Monthly archive

March 2012

March 2012 SDR – Voice for the Defense Vol. 41, No. 2

Voice for the Defense Volume 41, No. 2 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

The Court unanimously rejected the comparable-grounds approach to determining whether a noncitizen convicted of a crime and facing deportation or removal can obtain relief under former Immigration and Nationality Act § 212(c). Judulang v. Holder, 132 S. Ct. 476 (2011)

        The U.S. Government initiated deportation proceedings against a resident alien who entered the United States in 1974, pled guilty to voluntary manslaughter in 1988, and pled guilty to a theft crime in 2005. The Board of Immigration Appeals (BIA) applied the comparable-grounds approach in deciding whether the alien was allowed to seek relief from deportation under former § 212(c) of the Immigration and Nationality Act, codified at 8 U.S.C.S. § 1182(c) (repealed). The BIA found that the alien was not allowed to seek § 212(c) relief because he was being deported pursuant to 8 U.S.C.S. § 1227(a)(2)(A)(iii) for committing an aggravated felony involving a crime of violence, and the “crime of violence” deportation ground was not comparable to any ground for exclusion, including the one for crimes of moral turpitude. The Supreme Court found that use of the comparative-grounds approach was arbitrary and capricious and violated the Administrative Procedure Act, 5 U.S.C.S. § 706(2)(A). The BIA was required to use an approach that was tied to the purposes of the immigration laws or the appropriate operation of the immigration system, and the comparable-grounds approach had no connection to those factors.

Due process does not require an inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances by law enforcement. Perry v. New Hampshire, 132 S. Ct. 716 (2012)

        D was charged with unauthorized taking and criminal mischief after police responded to a caller who reported that an African-American male was trying to break into cars outside his apartment; and, at the scene, the caller’s wife told police that she saw D open the trunk of a neighbor’s car. D moved to suppress the wife’s identification; the trial court denied the motion and convicted D of theft. The Supreme Court held that the Fourteenth Amendment’s Due Process Clause did not require trial judges to conduct preliminary assessments of the reliability of eyewitness identifications that were made under suggestive circumstances when the circumstances were not created by law enforcement personnel. A primary aim of the line of cases which excluded eyewitness identification evidence that was obtained under unnecessarily suggestive circumstances that police created was to deter police from using improper procedures, and that rationale was inapposite in cases where there was no improper police conduct.

Fifth Circuit

Although there was evidence that D was suffering from a mental condition, the court gave the question of D’s competency diligent attention over the course of five hearings, with the benefit of several professionals’ examinations. United States v. Simpson, 645 F.3d 300 (5th Cir. 2011)

        District court’s conclusion that D was refusing to do what he was volitionally capable of doing (i.e., that he was purposefully refusing to communicate with his attorneys) was neither arbitrary nor unwarranted.

        Second, D was not entitled to appointment of substitute counsel; even if there was a complete breakdown of communications between D and counsel, that was attributable to D’s refusal to talk with counsel and not to the neglect of counsel or the court. Nor did the appointment of “liaison counsel”—whose role was to bridge communication between D and his appointed counsel—violate the Sixth Amendment right to counsel. Liaison counsel’s role was not impermissibly ambiguous or indefinite. The Fifth Circuit also rejected D’s claim that liaison counsel had a conflict of interest because he was serving two masters (D and the court).

        Third, where noncapital D was scheduled to be tried with a defendant against whom the government was seeking the death penalty, but that defendant pleaded guilty after the jury had been selected, it did not violate D’s Fifth and Sixth Amendment rights when D was tried by the death-qualified jury. In such a circumstance, the trial court need not—but of course may—allow new jury selection.

The public authority defense requires a law enforcement officer who engages a defendant in covert activity to possess actual, rather than only apparent, authority to authorize the defendant’s conduct. United States v. Sariles, 645 F.3d 315 (5th Cir. 2011)

A habeas petitioner must overcome the limitations of 28 U.S.C. § 2254(d)(1) based solely on the record that was before the state court. Pape v. Thaler, 645 F.3d 281 (5th Cir. 2011)

        Although federal district court had, after an evidentiary hearing, granted federal habeas relief on the ground of ineffective assistance of counsel in the investigation and presentation of the defense case in D’s prosecution for aggravated sexual assault of a child and indecency with a child, the Fifth Circuit reversed the court’s decision and denied the habeas petition. The federal district court violated Cullen v. Pinholster, 131 S. Ct. 1388 (2011), in holding an evidentiary hearing on D’s allegations and relying upon evidence developed at that hearing to grant D relief. On the merits, and as judged on the state record alone, the state court did not unreasonably apply Supreme Court precedent when it found that defense counsel’s actions were legitimate trial strategy not constituting ineffective assistance.

Prosecutor’s closing argument crossed the line from permissible response on the issue of the agents’ lack of motive to lie into an impermissible emotional appeal to believe the agents simply because of their status as agents. United States v. Aguilar, 645 F.3d 319 (5th Cir. 2011)

        On appeal of ambulance driver’s convictions for conspiracy to possess, and possession of, marijuana found in a hidden compartment in the ambulance, prosecutor’s error was plain as the argument was clearly impermissible under existing precedent. Moreover, even on plain-error review, the improper argument merited reversal of D’s convictions, given that credibility—and, particularly, the content of an alleged statement by D—was central to the case. The Fifth Circuit vacated the convictions and remanded for a new trial.

D’s appeal of the district court’s disposition of his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (based on the retroactive amendments to the crack cocaine Guidelines) was rendered moot by his release from prison onto his term of supervised release. United States v. Booker, 645 F.3d 328 (5th Cir. 2011)

The State and the co-defendant did not have to reach a bona fide, enforceable deal to implicate the Brady disclosure requirement. LaCaze v. Warden La. Corr. Inst. for Women, 645 F.3d 728 (5th Cir. 2011), as amended on denial of reh’g, 647 F.3d 1175 (5th Cir. Aug 2, 2011)

        In Louisiana second-degree murder case, prosecution withheld material exculpatory/impeachment information in violation of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. Particularly, because D allegedly solicited Robinson to kill her husband, it violated Brady to withhold that the prosecution had promised Robinson that his 14-year-old son (who drove his father to and from the shooting) would not be arrested. There was a reasonable probability that disclosure of this agreement would have produced a different result. Robinson’s testimony was the only direct evidence of D’s intent; disclosure of Robinson’s bias might have put the whole case in a different light. The Fifth Circuit reversed the district court and remanded with instructions to grant the writ of habeas corpus.

D’s federal habeas petition was not time-barred under the AEDPA because, even though D voluntarily dismissed his Texas direct appeal, he could still have filed a PDR with CCA within 30 days after the dismissal. Mark v. Thaler, 646 F.3d 191 (5th Cir. 2011)

        Accordingly, his conviction did not become final until 30 days after the dismissal of his appeal, which meant that his federal habeas petition was (with applicable exclusions) filed within the Antiterrorism and Effective Death Penalty Act’s one-year limitation. The Fifth Circuit reversed the district court’s dismissal of the petition and remanded for further consideration. (Judge Garwood dissented. He would hold that D’s conviction became final not later than the date the state appeal was dismissed; this date would render D’s federal habeas petition untimely.)

Remote-in-time instances of sexual abuse or exploitation of a minor may form the basis of a 5-level “pattern of activity” enhancement under USSG § 2G2.2(b)(5). United States v. Bacon, 646 F.3d 218 (5th Cir. 2011)

        District court did not err in applying the enhancement to child pornography to D on the basis of his sexual abuse of his daughters over 30 years before. The Fifth Circuit agreed with all other circuits that have decided this question.

A Fed. R. Crim. P. 35(a) motion cannot preserve an error unless the error is arithmetical, technical, or otherwise clear. United States v. Henderson, 646 F.3d 223 (5th Cir. 2011)

        D’s motion to correct sentence under Rule 35(a) did not preserve for appeal the claimed error (i.e., that the district court impermissibly increased D’s sentence—from a Guideline range of 33 to 41 months up to 60 months—for rehabilitative purposes, in violation of Tapia v. United States, 131 S. Ct. 2382 (2011)). The claimed error was not clear in the Fifth Circuit at the time of sentencing; therefore, the Rule 35(a) motion did not preserve error, and the Fifth Circuit reviewed only for plain error. Likewise, because the error was not clear in the Fifth Circuit before Tapia, D’s plain-error claim foundered upon the second requirement of plain-error review—namely, the requirement that the error be “plain” at the time of trial.

District court committed reversible plain error in applying both an enhancement under USSG § 2T1.4(b)(1) and an enhancement under USSG § 3B1.3. United States v. Mudekunye, 646 F.3d 281 (5th Cir. 2011)

        Application Note 2 to § 2T1.4 clearly establishes that this is error. Moreover, D’s substantial rights were affected because, although the correct and incorrect Guideline ranges overlapped by one month, D was sentenced well outside the one-month overlap. The fourth prong of plain-error review was satisfied because the substantial disparity between the imposed sentence and the applicable Guideline range warranted the court’s exercise of its discretion to correct the error. The Fifth Circuit vacated D’s sentence and remanded for resentencing. (Judge Barksdale dissented, decrying what he viewed as an insufficiently stringent application of plain-error review to Guideline calculation errors.)

Although two defense witnesses declined to testify after being visited by government agents, the government had a right to talk to these witnesses, and the agents engaged in no behavior constituting a substantial interference with the witnesses’ free choice to decide whether to testify for the defense. United States v. Girod, 646 F.3d 304 (5th Cir. 2011)

        In this healthcare fraud prosecution, government did not impermissibly intimidate defense witnesses so as to require dismissal of the indictment. Nor did the government impermissibly impede defense access to a prosecution witness.

        Evidence that one defendant provided alcoholic beverages and marijuana to two of D’s company’s clients was not “intrinsic” to D’s charges, but rather was “extrinsic” evidence subject to the strictures of Fed. R. Evid. 404(b). The Fifth Circuit also expressed “skeptic[ism]” that this evidence would pass a Fed. R. Evid. 403 inquiry. Nevertheless, error in the admission of this evidence was harmless.

