Monthly archive

September 2012

July/August 2012 SDR – Voice for the Defense Vol. 41, No. 6

Voice for the Defense Volume 41, No. 6 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

In the Torture Victim Protection Act, “individual” encompasses only natural persons; the Act does not impose liability against organizations. Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (2012).

      Petitioners, relatives of a deceased naturalized citizen, sued Palestinian organizations under the Torture Victim Protection Act of 1991. The district court granted the organizations’ motion to dismiss, and the U.S. Court of Appeals for D.C. affirmed. The Supreme Court affirmed COA.

The naturalized citizen was allegedly imprisoned, tortured, and killed by officers of one of the organizations. The Supreme Court resolved a split among the circuits by holding that the TVPA did not impose liability against organizations because “individual” as used in the TVPA encompassed only natural persons. The relatives argued that the TVPA contemplated liability against natural persons and nonsovereign organizations, but the Court disagreed based on the ordinary meaning of “individual” and its statutory context. “Individual” was ordinarily used to denote a natural person, and federal statutes routinely distinguished between an “individual” and an organizational entity. A broader or different meaning could not be assumed absent some indication from Congress. Although the relatives argued that limiting liability to natural persons could foreclose effective remedies, that limitation was imposed by Congress and had to be respected.

COAs have the authority to raise a forfeited timeliness defense in exceptional cases. Wood v. Milyard, 132 S. Ct. 1826 (2012).

      D filed a habeas corpus writ in federal court, claiming his murder convictions violated double jeopardy and challenging his jury trial waiver. The district court denied relief. The Tenth Circuit directed the parties to address the timeliness of D’s petition, and then found that D’s petition was untimely. The Supreme Court reversed and remanded the Tenth Circuit’s decision to resurrect the statute of limitations issue instead of reviewing the district court’s disposition on the merits.

      District courts are permitted to consider sua sponte the timeliness of a state prisoner’s habeas petition. Only where the State did not strategically withhold the limitations defense or did not choose to relinquish it, and where the prisoner was accorded a fair opportunity to present his position, could a district court consider the defense on its own initiative if justice was better served by dismissing a petition as time barred. No absolute rule barring COAs from raising a forfeited timeliness defense was adopted; thus, appellate courts, like district courts, have the authority to raise a forfeited timeliness defense. But that authority is reserved for exceptional cases. The Tenth Circuit abused its discretion in overriding the State’s deliberate waiver of the limitations defense. In the district court, the State was well aware of the available limitations defense and the arguments in support of the defense, yet it twice informed the court that it would “not challenge” but was “not conceding” timeliness.

An alien living in the United States as a child must meet the continuous residency requirements on his own, without counting a parent’s years of residence or immigration status. Holder v. Martinez Gutierrez, 132 S. Ct. 2011 (2012).

      Respondent aliens sought cancellation of removal; Board of Immigration Appeals denied cancellation, rejecting the aliens’ imputation arguments under 8 U.S.C.S. § 1229b(a). The Ninth Circuit granted the aliens’ petitions for review and remanded the cases to BIA. Attorney General’s petitions for certiorari were granted and consolidated. The Supreme Court unanimously reversed the Ninth Circuit and remanded the cases.

      Two aliens committed offenses before satisfying the requirements for cancellation of removal under § 1229b(a), which required holding the status of a lawful permanent resident for at least five years and living in the United States for at least seven continuous years after lawful admission. The aliens sought to impute their parents’ years of continuous residence or LPR status to themselves. The Court determined that BIA could rea­son­ably conclude that an alien living in the United States as a child must meet those requirements on his own because BIA’s approach was based on a permissible construction of the statute since, inter alia, (1) the language of § 1229b(a) at least permitted BIA to say that “the alien” must meet the statutory conditions independently, without relying on a parent’s history; (2) the Court could not conclude that Congress ratified an imputation requirement when it passed § 1229b(a); and (3) the Court could not read a silent statute as requiring (not merely allowing) imputation just to be family-friendly.

Fifth Circuit

D’s motion to sever the trial of his co-defendant did not pre­serve his appellate claim that the court should have sev­ered various counts in which D was charged. United States v. Bernegger, 661 F.3d 232 (5th Cir. 2011).

      Although the appellate court retains discretion to review an unpreserved severance claim for plain error, here the district court did not clearly err in finding that the bank fraud count was closely enough related to the mail and wire fraud counts to justify joinder. Nor did D show that failure to sever these counts affected his substantial rights, especially in light of the jury instruction requiring separate consideration of each count and Ds’ acquittals on various counts.

      (2) District court did not violate D’s confrontation rights by refusing to permit testimony of a government witness regarding a transaction that was subject to a confidentiality agreement. D did not show that the transaction was relevant or that testimony regarding the transaction was more than marginally relevant to the witness’ credibility. Additionally, the court did not prohibit D from cross-examining the witness on the one discrepancy be­tween his testimony before the jury and his outside-the-presence testimony.

      (3) In fraud case, district court erred in attributing to D two loans totaling $471,000 as “relevant conduct.” To be “relevant conduct,” conduct must be shown to be criminal. There was no evidence that the loans were obtained in a fraudulent or criminal manner. The fact that the presentence report listed the grantors of the loans as victims was not sufficient; bare assertions in a PSR are not evidence absent any facts or evidence supporting them. This error was harmless vis-à-vis the prison sentence, as subtraction of the amount of the two loans would not change D’s Guideline offense level; the error did require modification of the restitution D was ordered to pay.

D’s proceeding to trial and asserting that the evidence was insufficient to convict him—resulting in a jury verdict of guilty—were incompatible with his claim that he provided the government with all the information he had regarding the offense. United States v. Moreno-Gonzalez, 662 F.3d 369 (5th Cir. 2011).

      On the record of this case, and given the jury verdict, the district court did not clearly err in disbelieving the latter claim and in denying safety-valve relief pursuant to 18 U.S.C. § 3553(f) and USSG § 5C1.2.

Immigrant’s prior Georgia conviction for possession of an unspecified amount of marijuana with intent to distribute was properly considered a felony under the federal Controlled Substances Act and hence a removable aggravated felony under 8 U.S.C. § 1101(a)(43)(B). Moncrieffe v. Holder, 662 F.3d 387 (5th Cir. 2011), writ granted, 132 S. Ct. 1857 (2012).

An alien who has been deported pursuant to a final removal order is no longer in custody for purposes of a ha­beas petition challenging that removal order. Merlan v. Holder, 667 F.3d 538 (5th Cir. 2011).

      Absent any showing that the U.S. deportation was the result of extreme circumstances or that alien was subject to restraints in Mexico, alien was not “in custody” within 28 U.S.C. § 2241 for a habeas petition. Nor did the district court have jurisdiction to review the final removal order pursuant to the provisions of the REAL ID Act. Accordingly, the district court did not err in dismissing the petition for lack of subject matter jurisdiction.

In the appeal of D’s conviction for mail theft by a postal employee, the Fifth Circuit noted a split of authority as to whether pre-arrest, pre-Miranda silence in the face of law enforcement questioning was admissible; the Fifth Circuit declined to take sides in this debate because, regardless, any error in this case was harmless. United States v. Ashley, 664 F.3d 602 (5th Cir. 2011).

      The First, Sixth, Seventh, and Tenth Circuits hold that the Fifth Amendment’s privilege against self-incrimination prohibits the use of pre-arrest, pre-Miranda silence as substantive evidence, while the Fourth, Ninth, and Eleventh Circuits allow its use.

District court did not err in denying D’s motion to suppress the fruits of a search of her cell phone; officers’ war­rant­less entry into the mobile home where D was staying was justified by exigent circumstances (i.e., occupants were destroying evidence) and probable cause. United States v. Aguirre, 664 F.3d 606 (5th Cir. 2011).

      Furthermore, the court did not clearly err in finding that the search of D’s cell phone did not occur until a search warrant was issued two hours later; that warrant, which was based only on information possessed by the police prior to their entry into the home, set out probable cause to search. Finally, although the warrant did not specifically describe cell phones among the items to be searched, D’s phone—using a mode of spoken and written communication and containing text message and call logs—was the equivalent of records and documentation of sales or other drug activity, which the warrant did list as general categories of things to be searched.

In case of D convicted of one count of transportation of child pornography, D’s within-Guidelines prison sentence of 220 months was not substantively unreasonable; the district court considered all the statutory factors in im­pos­ing sentence. United States v. Miller, 665 F.3d 114 (5th Cir. 2011).

      The Fifth Circuit distinguished from United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), which was highly critical of child pornography Guidelines.

      Nor did the district court abuse its discretion in imposing a special condition of supervised release forbidding use of any computer or device with Internet access (including phones) without written permission. The ban was not absolute or unconditional, and the probation officer could grant permission to use a computer or the Internet. Nor did the district court plainly err in imposing a special condition of supervised release forbidding D to own a camera, photographic device, or video recording equipment without approval of the probation officer, given that D’s activities involved misuse of photographic recording equipment. Nor did the court plainly err in imposing a special condition of supervised release forbidding D to acquire or possess “sexually stimulating or sexually oriented materials,” given D’s background (involving consumption of adult pornography); likewise, it was not plainly overbroad in violation of the First Amendment, nor was it so vague as to violate due process.

Court of Criminal Appeals

D’s evidence objections were not so clearly connected to constitutional protections that they could be assumed to be due-process objections. Clark v. State, 365 S.W.3d 333 (Tex.Crim.App. 2012).

      COA affirmed D’s capital murder conviction and life sentence with no possibility of parole. CCA granted review to determine whether objections D made at trial put the trial court on notice of his due-process, fair-trial complaint. CCA affirmed COA.

      Nothing showed that the judge or prosecutor understood that D’s complaints about the evidence were complaints of a denial of due process. The badgering, sidebar, argumentative, invading the province of the jury, and mischaracterization objections were not clearly connected to constitutional pro­tections. The court needed to be presented with and given the opportunity to rule on a constitutional objection. There was no prosecutorial misconduct, and D did not make such an objection. The prosecutor’s actions, while aggressive when cross-examining D, did not amount to fundamental error, and D forfeited his due process claim by not properly preserving error at trial, for Tex. R. App. P. 33.1(a)(1)(A).

