Monthly archive

December 2011

December 2011 SDR – Voice for the Defense Vol. 40, No. 10

Voice for the Defense Volume 40, No. 10 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Freeman v. United States, 131 S. Ct. 2685 (2011); Reversed, remanded (5–4)

        Freeman was charged with crack possession, among other charges, and entered a plea agreement that included a sentence of 106 months. After his agreement was accepted by the judge and his sentence was entered, the U.S. Sentencing Commission amended the Guidelines to reduce the disparity in the treatment of crack and powder cocaine, and made the amendment retroactive. Freeman sought to reduce his sentence. The district court refused to do so, and the Sixth Circuit affirmed.

        HELD: Reversal was warranted because (1) a district court has authority to entertain 18 U.S.C.S. § 3582(c)(2) motions when sentences are imposed in light of the Guidelines, even if the defendant entered into a Fed. R. Crim. P. 11(c)(1)(C) agreement, and (2) the district court’s decision was “based on” the applicable Guidelines range since the district court expressed its independent judgment that the sentence was appropriate in light of that range.

United States v. Juvenile Male, 131 S. Ct. 2860 (2011); Vacated, remanded (5–3)

        COA held that the requirements of the Sex Offender Registration and Notification Act (SORNA), 42 U. S. C. §16901 et seq., violate the Ex Post Facto Clause of U.S. Const. art. I, § 9, cl. 3, when applied to juveniles adjudicated as delinquent before SORNA’s enactment.

        HELD: COA lacked constitutional authority to decide the case on the merits because it had no live controversy before it. It is a basic principle of U.S. Const. art. III that a justiciable case or controversy must remain extant at all stages of review, not merely at the time the complaint is filed. “At the time of the Ninth Circuit’s decision in this case, the District Court’s order of juvenile supervision had expired, and respondent was no longer subject to the sex-offender-registration conditions that he sought to challenge on appeal. . . . As a result, respondent’s challenge was moot before the Ninth Circuit unless he could ‘show that a decision invalidating’ the District Court’s order would likely redress some collateral consequence of the registration conditions.” The petition for a writ of certiorari and respondent’s motion to proceed in forma pauperis are granted. COA’s judgment is vacated, and the case is remanded with instructions to dismiss the appeal.

Cavazos v. Smith, 565 U.S. ____, No. 10-1115 (Oct 31, 2011); Reversed, remanded (6–3)

        Doctors initially attributed Etzel’s death to sudden infant death syndrome. However, an autopsy concluded that the cause of death was shaken baby syndrome (SBS). Smith, Etzel’s grandmother, stated that when Etzel did not respond to her touch, she picked him up and gave him a little jostle. Smith was charged with assault on a child resulting in death. At trial, the jury heard seven days of expert medical testimony on the cause of death. The prosecutors offered three experts who each testified that Etzel’s death was the result of SBS. The defense called two expert witnesses to dispute the conclusions. The jury found Smith guilty.

        Smith filed a motion for new trial. The trial judge denied the motion, concluding that the jury carefully weighed the tremendous amount of evidence. On direct review, Smith contended that the evidence was insufficient to establish that Etzel died from SBS. The California Court of Appeal rejected this claim, determining that where there was competing medical testimony, it was for the jury to resolve the conflicts. Smith appealed to the California Supreme Court, which denied review. Smith subsequently filed a petition for writ of habeas corpus with a U.S. District Court, arguing that the evidence against her was insufficient. The District Court concluded that the evidence was sufficient to support a conviction. On appeal, the Ninth Circuit reversed and remanded, concluding that the absence of physical evidence indicated that the Court of Appeal had unreasonably upheld Smith’s conviction. The petitioners appealed.

        HELD: The Ninth Circuit exceeded its authority under the deferential standard for habeas corpus review by granting relief for insufficient evidence based on its acceptance of the cause-of-death testimony of defense experts over the contrary opinion of prosecution experts. Evidence is sufficient to support a conviction so long as, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The Court further stated that where there is conflicting evidence, a reviewing court must presume that the trier of fact resolved any such conflicts.

Fifth Circuit

United States v. Rios, 636 F.3d 168 (5th Cir. 2011)

        In trial for aiding and abetting the transportation of illegal aliens, district court did not abuse its discretion in refusing to give a “missing witness” instruction with respect to the government’s failure to call a co-defendant who pleaded guilty on the morning of trial and invoked his Fifth Amendment privilege against self-incrimination. A court should not grant a missing witness instruction unless the person who is the subject of that instruction (1) is peculiarly within one party’s power to produce and (2) would provide testimony that would elucidate facts at issue. Notwithstanding the fact that the government technically has the power to override the Fifth Amendment privilege by granting immunity, the Fifth Circuit refused to find that the government’s failure to grant immunity to a witness who invokes the Fifth Amendment privilege automatically entitles a defendant to a “missing witness” instruction.

United States v. Jackson, 636 F.3d 687 (5th Cir. 2011), withdrawing 625 F.3d 875 (5th Cir. 2010)

        District court violated D’s rights under the Confrontation Clause by admitting into evidence notebook ledgers received from a co-conspirator during a proffer session and an investigating officer’s testimony pertaining thereto, both of which were used to show the amount of cocaine the co-conspirator distributed to D. The ledgers fell outside the business-records and co-conspirator-statement exceptions to the right of confrontation recognized in Crawford v. Washington, 541 U.S. 36 (2004), and hence were “testimonial.” The ledgers were not properly authenticated as business records because the agent through whom they were introduced offered no testimony as to who prepared the ledgers and under what circumstances; there was no evidence that they were kept in the regular course of a drug-trafficking enterprise. For similar reasons, the ledgers were not sufficiently authenticated to render them admissible under the co-conspirator-statement exception. Accordingly, the court erred in admitting them. This error was not harmless beyond a reasonable doubt; given the government’s reliance on the ledgers in its closing argument, the government could not show that the ledgers did not contribute to the conviction. The Fifth Circuit vacated the conviction and remanded for further proceedings, including an opportunity for a new trial.

United States v. Henderson, 636 F.3d 713 (5th Cir. 2011)

        In each of three defendants’ cases, district court reversibly erred in denying D’s motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (based on the retroactive amendments to the crack cocaine Guidelines). In denying each motion, the court implied that it had not reconsidered the sentencing factors of 18 U.S.C. § 3553(a) in making this decision because it had already considered those factors in imposing a below-Guidelines sentence at the original sentencing. As such, in each case, the court did not recognize, and therefore did not satisfy, the requirement that they reconsider the § 3553(a) factors when deciding whether to reduce a sentence in response to a § 3582(c)(2) motion. The Fifth Circuit reversed the orders denying defendants’ § 3582(c)(2) motions and remanded for reevaluation of those motions.

United States v. Rhine, 637 F.3d 525 (5th Cir. 2011)

        In the original sentencing, the district court calculated D’s Guideline imprisonment range as 292 to 365 months and imposed a high-Guidelines sentence of 360 months; on remand from the first appeal, the Guidelines dropped to 30 to 37 months as a result of the favorable “relevant conduct” ruling made by the Fifth Circuit in the first appeal, but the district court went significantly upward to impose an aggregate sentence of 180 months. The panel majority affirmed this sentence, concluding that it was a variance, not a Guideline-based departure, and that it was neither procedurally nor substantively unreasonable. Judge Dennis filed a lengthy dissent, opining that as a variance, the sentence was procedurally unreasonable (as inadequately explained) and substantively unreasonable (because apparently plucked from the air). He also believed that even as a departure, the sentence was unsalvageably flawed.

United States v. Diaz, 637 F.3d 592 (5th Cir. 2011)

        (1) In drug case, district court did not impermissibly infringe upon D’s right to confrontation by barring him from questioning government agent about D’s status as an illegal immigrant or his employment at a business close to where the drug deal occurred. These rulings did not bar inquiries into witness credibility or reliability, the issues that are the touchstone of the cross-examination rights protected by the Confrontation Clause. Although D’s immigration status might have been relevant to provide an alternative explanation for his perceived actions (namely, that he had reason to be looking out for law enforcement), the restriction on questioning on this subject likewise was not, under the circumstances, an abuse of discretion.

        (2) District court did not abuse its discretion by permitting a government agent to testify that D was at the scene of the drug transaction “as a lookout.” This was not a forbidden expert opinion on D’s mental state in violation of Fed. R. Evid. 704(b), but rather was permissible lay opinion testimony based on personal perception and common-sense interpretation of D’s behavior, and not resting on scientific, technical, or specialized knowledge. Even if there were some error, it was harmless.

        (3) Brief omission of single word from written instructions, which was corrected within minutes of the jurors’ retiring to deliberate, did not, especially on plain-error review, require reversal, given the brief period of time in which the jury deliberated under the erroneous instructions and given the content of the instructions as a whole.

United States v. Ned, 637 F.3d 562 (5th Cir. 2011)

        (1) The automobile exception to the Fourth Amendment’s warrant requirement applies with equal force to unoccupied, parked cars in places not used for residential purposes. Here, the police had more than sufficient probable cause to believe D’s vehicle, parked outside a nightclub, contained drugs, based on a tip from D’s girlfriend and an alert by a narcotics dog.

        (2) District court did not abuse its discretion in admitting testimony that D told his girlfriend, “Go to the front door.” This was non-assertive oral conduct that simply was not hearsay. Nor did court abuse its discretion by admitting his Auto Zone card into evidence because there was a sufficient predicate laid to admit this under the business-records exception to the hearsay rule; there is no requirement that the witness who lays the foundation for the admission of a record under the business-records exception be the author of the record or be able to personally attest to its accuracy. Rather, a qualified witness is one who can explain the record-keeping system of the organization and vouch that the requirements of the business-records exception are met. Nor was the Auto Zone card more unfairly prejudicial than probative. Finally, objection that jailhouse snitch had given speculative testimony unfounded on personal knowledge was without merit, as he later established the basis for his knowledge. In any event, any error was harmless because of other, properly admitted evidence.

