Monthly archive

April 2012 - Page 2

Ethics and the Law: A Real Change

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We hope with Buck Files the State Bar will pay more attention to the criminal bar. There are over 3,000 members in the Texas Criminal Defense Lawyers Association, 600 members in the Harris County Criminal Lawyers Association, and many others in the local bar associations throughout Texas. HCCLA, under the leadership of Earl Musick, has taken action in many ways, including meeting with the Sunset Commission in Austin with Cowboy Lawyer Gary Trichter and lawyer Robb Fickman, Czar of Texas. Ever since I began practicing law, I have heard lawyers complaining, but few ever took action. That is changing with lawyers like Gary, Earl, Robb, and others. According to Buck Files, only 20% know about the State Bar hotline. That is simple to understand. It has not been properly publicized and it has banking hours. TCDLA and HCCLA hotlines never close, and we have already helped many of our fellow members.

Many years ago at a DWI seminar, we were all honored that Percy Foreman, Richard “Racehorse” Haynes, and Warren Burnett were in attendance. Charles Tessmer was there in spirit. Lawyer Haynes was bragging on Gary Trichter and telling Percy Foreman all the issues Gary and others were raising. Percy was very attentive because he, the greatest lawyer in the world, had been convicted of DWI. Warren Burnett and Charles Tessmer were known to take a drink on social occasions. Today, a DWI can bring as many issues as a murder case—like the ALR hearing, possible occupational license, possible ALR appeal, possible DWI appeal, and motions that need to be filed. Some lawyers attempt to charge a flat fee for all these things. Some lawyers charge a fee for each item. Do you want a telephone hearing or an in-person hearing? If an in-person, do the officers get subpoenas to use ALR discovery device? When going to all these hearings, remember they are all grievances waiting to happen if you miss a date. Make sure you have a calendar system or have alerts on your computer.

With Buck Files as leader, we hope more attention will be paid to the criminal bar. The bar journal is filled with many good articles if your interests are contract, real estate, civil matters, or back-patting. Leaders of the criminal bar from the Houston area like Gary Trichter, Earl Musick, Robert Fickman, Chris Tritico, and many others from around the state have and are making great strides to let the bar and judges know we take our job seriously. If we lose a case, it is not just money, but about someone being locked in a cage and being branded a criminal for life. Pay attention to the timelines on all of your cases. Get a good system set up whether on a day-planner or on your computer.

Below are subjects we will be writing about. If you have ques­tions about one of these topics, please call the hotline.

1.  How to get business/bail bondsmen/referral fees
2.  How to set and collect fees
3.  Contracts or letter of acknowledgment
4.  Contempt
5.  Conflict of interest
6.  Attorney/client privilege
7.  Gifts to judiciary
8.  Ex-parte communications
9.  Grievance process
10.  How to set up a file
11.  Investigate, polygraph
12.  Tape-recording
13.  Motions to withdraw
14.  Pretrial publicity
15.  What to say and not say to press
16.  Personal habits—alcohol/drug problems
17.  Act like a lawyer
18.  Books that will help
19.  Seminars
20.  Board certification
21.  College of State Bar
22.  Advertising
23.  Closing practice
24.  Selling practice
25.  Keep records of client conferences, jail visits, phone calls, work done, work done by attorney (even if it is a fee contract, you may have to account for fee)
26.  Be careful what you say: Be careful in elevator or hallways
27.  Keep personal business personal
28.  Be careful trading work for legal service
29.  Suing client
30.  Check on requirements of pro-bono work
31.  Have list for client: go to church, AA, NA, job, school, medical, get work records
32.  Avoid burnout
33.  Do not bad-mouth other lawyers
34.  Check out clients’ background: social study, family tree
35.  Do not tell client you are judge’s best friend—even if you are
36.  Call court if running late
37.  Facebook, Twitter, social networking
38.  Blogs
39.  Building and maintaining a website
40.  Keep your word

Being a lawyer can be a rewarding, but it is a stressful job and it is important to make sure your client’s interests are looked after. While doing this, take care of your own health and well-being. Remember no one is indispensable.

Federal Corner: “What’s in Your Cell Phone?” – By F. R. Buck Files Jr.

