Monthly archive

October 2012

October 2012 SDR – Voice for the Defense Vol. 41, No. 8

Voice for the Defense Volume 41, No. 8 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

The Fair Sentencing Act applied to defendants who committed the crimes before the effective date but were sentenced after, including individuals who were sentenced during the interim sentencing period of the FSA. Dorsey v. United States, 132 S. Ct. 2321 (2012).

        Petitioner defendants were convicted in separate trials of selling crack cocaine, and in both cases the trial judge found that the Fair Sentencing Act, 124 Stat. 2372, did not apply because they committed the crimes before August 3, 2010, when the FSA took effect. The Seventh Circuit affirmed. The U.S. Supreme Court vacated the Seventh Circuit’s judgment in both cases and remanded.

        The first D sold 53 grams of crack cocaine in March 2007, and the second D sold 5.5 grams of crack cocaine in August 2008; they were convicted but sentenced after the effective date of the FSA. The Court held that changes the FSA made to the Anti-Drug Abuse Act of 1986, which lowered the mandatory minimum sentences for selling crack cocaine, applied to Ds who committed the crimes before August 3, 2010, but were sentenced after, including individuals such as the second D, who was sentenced after August 3, 2010, but before November 1, 2010, when the U.S. Sentencing Commission adopted interim sentencing guidelines to implement the FSA.

The Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. Miller v. Alabama, 132 S. Ct. 2455 (2012).

        Two 14-year-olds convicted of murder petitioned that their sentences to life imprisonment without the possibility of parole, under the mandatory schemes of Alabama and Arkansas statutes, were cruel and unusual. The U.S. Supreme Court reversed the Alabama Court of Criminal Appeals and the Arkansas Supreme Court, which held that the mandatory schemes did not violate the Eighth Amendment.

        Mandatory life without parole for a juvenile precluded consideration of his age and its hallmark features: immaturity, impetuosity, and failure to appreciate risks and consequences. It prevented taking into account the family and home environment surrounding him, from which he could not usually extricate himself no matter how brutal or dysfunctional. It neglected the circumstances of the homicide offense, including the extent of his participation and the way familial and peer pressures may have affected him. It ignored that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. While some states allow prosecutorial discretion in whether to try a juvenile as an adult, those provisions do not mandate standards, protocols, or appropriate considerations.

The Court nullified three Arizona immigration provisions that operated in areas solely controlled by federal policy or interfered with federal enforcement. Arizona v. United States, 132 S. Ct. 2492 (2012).

        The United States sued petitioners, the Governor and State of Arizona, seeking a determination that four Arizona immigration codes enacted in 2010 were preempted by federal law. The U.S. District Court of Arizona enjoined the State from enforcing the statutes; the Ninth Circuit affirmed. The Supreme Court affirmed the Ninth Circuit in part, reversed in part, and remanded.

        The Supreme Court found that §§ 3, 5(C), and 6 of S.B. 1070 were preempted by federal law; however, it was not clear at this stage that § 2(B) was preempted—which required state officers to make a reasonable attempt to determine the immigration status of a person they stopped, detained, or arrested if reasonable suspicion exists that the person is an illegal alien, and to determine the immigration status of any person who is arrested before the person is released. Section 3 was preempted because it intruded on the field of alien registration, § 5(C) was preempted because it imposed criminal sanctions on aliens who sought or accepted employment when U.S. law did not make those activities a crime, and § 6 was preempted because it interfered with the system Congress created for allowing the arrest of illegal aliens.

Fifth Circuit

18 U.S.C.S. § 3582(a) precludes a court from lengthening the time a defendant must serve in prison based on the defendant’s rehabilitative needs when supervised release is revoked. United States v. Breland, 647 F.3d 284 (5th Cir. 2011), vacated, 132 S. Ct. 1096 (2012), remanded to 463 Fed. Appx. 376 (5th Cir. Mar 5, 2012).

        On original submission, the Fifth Circuit adhered to United States v. Giddings, 37 F.3d 1091 (5th Cir. 1994), holding that upon revocation of supervised release, a district court may im­pose a longer prison sentence to address the rehabilitative needs of the defendant; although the Supreme Court held in Ta­pia v. United States, 131 S. Ct. 2382 (2011), that courts may not impose or lengthen a prison term to promote an offender’s re­ha­bil­i­ta­tion, that holding is limited to initial sentencings, not revocation sentencings. The statute governing supervised release, 18 U.S.C. § 3583, specifically requires courts to consider rehabilitation when revoking a defendant’s supervised release and sentencing him thereon. Therefore, the district court did not err in imposing a 35-month revocation sentence based on the desire to make sure D could participate in the Federal Bureau of Prisons’ 500-hour drug treatment program. However, upon D’s petition for certiorari, the government advised the Supreme Court that it had changed its position, and now agreed with D (as do the First and Ninth Circuits). The Court granted certiorari, vacated the judgment below, and remanded for consideration in light of the government’s new position. On remand, the Fifth Circuit, apparently agreeing with the position of the parties and other circuits, remanded for resentencing.

The district court did not reversibly err by reseating two white veniremembers, on the government’s objection, whom the court determined Ds improperly used peremptory challenges to strike on the basis of race. United States v. Bennett, 664 F.3d 997 (5th Cir. 2011).

        Under the reasoning of Batson v. Kentucky, 479 U.S. 79 (1986), and Georgia v. McCollum, 505 U.S. 42 (1992), the Equal Protection Clause prohibits a black defendant from using a peremptory challenge to strike a white prospective juror because of that juror’s race. Furthermore, the district court did not clearly err in determining that Ds’ facially race-neutral reasons for striking the two veniremembers were in fact pretextual. The Fifth Circuit therefore affirmed the district court’s determination that Ds struck the white veniremembers for racially motivated reasons.

Court of Criminal Appeals

CCA deleted the cumulation of D’s sentences because the record does not support mandatory cumulation un­der Health & Safety Code § 481.134(h) and because the trial court did not otherwise intend to cumulate the sentences. Moore v. State, 371 S.W.3d 221 (Tex.Crim.App. 2012).