United States v. Skilling, 638 F.3d 480 (5th Cir. 2011)

        On remand from the U.S. Supreme Court, the Fifth Circuit was tasked with deciding whether the submission of the case to the jury on a flawed “honest-services fraud” theory was harmless error. Under Hedgpeth v. Pulido, 555 U.S. 57 (2008), and Neder v. United States, 527 U.S. 1 (1999), an alternative-theory error—i.e., where a jury rendering a general verdict was instructed on alternative theories of guilt, one of which was legally flawed—is harmless if (1) the verdict would have been the same absent the error because the jury could not rationally acquit on the valid theory, or theories, of guilt, or (2) the jury, in convicting on the invalid theory of guilt, necessarily found facts establishing guilt on a valid theory. The Fifth Circuit repudiated pre-Pulido precedent applying a more stringent test of harmlessness (the “impossible to tell” harmless-error standard). Under the applicable standard, the submission of the erroneous “honest services” theory to the jury did not require reversal of D’s conspiracy conviction because there was overwhelming evidence of guilt on the legally valid theory of guilt; because D’s challenges to his remaining convictions piggybacked off the claimed error with respect to the conspiracy conviction, it followed that the harmlessness of the error with respect to the conspiracy conviction likewise meant that there was no basis to challenge the remaining convictions.

United States v. Wright, 639 F.3d 679 (5th Cir. 2011)

        In child pornography case, the Fifth Circuit vacated $529,661 restitution award to former minor depicted in some of the images. Under In re Amy Unknown, 636 F.3d 190 (5th Cir. 2011), minor was entitled to restitution without the need for proof of a causal connection between D’s offense conduct and the victim’s recoverable losses; nevertheless, the Fifth Circuit could not discern any supportable rationale for this particular amount of restitution. The Fifth Circuit remanded for the district court to reconsider the restitution order and to set forth its reasons for whatever restitution award it made on remand. (Three judges concurred, disagreeing with In re Amy Unknown to the extent that it refused to impose any proximate-cause limitation upon this type of restitution order and urging that this case be consolidated with In re Amy Unknown for en banc rehearing.)

United States v. Winkler, 639 F.3d 692 (5th Cir. 2011)

        Evidence was sufficient to sustain D’s conviction for knowing receipt of child pornography images found only in the temporary storage of D’s hard drive; although there are concerns that files found in the temporary cache of a computer may have been inadvertently accessed, here the evidence was overwhelming that D sought, downloaded, viewed, and had the ability to manipulate the images. With respect to D’s challenged conviction for possession of child pornography, there was sufficient evidence of D’s knowing possession of those files and the interstate commerce element of the offense.

Court of Criminal Appeals

State’s PDRs

Zuliani v. State, Nos. 0884-11 & 0885-11 (Tex.Crim.App. 11/2/11); Vacated, remanded (7–0)

        Appellant was convicted of reckless driving and deadly conduct. The jury assessed punishment at 30 days’ confinement and a $100 fine for the reckless driving conviction and one year’s confinement and a $3,000 fine for the deadly conduct conviction. COA concluded that appellant’s two convictions represented multiple punishments for the same offense, in violation of the prohibition against double jeopardy and reversed the conviction for reckless driving. The State petitioned that COA erred in failing to consider legislative intent in its double jeopardy analysis.

        HELD: In considering appellant’s double jeopardy claim, COA compared the elements of the two offenses, as charged, and concluded that they were the same for double jeopardy purposes in this case; this analysis was correct, but incomplete. Impermissible multiple punishments occur when the same criminal act is punished twice under two distinct statutory provisions and the Legislature intended the conduct be punished only once. Here, COA did not consider whether the Legislature intended appellant’s conduct to be punished only once. CCA will not conduct an analysis of legislative intent for the first time in a PDR, and instead remanded for COA to consider.

Goad v. State, No. 0435-11 (Tex.Crim.App. 11/9/11); Affirmed (9–0)

        Appellant was charged with burglary of a habitation and sentenced by a jury to 20 years’ imprisonment. The indictment alleged that appellant entered the victim’s house with intent to commit theft. At the charge conference, appellant requested an instruction on criminal trespass, which was denied by the trial judge. On appeal, appellant argued that the trial judge erred by denying his request for a lesser-included-offense instruction. COA agreed, holding that the jury rationally could have found appellant guilty only of criminal trespass because, given the facts, the jury could have believed that appellant was looking for his dog when he entered the victim’s home. CCA granted the State’s PDR on the following ground: “Does a trial court abuse its discretion by refusing to submit a lesser included instruction that is only ‘supported’ by unrelated hearsay admitted through the victim?”

        HELD: Since the evidence supports an inference that appellant was looking for his dog and a jury that accepted this inference could rationally believe he lacked intent to commit theft, COA did not err in holding that the evidence supports a lesser-included-offense instruction on criminal trespass.

Barron v. State, No. 1770-10 (Tex.Crim.App. 11/9/11); Affirmed (6–3)

        Appellant was convicted of misdemeanor DWI and appealed. There was a jury instruction for “synergistic effect,” from appellant’s alleged combined use of prescription drugs and alcohol. COA found error in this jury instruction because “there is no evidence that [A]ppellant ingested hydrocodone, hydrocodeine, or any other prescription medication on the day in question,” and thus “the ‘synergistic effect’ instruction was not raised by the evidence.” Furthermore, the State failed to preserve evidence that appellant had prescription medications in her possession. But, COA then found “some harm” on the same basis that “there is no evidence in this record that [A]ppellant ingested any intoxicating substances other than alcohol.”

        HELD: CCA agreed that the instruction was not harmless but found that COA’s harm analysis only repeated its error analysis; a proper analysis should follow the guidelines in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App. 1984), assaying the degree of harm “in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.”

Appellants’ PDRs

Lucio v. State, No. 0659-10 (Tex.Crim.App. 11/9/11); Affirmed (8–1)

        A jury convicted appellant for murder and engaging in organized criminal activity. Appellant petitioned that the trial court improperly commented on the weight of the evidence by singling out a particular piece of evidence in its answer to the jury’s question that asked whether the law permitted family members to testify.

        HELD: The general rule that prohibits the court from singling out a particular piece of evidence in its instructions given prior to jury deliberations does not necessarily apply when the court merely responds to the jury’s question concerning a subject identified by the jury alone. Nothing in the trial court’s answer focused the jury on the fact that none of appellant’s family members had testified during the punishment phase. Rather, the jury alone focused on that fact, which prompted its note to the trial court, perhaps because of evidence supplied by appellant’s girlfriend, who testified that appellant “only associated with his family.” In response to the jury’s question, the trial court merely provided a correct statement of law that family members with relevant evidence were not prohibited from testifying. From this, the jury could have permissibly inferred either that none of the available family members could provide relevant information or that appellant did not call the available family members to testify because they would supply evidence unfavorable to appellant.

Harris v. State, No. 0945-10 (Tex.Crim.App. 11/9/11); Reversed, remanded (8–1)

        Pursuant to a three-count indictment, appellant pled guilty and was convicted in a single proceeding of three offenses of indecency with a child by exposure. These three convictions arise out of a single act or criminal episode during which appellant masturbated knowing that one six-year-old girl and two nine-year-old girls were present. The trial court sentenced appellant to ten years’ imprisonment for each count, with counts 1 and 2 running consecutively, and count 3 running concurrently with counts 1 and 2. On direct appeal, appellant argued that the trial court erred in the conviction and punishment of three separate counts of indecency by exposure, arising from the same criminal episode, when the offense is a non-victim-based crime for which double jeopardy bars multiple prosecutions.

        HELD: The gravamen of the offense of indecency with a child by exposure is the act of exposure, not the number of children present. The allowable unit of prosecution for the offense is the act of exposure, and consequently, the child-victim’s name is not a necessary element of proof. Thus, appellant committed only one offense under Tex. Penal Code § 21.11(a)(2)(A) when he exposed himself to three children at the same time.

Morales v. State, No. 1155-10 (Tex.Crim.App. 11/9/11); Reversed, remanded: Keller (9–0)

        Lopez and appellant’s brother, Juan, fought each other in a December 2007 gang fight. At some point, appellant shot and killed Lopez. Some witnesses said Lopez was unarmed; some said he was beating Juan with a metal pipe. One witness said Juan helped pull baseball bats out of a car and then participated in beating Lopez. Other witnesses said Juan was lying helplessly on the ground while Lopez attacked him with a pipe. Appellant was prosecuted for murder. The jury charge contained instructions on defense of a third person. These instructions incorporated some instructions on self-defense. Originally, the charge included language regarding whether “a reasonable person in the defendant’s situation would not have retreated.” Appellant objected to this instruction as not consistent with the current statute.

        In 2007, the legislature made significant amendments to the self-defense statute, Tex. Penal Code § 9.32, adding provisions that under certain circumstances allow a person to stand his ground while defending himself and create a presumption that a defendant’s conduct was reasonable. After studying the matter, the trial judge modified the instructions. Appellant maintained that his objection applied to the modified charge.

        HELD: The self-defense and defense of third person statutes are not limited to particular crimes; they simply provide that use of force or deadly force is justified in certain circumstances. These defenses logically apply to the crime of participating in a riot, so long as all of the actor’s actions that would otherwise constitute participation are justified under one or more of these defenses. Not only is this interpretation consistent with the plain language of the statutes; it avoids the absurd result of penalizing someone simply because his attackers are numerous.

        CCA noted that the focus of the defense-of-third-persons defense is on what the actor reasonably believes concerning the situation of the third person. If appellant reasonably believed that Juan’s participation in the riot was limited to legitimately defending himself, then appellant would be entitled to the presumption, even if appellant’s belief was incorrect. COA did not address whether there was evidence to support that appellant reasonably believed all of Juan’s actions would be justified by self-defense. If there is a conflict in the evidence on the relevant matters, then there may be a fact issue supporting the submission of the presumption to the jury, “unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact.”

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

State v. Ortiz, No. 07-11-00001-CR (Tex.App.—Amarillo 7/13/11)

        Officer’s question to D concerning what kind of drugs D’s wife had on her person constituted a post-arrest interrogation of D within Miranda. “[Officer’s] question does not fall within the category of general or routine questions incident to an arrest. Rather, it specifically addressed the officers’ discovery of the item strapped to the leg of [D’s] wife as she was searched in the presence of [D] and [officer]. [Officer’s] question to [D] asking the ‘kind of drugs’ his wife had was practically certain to elicit an incriminating response.”

