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February 2012

January/February 2012 SDR – Voice for the Defense Vol. 41, No. 1

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Voice for the Defense Volume 41, No. 1 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

The police failure to give Dixon his Miranda rights during the forgery interrogation was acceptable because his later confession to murder was properly warned and voluntary. Bobby v. Dixon, No. 10-1540 (U.S. Nov. 7, 2011)

        On November 4, 1993, in a chance encounter at the police station, a detective issued Miranda warnings to Dixon and asked him about Hammer’s disappearance; Dixon declined to answer questions without his lawyer present. While investigating the disappearance, police discovered that Dixon forged Hammer’s signature. On November 9th, police arrested Dixon for forgery. That day, police intermittently interrogated Dixon. Prior to the interrogation, the police decided not to give Dixon Miranda warnings for fear that Dixon would again refuse to speak with them. Dixon asserted his right to have an attorney present, but police continued to question Dixon without an attorney. Dixon admitted to the forgery but said he had no knowledge of Hammer’s disappearance. Later that day, police found Hammer’s body. Prior to subsequent police questioning, Dixon stated that he heard the police found a body and said, “I talked to my attorney, and I want to tell you what happened.” The police read Dixon his Miranda rights, obtained a signed waiver of those rights, and spoke with Dixon for half an hour. Then, using a tape recorder, police again advised Dixon of his Miranda rights; Dixon confessed to kidnapping, robbing, and murdering Hammer. At trial, he was convicted of forgery, kidnapping, robbery, and murder, and sentenced to death.

        The Sixth Circuit held that the police should have terminated the forgery interrogation when Dixon requested counsel. The court also held that the police’s planned refusal to read Dixon his Miranda rights during the first session of his interrogation for murder was unconstitutional.

        The Supreme Court rejected the Sixth Circuit’s description of the police’s technique as “question first, warn later,” mainly because Dixon did not repeat a vital earlier admission during the second murder interrogation; in other words, the first, unwarned interrogation did not directly enable a confession during the second session. The Court held, generally, that this “two-step interrogation process” did not unconstitutionally interfere with the effectiveness of Miranda warnings.

Under 28 U.S.C. § 2254(d)(1), “clearly established Federal law” is limited to Supreme Court decisions as of the time of the relevant state-court adjudication on the merits. Greene v. Fisher, No. 10-637 (U.S. Nov. 8, 2011)

        While Greene was appealing his conviction for murder, robbery, and conspiracy, Gray v. Maryland, 523 U.S. 185 (1998), held that it is unconstitutional for prosecutors to use redacted statements like those of Greene’s codefendants. Greene asked a Pennsylvania district court to vacate his conviction under the habeas corpus process. Habeas relief is allowed only when a state court violates “clearly established Federal law.” The district court held that Greene could not rely on Gray because that decision was not clearly established when the Pennsylvania Supreme Court affirmed his conviction; the Third Circuit affirmed.

        The Supreme Court affirmed the Third Circuit. Since the Pennsylvania Superior Court’s decision predated Gray by three months, Gray was not “clearly established Federal law” that would allow the federal court to grant Greene’s habeas corpus application. The Court observed that Greene missed two opportunities to obtain relief under Gray. Greene could have filed a petition for writ of certiorari after the Pennsylvania Supreme Court dismissed his appeal, which would have likely produced a remand in light of Gray. Greene also could have asserted Gray in a petition for post-conviction relief.

Fifth Circuit

A deportable alien’s supervised release term begins when he is released from the custody of the Federal Bureau of Prisons (having discharged his prison sen­tence) to the custody of Immigration and Customs Enforce­ment to await deportation. United States v. Garcia-Rodriguez, 640 F.3d 129 (5th Cir. 2011)

In drug case, court did not err in admitting evidence of a drug lab at D’s house at an earlier time; the evidence was not extrinsic evidence governed by Fed. R. Evid. 404(b), but was evidence “intrinsic” to the crime charged because it was inextricably intertwined with evi­dence about the crime charged. United States v. Flores, 640 F.3d 638 (5th Cir. 2011)

        Furthermore, district court did not err in applying an enhancement for obstruction of justice under USSG § 3C1.1 in sentencing two defendants who testified at trial; the court did not clearly err in finding that defendants perjured themselves in material assertions that were not worthy of credence in light of the weight of the physical evidence, and that were flatly contradicted by other witnesses and the ultimate finding of the jury. However, the Fifth Circuit found erroneous the aggravating role enhancement (USSG § 3B1.1(c)) applied to one defendant because the presentence report (PSR) facts on which it rested differed in several material respects from the evidence at trial; because the Fifth Circuit could not tell whether the district court would have applied the enhancement had the PSR correctly summarized the trial evidence, the error was not harmless. The Fifth Circuit vacated D’s sentence and remanded for resentencing.

In attempted manslaughter case (committed while D was in prison on another charge), the Louisiana court did not unreasonably apply Supreme Court law in re­ject­ing D’s claim that his post-incident questioning by prison officials violated Miranda; the questioning was conducted by the prison staff, using the prison’s routine immediate post-fight procedure. Wilson v. Cain, 641 F.3d 96 (5th Cir. 2011)

Death-sentenced Mississippi D was not entitled to a certificate of appealability on his claim that his trial attorneys provided ineffective assistance by failing to investigate, discover, and introduce readily available mitigating evidence concerning D’s background and mental condition; this could have been a reasonable strategy designed to keep out unfavorable information. Mitchell v. Epps, 641 F.3d 134 (5th Cir. 2011)

The press and public have a First Amendment right of access to sentencing hearings; the district court should have given the press and public notice and an op­por­tunity to be heard before closing the sentencing proceeding. Hearst Newspapers, L.L.C. v. Cardenas-Guillen, 641 F.3d 168 (5th Cir. 2011)

        Newspaper’s appeal of district court’s order closing the sentencing of a drug cartel leader was not moot, even though the sentencing had already occurred. This is a prominent newspaper that seeks to cover major cases, and it is reasonable to expect that courts will close other criminal proceedings to the newspaper in future cases; at the same time, these issues often evade review due to the short duration of criminal trials.

Where a defendant makes a post-arrest statement that is sufficiently incomplete with respect to a trial statement on the same subject matter as to be arguably inconsistent, comment upon the omissions is permitted. Puckett v. Epps, 641 F.3d 657 (5th Cir. 2011)

        With respect to D’s claim of improper use of post-arrest silence in violation of Doyle v. Ohio, 426 U.S. 610 (1976), the Fifth Circuit held that this claim was not procedurally barred; however, on the merits, the state court did not unreasonably apply Doyle and its progeny in rejecting D’s claim. Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements.

Title II of the Americans with Disabilities Act validly abrogates a state’s Eleventh Amendment sovereign im­munity where the alleged misconduct also constitutes a violation of the Fourteenth Amendment. Hale v. King, 642 F.3d 492 (5th Cir. 2011), on denial of reh’g to 624 F.3d 178 (5th Cir. 2010)

        However, the Fifth Circuit held that as a threshold matter, plaintiff prisoner raising claims of inadequate medical care had not alleged valid claims under Title II. The Fifth Circuit remanded the case to allow the plaintiff (who had been proceeding pro se in the district court) an opportunity to amend his claims to remedy the deficiencies and bring them within Title II.

The government breached its plea agreement with D by using D’s immunized statements to advocate for the presentence report’s Guideline calculation; this was inconsistent with any reasonable understanding of the plea agreement, and none of the government’s jus­ti­fi­cations were availing. United States v. Harper, 643 F.3d 135 (5th Cir. 2011)

        The Fifth Circuit vacated the sentence and remanded for resentencing before a different judge.

D received adequate Fed. R. Evid. 902(11) notice—six months, written notice—of phone records admitted at trial. United States v. Olguin, 643 F.3d 384 (5th Cir. 2011)

        Furthermore, court did not violate one defendant’s Confrontation Clause rights by admitting phone records; the phone calls did not implicate the defendant who complained about their admission, and a defendant’s confrontation right is triggered only by a witness testifying against him. Additionally, the calls qualified as co-conspirator statements, which are not testimonial for purposes of the Sixth Amendment; the speakers’ identities were sufficiently authenticated; and any error in the admission of these calls was harmless to the complaining defendant, since the calls did not implicate him.

        Agreeing with all other circuits, the Fifth Circuit held that the Comprehensive Forfeiture Act, 21 U.S.C. § 853, permits the imposition of personal money judgments against defendants. Nor did court err in entering judgment against the two challenging defendants for the full proceeds of the conspiracy. Finally, the court did not err in deciding that the “proceeds” of the conspiracy meant gross receipts, not just net profits; United States v. Santos, 553 U.S. 507 (2008), does not compel a net-profits interpretation in cases involving drug trafficking.

Regarding laundered money from the sale of drugs and other contraband, Congress used “proceeds” in 18 U.S.C. § 1956 to mean gross receipts rather than net profits, regardless of any potential merger problem. Wilson v. Roy, 643 F.3d 433 (5th Cir. 2011)

        D was not entitled to relief on his habeas petition (brought under 28 U.S.C. § 2241 pursuant to the savings clause of 28 U.S.C. § 2255) claiming that his money laundering conviction was defective under United States v. Santos, 553 U.S. 507 (2011). Garland v. Roy, 615 F.3d 391 (5th Cir. 2010), did establish that Santos applies retroactively, so D satisfied this requirement for relief under the savings clause. However, unlike in Garland, Santos did not establish here that D was convicted of a nonexistent offense; viewing Justice Stevens’ concurrence in Santos as the controlling law, the Fifth Circuit held that because D was convicted of laundering money derived from the sale of contraband, Santos did not undermine his conviction. Thus, D could not satisfy the requirement that he may have been convicted of a nonexistent offense.

District court did not err in denying federal habeas cor­pus relief to D convicted of armed robbery in Texas state court; the failure at D’s trial to redact the ar­rest­ing officer’s affirmation of belief that D was the rob­ber, from a warrant admitted into evidence, did not render D’s trial so fundamentally unfair as to violate due process. Gonzales v. Thaler, 643 F.3d 425 (5th Cir. 2011)

        The Fifth Circuit was not persuaded that the statements in the warrant affidavit were a crucial, critical, highly significant factor upon which the jury based its verdict. The Fifth Circuit noted that its denial of habeas relief was not an endorsement that the evidence was overwhelming; the evidence consisted primarily of cross-racial identifications, which studies have demonstrated to be particularly unreliable.

Illegal alien’s conviction for possession of a firearm, in violation of 18 U.S.C. § 922(g)(5), did not violate the Second Amendment; “the people” in the Second Amendment does not include illegal aliens. United States v. Portillo-Muñoz, 643 F.3d 437 (5th Cir. 2011)

The federal court correctly reviewed the state court’s decision de novo where state pretrial detainee charged with second-degree murder raised, in a federal habeas petition under 28 U.S.C. § 2241, a double-jeopardy challenge to being retried after the declaration of a mistrial in his first trial. Martinez v. Caldwell, 644 F.3d 238 (5th Cir. 2011)

        The deference required by 28 U.S.C. § 2254(d) does not apply to habeas petitions brought by pretrial detainees under § 2241. However, on the merits, the federal district court erred in granting federal habeas relief precluding D’s retrial; where a case ends in a mistrial at defendant’s behest, or with defendant’s consent, the Double Jeopardy Clause bars retrial only if the prosecution or the court intended to goad defendant into requesting a retrial. Here, the record read as a whole did not support the district court’s conclusion that the presiding trial judge purposefully withheld his knowledge of how the jury was split (9 to 3 in favor of acquittal) to goad the defense into requesting a mistrial based on the jury’s deadlock. The Fifth Circuit vacated the district court’s order granting relief and denied D’s habeas petition.

Court of Criminal Appeals

Under the totality-of-the-circumstances standard, this search-warrant affidavit was insufficient to show PC because there could have been a 25-hour gap between the time officer stopped D and the time he obtained a search warrant for blood; the affidavit should have referenced the gap between the last moment of driving and the moment the magistrate signed the warrant. Crider v. State, 352 S.W.3d 704 (Tex.Crim.App. 2011)

By testifying that he did not commit the robbery, D expressly denied responsibility; the State was entitled to comment on that denial of responsibility. Randolph v. State, No. 0404-10 (Tex.Crim.App. Nov. 23, 2011)

        D testified to an alibi defense at the guilt phase of his aggravated robbery trial, but did not testify at the punishment phase. In her final punishment argument, the prosecutor stated that D was not worthy of probation because he had not taken responsibility for the crime.

