testimony.

The criminalist for the state testified that the shots striking Chucky Bandido were fired at a distance of more than two feet. At first blush, the prosecutor thought the criminalist’s testimony was in his favor, as it indicated the parties were separated by at least two feet and not struggling hand to hand at the time the shots were fired. If Chucky Bandido was two feet or more away, the prosecutor reasoned, Jimmy Garcia would have been out of his grasp, thereby making Rose’s story credible.

What the prosecutor didn’t know was that I had already performed distance tests with a similar 14-inch Maglite flashlight by striking heavy clay flowerpots on a mannequin’s head. In those tests, which I had videotaped and would later play for the jury, I established that two to three feet is the ideal distance to be from a person you want to strike with such a weapon. At that range, a devastating blow can be delivered with the attacker’s full force, whereas being closer makes it harder to get a full swing. The video showed flowerpot shrapnel exploding 15 feet out from the mannequin when it was struck—an impressive sight. I would later state that the two- to three-foot distance is where Chucky Bandido would have wanted to be in order to get maximum leverage.

Rose Garcia

After finishing with the expert witnesses, the prosecutor put on Rose Garcia, Chucky Bandido’s girlfriend and Jimmy Garcia’s sister-in-law. On direct examination, Rose Garcia testified that she saw Chucky Bandido strike Jimmy Garcia on the arm, but made it sound as if Chucky considered that to be enough punishment. She said she told Chucky Bandido they should leave, and he put the flashlight in his left hand and turned to leave with her. When Jimmy Garcia came out with the gun and fired once, Chucky Bandido went down, then Jimmy Garcia took his time, aimed, and shot a second time. There were at least three seconds between the shots. During that time she yelled at him not to shoot, but he ignored her and fired anyway. She ran to Chucky Bandido’s side and held him while he died. She didn’t mention a third shot.

When Hood resumed cross, Rose Garcia admitted that she wanted to kill Jimmy Garcia for shooting Chucky Bandido. Hood pointed out that several Bandidos arrived on the scene at the same time as the police, implying that Chucky Bandido had called for backup before initiating the assault, a tactic the Bandidos learned from the police. Rose Garcia denied any knowledge of the backup bikers being called to the scene.

The questions remained as to how Chucky Bandido was shot, what position Jimmy Garcia and Chucky Bandido were in when the shots were fired, the timing of the shots, and which shot struck first. The answers to these questions fell to me.

Gang Expert

Before putting me on the stand, Hood wanted the jury to know what kind of gang the Bandidos are and what kind of person Jimmy Garcia was facing that day. To accomplish that objective, she brought in Dr. Tom Barker, who was an expert on motorcycle gangs from the Criminal Justice Department at Eastern Kentucky University. The professor held the jury and court officers spellbound with his expansive knowledge of motorcycle gangs. He pointed out that the Bandidos were a largely Hispanic criminal gang, and that they had become the largest motorcycle gang and had a reputation of being one of the most dangerously violent criminal gangs on or off their bikes. He pointed out that the letters GFBD on Chucky Bandido’s belt buckle stood for “God Forgives. Bandidos Don’t.” Barker informed the jury that the Bandidos actively recruit from the notorious MS 13 and Mexican Mafia gangs in order to get the most violent and ruthless members they can. They support themselves through the sale of drugs and other criminal activities.

By the time he was dismissed, the jurors understood what kind of gang the Bandidos are and what kind of person Chucky Bandido had to be to claw his way to the top of such a gang. Thus, they knew that Chucky Bandido was the kind of person who could beat a man down with a heavy 14-inch metal flashlight, and they could better understand Jimmy Garcia’s state of mind when he drew his revolver.

I took the stand after lunch on Thursday afternoon and was on it for three hours. After being qualified, I explained my analysis of the incident to the jury. I began with the gunshot wounds to Chucky Bandido.

I explained that the first shot must have been the one to the right chest. I concluded that because the wound was tangential and had to strike Chucky Bandido at a very low angle of incidence, meaning that Chucky Bandido had to be positioned at an angle with his left shoulder facing Jimmy Garcia and his right shoulder pulled back. I called it the “batter’s stance.” In the angled batter’s stance, the bullet could miss the rest of his body and just “graze” his right breast. However, there was an aspect related to that position, too. If the bullet grazed Chucky Bandido’s chest in that position and his arm was hanging at his side as Rose testified, it would strike his upper right arm. It wouldn’t, I pointed out, if his right arm was raised above the path of the trajectory. With the flashlight in my hand, I demonstrated that Chucky Bandido’s arm had to be raised to be out of the way of the bullet. Of course, raising the right arm with the flashlight in it put me in a striking position, and the jury could plainly see that.