Government’s proof at trial was not a constructive amend­ment of the indictment, although the proof fo­cused on the obtaining of property from an individual—as opposed to the indictment, which focused on the ob­tain­ing of property from a political entity. United States v. Thompson, 647 F.3d 180 (5th Cir. 2011)

        In this Hobbs Act extortion prosecution under 18 U.S.C. § 1951, the Fifth Circuit did not believe that the jury was permitted to convict D upon a factual basis that effectively modified an essential element of the offense charged or on a materially different theory or set of facts than what was charged. To the extent there was a variance short of a constructive amendment, D conceded he was not prejudiced thereby, so that did not require reversal either.

        The compensation paid to the individual extortion victim did not preclude a finding that the victim was deprived of property as required under Hobbs.

Court of Criminal Appeals

While good behavior in prison is a factor to consider, it does not preclude a finding of future dangerousness. CCA can review the objective evidence of future dangerousness but does not review the jury’s normative decision on mitigation. Devoe v. State, 354 S.W.3d 457 (Tex.Crim.App. 2011)

        D was convicted of capital murder and sentenced to death. In this direct appeal, he raised nine points of error. CCA found them to be without merit, most notably D’s challenges to the sufficiency of the evidence at the punishment phase of trial. The following was sufficient to show future dangerousness: (1) during D’s crime spree, he attempted to kill one victim and killed three others; (2) he had a lengthy criminal history; (3) he had a lengthy history of abusing women; (4) he once attempted to strangle his mother; (5) he abused alcohol and drugs and tended to become more violent when he did so; and (6) inmates in Texas have access to drugs, alcohol, and weapons, and many violent crimes occur inside Texas prisons.

        CCA also rejected D’s claims that the trial court erred in allowing him “to be tried on copious amounts of extraneous offense evidence” at the guilt phase. Whether extraneous offense evidence has relevance apart from character conformity, as required by Tex. R. Evid. 404(b), is a question for the trial court. The trial court did not abuse its discretion by admitting extraneous evidence of D’s theft of a gun, the aggravated assault of one victim, the killing of the victim from whom he stole the vehicle, and the robbery of yet another victim. It was within the zone of reasonable disagreement to find the various offenses to be contextual evidence. D did not rest between incidents, and he stole the gun to go after women and to flee.

An Article 38.072 hearing is intended only to determine the reliability of complainant’s out-of-court statement; D’s opportunity for cross-examining the outcry witness at such a hearing is inadequate to allow the admission of the hearing testimony at trial. Sanchez v. State, 354 S.W.3d 476 (Tex.Crim.App. 2011)

        D was convicted of four counts of indecency with a child by sexual contact and one count of aggravated sexual assault of a child. Because the State’s outcry witness suffered a loss of mental faculties and was unavailable to testify at trial, the trial court allowed the witness’ testimony from a pretrial Tex. Code Crim. Proc. art. 38.072 § 2(b)(2) hearing to be read to the jury. CCA held that because an Article 38.072 hearing provides a defendant with an inadequate opportunity to cross-examine an outcry witness’ credibility, the trial court erred by admitting the testimony since the witness was unavailable; doing so violated D’s Sixth Amendment rights. CCA reversed COA and remanded for an analysis of the harm caused by the admission of the testimony.

In the debit-card-abuse statute, “use” and “present” may overlap in meaning, and a transaction need not be consummated to support a finding that a defendant used a debit card. Clinton v. State, 354 S.W.3d 795 (Tex.Crim.App. 2011).

        A jury convicted D for debit card abuse under Tex. Pen. Code § 32.31(b)(1). COA reversed for insufficient evidence and reformed the judgment to reflect a conviction for the lesser-included offense of attempted debit card abuse. The State contends that COA erred by finding D’s presentation of the debit card failed to prove she “used” the debit card and by requiring that “use” of a debit card include proof of consummation of the transaction.

        The statute provides that a person may be guilty of debit card abuse either by using it or presenting it. But because the indictment limits the manner and means of committing debit card abuse to only “use,” the State must prove that D used the debit card for the evidence to be sufficient. Based on the ordinary meaning of the words as used in the statute, CCA concluded that “use” and “present” may overlap in meaning, that a transaction need not be consummated to support a jury finding that a defendant used a debit card, and that COA erred by determining that the evidence is insufficient to establish debit card abuse. Because the dictionary definitions of “use” and “present” do not depend on obtainment of a benefit, the plain language of the statute makes apparent that an individual need only have utilized the card for the intended purpose of obtaining a benefit. Examining all the evidence in the record in the light most favorable to the verdict, the evidence shows that D “used” the card when she swiped it through the card reader for the purpose of purchasing cigarettes. CCA reinstated the trial court’s judgment.

A 23-year pre-indictment delay for the offense of murder does not offend due process. State v. Krizan-Wilson, 354 S.W.3d 808 (Tex.Crim.App. 2011)

        For the offense of murder, the Texas legislature has intentionally chosen not to define a statute of limitations, explicitly allowing prosecutors to indict suspected murderers when they are ready to do so, and has determined that any such delay, without more, does not offend the community’s sense of fair play and decency. Even though D suffered prejudice from the lengthy delay, as her original attorney and investigator had died and their files had been lost, D failed to prove that the State delayed its prosecution to gain tactical advantage or for other bad faith purposes; therefore, the trial court erred in dismissing the indictment.

The trial court erred in refusing to instruct the jury on the medical-care defense to digital penetration because D’s conduct fell within the purview of the defense. Cornet v. State, No. 1067-10 (Tex.Crim.App. Jan 25, 2012)

        CCA held that (1) the availability of the defense did not turn upon the accused’s familiarity with the science of medicine; (2) the defense could be raised by evidence supporting a “mere” medical inspection; and (3) the evidence, if believed by the jury, would support a rational inference that D’s touching of the child victim was, in fact, an inspection for a medically relevant purpose. D claimed that he examined the victim, his stepdaughter, to see if she had any physical evidence of sexual contact or injury and that the examination came to a halt once he determined that there was nothing wrong with her. CCA further held that sufficient evidence existed to show that D essentially admitted, under the doctrine of confession and avoidance, to the element of penetration. CCA remanded to COA to determine the extent of the harm, if any, resulting from the trial court’s error.

The trial court erred in including in the jury charge a definition of the statutorily undefined term “operate” as it is used in the DWI statute. Kirsch v. State, No. 0245-11 (Tex.Crim.App. Jan 25, 2012)

        D petitioned that COA erred by affirming the trial court’s charge to the jury, which included a definition of “operate” as used in the DWI statute. In defining “operate” as “to exert personal effort to cause the vehicle to function,” the trial court selected one definition of a statutorily undefined, common term that the jury could have selected to assess the evidence and instructed the jury that they “must be governed by” that definition. Although this is an appropriate definition for an appellate court to apply in assessing the sufficiency of the evidence to support the “operate” element, instructing the jurors as to that definition in this case impermissibly guided their understanding of the term. Furthermore, the definition emphasizes evidence tending to show “personal effort” toward causing the vehicle to function over evidence that would tend to show “merely preparatory attempts to start the motorcycle,” which the jury could have reasonably decided did not constitute “operating.” CCA remanded to COA to determine whether D suffered harm as a result of the erroneous instruction.

D did not invoke his right to counsel, even though he previously said he wanted a lawyer, because he was willing to talk to police without counsel; detectives gave D his Miranda warnings in Spanish three separate times, and at no time did he invoke his right to an attorney. Pecina v. State, No. 1095-10 (Tex.Crim.App. Jan 25, 2012)

        A jury convicted D of the murder of his wife. The trial judge denied D’s motion to suppress his statements to police during custodial questioning at a hospital after a magistrate gave him his Tex. Code Crim. Proc. art. 15.17 rights. The trial judge rejected D’s claim that he had invoked both his Fifth and Sixth Amendment rights to counsel when he asked the magistrate for an appointed attorney but also said he wanted to talk to the police who were standing outside the hospital room. The Fifth Amendment right to interrogation counsel is triggered by the Miranda warnings police must give before custodial questioning. The Sixth Amendment right to trial counsel is triggered by judicial arraignment or Article 15.17 magistration. Both the Fifth and Sixth Amendment rights to counsel apply to post-magistration custodial interrogation, but each is invoked and waived in exactly the same manner—under Fifth Amendment Miranda rules. CCA held that because D never invoked his right to interrogation counsel after the police gave him Miranda warnings, the trial judge did not err in denying D’s motion to suppress.

An oral ruling is not “an order” for the purposes of es­tab­lishing the decision of the trial court. State v. Sanavongxay, No. 1809-10 (Tex.Crim.App. Jan 25, 2012)

        The trial judge orally ruled on the defense motion for a continuance and did not rule on the defense motion to suppress DNA evidence but, on its own motion, chose to exclude the DNA evidence because of the State’s tardy notice to the defense. No order was signed. Because there was no order from which to appeal, no writing that memorialized the trial court’s informal notations on the motion to suppress or the judge’s explanation of her non-ruling, COA correctly held that it had no jurisdiction over the State’s appeal.

D’s choice to testify during sentencing was voluntary, and his Fifth Amendment right to remain silent was not violated, because neither statement by the trial court amounted to a threat that D would be penalized for exercising his constitutional right to remain silent. Johnson v. State, No. 0527-11 (Tex.Crim.App. Jan 25, 2012)

        The trial court’s first statement asking whether D would be testifying was a reasonable exercise of control over the mode and order of interrogating witnesses and presenting evidence pursuant to Tex. Code Crim. Proc. art. 37.07 § 3(a)(1). The trial court’s second statement, asking about what D did in the 18 years between his arrests, would be perceived by a reasonable person as a request to offer mitigating evidence rather than an implied threat of punishment.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Officer asking about driver’s previous whereabouts “is standard procedure during [any] traffic stop.” Cantu v. State, No. 04-10-00533-CR (Tex.App.—San Antonio Sep 14, 2011)

        “Moreover, the overall duration of the traffic stop was relatively short. . . . The record does not support the conclusion that [officer] strayed from the initial purpose of the stop or that [officer] unnecessarily delayed the detention.”