Ex parte Williams, No. 50,662-03 (Tex.Crim.App. Nov. 23, 2011)

        CCA dismissed this application for writ of habeas corpus, claiming that applicant failed to satisfy Tex. Code Crim. Proc. art 11.071, § 5(a), and quoting Supreme Court case law: “[W]e have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions[.]”

Appellant was tried for possession of Penalty Group 1 codeine; the evidence presented at trial was insufficient to support a conviction for that offense. Miles v. State, No. 1709-08 (Tex.Crim.App. Dec. 7, 2011)

        On appeal, the parties disagreed about the particular offense for which appellant was tried. This disagreement stemmed from the failure of the indictment and jury charge to include an essential element that would distinguish among the three possession-of-codeine offenses in the Health and Safety Code. The hypothetically correct jury charge required the State to prove the essential element of Penalty Group 1 that the codeine was “not listed in Penalty Group 3 or 4.” To prove this element, the State could show that (1) the concentration of the codeine was more than 1.8 grams of codeine per 100 milliliters, or (2) the codeine was not combined with active nonnarcotic ingredients in recognized therapeutic amounts or in sufficient proportion to confer on the compound valuable medicinal qualities other than those possessed by the codeine alone.The evidence at trial showed only the mere presence of promethazine; a rational juror could not infer whether the promethazine was or was not in recognized therapeutic amounts or in sufficient proportion to confer on the compound valuable medicinal qualities other than those possessed by the codeine alone. Because there was insufficient evidence as to an essential element of the particular offense for which appellant was tried, CCA concluded that appellant’s conviction violates due process. COA erred in failing to identify the offense, and then in failing to measure the sufficiency of the evidence against the essential elements of that offense.

Contrary to appellant’s claim, the trial record showed the legitimacy of “grooming” children for sexual mo­les­ta­tion as a legitimate subject of expert testimony. Morris v. State, No. 0796-10 (Tex.Crim.App. Dec. 7, 2011)

A trial court is required to make an inquiry into the reasonableness of a witness’s assertion of the Fifth Amendment privilege against self-incrimination. Walters v. State, Nos. 0064-11 & 0065-11 (Tex.Crim.App. Dec. 7, 2011)

        CCA overruled Ross v. State, 486 S.W.2d 327 (Tex.Cr.App. 1972), which held that if a witness asserted her Fifth Amendment privilege against self-incrimination on the advice of counsel, “[n]oth­ing further [is] required of the court.” CCA agreed with appellant and found that this is contrary to U.S. Supreme Court case law. CCA agreed with the State, however, that the trial court did make the requisite inquiry in compliance with Supreme Court decisions. A hearing was held outside the presence of the jury at which the State proffered the witness’ expected testimony and at which the witness’ attorney explained that the witness feared incriminating herself in the face of evidence indicating that she may have encouraged the crime. This is about as much of an inquiry as was possible while protecting the witness’ right against self-incrimination and her privileged conversation with her attorney. COA’s judgment affirming appellant’s conviction was correct because the trial court’s inquiry into the reasonableness of the witness’ invocation of her Fifth Amendment privilege was sufficient to establish the risk of incrimination.

Court of Appeals

D was in custody during interview, even though officer informed D that he was not a suspect and that he was free to leave; each time D expressed a desire to go to the hospital or home, officer indicated that he could not go until the police were “finished.” McCulley v. State, 352 S.W.3d 107 (Tex.App.—Fort Worth 2011)

        D’s questions about whether he could go to the hospital or home were insufficient to “terminate” the interview; thus, his post-Miranda statements were admissible. “[N]one of these statements constitute an unambiguous and unequivocal invocation of the right to remain silent or otherwise terminate the interview. . . . In fact, when [D] ultimately told [officer], ‘I just want to go to sleep,’ [officer] did not simply ignore the statement and continue questioning. Instead, [officer] sought to clarify [D’s] wishes before continuing the interview.” In addition, officer “acknowledged that [D] was not wearing shoes. . . . [And of­fi­cer] maintained that for the majority of the nearly four-and-a-half-hour interview, [D] was free to leave at any time but that to leave would have required [officer’s] assistance because ‘it’s . . . kind of a sneaky way out.’ When asked directly how [D] would have left the police station, [officer] said, ‘I would have to had shown him the way out.’”

Passenger’s answer to officer’s question asking where driver was traveling from gave rise to RS (when coupled with the below factors) because the passenger answered officer’s question in great detail while the driver re­mained silent, even though officer was speaking through the passenger window. Baxter v. State, No. 02-10-00364-CR (Tex.App.—Fort Worth Aug. 31, 2011)

        Also, driver had a scared look on his face; passenger had no identification; in response to whether passenger used drugs, passenger said “no” but immediately revised her answer to not “in a long time”; and “the car initially swerved and accelerated.”

Emergency exception to warrant requirement deemed inapplicable because, at the time of the search, the victim’s body was outside the home rather than in­side; after initial protective sweep of home, it was unnecessary for officers to re-enter. And because D had been removed from the scene, “[D] was not in a position to deny consent.” Tollefson v. State, 352 S.W.3d 816 (Tex.App.—San Antonio 2011)

        Automobile exception did not apply to travel trailer. Even though D’s trailer was subject to government regulation, “we hold his trailer was not readily mobile. [D’s] trailer did not have an ignition switch; the only way it could become mobile would be to hitch it to another vehicle, and it was still attached to the utilities at the time of the search.”

In the context of failure to stop and render aid, D had reason to know that the other driver needed medical attention, even though the other driver’s car was merely “struck from the rear while traveling at a speed of approximately forty miles per hour” and even though it “did not roll or strike any other object before coming to rest.” Henry v. State, No. 06-11-00010-CR (Tex.App.—Texarkana Sep. 6, 2011)

        “Here, the record indicates the force of the impact caused [other driver’s] car to spin out of control. . . . [Officer] described the damage to [victim’s] car as severe, rendering the car inoperable. The incident report described the accident as ‘a major accident.’ The crash caused the air bag in [the] vehicle to deploy, and photographs depict significant damage to the front driver’s side of the vehicle. Among the debris at the accident scene was the front license plate of [D’s] vehicle. It was apparent to [officer] that [other driver] was in need of medical treatment at the accident scene, and she was taken by ambulance to the hospital, and was treated for her injuries.”

Even without knowing the time span between the accident and officer’s arrival, evidence was sufficient to show D had been driving while intoxicated because of officer’s testimony indicating that the truck had been recently driven: the hood was still warm, the inside was warmer than the outside. Warren v. State, No. 01-10-00047-CR (Tex.App.—Houston [1st Dist] Sep. 8, 2011)

D unsuccessfully argued that the inconsistent testimony of two officers rendered evidence insufficient that D was intoxicated while operating vehicle. Ruiz v. State, No. 04-10-00722-CR (Tex.App.—San Antonio Sep. 14, 2011)

        “[D] contends the evidence is legally insufficient to support the jury’s verdict . . . because there is a glaring inconsistency between [Officer 1’s] testimony and [Officer 2’s] testimony. [Officer 1] did not smell alcohol on [D] while [Officer 2] did. Additionally, [Officer 1] stated that [D] had a minor cut on his forehead, yet [Officer 2] observed no obvious indication of injury. [D] asserts that the inconsistent testimony of two trained law enforcement officers testifying on behalf of the State creates reasonable doubt. [D] maintains that the evidence of intoxication was weak, and that his explanation for the accident—that he swerved to avoid a deer—was plausible. We disagree that the evidence is legally insufficient to support the jury’s verdict.”

Get Ready to Tighten Your Belts…

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A recent evaluation from an attendee of one of our Criminal Defense Lawyers Project (CDLP) CLE events which had a DVD presentation said, “I’d much rather see the speaker in person so I can ask questions. Let’s not have canned DVD presentations!”

     While I appreciate the sentiment, our grant and budget for CDLP CLE’s has been cut dramatically and there will be more DVD presentations. There will also be less catered food at hotels and more CDLP CLE’s in less expensive or even free venues.

     These are difficult times in which we hear daily of government cost-cutting and news of families searching for ways to save. I don’t know a criminal defense lawyer in Texas who isn’t feeling the pinch. These same cost-cutting necessities have come to CDLP.

     CDLP can save by presenting speakers via DVD to avoid travel expenses. Rest assured, we will never have a totally DVD program but some topics (such as: What to Tell Your Client About Sex Offender Registration) can be taught about as well via DVD as in person. CDLP can save by cutting back on food and beverages on breaks and by asking course directors to double as speakers.

          These changes don’t have to affect the quality of our programs. We still have the most talented speakers in Texas at our seminars. We still offer the best Criminal Law CLE for the best price in the state. I’ve been a TCDLA member for more years than I care to admit. We are a tough bunch and don’t need $15 cinnamon buns at our breaks to practice good law. It’s going to be a leaner, but perhaps better, year for CDLP CLE.

The Anatomy of the Attorney-Client Relationship

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“It is well known that most of these individuals on whom the criminal law inflicts punishment have been unfortunate before they became guilty.”
—Alexis de Tocqueville

My name is Kerry Max Cook. In 1977, I was wrongly convicted of a murder and rape I didn’t commit. My ordeal was as Machiavellian a legal odyssey as any could be. It spanned three generations of the district attorney’s office, a hung jury, two separate convictions and death sentences, two reversals, ping-pong appeals, an execution date, and nearly four Capital Murder trials. For most of it I was known as simply “Cook, Execution #600.” I have written this article in the hope of educating attorneys on what a client needs and wants from their attorney.

Attorneys are required to attend mandatory Continuing Legal Education seminars. On Texas death row, everyday, all day, for 22 years, class was in session, teaching me the importance of an attorney-client relationship.

A $500 Defense

I was charged with one of the most serious crimes a person can face—a rape and murder, with death as the penalty. My parents were only able to scrape together $500 for my defense. I was doomed from the outset. Sealed away in a dark solitary confinement cell for the next year, and later, over 20 more on death row, it was just me, a toilet, a portable sink, a steel bunk, and three concrete walls that contained my pain, confusion, and fears of a system aligned against me.

Two local attorneys represented my only voice. $500 doesn’t buy you much of a say in the American legal system, a system that mutes defendants and only allows them to be heard if and when our voices can be used as evidence against us to support the prosecution’s narrative. We aren’t allowed to talk in court. We are told to tell our attorney what we want to say, and the attorney will tell the court. When the attorney’s voice to the court does not reflect our own, we are told not to file pro se motions. From the moment of arrest, we are forced to rely on our attorney as our only voice. Unfortunately, many times our voices are not heard. The hardest thing about getting strapped to a gurney in the death house and executed is dying without a fight, a voice, and without an attorney-client relationship.

Loneliness

The first thing a criminal defense attorney should be aware of is that most clients are suffering from extreme loneliness, whether it is in the county jail or, later, when sent to prison. My loneliness was acute.

I remember almost every attorney visit I ever received. However, what stands out most in my mind is my attorney’s departure. When my attorney would stand up to leave, I only heard that familiar sound of the prison guard opening and closing the handcuffs, signally the end of human contact with a member of the outside world. I would lean against the dirty prison glass that assigned us to two different realities and plead, “Please, don’t go yet. . . .”

Prison is a subculture with its own vernacular. It’s a life buried in an underground cellar that doesn’t translate well in a free society. Every day was a search for different survival methods to try and prevent the darkness from swallowing me. What I needed was the grip of a handshake, the melody of a human voice that was not a jailor’s, an inmate’s, or an acolyte of the prosecution’s cadence of dehumanization. I needed a human connection directly to my mouthpiece, my lawyer, my courtroom advocate, and my tether to the rest of my defense team. Prison was a cancer, eating my body and soul. I needed the only human left on Planet Earth allowed to fight for me to hear my voice.

This may sound so simple that it needs no explanation, but I must state it. Clients need their attorneys to recognize them as more than just another case number on the court’s docket. A client needs face-to-face contact, a sense of connection.