Several years ago, I was on a cruise ship that had docked in Kusadasi, Turkey. I called the office to check in and found out that I had a crisis. Over the next four hours I made or received a number of calls as we tried to work through the issues. When you have a cell phone, you’re always in touch with your home or your office or your clients or your friends. I love my cell phone. Law enforcement officers like cell phones, too. Individuals whom they arrest often have cell phones that contain information that will help the government convict them.

The United States Court of Appeals for the Seventh Circuit recently held that looking in a cellular telephone found on a defendant’s person to identify its telephone number was a valid warrantless search incident to arrest and affirmed the defendant’s conviction. U.S. v. Flores-Lopez, ___F.3d ___ 2012-WL 652504 (7th Cir. 2012) [Panel: Circuit Judges Bauer, Posner, and Rovner (opinion authored by Posner)].

Abel Flores-Lopez and two co-defendants were caught in a sting operation by law enforcement officers who had received information that Flores-Lopez was a supplier of illegal drugs to another drug dealer. The officers who arrested Flores-Lopez seized a cell phone from his person. At the scene of the arrest, the officers searched the phone in order to obtain its telephone number. Taking this information, the government used it to subpoena three months of the call history.

At trial, Flores-Lopez’s attorney objected when the government sought to introduce the call history into evidence. [Note: There is nothing in the opinion to indicate that a motion to suppress was filed.] United States District Judge Lawrence of the Southern District of Indiana overruled the objection. Flores-Lopez was convicted of various drug related offenses; thereafter, he gave notice of appeal.

Judge Posner’s opinion includes, in part, the following:

[The Court’s Introduction]

      This appeal requires us to consider the circumstances in which the search of a cell phone is permitted by the Fourth Amendment even if the search is not authorized by a warrant. Lurking behind this issue is the question whether and when a laptop or desktop computer, tablet, or other type of computer (whether called a “computer” or not) can be searched without a warrant-for a modern cell phone is a computer.

***

[The Defendant’s Position]

      The defendant argues that the search of his cell phone was unreasonable because not conducted pursuant to a warrant. The phone number itself was not incriminating evidence, but it enabled the government to obtain such evidence from the phone company, and that evidence, the defendant argues, was the fruit of an illegal search and was therefore inadmissible.

***

[The Government’s Position]

      Building on the definition in New York v. Belton, 453 U.S. 454, 460 n. 4, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), of a container as “any object capable of holding another object,” the government responds, with support in case law, see, e.g., United States v. Murphy, 552 F.3d 405, 410–12 (4th Cir.2009); United States v. Finley, 477 F.3d 250, 259–60 (5th Cir.2007); cf. United States v. Ortiz, 84 F.3d 977, 984 (7th Cir.1996) (pager); United States v. Thomas, 114 F.3d 403, 404 n. 2 (3d Cir.1997) (dictum) (same); but see State v. Smith, 124 Ohio St.3d 163, 920 N.E.2d 949, 953–54 (Ohio 2009), that any object that can contain anything else, including data, is a container. A diary is a container—and not only of pages between which a razor blade or a sheet of LSD could be concealed, a possibility that justifies the police in turning each page. It is also a container of information, as is a cell phone or other computer. And since a container found on the person of someone who is arrested may be searched as an incident to the arrest even if the arresting officers don’t suspect that the container holds a weapon or contraband, and thus without any justification specific to that container, United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), the government urges that a cell phone seized as an incident to an arrest can likewise be freely searched.

***

[The Court’s Response to Robinson]

      This is a fair literal reading of the Robinson decision. But the Court did not reject the possibility of categorical limits to the rule laid down in it. Suppose the police stop a suspected drug dealer and find a diary, but a quick look reveals that it is a personal diary rather than a record of drug transactions, yet the officers keep on reading. A court might say that acquiring information known to be unrelated to the crime of which the person being arrested is suspected is an intrusion beyond the scope of Robinson’s rule.

[Diaries and Cell Phones]

      A modern cell phone is in one aspect a diary writ large.

***

      Judges are becoming aware that a computer (and remember that a modern cell phone is a computer) is not just another purse or address book. “[A]nalogizing computers to other physical objects when applying Fourth Amendment law is not an exact fit because computers hold so much personal and sensitive information touching on many private aspects of life. . . . [T]here is a far greater potential for the ‘intermingling’ of documents and a consequent invasion of privacy when police execute a search for evidence on a computer.” United States v. Lucas, 640 F.3d 168, 178 (6th Cir.2011); see also United States v. Walser, 275 F.3d 981, 986 (10th Cir.2001); United States v. Carey, 172 F.3d 1268, 1275 (10th Cir.1999); cf. United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1175–77 (9th Cir.2010); United States v. Otero, 563 F.3d 1127, 1132 (10th Cir.2009).