State v. Webre, No. 03-11-00036-CR (Tex.App.—Austin 8/5/11)

        Blood draw affidavit deemed sufficient, even though it did not detail what police intended to do with sample and did not state specifically how the sample would constitute evidence of DWI. The court refers to D’s arguments as novel and then states: “[D] cites no case, nor have we found any, holding that an affidavit in support of a warrant in this situation must specify what is to be done with the blood sample after it is taken, nor do we know of any authority instructing that the failure to include this sort of detail in an affidavit should invalidate a magistrate’s determination of probable cause. Instead, the Court of Criminal Appeals has consistently held that reviewing courts are not to take such hypertechnical views of affidavits supporting warrants. The magistrate needed simply to determine the probability that evidence of an offense, i.e., a blood alcohol content exceeding the legal limit, would be found in [D’s] blood when the warrant issued. . . . Even if the detail that [D] suggests were required to justify a warrant, the affidavit is sufficient if the magistrate could have reasonably inferred the required information from the facts set forth in the affidavit.”

Steele v. State, Nos. 01-10-00788-CR & 01-10-00789-CR (Tex.App.—Houston [1st Dist] 8/11/11)

        Search warrant affidavit deemed sufficient even though it lacked specific dates for certain facts. “[D] contends that a reader of the affidavit supporting the search warrant cannot discern when [witness] filed his initial report with [police department], when [officer] was assigned to the case, when [officer] interviewed [witness], or when [officer] interviewed [witness]. Although the affidavit omits the specific dates of these events, it contains references to time,” concluded court. For example, “[t]he affidavit establishes that both [witnesses] stated that [D] was currently living with an 18-year-old male, named K.A.” Although D contended that the word “currently” is meaningless because the affidavit fails to specify when the witnesses made these statements to officer, the court nevertheless concluded that the affidavit “establishes that K.A. was born in April 1990. Thus, [witnesses] must have made these statements during or after April 2008, when K.A. attained 18 years of age.”

State v. Bell, Nos. 14-10-00771-CR & 14-10-00772-CR (Tex.App.—Houston [14th Dist] 8/16/11)

            Employee of shopping mall management company did not have reasonable expectation of privacy in the premises of the mall. There was an absence of evidence of extent of management company’s involvement in day-to-day operations of premises or responsibility for signage indicating that premises were private property. In addition, any right against unreasonable search or seizure would have been enjoyed solely by the management company itself and could not be vicariously asserted by an employee of the company such as D (even though D held the title “Mall Manager”).

Do’s (Mostly) and Don’ts (A Few) in Taking Federal Criminal Appointments

The Do’s

I. How to Get on the List

The Federal Public Defenders, in Texas, unlike their counterparts in the Fifth Circuit in Louisiana and Mississippi, do not administer the CJA panel attorneys list. The method of getting on the list differs not only from district to district in Texas, but between divisions in various districts. In most of the larger populated divisions, the list is voluntary, and is administered by a committee appointed by the Chief Judge of the district. This committee evaluates the written applications and recommendations of an individual attorney who seeks to be on the CJA panel and makes recommendations to the judge assigned by the Chief Judge to oversee that court committee. Typically, prior to approving an individual attorney to take federal court appointments, the committee members will look to the attorney’s past experience in federal court and in most jurisdictions, whether that attorney has been licensed in federal court for at least three years.

The committee will look at indicators other than experience in determining if an individual attorney ought to be on the CJA panel: Does that attorney have prior extensive state criminal law experience? What kind of support system does the attorney have (i.e., is the attorney in a firm or office-sharing arrangement with experienced federal criminal practitioners to be able to advise and work with the attorney)? In the Dallas Division, and in most of the Federal Defender offices, there is a mentoring program for those individuals who desire to be on the panel, but have not had extensive federal criminal law experience. This allows the attorney to be matched up with an Assistant Federal Public Defender and work on a case from interview through trial and even appeal. In some divisions, such as Dallas, there is even a small stipend through the Non-Appropriated Fund Committee for the attorney going through this mentoring process.

In some of the smaller populated divisions, everyone who is on the list to practice in federal court can potentially receive a federal criminal appointment. It has been my experience, however, in those jurisdictions the same individuals will be appointed repeatedly on cases because the judge is aware of their knowledge of federal criminal law.

II. Know Your Resources

The best 24/7 resource for issues involving federal criminal practice is www.fd.org, the website for the Federal Defender Service. This website has an amazing breadth of information categorized in easy-to-find format. Topics and outlines, along with supporting briefs, in deconstructing various guideline sentencing for offenses such as child pornography and armed career criminal, can be found here. Articles on current issues in sentencing prepared by the Federal Defender Sentencing Resource Counsel provide both excellent legal and statistical fodder from the U.S. Sentencing Commission to allow you to prepare memorandums and arguments for either downward departures or variances for your client.

In addition to the main website, there are websites for each federal defender with informative links. For example, our district’s website, www.txn.fd.org, has links to the fabulous article by Henry Bemporad and Lucien Campbell in the 12th Edition of the Introduction to Federal Sentencing, a 33-page document that gets you to the basics of federal sentencing as quickly as anything else I can recommend. There are also links to the 5th Circuit blogs, the Supreme Court blogs, Professor Berman’s Sentencing Policy Blog, and Alex Bunin’s list of every federal criminal case that has ever been reversed and the reasons for reversal. There are also links to all the CJA forms necessary for handling an appointed federal criminal case, along with brief banks, CLE opportunities, and information concerning hot topics on federal sentencings and trials.

For those CJA attorneys who are appointed on complicated or extensive federal criminal cases, there is a litigation support page at http://www.fd.org/odstb_litigationsupport.htm. On this page you can find recommended e-discovery practices for CJA attorneys and a guideline for CJA panel attorneys to obtain litigation support resources.

By far the most, and best, resource is the Federal Public Defender’s Office in each district. The Federal Public Defender’s Office has two missions: one is to provide quality representation for indigents charged with federal criminal cases, and the other is to provide assistance and education to court-appointed attorneys who are assigned federal criminal cases. Every FPD in Texas takes the second part of that mission very seriously, and as long as there are no conflicts, stands ready to assist the CJA panel attorneys. In addition, each district has a CJA panel representative, who is a designated liaison between the Federal Public Defenders and the CJA panel attorneys. These individuals can also assist in finding proper resources.

The Federal Public Defender’s and the CJA panel representatives for each district are shown in the box below.

III. Know Your Courts

The federal criminal practice is a deadline-driven practice. You can go to the U.S. District Court’s website (www.uscourts.gov/districtcourts) and link to your particular district to review the local rules concerning deadlines you must meet. Many of the courts will have standing orders concerning discovery included in the Local Rules, along with incorporating the Federal Rule of Criminal Procedure deadlines for the filing of motions and trial material. Many federal judges will also issue a scheduling order simultaneously with arraignment. Because there is a Speedy Trial Act in federal court (18 U.S.C. §3161), these deadlines are pretty much set in stone unless you take affirmative written action to move them.

When in doubt, contact the courtroom deputy of the particular district court your case is filed in to get information about what the court expects in terms of deadlines.

IV. Be Aware of the Fee Structure for CJA Cases

It is important to note the case maximums as it relates both to your fees and any investigative or expert witness fees. Prior approval from the court is necessary when it is anticipated that the compensation will exceed the maximum compensation allowed. If you are appointed on a “mega case,” you may be required to prepare a trial budget to submit to the court, ex parte, for approval prior to incurring the expense. The Office of Defender Services in Washington has individuals that will help you prepare a case budget for a complicated case. The courts, in reviewing payment vouchers, typically evaluate it on a 4-to-1 basis—i.e., four hours of out-of-court time for every one hour of in-court time. If the paysheet you submit is skewed dramatically away from this ratio, it is most likely either to be reduced or you will be required to provide further explanation.

In the Northern District of Texas there are now online voucher forms that can be filled out and automatically calculate your compensation request. It is anticipated that all courts will have this system in the next three years.

V. See the Client Early (and Often?)

Another difference from the state practice is that in all likelihood your federal appointed case will be a shut-in, housed at a detention center in a location remote to both your office and the federal courthouse. Federal practice requires more “windshield lawyering” than most state criminal practice. The initial interview is critical to establishing the trust forming the attorney-client bond that will be the basis for the important decisions to be made in the case. In many cases, the client will have experience in the state criminal law system. Explaining the important differences will be imperative at that first meeting, as it sets the tone for the client’s expectations. Always go over the attorney-client privilege, who the client can talk to and know that the conversation is protected, and admonish the client that all phone calls and many other contacts with relatives and outside individuals will be monitored by individuals at the detention center, likely to end up in the hands of the prosecutor.

The client needs to know that the federal system treats certain crimes much differently than the client is used to in state courts. A good example is felon in possession of a weapon. Many of the clients will have gone through the state system and received a negotiated probation for being a felon in possession of a weapon. The harsh reality of the federal system is that there is significant penitentiary time associated with a conviction for this offense. The same is true for drug offenses, child pornography offenses, and immigration offenses. All sentencing in federal courts is done by the judge (unlike the state system) and will have a baseline of the Federal Sentencing Guidelines as a start for the type of sentence that will be imposed.

It will be important that prior to the initial interview you take an initial look at what the guidelines are for the particular offense and offender. Significant inquiry into your client’s past criminal history is necessary to make a determination of whether your client might be eligible for career offender status, armed career offender status, and other statutory enhancements that will greatly increase your client’s sentence.

If the indictment is complicated, or a conspiracy indictment, I have always found it helpful in that initial interview to outline the indictment. There are a number of computer programs that can assist you in this—such as Casemap and Timemap.

In a multi-defendant indictment, a conversation with the Assistant United States Attorney as to where he/she believes your client falls in the indictment and what he/she believes is your client’s liability (i.e., drug amount, weapons enhancement, etc.) will assist in that initial interview. I would not talk plea agreement issues with the client at the initial interview unless the Assistant United States Attorney has indicated that your client’s cooperation, if early enough, could result in a substantial reduction of sentence.

Another difference in federal courts that the client needs to be advised of is that plea negotiations are for ranges of time under counts of the indictment, and not for a specific amount of time to be served in the vast majority of the cases.

VI. Explain the Risk/Reward Options

Because the guidelines reward an individual for not going to trial, there has been a tremendous decline in federal criminal trials (over 25,000 trials in 1986, the year before the guidelines took effect versus only 5,000 in 2007). Your independent analysis of the guideline calculations will assist the client in making this crucial decision. The attorneys in the Federal Public Defender’s Office often run their guideline calculations by other attorneys in the office prior to presenting them to the client to make sure the client is making an informed, intelligent decision. Running your guideline calculations by an AFPD or other experienced federal criminal practitioner may save you a lot of embarrassment in trying to explain to the client why your calculations are so different (and usually much lower) from the calculations of the federal probation officer in the pre-sentence report.