Officer lacked reasonable suspicion that D was driving il­le­gally on an improved shoulder; D used the improved shoulder to pass a slowed car, which was authorized by statute. Lothrop v. State, No. PD-1489-11 (Tex.Crim.App. May 9, 2012).

      D was convicted of DWI. COA affirmed the conviction and affirmed the trial court denial of D’s motion to suppress. CCA held that COA erred in affirming the denial of D’s motion; CCA reversed and remanded.

      D claimed his driving was legal under Tex. Transp. Code § 545.058(a), which states that “[a]n operator may drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is necessary and may be done safely . . . to pass another vehicle that is slowing. . . .” COA held that driving on an improved shoulder, regardless of circumstance, is prima facie evidence of an offense, and that § 545.058(a) merely establishes defenses a defendant may raise at trial and consists of three elements. CCA read the statute such that “necessary” was a free-standing requirement. As the statute envisioned drivers legally using improved shoulders so they could pass left-turning vehicles, interpreting “necessary” to mean absolutely necessary would thwart legislative intent. In this case, officer lacked reasonable suspicion that D was driving illegally; D used the improved shoulder to pass a slowed car, which was authorized by the statute.

The State provided a race-neutral reason for striking a venire­person; he shared the same last name as a criminal family. Nieto v. State, 365 S.W.3d 673 (Tex.Crim.App. 2012).

      D appealed the trial court’s denial of his Batson motion. COA held that the court clearly erred in failing to find the State’s race-neutral reasons were a pretext for racial discrimination. CCA reversed and remanded for COA to consider any remaining issues.

      At D’s murder trial, he filed a Batson claim after the State struck all five black prospective jurors. The State provided a race-neutral reason for striking a venireperson; he shared the same last name (“Mauldin”) as a known criminal family. The venireperson did not respond when the panel was asked if anyone they were related to had been convicted of a crime. And, because defense counsel did not rebut the State’s description of the venireperson’s glaring, his demeanor was proven on the record. Therefore, the trial court’s determination that the strike was racially neutral was not clearly erroneous.

Because the trial court was best positioned to evaluate of­fi­cer’s credibility at the hearing, it was also in the best po­si­tion to clarify its ambiguous findings and make an ex­plicit credibility determination. State v. Mendoza, 365 S.W.3d 666 (Tex.Crim.App. 2012).

      A trial court granted D’s motion to suppress on the ground that officer lacked reasonable suspicion to make the traffic stop. COA reversed. CCA remanded to COA with instructions to abate the case to the trial judge for supplemental findings.

      CCA held that because the written findings of the trial court were ambiguous, and that the trial court made no credibility determination, supplemental findings by the trial court were necessary. The written findings could be construed to imply that the trial judge believed officer was entirely reasonable and that the judge simply misapplied the law of reasonable suspicion; if that were the case, COA’s application of de novo review was proper and its ruling should stand. However, CCA held that it was at least equally possible that the trial court made an implied credibility finding that supported its ruling—namely that it disbelieved officer or the reasonableness of his beliefs, feelings, and statements.

Absent contrary evidence, a mandate is presumed to issue at 9:00 a.m. on the day COA issues it, thereby making any writ application filed later in the day timely. Ex parte Hastings, 366 S.W.3d 199 (Tex.Crim.App. 2012).

Questioning jury panelists’ understanding of the differences between the criminal and civil burdens of proof is relevant to a legitimate defensive challenge for cause. An­der­son v. State, 366 S.W.3d 198 (Tex.Crim.App. 2012).

      Like in Fuller v. State, 363 S.W.3d 583 (Tex.Crim.App. 2012), the trial court abused its discretion by refusing D’s questions on criminal versus civil burdens of proof. CCA remanded to COA in light of Fuller.

The court erred by including in its jury instructions the unknown manner-and-means of death theories because the instructions should have reduced the four alternatives for murder to the two theories supported by evidence; how­ever, the error was harmless. Sanchez v. State, No. PD-0961-07 (Tex.Crim.App. May 16, 2012).

      COA found harmful error in the jury instruction and reversed D’s murder conviction and remanded for a new trial. CCA reversed.

      COA erred by applying the Hicks v. State, 860 S.W.2d 419 (Tex.Crim.App. 1993), rule to charge-error complaints because it was a sufficiency of the evidence rule and because the Hicks rule is defunct. CCA agreed with COA that the trial court erred by including in its jury instructions the unknown manner-and-means of death theories because the instructions should have reduced the four alternatives for murder to the two theories with the specified manner and means that were supported by the evidence. However, the error was harmless because the jury could have convicted D of murder without being unanimous as to the manner or means of death, as all four of the alternatives required the jury to be convinced beyond a reasonable doubt that D caused the victim’s death, and the evidence established that. The victim was heard screaming just before a stun gun fired, and she was found dead by officers who entered the room immediately. D was found alone with the victim, and no one could have left or entered without being seen by officers.

The trial court had insufficient information to dismiss a ju­ror as disabled. Scales v. State, No. PD-0442-11 (Tex.Crim.App. May 16, 2012).

      A jury convicted D of aggravated robbery with a deadly weapon. COA reversed and remanded for a new trial. CCA affirmed; COA correctly held that a dismissed juror was not “disabled” as defined in Tex. Code Crim. Proc. art. 33.011. Statements by the foreman tended to show that the dismissed juror’s perceptions about the evidence were not shared by the other jurors, and that the dismissed juror’s refusal to deliberate was actually a refusal to change her mind. The trial court had insufficient information to determine that the juror was unable to perform her duties.

The statutory county judge lacked jurisdiction to issue a search warrant beyond his county. Sanchez v. State, 365 S.W.3d 681 (Tex.Crim.App. 2012).

      D was charged with DWI. The trial court denied his motion to suppress the blood test results. COA reversed the trial court because the search warrant for D’s blood draw was invalid. CCA affirmed COA. The warrant was issued by a judge of a statutory county court in Montgomery County for D’s blood draw in Harris County, where D was arrested. The Montgomery County judge did not have jurisdiction under Tex. Const. art. V § 1 to issue a search warrant for an individual to be found in Harris County. Statutory county court judges are magistrates, and the duty of a magistrate is “to preserve the peace within his jurisdiction. . . .” Tex. Code Crim. Proc. art. 2.10.

The evidence failed to show a reasonable likelihood that the false testimony affected D’s sentence. Ex parte Chavez, No. AP-76,665 (Tex.Crim.App. May 23, 2012).

      D sought habeas relief from his 55-year sentence for aggravated robbery. D claimed that a legal basis that was unavailable when he filed his first habeas application entitled him to consideration of, and relief on, his due-process false-testimony claim. Ex parte Chabot, 300 S.W.3d 768 (Tex.Crim.App. 2009). CCA determined that although D was not procedurally barred from raising his claim, he failed to establish a due-process violation by the State’s unknowing use of false testimony at trial. The present standard for materiality of false testimony, under Chabot, is whether there is a reasonable likelihood that the false testimony affected applicant’s conviction or sentence. Examination of the entire record did not reveal a reasonable likelihood that the jury was affected by the false testimony in assessing punishment, and the record contained substantial incriminating circumstantial evidence that further supported the sentence.

While the temporal proximity of the seizure of the ecstasy to the illegal traffic stop supported suppression, that factor did not weigh heavily in light of the intervening dis­cov­ery of D’s outstanding arrest warrants. State v. Mazuca, No. PD-1035-11 (Tex.Crim.App. May 23, 2012).

      COA upheld the trial court’s order granting D’s motion to suppress after he was charged with possession of ecstasy. CCA reversed COA and remanded to the trial court.

      CCA held that while the trial court was correct that the temporal proximity of the seizure of the ecstasy to the illegal stop for perceived taillight infractions supported suppression, that factor did not weigh heavily in light of the intervening circumstance of the discovery of his outstanding arrest warrants. The officers were part of a unit specifically tasked with looking for traffic violators. There was no indication that they were making traffic stops for any purpose other than to enforce the traffic laws. Officers’ behavior, although clearly unlawful at the outset, was not so particularly purposeful and flagrant that the discovery of D’s arrest warrants could not have served to break the causal connection between the illegal stop and the discovery of the ecstasy in his pocket, thus purging the primary taint.

COA should consider the property-based approach to the Fourth Amendment as an alternate to the expectation of privacy approach. State v. Bell, 366 S.W.3d 712 (Tex.Crim.App. 2012).

      D, employed as a shopping mall property manager, was charged with unauthorized discharge of industrial waste after a pressure-washing contractor allegedly discharged contaminated water. D filed a motion to suppress evidence, which the trial judge granted after an evidentiary hearing. The judge concluded that the two searches upon D were improper under the Fourth Amendment because both police sergeant and informant were trespassers on the property at the time they entered, searched, and seized evidence from the mall premises. COA reversed. CCA remanded to COA in light of United States v. Jones, 132 S.Ct. 945 (2012), which reaffirmed the continued vitality of the property-based approach to the Fourth Amendment as an alternate to the more recent “expectation of privacy” approach.

      COA, when concluding that D failed to establish his standing to contest the search of the closed parking lot because he did not have a “reasonable expectation of privacy” in that lot, did not have the benefit of Jones. The trial judge based his findings and conclusions on the property-based approach, not the “reasonable expectation of privacy” approach.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Statute requiring that if no stop line exists for a stop sign, driver must stop at the place nearest the intersecting road­way where driver can view traffic does not impose a re­quire­ment to stop behind the stop sign. State v. Javari Ed­ward Police, Nos. 10-11-00108-CR, 10-11-00109-CR, 10-11-00110-CR (Tex.App.—Waco Jan 4, 2012).

      “The plain language of the statute does not refer to a stop sign as an indicator of anything other than a signal that a stop is required prior to entering the intersection. . . . [T]he statute indicates that a stop must be made exactly where it states, which may or may not be behind a stop sign[.]”

