Monthly archive

October 2011

September 2011 SDR – Voice for the Defense Vol. 40, No. 7

Voice for the Defense Volume 40, No. 7 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Chamber of Commerce of the United States v. Whiting, 131 S. Ct. 1968 (U.S. 2011); Affirmed (5-3)

Business and civil-rights organizations challenged the enforceability of the Legal Arizona Worker’s Act (LAWA) in an Arizona federal district court. They argued that federal law preempted LAWA, which requires Arizona employers to use the federal E-Verify employment verification system and revokes business licenses of those who hire unauthorized workers. The district court upheld the statute. The Ninth Circuit affirmed, holding that LAWA was not preempted explicitly or impliedly by the federal Immigration Reform and Control Act (IRCA). The court reasoned that although IRCA expressly preempts all state and local laws imposing sanctions for hiring or recruiting unauthorized aliens, it excepts licensing laws—like LAWA—from preemptive reach. The court also reasoned that mandating the use of E-Verify is not impliedly preempted by IRCA because Congress did not expressly forbid states from requiring E-Verify participation.

HELD: A law that requires state employers to check the immigration status of job applicants through a federal computer database, although the federal law creating the database makes its use voluntary, and revokes the business license of state companies that hire undocumented workers is not preempted by federal immigration laws.

Fowler v. United States, 131 S. Ct. 2045 (U.S. 2011); Vacated & remanded (7–2)

Fowler shot and killed Horner for trying to interfere with his plan to rob a bank. Horner had approached Fowler’s accomplices as they sat in a stolen car, wearing black clothes and gloves. Fowler, who had stepped out of the car to use cocaine, snuck up behind Horner, grabbed his gun, forced him to get on his knees, and shot him in the back of the head. One of Fowler’s accomplices later implicated him in the murder, and a jury convicted Fowler of killing Horner with the intent to prevent him from communicating information about a federal offense. He was sentenced to life in prison, plus 10 years. Fowler claimed the government failed to prove that a federal investigation would have been likely, and that Horner would have transferred the information to a federal officer or judge. But the Eleventh Circuit affirmed the ruling.

HELD: To prove a criminal violation of the federal witness tampering statute when a defendant allegedly kills a witness, the government must prove that the victim would have provided information regarding a crime to a court or law enforcement officer. “The Government must show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer.”

Camreta v. Greene, 131 S. Ct. 2020 (U.S. 2011); Vacated in part & remanded (7–2)

Sarah Greene filed a lawsuit against Camreta, a caseworker with the Oregon Department of Human Services, and Deputy Sheriff Alford, contending they interviewed her daughter without a warrant, probable cause, or parental consent. The girl’s father, Nimrod Greene, was arrested for allegedly molesting a 7-year-old boy. The boy’s mother told police that Sarah had complained that she “doesn’t like the way Nimrod makes (his daughters) sleep in his bed when he is intoxicated, and she doesn’t like the way he acts when they are sitting in his lap.” After interviewing one of the girls, Camreta concluded that she had been sexually abused and had the girls removed from the home. Nimrod was charged with sexually assaulting the boy and one of his daughters. After a mistrial, he accepted a plea bargain in which he maintained his innocence but admitted there was enough evidence to convict him. The daughter later recanted her statements. A district court judge dismissed the lawsuit. The Ninth Circuit partially reversed, allowing Sarah to pursue her Fourth Amendment claims against both defendants.

HELD: The Court declined to address the Fourth Amendment question. “We conclude that this Court generally may re­view a lower court’s constitutional ruling at the behest of a gov­ernment official granted immunity. But we may not do so in this case for reasons peculiar to it. The case has become moot be­cause the child has grown up and moved across the country, and so will never again be subject to the Oregon in-school interviewing practices whose constitutionality is at issue.”

United States v. Tinklenberg, 131 S. Ct. 2007 (U.S. 2011); Affirmed (8–0)

Tinklenberg’s trial on federal drug and gun charges began 287 days after his arraignment. The district court denied his motion to dismiss the indictment on the ground that the trial violated the 70-day requirement of the Speedy Trial Act (STA), finding that 218 of the days fell within various STA exclusions, leaving 69 nonexcludable days. On Tinklenberg’s appeal from his conviction, the Sixth Circuit agreed that many of the 287 days were excludable, but concluded that 9 days during which three pretrial motions were pending were not, because the motions did not actually cause a delay, or the expectation of delay, of trial. Since these 9 days were sufficient to bring the number of nonexcludable days above 70, the court found a violation of the STA. And given that Tinklenberg had served his prison sentence, it dismissed the indictment with prejudice.

HELD: The time between the filing of a pretrial motion and its disposition is automatically excluded from the deadline for commencing trial under the Speedy Trial Act. The STA “contains no requirement that the filing of a pretrial motion actually caused, or was expected to cause, delay of a trial.”

McNeill v. United States, 131 S. Ct. 2218 (U.S. 2011); Affirmed (9–0)

McNeill was sentenced to 300 months imprisonment after he was convicted of unlawful possession of a firearm and 240 months imprisonment for unlawful possession with intent to distribute 3.1 grams of crack cocaine. A U.S. district court determined McNeill to be an armed career criminal and then departed upward from the U.S. Sentencing Guidelines to sentence McNeill to the maximum sentence applicable. McNeill contends that he is not eligible for sentencing under the Armed Career Criminal Act (ACCA) because the drug-related convictions upon which the district court relied do not qualify as serious drug offenses under the ACCA. The Fourth Circuit COA affirmed the district court.

HELD: A conviction under state law can be treated as a serious drug offense for purposes of a longer sentence under the federal ACCA if the state law violated did not at the time of federal sentencing set a maximum prison term of at least 10 years, but had done so at the time the crime was committed. “A federal sentencing court must determine whether ‘an offense under State law’ is a ‘serious drug offense’ by consulting the ‘maximum term of imprisonment’ applicable to a defendant’s prior state drug offense at the time of the defendant’s conviction for that offense.”

Fifth Circuit

United States v. Garza-Robles, 627 F.3d 161 (5th Cir. 2010)

In prosecution for kidnapping/conspiracy to kidnap in foreign commerce, in violation of 18 U.S.C. §1201, evidence was insufficient to sustain the kidnapping convictions on an “inveigling” theory. Inveigling requires that the victim was lured or enticed by false representations or promises or other deceitful means. Here, the victim well knew that by going to Mexico with one of the defendants, he faced reprisals from the Gulf Cartel for a load of marijuana that his work partner had absconded with. However, the evidence was sufficient to sustain the kidnapping conviction on a theory of non-physical restraint—i.e., the victim’s fear that if he did not go to Mexico with the defendants, his family would be killed. With respect to the conspiracy conviction, there was sufficient evidence that the defendants knew of the conspiracy and were acting in furtherance of that conspiracy both when one defendant transported the victim in foreign commerce to Mexico and when both defendants guarded the victim while he was in captivity in Mexico. It did not matter that the second defendant did not join the conspiracy until after the victim had been transported; joining the conspiracy even after the transportation creates criminal responsibility for the prior acts.

United States v. Morin, 627 F.3d 985 (5th Cir. 2010)

(1) In drug prosecution, although district court committed no error in admitting some background-type testimony from Border Patrol and DEA agents, it plainly erred in admitting other testimony that crossed over the line into impermissible drug-courier-profile evidence or impermissible evidence on the ultimate issue of knowledge. However, these errors did not require reversal on plain-error review because the defendant failed to show a reasonable probability of a different outcome at trial but for the erroneously admitted evidence. The Fifth Circuit “again ‘pause[d] to caution that it is time for our able trial judges to rein in this practice’ of permitting prosecutors to rely on opinion testimony that is unacceptable profile evidence.”

(2) It was improper for prosecutor to ask defendant, on cross-examination at trial, “Do you know or do you call other drug dealers?” because there was no factual predicate laid that defendant had made calls to drug dealers. However, when viewed in the context of the proceedings as a whole and the totality of the evidence against defendant, this isolated question did not affect the jury’s verdict and hence did not require reversal on plain-error review.

United States v. Ibarra-Luna, 628 F.3d 712 (5th Cir. 2010)

In sentencing defendant, the district court erred in applying an 8-level “aggravated felony” enhancement under USSG §2L1.2(b)(1)(C), rather than a 4-level “felony” enhancement under USSG §2L1.2(b)(1)(D), because defendant’s conviction for delivery could have been based on an offer to sell. Therefore, the correct Guideline range was 6 to 12 months, not 12 to 18 months. Moreover, this error was not harmless, even though the district court ultimately imposed a 36-month sentence based on defendant’s prior murder conviction, which the district court believed had been sentenced too leniently. A preserved error in the calculation of the Guidelines is harmless only if the government shows that the court (1) would have imposed the same sentence had it not made the error and (2) would have done so for the same reasons it gave at the prior sentencing. The government did not clear this high hurdle; the Fifth Circuit vacated defendant’s sentence and remanded for resentencing.

Tharpe v. Thaler, 628 F.3d 719 (5th Cir. 2010)

With respect to Texas state defendant’s challenges to his deferred adjudication order, the AEDPA 1-year statute of limitations began to run upon that order’s becoming final, not upon the date that the subsequent adjudication of guilt and imposition of sentence became final. The Fifth Circuit’s prior decision so holding, Caldwell v. Dretke, 429 F.3d 521 (5th Cir. 2005), was still good law as applied to this case and was not overruled by Burton v. Stewart, 549 U.S. 147 (2007).

United States v. Bishop, 629 F.3d 462 (5th Cir. 2010)

(1) Post-indictment delay in trying defendant on charges of making false statements in tax returns did not violate defendant’s constitutional right to a speedy trial. Because the delay was less than 5 years, it was not presumptively prejudicial in and of itself. Nor could the 6-year pre-indictment delay be factored into the analysis; pre-indictment delay is analyzable under the Due Process Clause, not the Speedy Trial Clause, and defendant waived her claim of pre-indictment delay by failing to move for dismissal on that basis. Examining all the factors mandated under Barker v. Wingo, 407 U.S. 514 (1972), the Fifth Circuit found that these did not, even in combination, create a presumption of prejudice. Because defendant did not demonstrate any actual prejudice, her speedy trial claim failed.

(2) District court did not err in denying defendant’s motion for a new trial without holding a hearing to examine her ineffective assistance of counsel (IAC) claims on the merits; although a defendant may raise IAC claims in a motion for a new trial, a post-conviction motion under 28 U.S.C. §2255 is the preferred vehicle for raising IAC claims. Here, in light of the significant factual issues necessary to the IAC claim, it was not an abuse of the court’s discretion to deny the motion for new trial in favor of allowing defendant to raise those issues in §2255 proceedings. It was within the court’s discretion to decline to prolong its original proceedings to consider matters that would be better raised collaterally.

United States v. Rubio, 629 F.3d 490 (5th Cir. 2010)

District court did not err in assigning criminal history points to defendant’s prior uncounseled misdemeanor convictions, notwithstanding defendant’s claim that he was improperly denied his Sixth Amendment right to counsel on those convictions. The allocation of the burden of proof on such a claim is dictated by the law of the state where the conviction was sustained, and Texas law placed the burden on defendant to prove that he did not validly waive his right to counsel during plea negotiations. Defendant did not carry that burden; there was an indication in the record that a waiver of counsel occurred, although the record did not indicate exactly when the waiver occurred. Moreover, although defendant testified that he was not offered counsel, a defendant must do more than this when the right to counsel was firmly established in the state.

Charles v. Thaler, 629 F.3d 494 (5th Cir. 2011)

Defendant, sentenced to an aggregate term of 40 years’ imprisonment for offenses committed when he was 14 years old, was not entitled to federal habeas relief on his claims that he received IAC in his punishment trial. The state court did not unreasonably apply federal law in concluding that defendant did not receive remediable IAC by counsel’s failure to object to two portions of the prosecutor’s closing argument, by counsel’s failure to object to two portions of a prosecution witness’ testimony, by counsel’s failure to object to a question by the prosecutor, or by counsel’s elicitation of prejudicial information from defendant and failure to object to the prosecutor’s cross-examination of defendant on the same subject.

Arnold v. Thaler, 630 F.3d 367 (5th Cir. 2011)

Where Texas state defendant alleged ineffective assistance in his trial counsel’s failure to inform him about favorable plea offers, the federal district court clearly erred in finding that defendant had never alleged that he would have accepted the plea offers had they been communicated to him. To the contrary, in his habeas petition and in a supporting affidavit, defendant alleged that he would have accepted those offers. Along the way, the Fifth Circuit rejected a requirement that in order to show prejudice, the defendant must show not only a reasonable probability that he would have accepted the plea offer, but also a reasonable probability that the trial court would have approved and accepted the plea offer. Because the district court’s ruling rested on its clearly erroneous fact-finding, and because the state court made no findings on whether defendant would have accepted the plea offer, the Fifth Circuit reversed and remanded the judgment.

McAfee v. Thaler, 630 F.3d 383 (5th Cir. 2011)

Texas state defendant, convicted of aggravated robbery, was not entitled to federal habeas relief on his allegations (1) that he received IAC with respect to his motion for new trial, and (2) that he did not receive a fair hearing on his motion for new trial. The Fifth Circuit, agreeing with other circuits and CCA, held that there is a Sixth Amendment right to assistance of counsel on a motion for new trial during the post-trial, pre-appeal period in Texas because it is a critical stage of the proceedings. Disagreeing with the state court, the Fifth Circuit found that trial counsel’s performance with respect to the motion for a new trial was deficient; however, although the Fifth Circuit also found that “this [was] arguably a close case on prejudice,” it ultimately could not find unreasonable the state court’s finding that defendant was not prejudiced by any deficiency. Finally, the failure to appoint different counsel for the hearing on the new-trial motion did not warrant federal habeas relief because the prejudice inquiry was the same as for the IAC question.