VII. Be Diligent on Discovery

The bottom line on preparation of your client for either trial or a plea is the extent and the quality of the information in the government’s case. Most courts have a standard discovery order as part of their initial pretrial order or their Local Rules, which require the defense attorney and the prosecutor to work out discovery issues prior to burdening the court. This is not an issue that favors the procrastinator. You need to make your demands for discovery immediately after arraignment (remember, the prosecutor under the Speedy Trial Act is going to be required to bring the defendant to trial within 70 days from the date of arraignment or arrest, so he/she should already have their ducks in a row and be aware of the issues and documents in the case prior to indictment). Document your discovery request, whether by letter or email, as these documents can be attached to a motion to compel to get the discovery you believe you are entitled to. Sit down with another attorney and discuss what you have received in discovery, and what you think the government should have if they had researched their case properly, and ask for that additional material.

If your district does not have a standing discovery order, do not file a form discovery motion. The judges are going to want laser-like requests for material you believe you are entitled to. It doesn’t do much good to ask for autopsy reports in an immigration case.

VIII. Scrutinize the Plea Agreement and Factual Résumé

It is extremely important that you review carefully the language in the plea agreement and the factual résumé, and make sure you have explained to the client the ramifications of each document. The Rule 11 plea colloloquy by the judge is likely to reflect if your client has a real understanding of the documents that he/she has signed. Admissions in the factual résumé to facts not included in the indictment may result in sentencing guideline enhancements. Paragraphs in the plea agreement, such as waiver of appeal, need to be fully understood by the client.

IX. Always, Always, Always Go to the Presentence Report Interview with the Client

The preparation of a presentence report by a federal probation officer is mandatory in most cases where there has been a conviction after trial or plea of guilty to an indictment or information. Unchallenged assertions in the presentence report have the effect of setting in stone the basis for guideline calculations and enhancements. Get a copy of the Form-1 probation interview in advance and go over it with your client. Prepare a written statement of the client’s case ahead of time to give to the probation officer. Go over all of the financial and background information with the client to identify those areas that might be used for a guideline enhancement (i.e., drug use, work history in the United States in an immigration case, etc.). Remember, in the presentence interview, you are a lawyer, not a facilitator, and act accordingly on your client’s behalf.

X. Objections to the Presentence Report and Sentencing Memorandums

There are certain things you are going to be required to do in evaluating any presentence report prepared by the Federal Pro­bation Office. If your client has a prior criminal history, you will need to pull the documents to determine if any sentencing enhancements relative to criminal history are supported by the prior indictment and guilty plea. Remember, the assertions in the presentence report become a factual basis to support sentencing enhancements if not challenged.

Look to the cutting edge of sentencing objections, most of which are based upon cases pending before the Supreme Court that could result in a favorable ruling on behalf of your client (i.e., fast track, Apprendi issues, 924(c) issues, etc.). Most of these current issues can be found at www.fd.org on their sentencing-page link.

Objections to the presentence report go to guideline calculations, and any recommended sentencing enhancements or departures (either upward or downward). The sentencing memorandum serves a different purpose. This allows you to argue outside the guidelines about why a different sentence than one recommended by the guidelines is appropriate for your client. The sentencing memorandum usually addresses variances, which are related to the seven factors under 18 U.S.C. §3553(a), of which the guideline calculation is but one factor.

If you are going to make an objection to the PSR, and you believe you have a solid ground, it is always good practice to inform the probation officer prior to make the objection in writing to see if they would like to amend their report prior to your making the objection.

Since Booker, Kimbrough, Rita, and Spears (among others), the court is aware that it is not bound solely by the guidelines. However, sentencing statistics for Texas districts reflect that in over 85 percent of the cases, the courts tether their sentence to the guidelines. It is the use of the sentencing memorandum and intelligent arguments for variances that allow the court to untether themselves and formulate a sentence for both the offense and the offender that is reasonable and not more than necessary to achieve the goals of 18 U.S.C. §3553(a).

The Don’ts

I. 
Do Not Take the AUSA’s Guideline Calculations as the Gospel

II. 
Do Not Fail to Close the Discovery/Brady Loop Before Advising Your Client on the Advisability of Either Taking a Case to Trial or Entering into a Plea

III. 
Don’t Ever Be Afraid to Ask an Assistant Federal Public Defender or an Experienced Federal Criminal Practitioner for Help

The Prior Conviction and the New Jury: Hide It or Hang It All Out?

As lawyers, we should be used to the notion that there may not always be absolutely right or wrong answers. Such is the case with this topic: There are no right or wrong answers to be seen here—just move along. I am compelled to tell you, in the interest of self-disclosure, that occasionally I allow my life to be at least informed, if not completely governed, by pop culture. Perhaps that makes me ill-suited to address even-handedly this topic in the context1 of punishment retrials.2 At issue is how best to deal with the prior conviction and the new jury: hide it or hang it all out?3

I am reminded of a scene in the 1994 Harrison Ford film “Clear and Present Danger” where it is revealed that the fictional character, Peter Hardin, was laundering money for Colombian drug cartels before his murder. The U.S. president had been friends with Hardin, and his closest advisors counsel him to minimize his acquaintance with Hardin, suggesting that the relationship might not become public, and even if it did, they could effectively downplay the president’s association with Hardin.

Responding to the suggestions that the press won’t find out, the president says: “They will. They always do.” Ryan recommends a different approach: Asked if he and the victim were friends, the president should say they were good friends; asked if they were good friends, the president should say they were lifelong friends. Ryan’s reasoning? “There’s no sense defusing a bomb after it’s already gone off.”

That incredibly powerful statement resonated with me in 1994, especially in light of real-world presidential politics at the time. Almost 20 years later, it still does. There is a certain beauty in owning mistakes and flaws, and it’s something that celebrities constantly fail to understand, advised by people who’ve likely never worked in journalism. If you’re guilty and you’ve been sussed out, admit it. Take the sting out of the issue. There’s no more story after that, and the media moves on.

I suggest the same thing can be true within a limited framework in the context of a punishment retrial. That limited framework is the degree of disclosure we choose to make with respect to prior proceedings: 1) full disclosure, 2) limited disclosure, or 3) no disclosure?

Does counsel pretend that nothing has happened before?

Proponents of #3—the zero disclosure approach—will presumably argue that fear of tainting the jury prohibits disclosure of any prior trial or sentence. Like TEX. R. EVID. 404(b), the jury should be prohibited from deciding the case on anything extraneous—such as a pesky prior trial and death sentence. If the jury is not told about the prior trial and/or death sentence, then they won’t be biased by that knowledge. We cannot risk the jury being predisposed to arrive at a death sentence simply because a prior jury arrived at the same result.

This reminds me of my long-deceased Italian greyhound, Sophie. Sophie was an eminently graceful creature under all circumstances. She was apparently under the misimpression that if she could not see me, then obviously I could not see her. Sophie was never accused of being a particularly bright dog. Needless to say, in any situation where Sophie turned up deserving of discipline, all I ever saw was her backside—not in flight, mind you, but rather simply standing in front of me studiously averting her gaze and avoiding any form of eye contact whatsoever.4

Pretending nothing ever happened was an incredibly dangerous approach for Sophie, because just as entertaining and perplexing as her approach initially was under those circumstances, eventually so, too, was it also enraging. The same thing can and will happen with jurors. Whatever ill certain members of the bar might think of them, the jury is not completely dumb. Even if they don’t know during voir dire why there’s only a punishment hearing and a tremendous time lag between the offense enumerated in the indictment and the trial, they will have figured out the reason by the time they begin deliberations, because during the punishment hearing they will almost always hear evidence of the client’s behavior on death row. Which is as it should be.

Pretending nothing ever happened invites curious jurors to salacious inference. Trust that such inferences will be invariably bad for our client. For example, obviously our client has been on death row for all those other murders he committed, and the State is just finally trying this last one. Or, death row is just where they keep people who might murder witnesses until the State is ready for the trial. Any of a variety of other [bad, bad bad]5 things can and will be inferred.

In addition, we must face the fact that most potential jurors are predisposed toward a death sentence when they walk into the courtroom regardless of what any prior jury decided. If anything, the only way to move them from that position is to accept and explain the fact of the prior sentence. I confess, to me it is difficult to understand or justify no disclosure under any circumstance. The dangers are simply too great, and at the length truth will out.6

Nevertheless, I trust there may be varying opinions.

Where did my client spend the night last night and why?

There is no question that prison is seen as severe punishment by most people.7 For those who do not see it that way, it is our task as capital litigators to root out such beliefs, eliminate them from our case, and see that no person of such beliefs sits in judgment of our client. The more important question tends to be whether or not prison is an effective (i.e., sufficient) punishment.8 In that case, our task becomes to persuade that, yes, under all circumstances following a finding of guilt, prison is sufficient punishment.9

The fact that our client has spent the last x number of years in prison, up to and including last night, is a potential mitigating factor in the eyes of some jurors. We are entitled to discuss those issues with potential jurors, to determine their abilities to consider our individual client’s mitigation case.10 From a practical perspective, incapacitation could also be important to a particular juror; they need to be reassured they will not run into our client at Wal-Mart tonight.

Dealing with the “Googling” juror

My gut-reaction to the potential Googling juror would be to litigate. As a very young lawyer in the not-so-distant past, I was awaiting an elevator on the fourth floor of the Potter County Courts Building and was appalled to overhear jurors in an ongoing personal injury case discuss exactly what they thought of the case and how they would vote. My naïveté showed, and in righteous indignation, I accosted the trial lawyers to apprise them of my tale of misconduct. They asked me to inform the judge, and we proceeded to have a full-blown hearing.