A reminder that stopping a driver on suspicion of being intoxicated is proper even if the driver did not commit a traffic offense. Powell v. State, No. 03-10-00728-CR (Tex.App.—Austin Sep 14, 2011)

D unsuccessfully argued that (1) because search warrant affidavit described an uncontrolled buy, it was insufficient to show that contraband would be found at specific address; and (2) presence of the unknowing participant described in the affidavit interposed a layer between the confidential source and the transaction that misplaced reliance on said transaction. Bibbs v. State, No. 07-11-00064-CR (Tex.App.—Amarillo Sep 15, 2011)

        D contended that within the drug trade, such elaborate subterfuge and misdirection may be reasonably expected due to paranoia regarding police or rival drug dealers. “While we agree with [D] that it is possible that a drug dealer might employ such elaborate precautions, it is more logical to infer that the unknowing participant in this case went to [specific address] to pick up the cocaine from that location. Thus, we conclude that the magistrate made a practical, common sense decision that, given the totality of the circumstances set forth in the affidavit, there was a fair probability that contraband or evidence of a crime would be found at [specific address].”

D lacked standing to challenge search of vehicle, despite undisputed testimony that owner of vehicle had loaned D the vehicle for several months to drive at D’s will. Castaneda v. State, No. 08-10-00050-CR (Tex.App.—El Paso Sep 28, 2011)

        “[D] testified that he had access to the vehicle and was allowed to drive it, with or without [the owner], for a period of about two or three months.” COA concluded that D had no standing because at the time the vehicle was searched, D was not occupying it nor did he own it.

Sufficient evidence to support DWI, despite testimony from the manager of the bar from which D was driving that “[D] commonly mumbles and giggles and talks to herself as a result of her prior head injury.” Zill v. State, No. 01-10-00679-CR (Tex.App.—Houston [1st Dist] Oct 6, 2011)

        “Although [D’s] behavior during the traffic stop may have been consistent with a head injury, her behavior also constitutes recognized evidence of intoxication. . . . The jury was fully entitled to believe [officer] that [D] was intoxicated and disbelieve [D’s] alternative explanation that her prior head injuries caused her behavior.”

D deemed intoxicated at the time of accident, despite negative results of blood-alcohol test and despite expert testimony that D’s drunken-like demeanor is consistent with the symptoms of D’s mental disorders. Kiffe v. State, No. 01-10-00746-CR (Tex.App.—Houston [1st Dist] Oct 13, 2011)

        D admitted taking certain prescription drugs such as valium on a regular basis (including the night before the accident) but not necessarily on the day of the accident. “[The expert] testified that [reasons other than intoxication] could explain all of the symptoms observed by [officer and other eyewitnesses]. . . . The jury could have reasonably chosen to place greater weight on the testimony of the witnesses, who observed [D] on the day of the offense, than [the expert], who observed him months later.”

Officer lacked RS to stop vehicle leaving neighborhood despite the late hour (1 a.m.) and despite officer’s hunch that the occupants were part of a burglary ring. Turner v. State, No. 05-10-01225-CR (Tex.App.—Dallas Oct 18, 2011)

        “[D] was not pulling out from a dark area behind a business that had been closed for an hour. Rather, he was parked on a neighborhood street, turned on his light, and pulled away from the curb as [officer] pulled onto the street. . . . In fact, [officer] could not give an exact date as to whether or not there had been any recent car thefts, but he estimated there may have been five in the neighborhood within the past year. While he did testify the number of occupants in the car could indicate a burglary ring because such rings usually travel in groups, he did not see a lookout, he did not see anyone running from the house towards the car or wearing dark clothes, nor did the car appear to be weighted down with stolen merchandise. Thus, his testimony that [D] and his occupants might be part of a burglary ring was based on nothing more than a mere suspicion or a hunch, rather than articulable facts.”

Trooper had RS to continue detention while awaiting a canine to sniff vehicle based on D’s nervousness and officer’s belief that D had misrepresented that she had never been arrested when, in fact, she had nine prior arrests. Hamal v. State, No. 02-09-00448-CR (Tex.App.—Fort Worth Sep 22, 2011), reh’g overruled Oct 27, 2011

        However, because of the ambiguous wording of officer’s question (“Have you ever been in any trouble for anything?”), it was debatable whether officer was reasonable in believing D correctly heard his question and understood it as asking whether she had ever been arrested. COA held that an exclusionary-rule instruction was warranted. Trial court’s failure to include said instruction constituted egregious harm, resulting in reversal.

War Stories: Mitigation for Clients Who Are Veterans

A client’s past or present military service can tell a powerful mitigating story that may increase your leverage for a non-trial disposition, or lead to a better result at trial. In 2009, the U.S. Supreme Court overturned the death sentence of Korean War veteran George Porter, largely because his counsel failed to explore the mitigating potential of his military service. Porter v. McCollum, 130 S.Ct. 447 (2009). As the Court reminded readers in Porter, “Our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.” Veterans returning from the front lines of our more recent wars stand to benefit from this same tradition. What follows are suggestions on how to frame mitigation evidence for a client who is a veteran, and where to find this evidence.

Military Service in Perspective

In spite of the heightened attention brought on by two recent and long wars, military service remains a rare calling in modern American society. According to Department of Defense statistics, there are currently 2.2 million members of the active and reserve armed force, which totals less than 1 percent of the U.S. population. Surviving veterans of all wars total a mere 22 million, or less than 10 percent of the U.S. population. Even in prisons, the most recent comprehensive Department of Justice study found that the overall state and federal incarceration rate of veterans is less than half that of non-veterans. As members of a relatively small subgroup, military veterans are likely to have unique mitigation stories compared to non-veteran clients.

Many state and federal jurisdictions have established favorable mitigation environments for military veterans. Twenty states now have special veterans courts offering small-time offenders alternatives to jail—a movement arising partly from growing concerns about the stressors of the wars in Iraq and Afghanistan.1 At least nine counties in Texas have veterans court programs, with hopefully more on the way.2

Given this broad judicial endorsement, a client’s military service can carry real weight before a fact-finder. No amount of military service is too insignificant. In common usage, “veteran” means anyone who served for any length of time in any military service branch.3 Federal law applies a narrower definition for receiving veteran’s benefits. But one does not have to had served in combat or be retired from the military in order to be considered a veteran.

How Military Service Can Lead to Mitigation Themes

The military’s small size in comparison to society at large results in a unique subculture.4 Anyone who joins this military subculture sets himself or herself apart from greater society in identifiable ways. The following themes (in parentheses) are only a few examples of what military experience can say about an individual.

If your client joined the military since 1973, he or she voluntarily joined a dangerous profession5 (theme: he/she chose a path that few do). If joining since 2001, your client voluntarily did so during a time of war (a patriot). Acceptance into the military requires mental and physical fitness (he/she was well-conditioned at the time, or had problems that the military overlooked). Joining the military involves personal and physical risk (courageous, or a risk-taker). Military culture curtails individuality for the sake of discipline (he/she tolerates or needs structure). Military training includes exposure to weapons and combat conditions (desensitized to violence). Awards of rank recognize increasing degrees of responsibility (a trustworthy person). Military service demands teamwork in stressful situations (a contributor). The military trains in identifiable job skills (valuable to society).6 Talk to your client about his or her decision to join the military, and you will likely find the start of mitigating themes.

The Other Side of Mitigation: Traumatic Military Experiences

As it did for George Porter, military service may have affected your client’s mental and physical condition, both now and at the time of the alleged crime. The plights of some recent war-torn veterans have heightened awareness of PTSD, TBI, and related conditions among service members. A widely referenced RAND report, relying on 2007 data, concluded that about one-third of Iraq and Afghanistan veterans have suffered from PTSD, major depression, and/or TBI.7 About five percent of veterans in the study reported symptoms of all three conditions.8 Recent Texas reporting has chronicled the readjustment struggles of the nearly 20,000 veterans returning to Fort Hood, which has been “the Army’s busiest deployment hub since 2001.”9

Individual reactions to combat vary widely. In a multigenerational study (of non-veterans), UCLA researchers concluded that the genetic makeup of some individuals makes them more vulnerable to PTSD, anxiety, and depression.10 In October 2010, the Secretary of Defense acknowledged during a DoD Domestic Violence Awareness Campaign that the “extraordinary stress” of multiple deployments and other military hardships has strained military families.11 And a recent Pew survey found that education level, religiosity, and other factors can help predict to what degree war returnees will have difficulty readjusting to civilian society.12 In the author’s experience, post-deployment adjustment difficulties are a frequent reason that veterans seek out mental health services.

The link between PTSD and crime is much discussed but underexplored.13 Several military legal articles have addressed PTSD and related conditions among service members involved in military legal proceedings.14 These may be useful references if your client is suffering from PTSD or TBI, particularly if he deployed to a combat zone.

The possibility of PTSD, TBI, or related conditions should be explored even if your client never served in combat. Military life offers plenty of unique stressors in garrison: long tours of duty away from home, a highly regimented lifestyle that puts junior members at the mercy of their superiors, and involvement in training exercises that replicate the horrors and difficulties of combat. Military members train around dangerous equipment, chemicals, and other hazards. Do not overlook whether the overall stresses of military life may have influenced your client’s behavior.