United States v. Shabazz, 633 F.3d 342 (5th Cir. 2011)

Pursuant to the April 2003 amendment made by the PROTECT Act, 18 U.S.C. §3583(e)(3) no longer requires aggregation of the terms of imprisonment imposed upon multiple revocations of the same term of supervised release; rather, the revocation maximum set out in §3583(e)(3) is a per-revocation maximum. Therefore, it did not violate § 3583(e)(3) for defendant to be sentenced to a 12-month revocation sentence, even though he had been sentenced to 24 months on an earlier revocation of the same supervised release term, because defendant faced up to 2 years’ imprisonment on each revocation.

Court of Criminal Appeals

Writ of Mandamus

Bowen v. Carnes, __S.W.3d__ (Tex.Crim.App. Nos. 76,519-20, 6/15/11); Granted (8-0)

Relators Kevin and Jennifer Bowen were charged by separate indictments with the capital murder of Jennifer’s ex-husband. Both relators retained Phillips to represent them. Before trial, Ballenger, a jailhouse informant, gave a statement to police in which he detailed what he asserts Kevin told him with respect to this offense. Ballenger had also retained Phillips to defend him against unrelated charges of capital murder, murder, and aggravated assault. As of February 2010, when the State first revealed Ballenger’s statement to Phillips, Ballenger had already entered a negotiated guilty plea to murder, but his sentencing had not taken place. In April 2010, the State filed its motion to disqualify Phillips from representing relators. The State claimed, inter alia, that in the very likely event that the State should call Ballenger to testify against relators, Phillips would be put in the compromising position of either having to vigorously attack Ballenger’s credibility on cross-examination, in relators’ interest, or to refrain from doing so, which would be in Ballenger’s best interest but detrimental to relators’ interest.

HELD: CCA found no actual or serious potential for conflict of interest; this overrides the concern about the public perception of fairness that can defeat the Sixth Amendment presumption in favor of retained counsel. CCA had questioned whether, under the circumstances, respondent abused his discretion to deprive relators of their Sixth Amendment right to counsel of choice on the sole basis of his concern with the public’s perception of fairness.

Writ of Habeas Corpus

Ex parte Robbins, __S.W.3d__ (Tex.Crim.App. No. AP-76,464, 6/29/11); Denied (5–4)

Applicant was convicted and sentenced to imprisonment for life for the capital murder of his girlfriend’s child, Tristen. The State’s case largely depended on the expert opinion of Dr. Moore, the medical examiner who performed the autopsy and testified that Tristen died from asphyxia due to compression of the chest and abdomen. His conviction was affirmed by COA and CCA. Since that time, Moore has re-evaluated her opinion and has stated that she can no longer stand by her trial testimony. Applicant filed this writ, alleging actual innocence and false testimony (due process) claims. On the actual innocence claim, the convicting court concluded that applicant failed to meet the burden of showing his actual innocence and recommended that CCA deny relief on this basis.

HELD: CCA agreed with the convicting court and found support in the record. Likewise, the record does not support that Moore’s trial testimony has been proven false. Although Moore played an important role in the State’s case as the only trial witness to point to a specific cause of death, Moore’s trial testimony is not false just because her re-evaluation of the evidence has resulted in a different, “undetermined” opinion, especially when neither she nor any other medical expert can exclude her original opinion as the possible cause and manner of death.

State’s PDRs

Lopez v. State, 343 S.W.3d 137 (Tex.Crim.App. 2011); Reversed & remanded (7–0)

Appellant was convicted of aggravated sexual assault of a child and sentenced to 50 years in prison. On direct appeal, COA reversed appellant’s conviction based on a finding of ineffective assistance of counsel, and remanded the case to the trial court.

HELD: Because the record is silent as to why counsel failed to object to the outcry-witness testimony, CCA could not fairly evaluate the merits of such a serious allegation. The record could have been supplemented through a hearing on a motion for new trial, but appellant did not produce additional information about trial counsel’s reasons for allowing all three outcry witnesses to give similar testimony about the same events or for allowing opinion testimony about the credibility of the complainant, both without objection. Appellant failed to meet his burden under the first prong of Strickland.

State v. Chupik, 343 S.W.3d 144 (Tex.Crim.App. 2011); Reversed & remanded (7–2)

Officer stopped appellee’s vehicle one night after seeing it weave. Officer asked appellee some questions, then gave him three field-sobriety tests, the first of which was an HGN test. After the tests, appellee was arrested and subsequently charged with DWI. At a hearing on appellee’s pretrial motion to suppress evidence, he argued that the stop and the initial questions violated his federal constitutional rights. The trial court ruled that the stop and the initial questions were permissible, but made writ­ten findings of fact and conclusions of law that appellee was “under arrest at the conclusion of the administration of the HGN test,” and was thereafter “subjected to custodial interrogation without having had his Miranda warnings recited to him.” The trial court therefore suppressed “the answers to all questions asked of [appellee] after the administration of the [HGN test] . . . exclusive of his response to the question as to whether he would give a breath or blood sample.” The trial court also concluded that the evidence suppressed “is not of substantial importance relative to the quantity and quality of other evidence the State has available[.]” The State appealed under Code Crim. Proc. art. 44.01(a)(5), and COA affirmed. CCA granted review to determine whether, in a State’s appeal of a pretrial order to suppress evidence, the record must reflect the evidence that was suppressed.

HELD: The record need not reflect the suppressed evidence for an appellate court to consider a State’s interlocutory appeal under Article 44.01(a)(5). It is sufficient that the prosecutor certifies the suppressed evidence is of substantial importance in the case.

Gear v. State, 340 S.W.3d 743 (Tex.Crim.App. 2011); Reversed COA, affirmed trial court (5–4)

Appellant was convicted in a bench trial of attempted burglary of a habitation. COA decided the evidence is legally insufficient to support his conviction because it would have been unreasonable for a fact finder to infer that he “intended to commit a felony, theft, or an assault inside the house.”

HELD: A fact finder could reasonably find beyond a reasonable doubt that recently unemployed appellant, with about one dollar in his pocket, intended to commit theft inside complainant’s home when appellant attempted to enter the home through the window he had just broken and ran when interrupted by complainant, and that appellant gave conflicting and implausible explanations. Jackson v. Virginia, 443 U.S. 307 (1979). The cumulative force of all the incriminating circumstances is sufficient to support his conviction.

Limon v. State, 340 S.W.3d 753 (Tex.Crim.App. 2011); Reversed & remanded (8–1)

Appellant was convicted of deadly conduct and sentenced to three years’ imprisonment. On appeal, he challenged the trial court’s denial of his motion to suppress evidence, and COA reversed. CCA granted the State’s PDR to decide the following: (1) Is it reasonable for police to believe that a person who answers the door of a residence in the middle of the night has authority to invite police to enter, or must police inquire as to that person’s authority? (2) Does a teenager lack authority to invite officers inside a residence simply because he is a minor? (3) Does Illinois v. Rodriguez, 497 U.S. 177 (1990), require officers to make further inquiry when faced with ambiguity regarding the authority of a third party to consent to an entry or search?

HELD: The Fourth Amendment does not prohibit a minor from consenting to entry when the record shows the officer’s belief in the child’s authority to consent is reasonable under the facts known to the officer. Georgia v. Randolph, 547 U.S. 103 (2006). The following factors support the reasonableness of officer’s belief. First, the teenager opened the door by himself in response to officer’s knock. Second, viewing the evidence in the light most favorable to its ruling, the trial court reasonably could have inferred from officer’s testimony that the teenager appeared to be of significant maturity, if not a young adult. Third, the teenager consented to mere entry through the front door, as opposed to entry or search of less public areas of the house. Fourth, officer’s announced purpose was to conduct an emergency public-safety function. It is an even more widely shared social expectation that a teenager would have authority to permit entry for an emergency public-safety function than, for example, entry for a salesperson. Finally, CCA considered the time of entry: 2:00 a.m. Accordingly, CCA did not address COA’s formulation of the rule under Rodriguez because there is no ambiguity with respect to the teenager’s apparent authority.

Sorrells v. State, 343 S.W.3d 152 (Tex.Crim.App. 2011); Reversed & remanded (9–0)

A jury convicted appellant of aggravated robbery pursuant to the following: One night in 2005, Reynolds waited outside a nightclub for her boyfriend, Rice. Reynolds testified that she leaned against a car parked on the street. Appellant emerged from the club wearing a black and gray sweater and a black jacket. He told Reynolds to “get the f— off the car” because she was damaging it. With gun in hand, appellant struck Reynolds in the head, and the two began scuffling. Shortly thereafter, Rice arrived. As Rice approached, appellant turned, pulled back the slide of the gun, and said, “[D]o you have a problem with me, too?” Rice punched appellant, and the two started fighting. A man wearing a blue jacket then ran up to Rice and punched him. Rice fell to the ground and Reynolds went for help. When she returned, the altercation had ended. Rice told her that his jewelry had been stolen.

COA found that the evidence was insufficient to support a conviction of aggravated robbery and reformed the judgment to reflect conviction of the lesser-included offense of assault by threat. COA’s opinion was based on the fact that appellant’s motive in the fight did not seem to be premised on theft. CCA granted the State’s PDR on three grounds: (1) whether COA properly reviewed the sufficiency of the evidence; (2) whether COA properly applied the law of parties; and (3) in the alternative, whether COA properly reformed the judgment.

HELD: COA erred in its review of the sufficiency of the evidence; two witnesses testified that the assault and theft occurred simultaneously. CCA did not address the State’s second and third grounds.

Barshaw v. State, 342 S.W.3d 91 (Tex.Crim.App. 2011); Reversed & remanded (9–0)

A jury found appellant guilty of sexual assault, and the court sentenced him to 12 years’ imprisonment. COA reversed and remanded for a new trial because the trial court permitted an expert witness to testify that the class of persons to which complainant belongs tends to be truthful. During trial, the State called Barthlow, a mental-retardation psychologist who had worked with complainant. When asked by the prosecution about the ability of people with mental retardation to fabricate or make up stories, Barthlow said, “It’s been my experience that folks with mental retardation can be painfully honest, really.” Defense counsel objected that this testimony was inadmissible. The court overruled the objection, and Barthlow continued: “I’m not going to say that it would never happen. I mean, anybody is capable of making up something, but it’s very simplistic in nature . . . it would be like a lie a child would tell.” CCA granted the State’s PDR to determine whether COA erroneously reviewed only a portion of the record and substituted its judgment as to the credibility of the witnesses for that of the fact finder and thus tainted the harm analysis.

HELD: Expert testimony that a particular class of persons to which the victim belongs is truthful is not expert testimony of the kind that will assist the jury, as is required by Tex. R. Evid. 702, and is inadmissible. COA properly found the trial court abused its discretion by overruling appellant’s objection and admitting the testimony. However, COA also held that the error was harmful. CCA remanded to COA for a full harm analysis.

State & Court’s PDR

State v. Jordan, 342 S.W.3d 565 (Tex.Crim.App. 2011); Reversed & remanded (9–0)

Appellee was charged by information with misdemeanor DWI upon the following events: A municipal court magistrate was presented with an Affidavit for Search Warrant in the early morning of June 6, 2008. In the affidavit, Police Sergeant Suitt deposed that he had “good reason to believe that heretofore, on or about the 6th day of June, 2008 . . . Jordan . . . did then and there commit [the offense of DWI].” Suitt then deposed that he had probable cause for this belief by reason of certain facts. The facts listed by Suitt comprised observations by fellow police officers that the appellee drove the wrong way on a one-way street and exhibited various symptoms of intoxication, but the affidavit did not state specifically that the observations were made on June 6th. The affidavit was subscribed and sworn to before the magistrate on June 6th, and the magistrate issued a Search Warrant for Blood at 3:54 a.m. on that date. Prior to trial, appellee moved to suppress evidence obtained upon execution of the warrant for seizure of his blood. The trial court granted his motion and, upon the State’s interlocutory appeal, COA affirmed.

HELD: COA’s analysis of the warrant affidavit failed to consider reasonable inferences that provided a substantial basis for the magistrate’s determination of probable cause. COA separately analyzed the affiant’s introductory statement and the subsequent description of facts, instead of considering the totality of the circumstances contained within the four corners of the affidavit. It is true, as the court stated, that “a police officer’s conclusion that a crime has been committed does not give a substantial basis for determining that probable cause exists.” For that proposition, COA relied on caselaw in which the problem was “bare bones” affidavits providing only conclusory statements that an offense had been committed and evidence would be found at a particular location.

Appellants’ PDRs

Phillips v. State, __S.W.3d__ (Tex.Crim.App. No. 1402-09, 6/15/11); Reversed & remanded (5–3)

Appellant was convicted of 12 counts of sexual offenses that occurred in 1982 and 1983. However, prosecution under the 2007 indictment charging appellant was absolutely barred by the statute of limitations in 1993. These charges could not be resurrected by a 1997 statute extending the statute of limitations for sexual offenses. The trial judge, prosecution, defense, and COA failed to recognize this constitutional ex post facto violation. CCA granted appellant’s PDR because this is an important constitutional issue that will undoubtedly recur given the even more recent statutory elimination of the statute of limitations for some sexual offenses. Although the State Prosecuting Attorney agrees that the statute of limitations had run before appellant’s indictment, she argues that appellant failed to preserve this issue for appeal because he did not object in trial court.