        The trial court and COA determined that cumulation of D’s sentence for possession of meth with an earlier sentence he received for possession of a controlled substance in a drug-free zone was mandatory under Tex. Health & Safety Code § 481.134(h), which states, “Punishment that is increased for a conviction for an offense listed under this section may not run concurrently with punishment for a conviction under any other criminal statute.” CCA deleted the cumulation order; D’s sentences will run concurrently.

        D’s current conviction is for an offense under § 481.115(d), which is also “listed” within the drug-free-zone statute in subsection (c). His current conviction, therefore, does not implicate the mandatory-cumulation provision so as to require cumulation of his sentence with his prior drug-free-zone sentence. The trial court and COA misconstrued caselaw and the plain language of the statute, which refers to “an offense listed under this section[.]”

D’s appeal was untimely because the mailbox rule in Tex. R. App. P. 9.2(c) applies only to documents sent via U.S. Postal Service. Castillo v. State, 369 S.W.3d 196 (Tex.Crim.App. 2012).

        D sought review of COA’s judgment, which dismissed as untimely his appeal from the county court’s denial of his habeas writ. CCA affirmed COA.

        D pled nolo contendere to misdemeanor assault-family violence and successfully completed his community supervision. Thereafter, he sought a writ of habeas corpus, alleging he had not been properly admonished about the deportation consequences when he entered the plea. Fifteen days after the date on which his notice of appeal was due from the county court’s denial of relief, D sent both a notice of appeal and a motion for extension of time. A private courier service delivered the notice of appeal to the trial court clerk the following day. D did not invoke the jurisdiction of the appellate court because the mailbox rule in Tex. R. App. P. 9.2(c) applied by its plain language only to documents sent via the U.S. Postal Service. The rule did not permit any other type of delivery or private courier system. Thus, the notice of appeal was filed when it was physically delivered to the clerk of the trial court as provided in Rule 25.2(b), which was one day past the extension deadline in Rule 26.3.

COA is no longer forbidden from reforming a conviction to a lesser offense unless the lesser offense was requested by the parties or included in the jury charge. Bowen v. State, No. PD-1607-10 (Tex.Crim.App. June 20, 2012).

        D was convicted of misapplication of fiduciary property valuing $200,000 or more and owned by her niece. No lesser-included offense instructions were submitted to the jury. COA concluded the evidence was legally insufficient to prove that the property equaled $200,000 or more; the niece was a beneficiary of only $103,344. Bound by Collier v. State, 999 S.W.2d 779 (Tex.Crim.App. 1999), COA did not reform the judgment to reflect a lesser-included offense because a lesser charge was not submitted to the jury. Instead, COA ordered acquittal. The State filed for review. CCA overruled Collier, reversed COA, and remanded to the trial court to reform the conviction to reflect the felony of misapplication of fiduciary property in the second degree.

        Acquittal was improper; although the State failed to prove the value of the property, it proved the elements of misapplication of fiduciary property. The failure to request the second-degree felony was not a result of gamesmanship by the State or D, but rather a mistake as to applicable law. The purpose of Collier, which was to prevent the State from overreaching and having an unfair advantage, has been lost through CCA’s subsequent decisions.

The evidence proved criminally negligent homicide: (1) D caused a death; (2) D ought to have been aware that there was substantial and unjustifiable risk of death from her conduct; and (3) D’s failure to perceive the risk constituted gross deviation from the standard of care of an ordinary person. Montgomery v. State, 369 S.W.3d 188 (Tex.Crim.App. 2012).

        Following a three-car collision in which a passenger was killed, D was convicted of criminally negligent homicide. COA reversed and rendered an acquittal, holding in part that cell phone use while driving did not justify criminal sanctions. CCA vacated COA’s judgment and remanded to COA to address D’s remaining points of error.

        The State proved the three marks to make a legally sufficient showing of criminally negligent homicide. D made an abrupt lane change, causing a truck to strike her SUV, which caused her SUV to strike another truck, from which the victim was ejected and died. Second, the State proved D ought to have been aware of the substantial and unjustifiable risk created by her conduct. She was driving at speeds high enough to be lethal, and it was common knowledge that failing to maintain a proper lookout and making an unsafe lane change without signaling or checking for traffic posed a great risk to other drivers. Further, D admitted that using a cell phone distracted her. The State had no burden to show that driving while using a cell phone was always risky or dangerous. Third, there was sufficient evidence of D’s gross deviation from the standard of care because after missing an entrance ramp, she cut across the safety barrier while using her cell phone.

For the purpose of competence to be tried, unless the legislature stated that an enhancement increased the punishment range and the level of the offense charged, the level of the offense is not changed by offenses alleged as enhancements. Ex parte Reinke, 370 S.W.3d 387 (Tex.Crim.App. 2012).

        In 1990, the State charged D with attempted murder, which is punishable by imprisonment from 2 to 20 years. The State also alleged two prior felony convictions as enhancements, which would permit imprisonment of 99 years or life. Before trial, D was declared incompetent and committed to a mental-health facility, where he has remained for more than 20 years.

        D filed a habeas corpus application on the grounds that he has been in the facility for 20 years—the maximum term for attempted murder. The State asserted that because of the enhancements alleged in the original indictment, the maximum term is imprisonment for life. The trial court denied relief, but COA granted relief. CCA affirmed COA.

        Although CCA had previously addressed the interplay between level of offense and enhanced punishment ranges, the court had not spoken to that issue in the context of Tex. Code Crim. Proc. art. 46B.0095: Maximum Period of Commitment or Outpatient Treatment Program Participation Determined by Maximum Term for Offense. The offense “to be tried” is second-degree attempted murder, which carries a maximum of 20 years. “The legislature clearly knows the difference between enhancing the level of an offense and enhancing the level of punishment.”

In holding that there were no facts in the record to support reasonable suspicion for the traffic stop, COA lacked the benefit of State v. Mendoza, 365 S.W.3d 666 (Tex.Crim.App. 2012), which held that the trial court is best positioned to evaluate officers’ credibility and clarify ambiguous findings. Delafuente v. State, 369 S.W.3d 224 (Tex. Crim. App. 2012).

Competency-to-be-executed claims are not cognizable on a habeas writ; second, the district court applied the correct legal standard and was within its discretion to find D competent. Green v. State, Nos. AP-76,374, AP-76,376, AP-76,381 (Tex.Crim.App. June 27, 2012).