Military Records and Where to Find Them

Fortunately for mitigation purposes, the military is prolific at generating records. The first records request for a veteran should be the Official Military Personnel File (OMPF), which contains an individual’s official service history. Obtaining these records is much easier with your client’s cooperation. If your client is still actively affiliated with the military, he or she can sign up for an account to access records online through the Veteran’s Administration (VA).15 Separated veterans can use the same process, but only after verifying their identity at a VA Regional Office.16 For a client who is already in jail or otherwise inaccessible, the National Personnel Records Center is the best centralized source for locating and requesting personnel, medical, and psychological records.17 The Army, Air Force, Navy, and Marines also maintain their own personnel records databases for individuals who served in their components.18

Military records condense a lot of important information, so work closely with your client to unpack their meaning. For example, one of the key personnel documents in the active Army is the Enlisted Record Brief (ERB, for enlisted members), or Officer Record Brief (ORB, for officers), which is essentially a one-page military résumé that lists assignments, education, overseas service, awards, entrance test scores, and other data. In courts-martial, a certified copy of this brief is usually entered into evidence during the pre-sentencing phase of trial. Other military services have equivalent records, which provide a convenient snapshot of your client’s military service.

Pay particular attention to your client’s awards or other military accolades, as they are steeped in military tradition and history and may have significant mitigating value. Military decorations and awards have specific qualifying criteria. Their narrative descriptions can provide useful mitigation, particularly if they describe acts in combat. The Purple Heart, for example, is a well-known decoration for service members wounded in action against the enemy, among other criteria. A medal augmented with a “V” device, for example, means that the medal was awarded for acts of valor. The DoD’s Institute of Heraldry has online descriptions of the history, description, and criteria for military decorations and medals.19 The National Personnel Records Center has online information for requesting reissuance or replacement of a missing award.20

Veterans are also more likely to have well-documented physical and psychological histories than non-veteran clients. Every service member undergoes mental and physical evaluations upon joining, periodically throughout service, before and after deployments, and when separated. A Department of Defense Instruction requires detailed health assessments of all deployed service members before, during, and after deployment,21 which should include documentation of PTSD and TBI symptoms along with physical ailments. Service regulations also require PTSD and TBI screening prior to the administrative separation of a service member. The Army’s enlisted separations regulation, for example, requires high-level review and screening before a soldier with deployment-related experience can be separated for a personality disorder.22

Military Character Witnesses

Maximum mitigating impact could come from the personal testimony of those who served with your client. In George Porter’s case, his commanding officer provided what the Supreme Court called a “moving” description . . . of the two battles that he fought in the Korean War.”23 Former commanders, supervisors, peers, and subordinates are worth seeking out for insight into your client.

All armed services but the Army provide personnel locator services for both active and retired military members.24 Upon request, the VA will forward a message to any veteran within their system.25 Many military units also maintain their own publicly available web pages. Organizations such as the Veterans of Foreign Wars may be able to assist in contacting individual members. Finally, a multitude of social networks on Facebook and elsewhere have sprung up to help military members find each other.26

Collateral Consequences of a Conviction

Many veterans entitlements are affected by a state or federal con­vic­tion. Understanding the collateral consequences of a con­vic­tion for a veteran is crucial to developing a complete miti­gation case.

A veteran confined in a local, state, or federal facility for a felony or misdemeanor conviction for more than 60 days loses his military pension for the length of confinement.27 This pension may, however, be redirected to a spouse or children while confined.28 Disability compensation is also reduced.29 A veteran convicted of a state or federal capital crime is not entitled to military burial honors or burial in a military cemetery.30 A veteran convicted of certain offenses related to espionage, treason, or subversive activities permanently forfeits all veterans benefits, including military burial rights, unless pardoned by the president.31 It is important to understand how these laws and regulations may affect your client.

Where Else to Go for Help

Organizations ranging from state Departments of Veterans Affairs32 to local public defender offices33 offer information for veterans involved in the criminal justice system; there may be such an organization in your area. While not involved in the criminal process, the Texas Veterans Commission is the official state information hub to help ensure veterans receive the benefits to which they are entitled.

If your client is currently a member of the active military or reserves, he or she may be entitled to the assistance of a li­censed military defense attorney, or Judge Advocate, who operates somewhat like a public defender. Although Judge Advocates normally cannot represent service members in civilian proceedings, a still-active service member who is facing civilian criminal charges is likely also undergoing some type of adverse process in the military. Discovery rules in the military are broad for both administrative and criminal proceedings, and a Judge Advocate may have access to relevant information about a mutual client that could also benefit the client’s civilian case.

Reserve and retired military members can be found in every walk of life, and may be able to assist in other ways. The author is personally aware, for example, of a reserve military member who was qualified as an expert in a state criminal trial to help explain military personnel records and awards. Such experts can help an unfamiliar judge or jury understand the value of military service.

Conclusion

Just as you may find yourself unfamiliar with mitigation unique to military veterans, a jury or judge may be equally unfamiliar with military service. The mitigating potential of military service is well-regarded in history, the law, and current practice. As the Supreme Court recently recognized, a full exploration of mitigation for a military veteran is an effort worth pursuing.

Notes

1. Neale Gulley, Nation’s First Veterans Court Counts its Successes, Reuters, Jan. 9, 2011, http://www.reuters.com/article/2011/01/09/us-court-veterans-idUSTRE7082U020110109?pageNumber=1 (last visited DATE).

2. See http://www.tamus.edu/home/veterans/resources/courts/ (as of July 2011).

3. “What Is a Veteran?” http://www.americanwarlibrary.com/whatvet.htm#no1 (last visited Apr. 3, 2011).

4. For a good summary of military structure and demographics relevant to mitigation, see the online presentation by Patricia J. Watson, Ph.D., “Understanding Military Culture when Treating PTSD,” United States Dept. of Veterans Affairs, National Center for PTSD (updated Oct. 21, 2010).

5. Background of Selective Service, http://www.sss.gov/FSbackgr.htm (July 28, 2009)(last visited Apr. 3, 2011).

6. Every member of the military is identified with a specific job function, known as a Military Occupational Specialty (MOS) in the Army and Marines, an Air Force Specialty Code (AFSC) in the Air Force, and a Navy Enlisted Classification (NEC) for enlisted Navy members. While officers tend to generalize into a management emphasis over the course of a career, enlisted personnel tend to focus on, and become highly skilled in, their assigned occupational specialty.

7. Terri Tanielian & Lisa H. Jaycox, Ed., Invisible Wounds of War: Psychological and Cognitive Injuries, Their Consequences, and Services to Assist Recovery, RAND Center for Military Health Policy Research (2008) at xxi.

8. Id.

9. Jeremy Schwartz, “As soldiers leave war behind and return to Fort Hood, what comes next?” Austin-American Statesman (Nov. 5, 2011).

10. Armen K. Goenjian, et al., “Heritabilities of Symptoms of Posttraumatic Stress Disorder, Anxiety, and Depression in Earthquake Exposed Armenian Families,” Psychiatric Genetics, Dec. 2008, at 261–266.

11. Donna Miles, “Military Launches Domestic Violence Awareness Campaign,” American Forces Press Service, Oct. 4, 2010, http://www.defense.gov/news/newsarticle.aspx?id=61131 (last visited Apr. 3, 2011).

12. Rich Morin, The Difficult Transition from Military to Civilian Life, Pew Research Center, Dec. 8, 2011.

13. See, e.g., Evan R. Seamone, Attorneys as First Responders: Recognizing the Destructive Nature of Posttraumatic Stress Disorder on the Combat Veteran’s Legal Decision-Making Process, 22 Mil L. Rev. 144, 156–57 (2009).

14. See, e.g., Seamone, supra note 14; see also Evan R. Seamone, The Veteran’s Lawyer as Counselor: Using Therapeutic Jurisprudence to Enhance Client Counseling for Combat Veterans with Posttraumatic Stress Disorder, 202 Mil L. Rev. 185 (2009); Tiffany M. Chapman, Leave No Soldier Behind: Ensuring Access to Health Care for PTSD-Afflicted Veterans,204 Mil L. Rev. 1 (2010); Timothy P. Hayes, Post-Traumatic Stress Disorder on Trial, 190-91 Mil L. Rev. 67 (2006–07).

15. https://www.ebenefits.va.gov (last visited Apr. 3, 2011).

16. Id.

17. http://www.archives.gov/veterans/military-service-records/ (last visited Apr. 3, 2011).

18. For a listing by service component, see http://www.archives.gov/veterans/military-service-records/locations/index.html (last visited Apr. 5, 2011).

19. The Institute of Heraldry, http://www.tioh.hqda.pentagon.mil/default.aspx (last visited Apr. 3, 2011).

20. National Personnel Records Center, Military Awards and Decorations, http://www.archives.gov/st-louis/military-personnel/public/awards-and-decorations.html (last visited Apr. 3, 2011).

21. Department of Defense Instruction 6490.03, Deployment Health, Aug. 11, 2006, http://www.dtic.mil/whs/directives/corres/pdf/649003p.pdf (last visited Apr. 3, 2011).

22. See Army Regulation 635-200, Active Duty Enlisted Administrative Separations, Apr. 27, 2010 revision, paragraph 5-17.

23. Porter, 130 S. Ct. at 448.

24. DOD, Requests for Military Mailing Addresses, http://www.defense.gov/faq/pis/pc04mltr.html (last visited Apr. 3, 2011).

25. VA, Inquiry Routing & Information System, https://iris.custhelp.com/app/answers/detail/a_id/579/kw/who%20is%20a%20veteran (last visited Apr. 3, 2011).

26. See, e.g., the Military.com Military Locator, available at http://www.militarylocator.com/ (last visited Apr. 5, 2011).

27. 38 U.S.C. 1505(a).

28. 38 U.S.C. 1505(b).

29. Federal Benefits for Veterans, 2010.

30. 38 USC 2411.

31. USDOJ Guide; 38 USC 6105.

32. See, e.g., Criminal Justice Portal, Oregon Department of Veterans’ Affairs, http://www.oregon.gov/ODVA/criminal_justice_portal.shtml (last visited Apr. 7, 2011).

33. See, e.g., Louisiana Public Defender Board, A Resource for Public Defenders Representing U.S. Veteran Clients, available at http://lpdb.la.gov/index/index.php (last visited Apr. 7, 2011).