HELD: An absolute statute-of-limitations bar is not forfeited by the failure to raise it in trial court.

Young v. State, 341 S.W.3d 417 (Tex.Crim.App. 2011); Affirmed (7–1)

Appellant, a registered sex offender, moved to a new residence but failed to notify authorities as required by statute. The two-paragraph indictment alleged that appellant (1) failed to notify the county sheriff’s office seven days prior to changing his address; or (2) failed to provide the sheriff’s office with proof of identity and residence within seven days after the move. At trial, the jury charge tracked the disjunctive wording of the indictment and permitted a conviction if the jury unanimously found that appellant failed to report his change of address. The jury charge did not require the jury to be unanimous on whether appellant failed to report before or after moving. COA affirmed appellant’s conviction, holding that the trial judge did not err in his jury charge.

HELD: COA correctly decided that unanimity was required as to the failure to report a change of appellant’s address, but not required as to whether appellant committed the offense by failing to report before the move, after it, or both. Appellant was indicted for a single offense of failing to report a change of address, and the State alleged he committed it in one of two alternative ways. The jury was charged by the trial judge in the disjunctive regarding these alternative manners and means.

Fleming v. State, 341 S.W.3d 415 (Tex.Crim.App. 2011); Vacated & remanded (8–0)

Appellant was convicted of aggravated sexual assault under Tex. Penal Code §22.021(a)(1)(B)(iii), (2)(B), Texas’s strict-liability child-sexual-assault statute. Before trial, appellant filed a motion to quash the indictment, challenging the constitutionality of the statute under the Due Process Clause to the U.S. Constitution and the Texas Constitution’s due course of law provision. Appellant claimed that the statute is unconstitutional because it does not have a mens rea requirement and does not permit the affirmative defense of mistake of fact. The trial judge denied the motion. Following his no contest plea and sentencing, appellant appealed the trial judge’s ruling. COA held that under the Due Process Clause, the statute is constitutional. COA declined to address appellant’s due course of law claim, holding that appellant failed to preserve the issue for appeal because he failed to assert or brief “an argument that the due course of law analysis under the Texas constitution is different or provides greater protections” than the Due Process Clause.

HELD: CCA’s review of appellant’s motion revealed that this conclusion was improvident. With respect to the constitutionality of Texas’s strict-liability child-sexual-assault statute, an issue never decided by the U.S. Supreme Court, appellant briefed the issue under both constitutional provisions, describing the pertinent history of each constitutional provision in support of his specific argument. CCA remanded COA’s judgment so COA can reconsider appellant’s contention that the statute violates Texas’ due course of law provision. In doing so, COA will be required to decide the scope of the protections afforded by Texas’ due course of law provision as it applies in this case. Thus, COA must discern whether the provision, based on appellant’s argument and supporting authority, provides greater, lesser, or the same protections as its federal analog.

State v. Blackshere, __S.W.3d__ (Tex.Crim.App. No. 0039-09, 6/22/11); Reversed & remanded (9–0)

This case involves a State’s appeal from a trial court’s orders suppressing evidence and terminating a prosecution. Appellee was indicted for possession of meth. More than two years passed. Four days before trial, a police detective discovered that the meth was missing from the police department’s evidence vault. Appellee filed a motion to suppress, arguing that evidence related to the meth should be suppressed because the State violated certain constitutional and statutory provisions by misplacing the meth. The trial court decided to “carry” the motion to suppress, so that it could rule after hearing the evidence presented at trial. The trial began, and after the testimony of the first six witnesses, the State said it had presented all its evidence relevant to appellee’s motion to suppress. The court made an oral ruling that it was suppressing the evidence and dismissing the jury, but that it was not dismissing the case or directing a verdict of acquittal. The discussion after the ruling shows that there was confusion about the ruling and the State’s ability to appeal. There is little doubt that the trial court did not intend to acquit appellee, in such terms. The parties and the trial court explicitly discussed avoiding the term “directed verdict of acquittal” to preserve the State’s ability to appeal.

HELD: The intent and form of the trial court’s actions cannot trump the substance of the protections afforded by the Double Jeopardy Clause. The trial court ultimately terminated the prosecution based on its finding that the State’s remaining evidence was legally insufficient to convict appellee. Not only did the trial court’s oral ruling imply that it had made such a finding, but its written order and conclusions of law were explicit. The trial court’s actions were functionally an acquittal for purposes of double jeopardy. Whether there was an underlying error in suppressing evidence is irrelevant; such an underlying error cannot be reviewed after an acquittal for insufficient evidence.

Armstrong v. State, 340 S.W.3d 759 (Tex.Crim.App. 2011); Reversed & remanded (9–0)

Appellant was charged with aggravated assault. The judgment adjudicating appellant guilty left blank the spaces for court costs and restitution but stated that appellant should pay any court costs “as ordered by the Court above.” Subsequently, the clerk’s office issued a bill of costs, which stated that appellant owed $1,900 in attorney fees and $358 in miscellaneous court costs. On appeal, appellant contended that there is insufficient evidence to support the attorney fees as set forth in this bill. COA affirmed the trial court, declining to address appellant’s insufficient evidence argument because it involved a civil law matter.

HELD: Because appellant’s claim arises over the enforcement of statutes governed by the Texas Code of Criminal Procedure, the pertinent litigation is a criminal law matter. Appellant challenged the assessment of costs mandated by the clerk’s bill of costs, which is issued pursuant to Tex. Code Crim. Proc. art. 103.001. And in arguing insufficient evidence, appellant relied on the critical requirements of Tex. Code Crim. Proc. art. 26.05(g) (i.e., that he does not have the financial resources to offset the costs of the legal services provided).

York v. State, 342 S.W.3d 528 (Tex.Crim.App. 2011); Affirmed (9–0)

Appellant was prosecuted for failure to identify and possession of meth. He has two grounds for review: First, did the arresting officer have reasonable suspicion to detain appellant, who was asleep in a car, with the lights on and engine running, parked on a sidewalk in front of a robbery-prone gas station in the early morning? Second, does the doctrine of collateral estoppel require suppression of evidence in a subsequent prosecution when that evidence was suppressed in an earlier prosecution arising from the same facts?

HELD: The circumstances were sufficient to give rise to a reasonable suspicion that would permit an investigative detention. Second, the State is not barred by the Double Jeopardy Clause from relitigating a suppression issue that was not an ultimate fact in the first prosecution and was not an ultimate fact in the second prosecution. In the first prosecution, the legality of the detention was an ultimate issue. That status as an ultimate issue does not help appellant because of the lesser burden of proof with respect to suppression hearings. If, on the other hand, he relies on the county court at law’s resolution of the detention issue solely as a suppression issue—so that the burden of proof in the two prosecutions is the same—then CCA would be confronted with an issue that was not an ultimate issue in either prosecution. To accord collateral-estoppel protection to such an issue, under the rubric of double jeopardy, would stray far from the theoretical groundings of the Double Jeopardy Clause and Supreme Court precedence.

Garza v. State, __S.W.3d__ (Tex.Crim.App. No. PD-0480-10, 6/29/11); Affirmed (8–0)

Appellant was a computer technician at a private school. Through a school program, students purchased laptops from Hewlett Packard, which provided a four-year warranty for each computer. The school arranged for repairs of the laptops at the on-campus C.A.V.E. (Computer Audio Visual Equipment), where appellant worked. After several years, school officials discovered that replacement parts for the laptops were being stockpiled at the C.A.V.E. The officials contacted Hewlett Packard, which sent Leahy, an investigator who worked for Hewlett Packard Global Security Group, to investigate allegations of warranty fraud. After investigation, appellant and a co-actor, whose company had been hired as the school’s Hewlett Packard warranty-repair provider, were arrested and indicted for theft.

This appeal involved appellant’s conviction for theft from alleged owner, Leahy. Appellant challenged COA’s holding that in an aggregated-theft case under Tex. Penal Code §31.09, the State is not required to prove that the special owner was an employee of the corporation at the time of each theft. Appellant argues that the State “is obliged to provide full proof of ownership for at least enough of the thefts to meet the alleged value,” and that it is the State’s burden “to provide full proof beyond a reasonable doubt of enough acts of theft to meet the value alleged in the indictment.”

HELD: Each individual theft is an element of the aggregated theft described by § 31.09; while the name of the owner is not a substantive element of theft, the State is required to prove, beyond a reasonable doubt, that the person alleged in the indictment as the owner is the same person shown by the evi­dence presented at trial to be the owner. Hewlett Packard was the owner of the stolen property at the time of each theft, and, although alleged to be a special owner, Leahy functioned as Hewlett Packard’s agent when he testified about the total loss.

Martinez v. State, __S.W.3d__ (Tex.Crim.App. No. PD-1238/9-10, 6/29/11); Reversed & remanded (8–1)

In two cases stemming from the same incident, the State charged appellant with DWI and possession of marijuana. Appellant filed a motion to suppress based on claims that the initial investigatory detention was without probable cause or reasonable suspicion, and that the subsequent arrest and search of appellant’s person and vehicle was without probable cause.

The facts are undisputed. One night an anonymous caller reported that a male driving a blue Ford pickup truck put two bicycles in the back of the truck and drove westbound. Police Officer Hurley was on patrol in the area and spotted a green Ford F-250 truck that “looked like it was blue” approximately three quarters of a mile from the reported incident. He began following the truck and called dispatch to confirm the vehicle description. He trailed the truck for four blocks without observing any traffic violations, then stopped the vehicle. As he walked to driver’s side of the truck, Officer Hurley noticed, in the truck bed, two bicycles that were not visible to him until he approached the truck. While speaking with appellant, who was the truck’s driver, Hurley detected a strong odor of alcohol and noticed that appellant had bloodshot, glassy eyes.

HELD: Based on a review of the totality of the circumstances, including the unknown reliability of the anonymous caller and the lack of specific, articulable facts suggesting that criminal activity was afoot, Officer Hurley’s investigatory detention of appellant was not supported by reasonable suspicion.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Kuykendall v. State, 335 S.W.3d 429 (Tex. App.—Beau­mont 2011)

That D was observed to be the only occupant in a stationary vehicle justified (in part) officer’s approach of D pursuant to officer’s “community caretaking function,” apparently under the assumption that when one is alone in their vehicle they’re more likely to need community caretaking.

Dixon v. State, No. 01-09-00340-CR, 2011 WL 839689 (Tex. App.—Houston [1st Dist] 3/10/11)

Complainant’s statement, made one hour after D chased her in his vehicle, deemed an excited utterance. “[D] suggests that the passage of one hour between the event and the statement is too long for an excited utterance in light of evidence that in that time [complainant] left the scene of the offense, walked home, and made two 911 calls to the police. . . . Based on [officer’s] description of [complainant’s] emotional state, the one hour time lapse does not make the statement inadmissible[.]”

Kennedy v. State, 338 S.W.3d 84 (Tex. App.—Austin 2011)

Officer’s affidavit for search warrant deemed insufficient; although affidavit described weapons that were recovered from D’s car on the night of the shooting, and that another witness had observed weapons in a “bunker” structure located on D’s property, nothing in the affidavit indicated that any of the weapons were illegal. Moreover, statements in affidavit by law-enforcement personnel that they believed D was likely in possession of statutorily prohibited weapons were too conclusory to establish a basis for PC.

Salinas v. State, No. 14-09-00395-CR, 2011 WL 903984 (Tex. App.—Houston [14th Dist] 3/17/11)

In an issue of virtual first impression in Texas, court definitively held that the Fifth Amendment has no applicability to pre-arrest, pre-Miranda silence used as substantive evidence in cases in which D does not testify. “The federal courts of appeals are split on the issue. The First, Sixth, Seventh, and Tenth Circuits have held that pre-arrest, pre-Miranda silence is not admissible as substantive evidence of guilt. . . . We agree with the Fifth, Ninth, and Eleventh Circuits. . . . A plain reading of the [Fifth] amendment reveals that only government compulsion triggers its protections against self-incrimination.”

Branch v. State, 335 S.W.3d 893 (Tex. App.—Austin 2011)

The eight minutes it took for a narcotics-detection dog to arrive at the scene did not prolong initial traffic stop beyond the time reasonably required to complete the mission of the stop. Importantly, the dog arrived before officer finished normal procedures for a traffic stop.

Deemed improper were prosecutor’s comments during closing argument of drug trial that D would “be done on life” in seven or eight years if he exhibited good conduct, that D would “never” serve as many as 15 or 20 years if given a life sentence, and that D “would be out even quicker” if the jury gave him a 30- or 40-year sentence. “The gravamen of the uncorrected statements was that the effective maximum period of imprisonment that the jury could impose was only seven or eight years and that the only way the jury could guarantee that [D] served that long was to impose a life sentence. . . . [A] prosecutor acts under the authority of the State and brings a great deal of expertise to a criminal trial. The prosecutor here, speaking from such a place of authority, purported to explain the sentencing provisions in the jury charge when he made the inaccurate statements. . . . It is also significant that the jury heard the inaccurate statements immediately before retiring to deliberate.” Thus, defense attorneys’ deficient performance in failing to object to prosecutor’s statements prejudiced D for purposes of an IAC claim; if D’s attorneys had objected to prosecutor’s improper statements, the trial court could have corrected the misstatements and instructed the jury to disregard them.

Burton v. State, 339 S.W.3d 349 (Tex. App.—Texarkana 2011)

Strong order of ammonia did not give rise to exigent circumstances to justify warrantless entry into residence, even though ammonia is used to produce meth, and despite the propensity for explosion associated therewith.