I lived in a hyper-vigilant state of panic, fear, depression, and unbearable loneliness in and out of death row, trying to cope with and manage nearly four Capital Murder trials, suffering from the most severe case of Post-Traumatic Stress Syndrome (PTSD) imaginable. Some of your clients enter the legal system already suffering from PTSD because of lifetime experiences prior to incarceration. You have to show you care to gain a client’s trust. This will help a client understand that you aren’t “one of them.” One of them is a lawyer just wanting to go through the motions, giving the client the feeling of being “sold out.”

Without care from members of the whole defense team, but particularly with the lead attorney, real mitigation is impossible.

You have to care. The client has to trust you. The big C&T to your case is CARE & TRUST. Everything else will follow.

The following are things I wished I had from my attorney when I was a client:

A.  Visits—case discussions and strategizing so I could see and feel a defense being assimilated to counter the prosecution’s one-sided control of the narrative.

B.  Updates—to offset tunnel vision brought on by extreme isolation. I suffered from disconnectedness, helplessness, and hopelessness because I was unable to see or feel anyone fighting other than me.

C.  Communication—giving me a role in my own defense in­stead of treating me like a ghost. Communication would have made me feel like a member of my own defense team.

D.  Empathy—someone to just ask how I was doing and show concern for my well-being.

E.  Mitigation—an attorney to understand me, prison life, and what it was like for me as a falsely accused murderer and rapist to live inside steel bars. If my attorney had understood this, my prison history of hurting myself, which I did to force prison officials to move me away from danger, would not be used against me. Also, if my attorney had understood why I hurt myself then he could have helped the jury to understand too.

I.   Anatomy of the Attorney-Client Relationship

The definition of a client’s “defense team” should not be defined as a group of professionals: attorneys, mitigation specialists and investigators. The client must also be included as an integral member of the team. Below are my suggestions on how to include your client as part of the defense team:

     A. Communication before and during trial

From the moment of my arrest until I went on trial a year later, and to the moment I was shackled for the short trip to death row in Huntsville, I felt isolated, alone, and estranged from attorneys representing me.

Consider this: Write your client letters specifically setting out the reasons for your next visits and the amounts of time you have allotted for them. For example, write a letter explaining the motions you intend to file and the need to go over them so they can be signed. Ask your client if there are any other pressing matters they would like to discuss. Tell them that they can articulate these matters by mail or phone calls to your office. Ensure that you give them five working days for their responses via mail. This will set up the parameters and give your client the opportunities to become a visible member of the team. This also assists the attorney by making jail visits a more productive use of your time.

Lawyers should not squander valuable opportunities to meet and understand their clients; lawyers should work with their clients long before the case is set for trial. Sometimes it just requires that you clear your schedule for a couple of hours and go do client maintenance to maintain a working relationship with your client. It will pay off in the long run for both you and your client.

     B. Inclusion of the client in preparation of the case

Including your client in case preparation ensures that the right evidence is heard and the best defense is mounted so that any guilty verdict has the best chance of resembling a modicum of “justice.” Making your client an integral part of his/her defense accomplishes several important goals: You give your client a sense of purpose, an assurance they are being recognized and heard, and you convey genuine concern for your client’s well-being. Lastly, and perhaps most importantly, you give every client the confidence that his or her voice is represented in you.

Indigence, a $500 defense, egregious police and prosecutorial misconduct ostracized me from my defense, and made me an invisible client. Compounding this nightmare, the legal system muted me. I had no voice. I was truly alone.

Clients are among the most important resources for information regarding their cases. Keeping your client out of brainstorming and decision processes breeds distrust and insecurity. This in turn fosters post-conviction ineffective-assistance claims.

Consider this: Have team meetings that include your client at the jail; include them in the brainstorming processes. Or, have others take notes and have those prepared for your client to read over so they can feel they were considered and included.

After my release from death row, I worked on a case in which we implemented this concept and it met with great success. Everyone wins. When you don’t initiate meaningful attorney-client relationships with incarcerated clients, clients have no recourse but to seek the advice of other inmates to calm their fears and concern. We all know how much attorneys like the jailhouse lawyer. The jailhouse lawyer is born because the real lawyer is not there. The Tel-Link County Jail phone system can be like calling the prosecutors at home. Additionally, jails and prisons are repositories for desperados and career criminals who are experts in how to work the legal system, predators seeking to curry favoritism with the State to attain leniency in their cases. I lived my 22 years in jail and in prison by this motto: “We live in a cornfield: There are too many ears in here.”

The best way to minimize the risk of a jailhouse informant popping up on prosecution’s witness lists is to initiate and maintain an effective attorney-client relationship.

     C. Understanding psychological effects of jail and prison

Sensory deprivation, permanent bright lights, extreme temperatures, forced insomnia, and dehumanization by jailors and inmates are just a few of the noticeable maledictions of life inside America’s prison and county jail systems.

Incarceration affects optimism, interpersonal communication, the ability to trust others, and paranoia. Invariably prisoners are locked down 24-7, with nothing to do and all day to do it. It breeds massive distrust and contempt. Lawyers must remain patient and cognizant of how relations can be strained because of their client’s imprisonment and hunger for a resolution that equals freedom.

Prolonged confinement causes an unrecognized mental illness you won’t find codified in any Diagnostic and Statistical Manual of Mental Disorders. I have named the disorder as ISS, or Isolative Stress Syndrome. The symptoms of ISS can be acute anxiety, tunnel vision, excessive paranoia, anger, frustration, and self-destructive thoughts. The PTSD associated with isolation requires an understanding that begins to take hold when the client is left isolated and has little to no human contact with their attorney.

What happens is the client starts to feel like the attorney is representing their own interest and not the client’s. By the time of the trial and conviction, client has already been subjected to dehumanization, which was the prosecution’s narrative. The client has been stripped of their original identity and placed in exile.

This isolation and courtroom public dehumanization process greatly affected me. For example, take the closing arguments of the district attorney at my first trial. He compared me to a dog. He told my jury, without my lawyer objecting, that they must not think they are executing a human being, but instead putting a sick animal to sleep. The pain I felt when I heard the prosecutor’s arguments will never heal. But the deeper pain was the absolute indifference my own lawyer showed when the prosecutor said these words. It made me believe that he thought of me as a sick animal too.

By the time I crawled my way back to a defense table 15 years later with a new trial, I had been systemically abused. Human Rights Watch, a global watchdog group monitoring human rights atrocities, called me the most brutalized man in an American prison institution. Much of this brutalization could have been lessened if I had an attorney who cared.

I did not have outside family support while I was locked away in prison. My primary source of support was an only brother, Doyle Wayne. He was murdered ten years into my incarceration. Two years later, cancer took my father’s life. My bereaved mother blamed me and my teenaged mistakes as the sole reason police and prosecutors profiled me for an arrest. My mom’s reasoning went like this: If I hadn’t gotten into so much trouble as a juvenile and had a better job than bartendering at a gay bar in Dallas, Smith County wouldn’t have framed me for rape and murder. This was an albatross around my neck that nearly consumed my will to live in prison.

Helplessly trapped inside a legal system that had forgotten me and abandoned by family, I craved to be recognized and understood as a survivor by my attorney. I needed to feel cared about and understood. I needed my attorney not only to listen and care about me but also to work with me. In the end, no one did.

Consider this: Every client brings baggage to your case, sui generis. In the beginning, it can be essential to the relationship with your client that the lawyer try to understand the physical, psychological, and conditioning effects of jail and/or prison.

Excluding your client by omitting them in the strategizing and/or trial preparation of their case makes your client distrustful, angry, withdrawn, and it promotes feelings of being “sold out.” It also deepens a client’s isolation and pariah status. A client will withdraw and become closed off as a method of self-protection. The attorney will have lost an opportunity to reach a client through the mitigation process.

     D. Fathoming the consequences of excluding the client

Disconnection from your attorney can create a self-destructive personality disorder. Clinicians have immortalized the high incidence of self-mutilation within America’s prison system, but there remains very little real understanding of this pandemic phenomenon that derives from prolonged incarceration. I can help you understand it because I became what is referred to in prison vernacular as a “cutter.”

I subsisted in a freezing solitary confinement cell at the Williamson County Jail for my first retrial in 1992. I had no blanket, there was a constantly burning light, and it was so quiet that I could hear myself breath.

Somewhere through the network of steel walls and ventilation system, I could hear the muffled screams of the other inmates as they jeered and cheered the Dallas Cowboys playing against the San Francisco 49ers in the NFC Championship game. That was a double-edged sword because I loved the Dallas Cowboys and could never get to see or hear them play.

I was eaten whole by my loneliness, hopelessness, and emptiness brought on by all the years of legal and prison abuses. My legal nightmare left me crippled without a voice. It whittled away at my determination. I resorted to physically hurting myself with a razor blade.

I was an unrecognized veteran of war. I was raped, battered, and badly beaten up by nearly four capital trials. I went against the worst result-oriented prosecutors imaginable. These prosecutors were hell-bent on making sure an aura of guilt never left so I could be executed.

You may be your client’s only connection to the outside world—he may have no family or maybe they abandoned him long ago. You are certainly the client’s only link to their case and, in many instances, the last chance the client has for freedom or redemption. Maintaining contact (phone calls, letters, visits, etc.) with case updates is essential for the mental and physical health of your client. Inmates are starved for the very daily contact most outsiders take for granted. Not to mention that this depth of interaction with a client bolsters your case and gives you the tools necessary to mount a full defense.

II.    Importance of Life-Sentence Consultant

Clients typically have unrealistic street-life understandings of our legal system and how it works. The legal-knowledge disparity between clients and attorneys is staggering. Typically, a defendant’s education stopped in high school. A client is educated by the streets of America, jails, or prison.

When lawyers have to go to the jails to see their clients, they often have limited time. They don’t have the time to spend with clients who are held in confinement, locked down 24-7 with nothing to do all day. These clients are just itching for a chance to get a break from their cramped cell to talk to someone about their case.

An effective tool for defense teams to resolve challenging issues—especially with difficult clients—is to bring onboard what I call an Attorney-Client Envoy (ACE), who can serve to both educate juries to reach a life sentence conclusion, as well as educate defense-team members on prison life.

As an ACE, I am an effective plea negotiator and serve as a bridge, helping to create trust between attorneys and their clients, unifying the defense team. I am also a court-recognized Life-Sentence Consultant, as well as a Mitigation Consultant.

III.  Conclusion

When you exclude your clients from their own defense and treat them as apparitions, it breeds paranoia, and distrust. Clients begin to feel that their own attorneys are part of the same legal process dead set to take away their freedoms.

The moral of the attorney-client relationship is if you want your clients to “see” and respect you as their lawyer charged with defending them in a court, it is incumbent that you see and respect them as a client.

I promised myself the day I left death row I would be the change I wanted to see in the American criminal justice system. I would do this by bridging the gap between attorneys and their clients and by helping humanize what prosecutors and media dehumanize so they can call it “justice.” I want to pay it forward.

The prisoners called me a dreamer. The guards called me crazy. The lawyers hardly called me at all. In the end, everyone called me long distance because I got freed from the worst death row in America.

Expert Punishment Testimony in a Sex Trial

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Sentencing Issues

The genius of Winston Churchill is as manifold as it is undisputed. With the hope of having some of Mr. Churchill’s genius rub off onto this discussion, I would like to use his quote as a jumping off point to discuss sentencing issues in a sex offender case.

I believe that sentencing the sex offender is a riddle wrapped in a mystery, inside an enigma because a satisfactory answer, which is comprehensive and fair, cannot be found. This is true whether you are an attorney for the defense or an attorney for the State.

Let’s unpackage Mr. Churchill’s proclamation as it applies to sentencing in a sex offender trial. At the heart of the sex offender sentencing issue is a riddle. Actually, there are two riddles. Let’s begin with the first riddle.

Riddle #1: What type of offender is least likely to reoffend with the type of crime that originally got them into trouble? Let me simplify the riddle a little bit to give you a chance to answer the riddle correctly. Does a sex offender have a greater chance of reoffending with a new sex offense as compared to the chance of a non-sex offender reoffending with a non-sex offense?

To answer this riddle, you have to come up with two numbers: the percentage of sex offenders released from prison who commit a new sex offense and percentage of non-sex offenders released from prison who commit a new non-sex offense. Do you have those two numbers in mind? Good. Here is what the research says.