        Before D’s scheduled execution in 2010, he applied for habeas relief on incompetency grounds. After the trial court held a hearing and found D competent, CCA stayed his execution to review the court’s determination. Here, CCA lifted D’s stay of execution.

        D argued that competency-to-be-executed claims had to be exempt from the general rule that the writ of habeas corpus should not be used to litigate matters that should have been raised on direct appeal. CCA found that neither the plain language of Tex. Code Crim. Proc. art. 11.071 nor its prior decisions established competency-to-be-executed claims as cognizable on a writ of habeas corpus. Article 46.05 provided D with all the process due to him. Second, the trial court used the correct standard of review under Article 46.05, abuse of discretion; the court did not abuse its discretion in finding D competent to be executed where the strongest evidence to support a finding of competency came from D’s expert, and D’s testimony indicated an understanding of the reason he was to be executed. Finally, CCA dismissed D’s appeal from the denial of his motion to recuse the trial judge; the order denying the motion could be reviewed only on appeal from the final judgment determining D competent to be executed.

The Texas Penal Code operates unconstitutionally to the extent that it purports to authorize successive prosecutions for engaging in organized criminal activity and one of the lesser-included predicate offenses listed in 71.02(a). Ex parte Chaddock, 369 S.W.3d 880 (Tex.Crim.App. 2012).

        D was indicted for engaging in organized criminal activity and aggravated assault. After being convicted of both offenses, D contended in a habeas corpus application that his aggravated assault conviction was the product of a successive prosecution following a conviction for a greater-inclusive offense, in violation of the Double Jeopardy Clause of U.S. Const. amend. V. CCA granted relief, vacated the judgment, and dismissed the aggravated assault indictment with prejudice.

        United States v. Dixon, 509 U.S. 688 (1993), did not adopt a constitutional test for “sameness” in the successive-prosecutions context that was any less protective than Blockburger v. United States, 284 U.S. 299 (1932), which comprised the substantive constitutional test for “sameness” in both the multiple-punishment and the successive prosecution contexts. Dixon held that “[i]n both the multiple punishment and multiple prosecution contexts . . . where the two offenses for which the defendant is punished or tried cannot survive the [Blockburger] ‘same-elements’ test, the double jeopardy bar applies.” This language does not support the proposition that legislative intent is the be-all and end-all of double jeopardy analysis, Blockburger notwithstanding, even for purposes of successive prosecutions. To the extent that Tex. Penal Code § 71.03(3) purported to authorize successive prosecutions for engaging in organized criminal activity and for the commission of one of the lesser-included predicate offenses listed in § 71.02(a), it operated unconstitutionally.

D was prejudiced by counsel’s failure to object to testimony about an extraneous crime that was inflammatory and could have been deflected by adequate investigation. Ex parte Rogers, 369 S.W.3d 858 (Tex.Crim.App. 2012).

        D pleaded guilty to aggravated assault with a deadly weapon and attempted aggravated sexual assault. He was sentenced to 75 years’ confinement plus a fine. He filed writs of habeas corpus, alleging he received ineffective assistance at the punishment stage. CCA granted relief and vacated the sentences so the trial court could conduct new punishment hearings.

        The witness’ testimony about a sexual assault for which D was suspect was highly prejudicial and should have been objected to by counsel. It would not be pure speculation to find that counsel’s deficiencies influenced the jury when D was given 35 years more than the higher end of punishment requested. Counsel should have investigated where D was during the attack on the witness, and he apparently knew that D was excluded by DNA. Had these facts been presented, the probative value of the witness’ testimony might not have been outweighed by prejudice. To qualify for habeas corpus relief, D established that (1) counsel’s performance was deficient, and (2) there was a reasonable probability that the result of the proceedings would have been different but for counsel’s unprofessional performance.

D was entitled to habeas relief on double jeopardy grounds; the trial court entered findings stating the aggravated robbery count was a lesser included offense of the attempted capital murder count, meaning there cannot be convictions for both under the facts of D’s case. Ex parte Carle, 369 S.W.3d 879 (Tex.Crim.App. 2012).

        The judgment of conviction as to the aggravated robbery count is vacated. The conviction and 30-year sentence for the attempted capital murder count in the same cause remains intact.

D timely appealed a nunc pro tunc judgment within 30 days of the judgment’s order; a nunc pro tunc judgment is an appealable order. Blanton v. State, 369 S.W.3d 894 (Tex.Crim.App. 2012).

        COA dismissed D’s appeal of the nunc pro tunc judgment after finding the appeal untimely. CCA reversed and remanded to COA to consider the merits of D’s appeal.

        A defendant’s notice of appeal is timely if filed within 30 days after the day that sentence was imposed or suspended in open court, or after the day the trial court entered an appealable order, Tex. R. App. P. 26.2(a)(1). Rule 23.1 does not expressly provide for the appeal of nunc pro tunc judgments, but caselaw and legislative acceptance provide that right. Although D’s original sentence was imposed in 1987, the third nunc pro tunc judgment was not ordered by the trial court until June 12, 2009. Because nunc pro tunc judgments are appealable orders, the 30-day filing period started the following day. D’s appeal applies only to issues arising from the entry of the third nunc pro tunc judgment; it is not an appeal of the conviction or the validity of the plea bargain.

The Texas attack-by-dog statute contained objective criteria for determining what conduct was prohibited and, therefore, did not permit arbitrary enforcement. Watson v. State, 369 S.W.3d 865 (Tex.Crim.App. 2012).

The judge did not err in giving an instruction on reckless aggravated assault because reckless aggravated assault is a lesser-included offense of intentional or knowing aggravated assault. Hicks v. State, No. PD-0495-11 (Tex.Crim.App. June 27, 2012).

        D was charged with aggravated assault by intentionally or knowingly causing bodily injury using a deadly weapon. The judge instructed the jury on intentional or knowing aggravated assault and gave a separate instruction for reckless aggravated assault. The jury convicted D of reckless aggravated assault. COA held that the judge erred in giving any instruction on reckless aggravated assault because (1) the original indictment did not charge a reckless state of mind, and (2) reckless aggravated assault is not a lesser-included offense of intentional aggravated assault. CCA reversed and remanded to COA to address D’s remaining points of error.