Ramirez v. State, No. 04-10-00679-CR, 2011 WL 1304895 (Tex. App.—San Antonio 4/6/11)

“Texas law does not require that the affidavit be attached to the warrant at the time of the search.”

Gonzales v. State, 342 S.W.3d 151 (Tex. App.—Eastland 2011)

Officer who arrested D for DWI was motivated primarily by his community caretaking duties, even though officer was assigned to DWI task force and activated his emergency lights, because officer became concerned when he observed a vehicle pulled over on a lightly traveled highway around 1:00 a.m. “[Officer] stated that he activated his lights to alert other drivers on the road and to let the driver of the vehicle know that he was not ‘some bad guy.’ . . . The location where [D] was stopped was inside the city limits, but traffic was minimal in that area at that time of night. There were no houses nearby and only a few businesses in the area. If [D] had needed assistance, he would have had difficulty finding anyone other than [officer] to help him at that time in that location.”

Elizondo v. State, 338 S.W.3d 206 (Tex. App.—Amarillo 2011)

Written confession signed by D at store was not obtained as a result of “custodial interrogation,” despite D’s argument that it has become common practice for retailers to obtain written confession from shoplifters without providing Miranda warnings, and also common practice for prosecutors to use those statements as evidence in theft prosecutions. “We cannot agree [that] the general awareness of police or prosecutors that retailers take non-Mirandized statements from shoplifters, even if accompanied by a common practice to obtain and introduce the statements at trial, renders the store employees the agents of law enforcement when they take the statements.”

2011 TCDLA Lawyers of the Year

The Lawyer of the Year award is given out at the Texas Criminal Defense Lawyer’s association’s Rusty Duncan advanced criminal law course in San Antonio, Texas. This year, three outstanding women lawyers were recognized for their contributions to the defense of those accused of crimes in the state of Texas. These are truly amazing stories of exceptional women who work every day seeking justice in the state of Texas, one person at a time. They go to work in a hostile environment knowing their families and friends don’t understand, knowing that almost everyone else believes they are seeking to do the impossible. But they do it and they do it very well and for that we applaud them.

Vivian King graduated cum laude from Thurgood Marshall School of Law in 1992. Prior to becoming a lawyer, she worked as an internal auditor and operations specialist for the former Texas Commerce Bank, retiring as a Vice President in 1989 to attend law school. She was an Assistant D.A. in Houston until 1995. She has been named lawyer of the year by Harris County Defense Lawyers and was given the Unsung Hero Award in 2007.

Her string of wins is amazing. In December 2010, a jury found her client not guilty of conspiracy to commit Medicare fraud in the Southern District Court of Texas. In November 2010, a Harris County jury found her client not guilty of murder, even though there was a taped confession and the deceased had four gunshot wounds. The foreman was so moved by Vivian’s final argument, he called her the next day to check on her client. In June of 2010, she tried an enhanced possession with intent to deliver a controlled substance case, in which the jury found her client not guilty.

In 2008, Ms. King obtained a new punishment hearing for a client previously sentenced to 65 years for murder and 30 years for drug conspiracy. At the new trial, he received 10 years for the murder with the foreman saying that they felt that the defendant was not guilty of the murder but they could only decide the punishment.

In September 2010, Ms. King tried a delivery of a controlled substance case in which it was alleged that her client had handed the dope to someone who had then given it to a prostitute who, in turn, handed it to a police officer. The jury found him not guilty. In June 2010, after having her motion for a new trial granted in an injury to a child case, she took the case to a jury trial and won, even though a doctor testified that the bruises were severe.

In 2010 Vivian King had 19 serious felony charges dismissed, which was slacking off for her, since in 2009 she had over 20 such dismissals. This is especially amazing since she practices primarily in Harris County, where the prevailing juror attitude can best be described as “hang them all and let god short it out.” The award is in recognition of this amazing body of work.

Raised in the small town of Gallatin, Katherine Scardino’s life started out as hard and barren. The memories of an outdoor toilet and hand-me-down clothes would serve her well in her future; she could reflect on her previous hardships and empathize with her many poor clients. After having two children she decided to return to college and then go on to law school. Upon graduation, she began to take court appointments. In 1997 she won a “not guilty” in a capital murder death penalty case. That was something that had not happened in Houston in the previous 23 years. She went on to try 16 capital murder cases to a jury. In 10 of those cases, the state was asking for the death penalty. She obtained six life sentences, three death sentences, and one not guilty.

In September 2006, the 5th Circuit ordered a new trial for Anthony Graves. He spent 12 years on Texas death row for the gruesome murder of five children and their grandmother in Somerville, Texas. Katherine Scardino’s nemesis, Kelly Siegler, had agreed to handle the case for the prosecution. Siegler had sent 19 men to death row during her tenure as a tenacious prosecutor in Houston. She famously brought a bloodstained bed into the courtroom to demonstrate how a woman stabbed her husband to death.

Two titans of the courtroom were destined to butt heads over this explosive case. Scardino filed a motion to dismiss for prosecutorial misconduct; on appeal the Innocence Project had proven that the D.A. had failed to disclose prior to trial that the key witness and actual perpetrator of the crime had recanted and stated that he, Robert Carter, alone had committed the horrible crimes, and that Anthony Graves was not involved. However, once threatened that his wife would be prosecuted as an accomplice and then promised a life sentence if the appellate court reversed his death sentence, Robert Carter agreed to testify against Anthony Graves at his first trial.

At his execution, Robert Carter again stated that Anthony Graves was innocent and that he had lied at Anthony’s trial to save his wife. However, the judge denied the pretrial motion to dismiss and ruled that Robert Carter’s first trial testimonial would be admissible at the re-trial of Anthony Graves because Graves had been given his opportunity to cross-examine him at that time. The family of the victims was demanding a new trial, still believing that Anthony Graves was guilty.

The case had jailhouse snitches, coerced statements, threats to keep exculpatory defense witnesses off the stand, junk science about a knife that was never tied to the crime scene, and faulty witness identification. Four years of painstaking work, and the only offer made was for Anthony to plead to a life sentence. He repeatedly said that the state needed to kill him or set him free.

Then, lightning struck in November 2010. Kelly Siegler came to the same conclusion that Katherine Scardino, the Innocence Project, the 5th Circuit Court of Appeals, and every attorney who had ever represented Anthony Graves had come to: Anthony was an innocent man wrongly convicted by a prosecution team responding to a community demanding vengeance. Siegler called the original prosecution a nightmare and a travesty and dismissed the capital murder charges. Anthony Graves left prison a free man, ultimately because the prosecution did not want to lose a high profile case again to Katherine Scardino, the queen of the good ole girls.

Ms. Scardino is currently handling seven capital murder cases, though only one has been designated a death penalty case. She states that her secret to successful capital litigation is to develop a team that works well together and trusts each other. She has an investigator, a mitigation specialist, and a mental health expert appointed immediately to get to work at once.

Shirley Baccus-Lobel graduated from UT law school in 1970 and moved to Washington, D.C., to take a position with the Justice Department. In 1977 she transfered to the U.S. attorney’s office in the Northern District of Texas, where she served as the first assistant criminal chief deputy until 1985. Husband Michael Lobel is a teacher of government at Brookhaven Community College; son Sam Lobel is a graduate of Cordoza Law School in New York and a film producer there (www.BaccusFilms.com); daughter Hannah Lobel is a 3L at UT Law School, where she serves as editor-in-chief of the International Law Journal; and granddaughter Frieda is 2½ years old.

In 1985 she went into private practice, specializing in complex federal trials and appeals, including federal investigations of business crimes. She has been named in Best Lawyers in America, named super lawyer in white-collar crime by Texas Monthly, and deemed one of the best lawyers in Dallas by D Magazine.

So, no one was surprised when she and Billy Ravkind took on the defense of capital murder defendant Richard Winfrey Jr. His father and sister had both already been convicted in the brutal murder of a janitor. The D.A. in San Jacinto County reported that he hoped that Richard Jr. would opt for a deal instead of a trial since his father and sister had already been convicted. Much to his chagrin, Shirley had no intention of recommending a plea deal to her client since the vast majority of the evidence against Richard was in the form of a dog scent lineup. The controversial dog scent evidence had been admitted in the previous two trials and resulted in a 75-year sentence and a life sentence. So obviously the evidence had a powerful effect on those previous jurors.

Shirley went to work on Deputy Pickett’s methodology and immersed herself in the science of dog scent. In these cases, the dog is given the scent of an object from the murder scene that the police believe the perpetrator touched or handled. Then the dog is asked to pick out that scent in a lineup of potential suspects. The Innocence Project of Texas had been investigating Deputy Pickett for years, suggesting that there were tremendous problems with his results and his subsequent testimony. He failed to use the double-blind method, he lacked any documentation of his methods, and he also failed to follow the minimal guidelines created for this kind of forensic technique. Furthermore, two people tied to crime scenes by Deputy Pickett’s dog scent lineup were later exonerated, one by DNA testing.

Shirley went to work to prove that the dog scent method, as conducted by Deputy Pickett, amounted to little more than junk science. She and Billy attacked the science, the method, and the results of the lineup evidence in Richard Winfrey Jr.’s trial. It resulted in a 13-minute not guilty.

Next, Shirley took on the PDR of Richard’s dad. The court-appointed attorney had not objected to the dog scent lineup evidence, so any error in the admission of the evidence had been waived. The Court of Appeals had upheld the conviction, but Shirley was able to get a PDR granted from the Court of Criminal Appeals. With all the knowledge she had acquired, she attacked Mr. Winfrey’s conviction, alleging there was insufficient evidence in the case to uphold the conviction.

Winfrey v. State, 323 S.W.3d 875 (Tex. Crim. App.), decided September 2010, set out in the opinion what exactly had transpired. Deputy Pickett testified about a “scent lineup” that he conducted nearly three years after the murder in August 2007. He used his three bloodhounds—Quincy, James Bond, and Clue. This involved obtaining scent samples from clothing that the victim was wearing at the time of his death and from six white males, including appellant. The dogs were “pre-scented” on the scent samples obtained from the victim’s clothing. The dogs then walked a line of paint cans containing the scent samples of the six white males. All three dogs alerted on the can containing appellant’s scent sample.

The Court of Criminal Appeals reviewed the dog scent lineup evidence and numerous scientific articles calling into question the reliability of this evidence. The Court reversed and acquitted Mr. Winfrey Sr. The Court stated, “We conclude that scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction.” None of this surprised Shirley, as she had had the family polygraphed by renowned former FBI polygraph examiner Don Ramsey. Upon completion of the polygraph, he looked Shirley’s clients right in the eye and said, “You people had nothing to do with this murder.”

In the course of her dedicated advocacy for the Winfrey family, Shirley Baccus-Lobel both exposed junk science and debunked bogus methodology. As a result of her efforts, an innocent person was released from prison. This is truly an amazing feat by a determined, intelligent, and amazingly committed attorney. In April 2011 the Beaumont court of appeals affirmed the life sentence of Megan Winfrey even though they knew the Court of Criminal Appeals had reversed and acquitted her father. Shirley has agreed to handle the petition for discretionary review. Hold on Megan: Shirley is on the way.

Forced Medication in Texas: FAQs

The recent implementation of forced medication orders in Texas, in combination with highly publicized trials that have highlighted the competency restoration process, have left many in both the legal and non-legal communities with questions concerning forced medication orders. This article is an attempt to answer some of these questions with respect to the forced medication process as it is conducted in Texas.

1. Is an order for forced medication beneficial to the client?

Depending on the client and the facts involved, most criminal defense attorneys are of two minds in regards to encouraging or forcing clients to take psychoactive medication. The examples below illustrate the conflict.

The first scenario involves a Class A Misdemeanor. Joseph is charged with Resisting Arrest. The most he can spend in jail is one year. Joseph has been found incompetent to stand trial under Chapter 46B of the Texas Code of Criminal Procedure. There is a long wait for a bed at a state mental hospital—perhaps as long as four months. Joseph’s lawyer would like for him to take medication so he can more quickly be restored to competency and they can dispose of his case and send him home. His lawyer sees this as being in his client’s best interest.

The second scenario involves a First Degree Felony. John is charged with Murder. His risk exposure is life in prison. He has been found incompetent to stand trial under Chapter 46B. There is a long wait for a bed at a state mental hospital—perhaps as long as four months. John’s lawyer does not want him to take medication so he can more quickly be restored to competency because that would mean his case would be tried sooner and he would likely be sentenced to life in prison. His lawyer does not see how this could be in his client’s best interest.