In a longitudinal research study, the federal government studied 9,691 sex offenders and 262,420 non-sex offenders released in 1994 from state prisons in 15 states, including Texas (Langan, Schmitt, & Durose; 2003). In the 3-year follow-up period, 5.3% of the sex offenders were arrested for a new sex crime and 68% of the non-sex offenders were arrested for a new non-sex offense.

As you can see, the sex offender re-arrest rate for new sex offenses (5.3%) is considerably lower than the non-sex offense re-arrest rate (68%) for non-sex offenders. But that may not be the biggest surprise of this study, which leads us to the second riddle.

Riddle #2: Which group of offenders produces more sex offenses, sex offenders, or non-sex offenders? To answer this riddle, you need to come up with two numbers: the number of sex offenses produced by known sex offenders and the number of sex offenses produced by convicted criminals with no history of sexual offenses. Here is what the research says.

Using the same governmental study as Riddle #1, the answer to Riddle #2 is this: Sex offenders produce fewer sex crimes than criminals with no history of sexual offending. In this study, 517 sex offenders were arrested for a new sex offense and 3,328 “non-sex” offenders were arrested for a new sex offense. In other words, 92% of new sex offenders are criminals with no prior sexual offense history and 8% of new sex offenses are caused by known sex offenders.

It might be tempting to dismiss these numbers because they are so counterintuitive, but if you were to dismiss government research numbers, you would still have to explain the numbers that come from decades of research generated by non-governmental entities.

Dr. Karl Hanson conducted two sex offender recidivism meta-analysis studies (Hanson & Bussiere, 1998; Hanson & Morton-Bourgon, 2005). A meta-analytic study is a study that examines existing research articles published in peer-reviewed journals. Dr. Hanson’s 1998 study examined decades of peer-reviewed research as documented in 61 published articles about the reoffense rate of 23,393 sex offenders. In his second study, Dr. Hanson retained some of the research articles from his 1998 study, he eliminated other articles, and he added some new articles. The result was a meta-analysis published in 2005 that examined 82 peer-reviewed research articles involving 19,267 sex offenders. The sexual reoffense rates for sex offenders were 13.4% and 13.7%, respectively, for the first and second meta-analytic studies. The rate of sexual reoffending by sex offenders (avg. = 13.55%) found in Dr. Hanson’s studies is considerably lower than the rate of non-sexual offending by non-sex offenders (68%) in the government study.

You might be wondering why the study done by the federal government found sex offenders have a rate of sexual reoffense around 5%, whereas Dr. Hanson’s studies put the sex offender reoffense rate at around 13.55%. The explanation is simple: time. The recidivism study conducted by the federal government followed sex offenders for three years, whereas Dr. Hanson’s numbers rely on studies that followed sex offenders on average six years and in some cases up to 27 years. As the amount of time increases the opportunities for reoffense increases, so the reoffense rate increases.

Mystery. Once the riddles about the sex offender have been answered and you understand that there is a scientific basis for the assertion that few sex offenders reoffend, you are faced with a mystery: Why is the offender least likely to reoffend often given the harshest sentence?

This mystery is only a mystery when you look at the low rate of sexual reoffending among sex offenders. When you look at the nature of the sex offense, it comes as no surprise that the sex offender gets a long prison sentence. Sex offenders typically violate children or women. Judges and juries often use sentencing to punish the sex offender for harming vulnerable victims and as a means of protecting women and children in the general public.

Additionally, sex is not just an act of procreation. In our society and among humans in general, sex is social cement (Diamond, 1993). It is used to cement intimate relationships. The sexual act can touch those involved to the core. When a sex crime is committed, it has the potential of hurting the victim to the core. Even though a third or more of all children who are sexually abused never experience any mental health symptoms (Finkelhor, 1990), in a modicum of cases the sexual abuse victims suffer severe mental health problems. In recognition of the serious harm that sex crimes can or may cause, judges and juries hand out long prison sentences.

Enigma: Given the low threat to the public, most sex offenders should be considered for placement on probation. Given the emotional upshot of a sex offense, most sex offenders should be considered for a term of incarceration. Here is the enigma: An offender can’t receive both a mild and a harsh sentence.

The enigma of sentencing the sex offender lends itself to no easy solution. In fact, attorneys for the state and defense debate and argue in every sex offense trial trying to come up with a solution to this enigma. But the solution is not the province of the defense or the state. It is the province of the trier of fact. The rest of this article is dedicated to a discussion of the type of expert testimony that could help the trier of fact reach a satisfactory solution of the enigma of sentencing in a sex offense trial.

Expert Testimony about Risk Assessment

The best way to talk about sexual reoffense rates during the sentencing phase of a sex offense trial is to have an expert testify about the defendant’s risk for sexual reoffense. The expert’s testimony should be based upon an evaluation of the defendant—which includes the use of formal risk assessment instruments. At a minimum, the expert should provide testimony based on the use of two actuarial risk assessment instruments: Static-2002 and the Level of Service Inventory-Revised.

Before discussing each of these risk assessment instruments, it is important to have an understanding of the basics of modern risk assessment, including how actuarial risk assessment instruments are created and what a risk assessment is and is not.

If you wanted to create a risk assessment instrument for sexual reoffending, you would collect as much research as you could find regarding sexual reoffense among sex offenders. You could not use all the research. You would have to eliminate research that was based upon single-subject case studies or opinions. You would only want to consider studies that relied upon statistical analyses of groups of sex offenders. The best studies would be those that conducted statistical analyses of sex offenders and non-sex offenders over a long period of time.

Once you have statistical studies regarding sexual reoffense among sex offenders, you would go through the studies and identify the factors that have the strongest association with sexual reoffense. For example, child molesters who select unrelated, male children as victims are known to have many sexual abuse victims (Abel, Becker, Mittelman, Cunningham-Rathner, Rouleau & Murphy, 1987). On the other hand, there is research that shows many sex offenders use drugs or alcohol while committing the sexual offense that gets them put on probation or sent to prison, but the research does not identify substance as a factor associated with re-arrest of a sex offender for a new sex offense (Hanson & Bussiere, 1998).

So, if you were constructing a risk assessment instrument for sexual reoffense among sex offenders, you would want to include the factor “male victim who is unrelated to the perpetrator.” You would not want to include in your risk assessment instrument a factor related to substance abuse. As you go through the scientific literature, you would perform this task repeatedly: Add items to your risk assessment instrument with a strong statistical relationship to reoffense and eliminate from consideration any factors with a weak or no statistical relationship to reoffense. When you are done looking at all the scientific research, you will have a list of factors that are “empirically derived”—i.e., the factors are derived from the research.

Empirically derived is not as good as empirically validated. When you empirically validate a factor, you use a scientific study to prove, or validate, that your factor is associated with risk for reoffense. This is exactly how the Static-2002 and the Level of Service Inventory-Revised were created. The authors of these risk assessment instruments created a list of risk factors and then examined how reoffense was related to each of these factors. Each of these instruments was studied in multiple studies involving thousands of offenders. Only those factors that were statistically related to reoffense were included in the final versions of the risk instrument.

Now that you have an understanding of the manner in which a risk assessment instrument is created, it is important to understand what a risk assessment instrument is and is not.

  • What a risk assessment is: A good way to understand what a risk assessment is is to view the results of a risk as­sess­ment in the same way that you look at the gas gauge in your car. If your gas gage is low, you won’t go far. If your gas gauge is high, you can potentially go very far. The same is true of a risk assessment. If a defendant gets a low score on a risk assessment instrument, the defendant has been identified as a person who likely won’t go far down the path towards the target behavior. On the other hand, if the defendant gets a high score on a risk assessment instrument, the defendant has been identified as one who will likely go far down the path toward the target behavior.Just like your gas gauge measures something that exists, a risk assessment measures something that exists. The gas gauge is measuring the gas in your gas tank. The risk assessment is measuring the risk in the defendant. It might be useful to think of the gas gauge and the risk assessment as measures of potential energy. Potential energy is stored energy. Potential energy is the potential to do work, or in the case of a risk assessment, it is the potential to do wrong.
  • What a risk assessment is not: Even though risk assessment is concerned about the future it is not a prediction of future behavior. At this time, it is impossible to predict the future. Risk assessments do not do the impossible. Risk assessments do the mundane, commonplace task of measuring some psychological characteristic that a person possesses right now, in the present.

Using the foregoing discussion of modern risk assessment, it is time to consider the two risk assessment instruments that should be part of the expert’s testimony during the sentencing phase of a sex offender trial.

Sexual Reoffense Risk Assessment

Risk is the likelihood that a person will exhibit a specific target behavior. The Static-2002 can be used to determine a defendant’s risk for sexual reoffense.

The Static-2002 is an actuarial risk assessment instrument that was empirically derived and empirically validated (Phenix, Doren, Helmus, Hanson & Thornton, 2003). The Static-2002 was subjected to rigorous scientific testing, which included the study of sex offenders who were in the community for ten years or more. The Static-2002 has good reliability (i.e., consistently measures risk accurately) and validity (i.e., scores correlate very well with other risk assessment instruments and with future behavior). The Static-2002 is used extensively by Licensed Sex Offender Treatment Providers. Fourteen items comprise the Static-2002.

1.  Current age: 50 years old or older = 0 points; 35 to 49.9 years old = 1 point; 25 to 34.9 years old = 2 points; and 18 to 24.9 years old = 3points

2.  Prior sentencing occasion for sexual offense: no prior sex offenses = 0 points; one prior sex offense = 1 point; two to three prior sex offenses = 2 points; and four or more sex offenses = 3 points

3.  History of juvenile sex offending: no arrest for a sexual offense prior to age eighteen = 0 points; one or more arrests for a sex offense prior to age eighteen = 1 point

4.  Rate of sexual offending: less than one sentencing occasion for a sex offenses every 15 years = 0 points; one or more sentencing occasion for a sex offense every 15 years = 1 point

5.  Any sentencing occasion for a non-contact sex offense: no = 0 points; yes = 1 point

6.  Any male victims: no = 0 points; yes = 1 point

7.  Young, unrelated victims: does not have two or more victims under age 12, one of which is unrelated = 0 points; does have 2 or more victims under age 12, one of which is unrelated = 1 point

8.  Any unrelated victims: no = 0 points; yes = 1 point

9.  Any stranger victims: no = 0 points; yes = 1 point

10.  Any prior involvement with the criminal justice system: no = 0 points; yes = 1 point

11.  Prior sentencing occasions for anything: less than 3 prior sentencing occasions in the individual’s life = 0 points; between 3 and 13 prior sentencing occasions in the individual’s lifetime = 1point; and, 13 or more sentencing occasions = 2 points

12.  Any community supervision violation: no = 0 points; yes = 1 point

13.  Years free prior to index sex offense: more than 36 months free from confinement prior to committing the sexual offense that resulted in the index conviction and more than 48 months free prior to index conviction = 0 points; less than 36 months free from confinement prior to committing the sexual offense that resulted in the index conviction or less than 48 months free prior to the conviction for the index sex offense = 1

14.  Any prior non-sexual violence sentencing occasions: no = 0 points; yes = 1 point

The authors of the Static-2002 have classified scores on the Static-2002 into groups such as low, low-moderate, moderate, high-moderate, and high. Their classification is difficult to use because they use labels such as “low moderate”—e.g., how is a “low” risk offender different from a “low-moderate” offender? In 2007, Calvin Langton, PhD, and a group of researchers developed a research-based Static-2002 classification system (Langton, Barbaree, Hansen, Harkins, & Peacock, 2007). These researchers classified low-risk offenders as having a Static-2002 score of four or less, medium-risk offenders have scores of five or six, and high-risk offenders have scores of seven or higher. Dr. Langton and his colleagues found the sexual reoffense rates for sex offenders in the community for ten years or more for low-, medium-, and high-risk offenders were 4.2%, 15.1% and 27.6%, respectively. Dr. Langton’s classification system is probably the best one to use because it is simple, appeals to common sense, and is based on research.

There is an important limitation to the Static-2002. The scoring guide for the Static-2002 states specifically that if a defendant’s only crime is child pornography, the Static-2002 cannot be used. In those cases, there are alternative sexual reoffense risk assessment instruments that can be used with pornography-only offenders, such as the SVR-20-20 (Boer, Hart, Kropp, & Webster, 1997). Like the Static-2002, the SVR-20 is widely accepted in the field, has been subjected to peer review, and has a known error rate.