        Based on D’s testimony that the gun accidentally went off during the struggle, the trial judge instructed the jury that it could find D guilty of the lesser-included offense of aggravated assault by recklessly causing bodily injury. The trial judge’s inclusion of that instruction was proper under Tex. Code Crim. Proc. art. 37.09 and CCA’s caselaw.

Officer reasonably exercised his community-caretaking function in seizing D because, under the totality of the circumstances, it was reasonable to believe D needed help. Gonzales v. State, 369 S.W.3d 851 (Tex.Crim.App. 2012).

        D claimed the seizure violated his constitutional rights. The trial court overruled D’s motion to suppress, and COA and CCA affirmed.

        No party contested that D was seized when officer used his emergency lights. The trial court found that officer was primarily motivated by his role to protect public safety, and CCA found no reason to second-guess this. When officer saw D pull off the highway at 1:00 a.m. in a light traffic area, it was reasonable to believe D was experiencing some sort of distress. Officer could have concluded D was suffering distress from a flat tire or running out of gas, which was a distress no less significant to the function of an officer as a public servant.

Because D failed to demonstrate a prima facie case of racial venire strikes, the State was not required to ad­vance race-neutral reasons for its strikes. Hassan v. State, 369 S.W.3d 872 (Tex.Crim.App. 2012).

        COA held that D established a prima facie case of racial discrimination where the State used its only three peremptory challenges to strike two African-Americans and an Asian in a 14-person venire made up predominantly of racial minorities. CCA reversed and remanded to COA to address D’s remaining points of error.

        The statistics were not by themselves sufficient to establish a prima facie case of discrimination given the small sample sizes involved. The jury was racially diverse, with the racial composition of the jury corresponding roughly to the racial composition of the venire. D’s proffer of other circumstances was insubstantial; there was no significance to the occupations of the struck venire members, and none appeared to be connected to law enforcement.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Swabbing D’s hands during traffic stop without D’s consent not an illegal search because the white powdery substance on D’s hands was in officer’s plain view. Johnson v. State, Nos. 14-10-00941-CR, 14-10-00942-CR (Tex.App.—Houston [14th Dist] Mar 6, 2012).

Oath administered by judge over phone to officer deemed proper as to warrant that sought to seize blood; judge and officer were familiar with each other’s voices. Clay v. State, No. 10-09-00355-CR (Tex.App.—Waco Mar 21, 2012).

        “Although the Government Code defines an affidavit as a writing signed by the maker and sworn to before an officer authorized to administer oaths. . . . In this instance, the personal familiarity of the trooper and the judge with each other’s voice provides very strong indicia of truthfulness, trustworthiness, and reliability so as to call upon [trooper’s] ‘sense of moral duty to tell the truth and instill in him a sense of seriousness and responsibility.’”

Contraband pills deemed in plain view even though officer had to perform further investigation to discover the contraband nature of the pills. Garcia v. State, No. 04-11-00400-CR (Tex.App.—San Antonio Mar 21, 2012).

        “[O]fficers lacked probable cause to believe the pills were contraband until . . . questioning the women in the room and by calling poison control. [Officer] testified that it is not illegal to possess prescription pill bottles; however, he also testified that the brown bottles he observed sticking out of the purse were suspicious because they had no prescription labels, or any other type of label. . . . [T]here is nothing in the record before us to suggest that the officers intentionally took their time or stalled as a mere pretext to give them the opportunity to conduct a further investigation. . . . Being legitimately present in the bedroom, the officers observed the unlabeled pill bottles in plain view and conducted a limited further investigation through which they developed probable cause[.]”

Interaction deemed consensual encounter, despite the following: D’s vehicle was blocked by police car, officers activated cars’ emergency lights, and officer asked D to step out of vehicle. Daugherty v. State, No. 09-11-00381-CR (Tex.App.—Beaumont Mar 21, 2012).

        “When [Officer 1] stepped out of his patrol car, he saw [D] reach down into the floorboard. . . . [Officer 1] approached the truck, saw there was nothing in [D’s] hands, and asked [D] to step out of the truck. [D] complied with this request. [Officer 1] testified that [D] was free to leave, and he explained that had [D] refused to step out of the truck, [Officer 1] would have interviewed [D] at the door of the truck. [Officer 1] testified that [D] had done nothing unlawful.”

Police served an arrest warrant on D at D’s home; although police received information that D planned to “blow things up,” the subsequent warrantless search of D’s home (during which police discovered a pipe bomb) deemed unconstitutional. Page v. State, No. 05-10-01136-CR (Tex.App.—Dallas Mar 29, 2012).

        “In support of its contention the search was a protective sweep, the State claims the officers were concerned [D] might ‘hurt himself or someone else.’ . . . The evidence presented in the hearing on [D’s] motion to suppress established the officers did not enter [D’s] house until after [D] had been arrested, handcuffed, and removed from the premises. . . . [Officer] testified the sergeant told the officers to ‘go in the house and get [D’s] guns for safekeeping.’ Assuming this is sufficient to show the officers were primarily motivated by their community caretaking function, we then consider the second prong of the Corbin test: whether the officers’ beliefs that [D] needed help were reasonable. Because [D] had been removed from the house and was en route to jail before the officers began searching his house, there is clearly no evidence to show [D] was in distress, needed assistance, or presented a danger to himself or others.”

The following deemed insufficient to support traffic stop: D engaged brake and started to pull over; his vehicle bumped something on the side of the road and then came to a stop next to the curb. State v. Smith, No. 05-11-00742-CR (Tex.App.—Dallas Mar 30, 2012).

            The arrest report merely stated “reckless driving” and that officer “characterize[s] the bumping of the curb and the stopping as reckless driving.” Officer also testified that bumping the curb was indicia of intoxication. But the video establishes that D’s steering around the debris and the simultaneous bump was not a reckless or unreasonable act that would suggest D was “intoxicated while operating a motor vehicle in a public place.” Although officer’s testimony also referenced a turn signal violation, that was based merely on officer’s subsequent viewing of the video; the arrest report was silent to the same.