2. Is forcefully medicating a defendant to restore competency unconstitutional?

In Sell v. United States the Supreme Court addressed the issue of whether a defendant may be forcefully medicated in order to restore competency. The Court held that the government involuntarily administering medication to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial does not violate the Constitution.1 The Court stipulated that in order for medications to be administered, the treatment must be medically appropriate, substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking into account less intrusive alternatives, necessary to significantly further important governmental interests.2 However, before an order for forced medication is issued, a court should ordinarily determine whether the government seeks or has sought an order of forced medication in a civil proceeding.3 The Court specifically detailed the above factors that must be considered before issuing a forced medication order after a civil proceeding has been held.4

First, a court must find that an order for forced medication involves important governmental interests.5 The Court held that bringing to trial an individual accused of a serious crime is an important governmental interest.6 Second, a court must find that involuntary medication of the individual will significantly further state interests.7 Medications must be substantially likely to render a defendant competent to stand trial and must be substantially unlikely to have side effects that will interfere with the defendant’s ability to assist counsel in conducting a trial defense.8 Third, a court must conclude that involuntary medication is necessary to further state interests.9 Thus, the court must find that there are not any alternative less intrusive treatments that will achieve the same results.10 Finally, a court must find that administration of the drugs is medically appropriate.11 This means the medication is in the patient’s best medical interest in light of his medical condition.12

3. How has Texas implemented forced medication laws?

In response to variations and inconsistencies in competency evaluations, in 2001 the Texas Legislature formed a task force, led by Senator Robert Duncan and former Representative Patty Gray, to review the competency evaluation procedure.13 In 2003, the Texas Legislature enacted Senator Duncan’s Senate Bill 1057, which created Chapter 46B of the Texas Code of Criminal Procedure.14 Included in this new chapter was Article 46B.086, which addressed the situation that occurs when a defendant who had been restored refuses medication after restoration.15 Article 46B.086 established a procedure to allow a criminal court to issue an order for the defendant to be compelled to take medications to maintain competency and avoid decompensation while awaiting further criminal proceedings.16

After Chapter 46B was enacted the Supreme Court of the United States decided Sell v. United States. To square the Texas forced medication procedure with the Court’s decision, in 2005 the Texas Legislature passed Senate Bill 465, which modified Article 46.B.086 to include a “threshold” medication hearing under §574.106 of the Texas Health and Safety Code.17 Thus, a §574.106 hearing must be held first, and if a defendant has not met the criteria under this section, then a hearing under Article 46B.086 may be held.18 In 2007, the Texas Legislature expanded Article 46B.086 to include defendants who may be participating in outpatient programs.19

In 2009, the Texas Legislature addressed a large population of incompetent defendants, those who have been found incompetent but are awaiting transfer to competency restoration treatment facilities.20 Representative Jose Menendez’s House Bill 1223 amended both §574.106 of the Texas Health and Safety Code and Article 46B.086 of the Texas Code of Criminal Procedure to allow defendants who have been adjudicated incompetent and have remained in a correctional facility for 72 hours awaiting transfer to competency restoration treatment facilities to be forcefully medicated.21

4. What exactly is the process that must be followed in order to have a forced medication order issued in Texas?

Beginning with §574.106 of the Texas Health and Safety Code, a court may issue an order to a defendant who is under court order to receive mental health services, or is in custody awaiting trial in a criminal proceeding and was ordered to receive inpatient mental health services in the prior six months.22 A court may only issue an order for such a defendant if the defendant lacks the capacity to make a decision regarding the administration of medication, or the defendant was ordered to receive inpatient mental health services by a criminal court and the defendant is a danger to self or others. This applies to defendants in an inpatient mental health facility or a correctional facility in which the defendant has been waiting in excess of 72 hours for transfer to competency restoration.23 In any case the medication must be in the best interest of the defendant.24

If the above §574.106 conditions are not satisfied, then a court may pursue a forced medication order under Article 46B.086 of the Texas Code of Criminal Procedure. Article 46B.086 applies to defendants determined to be incompetent who remain in a correctional facility in excess of 72 hours awaiting transfer to competency restoration, are committed to an inpatient competency restoration program, or are confined in a correctional facility awaiting further criminal proceedings.25 In any of the above situations, the defendant must have a continuity of care plan that requires the defendant to take medication and the defendant must be refusing to take such medication.26 The requirement of a continuity of care plan generally limits these types of hearings to urban counties who have full-time psychiatrists on staff, although an outside contracted psychiatrist may be used as well. Texas’ rural counties seldom can afford this type of service and cannot guarantee “continuity of care” for their incompetent inmates.

For such an order to be issued it must be supported by the testimony of two physicians, one of whom is prescribing the medication under the defendant’s continuity of care plan, and the court has found by clear and convincing evidence that:

1.the prescribed medication is medically appropriate, is in the best medical interest of the defendant, and does not pre­sent side effects that cause harm to the defendant that are greater than the medical benefit to the defendant;

2.the state has a clear and compelling interest in the defendant obtaining and maintaining competency to stand trial;

3.no other less invasive means of obtaining and maintaining the defendant’s competency exists; and

4.the prescribed medication will not unduly prejudice the defendant’s rights or use of defensive theories at trial.27

A motion to compel medication under Article 46B.086 must be held no later than the fifteenth day after a judge has issued an order stating the defendant does not meet the criteria for forced medication under §574.106 of the Texas Health and Safety Code, with the exception that outpatient treatment programs may have a hearing held at any time.28

5. Why are there two different statutes and possibly two different courts available when issuing a forced medication order in Texas?

Civil courts have traditionally been the courts to determine if a defendant should be involuntarily medicated. Situations in which a civil court may issue a forced medication order include when a defendant is a danger to self or others, when the defendant lacks the capacity to make a decision as to whether or not to take medication, and when the medication is in the best interest of the defendant.29 If an order for forced medication has been issued on the above grounds, typically the need to issue an order for forced medication to restore competency is not present.30 If an order for forced medication has been denied because a defendant does not fit into any of the above listed situations, the reasoning behind the denial of an order in a civil proceeding may aid the forced medication determination for competency restoration in a criminal proceeding.31 For these reasons, the Supreme Court has held that a criminal court conducting a criminal proceeding concerning forced medication for competency restoration should ordinarily determine if a civil proceeding has first been held, and if not why.32 Article 46B.086 of the Texas Code of Criminal Procedure includes section (a)(1), which stipulates a defendant must first be found not to meet the criteria of the civil court §574.106 proceeding.33 This ensures that a civil proceeding has occurred before a forced medication hearing in a criminal court is initiated, following Supreme Court precedent and judicial norms of deferring to civil courts when making the forced medication determination.

6. How is the process of obtaining a forced medication order initiated in a correctional facility?

In Travis County at Del Valle Correctional Facility, where this writer practices, a treatment team reviews inmates on a weekly basis who are incompetent, lack capacity, and are on the writ list waiting for competency restoration.34 An inmate must be found to be incompetent and be found not to have capacity to make decisions regarding the administration of medication.35 If an inmate is found to be incompetent, but found to have the capacity to refuse medication, then a forced medication order will not be initiated.36 The treatment team reviewing inmates includes the unit counselor, the correctional sergeant, a doctor, the nursing director, and the social services specialist.37 In their weekly discussions, the treatment team identifies incompetent inmates who lack capacity or inmates who have overtly demonstrated they are a danger to self or others and who are refusing to take their medication.38 Such inmates are informed that a forced medication order may be initiated if they do not voluntarily take medication.39 If the inmate wishes to avoid a forced medication order, they must not only agree to take medications but must also demonstrate that they will take the medication.40 If the inmate does not agree to voluntarily take medication, or is unable to demonstrate that they will take the medication, then an application for forced medication is submitted to the probate court.41 Since the beginning of the forced medication pro­cess in Travis County in December 2010 through the middle of June 2011, 15 Travis County inmates have had forced medication orders issued and have consequently been given medications involuntarily.42 Procedures in other Texas jurisdictions are similar. When an inmate is ordered to take “forced medication,” it can mean literally that. In Travis County, inmates who refuse can be held down and forcibly administered a shot. Fortunately, this procedure is seldom necessary.

7. How long may an order for forced medication last?

House Bill 748 of the 2011 Texas Regular Legislative Session amends both the Texas Code of Criminal Procedure and the Texas Health and Safety Code concerning time credits, maximum periods of confinement, the mandatory dismissal of a misdemeanor, and the duration of a forced medication order. Article 46B.009 governing time credits now stipulates that a court sentencing a defendant convicted of a criminal offense must credit to the term of the defendant’s sentence any period of confinement that occurs pending a determination of the defendant’s competency to stand trial.43 Additionally, a court must credit any period of confinement that occurs between the date of any initial determination of the defendant’s incompetency and the date the defendant is transported to jail following a final judicial determination that the defendant has been restored to competency.44

Article 46.B.0095 concerning the maximum period of commitment or outpatient treatment program participation now states that a defendant may not be committed to an inpatient facility, ordered to participate in an outpatient treatment program, or subjected to both inpatient and outpatient treatment for a cumulative period that exceeds the maximum term provided by law for the offense for which the defendant was to be tried.45 The exception being that if the defendant is charged with a misdemeanor and has been ordered only to participate in an outpatient treatment program, then the maximum period of restoration is two years.46 On expiration of the maximum restoration period the inpatient facility or outpatient treatment program provider must assess the defendant to determine if civil proceedings are appropriate.47 The defendant may be confined for an additional period in a mental hospital or other inpatient facility or ordered to participate for an additional period in an outpatient treatment program pursuant to civil commitment proceedings.48

The cumulative period begins on the date the initial order of commitment or initial order for outpatient treatment program participation is entered.49 The period includes any time the defendant is confined in a correctional facility while awaiting transfer to an inpatient facility, released on bail to participate in an outpatient treatment program, or is involved in a criminal trial following any temporary restoration of the defendant’s competency to stand trial.50 The court may credit to the cumulative period any time that a defendant, following arrest for the offense for which the defendant was to be tried, is confined in a correctional facility before the initial order of commitment or outpatient treatment program participation is entered.51 Additionally, the court may credit any good conduct time the defendant has been granted under Article 42.032 in relation to the defendant’s confinement.52

Article 46B.010 concerning the mandatory dismissal of misdemeanor charges now states that if a court orders that a defendant charged with a misdemeanor punishable by confinement be committed to a mental hospital, inpatient facility, or outpatient treatment program, and the defendant is not tried before expiration of the maximum period of restoration, on the motion of the attorney representing the state the court shall dismiss the charge.53 The statute now authorizes on the motion of the attorney representing the defendant the court shall set the matter to be heard not later than the tenth day after the date of filing the motion and dismiss the charge on a finding that the defendant was not tried before the expiration of the maximum period of restoration.54

Finally, §574.110(b) of the Texas Health and Safety Code now allows for an order issuing forced medication concerning a defendant who has returned to a correctional facility awaiting criminal proceedings to continue until the 180th day after the date the defendant was returned to the correctional facility, the date the defendant is acquitted, is convicted, or enters a plea of guilty, or the date on which the charges in the case is dismissed.55 Whichever one of the events listed above takes place the earliest is the point in time in which the order has expired.56 House Bill 748 will take effect on September 1, 2011.57

8. How may a court determine if medication is in the best interest of a defendant as mandated by §574.106 of the Texas Health and Safety Code?

When determining whether medication is in the best interest of the defendant, a court shall consider the defendant’s expressed preferences regarding treatment; the defendant’s religious beliefs; the risks and benefits, from the perspective of the defendant, of taking psychoactive medication; the consequences to the defendant if the psychoactive medication is not administered; the prognosis for the defendant if the defendant is treated with medication; alternative less intrusive treatments that are likely to produce the same results as treatment with medication; and less intrusive treatments likely to secure the defendant’s agreement to take the psychoactive medication.58

9. How may a court determine if a defendant is a danger to self or others as describe in §574.106 of the Texas Health and Safety Code?

When determining whether a defendant presents a danger to self or others, the court shall consider an assessment of the defendant’s present mental condition; whether the defendant has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm to the defendant’s self or to another while in an inpatient mental health facility; and whether the defendant, in the six months proceeding the date the defendant was placed in the facility, has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm to another that resulted in the defendant being placed in the facility.59

10. What constitutes a “serious crime” as described in Sell v. United States?

A serious crime is one in which a defendant may be imprisoned for more than six months.60 Therefore, under Sell, arguably an order for forced medication to restore competency to stand trial may not be issued if the possible sentence the defendant may receive is less than six months.

11. My client says he has been forcefully medicated, does that mean a forced medication order has been issued?

Not necessarily. Under §576.025 of the Texas Health and Safety Code, a physician at a correctional facility may administer psychoactive medication to an inmate involuntarily if the inmate is having a medication-related emergency.61 A medication-related emergency is a situation in which it is necessary to administer medication to prevent an inmate from harming self or others.62 Specifically, the inmate must face imminent probable death or substantial harm because the inmate is continually threatening or attempting to commit suicide or serious bodily harm, or the inmate’s behavior indicates that he is unable to satisfy the basic needs of nourishment, essential medical care, or self-protection.63 Additionally, a medication-related emergency includes situations in which the inmate’s behavior places another in imminent physical or emotional harm because of threats, attempts, or other acts that the inmate overtly or continually makes.64

If a physician does choose to administer medication involuntary due to a medication-related emergency, then the physician must follow several guidelines. First, the physician must document the necessity of the order and that the physician has evaluated but rejected other less intrusive forms of treatment.65 Second, the treatment must be provided in a manner that is consistent with clinical standards, and that is the least restrictive to the inmate’s liberty as possible.66 This process under §576.025 of the Health and Safety Code does not require a formal hearing to be heard by a judge, nor does it require the correctional facility to notify the inmate’s lawyer.

Conclusion

The issue of “forced medication” in criminal cases for incompetent defendants is fairly new to Texas but one that will be in the forefront of criminal law now and in the future. Although this article dealt exclusively with state law, the appellate decision in July 2011 by a three-judge panel of the Ninth Circuit Court of Appeals in Jared Loughner’s case will have an impact on how cases are handled in Texas and throughout the country.67 Defense attorneys who handle these cases should be aware of changes in the law as well as local custom.

Notes

1. Sell v. United States, 589 U.S. 166, 179 (2003).

2. Id.

3. Id. at 183.

4. Id. at 180.

5. Id.

6. Id.

7. Id.

8. Id.

9. Id.

10. Id.

11. Id.

12. Id.

13. Brian D. Shannon, Prescribing a Balance: The Texas Legislative Responses to Sell v. United States, 41 St. Mary’s Law Journal, 309, 319 (2010).