***

[What Cell Phone Do We Have?]

      A complication in this case is that, remarkably, the record does not indicate the brand, model, or year of the defendant’s cell phone, so we do not know how dumb or smart it is. But does that matter? Even the dumbest of modern cell phones gives the user access to large stores of information.

***

[The Issue of Urgency]

      But was there any urgency about searching the cell phone for its phone number? Yet even if there wasn’t, that bit of information might be so trivial that its seizure would not infringe the Fourth Amendment. In United States v. Conception, 942 F.2d 1170, 1172–73 (7th Cir.1991), police officers tested the keys of a person they had arrested on various locks to discover which door gave ingress to his residence, and this we said was a search—and any doubts on that score have been scotched by United States v. Jones, ___ U.S. ____, ____, 132 S.Ct. 945, 949, ___ L.Ed.2d ____, ____ (2011), which holds that attaching a GPS device to a vehicle is a search because “the Government physically occupied private property for the purpose of obtaining information.” But we went on to hold in Conception that a minimally invasive search may be lawful in the absence of a warrant, even if the usual reasons for excusing the failure to obtain a warrant are absent, a holding that is implied by Robinson and survives Jones, which declined to decide whether the search entailed in attaching a GPS device requires a warrant. Id. at 954.

***

[Diaries and Cell Phones, Cont’d]

      So opening the diary found on the suspect whom the police have arrested, to verify his name and address and discover whether the diary contains information relevant to the crime for which he has been arrested, clearly is permissible; and what happened in this case was similar but even less intrusive, since a cell phone’s phone number can be found without searching the phone’s contents, unless the phone is password-protected—and on some cell phones even if it is. On an iPhone without password protection two steps are required to get the number: touching the “settings” icon and then the “phone” icon. On a Blackberry only one step is required: touching the “phone” icon. Moreover, the phone company knows a phone’s number as soon as the call is connected to the telephone network; and obtaining that information from the phone company isn’t a search because by subscribing to the telephone service the user of the phone is deemed to surrender any privacy interest he may have had in his phone number. Smith v. Maryland, 442 U.S. 735, 742–43, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).

***

      It’s not even clear that we need a rule of law specific to cell phones or other computers. If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its number. If allowed to leaf through a pocket address book, as they are, United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir.1993), they should be entitled to read the address book in a cell phone.

***

[The Issue of Urgency, Cont’d]

      What we said in Ortiz about pagers is broadly applicable to cell phones: “The contents of some pagers also can be destroyed merely by turning off the power or touching a button. See, e.g., United States v. Meriwether, 917 F.2d 955, 957 (6th Cir.1990). Thus, it is imperative that law enforcement officers have the authority to immediately ‘search’ or retrieve, incident to a valid arrest, information from a pager in order to prevent its destruction as evidence.” United States v. Ortiz, supra, 84 F.3d at 984.

***

[The Fact That Made the Case Less Complex for the Court]

      [T]he police did not search the contents of the defendant’s cell phone, but were content to obtain the cell phone’s phone number.

My Thoughts

  • Flores-Lopez is worth reading in its entirety because Judge Posner discusses a number of theories that could or might support the search of a cellular telephone; however, the Court did not need to reach those issues.
  • Out of curiosity, I ran this WestLaw query: da(after 12/31/2010) & “cell phone” & “incident to arrest” & warrantless. Up popped 47 cases.
  • The most relevant of the Fifth Circuit cases was United States v. Curtis, 635 f.3d 704 (5th Cir. 2011) which held that an officer could search the defendant’s cell phone including text messages, incident to his arrest.
  • If you haven’t had a search issue involving a cell phone, be patient—it’ll be in the case that you get hired in tomorrow.

Mission Statement of the TCDLA Affiliate Committee – By Bobby Mims

“The Affiliate Criminal Defense Bar Committee seeks to promote the establishment of local county and/or city criminal defense bar associations in order to promote the mission of TCDLA at the grassroots level. This committee will also advise and assist members who seek to form and/or strengthen their organizations by providing pro forma bylaws and organization materials. Additionally, this committee will work with the Criminal Defense Lawyers Project Committee to coordinate criminal law seminars held in all areas of the state in conjunction with TCDLA affiliates which are seeking to stimulate growth of the local organizations and thereby growth to TCDLA. The Committee will advise the officers and staff of TCDLA on methods to establish clear lines of communication between TCDLA and local affiliate organizations in order to insure that the state organization is cognizant and responsive to the concerns of the local membership.”