The Judge questioned each juror individually-on the record, in the presence of trial counsel, with me there, too. “Mr./Mrs. Juror, I advised and ordered you at the beginning of the proceeding not to discuss this case with anyone, including your fellow jurors, prior to deliberation. I need to ask you if you think you might have done anything against what I asked you to do?” What happened was telling: out of the four jurors I identified, two completely denied having the conversation I witnessed. One admitted misconduct and was appropriately contrite. The last, because of the way the Court phrased the question, immediately pulled out his cell phone and offered it up with the explanation, “Yes, Judge, I have sent some inappropriate text messages about the proceeding.”11

Wow, and that wasn’t even what he was being asked about! That experience, along with a particularly bad one involving a juror and a Bible in the deliberation room, have led me to litigate in advance of trial the issue of potential outside influences, requesting that jurors leave at home everything they might ordinarily be inclined to travel with on a day-to-day basis. After all, many jurors who are used to Googling, texting and Tweeting all day find it hard to change their behavior while on jury duty, and a fair trial would seem to demand that jurors leave their online habits at the courtroom door.12

There are some creative ways to deal with the Googling juror that might be effective. For example, experimental jury charges and instructions, extended voir dire questions, and jury empowerment all seem to be valid and potentially effective methods to mitigate the Googling juror.13

However, as I was trying to track down some of the entertaining stories about Googling jurors14 with which to keep you engaged, I had an epiphany, thanks to a blogger from Massachusetts named Edward P. Schwartz. Schwartz rooted out my hypocrisy. It is fear which leads to the conclusion that pretrial measures should be taken to “unplug” jurors-an idea that is inconsistent with my personal philosophy.15

Schwartz suggests a different approach:

Jurors swarm the net

Recent entry for the smallest surprise of the year award: jurors are online.

Everyone is online. So, of course, people summoned for jury duty are, too. Jury duty can be very tedious. There is a lot of sitting around waiting for things to happen. The local sports page can keep you occupied for only so long. So, whip out your iPhone or Blackberry and see what’s what. Google the defendant. Google the lawyer. Google the judge! Post a tweet (Most juror posts run along the lines of “I’m stuck on jury duty and boy am I bored.”).

The problem has become so prevalent that there was a front page story about it in today’s New York Times. So, what are we going to do about it?

Anyone who understands psychology at all knows that the solution is NOT to take away juror’s toys and slap their hands with rulers if they disobey. We know from decades of research about judicial instructions (particularly the limiting kind) that judicial admonitions without proper reasoning tends to incite “reactance” on the part of jurors. That is, when jurors’ freedom to act is taken away by the court, those jurors tend to rebel and engage in the prohibited behavior more than had they not been warned in the first place. So, the key is to accompany whatever solution is chosen with careful, logical and respectful explanations to the jurors.

With these considerations in mind, there seem to be fairly straightforward solutions to the two main types of juror internet activity that concern lawyers and judges.

Juror Twittering and Blogging

There is nothing wrong with a juror wanting to chronicle her experience on jury duty. The problem is when she posts her experiences while the trial is ongoing. Outgoing messages don’t pose too great a risk of contaminating the trial, unless one is concerned that the desire to post something sensational will cause the juror to alter her behavior in the jury room. The bigger problem is the possibility that such posts will generate online responses, providing the juror with extra-legal contact with facts and opinions not in evidence. Another emerging problem is the ability of an attorney to read the posts of jurors in her own cases during the trial.

General pre-trial jury instructions and those ever-entertaining “What is a juror?” videos should be edited to make it clear to those called for jury duty that they are not permitted to post information about their experiences online until after their service has ended. These instructions should make it clear that this prohibition is consistent with the one against discussing a case with others. My educated guess is that most juror bloggers do not realize that their behavior is inappropriate. Very few people need to blog so badly that they will do so after being told by a bailiff not to. These instructions should also make it clear that jurors are, of course, permitted to write whatever they choose about their experiences after their jury service is over.

Online research by serving jurors

Six hundred years ago this would not have been a problem (not just because there were no computers). During the early period of the Anglo-American jury system, jurors were selected from the locality of an alleged crime or dispute precisely so that they could come to court with local knowledge about the events in dispute. If the jurors did not feel that they understood the case well enough, they were expected to investigate it on their own! They were to ask other villagers about what they saw or heard. There were rarely witnesses at trial, so the jurors had to be “self-informing.”

Well, we have now almost come full circle. We live in a world full of people skeptical of the motives of everyone involved in the law. We don’t trust the parties. We don’t trust the lawyers. We don’t even trust the judges to be impartial anymore. Given the instant availability of information online, it is no wonder that jurors are tempted to “fact check” their cases on Google. In a recent Florida case that resulted in a mistrial, the judge discovered that a juror had conducted unauthorized online research. He then voir dired the rest of the jurors to find out who had been exposed to what this juror had found out. To the judge’s amazement and horror, he discovered that eight other jurors had also conducted research online. He had no choice but to declare a mistrial.

What should we do? Well, first of all, every single judge should pre-instruct every single jury not to conduct online research. Such an instruction must be accompanied by a well-crafted explanation of why such a rule is necessary. Second, lawyers should do their homework. If the attorneys in a case cross all their t’s and dot all their i’s, they can substantially reduce the temptation for jurors to look elsewhere for answers. Do some pre-trial research. Find out what is likely to matter to jurors. Find out what is likely to confuse them. Give them the answers they need.

This brings me to a procedural “innovation” that I think can mitigate the temptation for jurors to conduct unauthorized online research. More and more jurisdictions allow jurors to ask questions of witnesses during trial. Judges should not grudgingly accept this intrusion into their total control of the courtroom. Rather, judges should welcome this as an opportunity to satisfy the curiosities of jurors within the confines of the courtroom. Better to let the parties address jurors’ questions during the trial than risk those jurors searching for answers elsewhere.

So, at the same time that the judge tells the jurors not to consult any outside sources regarding the trial, she should encourage them to bring any outstanding questions to her attention. The message should be “We are here to help you make the best-informed decision possible. We’ll get you the answers you need.”

I think that jurors who hear that message will be more likely to stay off Google during trial. Afterwards…. well, that’s another topic for another day.

The Schwartz approach16 appears to me to be a novel one, which deals with the issue directly and has the potential to take some of the sting out of what jurors might otherwise find out on their own, regardless of the level of prior remonstration. It is an approach that embraces our fears, and, therefore, I commend it to you as an alternative possibility to the “take no prisoners” approach to unplugging jurors-potential or otherwise.

Specific voir dire themes and questions

I suggest spending significant time in advance of trial developing voir dire themes consistent with the approach of disclosure. For example, I recommend pushing truth, justice, the American way, mom and apple pie. Seriously. The virtues of the justice system are long extolled, and one of the greatest things about the justice system in our society is the mechanism to right great wrongs. This is our jury’s opportunity to be a part of that process-to correct a mistake.17

An endless number of general themes can be developed consistent with sending the message that a prior jury arrived at the wrong result.18

The Colorado Method of Jury Selection lends itself nicely to a theory consistent with disclosure. Under the Colorado Method, the goal is to select jurors strictly based upon their views of the death penalty. Inherent in that goal is to challenge successfully as many disqualified jurors as possible. Given that goal-to get rid of as many “bad” veniremen as possible-the punishment retrial case can and should be made it sound as bad as possible. Each potential juror must know and understand that twelve (12) of their “peers” previously heard the same guilt/innocence evidence and voted for death. The potential juror should know our client has been on death row for “X” years since then. If knowledge of either factor biases them toward a death sentence, challenge for cause.

Alternatively, in consideration of mitigation, we can try to get agreement that good behavior while in prison (Skipper evidence) during this time is not something they would meaningfully consider to determine an appropriate sentence. Pressure the district attorney and/or the Judge to emphasize to jurors that this type of information is something they must be able to consider. If we can secure agreement from a potential juror that because twelve (12) of their “peers” believed death was the appropriate sentence, so death will also be their default sentence unless the defendant convinces them otherwise, we can challenge for cause. The district attorney and/or the Judge should be pressured to require that potential jurors be able to decide the appropriate sentence with no preconceived notions.

By the way, lack of disclosure forfeits these valuable challenges for cause.

Are these jurors able to tell the first jury they got it wrong?

Again, consistent with the Colorado Method, jurors should be sought with moral courage and the ability to arrive at their own individual, personal moral judgments, regardless of whether that judgment conforms to another jury that previously decided the case; that jury got it wrong. We demand a different result of them. Make no secret about it; instead, trumpet it from the rooftops.

Conclusion/Disclaimer

I apologize if any of the positions I take in this article offend anyone. Originally, it was intended as a point-counterpoint piece. However, as I wrote, it evolved into a position paper. I freely admit I could be completely wrong and will gladly listen to, and include in future iterations of this article, differing viewpoints or other ideas favoring non-disclosure not addressed herein—should you choose to contact me to discuss them. In the meantime, I suggest we swing wide the doors of Munoz19 and embrace the power of an urgently spastic bladder.20

Isn’t disclosure powerful?

Notes

1. Muniz v. State, 851 S.W.2d 238, 259 (Tex. Crim. App. 1993).

2. My personal motto is “Take it, own it, take it to the next level”—a version of “lemons to lemonade” on steroids. Given lemons, let’s make Limoncello.

3. It should be noted at the outset that in a completely informal, non-scientific survey conducted by the author of approximately sixty (60) mostly non-capital public defenders at a seminar in conjunction with Rusty Duncan in June 2010, an overwhelming majority favored non-disclosure of any prior trial and sentence.

4. A better pop-culture reference: Simply because the Wizard pretends he is not behind the curtain does not mean he isn’t behind the curtain.

5. R.I.P. crab-boat Cornelia Marie Captain Phil Harris.

6. Shakespeare’s The Merchant of Venice, 1596.

7. Stuart Henry, “On the Effectiveness of Prison as Punishment,” Incarceration Nation: The Warehousing of America’s Poor, October 24, 2003.

8. Id.

9. For the purposes of brevity, and in lieu of devolving into a purely philosophical pedagogical exercise, we deal in this section strictly with the case of the client for whom evidence of guilt is not scarce.

10. Tennard v. Dretke, 124 S. Ct. 2562, 2570 (2004).

11. Nothing happened to any of the offending jurors—the trial proceeded; justice was served.

12. Susan Macpherson & Beth Bonora, “The Wired Juror, Unplugged,” Trial, November 2010, at 40.

13. Id.

14. See, e.g., Ken Strutin, Juror Behavior in the Information Age, LLRX.COM (http://www.llrx.com/features/jurorbehavior.htm), December 26, 2010.