Ten Things to Keep in Mind in the 20 Minutes You May Get When Called Upon to Represent a Juvenile Client

The first time I heard reference made to the movie “The Assassination of Jesse James by the Coward Robert Ford,” which starred Brad Pitt in the title role, I thought to myself, “Why waste all the time and effort on an obviously overstated title? Why not just call the movie ‘Jesse James’?” The more I contemplated the title, the more I became aware that the title was perfect in that it not only told you “what and whom” the movie was about; it also set a perfect tone for letting the viewer know what to expect from the film.

Thus the Title of This Article

I had been practicing law about ten or twelve years—handling a few juvenile cases here and there—when it dawned on me one day there is some perception that because juvenile cases involved young people (whether small or large in stature), somehow they were easy (or less difficult) to handle. This cannot be further from the truth, especially when certification issues are involved. I watched as attorneys—many of them seasoned (and certainly including myself)—struggled and flew by the seat of their pants when called upon to attend detention hearings. This is especially true in court-appointed cases, which make up a high percentage of juvenile representation matters.

In adult matters, there is always plenty of time after arraignment and before plea negotiation (or whatever) to look over the discovery and other matters before making any decisions. If you are short on time, you simply ask for more—which is, without hesitation, always granted. From time to time you run into a judge who may “move you along”; however, most of these situations with adults are “do-able.” This is rarely the case with juveniles. Needs of the child and mandated timetables are far more relevant than in adult matters. You may have “some” limited time, but this is rarely the case when you are presented with a juvenile matter and a detention hearing (more on this later).

After much thought—and at the urging of fellow Lubbock attorney David Guinn—I decided to write this and try to offer some limited guidance on how to deal with these issues. They tend to cause an undue amount of stress on all parties involved—the attorney, the family, and, most importantly, the child you represent.

This is certainly not meant to be all inclusive. You, as defense counsel, may have your own ideas that fit your beliefs and style. This is simply my “Ten Step” approach to getting started. Hopefully it will provide some guidance to those of you who may be defending juveniles either occasionally or for the first time.

A.  Juvenile Cases Are “Civil” Rather Than Criminal

Juvenile cases lie in a specialized area of law following different rules and procedure because the nature of the cases fall within family law and other civil areas. It is important to be able to explain to your client and his/her family that certain terms and rules may sound different than those to which they may be accustomed. For instance, juveniles are not found “guilty” of committing a crime. Rather, they are “adjudicated to have engaged in delinquent conduct” if they are ultimately held responsible for committing a crime. They are also sentenced differently.

In addition, in most instances a juvenile must be represented by counsel—hired or appointed. Also, most records are sealed, a trend we seem to be getting away from more and more. Ultimately, the decisions you and your client will make follow the “Best Interest of the Child” standard—if not formally, then certainly informally.

You should familiarize yourself with the law, and you should also familiarize yourself with the basic services available to your clients should they need them. Being able to discuss these matters with your client and his/her parents will instill a confidence in them that you know your job and how to do it, a trait that will aid you whether the child is detained or released.

B.  Know Your Client: Know Your Goal

Without a doubt, the most difficult and important requirement an attorney faces in initial meetings with a juvenile client—especially when court-appointed and on short notice—is getting to know the client to a degree that allows for adequate representation. Certainly, learning the child’s name, age, and the charge(s) against him/her is important; however, good representation goes much further and, again, must be set in motion as quickly as possible. An attorney will have some amount of time to “visit” with a client, but normally only for a short period. Asking for additional time may or may not work out, however, so a good working relationship with your judge will be to your favor on this issue.

Nevertheless, it is very important that the attorney learns whatever possible about the child. Despite the fact that the client may be young, it is important you not underestimate his or her capabilities. These “capabilities” run the gamut from the client’s ability to understand the proceedings and charges (on one end) to a willingness to be involved in criminal acts on the other. Simply put, some clients are good, some are bad. Some are kind, some are mean. Most are troubled, and many come from difficult lives or situations. I am not advocating that we—as attorneys—do not feel for them nor work any more or less for any of them. I do believe that a good attorney learns as much as possible about the client and adjusts the representation accordingly. Do everything within your power to get the child to cooperate with you. This will go a long way in determining your success in representing the child.

It is not uncommon that the most stability a child may have seen in the time before you get the case is the night or two they spend in Juvenile Detention before your first meeting. This is a harsh fact, but true in many instances.

In addition, while most children are good, many are raised in environments that result in them viewing the world a little differently than the rest of us. An example of this is the child who will tell you “a crime is only wrong if you get caught” or a child who steals and is of the opinion that if an item is left in a place of vulnerability, then it is the owner’s fault his item was taken. Obviously, these are superficial examples, though I’ve heard them both. There are, most certainly, other, better examples—and far more serious crimes.

The point here is “Listen to your clients.” It will help you get to know them. Observe them and do not be afraid to ask tough questions. Demand legitimate answers, all the while doing your best to maintain a good relationship.

C.  Learn What You Can From—and About—Parents

Simply put, parents of the juveniles you are called upon to represent can be your best friend or your worst enemy. Most of them truly care about their children and will put faith in you if they believe you have the best interests of their child in mind. They will have questions, most of which are legitimate. Some are unanswerable at your first meeting. Some you may never be able to answer, but do the best you can without lying to or misleading them. The fact their child is in trouble is a serious matter to most parents; give them serious and straightforward answers.

They will have questions about the charges, police interrogations, Miranda warnings (although they will not call them by their correct name), expenses, detention, and—with few exceptions—whether or not “this will be on Johnny’s permanent record.” You will want to be as honest and open as possible, but be careful not to promise anything to the parents (or your client) you cannot deliver.

In the time following the initial hearing, be sure you talk to them by phone if they call—but certainly, make sure you do so according to the rules of ethics and disclosure. Return calls when you can, even if you cannot disclose certain aspects. Just hearing from you will help them, especially if their child is detained. It will also help keep their faith in you as their child’s advocate.

One last thing: Keep in mind you represent the child, not the parents. Your advice must be with the child’s best interest in mind. Help them make good, sound decisions.

D.  Learn What You Can From the Probation Officer

In most counties, the child you represent will have met with the probation officer prior to your meeting and before the detention hearing. This is almost always true in court-appointed cases, though not always true when you are retained. Probation officers will have interviewed the child and parents. Usually they limit their conversation to interview-type questions, but this is not always the case. As in the case of parents, it has been my experience that probation officers can also be your best friend or worst enemy.

They have reviewed the police reports—if they are available—before you get them. They will have a basic understanding of the case and they may have had prior dealings with your client. These facts—coupled with your knowledge of the particular probation officer—should give you a good idea of the initial direction your case may go.

I have found that most probation officers possess good intentions. Keep in mind, however­, that when push comes to shove, they will protect themselves at your client’s expense. This seems to present itself when the client is either a repeat offender or when the crime is assaultive or sexual in nature. It is important to know when probation officers are doing their job or when they are crossing the line. The more experience you have with a particular probation officer, the easier it will be to work—or not work—with him or her, whatever the case may be.

E.  The Detention Hearing

In most instances, your first contact with your client—whether you’re appointed or hired—will be at your county’s Detention Center. This is designed to ensure the child’s initial appearance in court. When they present a danger, they may or may not be with other child offenders.

As you know, the detention hearing is the equivalent of a bond hearing for an adult. I believe it is the most important aspect of your representation, at least in your initial relationship with your client.

An attorney should be very familiar with the five factors the judge or magistrate will consider. More importantly, the attorney must know how they apply to the client’s case as well as the client. A good attorney—keeping in mind the best interest of the child—will look at these factors and answer them honestly, then discuss those answers with the child before deciding whether to have a hearing or to waive that hearing. Many times a discussion with the prosecutor will result in an agreement to release the child (more on that later).

The five factors are relatively simple in nature, though they are sometimes more difficult to answer open and honestly. However, the child’s decision on whether to request a hearing or to waive (if the state is requesting detention) must be an “informed” decision—based on these factors. The factors are considered by the judge in making his/her determination. The factors are as follows (paraphrased):

1.  Is the child likely to abscond or be removed from the jurisdiction?
2.  Can the parents take care of him/her—and will they? Does the child accept parental guidance or control?
3.  Will the parent bring the child to court?
4.  Is the child a danger to himself/herself or others?
5.  Has the child previously been found delinquent, and is he/she likely to commit another crime?

While all are considered and (in my humble opinion) up for broad interpretation, it is usually factors four and five that receive the most attention from prosecutors and judges. Never­theless, a meaningful discussion with the child and the parents (if appropriate) will usually lead to a correct decision on whether to challenge detention.

F.  Will the Child Cooperate?

This aspect of this list is rather straightforward. Short of confessing to the crime or incident, the child should cooperate while in detention. Encourage them to do so if you have a belief they may want to cooperate. Children who are on their best behavior will reap the benefits, as the discipline reports are almost always reviewed by judges when determining extended or subsequent detentions. Advise your client to stay away from befriending or antagonizing guards or other detainees. These attempted “relationships” almost always result in problems that can make their way back to the prosecution and, ultimately, the judge.

If the child is “dressed” for court, make sure the clothes are appropriate. Have your client be respectful to the judge, prosecutors, deputies, and court personnel. Make sure he/she is attentive, listening carefully and addressing the court in a proper manner.

G.  Maintain Your Credibility

As an attorney, maintaining your credibility with the judge is very important—to both you and your client. This is true with prosecutors as well, although in my opinion to a lesser extent. Maintaining a level of credibility will not only benefit your client in the present case; it will go a long way in future dealings with other clients as well. Simply stated, judges and prosecutors have a big part in deciding your client’s future. A little “kindness” on the attorney’s part—and good representation—can go a long way.