      Furthermore, quick right turn into a neighborhood known for criminal activity, which D made almost immediately after officer pulled behind D’s vehicle to perform a license check, did not, by itself, give rise to RS. “The facts before the officer were: (1) it was around midnight; (2) [D’s] car was unfamiliar to him; (3) when he pulled behind [D’s] vehicle to run a license check, [D] almost immediately turned right onto a street that curved in a horseshoe shape; (4) rather than follow [D], the officer waited for [D] to exit the neighborhood; (5) the officer did not believe that [D] resided in that neighborhood, having patrolled that area for approximately four years; (6) the neighborhood had a reputation for burglaries and narcotics transactions; (7) [D] emerged on the other end of the street in less than ninety seconds; (8) [D] pulled up past the stop sign at that intersection but not in the intersecting roadway; (9) [D] turned onto the original roadway and the officer initiated the traffic stop. . . . With these facts, [D’s] behavior was not bizarre and nothing suggests a pattern or repetition of unusual behavior[.]”

D could be arrested for reckless driving even though he was driving on private property. Salcedo v. State, Nos. 04-11-00232-CR, 04-11-00233-CR (Tex.App.—San Antonio Jan 11, 2012).

      “Appellant contends the mobile home park was private property; therefore, a police officer could not detain or arrest him for such driving. We disagree. . . . The Texas Penal Code broadly defines ‘public place’ to mean ‘any place to which the public or a substantial group of the public has access.’ . . . Here, [officer] described the area in which [D] had been driving as very dense with several children running around. [D’s] mother testified 500 to 600 people lived in the community. It was undisputed that the public had unrestricted access to the mobile home park. Therefore, we conclude the park was within the Penal Code’s definition of ‘public place.’”

Contents of text messages found on cell phone were hearsay since messages were produced by human thought rather than computer-generated data. Black v. State, 358 S.W.3d 823 (Tex.App.—Fort Worth 2012).

      “A police officer could testify that she saw a message on the cell phone screen. The ticklish question is the degree to which the officer could properly describe the message. The officer could say that the message was short or long but could not lawfully describe its nature absent a hearsay exception.”

Prior felony convictions to impose enhancement for DWI sufficiently shown, even though the indictment misstated when the convictions were final; the court did not err by refusing to track the indictment’s defective sequence al­le­ga­tion in the jury charge. Derichsweiler v. State, 359 S.W.3d 342 (Tex.App.—Fort Worth 2012).

Information in officer’s warrant affidavit was not stale though four months had passed between D’s last electronic communication to child; a pornographic video trans­mit­ted over the Internet is the type of item that is stored on a computer and often retrievable even if erased. State v. Cotter, 360 S.W.3d 647 (Tex.App.—Amarillo 2012).

      Furthermore, that type of property is not transient, unlike consumable drugs.

Officer’s perception of D punching someone gave rise to PC for disorderly conduct regardless of whether it turned out that sufficient evidence supported D’s defense of self-defense. Rangel v. State, No. 11-10-00038-CR (Tex.App.—Eastland Jan 26, 2012).

      “Additionally, [D’s] act of fleeing the scene when [officer] arrived was not consistent with the contention that [D] was acting in self-defense.”

The trial court did not err in admitting evidence of an audio-visual recording of D making phone calls at a police sta­tion; D’s Sixth Amendment right to counsel had not yet attached. Vinez v. State, No. 08-10-00195-CR (Tex.App.—El Paso Feb 1, 2012).

            “Upon arrival at the police station, the police placed [D] in an interview room and informed him that he was in custody and not free to leave. . . . After the police questioned him for some time, he asked to use the police station telephone to call an attorney. The police then ceased the questioning and left the interview room, but they did not turn off the audio-visual recorder. [D] proceeded to make several telephone calls to family and friends, none of whom was an attorney, seeking advice and assistance. During the calls, [D] made certain statements that could be considered incriminating. . . . [D] made the telephone calls in question while the police were still investigating the offense, i.e., at a point before adversary judicial proceedings began. Therefore, [D’s] Sixth Amendment right to counsel had not yet attached. . . . There was no evidence that the police told [D] that he had privacy, nor was there any evidence that the police even closed the door to the interview room when they left following the interrogation. In our view, these circumstances did not justify an expectation that [D’s] oral communications were not subject to police interception.”

The 25th Annual Rusty Duncan Advanced Criminal Law Course: By the Numbers

The feedback we receive for every seminar is carefully assembled so that it may be reviewed, with an eye to improving the next seminar. Some concerns raised, however, are outside of our ability to correct. Others will be assessed as to the feasibility—for instance, is there a way to provide help for those whose mobility is impaired with the great distance between the bus stop and the ballroom. Following are some of the issues raised that require a bit of explanation.

  • “Put the seminar in the host hotel.” We’ve outgrown the hotels. None has the capacity to handle upwards of 1,000 people for presentations.
  • “$12 for a sandwich? Really?” Actually, the box lunches cost quite a bit more: $22 plus 19% gratuity and 8.125% sales tax. TCDLA subsidizes the Hall of Fame lunches to make them more affordable and increase participation. Such is the added cost of using the convention center and/or a hotel.
  • “We need more power strips.” The first five rows of Ballroom B contain power strips. The cost for ten power strips: $2,500. This is for the actual electricity used, labor for installing and taping down to code, and actual plug rental.
  • “We should have a live feed to the hotels.” At this point, the cost for a live feed to any hotel would be $25,000—prohibitively expensive. The wiring is done underground.
  • “There’s no internet access in the ballroom. You need to improve this.” San Antonio, unlike Houston and other cities, is not a wifi city. The cost for TCDLA to pay for access for everyone would be $5,000 a day. Users can pay $13 per day, so some have their own.
  • “There were no soft drinks on breaks” [additional requests for cookies, ice cream, etc.]. The total food bill for the Rusty Duncan Advanced Criminal Seminar this year was $67,000, including things such as the breakfast tacos, fruit, and such. But that also includes 1,500 sodas each afternoon (at $3.25 each), $300 for the water stations, and $55 a gallon for coffee (plus gratuity and tax on all, standard for any venue).
  • “Materials were given in paper bags. Are we really that cheap?” The bags are picked each year according to the theme of the seminar. The backpacks used before run an extra $5,000, though in past years they were bought in a closeout sale that cut the cost. The intention was that the bags could be used for shopping purposes.
  • “You ran out of books. You should order more.” The books themselves cost nearly $50 to print, plus the added cost of shipping. We ordered 100 more than were reserved in pre-registration, and they were all sold. The association would be out $5,000 if we ordered 100 that weren’t sold, which is why we stress ordering them early (and note on the registration form that only a limited number are available onsite).

Thank you for your comments. They help us prepare for the next event and improve everything. Additional suggestions are always welcome.

Joseph Martinez
Executive Director

Storytelling Closing Arguments

“May it please the court, opposing counsel…Ladies and Gentlemen, thank you for listening to all the evidence. . . .” Just about this time, juries’ eyes glaze over; they shift focus and start daydreaming. You have just lost the jury.

The best trial lawyers are gifted storytellers. The trial lawyer will connect with the jury by relating the case to something the jury can understand and feel. Closing is the only time you may deduce from the evidence and pull at the jurors emotional heart strings with your client’s story. Sometimes your client has suffered pain, been a loser, been irresponsible, done evil, or have been no good their entire lives. Now, you must stand before 12 human beings who do not care and make them care. You cannot pull out a script and read it, you cannot play a movie for them or hide behind PowerPoint. Instead, you must stand before 12 people naked and vulnerable, but not ashamed. It is your job to let them see themselves in your client. The following are real closing trial stories that will do just that.

Rush to Judgment, New Officer,
Seeing What You Want to See

The first time I went hunting with my little brother, it was an overcast fall weekend. But my little brother woke me up and said, “Come on, I want to shoot a deer.” We bundled up, he grabbed the thermos of hot chocolate, and I grabbed the rifle, ammo, and binoculars. We’re just sitting in the blind telling jokes and trying to keep warm when all of a sudden there they were: deer, appearing out of the woods and into the clearing in the meadow. I grab the binoculars and look at the deer. It’s all does and fawns. My brother is looking through the site on the rifle, and then I hear the safety click off. Still looking through the binoculars, I ask, “What are you doing?”

He whispers, “I’m gonna shoot my first buck.”

“What buck?” I say.

“The one right there at the edge of the trees,” he responds.

I reply, “That’s just a doe and those are branches.”

He refuses to believe me. I tell him: “We are in a one-buck county. You shoot that deer, you’re gonna have to bury her because I’m not getting in trouble with Dad. Put down the gun, and just look through these binoculars.”

He puts the safety back on and I hand him the binoculars. He focuses in and just then the deer bends down to eat and leaves her “antlers” in the tree—because they weren’t antlers, they were just branches. It was my brother’s desire to kill his first big buck that made him believe a buck was down there, not reality.1

Just like my brother, this officer so badly wanted to see that big buck DWI. He’s been training and riding along with other officers for months; he just wanted to see that DWI so bad. But it’s not a big buck DWI; it’s a doe. I’m going to take off my binoculars and give them to you, ladies and gentlemen, and let you see it for yourself.

Beyond a Reasonable Doubt, Complete Investigation, Crucial Evidence

When I was young, my mother would make my brothers and me put puzzles together before we could go out and play on Saturday mornings. I hated it, but we could not go out until we put those awful puzzles together. We had to put every piece together and figure out what went where before a picture would slowly start to develop. I did not realize what my mother was doing until years later. She was teaching us to think in logical sequence. You cannot force puzzles together if you wanted the right picture. You have to be patient and go step by step in order to complete the image.

I thought about those puzzles when I examined the investigation in this case. Did Officer Smith reach a conclusion before he put all of the pieces together? Now the State loves to tell you that you know what the picture is without all the pieces, beyond a reasonable doubt. But the truth is, if you are missing a crucial piece it makes all the difference—i.e., a puzzle of a gun—and the missing piece is the tip of the gun, which tells you if it’s a toy, BB, or real gun.