SANE Examinations Are Testimonial and Are Subject to Confrontation

Definition of SANE Examination

Before delving into the case law, it is helpful to begin with some definitions to clearly delineate the terms of the argument. First, the United States Department of Justice’s description of SANE program operations states that “[t]he SANE or other medi­cal personnel (e.g., emergency department physicians or nurses) first assess the victim’s need for emergency medical care and ensure that serious injuries are treated. After the victim’s med­ical condition is stabilized or it is determined that immediate medical care is not required, the SANE can begin the evi­den­tiary examination1 [emphasis added].” People v. Spangler, 285 Mich. App. 136, 149–150 (2009). Further, the role of the SANE includes the following functions: “Perform[ing] a physical examination on the victim, collect[ing] evidence, treat[ing] minor2 injuries such as cuts/bruises, expert testimony regarding the forensic evidence collected, serv[ing] on a SANE response team (SART), work[ing] closely with law enforcement agencies and the prosecutor’s office, support[ing] the psychological needs of the victim.” See Paruch, Deborah, Silencing the Victims in Child Sexual Abuse Prosecutions: The Confrontation Clause and Children’s Hearsay Statements Before and After Michigan v. Bryant, 28 Touro L. Rev. 85 (2012), endnote 310.

Second, the word “forensic” is universally understood as meaning “pertain[ing] to, connected with, or used in courts of law.” Oxford English Dictionary Online Edition (taken from second print ed. 1989). Black’s Law Dictionary, 6th edition, (5th re­print, 1991), defines “forensic” as “belonging to courts of jus­­tice.” A few definitions down, on the same page in Black’s Law Dictionary, 6th edition (5th reprint, 1991), the term “fo­ren­­sic medicine” is defined as “[t]hat science which teaches the application of every branch of medical knowledge to the pur­­poses of law . . . to enable a court of law to arrive at a proper con­­cl­u­sion on a contested question affecting life or property.”

Putting these definitions together, a fair operative definition of a SANE examination is this: “A forensic medical examination, conducted by a specially trained forensic medical provider, conducted as soon as practically possible after the occurrence of an alleged sexual assault, for the purpose of collecting evidence of a potential sexual assault and for the treatment of mi­nor injuries.” The forensic nature of the SANE examination is precisely what makes it testimonial. No definition of SANE exam holds they are not forensic in nature. As such, forensic examinations, including SANE examinations, belong to the Courts and the Confrontation Clause, not medical records and hearsay.

Currently, there exists only one published court of appeals case in Texas dealing with the nature of SANE examination. This case is Beheler v. State, 3 S.W.3d 182 (Tex.App.—Forth Worth, 1999). The Beheler court held that statements made to a SANE nurse are made for the purpose of medical diagnosis, and are therefore not testimonial. Beheler and its antiquated interpretation of the purpose of a SANE examination is wrong and does not reflect the reality of what the purpose of a SANE examination is.

First, Beheler was decided in 1999. The fault-line shifting United State Supreme Court decision of Crawford v. Washington, 541 U.S. 36 (2004), which totally and completely changed the landscape of confrontation law jurisprudence, was decided five years later. As such, Beheler’s rationale/analysis for what does and does not qualify as statements made for purposes of medical diagnosis, as opposed to testimonial statements, must be viewed with suspicion, if not outright hostility.

Second, Beheler never touched on the issue of confrontation rights. Beheler was decided under the now-defunct and maligned regime of Ohio v. Roberts, 448 U.S. 56 (1980). Roberts and its ilk courted more base and easily manipulated notions of “reliability,” eschewing confrontation’s rigid and demanding ways.

Third, the Beheler opinion is one where the Defendant challenged the admission of the young female victim’s statements to the SANE examiner on evidentiary grounds, not constitutional confrontation grounds.

Fourth, Beheler’s description and definition of a SANE exam is not in keeping with current constitutional interpretations of the ultimate purpose of a SANE examination as held at both the State and Federal level.

Fifth, Beheler does not even attempt to address the fact that a SANE exam is forensic by its very definition.

Sixth, Beheler does nothing to address the issue of how an alleged assault victim’s identification of an alleged perpetrator of a crime is in furtherance of medical diagnosis, which has been held in other jurisdictions to be dispositive on its testimonial nature. See State v. Kirby, 280 Conn. 361, 391 (2006), holding that whether “such statements [to a SANE examiner] . . . accuse or identify the perpetrator of the assault [] is significant to determining whether statements to the medical provider are testimonial.” (See also Coates v. State, 175 Md. App. 588 (Maryland 2007), where the court found that the identity of the abuser was of no concern for medical treatment purposes and the statements to the SANE nurse were testimonial.)

Last, any reliance on Behler for the proposition that a SANE examination’s purpose is for medical diagnosis ignores overwhelming case law to the contrary that such examinations are not primarily for medical diagnosis. Adherence to Behler’s definition inexplicably ignores commonly used definitions in the field of SANE examinations as established by the Department of Justice, standard English-language dictionary definitions, legal dictionary definitions, and those of academic scholars reviewing and critiquing this issue. All the aforementioned sources find that the forensic nature of SANE examinations make them testimonial.

Adherence to holdings like Beheler mean in the very near future that confrontation could readily be judicially decimated to nothing more than shallow formalism and meaningless platitudes if SANE examinations are flippantly recognized as being somehow being sufficiently attenuated from their actual law enforcement purpose—if all that is required to make such state­ments elicited during these forensic examinations nontestimonial is for the person conducting the questioning/examination to claim health and welfare as some part of their purpose in conducting the examination.3 Mosteller, Robert P. (2007), “Testing the Testimonial Concept and Exceptions to Confrontation: ‘A Little Child Shall Lead Them,’” 82 Indiana L. Rev. 918, 973.

Forensic Exams Are Considered Testimonial in Federal Courts and in the Majority of State Courts Across the Country

With the definitions from above regarding SANE examinations in hand, a brief survey across the SANE examination confrontation law landscape at both the state and federal level is warranted. This survey will show that the Behler court’s holding that the SANE examination was non-testimonial in nature goes against the overwhelming majority of jurisdictions that have considered this issue and directly ruled on it.