The results of the Static-2002 risk assessment can be used during the plea bargaining process as well as during the sentencing portion of a trial. Defense attorneys trying to substantiate their position that a defendant warrants probation could use their client’s low score on the Static-2002 to help the state’s attorney see that the defendant would pose little risk to the public if he is placed on supervised released. On the other hand, the state’s attorney could use a defendant’s high score on the Static-2002 to show the defense that a prison term is warranted and plea bargain discussion about putting the defendant on supervised release make no sense from a public safety standpoint.

Risk Assessment for Violation of Conditions of Probation

Recall that risk is the likelihood that a person will exhibit a specific target behavior. The Level of Service Inventory-Revised is used to determine a defendant’s risk for non-sexual law violations and for violations of his or her conditions of probation.

It is important to understand just how specialized the LSI-R is, and I will call your attention to the fact that the LSI-R can assess a defendant’s risk for violations of his or her conditions of probation. Think about that for a moment. The LSI-R does not just assess an individual’s risk for law violations. It can assess the individual’s risk for violations of such probation rules as “refrain from contact with felons,” “pay probation fines and fees,” and “perform community service.” The fact that the LSI-R can assess risk for such unique requirements as those found in the conditions of probation should not be lost on anyone.

Another matter also deserves your attention. Recall the government study in which 5% of the sex offenders had a new sex crime. This study showed that up to 43% of the sex offenders had a new non-sex crime. Based upon these data, it should be clear that the sex offender’s largest risk to the community is for non-sex offenses, and that LSI-R can provide the trier of fact with scientifically based estimate of the sex offender’s risk for non-sexual offending. Because the sex offender is more at risk for non-sexual reoffense than for sexual reoffense, the LSI-R may be more relevant to sex offender sentencing decisions than the Static-2002 because the LSI-R assesses the sex offender’s most routine form of risk.

As for the LSI-R, it has been around a long time (Andrews & Bonta, 1995). This instrument was first researched and published in the 1970s. The LSI-R went through a major revision in the 1990s, and it has remained more or less the same since then, although there are some variants of the LSI-R (Lowenkamp, Lovins, & Latessa, 2009) and an LSI-R for youth has been developed (Schmidt, Hoge & Gomes, 2005).

The authors of the LSI-R note that the LSI-R samples many of the major and minor risk factors of criminal activity to provide comprehensive risk/needs assessment. There are 54 items on the LSI-R and a defendant is awarded one point for every item that applies to him or her. Defendants with low scores are good candidates for community supervision. In fact, researchers have developed a ranking system for LSI-R total scores: minimum risk (0 to 7), medium risk (8 to 15), and maximum risk (16 and up). The following are the risk categories of the LSI-R:

1.  Criminal History: number of arrests, history violent crime and revocation of supervised release

2.  Education: highest grade completed, any suspensions or expulsions from school, and relationship with teachers and classmates

3.  Employment: willingness to work, ever fired, and relationship with bosses and coworkers

4.  Financial: ability to pay bills and use of public assistance

5.  Family/Marital: relationship with significant other, parents, and siblings

6.  Accommodations: three or more residence changes in a year, satisfactory housing, and high crime neighborhood

7.  Leisure/Recreation: use of free time and participation in group-based recreation activities

8.  Companions: do friends and acquaintances have a criminal orientation

9.  Alcohol/Drug Problems: current or past alcohol or drug problems

10.  Emotional Functioning: current or past emotional problems

11.  Attitude: attitude toward society, societal standards and supervised release

Dr. Simourd (2004) provided a good synopsis of three decades of research regarding the LSI-R. Dr. Simourd notes that the LSI-R has been subjected to scientific study and published in peer-review articles and is accepted for use with male offenders, female offender, minority offenders, Native Americans, and juveniles. Separate studies of the use of the LSI-R with sex offenders show that the LSI-R provides an effective means for assessing risk among sex offenders (Simourd & Malcolm, 1998).

On a practical level, defense attorneys will find the LSI-R useful because most sex offenders do not have a history of criminal behavior, and the LSI-R can be used to statistically demonstrate the defendant’s low risk for non-sexual crimes. Prosecuting attorneys can use the LSI-R in those instances in which the sex offender does have a history of criminal conduct. In these instances, the prosecuting attorney should use the results of the LSI-R to show the defendant’s attorney that the defendant is a risk to the public, and, consequently, plea bargain discussions need to focus on incarceration, not probation.

Treatment and Prognosis

Prognosis is the likelihood that a person will make progress in treatment. In the sentencing portion of a sex offense trial, the defendant’s ability to make progress in sex offender treatment is the concern.

The available research shows that admission of guilt and acceptance of responsibility for the crime are both significantly associated with prognosis (Barrett, Wilson & Long, 2003). Sex offender treatment also places a premium on the offender’s ability to empathize with those harmed by his or her sex crime (Pithers & Gray, 1996). So, an assessment of prognosis should address both accountability and empathy. Some of the criteria for conducting an assessment of prognosis are delineated below:

  • Accountability: The defendant who accepts responsibility should be able to articulate the ways in which his or her crime was wrong. The defendant should be able to discuss how the crime violated societal standards (legal and ethical) and personal standards (personal ethics). When explaining how the crime was wrong, the defendant should not sidestep responsibility by blaming others or blaming the circumstances. Above all, the client should not blame the victim. It is important for the expert to be realistic about the accountability assessment. Taking a step away from sentencing issues and looking at human behavior in general, it is not uncommon for us to fail to see the complete picture of how our mistakes and misdeeds are wrong and most of us also have on occasion blamed others or circumstances for our missteps. Refocusing on the issue of sentencing, to expect a defendant to give “textbook” example of accountability is unrealistic, especially when the magnitude of the misconduct and its consequences are unprecedented in the defendant’s life.
  • Empathy: Empathy is the ability to feel what another person feels. If the defendant can feel the emotional pain that he or she caused others, the defendant can use these feelings as motivation to do well in sex offender treatment. The defendant with fully developed empathy will be able to recognize three categories of victims: Primary Victim (the actual victim); Secondary Victims (the family and friends of the victim and the defendant); and Tertiary Victims (coworkers, general public, those in the criminal justice system, taxpayers, etc.)

The assessment of prognosis is based almost entirely upon the expert’s interview with the defendant, although there is a psychological test that might be useful. The Personality Assessment Inventory (Morey, 1990) is an objective personality test with a statistically validated scale that identifies a person’s readiness for treatment. Treatment readiness is divided into three areas: motivation for treatment, ability to make progress in treatment, and tendencies that might undermine treatment. At this time, the treatment readiness scale of the Personality Assessment Inventory is probably the best empirical measure of prognosis.

Daubert Challenges

As you might expect from the extensive literature cited to this point, the Static-2002 and the LSI-R fare well when facing a Daubert challenge. Below you will find sample responses to each of the four questions of the Daubert challenge.

Since the Daubert challenge specifically asks about error rates, the discussion below includes a description of statistics. For those not familiar with the statistics used in the discussion below, here is a brief explanation of the Area Under the Curve (AUC) statistic, which is the statistic of choice when responding to Daubert questions about error rate.

The AUC statistic is from a family of statistics known as “signal detection” statistics. These statistics were originally developed by scientists trying to answer questions about the accuracy of radar signals (Marcum, 1947). Psychology borrowed the signal detection statistics and used it to measure a variety of factors, including human judgment (Tanner & Wilson, 1954). As the years passed, signal detection theory became more sophisticated and the AUC statistic was developed.

Even though the AUC statistic is sophisticated, its interpretation is simple. For example, an AUC statistic with a value of .50 equals chance—e.g., when flipping a coin, you have a 50% chance of being right, or AUC = .50 of being right. If on the other hand, you were correct in guessing the occurrence of an event 70% of the time, your AUC statistic would be equal to about .70.

Static-2002 Daubert Challenges

1.  Has the theory or technique been tested or is it subject to being tested?

  • The authors of the Static-99 developed the Static-2002.
  • These authors felt it necessary to improve upon the static-99 so there would be:
    ▶ Increased conceptual clarity
    ▶ Improved inter-rater reliability
    ▶ Elimination of paradoxical scoring
    ▶ Improved predictive accuracy
  • There were 4,596 subjects used to validate the Static-2002, with 1724 subjects coming from the United States (SOTEP California = 1137; Washington State = 587)

2.  Has the theory or technique been subjected to peer review and publication?

  • There have been at least 20 studies in which the reliability and validity of the Static-2002 has been assessed.
  • Langton et al (2007) did correlational studies of the Static-2002 and other sex offender risk assessment instruments and found that the Static-2002 correlated very well with those instruments: Static-99 (r = .80), SORAG (r = .71), RRASOR (r = .69), MnSOST-R (r = .58), and VRAG (r = .54)
  • Langton et al. (2007) found cut scores did a good job of identifying low-, medium-, and high-risk offenders. For a 10-year follow-up period, those with a score of 4 or less recidivated at a rate of 4.2% or less; those with scores of 5 or 6 recidivated at a rate of 15.1%; and those with scores of 7 or higher recidivated at a rate of 27.6%.

3.  What is the known or potential rate of error in applying the particular scientific theory or technique?

  • In the normative sample for the Static-2002, the authors found that it had an AUC = .716 for predicting sexual recidivism.
  • Langton et al. (2007) followed 464 sex offenders for an average of 5.9 years and obtained a AUC = .71.

4.  To what extent has the theory or technique received general acceptance in the relevant scientific community?

  • It is becoming the risk assessment instrument of choice among mental health professionals conducting risk assessments.
  • It might take longer for probation and parole departments in Texas to adopt the Static-2002 and replace the static-99 because it would cost money to train supervision officers to use the Static-2002.

LSI-R Daubert Challenges

1.  Has the theory or technique been tested or is it subject to being tested?

  • The Level of Service Inventory was created in the late 1970s and was revised and published in 1995 as the Level of Service Inventory-Revised. The Level of Service Inventory-Revised had been the subject of intensive study since that time, and hundreds of peer reviewed research studies have been published regarding the Level of Service Inventory-Revised. The Level of Service Inventory-Revised manual contains a listing of approximately 50 peer reviewed works about the Level of Service Inventory-Revised.

2.  Has the theory or technique been subjected to peer review and publication?

  • The Level of Service Inventory-Revised manual contains a listing of approximately 50 peer-reviewed works about the Level of Service Inventory-Revised.

3.  What is the known or potential rate of error in applying the particular scientific theory or technique?

  • Simourd (2004) reports that with respect to psychometric properties, the Level of Service Inventory-Revised has shown to have good internal consistency (coefficient alpha = .72), inter-rater reliability (r = .94) and temporal stability (r = .80).
  • “The false negative rate for the Level of Service Inventory-Revised is usually found to be approximately 2 to 3 percent. This means that when an individual is placed in low security based on a Level of Service Inventory-Revised score, there will rarely be any major problems with that individual. Andrews (1982) also found that even when an individual with a low Level of Service Inventory-Revised score transgresses, it was usually a minor incident” (Level of Service Inventory-Revised Manual, pg. 47).
  • When assessing female offenders, an AUC = .63 for total LSI-R score and general recidivism was obtained (Rettinger and Andrews, 2010).
  • When assessing male offenders, an AUC = .78 was obtained for total LSI-R score and general recidivism (Loza & Green, 2003).

4.  To what extent has the theory or technique received general acceptance in the relevant scientific community?

  • Simourd (2004) reports that the Level of Service Inventory-Revised had been successfully employed as a classification/management tool among an array of offender groups, including probationers, male inmates, female offenders, Native American inmates, juvenile offenders, and sex offenders.
  • The Level of Service Inventory-Revised is used in the Canadian Criminal Justice System and in many states in the US. It is also used in many European nations.

Direct Examination Questions

The following are suggested direct examination questions for an expert testifying about risk in the punishment phase of a sex offense case. The questions listed below are sufficient for eliciting all the relevant information from the risk assessment. Of course, you may want to add questions and explore additional matters during direct examination depending on the specific facts of your case.