The blood pattern on Chucky Bandido was to the right side of his upper body, indicating that the blood flowed down from the wound to the right chest long enough to reach from his breast to his belt. Chucky Bandido was wearing leather work gloves and his right glove had blood stains on the inside and on the heel of the glove, which would be consistent with his grabbing his right chest reflexively when he was shot. The fact that the wound was tangential meant that it hurt immensely and bled profusely but would not necessarily put him down.

His reflex action would be to grab his right breast and twist to his right in pain, I told the jury, and in doing so he would immediately expose his rib cage under his left armpit—where the second shot struck. All he had to do was rotate his body on its central axis from a roughly 60-degree batter’s stance to his right about 10 to 20 degrees, an insignificant movement considering the human being can rotate on its central axis faster than any other animal. The movement would line up the second trajectory perfectly.

Judge Pope allowed me to demonstrate for the jury. Defense investigator Scott Kenna assisted in the demonstration using two three-foot-long dowel rods, as we had practiced the evening before. I stood two feet in front of Kenna with my arms at my side as Rose Garcia had described. Kenna quickly pointed one dowel rod at my right chest in a grazing or tangential wound trajectory. The jury could see that the bullet would strike my chest and my upper right arm, too.

Next, I assumed the batter’s stance and held the flashlight over my head in a striking position. Kenna snapped one rod up to my chest and said, “Boom!” I dropped the light, grabbed my chest with my right hand and twisted right exposing my left chest and ribs. “Boom!” Kenna said, snapping the second doll rod to my left ribs and I feigned collapsing. It pointed to the exact spot in the left chest where Chucky Bandido was hit.

I turned to the jurors and emphasized that the timing of the bullets was less than a second and a half—enough time to say quickly, “Boom! Boom! Boom!” There were three fired rounds in the revolver. I believed that one of the rounds, probably the last, missed Chucky Bandido and was not found. It could have gone anywhere.

For the coup de grâce, Hood asked if there was anything else that made me believe Chucky Bandido had his arm raised when he was shot in the right chest. We had saved the best for last—the final piece of evidence that would convince the jury to acquit the defendant.

I brought up a slide of the ugly wound to the right chest. Ordinarily, defense attorneys don’t like to show juries ugly pictures, especially of a gunshot wound that looks painful, but the graphics proved the theory in this case. Hood had calculated the risks of the photographs prejudicing the jury against those of enlightening them and decided to take the chance.

No doubt that a wound like that would cause a person to twist to his right and clamp his hand over it, I emphasized to the jury. Giving them a second to think about that, I told the jurors to note that the bullet entrance hole was above the right nipple, but that the exit trajectory pointed down when the body was in the anatomical position as the pathologist had described it. Then I put my hand on the outside of my right breast where the exit wound was located and raised my right arm above my head in the striking position. I directed the jurors to notice that as I raised my right hand the shirt on the lateral part of my right breast stretched upward just as the skin beneath my shirt did.

I pulled up the next slide, which showed me in a white T-shirt with my arm at my side and a black line drawn from my right nipple to my right armpit, the area of the wound. The line was straight. The next slide showed me with my arm raised. The black line now pointed up. The following slide showed a red line drawn from the nipple to his right armpit with my arm raised. It was straight while my arm was raised. The last slide showed the red line with my arm lowered. The end of it pointed down, just as the wound to Chucky Bandido’s right chest did. The jurors’ eyes told the story: It clicked, made sense, they understood what had happened. Chucky Bandido had to be in a striking position with his arm raised when he was shot. The first shot must have struck his right chest, and it had to hit him while he had his arm raised to deliver a second blow. He rotated slightly right and the second shot struck him on the left side of his chest. Boom! Boom! Boom! No pause, no thinking time, no three-second delay, just “bang, bang, bang”—Rose Garcia’s very words to the police in her first statement, given at the scene on the night of the shooting. Lee Hood reminded the jury of those words in her summation.

I put up a picture of the flashlight that had been found beneath the decedent when he was lifted from the scene. I pointed out to the jury that if the decedent had been holding the flashlight in his left hand, as had been described by Garcia, it would have fallen at his side. I raised the flashlight over my head in the striking position and let fall clattering loudly on the courtroom floor. It landed behind me.

The Verdict

The jury was dismissed for the night. They deliberated the next morning and before noon returned a “not guilty” verdict. Jimmy Garcia and his family went home to start packing to move to another state. I flew back to Austin. Dr. Barker returned to his classroom in Kentucky, and Lee Hood returned to her office.

In the Jimmy Garcia case, the wheels of justice had turned slowly enough for the jury to see that the machine was about to pull in an innocent man, and they threw the “off” switch. That does not always happen. Prisons and jails have innocent men in them. It takes the combined expertise and dedication of an experienced criminal defense lawyer, investigator, crime scene analyst, and sometimes other experts to assure that justice is done. Sadly, many court systems and state and county agencies pay only a portion of the experts’ fees. In this case, I, whom the jury credited with convincing them of the defendant’s innocence, was paid 40 percent of my fees. Sometimes, forensic experts turn down indigent cases because they lose money instead of making it. Often, they do cases out of a sense of civic responsibility, as I did in the Garcia case, but doing good doesn’t pay the rent. Jimmy Garcia never knew about that part of the system. He never knew how close he came.