Untruthful Witness, Impeached Testimony,
Rotten Evidence, Snitches

When I was a little boy, my mother would cook spaghetti every Saturday. I would watch her as she made her delicious sauce. She would start with the tomatoes and then add the basil, garlic, salt, pepper, Italian seasoning, and lots of ground meat. Then she would stir all of the ingredients with a large wooden spoon. One day, while stirring her famous pasta sauce, she saw a cockroach in the pot. Now what do you think she did? Did she just scoop out the part that had the cockroach and let us eat the rest? Or, did she get rid of the whole pot of spaghetti sauce?

Now, when Mr. Hunter told you that he was looking at a life sentence and did not expect anything from his cooperation with the State, do we digest that lie with rest of his testimony, or do we throw his entire story out? It doesn’t take much to taint the entire pot of sauce.

Client Is Different, Get to Know
the Defendant, Punishment

The other night, my wife and I were watching TV and this old movie came on: “Doc Hollywood.” It’s a movie from the early nineties where Michael J. Fox plays this big-city LA doctor who wrecks his car and gets stuck in a small town. And there is this one scene in the movie that really reminded me of this case. It’s where this country couple brings in their son and he can barely breathe. He’s just turning blue. Michael J. Fox gets him on a table and examines him and then says: “I know what this is. I saw it in my training back in LA. It’s very rare—it’s juvenile acute right ventricle myocardial infarction.”

Michael J. Fox starts hooking the kid up to all these machines, and the nurse goes out into the hall to call old Dr. Hogue. She hollers to Michael J. Fox from across the hallway, “Doc Hogue says give him a Coke.”

Michael J. Fox goes sliding out of the room and grabs the phone and yells in it, “If you don’t get your lazy ass out of bed, this kid’s gonna die,” and hangs up the phone.

They wheel the kid out of the little hospital and the ambulance is there waiting for Life Flight to come in, when Doc Hogue’s old boat of a car comes sliding to a stop, spraying up the gravel in the parking lot. Doc Hogue lumbers out of his car and he’s dressed only in a robe. He goes up to the kid, looks down at him, and asks, “You been taking that antacid I gave you?”

The little kid’s face is covered up by an oxygen mask. The kid nods his head up and down. Doc Hogue then asks him, “You been getting into your daddy’s chaw?”

The kid doesn’t move. Doc Hogue leans closer and asks again, louder, “You been getting into your daddy’s chaw?!”

Slowly the little boy starts nodding his head up and down. Doc Hogue raises the mask off the little kid’s face and onto his forehead. Then, Doc Hogue reaches into the pocket of his robe and pulls out a can of Coke. He opens it. He raises the little kid’s head and the kid takes a sip. He exhales, “Aaahhhhh,” and the color rushes back into his face.

Doc Hogue looks at the worried parents and says, “That’ll be 35 cents.”

Doc Hogue then grabs Michael J. Fox by the arm and walks him a bit aways and tells him, “Next time, before you crack a little kid’s chest open, why don’t you get to know your patient.”

And that’s exactly what happened in this case. The police, relying on all their big-city training and rules and procedures, forgot to take five minutes and get to know Mr. Smith. You see, Mr. Smith is different. He’s not intoxicated. And it’s not illegal to be different. Now, you’ve gotten to know Mr. Smith pretty well, and y’all don’t have to crack his chest open. You can just give him a Coke.


I recently heard an old Chinese proverb that made me think about this case. It’s about this cheeky boy who wanted to challenge the old wise man in town. The boy went into the woods and caught a little bird. He then took this bird back into town and went to see the old wise man. The boy cupped his hands perfectly around the little bird to make sure that you couldn’t see what was in his hands. He went up to the old wise man and said, “Old wise man, please tell me what I have in my hands.”

The old wise man replied, “You have a bird, my son.”

The boy was furious that the old wise man got it right. So the boy thought for a minute and then asked, “Old wise man, if you’re so smart, now tell me is this bird alive or is it dead?”

The old man was silent and the boy knew that he finally had the old wise man. Because if the old wise man said the bird was alive, he would simply squeeze his hands together and crush the little bird. And if the old wise man said that the bird was dead, then the boy would just open his hands and let the bird fly free. There was no way that the old wise man could be correct. The old wise man was still silent, and then finally responded: “Well, that is entirely up to you, my son. After all, the bird is in your hands.”2

And just like that little bird, Mr. Davis and his life are in your hands. You 6/12 jurors will decide whether you let him go and see what great heights he can achieve, or you crush the life out of him. But ultimately, his life, his future, and his family’s lives and futures are in your hands.

Gruesome Violence, Unlikeable
Complaining Witness or Decedent

When I was a little boy, my brothers and I would go out in the back yard and throw rocks at each other. One day we were throwing rocks and a big snake slithered over and curled up at the base of the gate, preventing us from getting out of the yard. We screamed and screamed until a neighbor noticed and ran to get my mother. My mother was also afraid of snakes, but she got a shovel and she ran out to protect us. She took that shovel and then hit that snake, and she hit that snake again and when that snake pulled away, she hit that snake again and again. Even when the snake was dead she continued to hit that snake. We had to finally grab her to stop her.

Mr. Smith, the man killed by my client, was a snake.

Snitches, Untruthful Witnesses, Trust Your Gut

Those who have dogs know they are amazing animals. I had a dog named Coby. I raised Coby from a pup until he died of old age. Coby could tell when I came into the yard with a leash whether I was taking him to the vet, taking him to get washed, or just taking him for a walk to the park. He seemed to sense something in me that I could not see myself. I’ve learned that we all have that sense but most of us never use it.

For example: When Ms. Smith, the lady with the red hair, said she had never seen my client before that evening, what did you sense? When Officer David said he could smell marijuana as my client passed in his car, in the opposite direction, what did you sense, and so forth. You heard what they said, but what did you really sense? You are allowed to—and should—follow your senses.

Proper Investigation, Rush to
Judgment, Priors, Punishment

Every summer, my younger brother and I would go spend about a month with my grandparents in West Texas. Now it wasn’t a big town, and we knew all of the kids in the neighborhood. And every summer we’d spend the days playing wiffle-ball baseball. My brother and I were always pretty athletic, so we were never allowed on the same team. The neighborhood guys always loved having extra guys on the field so we could play on the big field with the railroad track at the back edge. But when we played on that field, anything on or over the tracks was considered a homerun, because you had to look both ways and take time before crossing the tracks.

Well, one day, it was a real close game. It came down to the bottom of the ninth with two outs and my team was winning by one run. My little brother was the last up to bat, one man on third, and I was pitching. He kept taunting me and calling his shot, and switching sides to bat from. Finally we settled down, and I hurled that wiffle ball with all my skill right down the pipe. Whap! He connected. I don’t know how, but he did. The ball went flying way over my head. It cleared the second baseman, and landed just before the tracks and bounced over. The centerfielder ran all the way back, looked both ways, and grabbed the ball.

Ground-rule double, right? No, his whole team was screaming to keep running, and he didn’t stop at second. He was rounding third by the time the throw came in to second. I went to cover the catcher at home. The ball and Adam came in at the same time. His team came out screaming with joy. My team ran from the field towards home plate hollering that it hit before the tracks. Everyone is screaming back and forth, and my brother, out of nowhere, who was just so happy he won the game, became so upset that he grabbed the wiffle-ball bat and whacked me behind my knees.

Everyone fell silent. The blow crippled me, and he took off running. It seemed like an eternity, but I got up, grabbed the wiffle bat and tore off after him. He ran all the way through the neighborhood with me chasing him with the wiffle bat. I was about to catch him as he blasted through the side-door fence into the back yard of our grandparents’ house. He ran right past my grandma, who was in her tomato garden. Her head perked up and she saw me coming full steam ahead, red faced, crazed look in my eyes, waving a wiffle-ball bat. She grabbed the bat from me and began to paddle me on the bottom with it, asking why I always had to torment my little brother and why was I always picking on him.3

I never forgot that. Why? Because the only thing worse than being punished is being wrongfully punished. Had my grandmother just been there, had she just asked one of the 15 or 16 other kids, had she just asked my brother, asked me, done some sort of investigation . . . But she didn’t. And just like my grandma, these police officers didn’t do a proper investigation either. Now the State is asking you to punish Mr. Smith without having the whole story. But you can’t find him guilty or punish him without investigating and knowing the circumstances surrounding this case. Remember, the only thing worse than being accused of a crime is being wrongfully accused of a crime.

We all have barriers that prevent us from truly connecting with other human beings. I’m too fat, skinny, bald, old . . . I am not perfect. When a lawyer stands up to address a jury, everything that lawyer has ever done and everything that lawyer ever intends to do stands before that jury. The lawyer is just as much a part of the story as the story itself. You are the narrator, so your credibility is always an issue. If lawyers cannot tell their own story, how can they tell their client’s story? The most important part of a final argument is being genuine. Whether you adapt one of these stories or create your own, make sure it’s genuine. In order to make a great closing argument, you must tell a compelling story, and the story starts with you.


1. Thanks to National College for DUI Defense 2007 Summer Session at Harvard University (

2. Thanks to Gerry Spence and the Trial Lawyers College (

3. Thanks to Shawn Dorward of the McShane Firm ( and the National College of DUI Defense.

Finding the Good News in the Arresting Officer’s Report: How to Cross-Examine the Arresting Officer in a DWI Trial in Edinburg, Texas

Good criminal defense lawyers are known for doing two things well: cross-examination and closing statements. In my opinion, a devastating cross-examination of a witness during trial will do more to demoralize the other side than anything else. Additionally, a good cross-examination is exactly what a jury wants to see. It is your chance to energize the jury and show them the weakness in the case against your client. Once you have exposed the witness as a liar, a charlatan, or just as an idiot in general, there’s no rehabilitating that witness’ testimony by the State. This is especially true of an arresting officer in a DWI trial.

The tips and suggestions in this paper are just that—tips and suggestions. They are the best ideas I have found from various CLEs and some I have devised. Use this as a starting point and customize it to your needs and style.