Committee:

Mimi Coffey, Sharon Curtis, Harold Danford, John Gilmore, James Granberry, Deandra Grant, Bobby Mims, Doug Murphy, Katherine Scardino, Gary Thomas, and Christopher Tritico

Activities:

Presently TCDLA has 32 affiliates associations. Presently TCDLA members are organizing new affiliates in Corpus Christi and Texarkana. The existing organization in Corpus Christi appears to have been sub­sumed by the Nueces County Bar Association and has ceased to function as solely a criminal defense association, and meetings are attended by civil attorneys, prosecutors, and judges. Recently, two members advised that they were disenchanted and stated that “TCDLA does nothing for the lawyers in the Coastal Bend.” Joe Martinez has forwarded copies of bylaws to one of our members in Corpus. The Trail Tactics: The Art of War seminar was held on August 26, 2011, in Corpus Christi. This is a huge geographical area with a large population which presently is under-served by TCDLA. Re-establishment of an affiliate in Corpus and the Coastal Bend is a priority of this committee.

Charles Pelowski of Texarkana has volunteered to start an affiliate in Texarkana as the Bowie County Criminal Defense Lawyers Association. We have never had a significant presence in Texarkana other than our members, and this area is another demographic that is under-served by TCDLA. There are good opportunities to add membership if we can establish an active and effective affiliate in Texarkana. Charlie Pelowski is one of our brightest young members and is presently with the Bowie County Public Defender’s Office in Texarkana. We may add members who are licensed in Arkansas as well as Texas. If we plan a seminar in that area, we may even be able to have CLE approved by the Arkansas State Bar and attract participants that would otherwise not be available and realize revenues generated from out-of-state sources.

The committee asks for input from the membership on other areas that need attention, and we are looking for opportunities to expand the service to all members wherever they are located in Texas.

2012 Texas Criminal Trial College

2012 Texas Criminal Trial College Faculty

Deans

Lydia Clay-Jackson, Conroe
Tim Evans, Fort Worth

Faculty

John E. Ackerman, Sunrise Beach
Richard Alan Anderson, Dallas
Marjorie Bachman, Austin
Heather J. Barbieri, Plano
Samuel E. Bassett, Austin
Lydia Clay-Jackson, Conroe
John A. Convery, San Antonio
Mark G. Daniel, Fort Worth
Tim Evans, Fort Worth
Michael C. Gross, San Antonio
Ronald P. Guyer, San Antonio
H. F. “Rick” Hagen, Denton
Emmett Harris, Uvalde
M. Clara Hernandez, El Paso
Jo Ellen Hewins, Corpus Christi
William M. Hines, Austin
Susan Kelly Johnston, Waco
Robert Alton Jones, Houston
Jeff Kearney, Fort Worth
Vivian R. King, Houston
Constance A. Luedicke, Corpus Christi
Tyrone C. Moncriffe, Houston
David E. Moore, Longview
Robert Kelly Pace, Tyler
Tom Pappas, Dallas
Stephanie K. Patten, Fort Worth
Don Richard, Big Spring
Sarah E. Roland, Denton
Kyle R. Sampson, Houston
Grant M. Scheiner, Houston
Stanley G. Schneider, Houston
Pheobe S. Smith, Houston
Mark S. Snodgrass, Lubbock
Ronald T. Spriggs, Amarillo
Ezekiel Tyson Jr., Dallas
Randy Wilson, Abilene
Wm. Reagan Wynn, Fort Worth