Change to Pretrial Diversion Policy Could Lead to Deportation

A simple change in the Hidalgo County District Attorney’s pretrial diversion policy has the potential to result in the deportation of many criminal defendants who would otherwise be able to remain in the United States. The DA’s office will now require defendants to enter an admission of guilt in court as a condition for receiving pretrial diversion. If the defendant successfully meets the condition of the diversion program, the criminal charge will be dismissed. From a criminal defense perspective, pretrial diversion remains an option worth pursuing.

After Padilla v. Kentucky, 130 S. Ct. 1473 (2010), however, the criminal defense attorney must consider more than the immediate consequences of the criminal proceeding. Rather, the attorney representing a noncitizen client must apprise the client about any potential immigration consequences of a conviction.

Hidalgo County’s new policy converts what was previously not considered a “conviction” for immigration purposes into a conviction. The Immigration and Nationality Act (INA), the federal statute governing immigration law, contains a two-pronged definition of “conviction.” Satisfying either prong is sufficient to meet the definition of conviction. The first route is fairly straightforward and inapplicable to the pretrial diversion scenario: A conviction occurs when a court enters “a formal judgment of guilt.” INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

The second prong of the statutory definition of conviction is what matters to defense attorneys contemplating pretrial diversion for their noncitizen clients in Hidalgo County. Under this provision, a conviction occurs where the noncitizen “entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt” and “the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.” Id. at (A)(i)–(ii). It does not matter whether any of this sentence is suspended. Id. at (B).

A judge who agrees to grant pretrial diversion may require the defendant to attend a class or pay a fine. See Tex. Code Crim. Proc. §§ 76.011, 102.012. It is likely that an Immigration Judge would consider either of these requirements sufficient to satisfy the INA’s “punishment, penalty, or restraint” requirement.

These phrases are construed rather broadly so as to encompass conditions not shared by the public generally. In Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008), for example, the Board of Immigration Appeals, the immigration appellate body, held that court costs imposed after entry of a nolo contendere plea where adjudication was withheld was sufficient to constitute a form of punishment or penalty for immigration purposes.

Add to this the new requirement that a defendant admit guilt before the court and the entire second prong of the INA’s definition of conviction is met: The defendant has “entered a plea of guilty” and “the judge has ordered some form of punishment, penalty, or restraint.” But see Matter of Grullon, 20 I&N Dec. 12 (BIA 1989) (participation in Florida’s pretrial intervention program did not constitute a conviction because the noncitizen defendant did not enter a plea nor did the court enter a finding of guilt). Nothing else matters.

This conviction can then be used to initiate removal proceedings (commonly referred to as deportation proceedings). For a defendant who is otherwise authorized to be in the United States—for example, a lawful permanent resident—this could be the difference between returning home or being put into an immigration prison and eventually losing, in words the Supreme Court has repeated since the 1940s, “the right to stay and live and work in this land of freedom.” Bridges v. Wixon, 326 U.S. 135, 154 (1945).

Though Hidalgo County’s policy has a direct impact on defendants in that county only, the policy change serves as a cautionary tale for attorneys elsewhere. A simple procedural alteration implemented without fanfare and disseminated only through emails and word-of-mouth could have enormous consequences for criminal defendants and defense attorneys.

First Blood

Navy blue suit. Close-toed heels. Hair neatly coiffed. I look the part, but will this facade prove to provide me with the skills to convince these jurors that I am a competent lawyer? Even more importantly, will this material persona help to relay the truth about my client and the fact that he has been wrongly accused?

I’ve given this client a lot of thought. When I first met with him and his wife at the IHOP Saturday morning, I learned that he had been charged with terroristic threat. Wow, that sounds pretty bad, I thought. He sits across the table from me with his small 5’5”, 130-pound frame, his calloused hands from hard labor, and his Mickey Mouse T-shirt. To his left sat his gap-toothed, red (almost pink) haired wife, who had a smile that could light up a room and a laugh that was so contagious, you couldn’t help but chuckle even though you might not understand a word she’s saying. I thought, We’ll they’re sweet. He doesn’t seem like a “terrorist.”

The time has come. As I sit in this courtroom as a lawyer about to embark on my first actual trial, I feel the panic set in. I’ve written the opening statement. I’ve practiced it in front of my mirror with my not-so-forgiving audience at least a dozen times. I attempt to block out the fear of failure by positive reinforcements that seem to do nothing more then intensify my dread of collapse. Legs shaking, I somehow manage to stand up with my trusty cheat sheet in hand and complete my very first journey ten feet up to the podium. “May it please the court?” Oh my gosh, these are either great acoustics, or the middle of the courtroom is microphoned. That was unexpected. I continue. “Ladies and gentlemen, things aren’t always what they seem.” I am visibly shaking. Pull yourself together, I think to myself. “Let me tell you the story of a man poorly misunderstood.”