15. See n.2, supra.

16. Reprinted here in its entirety by permission from: http://juryboxblog
.blogspot.com/2009/03/remedy-for-googling-juror-just-ask.html.

17. “Is the justice system perfect?” “Is it important to correct mistakes?” “How do you feel about that?” etc.

18. Here is where disclosure works to our advantage whether you are a strict proponent of the Colorado Method of Jury Selection or somewhere in between. General questions to develop case-specific retrial themes can be asked quite effectively in conjunction with insulation/isolation questions to teach respect.

19. See n.1 supra.

20. Gerry Spence, Win Your Case 50 (2005).

Alternatives Sentencing and a Means of Reducing Recidivism

Introduction

This article is intended to offer suggestions in alternative sentencing which have proven successful during my time on the bench. The catalyst to writing this article came as a result of receiving information from an investigative reporter on November 16, 2010, delineating the plea, sentence, adjudication, revocation, and prison sentence, if any, in every burglary case filed in my court from January 2009 through July 2010. After an extensive search of the Harris County Justice Information Management System (JIMS), the reporter found that in the 177th Criminal District Court, 10.8 percent of all burglary cases resulted in deferred-adjudication community supervision from July 2007 through December 2008. After I took the bench, that percentage grew to 39.6 percent. Defendants were granted a deferred probation in 79 out of 199 burglary cases filed during the time of the study. Of those 79 defendants granted a deferred probation, 69 were in compliance and successfully completing or had successfully completed their community supervision.

The question is whether sending defendants to some form of treatment rather than locking them up in the Texas Department of Criminal Justice (TDCJ) is an effective improvement in terms of sentencing alternatives. Alternatives to prison may be appropriate in a myriad of situations, including, but not limited to, defendants with serious mental health issues (hence the birth of the Mental Health Courts); those suffering from Post Traumatic Stress Disorder occasioned by their military service during war time (hence the birth of the Military Court); and those suffering from drug addiction and alcoholism (pervasive in all courts). This article centers on those defendants with substance abuse problems, including both drug addiction and alcoholism.

Determining When Alternatives to Prison Are Appropriate for Defendants with Substance Abuse Problems

The first requirement is that it must be shown the defendant has an actual substance abuse problem. This includes everything from alcohol and marijuana to cocaine and heroin. Additionally, there must be some indication the individual desires to quit drinking or using, although this is not an absolute bar to sending someone to treatment, of some form, rather than prison. All 79 defendants granted a deferred underwent an evaluation called a “Level of Service Inventory—Revised” (LSIR).

The LSIR was developed by Texas Christian University’s School for the Study of Addiction and Alcoholism. It is the best tool available to judges to evaluate a particular defendant’s needs and risks, especially in the area of substance abuse. Specifically, the LSIR allows a sentencing judge to consider a defendant’s criminal history, education and employment background, financial situation, family and marital history, accommodation, leisure and recreation time, the companions he keeps, alcohol and drug problems, emotional and personal problems, and, finally, their attitudes and orientation toward society and crime in general. These areas of risk and need are scored from very low to very high, with low, medium, and high in between. Based on the results of the LSIR, the evaluator can make a recommendation as to the best course of action, short of imprisonment, available for a particular defendant.

A judge then can make a more informed decision as to what course of action is best for the defendant and society as a whole, including incarceration in the Texas Department of Criminal Justice (TDCJ). It should be noted the LSIR is primarily utilized to determine whether a defendant has a substance abuse problem and the level of treatment needed in order to provide the best opportunity for success while on community supervision. The other areas of concern are secondary to the substance abuse issue because they are components that help explain a particular defendant’s substance abuse level and assist in determining what type of program, if any, to place a particular defendant in—as well as where to place a defendant upon completion of treatment, assuming treatment is deemed appropriate.

In the 177th, in the greater majority of instances, the LSIR was performed only after the defendant entered a plea of guilty to the offense. Additionally, again, almost without exception, no defendant was granted a deferred probation unless the defendant demonstrated a history of drug or alcohol problems.1 If the LSIR concluded the defendant had a substance abuse problem, that defendant was usually granted a deferred and was required to complete some type of treatment program—including in-patient treatment followed by rigorous Alcoholics Anonymous (AA) meeting attendance and completion of all 12 Steps, out-patient treatment followed by the above-mentioned AA attendance and step work, or simply sending them to AA with the required attendance and step work.

There are a number of reasons for granting a deferred probation to an addict or alcoholic. First, a court can require the defendant to attend and successfully complete a treatment program for his or her substance abuse problem. This addresses the defendant’s criminal behavior at its source: his or her substance abuse problem. If the underlying cause of the behavior is addressed, the chance the defendant will reoffend is reduced. Second, if the defendant violates his or her community supervision while on deferred adjudication, the full range of punishment is available in assessing a prison sentence.

Is Such Alternative Sentencing Effective?

Is alternative sentencing for substance abusers effective? The short answer is yes. The most impressive aspect of the data provided showed that out of 79 defendants placed on deferred probation for burglary—who were required to complete some course of treatment, including solely AA meetings and step work—only ten were adjudicated guilty and sent to prison. The vast majority of cases where there was an adjudication of guilt and prison sentence were the result of a new law violation.

The other defendants who have had motions to adjudicate filed have been for technical violations, such as not attending AA meetings, failing to complete their step work as ordered, failing to perform community service as directed, and failing to pay their fines and fees as ordered. Generally speaking, these defendants were ordered to serve a period of time in jail and then continue their community supervision. The remaining 69 defendants, with the exception of those just mentioned, have successfully fulfilled their obligations while on community supervision or are currently successfully fulfilling these obligations. Most importantly, they are accomplishing the entire point of granting them a deferred probation in the first place: They are staying clean and sober through their own efforts toward recovery from drug addiction and alcoholism.

What Makes Alternative Sentencing Successful?

What makes alternative sentencing successful? The secret to success for a defendant with a substance abuse problem is long-term, regular attendance at AA meetings and completing the 12 Steps of the AA Program. Although a detailed discussion of the AA Program and the specifics of the 12 Steps are beyond the scope of this article, reference is made to the Big Book of Alcoholics Anonymous when doing so is helpful for the reader. The basis of their success is that each defendant, as previously discussed, is required—whether the LSIR recommends in-patient treatment, outpatient treatment or simply attending AA meetings—to attend meetings for a sustained period of time and to complete all 12 Steps of the AA Program.

It should be noted, in order to dispel any misconceptions, AA is not a religious organization. Anonymous, The Big Book of Alcoholics Anonymous, at 565 (3d ed. 1976)(hereinafter the Big Book). The only requirement for membership in AA is a desire to stop drinking (and using). Id. at 565. It is not required that a “member” believe in any particular deity or be affiliated with any certain religious faith or organization. The word “God” is used in the most general sense possible. The “member” is free to believe in any power greater than himself or herself. Id. at 12, 46–47, 50, 53, 55. In other words, they are free to believe in a “God” of their own understanding, regardless of what that understanding may be. Perhaps it is simply the group as a whole, the power of the universe or Mother Nature. Id. at 59. It may, however, include a specific faith in a particular religious organization. Id. at 87. It should also be pointed out the requirements placed on a defendant were born out of a combination of the contents of the Big Book.

Each defendant is required to attend a meeting a day, every day, for 180 days. The reason for rigorous attendance is three-fold. First, it allows the defendant to develop a routine of attending meetings with people suffering from the same malady—alcoholism or addiction. In this way, they can begin to see clearly not only that they have a problem, assuming they had any doubt or denial in the beginning; they also begin to see that they are not alone or unique, and that there is a solution to their problem. Often, addicts and alcoholics fail to recognize the nature of their substance abuse problem. They view the problem as outside themselves, and if their family, friends, and society would just leave them alone or do as they wish, they would have no problem. See id. at 61–62. When a defendant with this mindset is forced to attend meetings regularly for six months, they have an opportunity to begin to recognize that the problem is within them, manifested in the abuse of drugs and alcohol. Id.

Second, it allows the defendant to make new friends and acquaintances who are drug- and alcohol-free and have a desire to stay that way. It removes them, at least for a couple of hours a day, from their old friends and stomping grounds where drugs and alcohol might be readily available, accepted, and even encouraged. Although a defendant may go back to such an environment after every meeting, the establishment of new friends and acquaintances opens the door to allow them to make the change in companions necessary for long-term sobriety.

Finally, daily meeting attendance allows the defendant to experience life activities without the use of drugs and alcohol. They begin to discover that having a good time does not need to include alcohol or drugs. Id. at 164. Equally, if not more importantly, they see others go through devastating life experiences, such as loss of family and friends, divorce, loss of jobs, and other low points in life, without having to resort to alcohol and drugs to escape such problems. Id. at 98. This, in turn, allows them to understand they can do the same. In other words, in order to recover, each defendant must change their playmates, playthings, and playgrounds. Without actually experiencing the happiness and freedom of a drug- and alcohol-free life, an addict or alcoholic can rarely envision life without drugs and alcohol.

Most importantly, it has been proven time and again that “one alcoholic [can] affect another as no nonalcoholic [can].” Id. at xvi–xvii. It is thus imperative that a defendant with a substance abuse problem be exposed to recovering addicts and alcoholics because they can relate to the defendant in a way no one else can. Id. Requiring a defendant to attend one or two AA meetings a week for three months is wholly insufficient. Such limited exposure to AA and its participants, especially those with long-term sobriety, cannot accomplish the goal of changing the defendant’s playmates, playgrounds, and playthings.

Each defendant must also complete all 12 Steps of the AA Program. Recovery from drug and alcohol abuse comes as a direct result of working the Steps. In AA, as with all other 12 Step organizations, the “suggested [ ] plan of recovery” is as follows:2

1.  We admitted we were powerless over alcohol [and drugs]—that our lives had become unmanageable.

2.  Came to believe that a Power greater than ourselves could restore us to sanity.

3.  Made a decision to turn our will and our lives over to the care of God as we understood Him.

4.  Made a searching and fearless moral inventory of ourselves.

5.  Admitted to God, to ourselves, and to another human being the exact nature of our wrongs.

6.  Were entirely ready to have God remove all these defects of character.

7.  Humbly asked Him to remove our shortcomings.

8.  Made a list of all persons we had harmed and became willing to make amends to them all.

9.  Made direct amends wherever possible, except when to do so would injure them or others.

10.  Continued to take personal inventory and when we were wrong promptly admitted it.

11.  Sought through prayer and meditation to improve our conscious contact with God as we understood Him, praying only for the knowledge of His will for us and the power to carry that out.