Remember, anyone can effectively cross-examine an ar­rest­ing officer in a DWI trial. Cross-examining an arresting of­fi­cer in a DWI case effectively takes two things. The first is prep­a­ra­tion. You must know your case inside and out in order to properly cross-examine.

Go to the DA’s office and read the police report. Write down the entire report word for word. You have to know that report before you ever ask the first question. The report is going to control the line of questioning in trial. If you don’t know the report, you can’t formulate your questions.

Then review the video. See if your client is intoxicated to the degree the officer claims in the report. Oftentimes the report does not match what’s on camera. That’s golden. When the officer’s report makes your client sound like he needs his stomach pumped but the video shows him standing, talking, and walking without any difficulty, the jury will hate the officer for lying. If you can show that the officer’s report is grossly exaggerated, the jury will look with a jaundiced eye on the rest of his testimony. Conversely, if the video shows your client drooling, unable to stand up on his own, or generally mimicking Curly from the Three Stooges, it’s probably time to look at pretrial diversions.

If the field sobriety tests were given, make sure the officer took the time to give them correctly. There are very stringent rules for administering the field sobriety tests (although the Court of Criminal Appeals has been kind enough to police officers to substantially relieve them of their duty to administer these tests correctly, or do anything right in general). This is especially true for the horizontal gaze nystagmus test.

Once you know your case and you’ve read the police report, write a script of questions you intend to ask. Writing the script will allow you to methodically question the officer and will keep you on track when you get rattled.

Get the officer’s TCLEOSE records before going to trial. You need to know what level of certification the officer has before testifying.

File pretrial motions that limit the officer’s testimony and control what he’s able to talk about. File motions to exclude the portable breath test, request judicial notice of nystagmus, file a motion to exclude HGN test if it was not given properly, request a 705 hearing, ask for appropriate jury instructions.

The second thing you need in order to cross-examine effectively is a willingness to be confrontational. Remember, ours is a confrontational business. It is accusatorial by nature. Our job is to expose the unscrupulous as liars, as cheats, as people who dishonor what is otherwise a very honorable profession. The only way to do that is to be confrontational. I am not suggesting you walk into court and start your cross by calling the witness a “lying sack of shit.” What I am suggesting is that you have to be willing to get in the witness’ face and force him or her to remember the truth.

Develop Your Own Style: Cross-Examination in the Real World

What is cross-examination? It’s defined in Black’s law dictionary as “the opportunity for the attorney to ask questions in court of a witness who has testified in trial on behalf of the op­­pos­ing party.” This is a good academic definition, but in the courtroom it means nothing. The best definition I’ve heard for cross-examination goes something like this: “Cross-examination is the opportunity for the defense lawyer to testify, punctuated by occasional ‘yeses’ and ‘nos’ from the witness.”

Keep this in mind. Cross-examination should not be used as a deposition. It is not a chance to ask open-ended questions and allow the witness to explain. It is your chance to explain to the jury why the witness is wrong. The witness is only there to say “yes” or “no” in response to your statement. I emphasize “statement” because that is what you are doing—you are making statements.

Control the Witness at All Costs

In cross-examination, as in fishing, nothing is more ungainly than a fisherman pulled into the water by his catch.

—Louis Nizer

Being thoroughly prepared will greatly aid in controlling the witness. Controlling a witness means making the witness provide the answers you want even when he/she does not want to. There is nothing more important than control in cross-examination. I have seen lawyers with very good suppression issues get dragged around the courtroom by experienced police officers because they just didn’t control the witness. I believe the lawyers were pulled into the water because they were not prepared.

Control Starts With Locking the Officer into One Story

The first thing I do for control is lock the police officer into what’s written on the report. I do not want the police officer tes­tifying to anything that isn’t contained in his report. I base my cross-examination script on that report. My first step is to make the officer agree to only testify from his report. Here is what has worked for me in the past:

Q:   Officer, you were trained at the academy to write reports?
Q:   You were trained to write your reports accurately?
Q:   To write them truthfully?
Q:   And in writing the reports accurately and truthfully, you include all the information that you took into account when deciding to arrest Joe Citizen?
Q:   Because if it was important enough for you to con­sider in arresting Joe Citizen, it would have been important enough to include in your report?
Q:   Do you remember the name of the person that you arrested before you arrested Joe Citizen?
Q:   Do you remember the name of the name of the per­son you arrested after Joe Citizen?
Q:   The point is that you are not here to testify about anything that isn’t in your report?
Q:   Because you just don’t remember?

If the officer simply insists that he can remember details that he did not put in his report, I ask the following:

Q:   Officer, you are allowed to supplement your reports if you need to include additional information in them?
Q:   And the kind of additional information you would need to supplement are those things that would deal with your decision to make the arrest?
Q:   To date, you have not supplemented your report?
Q:   To date, you have not remembered any additional facts of this case that you felt were important enough to spend time writing a supplemental report about?
Q:   And you’re free to supplement your reports any time?

By locking the officer into his story, I have cut off most any retreat. It also prevents him from being able to say that he suddenly remembers some damning detail about my client’s case. You always want to ask questions that allow you to put the report in front of the officer and say, “Show me in your report where it says that.”

Controlling the Witness Means Refuting the Officer’s Training and Credentials

After locking the officer into his report, you need to show the jury about the officer’s credentials. This is done through the TCLEOSE records. In Texas, there are three levels of certification for administration of field sobriety tests: (1) certified, (2) practitioner certified, and (3) instructor certified. To become cer­tified, an officer needs to attend the police academy and take an eight-hour course taught by other officers. To become practitioner certified, the officer must collect numerous DVDs of his administration of the field sobriety tests in real-world set­tings and submit them for review. To become an instructor, the officer has to attend numerous additional classes and have a certain number of years of experience. Remember this: The huge majority of officers are only going to be certified. Nothing else. Once I learn they are only certified, from the TCLEOSE records, I ask the following questions:

Q:   You said on direct that you are certified to administer the field sobriety tests?
Q:   Now you understand that there are three levels of certification to administer the field sobriety tests in Texas?
Q:   The first level is certified?
Q:   The second level is certified practitioner?
Q:   That is where you collect videotapes of yourself ad­ministering the field sobriety tests and you submit them to Austin for review?
Q:   You are not a certified practitioner?
Q:   The next level above certified practitioner is certified instructor?
Q:   That is where you take even more classes and you have been certified for a number of years?
Q:   And you are not instructor certified are you?
Q:   So what you are telling this jury is that you have the lowest level of certification allowed by law to administer the field sobriety tests and testify about those tests in court?

At this point you’ve accomplished two things: You have locked the officer into using only his police report to testify from, and secondly, you’ve just shown the jury that the person who they have been told all along is an expert really isn’t all that smart.

Controlling the Witness Means Finding the Good News in the Report

Police reports are full of gifts. They are loaded with good facts for your client regardless of what the report says. I have had police reports that read like my client should be getting his stomach pumped, yet somehow my client still managed to stand on one leg for 22 of 30 seconds. Police reports have inconsistencies, embellishments, and outright lies. This is what you have to look for. Begin by breaking down the arrest into three sections. NHTSA teaches police officers to conduct DWI detection in three steps: First is observing the vehicle in motion. Second, observing the vehicle after the initiation of the traffic stop and initial contact. Third, the field sobriety tests. This leads me into another point: Buy the NHTSA Student Manual. The student manual will tell you exactly how the officers are trained to administer the field sobriety tests. Despite the training, most police officers do not do the tests correctly. This is especially true of the horizontal gaze nystagmus test (HGN test).

Step One in DWI Detection: The Vehicle in Motion

Typically a DWI defendant will be stopped for speeding, failure to stop at a designated point at a traffic light, or failure to come to a complete stop. Do not ask the officer, “So, you pulled my client over for speeding?” or “How do you know he was speeding?” Instead, talk about what’s not in the report. Assuming the stop was for speeding, here’s what I ask:

Q:   Officer, DWI detection is divided into three parts. The first is the vehicle in motion?
Q:   That’s where you look to see how the driver handles the vehicle while it’s moving?
Q:   You said you stopped Joe Citizen for speeding?
Q:   Your report says nothing about Joe Citizen swearing?
Q:   Your report says nothing about Joe Citizen weaving?
Q:   Your report says nothing about Joe Citizen’s vehicle drifting into another lane?
Q:   Officer, you’re trained in the academy how to drive a car at high speeds?
Q:   You undergo special training because operating a vehicle at a high rate of speed is dangerous?
Q:   It’s dangerous because at a high rate of speed you have substantially less control over the vehicle?
Q:   That is why we have speed limits?
Q:   And the reason that we do not allow people to drive while intoxicated is because intoxicated people cannot react and think normally?
Q:   In other words, an intoxicated person has less control over their vehicle than a sober person?
Q:   And an intoxicated person driving his vehicle at a high rate of speed has tremendously less control than a sober person driving at a high rate of speed?
Q:   Yet your report makes no mention of Joe Citizen lacking the ability to control his vehicle even though he was speeding?

Obviously, you have to tailor the questioning to your own report. But the point is that I do not want to allow the officer to repeat what he said on direct. I want to talk about things that help my client. I want to talk about all the good things my client did, like not swerving, or weaving, or hitting another car. Whatever good I can find in the report, I use it.

Step Two in DWI Detection: From Initiating the Stop to Initial Contact

Next, I go into the stop. Look for indications in the report that your client took too long to pull over, pulled over too quickly, tried to run, or any other aspect of driving that reflects poorly on your client once the stop was initiated. Assuming that is not there, my next step in the cross-examination goes something like this:

Q:   Officer, the next step in DWI detection is looking at the driver’s reaction after you have activated your overhead lights?
Q:   And your report says nothing about Joe Citizen taking too long to pull over?
Q:   Your report says nothing about Joe Citizen swerving quickly to pull over?
Q:   Your report says nothing about Joe Citizen failing to put on his blinker?
Q:   Your report says nothing about Joe Citizen parking his car illegally on the side of the road?
Q:   In other words, Joe Citizen responded to your overheads lights safely, properly, and lawfully?