A. Federal Courts: SANE Examinations and Forensic Examinations Are Testimonial

The issue of SANE exams has been dealt with by federal courts. Federal courts, interpreting federal Constitutional jurisprudence, have squarely ruled that forensic exams, such as SANE exams, are testimonial in nature.

In United States v. Gardinier, 2007 CAAF LEXIS 723, reconsideration denied (2007), a military court was overturned when the court marshal judge ruled a forensic sexual assault exam was non-testimonial in nature. The Gardinier court held:

“We recognize that the referral of an alleged victim to a medical professional by law enforcement or trial counsel does not always establish that the statements at issue were made in response to a law enforcement or prosecution in­quiry or elicited with an eye toward prosecution. [] Here, however, the evidence indicates that Ms. Sievers, who specialized in conducting forensic medical examinations, performed a forensic medical exam on [the victim] at the behest of law enforcement with the forensic needs of law enforcement and prosecution in mind. Under the totality of the circumstances presented here, [the victim]’s statements to [the SANE nurse] are testimonial and were admitted in error.” Id at 66.

The holdings by federal courts that forensic interviews are testimonial do not stop at Gardinier. In United States v. Bordeaux, 400 F.3d 548 (8th Cir. 2005), Mr. Bordeaux maintained that the district court violated the Confrontation Clause of the United States Constitution by admitting a statement of the victim, made out of court, to an individual whom the government itself identified as “forensic interviewer.”

The factual background of Bordeaux shows that after the allegations of sexual abuse arose, government officials referred the victim to a center for child evaluation. At this center, the victim was interviewed by a forensic interviewer before being examined by a doctor. Consistent with the center’s standard operating procedure, the interview was videotaped. As was the custom, two copies of the videotape were made—one for the patient’s medical records and one for law enforcement officials. On the videotape, the victim indicated that Mr. Bordeaux put his penis in her mouth. The district court admitted the tape into evidence, and it was shown to the jury. The district court also admitted hearsay statements from a doctor at the center who observed the interview. The doctor recounted what the victim had said during her interview.

After conducting a constitutionally sound analysis of the statements made by the victim, the Bordeaux court held:

“We hold that Mr. Bordeaux’s sixth amendment rights were violated. First of all, [the victim’s] statements are testimonial. Statements elicited during police interrogations lie at the core of the definition of ‘testimonial.’ Crawford, 124 S. Ct. at 1374. A police interrogation is formal (i.e., it comprises more than a series of offhand comments—it has the form of an interview), involves the government, and has a law enforcement purpose. The same is true of the interview here. The formality of the questioning and the government involvement in it are undisputed in this case. The purpose of the interview (and by extension, the purpose of the statements) is disputed, but the evidence requires the conclusion that the purpose was to collect information for law enforcement. First, as a matter of course, the center made one copy of the videotape of this kind of interview for use by law enforcement. Second, at trial, the prosecutor repeatedly referred to the interview as a ‘forensic’ interview, meaning that it ‘pertained to, [was] connected with, or [was to be] used in courts of law.’ Oxford English Dictionary Online Edition (taken from second print ed. 1989). That [the victim’s] statements may have also had a medical purpose does not change the fact that they were testimonial, because Crawford does not indicate, and logic does not dictate, that multi-purpose statements cannot be testimonial.”4 Id at 556.

The analysis that SANE exams, and forensic exams in general, qualify as testimonial is accepted by federal courts. Legal scholars have convincingly and overwhelmingly argued that SANE nurses “should categorically be treated as police agents” because of their intimate involvement with the prosecutor, the state, and the criminal process on multiple levels. Elizabeth J. Stevens, Comment, Deputy-Doctors: The Medical Treatment Exception after Davis v. Washington, 43 Cal. W. L. Rev. 451, 472 (2007). A majority of state courts as well that have considered this issue have determined that statements by a sexual abuse victim to a SANE nurse, or similarly situated forensic examiners, are testimonial in nature and barred by the Confrontation Clause. People v. Spangler, 285 Mich. App. 136 (2009). The Spangler court held, after considering the Justice Department’s definitions of a SANE examination and the relevant case law:

“While SANE personnel might treat medical conditions requiring immediate attention for a victim’s safety, ‘further evaluation and care of serious trauma is referred to a designated medical facility or physician.’ Id. Any medications provided the victim by SANE personnel are ‘prophylactic . . . for the prevention of sexually transmitted diseases . . . and other care needed as a result of the crime.’ Id. Clearly, the SANE examination is one geared for the preparation, collection, evaluation and disposition of evidence, and all medical treatment provided is relative to the patient being a victim of a sexual crime. We believe that this purpose exists in concert with the very things that might make a statement obtained thereby ‘testimonial.’” People v. Spangler, 285 Mich. App. 136, 149–150 (2009).

Further, the fact that the majority of states consider SANE examinations and other similar forensic examinations as testimonial has been recognized in federal court. See Dorsey v. Banks, 749 F. Supp. 2d 715, 751 (2010). See also Paruch, Deborah, Silencing the Victims in Child Sexual Abuse Prosecutions: The Confrontation Clause and Children’s Hearsay Statements Before and After Michigan v. Bryant, 28 Touro L. Rev. 85 (2012), concurring that the majority of states find SANE examinations testimonial under Crawford and its progeny.

Under absolutely no other set of circumstances would a health care provider reveal such privileged and private information to a third party. The information obtained by the SANE nurse is revealed to law enforcement post-exam as a matter of simple routine. The purposes of the SANE nurse revealing the results of her examination to law enforcement is to allow law enforcement to use the SANE examination, the results of the examination, and the expertise of the SANE nurse at trial. So how and why would any court find these types of statement non-testimonial when the overwhelming body of federal and state case law, along with legal scholars, says they are testimonial?

Surveying various court’s holdings, confrontation law scholars have concluded that appellate courts are often reticent to find statements testimonial. These scholars believe this judicial reticence is based on the appellate court’s concern about the decisive impact the determination of such statements as testimonial will have on the prosecution of child abuse and sex crime cases in general. In other words, these commentators believe that appellate courts are seeking to protect state prosecutions and prosecutors at the trial court level, while at the same time providing an added level of insulation on appellate review—rather than faithfully applying confrontation law jurisprudence. “Testing the Testimonial Concept and Exceptions to Confrontation: ‘A Little Child Shall Lead Them,’” 82 Indiana L. Rev. 918, 978. The fear appears to be that granting too much Confrontation will result in too many acquittals.5

However, there is light at the end of the tunnel. While some courts have resisted the change ushered in by Crawford, most courts are faithfully applying confrontation law to forensic examinations and SANE examinations in general.