14. Id. at 318–19.

15. Id. at 320–21.

16. Id. at 321, 323–24.

17. Id. at 327–28.

18. Id. at 333–34.

19. Id. at 336.

20. Id. at 337–39.

21. Id. at 341–46.

22. Tex. Health & Safety Code Ann. §574.106(a) (West 2009).

23. Id. §574.106 (a-1).

24. Id.

25. Tex. Code Crim. Proc. Ann. art. 46B.086(a) (West 2009).

26. Id. 46B.086(b).

27. Id. 46B.086(d) & 46B.086(e).

28. Id. 46B.086(b).

29. Sell, 589 U.S. at 182.

30. Id. at 183.

31. Id.

32. Id.

33. Tex. Code Crim. Proc. Ann. art. 46B.086(a)(4) (West 2009).

34. Interview with Jeff Futrell, Soc. Serv. Spec., Del Valle Corr. Facility, in Austin, Tex. (June 29, 2011).

35. Id.

36. Id.

37. Id.

38. Id.

39. Id.

40. Id.

41. Id.

42. Id.

43. Tex. H.B. 748, 2011 Leg., 82d Reg. Sess. (Tex. 2011).

44. Tex. H.B. 748.

45. Tex. H.B. 748.

46. Tex. H.B. 748.

47. Tex. H.B. 748.

48. Tex. H.B. 748.

49. Tex. H.B. 748.

50. Tex. H.B. 748.

51. Tex. H.B. 748.

52. Tex. H.B. 748.

53. Tex. H.B. 748.

54. Tex. H.B. 748.

55. Tex. H.B. 748.

56. Tex. H.B. 748.

57. Tex. H.B. 748.

58. Tex. Health & Safety Code Ann. §574.106(b) (West 2009).

59. Tex. Health & Safety Code Ann. §574.1065 (West 2009).

60. See, e.g., Baldwin v. New York, 399 U.S. 66, 69–71 (1970); Ex parte Werblud, 536 S.W. 2d 542, 547 (Tex. 1976).

61. Tex. Health & Safety Code Ann. §576.025(A)(i) (West 2005).

62. Tex. Health & Safety Code Ann. §574.101(2) (West 1993).

63. Id. §574.101(2)(A)(i) & §574.101(2)(A)(ii).

64. Id. §574.101(2)(B).

65. Tex. Health & Safety Code Ann. §576.025(F)(1) (West 2005).

66. Id. §576.025 (F)(2).

67. United States v. Loughner, No. 11-10339, 2011 WL 2694294, at *2, (9th Cir. July 12, 2011).

Effectively Humanizing Our Client

Smith, David Livingstone. Less than Human: Why We Demean, Enslave, and Exterminate Others. New York: St. Martin’s Press, 2011. 326 pages. ISBN: 9780312532727.

Humanizing our client in the eyes of factfinders is the primary goal of mitigation.1 In part, mitigation is showing that the client possesses vulnerabilities and susceptibilities to biological, social, and psychological influences, which may have had some effect during the alleged crime.2 But also, it is presenting our client’s strengths, capabilities, and potentials so that the jury or judge realizes that our client’s life continues to have value. In light of this understanding, is there some overarching mindset that may help guide us as we collect, sort, choose, and present this information so that we can effectively humanize?

Indeed there is. To better help ourselves in reaching the goal of humanization, defense team members must consider David Livingstone Smith’s antithetical study, Less than Human: Why We Demean, Enslave, and Exterminate Others. By first internalizing the theories, practices, and effects of dehumanization from this illuminative book, we can instill the proper compass within us, which will guide us to our primary goal. Furthermore, Smith’s book can help us reconsider the dynamics of the courtroom, guard against the rhetoric of argument, and better understand fact­finders.

Smith relies on a basic postulate: Unless one is a sociopath, a psychologically disturbed person devoid of moral empathy and feeling, a human being has a robust inhibition to killing other human beings and even has difficulty treating other human beings inhumanely.3 However, dehumanization provides dehumanizers with a psychological lubricant to strip away others’ humanity, acts as permission to imagine these others as sub-human and even animal-like, and empowers the dehumanizers to perform acts against these others that would, under other circumstances, be unthinkable—like violence, slavery, and extermination. Dehumanization is common practice that transcends geography, culture, and ethnicities. “If you still believe that you are the exception, and are immune from these forces,” Smith declares, “I hope that by the end of this book you will have embraced a more realistic assessment of your capacity for evil.”4

Next, Smith surveys the theoretical works of philosophers, scholars, and behavioral scientists and the historical experiences of warfare, colonialism, slavery, and genocides, and he builds a theoretical model of the dehumanization process. Dehumanization is not mere name-calling; it is a way of thinking. Humans have developed an intellectual and spontaneous penchant to compare, sort, and categorize their world. They become dehumanizers when (1) they employ their folk-based knowledge (note: not scientific knowledge) to parse the biological world into natural kinds (species) and then make inferences about these kinds; (2) similarly, they use their folk-based knowledge to categorize people into natural kinds (sub-populations based on ethno-races) and then make inferences about these kinds; (3) they reflect on where they, themselves, fit in relation to these natural kinds they have made; (4) they imagine that natural kinds are distinguishable because their members share common essences that are passed down through the bloodline of parents to children; (5) and they rate the value of these natural kinds into a hierarchy of intrinsic worth known as “the great chain of being,” with human beings located on top.

From this process, dehumanizers target and summarily deal with those sub-populations of ethno-races that are most radically different and alien from themselves. Dehumanizers attribute non-human essences of the species to these others, likening the others to those species further down the great chain of being, pushing them further away from their own selves, aligning them with the less appealing on the hierarchy—most often with creatures that are unclean, dangerous, predatory, or prey—and making them sub-humans.

This twisted logic leads dehumanizers to rationalize how best to handle the sub-humans. They manage the dehumanized just as they would manage lower biological species to which the dehumanized share similar essences. Therefore, if slaves are like beasts of burden, then we must chain them, brand them, and whip them; if an ethnic minority is imagined to be a microbial disease, then we must avoid it, contain it, and eradicate it; if radicals are viewed as predatory animals, then we must protect ourselves against them, round them up, and kill them in self-defense; if our battle enemies are likened to prey, then we must hunt them as objects of sport, capture them, and display them or their body parts as trophies.

Critical to Smith’s work are the concepts of race, essences, and quasi-humans. Race and dehumanization are always bound together because race separates and categorizes human beings in the eyes of the dehumanizers and begins the slippery slope toward dehumanization. “The notion of race,” Smith warns, “is sometimes indistinguishable from notions of ethnicity, nationality, or even religious or political affiliation.”5 Despite the fact that racial categories seem to make empirical sense, are compelling, and find support from ideology, culture, and politics, there is no biological basis to support the categorization of human beings into racial categories. Racial categories lose further credence when considering how people can move in and out of such categories based on sociopolitical views and needs of the times. For examples, in early 20th-century America, dominant white ideology eschewed Jews, Irish, Slavs, Arabs, and Italians as non-white and considered them as posing serious threats to white hegemony. Eventually, however, they were incorporated into the white racial category and provided access to American citizenship.

A central inquiry in the book is this: How can we look at a person standing right in front of us and fool ourselves into seeing him as something other than human? This can happen because we believe that natural kinds (things we believe to naturally belong together) possess “essences,” or inner properties, that make them the kind of beings they are, and that are not always reflected in the way they look. We can think of these essences as souls, spirits, or distinctive genetic signatures within natural kinds; we judge them as good, benign, dangerous, or evil; and we imagine these essences as running through bloodstreams, imbued through the breast milk of their mothers, or prescribed within their DNAs.

We intuitively believe that essences run so deep that they are permanent conditions, which may at times lie dormant but still remain inside the kinds. Since we have a natural tendency to think that there are essence-based natural kinds, people who lack or are denied human essence become quasi-humans or counterfeit humans: creatures that look like people, but are not human inside. Since essence trumps appearance when we judge, we see these people as less than human and inimical to humanity. Without that human essence, a person is human only in form, and he cannot be considered a member of humanity. Hence, to dehumanize a person is also to deny him his human essence.

Think of Nazi propaganda against the Jews as just one example of how dehumanizers speciate, racialize, and deny human essence within others. Nazi ideology sorted people into racial categories (Jews, Slavs, Gypsies) and reflected on its own people as belonging to a separate category (Aryan). The Nazis imagined that the members of these natural kinds shared a common essence of predictable and immutable traits, behaviors, and appearances, which were radically different from their own, and passed such essences through the bloodlines of parents to children. And the Nazis believed that they could place these natural kinds onto a hierarchy of utility, desirability, and righteousness—assigning themselves on top.

In its notorious 1940 film, Der Ewige Jude (The Eternal Jew), the Reich Ministry of Public Enlightenment and Propaganda argued the connection between the Jewish race and rats, and helped lubricate the unthinkable: Just as one must exterminate rats, one must exterminate Europe’s Jewish populations. Smith quotes an SS expert as saying, “One does not hunt rats with a revolver, but with poison and gas.”6 In the film, a swarm of rats appears on screen, emerging from sewers, infesting bags of grain, and scampering around corners. Closely following these scenes are scenes of Jewish people in the streets of Lodz. Meanwhile, the narrator explains:

Wherever rats appear they bring ruin, by destroying mankind’s goods and foodstuffs. In this way, they spread disease, plague, leprosy, typhoid fever, cholera, dysentery, and so on. They are cunning, cowardly and cruel, and are found mostly in large packs. Among the animals, they represent the rudiment of an insidious and underground destruction, just like the Jews among human beings.7

However, Nazi propaganda is just one of many dehumanization examples in Smith’s book. Smith also looks at how dehumanization played a role in the violence, slavery, and extermination of indigenous peoples by the Spanish conquerors, of Native Americans by the American colonists and westward expansionists, of Africans by European slavers, of ethnic Vietnamese by the Khmer Rouge, and of Tutsis by Hutus, just to name a few of his inquiries.

Smith’s theory has an important connection to mitigation. First, we must recognize that the culture and ceremony of the courtroom assists in separating out our client as a natural kind unto himself: He is not among the lawyers who have the right to speak, the judge who rules with the voice and accoutrements of state authority, the staff who administrates during the proceedings, or the jurors who separately sit together in the box and the jury room. In many ways, our client exists as different and alone. And once he is convicted for the crime and recognized as criminal, the rift between him and the rest of the courtroom becomes a chasm. We must preserve his humanity in the face of these inherent obstacles.

Second, we must protect against the prosecution’s dehumanizing rhetoric meant to seal our client’s isolation. Take, for example, the prosecutor’s arguments in the sentencing phase of the infamous case of State of Texas v. Kerry Max Cook (1978). Michael Thompson separated Kerry Max Cook, diminished Cook’s human essence, by saying he lacked a moral understanding between right and wrong, and placed him down low in the “great chain of being”:

Somewhere in his mental programming, somewhere at some point in his life, that was not programmed into him to the extent that it was programmed into each of you. In our reliance or in our dependence upon that very minimum programming that separates us from the lower family or lower portions of [the] animal kingdom, that basic distinction wherein we stop through our programming and ask ourselves is that right or wrong. That is totally absent from the mind of Kerry Max Cook.8

Then Thompson dehumanized Cook further, likening Cook to an undesirable animal:

[I] have hunting dogs myself, occasionally something happens to that animal that you have no alternative but to put them to sleep. That is a situation in this case. Kerry Max Cook has a disease, it is a sociopathic and psychopathic disease and the young man must be put to sleep.9

Finally, we can gain a certain comfort in knowing that factfinders, as human beings, should have a robust aversion to killing or harming our client—as long as they see him as another human being. Our work must recover, restore, and protect the human essence of our client. Without awareness of his human essence, factfinders can exclude our client from the universe of their moral obligation. Smith states,

Thinking of a person as a member of the same species as yourself, as sharing the same essence, automatically evokes a sense of oneness with [him]. You perceive [him] as a fellow member of the human community. By conceiving of a person in this way, you conceive of [him] as a member of your in-group and this triggers inhibitions against harming them.10

Smith points out that we can overcome dehumanization by educating dehumanizers and appealing to their feelings instead of offering them dry theoretical arguments. We need to help human beings get to know one another by telling them passionate, sentimental, and resonating stories about others so they will expand the reference of the terms “our kind of people” and “people like us.” We grant moral standing to creatures to the extent that we believe that their essence resembles our own. In other words, our aim is to expand the reference of the term human to include everyone, including our accused client.

ABA Guideline 10.7 for death penalty cases is a well-established norm giving us a direction toward humanizing. It instructs us that mitigation can include anything to militate against the appropriateness of the death penalty. Furthermore, it tells us that mitigation must at least include an investigation into the client’s history of education, employment and job training, medical treatments and diagnoses, family and social backgrounds, military service, and juvenile and adult criminal records.11 However, we must recover such history not only because this practice is the norm of our profession, but also because we want to employ it in order to restore our client’s human essence—we want the factfinders to see our client as human inside and out, and not dismiss him as quasi-human in the courtroom. And so, ploys of dressing our client in cardigan sweaters, suits, or eyeglasses to impress the factfinders become secondary vis-à-vis the priority of protecting our client’s human essence with well-researched stories, moving testimonies, and persuasive data. Through the theory and examples of dehumanization, Less Than Human teaches us that the client’s human essence must be the guiding beacon in reaching our mitigation goal.

Notes

1. The Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases cite Gary Goodpaster: “Goodpaster observed that ‘the defense advocate must establish a prima facie case for life.’ To meet ‘[t]he heavy burden of persuading the sentencer that the defendant should live,’ according to Goodpaster, ‘counsel must portray the defendant as a human being with positive qualities.’” Sean D. O’Brien, The Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases, 36 Hofstra L. Rev. 693, 722 (2008)(citing Gary Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev. 299, 335–37 (1983)).