I want the jury to understand that the universe of signs of intoxication relied on in DWI cases is huge. And even with this huge array of possible bad acts available, the officer was only able to find two or three things to hang his hat on. Prosecutors are taught to minimize expectations of jurors in DWI cases. We as defense lawyers need to do the opposite. We need to raise the expectations to show just how minuscule the evidence really is against our clients. We need to show the jury that this is nothing more than one man’s opinion, and that opinion is unsound.

“Strong Odor of Alcohol Emitting from His Breath”

The next issue to deal with is the ubiquitous “strong smell of alcohol emitting from his breath” statement found in police DWI reports. I take this as an opportunity to show the jury just how willing an officer is to embellish the facts. I have two objectives in this line of questioning: First, to help the officer exaggerate the smell as much as possible. And second, to burst those embellishments quick, fast, and in a hurry.

Q:   After pulling over Joe Citizen, you approached his vehicle?
Q:   You said you smelled a strong odor of alcohol on Joe Citizen’s breath?
Q:   When you say it was a strong smell, you mean it was extremely noticeable?
Q:   It was so overwhelming it was just coming out of the car before you even got to the window?
Q:   But the fact is you cannot distinguish between the smell of half a can of beer and an entire bottle of whiskey?
Q:   The reason that you can’t distinguish between the two is because the amount of alcohol has nothing to do with how strong the smell is?
Q:   Because half a glass of wine smells the exact same on someone’s breath as a whole bottle of vodka?
Q:   So when you say the odor was “overwhelming,” that’s just misleading because the smell of alcohol is all the same?

It does not matter what the response to the last question may be. By the time you ask that last question, you should have backed the officer into a corner on the smell issue. So regardless of whether he admits it’s misleading or not, stick with it, until you get him to admit that it was an embellishment or, at a minimum, just his choice of words.

Divided Attention Questions

This is where the officer will ask your client to produce his driver’s license and insurance. And while the client is looking for the driver’s license and insurance, the officer will ask questions like, “Where are you coming from?” “What’s your telephone number?” or “Where are you going?” The reason officers ask these questions is to see if the suspect can do two things at once—i.e., look for documentation and think about answers to questions. This is a gold mine of good questions to show your client was not intoxicated. Look in the report to see if there is any mention of your client not being able to find his driver’s li­cense, fumbling through his wallet as though his fingers were numb, or seeming confused when asked where he was going.

If there’s no mention that he had difficulty with this, I go into the following line of questioning:

Q:   Officer, when you make contact with a suspected drunk driver, you’re trained to ask divided attention questioning?
Q:   That is where you will ask for the driver’s license and insurance?
Q:   And while they are looking for their insurance and driver’s license, you ask them where they are coming from or where they are going?
Q:   And the point of doing this is to see if they have the mental wherewithal to do two activities at once?
Q:   Your report says nothing about Joe Citizen having trouble finding his driver’s license?
Q:   Your report says nothing about Joe Citizen having trouble locating his insurance?
Q:   Your report says nothing about Joe Citizen having trouble answering your questions while looking for his driver’s license and insurance?
Q:   In other words, he had the mental wherewithal to handle two tasks at once?
Q:   He passed your divided attention tests?

Step Three in DWI Detection: Observations from Stepping Out of Vehicle Through Field

Sobriety Tests

The third step in DWI detection for police officers is their observations when they get the defendant out of the vehicle and administer the field sobriety tests. This is where you have to look at the video. I very much prefer it when there is no video. My experience has been that juries do not like it when there are no videos. Nowadays, there are cameras everywhere, and everyone has a video camera on their cell phone. So I bring this issue up in voir dire. I talk about cameras being every­where to get the jury primed for questions about not having a camera and to let the jury know ahead of time there won’t be a video.

If there is no video I ask the officer the following set of questions:

Q:   You told this jury you have no video/your camera wasn’t working?
Q:   You weren’t the only officer with your department on the street that night?
Q:   There were other officers that were on the street who did have cameras available?
Q:   You did not call another officer to come over and record you giving the field sobriety tests?
Q:   Not only were other officers on the street with cam­eras, but there were other cameras at the police de­part­ment?
Q:   For instance, there is a camera outside the entrance of the sally port where you brought Joe Citizen into the police department compound?
Q:   There is a camera outside the door where you brought Joe Citizen in to be booked?
Q:   There is a camera in the booking area where you took Joe Citizen to be fingerprinted and photographed?
Q:   There is a camera inside the Intoxilyzer room where you took Joe Citizen and read him his Miranda warnings?
Q:   There is a camera inside the cell where you put Joe Citizen?
Q:   The point is, there were at least seven different work­ing cameras that night where you could have provided this jury a videotape?
Q:   And you can’t provide a single videotape to present this jury?

Next, move into the field sobriety tests. The first thing I do is go after the HGN test. I want to show three things: that nystagmus can be caused by lots of things other than alcohol, that the officer has no training in how to differentiate between acute alcohol nystagmus and any other type of nystagmus, and that the officer gave the HGN test incorrectly.

I rely extensively on the case of United States v. Horn, 185 F.Supp.2d 530, to show that nystagmus can be caused by factors other than alcohol. Horn is mandatory reading. There is no other case I am aware of that so thoroughly details the good and bad about field sobriety tests. In Horn a federal district court provide a detailed history of HGN and nystagmus, and the current scientific state of the Standardized Field Sobriety Tests. It should be noted that the Horn court specifically included a detailed analysis of Emerson v. State, 880 S.W.2d 759 (Tex.Crim.App.1994), and a court’s ability to take judicial notice of facts that are not readily disputable, the veracity of which can be easily determined. The Horn court held that there also are many other causes of nystagmus unrelated to alcohol consumption. Id. at 555. The Horn court held:

“The fact that there are many other causes of nystagmus in the human eye also is the type of adjudicative fact that may be judicially noticed under Rule 201. Thus, the defendant in a DWI/DUI case may ask the court to judicially notice this fact, once the government has proved the causal connection between alcohol ingestion and exaggerated nystagmus. Alternatively, the defendant may seek to prove the non-alcohol related causes of nystagmus by other means, such as the testimony of an expert witness, cross-examination of any such witness called by the government or through a properly admitted learned treatise.” See Id. at 556.

It was further stated in the Horn opinion: “The court recognized the following causes or possible causes of nystagmus: problems with the inner ear labyrinth; irrigating the ears with warm or cold water; influenza; streptococcus infection; vertigo; measles; syphilis; arteriosclerosis; Korchaff’s syndrome; brain hemorrhage; epilepsy; hypertension; motion sickness; sunstroke; eye strain; eye muscle fatigue; glaucoma; changes in atmospheric pressure; consumption of excessive amounts of caffeine; excessive exposure to nicotine; aspirin; circadian rhythms; acute head trauma; chronic head trauma; some prescription drugs; tranquilizers, pain medication, and anti-convulsant medicine; barbiturates; disorders of the vestibular apparatus and brain stem; cerebellum dysfunction; heredity; diet; toxins; exposure to solvents; extreme chilling; eye muscle imbalance; lesions; continuous movement of the visual field past the eyes; and antihistamine use.” See Id. at 556. I have been successful in urging this motion to courts. It is simply beyond any dispute that nystagmus can be caused by myriad issues completely unrelated to alcohol, and all benign.

I ask the Court to instruct the jury as follows during a trial:

The Court takes judicial notice of, and you are instructed that, nystagmus can be caused by numerous sources in­cluding alcohol, excessive caffeine consumption, excessive nicotine consumption, the flu, high blood pressure, aspirin, acute head trauma, diet, and changes in atmospheric pressure. You are the sole judges regarding the weight to give the officer’s testimony relating to nystagmus.

Once the jury has been instructed accordingly, I start on the following line of questions:

Q:   Officer, how many times do you need to see an eyeball bounce before you will determine there is acute alcohol-induced nystagmus?
Q:   You are not able to make a distinction between nystagmus caused by alcohol and nystagmus caused by nicotine?
Q:   You have no training in how to differentiate between acute alcohol induced nystagmus and nystagmus caused by caffeine?
Q:   You have no training in how to differentiate between acute alcohol induced nystagmus and nystagmus caused by aspirin?
Q:   In other words, you have no ability to distinguish between acute alcohol induced nystagmus and nystagmus caused by other completely legal sources?
Q:   Based on your training, nystagmus all looks the same to you regardless of its source?
Q:   You never received training in nystagmus detection from a doctor?
Q:   You never received training in nystagmus detection from a nurse?
Q:   You never received nystagmus training from anyone in the medical field?
Q:   The sum total of your nystagmus detection training comes from a course taught by other police officers?

At this point I feel like I have reduced the officer’s credibility as an expert. I have been able to show that the officer has the low­est level of certification allowed by law, that the officer has no ability to distinguish nystagmus, that he received no medical training to diagnosis nystagmus, only receiving training from other police officers.

Next, assuming there is a video, I move into the administration of the field sobriety tests. My experience has been that more often than not, the arresting officer does not administer the test in accordance with the guidelines. This is a great way to score points with the jury. My line of questioning goes something like this:

Q:   Officer, you received training in administering the standardized field sobriety tests?
Q:   And the training you received comes from standards established by NHTSA?
Q:   NHTSA set the rules for how you are to administer the field sobriety tests?
Q:   And the reason they are called standardized is because there is a set standard you have to follow?
Q:   In other words, there is not one standard for the McAllen PD, one for DPS, and one for the sheriff’s department?
Q:   Everyone has to administer the same tests in the same way?
Q:   This is especially true for the HGN test, which is considered to be the most scientific of the tests?
Q:   You are given very specific time constraints in ad­ministering the HGN test that allow you to detect minute movements in the eye?
Q:   And it’s important that you follow the standard that is set?
Q:   In fact, you are taught that you have to follow the set time frames for administering the HGN test or else you’re not going to get valid results?
Q:   In other words, if you administer the test incorrectly, it’s going to affect your ability to properly interpret the results?
Q:   And if you are unable to properly interpret the re­sults of the test, the jury is simply not going to be able to rely on your conclusions?
Q:   In other words, if you gave the HGN test incorrectly, the jury will not be able to rely on your interpretations of the test?