B. Kansas: SANE Exams Are Testimonial

In State v. Bennington, 293 Kan. 503 (2011), the defendant was convicted of multiple crimes stemming from his sexual assault and robbery of a 77-year-old woman in her home. The victim died before defendant’s jury trial began, but she had related the incident in some detail to her niece, to a SANE examiner at the hospital, and, more generally, on a claim form submitted to her bank (the defendant had stolen money from her). The trial court denied the defendant’s motion to exclude admission of those statements. The jury found the defendant guilty of all charges. The Supreme Court of the State of Kansas found that the trial court erred in admitting the statements of the victim through the SANE nurse. The Court held:

“Moreover, when a SANE—even one who is a non-State actor—follows the procedures for gathering evidence pursuant to [Kansas statute] and asks questions prepared by the [police], the SANE acts as an agent of law enforcement. See Michigan v. Bryant, 562 U.S., 131 S. Ct. 1143, 1151 n.3, 179 L. Ed. 2d 93 (2011) (noting non-State actors may be considered agents for purposes of analysis of whether statements are testimonial); Davis v. Washington, 547 U.S. 813, 823 n. 2, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) (same).” Id at 524.

Both the Kansas Supreme Court and the Supreme Court of the United States (Bryant) have held that non-police actors who are gathering evidence that is subsequently turned over to the police are agents of law enforcement. Period. There is no room for debate on that subject. Holdings to the contrary are pernicious judicial attempts to revive the old Roberts regime of confrontation at the expense of fully welcoming in the new era of Crawford.

The Bennet court and the Medina court (discussed below) analyzed SANE nurse involvement in a constitutionally correct way. These courts recognized, as has the United States Supreme Court, that police and prosecutors can, and do, take steps to make it even easier for district judges and appellate courts to bypass the Confrontation Clause and manipulate the introduction of evidence6—even when there is no possibility of finding an “ongoing emergency” (e.g., in cases where the hearsay statement was made days or weeks after the alleged crime), courts still have other means of labeling hearsay as non-testimonial, thereby placing it beyond the reach of the clause.7 One such way is to find that the statement was made, or obtained, for some “primary purpose” other than the investigation of a crime. This tactic is very common in cases involving medical professionals who act on behalf of, or in concert with, the police.8 See Cicchini, Michael D., Judicial (In)discretion: How Courts Circumvent the Confrontation Clause under Crawford and Davis. 75 Tenn.L.Rev. 753, 772.

In fact, the National District Attorney’s Association published a 46-page guidebook for district attorneys entitled “The Role of the Sexual Assault Nurse Examiner in the Prosecution of Domestic Violence Cases.” The premise of this article is to teach prosecutors how to minimize the forensic aspect of the SANE examination and maximize the medical aspect, to insulate the examination results from confrontation. In appendix C of this publication, there is an article entitled “Overcoming Crawford Issues.” In other words, prosecutors are being taught how to “overcome” a defendant’s right to confrontation by subtle ma­nipulation of testimony and words. These attempts by the government and state to usurp confrontation are precisely what Crawford and Davis are against. The government knows it, and they do their best to manipulate it.

C. Kentucky: SANE Examinations Are Testimonial

In Hartsfield v. Kentucky, 277 S.W.3d 239 (2009), the defendant allegedly sexually assaulted the victim. Immediately thereafter, the alleged victim fled and exclaimed to a passerby that the defendant had raped her. The alleged victim then went to her daughter’s house and told her that she had just been raped. The alleged victim was taken to a hospital, where she was examined by a SANE nurse. The victim related the details of the rape to the SANE nurse. The alleged victim died after the defendant was indicted for sex crimes against her, but before he was tried.

The Hartsfield court held that the sexual assault nurse ex­aminer’s questioning was predominantly for the purpose of information gathering and the resulting statement was testimonial:

“The SANE nurse was acting in cooperation with or for the police. The protocol of SANE nurses requires them to act upon request of a peace officer or prosecuting attorney. A SANE nurse serves two roles: providing medi­cal treatment and gathering evidence. SANE nurses act to supplement law enforcement by eliciting evidence of past offenses with an eye toward future criminal prosecution. The SANE nurse under [Kansas statute] is made available to ‘victims of sexual offenses,’ which makes the SANE nurse an active participant in the formal criminal investigation. We believe their function of evidence gathering, combined with their close relationships with law enforcement, renders SANE nurses’ interviews the functional equivalent of police questioning.” Id at 244–245.

“In the case before us, the SANE nurse’s interview was not to provide help for an ongoing emergency but, rather, for disclosure of information regarding what had happened in the past. [The victim] was away from the per­petrator, and the questioning was not for the purpose of resolving a problem. The interview had some level of formality, despite being unsworn. So the statement was virtually the kind of statement that a witness would give at a trial or hearing.” Id at 244–245.

“Looking to the factors enumerated in Davis, the SANE nurse’s questioning involved past events, was not related to an ongoing emergency, and took on the nature of a formal interview. So we conclude that the statements taken from [the victim] during her interview with the SANE nurse were testimonial in nature. Following the Supreme Court precedent, we conclude that the Court of Appeals erred when it reversed the trial court’s ruling in limine excluding from use at trial the statements [the victim] gave the SANE nurse. These statements were testimonial statements that Harts field never had the opportunity to cross-examine and so they are barred by the Confrontation Clause.” Id at 244–245.

The Hartsfield court saw the examination for what it was: an effort to collect evidence for later use at trial.

D. Nevada: Sane Exams Are Testimonial

The Nevada Supreme Court in Medina v. State, 131 P.3d 15 (2006), held that statements made by an adult sexual assault victim to a SANE nurse were testimonial. The court affirmed the conviction and found admission of the victim’s statements to be harmless error beyond a reasonable doubt. Nonetheless, the court’s reasoning is important to understand why the deceased’s statements to the SANE nurse, in the case sub judice, were testimonial.