2. Craig Haney, Evolving Standards of Decency: Advancing the Nature and Logic of Capital Mitigation, 36 Hofstra L. Rev. 835, 879–81 (2008).

3. Smith shares this postulate with two other studies: Lt. Col. Dave Grossman, On Killing: The Psychological Cost of Learning to Kill in War and Society (2009), and S. L. A. Marshall, Men Against Fire (1978).

4. David Livingstone Smith, Less than Human 131 (2011).

5. Id. at 185.

6. Id. at 145.

7. Id. at 139. There was an estimated 230,000 Jewish residents in Lodz when the German troops marched into the city in September 1939. Six years later, when the Russians liberated the city, fewer than 900 were left alive.

8. Transcript of Record at 1246–47, State of Texas v. Kerry Max Cook (1978) (No. 1-177-179).

9. Id. at 1274. Cook’s jury returned with a death verdict and thus began his long and arduous journey to save his life, gain his freedom, prove his innocence, and reclaim his human status. See Kerry Max Cook, Chasing Justice (2008).

10. Smith, supra note 4 at 247.

11. Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Guideline 10.7: Investigation cmt. (2003).

September 2011 Complete Issue – PDF Download

/

DOWNLOAD PDF VERSION


Features

24 | 2011 TCDLA Lawyers of the Year – By Betty Blackwell
28 | Forced Medication in Texas: FAQs – By Jeanette Kinard & Dorian Thomas
43 | Effectively Humanizing Our Client – Book Review By Dr. Tim Jon Semmerling

Columns
8 | President’s Message
10 | Executive Director’s Perspective
12 | Editor’s Comment
14 | Ethics and the Law
16 | Federal Corner
20 | Said & Done

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

President’s Message: What’s It Like to Be the TCDLA President? – By J. Gary Trichter

/

I am the 41st President of TCDLA. As your president, I have both an awesome responsibility and a great honor. The presidential responsibility I speak of is not only to the membership, but also to the presidents that preceded me.

Like me, all the previous presidents have been volunteers. Like me, all previous presidents have had a desire to leave the Association at the end of their term in a better position than they found it. Notwithstanding, the work of the president today is far more time consuming, and different, then it was 40, 30, 20, 10, or 5 years ago. We are now an Association of near 3200 members and have a full-time home staff of 10.

Being president, it is not uncommon for me to spend 15–20 hours per week on TCDLA business. Every day there are emails, letters, and phone calls to receive and to make. Frequent interaction with Joseph Martinez, our Executive Director, and Melissa Schank, our Assistant Executive Director, is also challenging. Topics range from staffing issues, various committee matters, CDLP, NACDL, NCDD, other affiliates, multiple TCDLA seminar topics, numerous budgets, tax documents, grant administration, judicial complaints, the Voice, TCDLEI, strike force help requests, and the weekly fire or two that we did not see coming.

Moreover, in addition to the working with our staff, I regularly speak with State Bar President-Elect Buck Files on State Bar matters, with the Honorable Judge Barbara Hervey of the Texas Court of Criminal Appeals (or with her staff) on grant issues, and with your other officers, the Executive Committee (all volunteers), and numerous committee representatives (all volunteers).

Here, as an aside, I want to note that your officers today are much more proactive than those of the past. Specifically, each officer actually shares in the volunteer workload of running this Association. For example, all serve on the other committees and all have accepted delegated responsibility from me. Your President-Elect, Lydia Clay-Jackson, is in the loop in almost every decision I make. This is a teaching process that Stan Schneider initiated with Bill Harris and that Bill carried on with me. Bobby Mims, our 1st Vice President, has been very active with grant matters and affiliates. Emmett Harris, 2nd Vice President, and Sam Bassett, Treasurer, have been working on budget reviews, and John Convery, on corresponding and going green.

And so, having a real-life everyday appreciation of the work, effort, and time it takes to be your president, I ask you to remember the 40 trailblazers that preceded me, your other officers, committee chairs, and seminar course directors, and to honor them. Please join me in thanking them for their great personal sacrifice and for their devotion to TCDLA. Absent their efforts, TCDLA would not be the best state criminal defense bar or association in the country. That said, I thank you for your trust and confidence in allowing me to be your president. I will do my best and always “cowboy up” for you!

—J. Gary Trichter
Your President

Executive Director’s Perspective: Summer Schooled – By Joseph A. Martinez

/

TCDLA is looking for members who are interested in serving on the TCDLA board. Lydia Clay-Jackson, President-Elect and chair of the TCDLA Nominating Committee, is encouraging TCDLA members to submit their applications. The application can be found in this issue of the Voice or can be downloaded from the TCDLA website. Members can also contact the nominating committee member from their district for an application. TCDLA will be sending the application to the presidents of all local criminal defense bars and Public Defender offices as well as all TCDLA members. Please call the home office (512-478-2514) if you do not receive the application, and a copy will be sent to you.

There are a total of 15 board and 16 associate board slots that need to be reappointed or filled, as well as the officer position of Secretary. The deadline for submitting an application is 12:00 pm on Tuesday, November 1, 2011. The nominating committee will meet on Saturday, December 3, 2011, in Houston to determine who will be the 2012–2013 board nominees. The TCDLA members present will vote on the nominees at the TCDLA Annual Meeting on Saturday, June 9, 2012, in San Antonio.

TCDLA and Criminal Defense Lawyers Project (CDLP) conducted 7 seminars and trained a total of 932 attendees (244 TCDLA/688 CDLP) in the month of August 2011. These seminars would not have been possible without the contributions and support of the course directors, speakers, and TCDLA members who help promote and attended the seminars. A special thank you to the TCDLA staff, who provided exceptional support to the seminars. This was truly a TCDLA team effort for justice.

Thanks to Lance Platt (Bryan), course director and instructor, we had 32 attendees at the NHTSA Standardized Field Sobriety Test (SFTS) Refresher Course held in Houston. Platt & Associates were co-sponsors of this seminar.

Thanks to Danny Easterling (Houston), Grant Scheiner (Houston), and Earl Musick (Houston), President of Harris County Criminal Lawyers Association (HCCLA), our course directors for the 9th annual Top Gun DWI—Blood, Breath & Beyond seminar held in Houston, we had 212 attendees. Very special thanks to Earl and the HCCLA leadership and HCCLA members who joined TCDLA in co-sponsoring the seminar. Special thanks to Christina Appelt, HCCLA Executive Director, who provided support. TCDLA looks forward to a continued successful partnership with HCCLA.

Thanks to Jeff Blackburn (Lubbock), Jani Maselli (Houston), and Gary Udashen (Dallas), course directors for “Innocence Work” in the Real World for Real Lawyers held in Austin, we had 93 attendees. Special thanks to Mr. Anthony Graves, recent Texas exonoree who spoke at the seminar.

Thanks to Allen Place (Gatesville), our course director and speaker for the 2011 Legislative Update conference call, we had 280 participants.

Thanks to Jeanette Kinard (Austin), David Moore (Long­view), and Derick R. Smith (Stafford), our course directors for Trial Tactics: The Art of War seminar held in Sugarland, we had 124 attendees.

Thanks to the Honorable Judge Herb Evans, Justice of the Peace Precinct 5 (Austin), and Carlos Garcia (Austin), our course directors for Best of the Best IV: Forensics, Science and Innocence Lost seminar held in Austin, we had 148 attendees.

Thanks to John Bonilla (Corpus Christi), Jeanette Kinard (Austin), and David Moore (Longview), our course directors for Trial Tactics: The Art of War seminar held in Corpus Christi, we had 43 attendees.

TCDLA has received notice from the Texas Court of Criminal Appeals (CCA) of its FY 2012 award of $63,000 for Actual Innocence training. This brings the total amount of grants awarded by the CCA to TCDLA to $1,017,962 for FY 2012. This includes previous grant awards of $926,628.00 for CDLP and $28,334 for the Public Defenders Travel Stipends. TCDLA and CDLP are most appreciative of the entire CCA’s continued support providing quality indigent defense continuing legal education to criminal defense attorneys and other court personnel. TCDLA and CDLP are also appreciative of the CCA grant staff, which has provided so much help and support during the past year.

All TCDLA members are cordially invited to attend your next TCDLA Board of Directors Meeting, to be held in downtown Houston on Saturday morning, December 3, 2012, at the Crowne Plaza Hotel, located at 1700 Smith St.

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.

Good verdicts to all.

Editor’s Comment: A Little Death Penalty Math – By Greg Westfall

/

I watch presidential debates for the same reason I suspect some others watch NASCAR races—to see the crashes. And so it was as I settled in to watch the September 7, 2011, debate between the current Republican presidential hopefuls moderated by Brian Williams. I knew, of course, that unless he backed out or otherwise refused, Rick Perry would be in this debate, so I thought my chances were good. I had not been watching for long when this exchange occurred:

williams: Governor Perry, a question about Texas. Your state has executed 234 death row inmates, more than any other governor in modern times. Have you . . .

[Interrupted by vigorous applause from the audience]

Have you struggled to sleep at night with the idea that any one of those might have been innocent?

perry: No, sir. I’ve never struggled with that at all. The state of Texas has a very thoughtful, a very clear process in place of which—when someone commits the most heinous of crimes against our citizens, they get a fair hearing, they go through an appellate process, they go up to the Supreme Court of the United States, if that’s required. But in the state of Texas, if you come into our state and you kill one of our children, you kill a police officer, you’re involved with another crime and you kill one of our citizens, you will face the ultimate justice in the state of Texas, and that is, you will be executed.

williams: What do you make of . . .

[Interrupted again by applause from the audience]

What do you make of that dynamic that just happened here, the mention of the execution of 234 people drew applause?

perry: I think Americans understand justice. I think Americans are clearly, in the vast majority of—of cases, supportive of capital punishment. When you have committed heinous crimes against our citizens—and it’s a state-by-state issue, but in the state of Texas, our citizens have made that decision, and they made it clear, and they don’t want you to commit those crimes against our citizens. And if you do, you will face the ultimate justice.

http://historymusings.wordpress.com/2011/09/07/campaign-buzz-september-7-2011-full-text-transcript-republican-presidential-debate-ronald-reagan-library-rick-perry-mitt-romney-steal-show/

While I wasn’t just floored—after all, you have to consider the audience might not perfectly represent the public at large—I was a little taken aback. I mean, Perry just about got a standing ovation for essentially proclaiming that capital punishment—of which he shares ultimate administrative control—does not even appear on his moral radar. Never has he questioned a decision he has made. And he’s proud of it. And a lot of people in the audience agreed.

Intrigued as I was baffled and slightly nauseous, I started to look around for the real state of opinions about the death penalty today. Along the way, I found some interesting data.

A Gallup Poll from October 2010 of 1,025 adults nationwide found 64% favored the death penalty for a person convicted of murder, 29% opposed, and 6% were unsure (for some reason, this all adds up to 99%). Sixty-four% support for capital punishment is the lowest level ever demonstrated in the poll, although it has gone that low several times since 1991, when the poll was first conducted. At the other extreme, the level of support has gone as high as 80%. (All of these polls may be viewed at http://www.pollingreport.com/crime.htm and have margins of between 4% and 5%.)

A question Gallup didn’t ask in 2010 (but had asked in 2003, 2005, 2006, and 2009) was:

“How often do you think that a person has been executed under the death penalty who was, in fact, innocent of the crime he or she was charged with? Do you think this has happened in the past five years, or not?”

In 2009, 59% believe that it indeed had. In years past, the%age believing we had executed an innocent man has run as high as 73%.

Thus, the numbers shake out like this: As of last October, 64% of Americans favor the death penalty. At the same time, and using data from 2009, 59% of Americans believe we have executed an innocent man in the last five years. Now. Let’s do some math.

If we take 1,000 people (a valid sample for polling purposes), we can assume that roughly 640 (64%) will support the death penalty. In those same thousand people will be 590 (59%) who believe we have executed an innocent person in the last five years. The question is to what extent these two populations overlap, thus giving us people who (1) believe in the death penalty, and (2) believe we have executed an innocent man in the last five years. The populations would look like this:

(a)640 (64%) of people are for the death penalty, 360 (36%) of people are against or unsure;

(b)590 (59%) of people believe we have killed an innocent person in last 5 years.

Let’s assume that concern about killing an innocent person actually caused the 360 people who do not support the death penalty to be against it or unsure. Then, subtract all of them from the 590 who believe we have executed an innocent in the last five years. That would leave 230 people who support the death penalty while at the same time believing that we have executed an innocent person within the last 5 years.

Folks, that’s 23% of our population. Nearly one juror in four begins from the position of believing that our capital punishment system kills innocent people but doesn’t care.

That should give us something to talk about in voir dire.

Ethics and the Law: Professionalism

/

The newly formed ethics hotline has been hot. We have received numerous calls, and the hotline has turned into a helpline for lawyers with ethical and procedural questions. All the co-chairs have been invaluable. Many lawyers never had training on how to handle a criminal case and how to get cases in an ethical manner. Times have changed and now lawyers run wild ads on television, which are reminiscent of Cal Worthington, the California car dealer who would appear on commercials riding elephants trying to sell cars. Mary Flood, a Harvard-educated lawyer who does public relations work for Androvett Legal Media & Marketing, says over 90 percent of websites are misleading. Get your website approved by the State Bar before putting it up. The quality of your representation is what counts most. When I first met lawyer legend Percy Foreman, he said if you are being a lawyer for the money, do something else. He said if you do a good job as a lawyer, you will always make money. He made plenty.