For the walk and turn and the one-leg stand, I do not have a set protocol of questions that I use. It varies greatly from case to case. But most of my lines of question on these two tests deal with inconsistencies between the officer’s report and what the tape shows. If the report says my guy had unsteady balance and difficulty walking but the tape tells a different story, this is another gold mine. Because no matter how the officer tries to jus­tify what the report says, if the tape does not back it up, then the officer is lying.

Police reports in DWI cases are full of valuable information. And sometimes the best evidence for your client is what is not listed in the report. By knowing what to look for and developing a script of questions ahead of time, you will be better able to effectively cross-examine the police officer and raise your client’s chances of acquittal. Good luck.

July/August 2012 Complete Issue – PDF Download



20 | The 25th Annual Rusty Duncan Advanced Criminal Law Course: By the Numbers
22 | Pictures from the Fourth of July Reading of the Declaration of Independence
28 | Storytelling Closing Arguments – By Tyrone Moncriffe & Mark Thiessen
33 | Finding the Good News in the Arresting Officer’s Report: How to Cross-Examine the Arresting Officer in a DWI Trial in Edinburg, Texas – By Johnathan Ball

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

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

President’s Message: A Message to Members – By Lydia Clay-Jackson


Thank you so much for this awesome honor. The 41 intelligent lawyers who have come before me have all left our organization better than when they took the oath, and I intend to follow their example. Our association is not “broken,” so I will not be “fixin’” anything! I will only make it more responsive to the needs of those who promote justice and the common good.

I tip my hat to Gary Trichter; he has done a fantastic job as president of our association. The path he has left me is well lighted, for which I am most grateful. His effort to unify our associations has been most fruitful. He has solidified our relationship with the CCA to such an extent that our financial health looks solid. Additionally, we now own our home. Thank you so much, Gary. You and Heidi may take a well-deserved bow.

I took the formal oath as a lawyer on the University of Texas campus. When I was walking out, there were many organizations and SBOT sections seeking to obtain membership from the “baby lawyers.” There was one table supervised by a middle-aged woman, and she pointedly caught my eye and beckoned me over. She asked if I was going to practice criminal law, and when I told her I was, she said I could not do my job well if I did not belong to the Texas Criminal Defense Lawyers Association. She told me that the association had the best seminars, the best trial lawyers, and the best help for lawyers. She said members of the association make it a point to watch each other’s backs. I joined that day and found she told the truth.

I do plan to enhance the resources we have to aid criminal defense lawyers in performing their duties and obligations. I believe with all my heart that we, individually and as an organization, stand between the government and its zealous representatives. So long as there is a TCDLA, no criminal defense lawyer will ever stand alone.

I see our association taking the initiative in Brady reform, with our legislature and the State Bar. Further, I see us calling to account those prosecutors who seek to pollute juries in direct violation of the Rules of Professional Conduct—specifically, Rule 3.06(c).

If you discover a needed resource that would enhance your abilities, you are obliged to bring that to the attention of the Board for consideration. Nine chances out of ten, there is another lawyer who is experiencing the same need.

The committees of TCDLA will earnestly endeavor to be responsive to the needs of the membership—as well as to other criminal defense lawyers.

We all will also make a concerted effort to increase our membership. It is a remarkable accomplishment that we have become the largest state criminal defense association in the country.

I earnestly anticipate that our relationship with TCDLEI will be financially more advantageous to our members. As LEI is no longer in the property owner business, I believe that monies will again begin to flow for scholarships and other educational investments.

On a somber note, we as the elected leaders of our association must make it a point to watch out for the mental health of our colleagues. One suicide, one colleague abusing alcohol or drugs, one colleague not fulfilling his legal duties, is one too many. I am very proud to say that TCDLA has the resources to address these problems within our number. We must individually be on guard, and help one another when we even suspect such a problem is developing. One gets over embarrassment far faster than grief.

I am available to each of you, as well as to our membership in general, to entertain your suggestions and concerns regarding the effective management of our association. Just as all my predecessors, I believe that a free exchange of ideas only enhances our membership. All you have to do is ask me for my cell number.

Men and women have given their lives to protect and defend the laws we have sworn to uphold. We cannot let them down when we are protecting those laws in the courtroom by acting in any way that diminishes their sacrifices, as well as those by their families.

Each of us has talents that will, when employed, lend themselves to the enhancement of our association. I therefore ask each of you to use those efforts to allow the paraphrased words of Reverend Sykes to become a reality: “Stand. There goes a TCDLA lawyer.”

Thank you for this honor, and now let’s get to work.

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


 A very special thanks to Jeanette Kinard (Austin), who served as Chair and Vice Chair of the Criminal Defense Lawyers Project Committee (CDLP) in 2010–2012, respectively. Jeannette handled with great success all of the oversight of the grants coming from the Texas Court of Criminal Appeals and coordination of the annual 45+ continuing legal education programs. Jeanette’s very able successor is Sarah Roland (Denton).

A special thanks to John Ackerman (Sunrise Beach), who served this past year as Vice Chair of CDLP. John is succeeded by Michael Gross (San Antonio).

TCDLA received notice from the Texas Court of Criminal Appeals of the awarding of the following grants for training of criminal defense lawyers and others for fiscal year 2013:

Criminal Defense Lawyers Project (CDLP)                      $926,404
Actual Innocence Training Program                                  $70,000
Public Defender Training Program                                       $33,209
 Total                                                                                        $1,029,613

Based on TCDLA/CDLP’s grant submission, there will be 36 CLE events from September 1, 2012, through August 31, 2013, in 21 cities across Texas. Projections are to train a total of 4,000 participants in the coming fiscal year. The complete list of CDLP CLE can be found on our TCDLA website,

TCDLA thanks the Court of Criminal Appeals for their trust and confidence in TCDLA in awarding the grants. TCDLA also thanks Judge Barbara Hervey, who is the judge overseeing the grant program.

Special thanks to Danny Easterling (Houston) and Grant Scheiner (Houston), our course directors for the 10th Annual Top Gun DWI CLE. Danny and Grant have been overseeing and shepherding the Top Gun DWI CLE for 10 years. They developed the original concept for the seminar. TCDLA thanks them for their genuine commitment to quality training for criminal defense lawyers on DWI defense. Thanks to them and the speakers they selected, we had 163 participants in Austin in August.

Special thanks to our course directors, Jeanette Kinard (Austin), Robert “Bobby” ­Lerma (Brownsville), Mark Snodgrass (Lubbock), and Sheldon Weisfeld (Brownsville), for the Winning Trial Tactics CLE in South Padre Island in July. Thanks to them and the speakers, we had 65 participants.

Thanks to Sarah Roland (Denton) and Michael Gross (San Antonio), course directors for the Training the Trainers CLE in South Padre Island in July. This CLE focused on preparing our speakers for their presentations during the coming year. TCDLA has prepared a packet of information to be sent to all TCDLA and CDLP speakers. The goal is to have the very finest CLE training in Texas.

President Lydia Clay-Jackson held her Members Orientation and Retreat in League City. TCDLA Board and Members received an orientation to TCDLA and the Criminal Defense Lawyers Project (the grants TCDLA receives from the Texas Court of Criminal Appeals) and to the Texas Criminal Defense Lawyers Educational Institute.

Special thanks to our course directors, Sarah Roland (Denton), Gary Udashen (Dallas), and Jeff Blackburn (Lubbock), for the Innocence Work for the Real Lawyer: How to Get Innocent Clients Out of Prison CLE held in Austin in August. Thanks to the course directors and speakers they selected, we had 196 attendees. Michael Morton and his attorney, John Raley, presented on Mr. Morton’s extraordinary exhortation.

A special thanks to the Honorable Barbara Hervey, Texas Court of Criminal Appeals, who spoke on False Convictions and the Texas Criminal Justice System at the Innocence Work CLE.

Special thanks to our course directors, Betty Blackwell (Austin) and Judge Herb Evans (Austin), and speakers for the Primer for Court Appointments CLE in Austin in August. Thanks to them and the speakers, we had ___ participants.

Special thanks to Jay Norton, President, San Antonio Criminal Defense Lawyers Association (SACDLA), and Aissa Garza, Executive Director, and the SACDLA leadership and membership for allowing TCDLA/CDLP to co-sponsor their Seminar on Assaultive and Homicide Offenses CLE held in San Antonio in August. Thanks to the courser directors, Ms. Garza, and the speakers, we had 68 participants.

The TCDLA Board will meet on Saturday, September 15, 2012, at 10:15 am in the San Luis Hotel in Galveston. All TCDLA members are cordially invited to attend the meeting. The board agenda is posted on the TCDLA website.

The TCDLA Legislative Committee, with Mark Daniel, Chair, will meet in Galveston on September 14, 2012. They will report to the TCDLA Board.

Good verdicts to all.

Editor’s Comment: Long Live Pussy Riot – By Greg Westfall


This summer, we spent our family vacation in Moscow, Russia. We got there at the end of June. By then, Pussy Riot had been in jail over three months awaiting trial on charges of “hooliganism,” which apparently carries up to seven years in Russia.1

Pussy Riot is an anti-Putin punk group of women who perform in face-covering balaclavas, which makes them all look like brightly colored bank robbers. And if you read any of their songs, you will pretty quickly see why they have a tendency to rub Putin the wrong way. Here are a few lines from their song “Virgin Mary, Put Putin Away”:

The Church’s praise of rotten dictators
The cross-bearer procession of black limousines
A teacher-preacher will meet you at school
Go to class—bring him money!

Patriarch Gundyaev believes in Putin
Bitch, better believe in God instead
The belt of the Virgin can’t replace mass-meetings
Mary, Mother of God, is with us in protest!

Virgin Mary, Mother of God, put Putin away
Рut Putin away, put Putin away

“Patriarch Gundyaev,” by the way, is officially known as “Patriarch Kirill of Moscow and All Russia,” the head of the Russian Orthodox Church. The ROC has become extremely powerful in Russia since the collapse of the Soviet Union. This is owing, in no small part, to the patronage of Vladimir Putin, who has found the relationship quite useful.