As I begin to tell his story, the doubt and fear somehow seem to slowly seep from my body. I put down that cheat sheet. Maybe it was the dozen times I practiced in front of the mirror. Maybe it was the attentive faces of those six jurors. Maybe it was the heels. Or maybe, just maybe, it was that a part of me, regardless of how different I may be from this man accused of a terroristic threat, was able to find a similarity that connected us on a different level. We are both humans whose liberty is priceless.

The trial took place over two long days. I manage to survive a few direct and cross examinations. We rest. The state rests. Closings. Now we wait.

The prosecution is texting his buddies back in the office, confidently awaiting his victory like a farmer who has not only counted his chickens, but has proudly announced their arrival to the market before they have actually hatched. I sit there wondering, When the jury foreman says “guilty” will my client understand what that means or will the interpreter sitting behind him have to clear it up in Spanish. What seems like an eternity of waiting turns out to be about only three hours. The clerk pokes her head into the courtroom: “We have a verdict.”

Well, this is it. The foreman stands. We stand. I make sure to have a pen in my hand to divert my nervousness from a gri­mace on my face to a death grip on the pen. A one-word verdict could change this man’s life, take away his liberty, curse his name, damn his future. I hold my breath.

“Not guilty.”

I exhale. The prosecution scowls. Our poorly misunderstood man walks through the courtroom threshold a free and unmarked man.

I realize that the world would not have ceased to rotate in the event of a guilty verdict. The birds would continue to sing. The rains would continue to fall. But, the quality of a man’s life would have been severely diminished. His small stature might not stand as proudly and his wife’s smile might not shine as brightly. If for nothing more than that, I now know that this is what being a lawyer is all about.

June 2011 Complete Issue – PDF Download

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Features

20 | Still Crazy After All These Years – Rusty Duncan photos
26 | Proving Self-Defense: Gunshot Wound Analysis in Crime Scene Reconstruction – By Louis L. Akin
32 | Change to Pretrial Diversion Policy Could Lead to Deportation – By César Cuauhtémoc García Hernández & Carlos Moctezuma García
34 | First Blood – By Sara Stapleton Reeves
44 | Defendant’s Motion for Appointment of Expert to Perform a Neuropsychological Examination on Defendant – By Mark D. Griffith

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
36 | Significant Decisions Report

President’s Message: Our Roles in the System – By William Harris

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It is odd that the final column in this series, due to procrastination, gets written after I am no longer president of TCDLA. In it I would like to address what I see as a change in the character of the system since I first began practicing law. I started in 1976 as a prosecutor in Tim Curry’s office in Fort Worth. For five years I prosecuted traffic appeals, then misdemeanors, and finally felonies. Then I left the District Attorney’s office and became a defense attorney. I have worked as a criminal defense attorney now for thirty years, defending everything from misdemeanors to capital murder.

When I began practice there were five felony courts in Tarrant County. At least two of the judges on the felony bench had been in the district attorney’s office, and all had spent time in private practice before assuming the bench. One of them, Judge Byron Matthews, is a member of the TCDLA Hall of Fame for his work as a defense attorney before he took the bench.

One of the changes that has occurred during the thirty-five years of my practice is that it is much more common for lawyers to assume the bench directly from the prosecutor’s office without ever defending a person accused of crime. I know a number of judges with such a history who are fair and impartial, everything a judge is supposed to be. I know others who are not.

A judge’s role is different from that of the advocates who appear before them. It is a judge’s duty to be fair and even-handed. To treat all the litigants with respect. To scrupulously keep his or her thumb off the scale. It is not their job to be an extra prosecutor anymore than it is their job to be an additional defense attorney. The latter rarely occurs in Texas because our judiciary is elected. Think of watching your favorite baseball team play an opponent when the opposing team supplies all of the umpires.

One thing that all sides can agree on is that the electorate is generally not well informed about the criminal justice system, its philosophy and how it works. Thus, it is often common for candidates for the bench to tout their life-long role as a prosecutor as a superior qualification to sit as a judge. This is good politics, but it is bad for the judiciary and bad for the criminal justice system as a whole. It encourages the electorate to view the judge as a super prosecutor.

Having been both a prosecutor and a defense attorney, it is my experience that I did not completely understand the role of the defense attorney until I became one. I didn’t really appreciate the power a prosecutor has until I became a defense attorney. None of this is to say that there are not excellent and honorable prosecutors, defense attorneys, and judges who understand their place in the system and perform their role with sensitivity and understanding. But it is also true that there are many in all three roles who do not.