Ultimately, both the judge and prosecutor will know if you are aiding the children in such a way as to help them make decisions in their best interests. While not all judges and/or prosecutors act in good faith 100 percent of the time, most are doing what they believe is correct. If you do not agree—and it is fine not to agree—make sure you listen to their reasoning, then make your arguments in a quiet controlled manner.

I will also submit that on occasion, some of these children need to be detained, for a varying number of reasons. These reasons are certainly not limited to whether or not there is any real proof they committed a delinquent act. For instance, they may need drug screening or psychological assessment. In some cases, the child’s safety may need to be ensured. While we, as defense attorneys, never want to see a child detained, we must admit it can be a “good thing” in some cases, especially once we have explored alternative placements without luck.

The bottom line is as follows: If an attorney and/or the clients request a hearing on every case, there is a high probability the individual child is not making an “informed” decision. Then an attorney begins to run the risk that the judge, the prosecutor, or both will not listen when you have a legitimate concern on a detention matter. Granted, there is a very fine line. The attorney will have to use good common sense when making these decisions. Experience plays a vital role here.

Be sure to look at the facts of the case, at least as you are able. Look at the five factors for detention. Definitely look at those services available that might provide for an early release once they are utilized. Finally, don’t be afraid to ask questions of the judge or prosecutor. They may agree to release your client after the services are provided if you agree to waive initially. You can get agreements on the record.

H.  Drug Usage

This area is relatively simple. It there is any indication of drug or alcohol use and it is anything other than beer or marijuana, a red flag is present and you should be concerned. If your client is in possession of or admits to using cocaine, methamphetamine, prescription drugs, “bath salts,” or whatever, treat this as an indication of a possible serious problem.

Be careful with these cases. Make sure you discuss it with the client and encourage the child to let you help deal with these issues by talking to others. Use phrases such as “we need to get you well” or similar thoughts, assuring the child you are there to help. As I stated your approach should be simple but forthright. The matter may be far more complicated than you might expect.

I.  Definitions

I could write a 20-page paper on the definitions relevant to child cases. For purposes of this article, I decided to include a few you may likely to run into initially and how they do or do not apply to juvenile matters. This list is certainly not inclusive, but parents ask about these more often than others.

Bail: Children are not subject to bail. We use detention hearings.
Child: 10–17 (17–18) if conduct occurred before birthday.
Deferred Prosecution: Formal proceedings put off during this period. If completed successfully, the case is dismissed.
Delinquent: Child has been found guilty.
Determinate Sentence: A sentence for a set number of years. It requires approval of a grand jury and can be up to 40 years. The child goes to T.Y.C. and is transferred to T.D.C. at age 18.
Indeterminate Sentence: Child is committed to T.Y.C. for undetermined amount of time, and the T.Y.C. determines release date (usually about nine months).
Law of Parties: Whether a child is legally involved with other children when a crime is committed. The level of participation determines responsibility. Can be very helpful in defending juveniles as, many times, crimes are committed with a group of children around.
Fitness to Proceed: This includes mental or other issues and whether a child understands what is going on around him or her while involved in the crime or in the juvenile system.
Modifications: Involved modifying previous dispositions when a child is already on probation.

J.   Ask Others

Never be afraid to involve other attorneys if you run across situations to which you have not been previously exposed. This is especially true of certifications of children to stand trial as adults. These matters usually surface in murders, aggravated assaults, and/or sex cases. Even after several years of practicing in the juvenile law area, I am not hesitant to “run something by” another attorney on some matters. Most will be glad to help and will no doubt call on you when needed.

Conclusion

This article is by no means conclusive nor do I pretend to have even a fraction of the answers for those of you who practice juvenile law. I wrote it in hopes of giving attorneys—those new to the practice of juvenile law—some limited guidance on handling cases in this specialized area of civil/criminal law—the hybrid, if you will.

I do not pretend to know what is right all the time nor what is wrong. The truth is, there are no absolutes. There is only good, hard work by attorneys who truly care about their craft. You will come to know what works for you in your particular county, and what gives you the proper level of confidence in dealing with the matters. Good attorneys are critical to this area of criminal defense. Experience counts most of all. I hope this gets you started!

March 2012 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
19 | Proposed Bylaws Changes – By Adam Kobs, Bylaws Chair
22 | War Stories: Mitigation for Clients Who Are Veterans – By Major Christopher E. Martin
27 | Born Not Raised: Voices From Juvenile Hall – Excerpts from the book by Susan Madden Lankford
33 | Ten Things to Keep in Mind in the 20 Minutes You May Get When Called Upon to Represent a Juvenile Client – By Jeff D. Nicholson
44 | Defendant’s Request for Videotaping of Competency Examination – By John W. Stickels

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

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

President’s Message: The 58: Being a Board Member Is a Lot More Than Just Showing Up at Meetings! – By J. Gary Trichter

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SCRAPPYISM from the recent Napa seminar: “TCDLA was built on relationships between friends who were also fine lawyers. Those relationships were forged by those who understood that it was the time together that was the most important component in building a strong association. Indeed, time together after the seminar was just as important as time spent in the seminar—maybe more important in the grand scheme of things! Time spent on trips together transcended those fine lawyers into brothers and sisters.”

As per bylaw Article VII, Sec. 1, (a) the board of directors has the responsibility “to manage the business and affairs” of our Association. Our board consists “of the elected officers of the Association, the past presidents of the Association, the editor of the Voice for the Defense, forty-two (42) directors, and sixteen (16) associate directors. Each past president of the Association is a member of the Board of Directors. . . .” Past presidents, the editor of the Voice, and officers aside, the remaining board is made up of the 42 board members and 16 associate members (the 58). Any officer or director, as per Sec. 6 of Article VII, can be removed for failure to attend two consecutive meetings.

The above brings into question: “What exactly is the 58’s responsibility beyond that of showing up for at least two consecutive meetings absent a good-cause excuse”? “Yes,” it is taken for granted that the responsibility includes “to manage the business and affairs” of our Association, but that raises a second question: “How?”

As your president, I assure you that it is not my intention to ruffle anyone’s feathers with my remarks herein. Rather, my purpose is to invite the 58 to further participation by trying to better define a director’s role. I also offer this column to those who aspire to serve on the board as a means by which they will know what responsibilities they are committing themselves to in being an elected or appointed board member. And so, I offer the following for your consideration. In my mind, I believe being a board member:

1.  is having an ongoing positive attitude, commitment, and desire to be involved in the business and affairs of TCDLA, and to be informed as to what that business is and what those affairs are;

2.  is reviewing online minutes of the last board meeting prior to attending the next meeting;

3.  is reviewing the online board agenda and being ready to discuss those topics before the next meeting;

4.  is writing and submitting a quality article for publication consideration in the Voice;

5.  is volunteering to speak at our TCDLA/CDLP seminars;

6.  is volunteering to be a course director for our TCDLA/CDLP seminars;

7.  is attending and supporting TCDLA /CDLP seminars (of course, only if time and finances permit);

8.  is volunteering to participate on committees and actually contribute in a meaningful way to them;

9.  is supporting your officers and executive committee and getting to know them better;

10.  is supporting your Voice editors (Greg Westfall and Jani Maselli, and SDR editors Kathleen Nacozy, Tim Crooks, and Chris Cheatham) and getting to know them better;

11.  is supporting our senior lobbyist Allen Place and lobbyists Kristin Etter and David Gonzalez and getting to know them better;

12.  is representing our members in your district and trying to help them or in alerting the home office or strike force of their need to get involved;

13.  is interacting with and supporting our TCDLA affiliate or­ganizations;

14.  is taking time to think about ideas that, if implemented, may improve our Association and submitting those ideas to your executive committee and/or home staff. It is also understanding that your officers and staff do think that your ideas are important even though they might not be adopted;

15.  is soliciting non-member lawyers to join our Association;

16.  is participating not only on our board listserve, but also on our membership listserve. Offering online help to our membership is an easy way to serve them;

17.  is reading, reviewing, and responding to information sent you by the home office—i.e., surveys and informed voting requests;

18.  is having a working knowledge of our bylaws;

19.  is supporting TCDLEI in its mission to help TCDLA;

20.  is being a credit to TCDLA and a leader in the criminal jus­tice system;

21.  is making FRIENDS within TCDLA and helping our Association to be a strong voice for freedom and liberty; and,

22. is remembering the Texas Criminal Trial College motto, “Friends don’t let friends try their case alone”—and trying to be available if asked for help.

Of course, the above is not an all-inclusive list of a director’s responsibilities but only a sampling. Some of you may be wondering why your president dedicated his column to this topic, and that would be a fair question. Part of the answer lies in recently requested board evaluation of our executive director. In this regard, recall that every two years the board is requested to complete a questionnaire that asks how our executive director and staff have been doing their jobs. Here, it is noteworthy that even though the evaluations received were a near unanimous vote of glowing confidence in our executive director and our staff, only about a third of the 92-member board responded.

Another part of the answer comes from the fact that our CLE members trip to Napa, California, was not very well supported—even though the trip was outstanding and reasonably priced. Those who did attend rated the CLE and activities exceedingly high, had fun with old and new friends, and learned a lot about the practice of law.

Another part of the answer comes from the fact that even though every board member received three free TCDLA memberships to give out, we did not get new members from each board member. The answer also comes from the fact that the Voice has not received articles from a majority of the board. Of course, the reasons could go on and on, but they are not necessary as the point has been made.

Accordingly, I ask you 58, as well as those of you who want to join their honorable ranks, to compare the suggested responsibilities above to the contributions you have made. If in doing so, you conclude you have done a pretty good job, then I thank you on behalf of our membership. If, however, that is not the case, then I ask you to consider the immortal words of the late President of the United States, John F. Kennedy: “Ask not what your country can do for you. Ask what you can do for your country?”

For the 58, your country is TCDLA and it needs your commitment, participation, and loyalty to remain productive and strong! As your president, I not only pledge my commitment to you and the membership to do our best to make TCDLA productive and strong, but also that your officers, executive director, and staff also make that same pledge! In closing, remember that the business and affairs of your Association are a constant, and that they are YOUR business and affairs. Let’s help each other better serve one another. Be involved, get involved, stay involved!