12.  Having had a spiritual awakening as the result of these steps, we tried to carry this message to alcoholics [and addicts], and to practice these principles in all our affairs.

Defendants are given 90 days to complete the Fourth Step and 180 days to complete all 12 Steps. Each Defendant must show proof of their completion of the Fourth Step to their Community Supervision Officer (CSO). They must provide proof to their CSO, prior to the expiration of the 180 days, of their completion of all 12 Steps. This must be done via a letter from their sponsor (a person who has worked all 12 Steps and is taking the defendant through the 12 Steps) verifying they have completed all their Step work within the time required. Once the defendant has completed the requirement that he or she attend a meeting a day, every day, for 180 days, they must attend no less than five meetings per week for the duration of their community supervision or until further order of the Court. Lastly, as a sanction for a defendant not attending AA meetings, a defendant is required to serve one to three days in jail for each meeting missed and make up the missed meetings on the back end of the 180 meetings originally ordered.

In-Patient Treatment Alone, Without AA as a Continued Course of Recovery, Is Not Sufficient3

The latest report from Harris County Community Supervision and Corrections Department (HCCSCD), CJAD & HCCSCD Residential Outcome Study, 2011, shows an average successful completion rate of approximately 85 percent. However, approximately 55 percent of those who successfully complete one of the in-patient programs results in an adjudication of their guilt, followed by incarceration, or a revocation of their community supervision followed by incarceration. Upon completion of in-patient treatment, the vast majority of these defendants were not ordered to attend AA or an analogous 12 Step program and complete all 12 Steps of any such program, or were ordered to attend a minimal number of meetings for a short period of time.

It is not, therefore, surprising these defendants ended up incarcerated. They had neither a continuing course of treatment during community supervision nor a plan of recovery after treatment, which in most cases is a lifetime commitment. Following the basic outline for a program of recovery has resulted in a much higher success rate out of the 177th District Court. Year to date, beginning January 1, 2009, the average number of individuals who complete a county-funded inpatient treatment program, just 25 percent failed to complete their community supervision and were sent to TDCJ. In other words, the success rate for individuals who were ordered to an inpatient program from the 177th is, as of this writing, 75 percent—as opposed to the average among the rest of the Criminal District Courts of 45 percent.

The 25 percent of failures is not a great number. In fact, it is the author’s opinion it should be significantly lower. The point, however, is that more needs to be done by the judiciary to raise the number of successful completions of community supervision. A discussion of the CJAD & HCCSCD Residential Outcome Study, 2011, is beyond the scope of this article. However, a thorough review of the study is highly recommended.

Conclusion

The data I was provided showed 69 people are receiving help who otherwise would be sitting in prison receiving no help for their addiction to drugs and alcohol. These same defendants would be highly likely to commit new offenses following their release from prison. Ultimately, the data clearly demonstrates that alternative sentencing for substance abusers is much more effective than simply locking them away, only to have them reoffend after their release from prison. Finally, and most importantly, given the recent budget cuts, it should be emphasized the cost of sending a defendant to AA, as described above, is zero dollars and zero cents. Ironically, the most important aspect of successful completion of probation is also the least costly on the State and the County.4

Notes

1. This sentence refers only to those cases included in the data I was provided. Out of the 199 burglary cases analyzed, 79 were granted a deferred. All 79 were subjected to an LSIR that showed them to have a substance abuse problem. So, in that regard, no one without a substance abuse problem was granted a deferred—out of that group of offenders.

When an individual did not have a substance abuse problem or demonstrated no desire to get clean and sober, then they received, in most instances, a sentence of incarceration. It should be made clear, though, the individuals who were sentenced to some form of incarceration were so sentenced because they were steadfast about not having a drug or alcohol problem or simply wanted to do their time rather than be subjected to the rigors of my conditions of community supervision.

I do not, however, have any “hard-’n’-fast” rules regarding incarceration versus community supervision. I take each case on its own merits. Thus, there are some individuals who receive a deferred sentence who do not have a substance abuse problem. These cases, however, are rare in comparison to those with a substance abuse problem. This is so because of the sheer number of people with drug and alcohol problems who appear before me compared to those that do not suffer from such problems.

2. The 12 Steps as set forth on page 58 of the Big Book are general in nature. Actually working the Steps requires a line-by-line study of the Preface, called the Doctor’s Opinion, and the first 164 pages of the book.

3. See CJAD & HCCSCD Residential Outcome Study, 2011.

4. For the three years studied, of the total number of individuals who successfully completed an inpatient program out of the 177th Criminal District Court, 75% also successfully completed their community supervision. As of this writing, the average for all Harris County Criminal District Courts who sent individuals to an inpatient treatment facility: only 45% successfully completed their community supervision. The difference in success rates is staggering.

TCDLA Works with SBOT to Recognize Criminal Defense Attorneys’ Pro Bono Work

Subject: Reporting Pro Bono Hours: It’s Easy & Fun—Really!

We are asking all criminal defense attorneys to please report your pro bono hours—yes, criminal defense lawyers can and should report! It’s easy and—here’s the fun and heartwarming part—it helps efforts to secure funding for indigent defense and civil legal service providers. Really!

Why is it so important to report my pro bono hours?

Reporting your pro bono hours helps in the effort to increase funding for indigent defense and civil legal service providers in Texas. Each legislative session, representatives and senators want to know that lawyers are doing their part to help low-income Texans. We know you already are doing a ton of pro bono but need the data to show it. These legislators are tough cookies. They want the proof. Plus, we’d like to show off what superstars Texas lawyers are to the rest of the world. (It always comes down to that little thing we lawyers thrive on: COMPETITION, doesn’t it?)

Reporting and tracking your pro bono hours is EASY!

Log on to “My Bar Page” on the State Bar website, www.texasbar.com/mybarpage. On the left side of the page, click on “Report Pro Bono Hours.” Attorneys who report 75 hours or more of pro bono service a year will be invited to join the State Bar’s Pro Bono College (www.texasbar.com/probonocollege), which is an honorary society for legal professionals committed to pro bono. If you need help logging in to My Bar Page, please email or call (800)204-2222, ext. 6836.

Here are the fine print details……

What counts as pro bono?

1. The direct provision of legal services to the poor without an expectation of compensation, or at a substantially reduced fee.

2. Services without a fee, or at a substantially reduced fee, related to simplifying the legal process for, or increasing the availability and qualify of, legal services to poor persons.

3. Legal services without a fee, or at a substantially reduced fee, rendered to charitable, public interest organizations with respect to matters or projects designed predominantly to address the needs of poor persons.

4. Legislative, administrative or systems advocacy services without a fee, or at a substantially reduced fee, provided on behalf of poor persons.

5. Unsolicited, involuntary appointed representation of indigents in criminal and civil matters. (Superseded by the Fair Defense Act regarding appointment in criminal matters, since appointments are no longer involuntary. However, such appointments may count as “substantially reduced fee” work.)

How is “poor” defined?

The State Bar’s pro bono policy does not define “poor.” The decision is left to the individual program or attorneys. Many programs, such as those funded by the Legal Services Corporation or the Texas Access to Justice Foundation (IOLTA), define “poor” as 125% of the federal poverty guidelines (e.g., a family of four must not earn more than $27,938 and an individual must not earn more than $13,613). Clients referred by an organized pro bono project generally have been screened for income eligibility according to local guidelines. Attorneys who accept independent pro bono cases are encouraged to use the poverty guidelines, but they may also use their own judgment regarding who is poor.

Do legal aid staff attorney, public defenders, and prosecutors count their work time as pro bono?

No. Although the services are free to the clients, the attorneys are paid for their work at salaries they have accepted. However, if these attorneys provide volunteer legal assistance to the poor outside of their regular work, they may report those hours as pro bono services.

What is the definition of “substantially reduced fee”?

The pro bono policy does not specifically define “substantially reduced fee.” However, Lawyer Referral Services that offer reduced fee panels for low-income people often use $50/hr as the maximum that panel lawyers may charge. Lawyers doing reduced fee work may use that fee or may use their own judgment in setting the fee.

If substantially reduced fees are received for appointments in criminal matters, do the services provided still qualify under the pro bono policy?

Yes, since 2000, substantially reduced fee work for poor people has been included in the definition of legal services to the poor, whether or not it involves a court appointment. Free and reduced free services are distinguished from each other for reporting purposes.

Are there services in addition to representing a criminal defendant for free or for a substantially reduced fee that criminal law attorneys may count as pro bono?

Yes, criminal law attorneys can play an important role in “preventive” law. Many preteens, juveniles, and their families are unfamiliar with the juvenile justice system until they are involved in the system. Community education, e.g., speaking at schools or community centers, about the juvenile justice system counts as pro bono if the audience is predominately poor.

If you have any questions or need additional information on the pro bono policy please see www.texasbar.com/AM/Template.cfm?Section=Pro_Bono_Policies_and_FAQs or contact the Legal Services Support Division at or 1-800-204-2222, ext. 1855.

December 2011 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
22 | Do’s (Mostly) and Don’ts (A Few) in Taking Federal Criminal Appointments – By Richard Anderson
27 | The Prior Conviction and the New Jury: Hide It or Hang It All Out? – By Maxwell Peck
32 | Alternatives Sentencing and a Means of Reducing Recidivism – By Judge Kevin Fine
42 | TCDLA Works with SBOT to Recognize Criminal Defense Attorneys Pro Bono Work

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
36 | Significant Decisions Report

President’s Message: Seminars Do Not Grow on Trees – By J. Gary Trichter

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The days of being a generalist in criminal law are long gone. Today, to be effective and professional, the criminal defense practitioner must at least know immigration law, many aspects of forensic science and appellate law. Keeping up with case and statutory law, we lawyers have a never ending ethical duty to stay current. Enter TCDLA!

Your Association’s primary duties have been and are to make it easier for you to not only keep up with the law, but also to improve trial skills and techniques. By the end of 2011, TCDLA and CDLP will have put on 46 seminars, totaling 63,119 CLE hours, having taught approximately 5,756 lawyers. Indeed, our Association is the third-busiest CLE provider in Texas with only the State Bar (#1) and the University of Texas (#2) doing more. It is my belief that we are the number one provider in criminal law.