If you want to be a judge, whether you are a defense attorney or a prosecutor, fine. But recognize that when you become a judge your role in the system changes profoundly. You owe it to the system, the country, the state, and the people to think about that role and strive to make the change. I do not claim to understand all of the pressures and nuances that go into serving on the bench; I have never done so. But I can tell when a judge is not treating the defense in the same manner they treat the prosecution. I am sure there are instances in which the opposite is true, although I think it is less common because it is less politically efficacious.

I do not think that we should think that having close friends in a role you have never filled is the same as filling that role. I do think you should consider the perspective of the judges before you criticize them and understand that their purpose and perspective is not the same as yours. I also think that judges should remember the roles of the advocates and respect both sides. While, at the same time recalling that their role now is different. They are not to be advocates. Their job is to be . . . judges.

Executive Director’s Perspective: A Rusty Recap – By Joseph A. Martinez

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A very special thanks to our course directors, Bob Hinton (Dallas), Lance Evans (Fort Worth), and Grant Scheiner (Houston) for this year’s 24th Annual Rusty Duncan Advanced Criminal Law Course held in San Antonio June 9–11. These three lawyers have spent many hours over the last year preparing for this year’s major production. Thanks to their dedication and effort, we had 805 attendees. Thanks to our 32 speakers who spoke at this year’s event.

Thanks to Harold Danford and Clay Steadman, our golf tournament directors. Thanks to the TCDLA board members who helped “meet and greet and direct” attendees. Thanks to Gerry and Christine Goldstein for opening their beautiful King William home to 600-plus people and hosting the 24th Annual Pachanga Party. Thanks to all the TCDLA staff who worked steadfast on this event, especially Melissa Schank, our Assistant Executive Director. Special thanks to our TCDLA members who attended the 24th annual Rusty Duncan Advanced Criminal Law Course. You are the reason this event is so special—and the largest criminal defense CLE.

Congratulation to all the award winners at Rusty Duncan: Hall of Fame inductees Charles Butts (San Antonio) and R. F. “Buck” Files (Tyler), president-elect of the State Bar of Texas; Lawyer of Year Award recipients Katherine Scardino (Houston), Vivian King (Houston), and Shirley Baccus-Lobel (Dallas); and the new Charles Butts Pro Bono Lawyer of the Year Award recipients Tim Evans (Fort Worth) and David A. Pearson (Fort Worth).

Special appreciation to Sue Benner for her design for the 40-year celebration. TCDLA sold 100-plus T-shirts and over 30 prints. You can still order a print today—call the TCDLA office.

Please save the date to join us at the 25th Annual Rusty Duncan Advanced Criminal Law Course, June 7–9, 2012. Our course directors will be Troy McKinney, Stephanie Stevens, and Doug Murphy, with our associate course directors Sharon Curtis, Sarah Roland, and Marjorie Bachman.

The following actions were taken at the TCDLA Board Meeting on Friday, June 10, 2011:

  • There was discussion regarding the proposed changes to the TCDLA bylaws. A majority by show of hands chose to have a paper ballot. The proposed changes were split into 11 sections. All of the proposed changes were defeated.
  • Motion was made by Mark Daniels, seconded by Clay Conrad, to let the TCDLA membership know of the vote count for each section. Motion carried.
  • Motion made by Craig Jett, seconded by Carole Powell, to send an order form to TCLDA members informing members that the 2011–2012 TCDLA Membership Directory will be sent to them by CD at no cost. The directory will be available online at the TCDLA website. The spiral-bound printed directory will be available at a cost of $20. Members must order no later than 8/1/11 to receive their copy the first week of September 2011.

The following actions were taken at the Annual Membership Meeting held on Saturday, June 11, 2011:

  • Bill Harris proposed an amendment accepted by Gary Trichter to amend the proposed bylaw as follows:

    ARTICLE VII—BOARD OF DIRECTORS

    Sec. 2. Executive Committee. The Executive Committee shall consist of the officers of the Association, the editor of the Voice for the Defense, two members of the board of directors, and the two past presidents appointed by the President. Motion made by Bill Harris and seconded by Kelly Pace. Motion failed on a 78–54 vote.

  • A motion was made by Gary Trichter, seconded by Terrance Russell, to table the remaining proposed bylaws for the Bylaws Committee to review. The motion carried on an 81–41 vote.
  • Motion made by Stan Schneider, seconded by Ron Goranson, to approve the Nominating Committee slate of officers for 2011–2012. Motion carried.
  • Motion made by Bob Hinton and seconded by Nicole DeBorde to approve the Nominating Committee slate of new and reappointed board members, motion carried.
  • Grant Scheiner announced TCDLA has a new free Droid app for TCDLA members for accessing the criminal codes. Please go to the TCDLA website for more information.

Please join us for a summer of fun and CLE.