What Pussy Riot did in February of this year was essentially pull off a flash mob in the Cathedral of Christ the Savior, Gundayev’s home church in Moscow (which Putin had built, by the way). For weeks thereafter, Gundayev performed rites intended to erase the sin of Pussy Riot from inside the church. Gundayev has been one of the chief agitators for prosecution, which has been pretty handy for Putin. Putin, of course, is only too willing to do his part in return.

Interestingly, I had already heard of Pussy Riot on NPR last year, probably when all the protesting was going on in Russia in the lead up to Putin’s “re-election” as President of Russia. So when I was actually in Moscow and the English language newspapers covered the arrests and upcoming trial, it was really gripping. I followed the story every day. It really is bigger news outside of our borders than it is around here. If you would like to learn more about them, I promise it is safe to Google “Pussy Riot.”

Since we left Moscow, both the Red Hot Chili Peppers and Madonna have performed there, and both gave a nod to Pussy Riot. Madonna even wore a balaclava. A deputy prime minister reacted by calling her a “moralizing slut.”3 Does it get any better than that?

I have to say I am jealous. As a lawyer, I am jealous. What a joy it would be to do battle with a government trying to put your client away for seven years for something as simply wrong as a charge of “hooliganism.” It would be a nice break from trying to convince our government not to kill its own citizens, right?

There might be some people (probably not criminal defense lawyers) who would read this and breathe a sigh of relief that they were born in America rather than Russia. I will tell you there is not much difference between the two countries—just a few decades of evolution. Make these women black and put them in a white American church in the 1930s or ’40s and they would have gone to prison for trying to start a riot, if they didn’t get killed first. Oh, we definitely have our own BS charges that are leveled as instruments of oppression. An offense like “material support of terrorism” that makes no distinction between bullets and bandages is a good example.

The United States has the highest incarceration rate in the entire world. With roughly 5 percent of the world’s population, we have roughly 25 percent of the world’s incarcerated. We currently house 2.3 million in our prisons. Per capita, that’s higher than Russia and China combined.4

So yippee, our government doesn’t try to send its outspoken citizens to prison for hooliganism. Or does it?

By the time you read this, the Russian courts will have handed down their verdict on Pussy Riot. I’ve got my fingers crossed.

2. Not sure if this is copyrighted as such, but let’s just assume it is. Here is where you can find this and some other songs:

Federal Corner: One Sex Offender Evades the SORNA Registration Requirements – By F. R. Buck Files Jr.


Finally, a breath of sanity. On July 6, 2012, the United States Court of Appeals for the Fifth Circuit, sitting en banc, held that a SORNA registration requirement was unconstitutional as applied to Anthony James Kebodeaux. United States v. Kebodeaux, __F.3d __, 2012 WL 2632106 (5th Cir. 2012) [En Banc: Jones, Chief Judge King, Jolly, Davis, Smith (who authored the opinion of the Court), Garza, Benavides, Stewart, Dennis (dissenting and joined by King and Haynes), Clement, Prado, Owen (concurring), Elrod, Southwick, Haynes (dissenting and joined by King, Davis, Stewart, and Southwick), and Graves.] [Note: The opinion was, unfortunately, narrow in its scope.]

The opinion of the Court is 11 pages in length. The dissent took another 13 pages—and there are seven pages of footnotes to the opinion. If you should have a SORNA case in your office, you will need to read the opinion in its entirety. What follows is a snapshot of Judge Smith’s opinion, which reads, in part, as follows:

[An Overview of the Opinion]

Anthony Kebodeaux, a federal sex offender, was convicted, under the Sex Offender Registration and Notification Act (“SORNA”), of failing to update his change of address when he moved intrastate. A panel of this court affirmed. United States v. Kebodeaux, 647 F.3d 137 (5th Cir. 2011). The panel majority rejected Kebodeaux’s argument that Congress does not have the power to criminalize his failure to register because it cannot constitutionally reassert jurisdiction over his intrastate activities after his unconditional release from federal custody. Judge Dennis concurred in the judgment and assigned lengthy reasons, urging that SORNA is authorized by the Commerce Clause. The panel opinion was vacated by our decision to rehear the case en banc. United States v. Kebodeaux, 647 F.3d 605 (5th Cir. 2011). Because we agree with Kebodeaux that, under the specific and limited facts of this case, his commission of a federal crime is an insufficient basis for Congress to assert unending criminal authority over him, we reverse and render a judgment of dismissal.

[The Facts in the Case]

While in the military, Kebodeaux had consensual sex with a fifteen-year-old when he was twenty-one and was sentenced in 1999 to three months in prison. He fully served that sentence, and the federal government severed all ties with him. He was no longer in federal custody, in the military, under any sort of supervised release or parole, or in any other special relationship with the federal government when Congress enacted a statute that, as interpreted by the Attorney General, required Kebodeaux to register as a sex offender. When he failed to update his state registration within three days of moving from San Antonio to El Paso, he was convicted under 18 U.S.C. § 2250(a) (also enacted in 2006) and sentenced to a year and a day in prison.

[The Court Accepts Kedodeaux’s Argument]

Kebodeaux argues that § 2250(a)(2)(A) and the registration requirements that it enforces are unconstitutional as applied to him, because they exceed the constitutional powers of the United States. He is correct: Absent some jurisdictional hook not present here, Congress has no Article I power to require a former federal sex offender to register an intrastate change of address after he has served his sentence and has already been unconditionally released from prison and the military.

[The Narrowness of the Opinion]

The federal requirement that sex offenders register their address is unconstitutional on narrow grounds. We do not call into question Congress’ ability to impose conditions on a prisoner’s release from custody, including requirements that sex offenders register intrastate changes of address after release. After the federal government has unconditionally let a person free, however, the fact that he once committed a crime is not a jurisdictional basis for subsequent regulation and possible criminal prosecution. Some other jurisdictional ground, such as interstate travel, is required.

      This finding of unconstitutionality therefore does not affect the registration requirements for (1) any federal sex offender who was in prison or on supervised release when the statute was enacted in 2006 or (2) any federal sex offender convicted since then. Instead, it applies only to those federal sex offenders whom the government deemed capable of being unconditionally released from its jurisdiction before SORNA’s passage in 2006. Moreover, even as to those sex offenders, it means only that Congress could treat them exactly as all state sex offenders already are treated under federal law. It also has no impact on state regulation of sex offenders.

[The SORNA Requirement]

SORNA says, in relevant part, that “[a] sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.” Those requirements are made applicable to former federal sex offenders via 42 U.S.C. § 16913(d) and 28 C.F.R. § 72.3. SORNA then includes the following criminal provision:


(1) is required to register under [SORNA]; 
(2)(A) is a sex offender as defined for the purposes of [SORNA] by reason of a conviction under Federal law . . . ; or 
(B) travels in interstate or foreign commerce . . . ; and 
(3) knowingly fails to register or update a registration as required by [SORNA];

shall be fined under this title or imprisoned not more than 10 years, or both.

18 U.S.C. § 2250(a).

[The Positions of the Parties]

Kebodeaux argues that Congress has no authority under Article I to subject him to conviction pursuant to § 2250(a)(2)(A). The government, on the other hand, maintains that its power to criminalize the conduct for which Kebodeaux was originally convicted includes the authority to regulate his movement even after his sentence has expired and he has been unconditionally released.


[The Court’s Reasoning]

[A]s applied to Kebodeaux, SORNA’s registration requirements are not, and cannot be, an attempt to punish the initial crime or to act as a responsible custodian of prisoners; they are merely an effort to protect the public from those who may be dangerous because they once were convicted of a sex offense. By that logic, Congress would have never-ending jurisdiction to regulate anyone who was ever convicted of a federal crime of any sort, no matter how long ago he served his sentence, because he may pose a risk of re-offending.

      Indeed, that logic could easily be extended beyond federal crimes: Congress could regulate a person who once engaged in interstate commerce (and was thereby subject to federal jurisdiction) on the ground that he now poses a risk of engaging in interstate commerce again. In short, the only “rational relation” between § 2250(a)(2)(A)’s application to Kebodeaux and an enumerated federal power is that Kebodeaux was once subject to federal jurisdiction-reasoning that is so expansive that it would put an end to meaningful limits on federal power.


[S]ORNA’s registration requirements and criminal penalty for failure to register as a sex offender, as applied to those, like Kebodeaux, who had already been unconditionally released from federal custody or supervision at the time Congress sought to regulate them, are not “rationally related” or “reasonably adapted” to Congress’ power to criminalize federal sex offenses to begin with. The statute’s regulation of an individual, after he has served his sentence and is no longer subject to federal custody or supervision, solely because he once committed a federal crime, (1) is novel and unprecedented despite over 200 years of federal criminal law, (2) is not “reasonably adapted” to the government’s custodial interest in its prisoners or its interest in punishing federal criminals, (3) is unprotective of states’ sovereign interest over what intrastate conduct to criminalize within their own borders, and (4) is sweeping in the scope of its reasoning. For those reasons, and with high respect for its careful reasoning, the panel majority wrongly decided this case.


Upholding § 2250(a)(2)(A) would go a big step further than has the applicable caselaw, because, unlike § 2250(a)(2)(B), this statute regulates federal sex offenders “generally,” Whaley, 577 F.3d at 259, regardless of whether they engage in interstate activity. The activity criminalized by § 2250(a)(2)(A) is thus not “directed” at interstate commerce in the way that all previously upheld provisions regulating the use of the channels of interstate commerce have been.



The statute is an unlawful expansion of federal power at the expense of the traditional and well-recognized police power of the state. The conviction is REVERSED, and a judgment of dismissal is RENDERED.

My Thoughts

  • My initial impression was that Kebodeaux is a case upon which few will be able to rely for relief in the trial or appellate courts. At the Advanced Criminal Law Course, I discussed this with federal defenders from the Southern and Eastern Districts of Texas, and they concurred.
  • Kebodeaux was, though, one of those rare cases that received en banc review, and I believed that to be another reason to write about it.