2012 Texas Criminal Trial College Students

Jeremy Cade Anderson, Dallas
Steven Matthew Baker, Houston
Jeffrey Bendit, Brazoria
Phillip J. Boggs, Lubbock
Thomas E. Brewer III, Huntsville
Edith Y. Brown, Converse
Kimberly R. Brown, Lubbock
Adam Burney, Fort Worth
Rachelle D. Carter, Sugar Land
Cody L. Cofer, Fort Worth
Elizabeth Anne Cortright, Fort Worth
John N. De La Vina, Austin
Sharon Diaz, Dallas
Brandon Todd Dillon, Coldspring
Sarah Duncan, Dallas
Scott E. Edgett, Plano
Kathy Ehmann-Clardy, Fort Worth
Victoria Erfesoglou, Houston
Kristina Ann Escalona, San Antonio
Michael S. Evans, Bonham
Annette Nanez Ezzell, Carrollton
Nora Farah, Waco
Oscar Favela, Houston
Ruben Franco Jr., Conroe
Tracy Reyes Franklin, Austin
Aurelio Garza, McAllen
Donmale Gbaanador, Houston
Paul S. Harrell, Lampasas
Melinda S. Helsley, Carrollton
Lillian Henny, Houston
John Dennis Hester, Houston
Kyle Brian Hoelscher, Corpus Christi
Jonathan Hyatt, Longview
Taly Jacobs, Lubbock
Margaret Renee Jones-Johnson, Dallas
Andrew Kai Kai, Allen
Gerard Kardonsky, Haltom City
Jason T. Kercheval, Houston
Justin Kiechler, Lubbock
Ron Kovach, Fort Worth
Alicia Lackey, Fredericksburg
Erica W. Leggington, Houston
Scott F. Lemanski, Corpus Christi
Melinda Gail Luna, Kerrville
Wesley Will Masters III, Denver City
Ashley N. Mayes, Bellaire
Charles Otis Medearis, Austin
Elvira Mendez, Levelland
Nicholas Matthew Mensch, Kingwood
Nathan L. Miller, Denton
Lindsey Wachsmann Murray, Lubbock
Matthew J. Neufeld, Houston
Rosalind Warren Owens, Dallas
Breona Pace, Houston
David M. Patin Jr., Desoto
Letetia M. Patin, Desoto
Fresnel Phan, Houston
Kristin E. Postell, Abilene
Virginia Ann Raffaelli, Texarkana
John W. Raggio, Dallas
Temple D. S. Ramming, Houston
Laura Allison Ramos, Corpus Christi
Shara Saget, Dallas
James D. Saint, Keller
Melissa Salazar, Lubbock
Doran George Sauer, Denton
Annie Scott, Houston
Lauren Patricia Seibold, Dallas
John Smotherman, Bedford
Katharine D. Stone, Arlington
Claudia R. Villa, Houston
Timothy D. Walker, New Braunfels
Harold Christopher Waller, Corpus Christi
Megan C. Wells, San Antonio
Lashawn A. Williams, Houston
Gregory Leon Wilson, San Antonio
Jessica C Worden, Austin
Thomas P. Wynne, Dallas

Said & Done

Kudos

On March 8, 2012, two third-year law student attorneys, Karla Valles and Mary Porter, tried a 0.12 DWI breath test case to a jury. The student attorneys were working through the Caprock Regional Public Defender Office, overseen by Donnie Yandell. They were supervised at trial by Assistant PD Charlie Pelowski. The student attorneys got a two-word verdict after less than one hour of deliberations. Thanks goes to John Gioffredi of Dallas, whose Voir Dire DVD (available from TCDLA) gave them some ideas on how to handle the technical supervisor. After watching that DVD, the student attorneys had the guts (some would say nerve) to use one of John’s techniques. With the technical supervisor on cross, Ms. Valles asked him a question. He answered. She wrote his answer in black felt tip marker on a flip-chart pad and then asked him to sign it. He signed it, in red felt tip marker, as it was his testimony. The statement she wrote and he signed was, “Without knowing what (Client) had to drink an hour prior to this stop I cannot know his BAC at the time of driving.” During final argument she put the chart up behind her so the jury could see. NOT GUILTY! Thanks also to all that helped prepare the ladies for their first foray into battle, including but not limited to Stephen Hamilton and all of the volunteers that helped by mocking voir dire and opening for the student attorneys.

The Regional Public Defender for Capital Cases secured an agreed plea of guilty in a Lubbock County capital murder case in January. The State had filed notice of intent to seek a death penalty, but the plea resulted in a life without parole sentence. The case was known locally as the bootycall.com murder for the way the defendant and the victim met. Dustin Kendrick was ably represented by Ray Keith and Dennis Reeves of the RPD office. Keith and Reeves were assisted by mitigation investigators Sarah Molzow and Rob Cowey and fact investigator Albert Miraval.