1.  Please state your name.
2.  How are you employed?
3.  As a licensed psychologist what kind of work do you do?
4.  As a Licensed Sex Offender Treatment Provider, what kind of work do you do?
5.  Describe your educational background?
6.  What experience do you have that is relevant to this case?
7.  What did I ask you to do in this case?
8.  Have you done that kind of work before?
9.  Have you ever been designated as an expert and testified in court about your analysis and findings when you have done this type of work?
10.  Have you testified for the state as well as defense attorneys?
11.  What methodology did you use to conduct your risk assessment of Mr. Upshot?
12.  After reviewing all the evidence, do you have an opinion regarding Mr. Upshot’s risk for future misconduct?
13.  What is your opinion?
14.  What do you base that opinion on?
15.  Could you identify the first risk assessment instrument that you used and tell us what you found?
16.  Could you identify the second risk assessment instrument that you used and tell us what you found?
17.  Did you assess Mr. Upshot’s prognosis?
18.  What is prognosis?
19.  What is Mr. Upshot’s prognosis?
20.  What is your overall opinion regarding Mr. Upshot?
21.  Pass the witness.

Cross-Examination

Experienced experts who testify about risk and treatment will tell you that even though there are an infinite number of possible cross-examination questions, there are a finite number of categories from which cross-examination questions emanate. In preparing for cross-examination, it might be useful if the expert has reviewed the scientific literature and is prepared to respond to cross-examination questions that will likely come from one of four categories.

  • Group vs. Individual Statistics: The attorney conducting cross-examination of the expert may ask: “These risk assessment instruments yield reoffense rates for groups of offenders. How can you be sure that these group statistics apply to this individual?” Response: The expert should explain that the AUC statistic elucidates just how accurate the risk rating is. The AUC statistic would equal .50 if you were trying to guess the flip of a coin. For both the Static-2002 and the LSI-R, the AUC statistic is around .70, which is a 40% increase over just guessing.
  • Hypothetical: Some attorneys get into the guts of the Static-2002 and create a hypothetical about a sex offender whose offenses don’t match up with the scoring criteria on the Static-2002. For example, the attorney might ask: “Let’s say that the defendant had 1,000 sex offenses for which he was never caught. What would his risk level be on the Static-2002?” Response: Aside from being an improper hypothetical because it is not based upon the facts of the case, this hypothetical should not be a problem for the expert. The expert should agree that the Static-2002 cannot count events that are unknown, but once they are known, the Static-2002 does a good job of incorporating them into the risk assessment.
  • Soft Science: The attorney conducting cross-examination might denigrate the reliability of the risk assessments because risk assessments are soft sciences and as such they are not as trustworthy as hard sciences like medicine. Response: The AUC statistic used to measure the reliability of the risk assessment is also used to measure the reliability of medical techniques, like the x-ray. The AUC the curve statistic for x-rays of the hip is around .74 to .77 (Kirby & Spritzer, 2010), which is about the same as the AUC statistic for the Static-2002 and the LSI-R. The correlation coefficient is often used to explain the efficacy of risk assessments and medical procedures. For example, the LSI-R routinely has correlation coefficients of .30 to .50, between total LSI-R score and reoffense (Andrews & Bonta, 1995). This correlation is many times larger than the correlation for some familiar and trusted “hard science” events: correlation = .02 between aspirin and reduced risk of death by heart attack; correlation = .08 between ever smoked and lung cancer in the next 25 years; correlation = .11 antihistamine use and reduced runny nose and sneezing; correlation = .14 between non-steroidal anti-inflammatory and reduced pain; and correlation = .38 between Viagra and sexual performance (Meyer, Finn, Eyde, Kay, Moreland, Dies, Eisman, Kubiszyn, & Reed, 2001). All of these “hard science” correlations are a fraction of the correlations found for the “soft science” risk assessment techniques.
  • Moral Outrage: An attorney may question the expert about the inability of the risk assessment to measure the pain of the victim or the outrage of the community about the defendant’s misdeeds. Response: The risk assessment instrument does one thing and it does it very well. It measures risk. If we could only function as efficiently as the risk assessment instrument, we would be doing very well.

Conclusion

“After all, facts are facts, and although we may quote one to another with a chuckle the words of the Wise Statesman, “Lies—damn lies—and statistics,” still there are some easy figures the simplest must understand, and the astutest cannot wriggle out of.”

Mark Twain has attributed this quote to the famous British politician Benjamin Disraeli, even though careful review of Disraeli’s public speeches suggests that he never uttered those words. According to Martin (2010), the earliest use of this quote can be traced to a speech made by Leonard H. Courtney in New York, circa 1895. This quote is often shortened to “lies, damned lies, and statistics” when describing the testimony of the risk assessment expert.

Those inclined to see risk assessments as either “lies” or “damned lies” fail to appreciate the risk assessment zeitgeist, which is not limited to the area of sex offenders. Many risk assessment instruments have been empirically derived and empirically validated for a broad number of target behaviors. A sampling of some of the more popular risk assessment instruments includes the following:

  • History Clinical Risk—Twenty Factors (HCR-20): This instrument assesses the risk of adult males and females for acts of physical violence (Douglas & Webster, 1999).
  • Spousal Assault Risk Assessment (SARA) Guide: If you want to know if a man or a woman is a risk for domestic partner violence, you would use this instrument (Kropp & Hart, 2000).
  • Hare Psychopathy Checklist-Revised: The psychopath is the individual who produces the most crime and the most dramatic crimes, and with over 550 articles to its credit, this instrument does an unimpeachable job of classifying psychopaths (Hare, 2003).
  • Risk Assessment Scale for Prison—Capital Offender: It has been proven that all other risk assessments do not accurately assess capital offenders for future risk, so you should use this instrument if you need to know if an individual convicted of capital murder will be violent if the individual is not given a death penalty and placed in the general prison population (Cunningham & Sorenson, 2007).
  • Child Abuse Potential Inventory: For those cases where a parent is suspected of physically abusing a child, the CAPI can be used to identify those adults who are a high risk for physically abusing children (Milner, 1990).
  • Estimate of Risk of Adolescent Sexual Offense Recidivism (ERASOR): This instrument assesses an adolescent sex offender’s risk for new sex offenses (Worling & Curwen 2001).
  • Structured Assessment of Violence risk in Youth: Version 1.1 (SAVRY): Given the notoriety of some of the violence perpetrated by youth, you can use this instrument to determine if a juvenile is at risk for physical violence (Bartel, Borum & Forth, 2002).
  • Psychosocial Evaluation and Threat Risk Assessment (PETRA): When assessing school violence situations like the Columbine event, PETRA provides an actuarial assessment of threats made by students in school settings (Schneller, 2005).
  • Workplace Assessment of Violence Risk—Twenty-One Factors (WAVR-21): This instrument is designed to determine if an individual poses a threat of violence in the workplace, against coworkers or employers (White & Meloy, 2007).

The primary limitation to the use of risk assessment during sentencing is that it is a highly intellectual approach. In general, people use intuition and emotion more often than intellect when making decisions. There is research that shows we make up our mind based upon feeling, intuition, or emotion and then use intellect to justify the decision (Goleman, 1994). So, the risk assessment approach is limited because it does not appeal to the modal manner in which almost all decisions are typically made.

The only way to compensate for the limitation of risk assessment data is to couple it with emotional testimony. The defense attorney would want to pair risk assessment testimony with character witness testimony to get the most effective punishment testimony. The prosecuting attorney would want to pair risk assessment testimony with testimony from the victim or the victim’s family.

Having completed thousands of risk assessments, I would like to close this article by telling you something that only an old hand at risk assessments could pass along. In my opinion, a risk assessment is like the unthinking millstone that blithely crushes all in its path. Like the milestone, the risk assessment doesn’t care who the defendant is or who hired the expert to crunch the numbers. The risk assessment yields invariant results that do not cater to anyone’s bias, so it is up to the discerning attorney to use these assessments wisely.

References

Abel, G. G., Becker, J. V., Mittelman, M., Cunningham-Rathner, J., Rouleau, J. L. & Murphy, W. (1987) Self-reported sex crimes of non-incarcerated paraphiliacs. Journal of Interpersonal Violence, 2, 3–25.

Andrews, D. A. & Bonta, J.L., (1995) The Level of Service Inventory-Revised: Users Manual. Toronto: Multi-Health Systems, Inc.

Barrett, M., Wilson, R. J., & Long, C. (2003) Measuring motivation to change in sexual offenders from institutional intake to community treatment. Sexual Abuse: A Journal of Research and Treatment, 15, 269–283.

Borum, R., Bartel, P. & Forth, A. (2002). Manual for the Structured Assessment of Violence Risk in Youth (SAVRY), Version 1. Tampa, Florida: University of South Florida.

Boer, D. P., Hart, S. D., Kropp, R. P., & Webster, C. D. (1997). Manual for the Sexual Violence Risk-20. Vancouver, Canada: British Columbia Institute against Family Violence.

Cunningham, M. D., & Sorensen, J. R. 2007 Capital Offenders in Texas Prisons: Rates, Correlates and Actuarial Analysis of Violent Misconduct, Law and Human Behavior, Volume 31, 553–571.

Diamond, J. (1993) The Third Chimpanzee: The Evolution and Future of the Human Animal. New York: Harper Perennial.

Douglas K. S. & Webster, C. D. (1999) The HCR-20-20 Violence risk assessment scheme: Current validity in a sample of incarcerated offenders. Criminal Justice and Behavior, 26, 3–19.

Finkelhor, D. (1990) Early and long-term effects of child sexual abuse: An update. Professional Psychology: Research and Practice, 21, 325–330.

Goleman, D. (1994) Emotional Intelligence: Why It Can Matter More than IQ. NY: Bantam Books.

Hanson, R. K. & Bussiere, M. T. (1989) Predicting relapse: A meta-analysis sexual recidivism studies. Journal of Consulting and Clinical Psychology, 66, 348–362.

Hanson, R. K. & Morton-Bourgon, K. E. (2005) The characteristics of persistent sexual offenders: A meta-analysis of recidivism studies. Journal of Consulting and Clinical Psychology, 73, 1154–1163.

Hare, R.D. (2003). Psychopathy Checklist-Revised Technical Manual Second Edition. Toronto: Multihealth Systems, Inc.

Kirby, M. W. & Spritzer, C. (2010) Radiographic detection of hip and pelvic fractures in ED: Results. American Journal of Roentgeol, 4, 1054–1093.

Kropp, P. R. & Hart, S. D. (2000) The Spousal Assault Risk Assessment (SARA) Guide: Reliability and validity in adult male offenders. Law and Human Behavior, 24, 101–118.

Langan, P., Schmitt, E. L., & Durose, M. R. (2003) Recidivism of Sex Offenders Released from Prison in 1994. Washington, DC: US Department of Justice Office of Just Programs Bureau of Justice Statistics.

Langton, C. M., Barbaree, H. E., Hansen, K. T., Harkins, L. & Peacock, E. J. (2007) The reliability and validity of the Static-2002 among adult sex offenders with reference to treatment status. Criminal Justice and Behavior, 34, 616–640.

Lowenkamp, C. T., Holsinger, A. M., and Latessa, E. J. (2001) Risk/need assessment, offender classification, and the role of childhood abuse. Criminal Justice and Behavior, 28, 543–563.

Lowenkamp, C. T., Lovins, B., and Latessa, E. J. (2009) Validating the Level of Service Inventory-Revised and the Level of Service Inventory: Screening Version with a sample of probationers. The Prison Journal, 89, 192–204.

Loza, W. & Green, K. (2003) The Self-Appraisal Questionnaire: A self-report measure for predicting recidivism versus clinical-administered measures: A 5 year follow-up study. Journal of Interpersonal Violence, 18, 781–797.

Marcum, J. I. (1947) A Statistical Theory of Target Detection by Pulsed Radar. The Research Memorandum: 90. http://www.rand.org/pubs/research_memoranda/RM754/. Retrieved 2009-06-28.

Martin, G. (2010) The Phrase Finder. Retrieved from: http://www.phrases.org.uk/meanings/31000.html.

Mills, J. F., Jones, M. N. & Kroner, D. G. (2005) An examination of the generalizability of the LSI-R and Vrag probability bins. Criminal Justice and Behavior, 32, 565–585.

Milner, J. S. (1990) An Interpretive Manual for Child Abuse Potential Inventory. DeKalb, IL: PsyTech.