July 14–15South Padre Island, Trial Tactics: The Art of War

Aug. 10Houston, NHTSA SFST Overview

Aug. 11–12Houston, 9th Annual Top Gun DWI, co-sponsored with Harris County Criminal Lawyers Association

Aug. 11–12Austin, “Innocence Work” in the Real World for Real Lawyers: A Practical Seminar on Representing the Innocent After Conviction

Aug. 18Sugar Land, Trial Tactics: The Art of War

Aug. 25Austin, Innocence Lost: How & Why Investigations Go Wrong

Aug. 26Corpus Christi, Trial Tactics: The Art of War

Good verdicts to all.

Editor’s Comment: Why I Do What I Do (A Work in Progress) – By Greg Westfall

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You know you’ve been around a while when you get tapped to give the “Why We Do What We Do” speech. It would seem that once a criminal defense lawyer achieves the right mix of experience and age, he or she gets that figured out. Maybe. I don’t pretend to have it completely figured out yet, but I have been thinking about it lately.

I have a confession to make—I hate going into the jail. It’s not that I have some kind of irrational belief that if I go in I won’t be able to get out. It’s just that it is such a massive logistical pain in the butt. In Tarrant County, you can go from front door to face to face with your client in about 10 minutes, if all goes right. But rarely does all go right. I have sat for 45 minutes in a holdover waiting for a client who never comes. I’ve been sent to wrong floors. Your chances of falling into these black holes increase dramatically within an hour before and an hour after shift changes. You also have to worry about “feeding time” and the occasional lockdown. Anyway, you get the picture.

Once outside, you dutifully make your bill for your time, which will surely get cut. For me, the only predictable thing about the whole experience is that I’ll soon be repeating it.

Then there’s the issue of not just defending your clients, but defending your profession (a/k/a answering the “Have you ever represented someone you knew was guilty” question). Both my wife and I started out in civil law, but both of us were in criminal law inside of a year—I was a criminal defense lawyer, she was a prosecutor. It was a long time ago. We were at some kind of a family gathering and a relative (one of mine) approached us and first spoke to me:

So, are you still defending criminals?

Yep.

Then he turned to my wife.

[Broad smile and twinkle in his eye] So tell me about some of your cases!

I then stood there and basically listened to an episode of Law and Order as he excitedly asked about every “criminal” she had sent up the river. Ultimately, he turned back to me and asked, “What do you think is going to happen to OJ?” “I hope he walks,” I said. He looked horrified. I guess I got the last laugh on that one.

Over time, my answer to the “Have you ever represented someone who you knew was guilty” question has gotten shorter and shorter, until now I just say “yes” or “no” depending on my mood.

I have friends who are doctors. Never heard one of them suspiciously asked, “Have you ever treated someone who you knew was sick?” In fact, it seems that none of my non-criminal-defense-lawyer friends ever gets confronted with this perceived moral liability.

So why do we do this again?

Last week I had a 19-year-old kid who, right now, is a total screw-up. He is one of those who I got a fantastic result for on an earlier case and within a year had three new misdemeanor cases—one of which was a stupid theft case. Of course, what he really has is a bad drug problem. I got his mom hooked up with an addiction specialist and he got a bed open at a treatment center. I had recommended to his mom that he stay in jail until treatment just so he couldn’t screw up anymore. Once the bed came open, I ran in to plead him (his cases were in no way triable) so he could get to treatment. Credit for time served on the non-theft cases, dismiss the theft case, right? Not much reason to hang a crime of moral turpitude around a 19-year-old kid’s neck, is there? Not so fast. The prosecutor insisted that he take a conviction on the theft case. I couldn’t do that. But he’s going to treatment! We can make it so he doesn’t have to do this again! Too bad. The office policy is a conviction for a theft case and, as I was informed, “My policies are more important than your client.”

I once saw John Hardin—a great lawyer and human being—give the “Why We Do What We Do” speech and his ultimate conclusion was simple: “We do what we do because we are who we are.” To this day, that’s the best answer I’ve ever heard. In any event it’s the only one that explains why the thought of an arbitrary policy being more important than a 19-year-old kid’s future made me want to vomit. We took a deferred.

Federal Corner: Don’t Let Your Client Drive the Bus Over the Cliff – By F. R. Buck Files Jr.

/

On February 26, 2010, United States District Judge Barbara Lynn of the United States District Court for the Northern District of Texas sentenced Don Hill, a former mayor pro-tem of the City of Dallas, to 216 months confinement after a jury had convicted him of the offenses of conspiracy to commit bribery, bribery, conspiracy to commit extortion, extortion, conspiracy to commit deprivation of honest services, and conspiracy to commit money laundering.

Anyone who had followed this case in The Dallas Morning News or seen the television coverage of Hill’s case could not have been surprised by the outcome. What makes this case a little out of the ordinary is that Hill led his lawyer down the primrose path to a contempt citation.

Waldo Snerd represented Hill throughout the investigation and the trial of his case. Hill and Snerd were mentioned in 155 articles appearing in The Dallas Morning News, and there was significant footage of the two of them on the evening news broadcasts of the television stations in the Dallas-Fort Worth metroplex.