Follow these simple tips that will help you on your cases:

  1. Get a contract or letter of acknowledgement;
  2. Build your file with a copy of the relevant statutes, punishment ranges, and lesser included offenses;
  3. Be, look, and act professional;
  4. Have file in shape so if another lawyer has to take it over, it will be organized in case you drop dead or get shot by an angry client;
  5. Be available to your client throughout all times of the day and night. If you want an 8 am–5 pm job, go work for the government;
  6. Read books on famous lawyers like Earl Rogers, Gerry Spence, and Clarence Darrow. They became famous for a reason;
  7. Get help from TCDLA members or utilize hotlines;
  8. In case of punishment or to aid in plea-bargaining, get a complete social history of your client. It will explain and not excuse what your client has been accused of;
  9. Improve weaknesses by attending seminars and staying awake through them;
  10. Ask questions. Lawyers are always willing to help comrades;
  11. Build relationships with court personnel. One bailiff was my friend and he would always give the jury charge to the person I thought should be the foreman;
  12. Carry a copy of the penal code and/or code of criminal procedure with you. I also highly recommend reading books written by Ray Moses, who tells you how to do everything from what to wear to what to say and how to handle cases. Jim Skelton’s search and seizure workbook is another great resource. Look up the Criminal Law Institute for the search and seizure information.

Learn to be in charge of the courtroom. Percy and Racehorse Haynes have been called the Kings of the Courtroom because they took control. Judges or district attorneys do not respect those who give in. Sometimes not giving in will result in an allegation of contempt against you, so carry a motion for a personal recognizance bond in your briefcase just in case—it will allow for your immediate release. You never know when you will need it. See § 21.002(d) of the Texas Government Code regarding the personal recognizance bond. Also carry a motion to prevent ex-parte communications between judges and assistant district attorneys. It is unethical for a judge to discuss cases ex-parte. Your oath is to your client, not to be friends with the judge. Let them know you are aware of those rules. The Commission on Judicial Conduct is there for a reason.

Sometimes it may be in your best interest to record conversations with clients. In Texas, the recording of phone calls and other electronic communications is allowed when one party to the conversation consents to it. The following is an article—entitled “May a Lawyer Electronically Record a Telephone Conversation?—written by co-chair Greg Velasquez of the El Paso County Public Defender’s Office regarding tape-recording calls.

May a Lawyer Electronically Record a Telephone Conversation?

Federal law

Federal law allows recording of phone calls and other electronic communications with the consent of at least one party to the conversation.1 This is called a one-party consent law. With the consent of one person or party to the conversation, recording the conversation is not a violation of the law.

“One-Party Consent” Statutes

Thirty-eight states and the District of Columbia have adopted “one-party consent” laws and permit individuals to record phone calls and conversations to which they are a party or when one party to the communication consents.2

“Two-Party Consent” Statutes

Twelve states require the consent of every party to a phone call or conversation in order to make the recording lawful. These “two-party consent” laws have been adopted in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. Consent must be obtained from every party to a phone call or conversation if it involves more than two people.3

Texas Law

Texas’ wiretapping law is a “one-party consent” law. Texas makes it a crime to intercept or record any “wire, oral, or electronic communication” unless one party to the conversation consents.4 But, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties.5

The law does not cover oral communications when the speakers do not have an “expectation that such communication is not subject to interception under circumstances justifying such expectation.”6 Therefore, you may be able to record in-person conversations occurring in a public place—such as a street or a restaurant—without consent.

Also, a recording device in plain view is presumed to be used with the consent of all persons who can see it.

Texas Lawyer and the Professional Ethics Committee for the State Bar of Texas

May a lawyer electronically record a telephone conversation between the lawyer and a client or third party without first informing the other party to the call that the conversation is being recorded?

In November 2006, the Professional Ethics Committee for the State Bar of Texas issued Ethics opinion No. 575 and answered the question.7 The Committee stated the following:

It is recognized that there are legitimate reasons a lawyer would electronically record conversations with a client or third party. Among the legitimate reasons are to aid memory and keep an accurate record, to gather information from potential witnesses, and to protect the lawyer from false accusations.

Ethics opinion No. 575 p.2.

The Committee also stated “No provision of the Texas Disciplinary Rules of Professional Conduct specifically prohibits a lawyer’s unannounced recording of telephone conversations in which the lawyer participates.”8

The Committee was of the opinion that the Texas Disciplinary Rules of Professional Conduct did not generally prohibit a lawyer from making undisclosed recordings of telephone conversations in which the lawyer is a party, provided that certain requirements are complied with.

The Committee cited Rule 8.04(a)(3) of the Texas Disciplinary Rules of Professional Conduct: “(a) A lawyer shall not: (3) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation,” and the Committee stated that it did not believe that an undisclosed recording of a telephone conversation by a party to the conversation could be termed to involve “dishonesty, fraud, deceit or misrepresentation” within the meaning of Rule 8.04(a)(3). Thus, a Texas lawyer’s undisclosed recording of his telephone conversation with another person should not be held to violate Rule 8.04(a)(3).

The Committee concluded that the Texas Disciplinary Rules of Professional Conduct did not prohibit a Texas lawyer from making an undisclosed recording of the lawyer’s telephone conversations provided that (1) recordings of conversations involving a client are made to further a legitimate purpose of the lawyer or the client, (2) confidential client information contained in any recording is appropriately protected by the lawyer in accordance with Rule 1.05, (3) the undisclosed recording does not constitute a serious criminal violation under the laws of any jurisdiction applicable to the telephone conversation recorded, and (4) the recording is not contrary to a representation made by the lawyer to any person.

Federal Corner: The Bureau of Prisons’ Very Exclusive Residential Drug Abuse Treatment Program – By F. R. Buck Files Jr.

/

On August 10, 2011, Steven Standifer received bad news. He was not going to be permitted to participate in the Bureau of Prisons’ Residential Drug Abuse Program [RDAP]. A panel of the United States Court of Appeals for the Tenth Circuit [Circuit Judges O’Brein, McKay, and Tymkovich] sent that message to him. Standifer v. Ledzema, ___ F.3d___, 2011 WL 3487074 (10th Cir. 2011).

What makes this case interesting to me is that it hightlights the form-over-substance approach that the Bureau of Prisons follows in determining who is eligible to participate in this program. An inmate must have a verifiable, documented drug abuse problem that occurred within 12 months of his federal arrest. That is the hurdle every inmate has to clear when applying. It is an exclusive rather than an inclusive program.

What is ironic is that the Bureau of Prisons touts the success of its substance abuse treatment program in general and of the Residential Drug Abuse Program in particular:

Drug treatment studies for in-prison populations have found that when programs are well-designed using effective program elements and implemented carefully, these programs:

    • reduce relapse,
    • reduce criminality,
    • reduce recidivism,
    • reduce inmate misconduct,
    • reduce mental illness,
    • reduce behavioral disorders,
    • increase the level of the inmate’s stake in societal norms,
    • increase levels of education and employment upon return to the community,
    • improve health and mental health symptoms and conditions, and
    • improve relationships.

Collectively, these outcomes represent enormous safety and economic benefits to the public [emphasis added].

RDAP is the Bureau’s most intensive treatment program. It too follows the CBT (cognitive behavioral therapy) model of treatment wrapped into a modified therapeutic community model in which inmates learn what it is like living in a pro-social community. Inmates live in a unit separate from general population, participate in half-day programming and half-day work, school, or vocational activities. RDAP is typically nine months in duration. The Bureau and National Institute on Drug Abuse combined funding and expertise to conduct a rigorous analysis of the Bureau’s RDAP. Research findings demonstrated that RDAP participants are significantly less likely to recidivate and less likely to relapse to drug use than non-participants. The studies also suggest that the Bureau’s RDAPs make a significant difference in the lives of inmates following their release from custody and return to the community [emphasis added] (www.bop.gov/inmate_programs/substance.jsp).

And now back to Standifer. Judge Tymkovich authored the opinion of the Court which includes the following:

[An Overview]

Steve Standifer, a federal prisoner proceeding pro se, challenges a Bureau of Prisons’ (BOP’s) regulation that denies him eligibility to participate in its Residential Drug Abuse Program (RDAP). He is ineligible for the program because his last-reported date of drug use was more than three years before his arrest on federal charges. Standifer contends the BOP’s policy requiring that it consider only his substance-abuse history for the 12 months preceding his arrest is based on an unreasonable interpretation of authorizing statutes. This claim fails because the BOP’s eligibility requirement is based on a reasonable interpretation of the governing provisions, 18 U.S.C. §§ 3621(b) and (e)(1). Standifer’s assertion that the BOP was deliberately indifferent to his medical needs is similarly unavailing.

[The Facts]

In 2005, Standifer was imprisoned in Oklahoma state prison for distributing and cultivating marijuana. Almost two years later, while serving this sentence, Standifer was indicted on federal charges for possessing marijuana with intent to distribute, in violation of 21 U.S.C. §841(a)(1). He pleaded guilty and was sentenced to 60 months’ imprisonment in a federal penitentiary. He is currently serving his federal sentence.

While in federal prison, Standifer sought admission to RDAP, the BOP’s residential drug-treatment program. The BOP found, however, that Standifer did not meet the RDAP enrollment criteria because he did not have a documented incident of drug abuse within a 12-month period preceding his arrest. See BOP Program Statement 5330.11 § 2.5.8(d)(2). Standifer concedes he last used drugs in January 2004—more than three years before his arrest on federal charges (and more than a year before his arrest on state charges).

[The Proceeding Is in the District Court]

In May 2010, Standifer filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241, arguing the 12-month-period eligibility criterion exceeded the BOP’s statutory authority, under 5 U.S.C. § 706(2)(C) of the Administrative Procedure Act (APA). The district court referred the matter to a magistrate judge, who issued a well reasoned Report and Recommendation concluding Standifer’s claims lacked merit. For substantially the same reasons as set forth in the Report and Recommendation, the district court dismissed Standifer’s petition and granted the BOP’s motion for summary judgment.

[The History and Requirements of RDAP]

RDAP spawned from 18 U.S.C. § 3621(b), which directed the BOP to “make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse.” Under BOP regulations, to be eligible for RDAP, an inmate must have a verifiable, documented drug abuse problem that occurred within 12 months of his arrest. 28 C.F.R. § 550.53(b)(1) (explaining that “a verifiable substance abuse disorder” is a prerequisite to enrollment in RDAP); BOP Program Statement 5330.11 § 2.5.8(d)(2) (BOP may verify an inmate’s substance abuse disorder by consulting “[d]ocumentation to support a substance use disorder within the 12-month period before the inmate’s arrest on his or her current offense”). The BOP has discretion to grant early release of up to one year to inmates who successfully complete RDAP. § 3621(e)(2)(B). Because the BOP’s 12-month-window requirement is codified in a program statement rather than formal regulation, we must give the language “some deference” if it involves a “permissible construction of the statute.” Reno v. Koray, 515 U.S. 50, 61, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995) (quotation omitted) [emphasis added].

[Standifer’s Position and the Court’s Reply]

Standifer concedes he did not have a verifiable substance abuse disorder within one year of his arrest. He told the district court that in 2003, he “stopped using all substances on his own volition,” and that after a January 2004 relapse, he successfully completed an Oklahoma Department of Corrections rehabilitation program. Standifer has been drug free ever since. Given these facts, Standifer does not dispute he was ineligible for RDAP under BOP regulations. Rather, he argues the BOP exceeded statutory authority, under the APA, when it conditioned participation in RDAP on an inmate having a documented drug-abuse problem within 12 months of his arrest. This argument is unavailing.

[The Eligibility Requirements]

The BOP’s 12-month-period eligibility requirement for participation in RDAP accords with authorizing statutes. Pursuant to statute, RDAP is open only to prisoners who “have a substance abuse problem.” § 3621(e)(5)(B) [emphasis added]. The word “have” is in the present tense; the statute does not require the BOP to offer any treatment for inmates who suffered from drug abuse in the past. See United States v. Wilson, 503 U.S. 329, 333, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) (“Congress’ use of a verb tense is significant in construing statutes.”). This language reflects Congress’ intention that RDAP be made available only to prisoners with current drug-abuse problems. Accordingly, the BOP’s interpretation—which limits RDAP to inmates with current or recent drug-abuse problems—is reasonable, infringes no constitutional right, and merits deference. See, e.g., Mora-Meraz v. Thomas, 601 F.3d 933, 942–43 (9th Cir.2010) (holding the BOP’s 12-month eligibility requirement was a reasonable interpretation of the statute); Laws v. Barron, 348 F.Supp.2d 795, 805–06 (E.D.Ky.2004) (“[C]ommon sense would dictate that entry into [RDAP] would be restricted to those prisoners having a recent history of abuse, rather than one who can demonstrate that he had a substance abuse problem 4 to 9 years prior to arrest and 7 to 12 years prior to incarceration.”)

[The Court’s Conclusion]

Because the BOP’s 12-month-period eligibility requirement is a reasonable implementation of Congress’s mandate, we defer to the BOP’s rule and deny Standifer’s claim.

My Thoughts

  • Yes, there is another benefit to successfully completing the RDAP that, I’m certain, has more appeal to the average inmate than the treatment component. BOP can reduce the inmate’s sentence by up to one year and every inmate knows that.

  • The lesson from Standifer is that a lawyer must make certain that the PSR documents a verifiable drug abuse problem within a 12-month period proceeding his or her client’s federal arrest—if that is possible. Otherwise, the client has no possibility of entering the RDAP.