Meyer, G. J., Finn, S. E., Eyde, L. D., Kay, G. G., Moreland, K. L., Dies, R. R., Eisman, E. J., Kubiszyn, T. W. & Reed, G. M. (2001) Psychological testing and psychological assessment.: A review of evidence and issues. American Psychologist, 56, 128–156.

Morey, L. (1991) The Personality Assessment Inventory Manual. Lutz, FL: Psychological Assessment Resources.

Phenix. A., Doren, D., Helmus, L., Hanson, R. K. & Thornton, D. (2003) Coding Rules for Static-2002. Ottawa: Department of Solicitor General Canada.

Pithers, W. D. & Gray, A. S. (1996) The utility of relapse prevention in treatment of sexual abusers. Sexual Abuse: A Journal of Research and Treatment, 8, 223–230.

Rettinger, L. J. & Andrews, D. A., (2010) General risk and need, gender specificity and recidivism of female offenders. Criminal Justice and Behavior, 37, 29–46.

Schmidt, F., Hoge, R. D., & Gomes, L. (2005) Reliability and Validity analyses of the Youth Level of Service/Case Management Inventory. Criminal Justice and Behavior, 32, 329–344.

Schneller, J. (2005) Psychosocial Evaluation and Threat Risk Assessment. Lutz, FL: Psychological Assessment Resources.

Simourd, D. J. (2004) Use of dynamic risk/need assessment instruments among long-term incarcerated offenders. Criminal Justice and Behavior, 31, 306–323.

Simourd, D. J. & Malcolm, P. B. (1998) Reliability and validity of the Level of Service Inventory-Revised among federally incarcerated sex offenders. Journal of Interpersonal Violence, 13, 26274.

Tanner J., Wilson P., John A. Swets, J. A. (1954) A decision-making theory of visual detection. Psychological Review, 61, 401–409.

White, S. G. & Meloy, J. R. (2007) Workplace Assessment of Violence Risk—Twenty One Factors. San Diego: Specialized Training Services.

Worling, J. R. & Curwen, T. (2001) Estimate or Risk of Adolescent Sexual Reoffense Recidivism Version 2.0. Ontario: Thistletown Regional Centre for Children and Adolescents, Ontario Ministry of Community and Social Services.

TCDLA: Reflections on the Early Years

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Frank Maloney called me one day in early 1971 about forming what he proposed to call the Texas Criminal Defense Lawyers Association (TCDLA) and asked me to join, which I readily did. Thus, TCDLA was born! Frank Maloney was our first President and William (Bill) Reid our first Executive Director. Thanks, Frank and Bill. As I recall, there were 250 charter members. Prior to that the only voice we criminal defense lawyers had in Texas was the Criminal Law Section of the State Bar. However, that section alternated the chairmanship each year between prosecutors, criminal defense lawyers, and judges. In 1966 Judge Archie Brown and I were on the nominating committee of the section, Judge Anees A. Semaan was Chairman.

Frank Maloney, David Evans, Charlie McDonald, George Luquette, Weldon Holcomb, Tony Friloux, Charlie Tessmer, Harry Nass, Emmett Colvin, “V” Perini, Warren Burnett, Scrappy Holmes, Tom Sharpe, George Gilkerson, Phil Burleson, Travis Shelton, Clifford Brown, Jack Beech, Harry Hudspeth, Joe Goodwin, Bob Jones, Stuart Kinard, Jack Rawitscher, Bill Reid, Richard Thornton, Doug Tinker, several others, and I rolled up our sleeves and went to work at our own expense, going to various cities—including Fort Worth, Dallas, El Paso, Houston, Austin, San Antonio, and Corpus Christi—signing up new members and drumming up support for our fledgling organization.

It was great fun going from city to city, and I especially remember David Evans. He would saunter into an unsuspecting lawyer’s office, give his pitch, flip his hand palm up, and forcefully demand, “Okay. Gimme your check.” Almost invariably David got the check and recruited another new member! If that didn’t work Charlie McDonald and/or George Luquette would step in and usually “hit pay dirt.”

Our first Board meeting was at the old Holiday Inn off Mockingbird Lane near the entrance to Love Field in Dallas. I vividly remember Warren Burnett at that first meeting. Someone suggested that we have several special categories of members such as Regular Member, Special Member, and/or Distinguished Member, etc. Warren vigorously opposed all such suggestions and took the position that we all were and should be just plain Criminal Defense Lawyer Members.

We organized what we called “Criminal Defense Skills Courses” and presented them in San Antonio, Austin, Dallas, Fort Worth, Midland, Odessa, Houston, and elsewhere. They were plain vanilla, simple, and basic short courses about defending criminal cases and were well accepted by the members.

One time I was scheduled to conduct such a course in San Antonio on a Saturday morning at the Big Red courthouse and had obtained prior permission to use the large courtroom. I had several speakers lined up, some from out of town, papers had been mimeographed, and so on. Alas, to my chagrin I got a phone call around 2:00 pm on Friday from a county commissioner who deemed himself the Keeper of the Courthouse Keys. He informed me that we could not use the courthouse on Saturday for what he chose to call security reasons.

In desperation I managed to get hold of Brussi Reeves, our great friend the county judge. After I frantically explained my problem Brussi said, “Sit tight, Charlie and I will call you back.” In about 20 minutes he called and told me to go ahead, that he had taken care of the matter. Shortly thereafter the Keeper of the Keys called me and told me he had thought it over and had decided to allow us to have our seminar anyway. I thanked him profusely, knowing full well why he had changed his mind . . . “Brussi” Reeves! That early seminar was a great success, as were others that followed.

Several years later I was defending a deputy sheriff in a jury case before Judge Tom Rickhoff. During the prosecutor’s opening statement, Judge Rickhoff asked me to approach the bench and politely said: “Mr. Butts, please stop rattling your keys.” When I apologized, saying I didn’t realize I was doing so, the good judge laughed and said: “Well, okay, but you probably have forgotten that I attended that ‘skills course’ when you illustrated various ways to distract the opposition!”

During those early years we didn’t have much money. We did, however, manage to publish several paperback practice manuals containing forms of various sorts, sample pretrial motions, other motions, and articles on the practice of criminal law. Eureka! Along about 1975, we received our first big break—the birth of our Criminal Defense Lawyers Project!

Recognizing the need for well-trained defense counsel in state and federal courts, Governor Dolph Briscoe approved funding for the Criminal Defense Lawyers Project, a joint project of the State Bar of Texas and the Texas Criminal Defense Lawyers Association. Members of the Executive Committee were Phil Burleson (Chairman), Bob Jones, George Gilkerson, Weldon Holcomb, Jim Martin (Project Director), Scrappy Holmes (Project Consultant), and David Evans, President of TCDLA. This opened new horizons for TCDLA and broke ground for our renowned Texas Criminal Defense Lawyers Educational Institute (TCDLEI).

Our first major project was the compiling and printing of a three-inch-thick loose-leaf Federal Criminal Practice Manual. I served on the Editorial Committee with Jimmy Gillespie and Gerry Goldstein; Scrappy Holmes was Editor. In conjunction with that first Federal Criminal Practice Manual, the Project presented that year six three-day courses on federal criminal practice—a milestone indeed.

It was my privilege to author and present numerous papers to our early seminars on various subjects, including Closing Argument, Jury Selection, Reasonable Doubt, Cross-Examination, New Offenses Under the 1974 Penal Code, Demonstrative Evidence, Opening Statements, Ethics, and several others.

1971 marked the year of the second printing of Criminal Trial Strategy, a most useful and valuable book by Charles W. (Charlie) Tessmer, Charter Member of TCDLA, former President of NACDLA, and distinguished member of our Hall of Fame. In early 2003 I asked Charlie where one might purchase another copy of his book. He said it was out of print but he had retained the copyright from publisher John R. Mara Law Books. He graciously offered to give the copyright to TCDLA and/or TCDLEI, which indeed he did.

I was asked and honored to edit Criminal Trial Strategy and bring it up to date, being respectfully careful not to change Charlie’s unmatched style. Charlie Tessmer passed away July 3, 2003. The second edition was printed in September 2003 by the Texas Criminal Defense Lawyers Educational Institute. It contains a memorable tribute to Charlie by former TCDLA President Ronald L. Goranson.

We must not forget that when TCDLA needed its own headquarters, Waco’s Charles M. (Charlie) McDonald, our 1981 President and Charter Member, signed and guaranteed the note for that first mortgage. Charlie stepped in at a most opportune time indeed. Thank you, Charlie!

Shirley Butts, Senior Justice, Fourth Court of Appeals, made significant contributions to the success of TCDLA as an active member and Super Fellow of TCDLEI prior to becoming the first woman on that court. She and I collaborated on a paper entitled “Reasonable Doubt,” which was published in the Voice and the Journal of the National Criminal Defense Lawyers Association (NACDLA). She authored several other articles for the Voice for the Defense at the request of the Honorable Kerry Fitzgerald, now a most respected Justice on the Dallas Court of Appeals, when he was Editor of the Voice.

During my administration as President, circa 1987–88, TCDLA was blessed with the formation by the women of TCDLA Friends, which included both members and wives of members. What a great and important addition they have been to the success of TCDLA. Thank you, good Friends.

These Reflections would be incomplete without acknowledging and thanking Joseph A. (Joe) Martinez, our most honored Executive Director, who has taken us to new heights. Thank you, Joseph.

Let us lend our full support to President Trichter’s programs so that future Reflections will further demonstrate the unique success of TCDLA and TCDLEI.

January/February 2012 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
19 | Get Ready to Tighten Your Belts – By Jeanette Kinard
22 | Letter to TCDLA Membership – By Lydia Clay-Jackson
24 | Expert Punishment Testimony in a Sex Trial – By Matthew L. Ferrara
35 | The Anatomy of the Attorney-Client Relationship – By Kerry Max Cook
40 | TCDLA: Reflections on the Early Years – By Charles D. Butts

Columns
7 | President’s Message
9 | Executive Director’s Perspective
11 | Editor’s Comment
13 | Ethics and the Law
15 | Federal Corner
20 | Said & Done

Departments
4 | TCDLA Member Benefits
5 | CLE Seminars and Events
42 | Significant Decisions Report

President’s Message: TCDLA Is There for Us All – By J. Gary Trichter

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We criminal defense lawyers are citizen soldiers who have been sworn to uphold the Constitutions of Texas and the United States. Our oath and duty demand that we render both ethical and professional assistance of counsel. It is not enough that we provide competent help, but rather, we must provide effective help. Further, it is not enough that we provide effective assistance of counsel in most of our cases because our oath promise compels us to be effective in every case—no exceptions!

My 31 years of defense work have taught me that effectiveness only comes from putting in the necessary hours to learn the facts, law, science, and skills before you go to an evidentiary hearing or trial. In cowboy vernacular, it takes a lot of wet blankets if you want to ride a horse right!

Recently, at one of our seminars, I observed that many defenders there were unaware of the applicable DWI law and science relating to breath and blood testing cases. Indeed, it appeared that important and basic subjects—such as the DPS “Standard Operating Guidelines for Technical Supervisors” ( revised 4/18/2011); the repeal of Section 221.9, Texas Administrative Code (7/14/2011, relating to proficiency certification for Standardized Field Sobriety Testing) ; the scientific meaning of the phrase “uncertainty of measurement” (see Voice for the Defense, 5/2011); and ISO 17025 ( International Organization for Standardization guidelines/rules relating to general Requirements for the Competence of testing and calibration laboratories)—were not known). Also, it was noted that many were not up to speed on devices regularly used in blood testing prosecutions such as a pipette, an auto diluter, and the gas chromatograph. Understanding and acknowledging their deficiencies, these defenders rallied to gain the necessary education to make them effective—they made me proud of their thirst for knowledge and their desire to ride right.

Every time a defense lawyer enters a courtroom, that defender engages in a battle for justice not just for that particular client, but also for all defendants everywhere. Of import is the fact that there can be no promise of justice absent the defense lawyer. Our forefathers understood that having only a judge and prosecutor were insufficient measures to ensure fundamental freedom. Indeed, it was recognition of this truth that the guarantee of assistance of counsel was affirmatively written into the Sixth Amendment as a reserved freedom.