Well before the beginning of trial, Judge Lynn entered a gag order which included the following paragraphs:

2. 
No person covered by this order shall make any statement to members of any television, radio, newspaper, magazine, internet (including, but not limited to, bloggers), or other media organization about this case, other than matters of public record, that could interfere with a fair trial or otherwise prejudice Defendants, the Government, or the administration of justice. . . .

4. 
Parties may discuss, without elaboration or any kind of characterization, information contained in the public record; scheduling information; and any discussion or order by the Court that is a matter of public record. [Emphasis added.]

Four days before the beginning of Hill’s trial, both Hill and Snerd participated in a tele­vision interview that Hill’s public relations representative had arranged. Gary Reaves, a reporter for WFAA-TV, asked Hill, “If you’re not guilty, why do you think you’re getting prosecuted?” Hill responded:

And what I’ve said, and I’ve expressed it several times, is that we can now look in hindsight and see that local Democratic officials were targeted by the FBI and the Justice Department under our last president, Mr. Bush, so that now we can look back and see a clear statistical and anecdoctal body of evidence that shows that that was what was happening. So I respect the role that the government plays in investigating [ ] wrongdoing or alleged wrongdoing, I don’t think I can walk away from the fact that I fit the pattern that was exhibited by this Bush Justice Department of being a local Democrat, being on the rise, and being told by an agent when he first meets me that my political career is over with. I think, in part, I’m here because I was targeted . . . The jury will have to look at the evidence and the facts and what people say from the witness stand, and that won’t deal with very much, if anything, about local Democrats or politics, it will just deal with whether Don Hill and Sheila Hill did anything that was wrong and improper. And I can sit here with a certainty, looking at you right now and say to you that we didn’t. And I am convinced that we’re going to be exonerated. [Emphasis added.]

Snerd was then asked by Reaves, “What do you think about [Hill’s] claim that this whole prosecution is politically motivated?” Snerd answered:

Well, that’s—that’s been the claim since the beginning. That’s been a claim of several people around the country. I can’t—I can’t particularly speak to that, because I don’t know. But I know that there are several people who have made the claim and then there’s been several people who have shown that during the Bush Administration that Democrats were targeted. [Emphasis added.]

Judge Lynn was not favorably impressed when she learned of Hill’s and Snerd’s comments. She ordered Hill and Snerd, their counsel, and the public relations representative for Hill to appear before her and gave notice to them that she was citing them for criminal contempt. After the conclusion of the criminal case, Judge Lynn presided over a one-day bench trial on the contempt charges. During the hearing, Hill did not testify. Jackson did—and found himself being questioned sharply by Judge Lynn; e.g., “What in the world was going on with you that prevented you from crying foul when you realized that he [Hill] violated the terms of the interview?” and, “What was the source of your optimism that what happened in the interview wouldn’t violate the terms of my order?”

Hill and Snerd were each found guilty of criminal contempt. Hill was sentenced to 30 days imprisonment and Snerd to a $5,000 fine and a 120-day suspension from receiving any new criminal appointments in the Northern District of Texas. Both Hill and Snerd appealed Judge Lynn’s sentence, with each challenging the sufficiency of the evidence.

Last month, the United States Court of Appeals for the Fifth Circuit affirmed Judge Lynn’s sentences. United States v. Hill, ___ F.3d ___, 2011 WL 1207522 (5th Cir. 2011) [Not Selected for Publication] [Panel: Circuit Judges King, Davis, and Southwick. Per Curiam]

The opinion of the Court included the following:

A criminal contempt conviction under 18 U.S.C. § 401(3) requires proof beyond a reasonable doubt that there was “(1) a reasonably specific order; (2) violation of the order; and (3) the willful intent to violate the order.” United States v. Allen, 587 F.3d 246, 255 (5th Cir.2009) (citation omitted).

[Specificity of the Order]

The district court relied on precedents addressing restraints on out-of-court statements challenged as First Amendment violations. We agree with the district court that those cases offer the best guidance for determining whether the gag order was reasonably specific.

***

There is no dispute that the phrase “without elaboration or characterization of any kind” modifies the word “discuss.” Although “discuss” may not have been the most apt word to use, it did not redact “out” from “without elab­o­ra­tion.”

The defendants’ contention that the order is unclear is further weakened by their failure to suggest any changes to the district court after being given a draft of the order for review. The gag order was reasonably specific.

[Violation of the Order]

We now turn to whether there was a violation of the district court’s order. We need not agree that every statement identified by the district court violated the order.

***

The district court found that Hill’s earlier motion to dismiss the indictment because of selective prosecution did not use the phrase or concept of “clear statistical and anecdoctal body of evidence,” nor did that appear in other pleadings. The court held that the assertion there was proof of government bias exceeded the public record and threatened the fairness of the trial.