J. Gary Trichter
Your President and proud to serve you

Executive Director’s Perspective: Many Thanks – By Joseph A. Martinez

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Special thanks to Gary Trichter (Houston), Troy McKinney (Houston), Doug Murphy (Houston), and Bennie Ray (Austin), our speakers for the Public Defender DWI seminar held in El Paso in January. This seminar was part of a joint initiative with the National College for DUI Defense and the Criminal Defense Lawyers Project (CDLP). Thanks to our speakers’ efforts we had 60 participants.

Special thanks to Jaime “Jimmy” Gonzales (Edinburg) and David Moore (Longview), our course directors for the CDLP: Winning Trial Tactics seminar held in Edinburg in January. Thanks to their efforts we had 44 participants.

Special thanks to Rick Wardroup (Lubbock) and Brad Levinson (Austin), our course directors for the CDLP: Capital, Mental Health seminar held in Houston in January. Thanks to their efforts we had an outstanding lineup of speakers. We had 66 participants.

Special thanks to Gary Trichter (Houston), Troy McKinney (Houston), Doug Murphy (Houston), Bennie Ray (Austin), and Douglas Wilder (Dallas), our speakers for the Public Defender DWI seminar held in Dallas in February. This was part of a joint initiative with the National College for DUI Defense and CDLP. Thanks to our speakers’ efforts we had 50 participants.

Special thanks to Rick Wardroup (Lubbock) and Jessica Phipps (San Antonio), our course directors for the CDLP: Boot Camp for New Lawyers held in Dallas in February. Thanks to their efforts we had 27 attendees.

Special thanks to Lynn Richardson (Dallas), Chief Public Defender Dallas County, and Rick Wardroup (Lubbock), our course directors for the CDLP: Indigent Defense seminar held in Dallas in February. Thanks to their efforts we had 87 participants.

Special thanks to the Hidalgo County Bar, who allowed CDLP to co-sponsor their Bill of Rights CLE held in McAllen in February. Thanks to Reynaldo Merino, TCDLA board member, for bringing this opportunity to TCDLA. There were 62 participants at the seminar.

Special thanks to the Dean Danney Holley, Thurgood Marshall School of Law for allowing TCDLA and CDLP to co-sponsor the First Annual Honorable Craig Washington and Senator Rodney Ellis Criminal Law seminar, held at the Thurgood Marshall School of Law in Houston in February. Special thanks to Alex Bunin, Chief Public Defender, Harris County Public Defender’s Office, who also co-sponsored the event. Alex also served as a course director, along with Professor Alex Haughton (Houston) and Nicole DeBorde (Houston). Special thanks to Professor Anthony Haughton for serving as moderator at the event. Special thanks to Prudence Smith, Assistant Dean for External Affairs, for coordinating and providing support for all of the event activities. The Honorable Craig Washington and the Honorable Senator Rodney Ellis spoke at lunch. Senator Ellis talked about the history and importantance of indigent defense in Texas. Mr. Washington gave a truly inspirational talk on “Why we do what we do.” Both men are graduates of the Thurgood Marshall School of Law.

TCDLA’s hope is that the Thurgood Marshall School of Law will continue this event, honoring both men and their extraordinary contributions to justice. A video of the entire event will be available on the TCDLA website by late March. We don’t have tapes, and it is going back to the law school for their use.

The Texas Criminal Defense Lawyers Educational Institute (TCDLEI) Board met on February 25 at the TCDLA Home Office. The board approved $7,500 for the recently held Psychodrama training.

TCDLA thanks the TCDLEI leadership for their continued support of TCDLA’s training efforts. TCDLA is fortunate to have the assistance of an outstanding committed group of individuals—John Young, Chair (Sweetwater), Phoebe Smith, Vice-Chair (Houston), and Frank Suhr, Treasurer/Secretary (New Braunfels).

TCDLA thanks all of the speakers who participated in the aforementioned seminars over the past two months. The speakers contribute their time and effort to prepare a paper for publication, prepare for their presentation before their peers, and to travel to and from the seminar. They receive no financial compensation. TCDLA asks its members to take time out at the next seminar to thank the speakers for their contributions.

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

Ethics and the Law: Will the Horse Snicker?

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A few weeks ago, I was forced to temporarily surrender control of my faculties under the lull of general anesthesia for back surgery. Sitting in a hospital reception room and getting pre-admitted for surgery is like a defendant being debriefed on a federal case. What about your family history? What has happened to you before? Do you know where you are now? What medicines do you currently take?

Routine questioning becomes more serious. Do you have a living will? Who is your emergency contact? Do you have a DNR (Do Not Resuscitate) form? Of course, once the nurse got to that question, I POLITELY told her that, “I am NOT AFRAID TO DIE. I just do not want to be there when it happens, and I am not answering any more questions. I walked INTO this Hospital and I will be walking OUT!” She looked shocked and for a few minutes said nothing. As she looked like she would continue, I looked her in the eye and she said, “That’s all the questions I have, and good luck on your surgery.” Thanks to my Creator and good doctors, all went well. Medical procedures, hospitals, and the like force us to consider our mortality, evaluate how we have spent our time, and face cold hard facts.

Every month, what do most of us do when the Bar Journal comes in? We flip to the back to see who died and who got into trouble. There is always someone we know who has either gone away or has had disciplinary problems. This is life in the legal world, and it is far from perfect. That is the reason TCDLA started the hotline for its members. We cannot keep the Grim Reaper away, but we hope we can help lawyers stay out of trouble. We have survived the year end, and the extra stresses that the holidays bring. The Ethics Committee is made up of lawyers who want to help. Keep the calls coming. We are always available to our members to answer questions, and it is very important to each committee member that we give the correct advice. Reach out for help if you need it. Co-chair Ray Fuchs commented at our weekly conference, “We are not always right, but we are never wrong.” And co-chair David Sheppard’s mantra is “it is not that we are vain or egotistical—it’s just that we have nothing to be modest about.” Where there is no counsel, the people perish, but in the multitude of counselors, there is safety.

Lend a colleague a hand and if warranted, use these important numbers for referral:

TLAP—Texas Lawyers Assistance Program: 800-343-8527
AA—Alcoholics Anonymous & Narcotics Anonymous: 800-262-4944

In the Harris County Criminal Justice Center there is a plaque on the seventh floor displaying the names of criminal lawyers who have gone away. This past year, it seemed a large number of names were added. When a life ends, there is great sorrow for some and little fanfare for others. How do you want to be remembered? What memory are you leaving in the spot where you stood? What have you done to make the world a better place? Watch the movie “It’s a Wonderful Life” with James Stewart, or the movie “Will Penny” with Charlton Heston.

From the movie “Will Penny”:

Will Penny: That’s always the way, ain’t it?
Alex: What’s always the way?
Will Penny: Let a man die, right away he’s “good, old Claude.” How was he before he bucked out?

Oh, and by the way, at the hospital when the nurse said this may hurt a little, she meant it. My IV was in place and I was ready to roll into the operating room. All sorts of thoughts ran through my mind: Will I really get out of here? Will I be able to walk? I wondered if I would hear the horse snicker… I want to make sure the horse does not snicker.

The Lawyers Know Too Much

—Carl Sandburg (1878–1967)

THE LAWYERS, Bob, know too much.
They are chums of the books of old John Marshall.
They know it all, what a dead hand Wrote,
A stiff dead hand and its knuckles crumbling,
The bones of the fingers a thin white ash.
The lawyers know
a dead man’s thoughts too well.

In the heels of the higgling lawyers, Bob,
Too many slippery ifs and buts and howevers,
Too much hereinbefore provided whereas,
Too many doors to go in and out of.

When the lawyers are through
What is there left, Bob?
Can a mouse nibble at it
And find enough to fasten a tooth in?
Why is there always a secret singing
Where a lawyer cashes in?
Why does a hearse horse snicker
Hauling a lawyer away?

The work of a bricklayer goes to the blue.
The knack of a mason outlasts a moon.
The hands of a plasterer hold a room together.
The land of a farmer wishes him back again.
Singers of songs and dreamers of plays
Build a house no wind blows over.
The lawyers—tell me why a hearse horse snickers hauling a lawyer’s bones.

Federal Corner: Searching With a Proctoscope – By F. R. Buck Files Jr.

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Rondrick Lamar Gray recently learned an important lesson. Be careful where you hide the dope. On February 12, 2012, a panel of the United States Court of Appeals for the Fifth Circuit affirmed Gray’s conviction for possession of crack cocaine with the intent to distribute. United States v. Gray, ___ F.3d ___, 2012 WL 315989 (5th Cir. 2012) [Panel: Circuit Judges Benavides, Prado, and Graves. Opinion by Judge Prado.]

After law enforcement officers had conducted a trophy-retiring search of Gray’s body and found what they were looking for, Gray was indicted for possession of crack cocaine with the intent to distribute. His lawyer filed a motion to suppress the crack cocaine recovered during the search. United States District Judge Sam Cummings of the Northern District of Texas denied the motion to suppress, and Gray was convicted after a jury trial. Judge Cummings sentenced Gray to ten years’ imprisonment and eight years of supervised release. Gray timely appealed.

Judge Prado’s opinion begins with these words:

“The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). This case forces us to balance this fundamental interest in a person’s bodily integrity and dignity against the significant need of law enforcement officers to unearth evidence of crime. Specifically, the Appellant Rondrick Gray was forced to undergo a proctoscopic examination under se­da­tion pursuant to a warrant obtained on the police’s belief that he was concealing crack cocaine in his rectum. Weighing the competing interests, we find that the search was unreasonable but that the evidence should not be suppressed because the police acted in good-faith reliance on a valid search warrant. Accordingly, we AFFIRM.