That said, every time a defense lawyer enters a courtroom, that defender must carry the responsibility and resolve that the sacrifices made by our military in protecting our freedom and liberty were not made in vain. We constitutional defense warriors have the privilege and honor to carry on their unfinished business of protecting rights and to dedicate our work to those brave service heroes who gave their all that we might remain a free people. We must have the same courage on our battlefields as they had in theirs if we are to hold true to our mission and oath.

We cannot accomplish this goal without first obtaining the necessary educational ammunition. Enter TCDLA! Your Association is a force and tool for freedom. It is your force and your tool! As an Association, it benefits each of you by multiplying your voice by more than three thousand times. As an Association, we promise each other that we need not stand alone, just as we promise our clients that they need not stand alone. As a tool, TCDLA is there to make available the very best legal education for you. Part of your duty is to seize upon that educational opportunity and to support TCDLA as it supports you.

There is a great task remaining before us, and its completion requires an ongoing alliance between each of us and our Association. That task is to promote and defend fundamental notions of fairness and justice. And so, let us strive together to remind the judges, prosecutors, and, most importantly, the citizens that ours is and must be a government of the people, by the people, and for the people! In Proverbs 18:21, NIV, it is written that “[t]he tongue has the power of life and death. . . .” We must be that tongue, that voice, that spirit of freedom and loudly declare that we, individually and collectively, will not falter in our duty! I am blessed to be amongst you!

J. Gary Trichter
Your President

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

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The Texas Criminal Defense Lawyers Board of Directors met on December 3, 2011, in Houston. The following motions were approved by the board:

MOTION: Minutes

  • Approve minutes from September 24, 2011 TCDLA Board Meeting in Austin. Motion made by Bill Harris, seconded by Greg Westfall. Motion carries.

MOTION: Canceling Bank Account and Transferring Funds

  • TCDLEI bank account had the wrong Tax ID. Motion made by Gary Trichter, seconded by Adam Kobs. Motion carries.

MOTION: Add Two Signatories to Bank Accounts

  • Bennie Ray and Marjorie Bachman will assist Sam in signing checks and verifying bank statements. Motion made by Gary Trichter, seconded by Emmett Harris. Motion carries.

MOTION: Three Resolutions, Bobby Mims

  • Bobby is asking the board to approve three resolutions honoring Dr. David Michael Wood, Thad W. Davidson, and James West Bogerdein for putting their careers and their own money on the line to free their clients from unjust sentences. Motion made by Sharon Curtis, seconded by Lawrence Boyd. Motion carries.

MOTION: To Make Justice Shirley Butts an Honorary Member of TCDLA

  • Motion made by Gary Trichter, seconded by Lydia Clay-Jackson. Motion carries.

Special thanks to Emily Detoto (Houston), JoAnne Musick (Houston), and Randy Wilson (Abilene), our course directors for the TCDLA Voir Dire seminar held in Houston in December. Thanks to their efforts we had 119 participants.

Special thanks to Sarah Roland (Denton) and Nathan Miller (Denton), our course directors for the Criminal Defense Lawyers Project (CDLP) 4th Annual Hal Jackson Memorial Jolly Roger Criminal Law Seminar held in Denton in December. Thanks to their efforts we had 97 participants.

Special thanks to Alexandra Gauthier (Austin), Randy Leavitt (Austin), and Bennie Ray (Austin), our course directors for the TCDLA DWI and Gas Chromatography: Defeating the Blood Test Case held in Austin. Thanks to their efforts we had an outstanding lineup of speakers and 117 participants.

Special thanks to the Lubbock Criminal Defense Lawyers Association (LCDLA) for allowing TCLDA and CDLP to co-sponsor the 31ST Annual Prairie Dog Lawyers Advanced Criminal Law Seminar held January 3–4, 2012. Also held in conjunction with the Prairie Dog seminar was a Federal Law seminar and a Nuts and Bolts seminar. All the seminars were held at the Texas Tech University School of Law. A very special thanks to William Boyles (Lubbock), President of LCDLA, for his steadfast leadership in overseeing the logistics of the training and events.

Thanks to Richard Anderson (Dallas) and Helen Leggit (Dallas), our course directors for Federal Law. Thanks to Will Boyles (Lubbock), David Guinn (Lubbock), Sarah Gunter (Lubbock), Anne Hazelwood (Lubbock), and David Hazelwood (Lubbock), course directors for the Prairie Dog and the Nuts and Bolts seminars. Thank to their efforts we had an outstanding lineup of speakers. We also had 172 participants at the Prairie Dog event and 57 participants at Nuts and Bolts.

TCDLA thanks Dean Darby Dickerson for her support of TCLDA and LCDLA. We also thank Associate Dean Calvin Lewis for his support at the events.

Special thanks to the Outlaw Grillers, Bill Trantham (Denton), Dennis Reeves , Natalio Hernandez, Dwight McDonald, Donnie Yandell, Robin Mathews, and David Hazelwood, all from Lubbock, who prepared a delicious barbecue meal for the 172 participants.

Special thanks to John Ackermann (Sunrise Beach), course director for the first Psychodrama Workshop, held at the Round Top Institute in Round Top, Texas. The workshop was co-sponsored with the Gerry Spence Trial Lawyers College in Wyoming. We had 38 participants at this first Psychodrama event.

John was more than course director. He was the guiding light and driving force in bringing this unique psychodrama training to Texas. He has been involved in training lawyers in psychodrama since the late ’70s in his work with Gerry Spence and the Trial Lawyers College.

On Saturday evening, John held a fundraising event, which raised $116,000 in pledges over the next five years from the participants. These funds will be used for this and future psychodrama trainings.

On March 22–23, 2012, the Texas Criminal Justice Integrity Unit, in conjunction with Senator John Carona’s Office, Senator Rodney Ellis’ Office, the Center for American and International Law, the Texas Center for the Judiciary, Texas Criminal Defense Lawyers Association, and Texas District and County Attorneys Association, presents the Mental Health and Substance Abuse Seminar. The seminar will be held at the Texas State Auditorium in Austin, Texas. We ask all our members to consider attending this substantive and relevant seminar. Please go to the Texas Court of Criminal Appeals website for more information.

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,” a cowboy theme. A fun run and bike ride will be part of the healthy lifestyle options that will be available.

Good verdicts to all.

Editor’s Comment: A Little Death Penalty Math, Part 2 – By Greg Westfall

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How much education could one death penalty case buy?

By the most recent numbers I have seen, it costs a county $500,000 to try the average death penalty case and, all things considered, approximately $2 to $3 million from investigation to execution.[1]

Even before our Governor and Legislature fleeced the school system this last session, Texas was already behind in how much we spent per pupil per year. In the 2009-10 school year, Texas spent $9,227 per student, which was $1,359 below the national average.[2] God only knows what it is now, but let’s just go with the $9,227 figure.

So let’s see, instead of trying to kill one, single person, a county could immediately pay for 54 children to go to school for a year. At the $3,000,000 dollar level, those same 54 children could go all the way through primary school.

What if we hired teachers instead?

Well, according to the Texas Education Agency, a public school teacher with 10 years of experience should cost approximately $37,000 per year,[3] and according to the figures recently released by the Texas Association of School Boards (TASB) and Texas Association of School Administrators (TASA), the average annual public school teacher salary is around $48,000.[4]

Thus, for the same initial outlay of half a million bucks, we could pay at least 10 public school teachers for a year. For three million dollars, we could keep them all around for six years. Maybe even give ’em a little raise.

When you throw in for good measure the fact that as of 2009, close to 60 percent of police chiefs polled agreed that the death penalty is not even an effective deterrent to crime,[5] it makes you kind of wonder why we still have it, doesn’t it?

Notes

1. “Life or Death,” Cleburne Times-Review, January 9, 2012, found at http://www.cleburnetimesreview.com/local/x2145129487/Life-or-death.

2. “Texas slips in per-pupil education spending among states,” Dallas Morning News, Jan. 28, 2011, found at http://www.dallasnews.com/news/state/headlines/20110128-texas-slips-in-per-pupil-education-spending-among-states.ece.

3. http://www.tea.state.tx.us/index2.aspx?id=2147501688.

4. “Survey shows average teacher salary at $48K per year,” Your Humble News, January 29, 2012, found at http://www.yourhoustonnews.com/humble/news/survey-shows-average-teacher-salary-at-k-per-year/article_62fdfbf9-719a-54ee-97bb-18345b1a5f5c.html.

5. Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis, Death Penalty Information Center, Oct. 2009, found at http://deathpenaltyinfo.org/documents/CostsRptFinal.pdf.

Ethics and the Law: Mules and Fools

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Historically, there have been fee disputes between lawyers and clients. Abraham Lincoln had a fee dispute and ended up suing for a $5,000 fee. Percy Foreman, whom I had the honor of talking to several times, and who with Allen Isbell co-wrote an article appearing in the HCCLA magazine, was sued several times over what clients claimed were excessive fees. Percy took money, stocks, bonds, cars, gas, motorcycles, furniture, and anything that was of value. He told me he would take everything a client had or could get for his fees. At the time of his death, $5,000,000 in bearer bonds was found in a sports coat he had hanging in his hotel room.

One reason for the 611 opinion is outlaw lawyers—lawyers who charge a lot of money and do nothing. I have met too many of those people and I am sure you have too. A lawyer in Houston is under federal indictment for taking a large sum of money in exchange for a promise to get a case fixed. Garth Bates, a criminal district judge in Houston, was sent to prison for taking bribes to fix cases. Historically, some prosecutors have taken money to make sure a case will not be filed. As stated many years ago by TCDLA, gunfighters do not charge by the bullet. Each case is different and each lawyer is different. Some lawyers may be able to get something done in a quick manner because of their experience and expertise, while others would lollygag forever and not get the job done. A lawyer might get a case no-billed because of a fast draw, while other lawyers complain when a case is no-billed because they state that then they cannot charge a fee. It is a disgusting idea, but there are bad apples in every barrel. We are in a big barrel. Who does the client want to hire? John Wesley Hardin, the fast-draw lawyer, or Rance Stoddard, the lawyer who was thought to have killed Liberty Valance but really did not.

A lawyer-client communication is the key to this whole dilemma. Make sure there is a clear understanding about what your fee will be for the services you are providing. Some of us have been blessed to charge a substantial fee just to be hired on a case. I call it a consultation fee. That is my fee for meeting with a client, investigating a case, and then giving a list of what I think I can do for him/her. The only promise that I can make is that I will do my best and do everything ethical to represent a client. After the consultation, I set a fee based on what I believe can be done.

The problem with fees arises in 2 ways. First, the client is a fool and complains work has not been done or the proper result was not achieved. NEVER MAKE GUARANTEES OR PROMISES, never tell the client you have special connections with the judge or prosecutor, and never take illegal proceeds or stolen property. Second, the lawyer does not do his/her job. Unfortunately, there are lawyers who take money and then laugh all the way to the bank. These lawyers are the ones who cause the dialogue about fees. To avoid this problem, make notes of every phone call, every jail visit, every client meeting, all work you do, and all of the work your investigator and assistant do.

Do not overreact to this advisory opinion. The issue has come up many times before. Do your job and follow your oath and remember the men and women who have, and are, fighting and dying to preserve our Constitution. The TCDLA Ethics Committee is continuing to work on this important issue, and when we get all facts and an answer, it will be announced. Unless you are independently wealthy, you need to be paid for your services. Make sure you do what you took an oath to do; otherwise, go to work for the government or be an insurance salesman, car salesman, or stock broker.

Meanwhile, when you get a client in an ethical manner, quote your fee, explain the fee, and when the client says they have no money, take the case on a pro bono basis or do what I do. If the client has no money, ask about stocks, bonds, coin collections, cars, guns, or motorcycles. The last case I took on I was representing a former police officer. He said he had nothing, just an old ski boat. I said bring it to my office and he did. It was a nice boat and now it is for sale.

The opinion issued September 2011 has raised a lot of concern among criminal defense attorneys over non-refundable fees. The 611 opinion is advisory only. All of the ethics committee co-chairs, along with myself and other lawyers, are trying to comprehend the 611 opinion and prepare our members on what to do. The Ethics Committee is like Las Vegas. It is open and available 24/7, 365 days a year. We never close. Our team has helped many members with ethical issues that have arisen and will continue to do so.

And remember, as Professor Ray Moses at South Texas College of Law would say, only 3 things work for free: mules, tools, and fools.

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