We agree that Hill’s statement violated the gag order. Hill did not limit his comments to the general claim that Democrats were being targeted for prosecution by the Bush Administration, which would have been permissible because those claims were included in Hill’s publicly-filed selective prosecution motion. Claiming there was statistical and anecdoctal evidence supporting his claim, though, exceeded the public record. That statement had the potential to impede efforts to impanel an impartial jury.

After Hill completed his interview, Snerd then was asked a number of questions by Reaves. The district court held that Snerd’s answers to three of the questions violated the gag order. We consider only one of the answers. The question posed by Reaves was “What do you think about [Hill’s] claim that this whole prosecution is politically motivated?”

***

The district court concluded, “Snerd did not purport to quote from Hill’s overruled Motion to Dismiss [for Selective Prosecution], but contended that the prosecution was politically motivated, and implied it was connected to a larger scheme by the Bush Administration.” The statements, the court insisted, “could have prejudiced the venire and interfered with a fair trial. . . .”

[T]he statement also goes beyond what had been filed in the case because Snerd stated that it had been “shown” the Bush Administration was targeting Democrats. That transforms the allegations in the motion into a statement of fact, clearly an elaboration that was potentially prejudicial to the jury pool. This violation might fairly be seen as less egregious than those of Hill, but it was a violation nonetheless.

[Intent to Violate the Order]

Hill and Snerd contend that the government failed to prove they acted with the requisite intent to violate the gag order. The intent element of criminal contempt requires “a willful, contumacious or reckless state of mind.” In re Hipp, 895 F.2d at 1509. Behavior that amounts to a “reckless disregard for the administration of justice[,]” as opposed to negligent behavior, is a sufficient basis on which to find contempt. See Dominique v. Ga. Gulf Corp., 81 F.3d 155, 1996 WL 101416, at *6 (5th Cir.1996) (unpublished).

There was evidence to support that the defendants had the intent to violate the gag order. Hill’s public relations consultant, Carter, arranged the interview with Reaves some time before the gag order was entered. Although ground rules were established that purportedly prohibited Reaves from asking questions about the case, Carter, a non-lawyer who had never seen a copy of the gag order, was responsible for relaying the rules from memory to Reaves before the interview took place. Neither Hill nor Snerd confirmed or mentioned the rules to Reaves before the interview.

Snerd testified that he had not had sufficient time to study the order because he had been busy with another trial. Despite his admitted lack of preparation, he still neglected to bring a copy of the gag order to the interview. Hill, also an attorney, did not have a copy of the order.

Although the defendants’ mere participation in the interview four days before trial did not violate the gag order, they should have proceeded cautiously with their answers. They did not. A couple questions into the interview, Hill was asked an open-ended question by Reaves; specifically, if Hill were not guilty, why was he being prosecuted? Hill, aware the gag order’s purpose was to protect the impartiality of the jury pool, responded that he was being selectively prosecuted due to political and racial motivations. The government contends that it was reckless for Hill to interject the allegations of selective prosecution into the interview. The government argues that the district court denied Hill’s motion to dismiss for selective prosecution, and therefore that issue would never be before the jury. Hill’s response, the government insists, was intended to taint the jury pool.

Snerd testified at the contempt trial that he became uncomfortable with the interview questions and Hill’s answers almost immediately. He was most concerned about Hill’s comments on selective prosecution, yet he too expounded on the very subject when questioned later by Reaves. Snerd admitted that at no point did he stop the interview or ask for a break to retrieve and review a copy of the gag order. After the interview, Snerd was concerned that Hill’s answers violated the order, but neither he nor Hill requested that Reaves not broadcast the interview or gave any indication that the interview may have violated the gag order.

The defendants’ conduct evinced a willful, or at the very least reckless, disregard for the district court’s gag order, the need for a fair trial by an impartial jury, and the fair administration of justice.

My Thoughts

Without being critical of anyone who has a contrary view, my rule—for 33 years—has been never to comment on a pending case. I well remember giving a “background comment” to a reporter who had assured me that his story was not going to run until after a RICO case had concluded. Unfortunately, the story was published on a Saturday, and the federal judge in whose court I was practicing had the entire weekend to become more and more displeased. On the following Monday, he posed the question, “Would you rather practice law in my court or in the newspaper?” After pondering the question, I chose the first option. That was my last such comment.

Rule 3.07 [Trial Publicity] of the Texas Disciplinary Rules of Professional Conduct sets out the prohibition against inappropriate pretrial publicity.

In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not counsel or assist another person to make such a statement.

Ellen Pitluck, an ethics attorney for the State Bar of Texas, told me that there are no ethics opinions under this rule and that the Board of Disciplinary Appeals (BODA) has not considered a complaint under this rule.

In retrospect, Mr. Snerd would probably have preferred—if the choice had been his—to have faced a panel of a grievance committee rather than the wrath of a federal judge.

Buck Files, a charter member of TCDLA, practices in Tyler, Texas, with the law firm Bain, Files, Jarrett, Bain & Harrison, PC.