It is not a surprise that Gray’s conviction was affirmed. The good faith exception to the exclusionary rule has been discussed by the various Courts of Appeal in 97 cases during the past 13 months. In the majority of these cases, the Courts relied on the good faith exception to save a search and affirm the defendant’s conviction.

It is the facts in Gray that make the case remarkable. For this reason, I have set them out in their entirety. Judge Prado recitation of these facts is as follows:

On April 23, 2010, a confidential informant told San Angelo Police Department (“SAPD”) Detective Hank Hethcock that Rondrick Gray was in possession of and selling crack cocaine. Based on the information about Gray’s vehicle, SAPD Officers Garza and Elrod stopped Gray’s vehicle and arrested him on outstanding warrants. At the time of the stop (around 3 p.m.), Gray was driving with a passenger, Selah Simmons, who was taken into custody as well. Simmons told SAPD Sergeant Dornhecker that as the police were approaching Gray’s vehicle during the traffic stop, Gray threw a plastic bag containing what she believed to be crack cocaine at her and asked her to conceal it, which Simmons refused to do. SAPD officers conducted a search of Gray’s vehicle for the drugs but found nothing. Garza conducted a search of Gray, which also did not turn up any drugs. A K-9 unit arrived, and a drug dog alerted on the center console area of Gray’s vehicle, but no drugs were found.

      Gray was taken to the jail, where upon his arrival a strip search was conducted. Garza, who witnessed the strip search of Gray, described Gray as “not fully cooperative.” Gray was placed into the general population of the jail, during which time he was not observed. While Gray was being searched and booked at the jail, SAPD officers did an extensive, two-hour search of Gray’s vehicle, which also turned up nothing [emphasis added].

      Gray was eventually taken out of the general population and strip-searched a second time with Garza and Elrod watching. As a part of his strip search, he was instructed to squat, pull his buttocks apart, and cough, in order to dislodge anything that may be concealed in the anus. Gray was described as “being evasive,” because he would only “slightly bend at the knees and give a faint cough.” In addition to the two strip searches, SAPD did a second search of the scene where they stopped Gray, and jail personnel conducted strip searches of all inmates who were in Gray’s holding cell with him. None of these searches turned up any drugs or other contraband [emphasis added].

      At this point, Hethcock presented Gray with some options of how to proceed: Gray could undergo a third strip search, he could be placed in a cell with a waterless toilet, or he could consent to a rectal x-ray examination. Gray did not consent to any of these options. Based on all of these events and his education, training, and experience, Hethcock believed that the “only place” Gray could be concealing the crack cocaine that the police suspected him of possessing was in his rectum. Hethcock informed Gray that the police would seek a search warrant to try to uncover the drugs. By 10:15 p.m., Gray posted a bond on his traffic warrants and was released. SAPD, however, detained Gray for thirty minutes while waiting to secure the search warrant. At about 10:45 p.m., over seven hours after Gray’s initial arrest, a state judge signed the search warrant, and Gray was taken to the hospital for the search.

      At the hospital, the first procedure performed was an x-ray using a portable x-ray machine. Gray was, according to Hethcock, uncooperative with the x-ray technician and as a result, the technician was unable to “get a good picture with the portable x-ray.” The next procedure attempted was another x-ray but this time using a stationary machine. At first, Gray was asked to do a standing x-ray, but Gray “refused to stay where he was told.” The medical staff then tried to x-ray Gray while he was lying down, but Gray would not lie still. Eventually, the x-ray technician obtained a useable picture. From his review, he noticed something that he thought could either be a gas pocket or a foreign object but could not decide which. Hethcock took the x-ray to Dr. Roland Hei­den­hofer, a staff physician at the hospital, who also could not discern whether the anomaly was a gas pocket or a foreign object. Heidenhofer then went to Gray’s room and informed Gray that he was going to perform a digital rectal examination on him. Though Hethcock described Gray as “evasive and uncooperative” during the digital exam, Heidenhofer was able to perform the digital exam to some extent. From that examination, however, he was unable to determine if there was an object in Gray’s rectum [emphasis added].

      After failing to determine anything from either the x-rays or the digital exam, Heidenhofer consulted with Dr. Emmette Flynn, the hospital’s Trauma Medical Director. Flynn believed that the best next step was to perform a proctoscopic examination of Gray’s rectum. In such an examination, the proctoscope, essentially an illuminated tube, is inserted across the anal canal and into the rectum. The rectum is then filled with air, or insufflated, so that the interior can be examined. When the rectum is insufflated, the walls are distended, which permits a more thorough evaluation of the wall of the rectum and objects within the rectal vault. Flynn stated that he did not ask for Gray’s consent for the proc­toscopic exam and that at the time he made the de­ci­sion, he had not reviewed the search warrant or Gray’s medical history. For Gray’s proctoscopic exam, two sedatives (Versed and Etomidate) were administered to Gray intravenously. Though the doctors later testified at the suppression hearing that the risks associated with the sedatives were low, Gray was placed on a number of monitors to measure Gray’s cardiovascular status during the examination. The sedatives carry with them a risk of respiratory depression or arrest. Proctoscopy also has associated risks, including pain and potential anal bleeding or perforation. Flynn admitted that proctoscopic exams are usually not conducted on uncooperative patients. At the time that the doctors decided to perform the proctoscopic exam, there were other less intrusive means available to try to recover the suspected drugs, including a cathartic or an enema-neither of which would have involved sedation [emphasis added].

      During the proctoscopy, Flynn was unable to completely visualize the rectal vault due to a “substantial amount of fecal debris.” He did, however, intermittently see and feel something different from the other contents of the rectum. Flynn removed the scope and performed a second digital rectal examination, during which Flynn removed a plastic bag from Gray’s rectal cavity. Flynn placed the plastic bag into a biohazard bag provided by the emergency department, and handed the bag to an SAPD officer. Subsequent testing revealed the contents of the bag recovered from Gray’s rectum to be 9.62 grams of cocaine base [emphasis added].

My Thoughts

There’s nothing remarkable about Gray except for the egregious nature of the facts. The search of Gray’s body was unreasonable; yet, the good faith exception saved the search and the seizure and the government was able to prosecute and convict him. The short-hand version could be summed up thusly:

  • Gray won a Pyrrhic victory.
  • Gray lost on the search issue.
  • Gray remains in prison.

So what do we hope for in every case where our client has been searched and evidence has been seized? That it be a warrantless search.

Proposed Bylaws Changes Submitted by Adam Kobs, Bylaws Chair

ARTICLE VII—BOARD OF DIRECTORS

Sec. 4 Procedures

a. The Board of Directors may act by telephone, by email, or any other method approved by the Executive Committee.

b. Internet Voting

    1.  
If there is business that a majority of the Executive Committee deems necessary to determine before the next scheduled quarterly meeting or annual meeting, the matter can be determined by discussion and vote over the Internet.

    2.  
The business matter under consideration shall be presented by the Executive Committee as a motion by e-mail to the Internet address that each member of the Board of Directors has provided the Association. A second to the motion shall not be necessary.

    3.  
There shall be a period of discussion as determined by the Executive Committee, but in no event less than 3 days.

    4.  
Motions to table are not permitted. If a Board Member wishes to table the matter to the next scheduled quarterly or annual board meeting, the board member should vote “no” on the motion.

    5.  
After the period of discussion a vote shall be held. The period of voting shall be determined by the Executive Committee, but shall be no less that forty-eight (48) hours, beginning at 9:00 a.m. the day after the discussion period has ended. A quorum for Internet voting shall be at least thirty-three (33) Board of Director Members (excluding past presidents) in good standing of the Board of Directors. All business transacted by Internet voting shall be by a majority vote of the quorum voting.

    6.  
Member shall vote by stating “yes” or “no” in an e-mail to the Internet address designated in the motion upon which the vote is being taken. Once cast, the vote may not be changed. The votes shall be counted by the Executive Director and published to the Board of Directors and membership.

    7.  
At the next regularly scheduled quarterly or annual board meeting the motion and resulting vote of any business conducted by Internet voting under this section will be included on the Agenda for the meeting and reported to the Board of Directors. A motion to reconsider the matter must be made by a Board Member voting in the majority on the motion and a vote to reconsider will require a 60% vote majority of the quorum present. There shall be no discussion on the motion to reconsider. If the motion to reconsider is approved, then the matter will be placed on the agenda under old business and a vote on the merits of the matter will be by a majority of the quorum present.

Sec. 5. Vacancies. A vacancy occurring in the Board of Directors caused by the death, resignation, or removal of the person elected thereto may be filled by appointment of any eligible member by the President, subject to confirmation by the Board of Directors. Confirmation shall be secured at the option of the President either by a majority vote of a quorum of the directors or by a poll of the directors. The failure of any director to send in his or her vote within ten days after the date the poll is placed in the mail to him or her shall be counted as a vote for confirmation. Under this section, the appointee’s term is limited to the next annual meeting.

Sec. 6. Removal and absences. An elected officer, or director may be removed for cause by a vote calling for such removal by a majority of all the Board of Directors present at such meeting, after notice and an opportunity to be heard. Removal may result from failure to attend two consecutive meetings of the Board of Directors without good cause. The Executive Director shall receive and approve written requests for excused absences for good cause.

Sec. 7. Qualifications. All Members of the Association who are authorized to vote are eligible to become members of the Board of Directors by election or appointment.

ARTICLE XII—PROCEDURE FOR VOTING

All business transacted by the Executive Committee, the Board of Directors, and committees shall be by majority vote of the quorum present. A quorum for the transaction of business of each respective committee is a majority of the members. A quorum for the transaction of business of the Board of Directors is ten (10) at the quarterly meetings and the annual meeting is thirty-three (33) members (excluding past presidents) in good standing of the Board of Directors.

ARTICLE XIII—AMENDMENT

These bylaws may be amended by majority vote of the members present and voting at any annual or special meeting of the membership.

ARTICLE XIV—BYLAWS DISSOLUTION OF ASSETS

Send your letters, pictures, gripes, bonehead gaffes, or what-have-you to .