The time and effort the home staff, your brother and sister VOLUNTEER course directors and speakers put in to making our seminars successes is, in terms of dollars, invaluable. Think of the many and varied CLE programs that have been available to you. Our CLE ranges from Capital Murder, to voir dire, to trial skills, to DWI, to forensics, to federal law, to immigration, to eyewitness identification, to innocence, to appellate law, etc.? For me, as a DWI specialist, I have to keep up on physics, spectrometry, chromatography, physiology, anatomy, optomology, nuerology, pharmacology, toxicology, chemistry, biology, and statistics. I also need to have a thorough knowledge of Doppler Radar and Lidar, breath testing devices, and the gas chromatograph. Fortunately, our Association provides our DWI practitioners all of the above practice areas in very cost-effective seminars at numerous convenient locations. Equal quality convenient seminars are available to our other criminal law disciplines, too.

Our seminar aim is to identify needed and new educational topics and then to bring them to you. We also strive to do this in our Voice, both in the magazine and online. Your TCDLA is always looking for motivated VOLUNTEERS to help us help you. That said, if you have a desire to present on a topic at one of our seminars , then I invite you to contact Joseph Martinez, our executive director, and tell him of your interest. He will put you in touch with one of our course directors for you to further explore your interest. Further, if you have an interest in writing an article, a column, or a blog for the Voice, then I encourage you to contact our editor, Greg Westfall.

As your president, I ask you to consider being more involved in TCDLA—after all, it is YOUR ASSOCIATION. Consider speaking or writing for us. On the flip side, I ask that you make a special effort to thank and appreciate YOUR VOLUNTEER course directors, speakers, and writers for their past and continuing contributions and generosity. On the topic of recognizing good work and VOLUNTEERS, our SDR editors, Kathleen Nacozy, Tim Crooks, and Chris Cheatham, also need to be thanked for their regular case updates. Note, too, their user-friendly change (or soon to be changed) SDR format.

In closing, please remember that our seminars do not grow on trees. Absent our highly professional home staff and the generosity of your brother and sister VOLUNTEERS, your TCDLA cannot continue to provide you with the quality products you need. And so, take a minute to say “thank you!” They will appreciate more than you know.

J. Gary Trichter
Your President

Executive Director’s Perspective: Ten Years in the Making – By Joseph A. Martinez

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Thanks to our course directors Troy McKinney (Houston) and in particular Jimmy Gonzales (Edinburg), Public Defender Hidalgo County, we had 68 attendees at our Public Defender DWI seminar held in Edinburg. Special thanks to our speakers, Gary Trichter (Bandera), Bennie Ray (Austin), and Doug Murphy (Houston). Special thanks also to the National College for DUI Defense, co-sponsor for the seminar. This one of three co-sponsored seminars focused on providing public defenders in Texas with DWI training.

Special thanks to our course directors, Ed Stapleton (Brownsville) and Rick Wardroup (Lubbock), for our Capital Litigation for the Defense held in South Padre Island. Thanks to their efforts, we had 31 attendees.

John Ackerman (Sunrise Beach) is our course director for TCDLA’s first 4-day Psychodrama Program at the Round Top Festival Institute January 11–14, 2012. Only 60 lawyers will be accepted, and we are already almost full. Tuition is $750 per person. Public Defenders are covered by the CDLP grant. TCDLA, CDLP, and TCDLEI are all providing funds for this unique training event. There will be no onsite registration. Please see our website for more information.

On November 2 of this year, I celebrated 10 years as Executive Director for TCDLA. My wife Bertha and I are honored to have served the membership these past 10 years. I thank the presidents who I have served under. I thank the board of directors for their faith in me. I thank each and every member for their support. I thank the TCDLA staff—in particular Melissa Schank, Assistant Executive Director—for their dedication to TCDLA.

In my 10 years, I have come to a better understanding of the complexities of how to arrive at justice for those accused of a crime in Texas. I have a profound respect for our members who on a daily basis put all their intellectual, physical, emotional, and psychological capacities to defending their clients. I am humbled to say that I work for 3,200 soldiers in the army of justice. Bertha and I look forward to many more years in humble service to the TCLDA membership.

The 36th Annual Texas Criminal Trial College to be held in Huntsville March 18–23, 2012. We encourage lawyers with fewer than 5 years of criminal trial experience to make application. There will be 80 lawyers accepted. Lydia Clay-Jackson, Dean of Students, will make the admission decisions. Tim Evans, Dean of Faculty, makes the decision on who is chosen to be a faculty member. The Texas Criminal Trial College application is on the TCDLA website and in this issue. The deadline is noon, January 20, 2012 .

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 associate course directors Sharon Curtis, Sarah Roland, and Marjorie Bachman. The theme will be “Ridin’ for Justice—Celebrating 25 Years.” It is a cowboy theme. A fun run and other healthy life-style options will be available.

TCDLA wishes a happy and joyful Holiday Season to all of its members and their families.

Good verdicts to all.

Editor’s Comment: 100,000 Views – By Greg Westfall

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Well, it’s the last issue of Voice for the Defense for 2011. I wanted to update you all on what the year has brought.

A year ago, we were a print-only publication with a circulation of between three and four thousand. We sent a free copy to all judges. Otherwise, our members were our readership. We struggled for articles.

What a difference a year makes.

February 10, 2011, the Voice Online started. The idea for the Voice Online was born in Huntsville during the 2009 Texas Criminal Trial College. Over the course of the next several months, we worked on the idea. We wanted all the archives to be online. We wanted the site searchable. We wanted a blog. We wanted a much broader audience. We have done all those things and more.

We still have a print publication that has the same circulation. But we are much bigger than that now. We have reached a point where Voice Online averages over 2,000 unique visitors per month. Since February 10, Voice Online has had over 100,000 page views and we are closing in on a half a million hits. A “unique visitor” is only counted once per month, so that means over 2,000 different people currently look at over 10,000 pages each month. If you search “Voice for the Defense” in Google or Yahoo, we come up in the number one position. We have a Facebook page that has 198 fans so far that also comes up in the number three slot on Google. Note that we have not done anything to increase our visibility on the search engines. It has taken care of itself because of the number of users. We are off to a great start. I would like to recognize and thank Melissa Schank and Craig Hattersley for keeping us on track and sweating me each month for my column. Stacy Clifford has done a great job with the site and he is extremely responsive, which I deeply appreciate.

I would also like to thank Joseph Martinez and our Board of Directors for trusting us enough to give us the money to get it all done. We came in pretty well under our budget of $10,000, but still, that’s a bunch of money these days.

I would like to give a special thanks to the authors and columnists who have taken the time to contribute to our publication.

I also wanted to note a curious side-effect. It used to be that each month we scrounged for articles. We have converted more than one seminar paper to an article in our days. But we now have a surplus of articles—great articles, by and large—and we get more all the time. It is hard to know exactly what the reason for that is. Gary Trichter has been able to convince several people to submit articles, and they are always good. By the way, Gary, I appreciate that. But that can’t explain all of it, I don’t think. And I don’t believe it will stop anytime soon.

Finally, I would like to share with you all what I would like for Christmas—bloggers. If we could have an active blogger or two, our exposure would go up exponentially, which would bring still more authors. Perhaps that is what is in store for 2012.

Everyone have a great holiday.

Ethics and the Law: Santa Claus and the Grievance Committee Are Watching You

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Growing up in West Texas, you might find that a case of whiskey around the holidays was better than a pot of gold. Abilene, in Taylor County, was a dry county at that time. From the courthouse to the junkyards, many a deal was made and the wheels were greased with a quart of whiskey. Most times it was unethical and sometimes illegal, but it happened a lot. All professions have a code of ethics that prohibit gift giving for personal gain. The holidays are here and you will see a lot of gift giving at the courthouse. Under Canon 4D (4)(b) of the Texas Code of Judicial Conduct, a judge may only accept a gift from a friend for a special occasion and only if the gift is fairly commensurate with the occasion and relationship. Advisory Opinion No. 194 on Judicial Ethics includes court staff in that rule. Canon 4D(4)(c) holds that a judge or family member may not accept any gift from a person whose interests have come or are likely to come before the judge. Last year in one of the larger cities of our state, a delivery truck was backed up to the back door of the courthouse and cases of booze were unloaded and taken inside. It went unreported. To stay out of trouble it is always better to follow the rules, or report it when you see it under Rule 8.03 of the Texas Rules of Professional Conduct.

There are close to 90,000 lawyers in the state, and like all people, some have some serious problems. As this paper is being written, several lawyers are in trouble—like the judge in Aransas County for spanking his child, a Houston lawyer for spanking his private parts in front of his neighbor and secretary, and another for allegedly participating in a plot to kill his wife. Some of our hotline calls have been from desperate lawyers who were in bad situations. The TCDLA hotline has been there as a resource for them to use to help them follow the rules and to resolve personal issues.

In Abilene, B Western movies were shown every Saturday at the Metro Theatre. As youngsters, we would spend the day watching our cowboy heroes—Gene Autry, Roy Rogers, Hopalong Cassidy, and Lash LaRue to name a few. These movies were morality plays with crooked ranchers, judges, sheriffs, and cattle rustlers. Never wavering and never compromising, the cowboy heroes always saved the day and road off into the sunset. Western heroes had their own cowboy code of ethics.

The original “king of the cowboys,” Gene Autry was a true patriot. At the height of his movie fame, Gene volunteered for the Army during World War II, sacrificing his career over service to his country. During this holiday season, you will probably hear many Christmas songs written by Gene and his famous rendition of “Rudolph the Red Nosed Reindeer.” Gene’s Cowboy Code—simplistic and old-fashioned—rings just as true today as it did over 60 years ago:

Gene Autry’s Cowboy Code

  1. The cowboy must never shoot first, hit a smaller man, or take unfair advantage;
  2. He must never go back on his word, or a trust confided in him;
  3. He must always tell the truth;
  4. He must be gentle with children, the elderly and animals;
  5. He must not advocate or possess racially or religiously intolerant ideas;
  6. He must help people in distress;
  7. He must be a good worker;
  8. He must keep himself clean in thought, speech, action, and personal habits;
  9. He must respect women, parents, and his nation’s law;
  10. The cowboy is a patriot.

If you are having an ethical dilemma, call the TCDLA hotline to get “Back in the Saddle Again.”