During the Medina trial, the SANE examiner testified as to what the victim told her about the rape during the sexual assault examination. The SANE examiner testified that the victim stated that “she was choked, that she was hit, that Medina put his penis into her mouth, into her vagina, he put his penis into her rectum. The victim stated that Medina put his mouth on her vagina and then he put his penis in her mouth.” Id at 8. The Nevada court held court that the SANE nurse’s hearsay testimony violated the Confrontation Clause because the SANE nurse was a police operative. Id at 12.

In Medina, the SANE examiner testified that she is a “forensics nurse,” and that she gathers evidence for the prosecution for possible use in later prosecutions. As such, the circumstances under which the victim made the statements to the SANE examiner would lead an objective witness to reasonably believe that the statements would be available for use at a later trial. “The victim was not available for trial, and Medina had no prior opportunity to cross-examine her regarding the statements to the SANE examiner. Therefore, the district court manifestly erred when it admitted the statements the victim made to the SANE examiner during the sexual assault examination [emphasis added].” Id at 14.

E. Tennessee: SANE Examinations Are Testimonial

In State v. Cannon, 254 S.W.3d 287 (Tenn. 2008), the 82-year-old victim reported that an unknown assailant raped her in her home. The victim did not testify at trial. Defendant was con­victed of aggravated rape. On appeal, he challenged the admission of evidence and the violation of his confrontation rights. The Supreme Court of Tennessee concluded that the victim’s statements describing the assault to the police officers and her statements to the sexual assault nurse examiner (SANE) were testimonial and admitted in violation of defendant’s right of confrontation.

The Cannon court held that statements made by the victim to the SANE nurse were testimonial and subject to confrontation:

“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emer­gency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id at 302.

This Issue Needs to Be Resolved

In Rangel v. State, 250 S.W.3d 96 (Tex.App.—Forth Worth, 2008), the Texas Court of Criminal Appeals was presented with the issue of forensic interviews and whether they are testimonial. Rangel petitioned for Discretionary Review. The Texas Court of Criminal Appeals initially granted, but then withdrew its granting of its Petition for Discretionary Review and punted, holding instead that the constitutional error was not preserved.

However, a dissenting opinion to the refusal to grant the PDR was filed by Justice Cochran. Justice Cochran provided a detailed analysis of the splits across the country that relate to forensic interviews. Justice Cochran wrote in her dissent:

“Virtually all courts that have reviewed the admissibility of forensic child interview statements or videotapes after the Davis decision have found them to be ‘testimonial’ and inadmissible unless the child testifies at trial or is presently unavailable but the defendant has had a prior opportunity for cross-examination. Id at 104. fn 26 e.g., State v. Hooper, No. 33826, 176 P.3d 911, 2007 Ida. LEXIS 234 (Idaho, December 24, 2007) (holding that videotaped statements the child victim made to nurse during interview at a sexual-trauma abuse-response center were testimonial because the circumstances surrounding the interview indicated that the primary purpose of the interview was to establish past events potentially relevant to later criminal prosecution as opposed to meeting the child’s medical needs); State v. Henderson, 284 Kan. 267, 160 P.3d 776 (Kan. 2007) (reversible error to admit three-year-old child’s videotaped statement to social worker taken at government facility to gather evidence against alleged perpetrator when child did not testify at trial); State v. Justus, 205 S.W.3d 872 (Mo. 2006) (while social worker’s job was to protect child, ‘primary purpose’ of videotaped statements was to establish past events); State v. Blue, 2006 ND 134, 717 N.W.2d 558 (N.D. 2006) (videotaped statement to forensic interviewer at child advocacy center inadmissible); State v. Pitt, 209 Ore. App. 270, 147 P.3d 940 (Ore. Ct. App. 2006) (reversible error to admit ‘testimonial’ videotaped statements made by two children to social worker at child abuse assessment center when children did not testify at trial); In the Interest of S.R., 2007 PA Super 79, 920 A.2d 1262 (Sup. Penn. 2007) (reversible error to admit videotape of child victim’s statement to forensic DHS interviewer for the purpose of investigation and possible prosecution when child did not testify at juvenile’s adjudication hearing).”

While Justice Cochran’s dissenting opinion does not deal with SANE examination, it shows definitively that in the context of forensic examinations, courts across the United States have held such exams to be testimonial and subject to the rigors of confrontation.

Further, the fact that statements are made to non-law enforcement actors does negate the testimonial nature of a statement. Justice Scalia, in his Bryant dissent, stated that what constitutes testimonial must be looked at as meaning a statement that “may be used to invoke the coercive machinery of the State against the accused” as distinguished with a non-testimonial statement such as one from “a narrative told to a friend over dinner [emphasis added].” Judge Dibrell “Dib” Waldrip and Sara M. Berkeley, “What Happened? Confronting Confrontation in the Wake of Bullcoming, Bryant, and Crawford,” 43 St. Mary’s L.J. 1, 4 (2011). To hold otherwise would be to simply allow the police to use surrogate investigative services in order to avoid having to ever produce an accuser in court, and instead, rely on professional witnesses—i.e., police officer, CPS worker, SANE nurse, etc.

Sound constitutional reasoning favors finding SANE examinations to be testimonial. Holding otherwise simply leaves too large an opening for prosecutors to walk statements through unconfronted. Once those types of statements reach the jury, there is no unringing the bell. The damage is done. And with the quick sweeping broom of harmless error review, any erroneous admission of a SANE nurse’s testimony is neatly swept under the judicial rug. Confrontation means just that: confrontation. SANE examinations should not be viewed as a midwife for bringing unconfronted testimonial statements into court via hearsay exceptions.


1. People v. Spangler, 285 Mich. App. 136, 149–150 (2009)

2. The treatment by a SANE nurse has to be confined to only minor medical issues because by definition the SANE nurse is not a medical doctor and cannot provide medical treatment.

3. It defies logic to believe that an examination conducted by a medical provider would not have the patient/examinee’s health and welfare at least tangentially in mind. The police simply do not have the training or education to conduct such an exam. The medical examination is a proxy examination done by medical providers for the police. See Elizabeth J. Stevens, Comment, “Deputy-Doctors: The Medical Treatment Exception after Davis v. Washington,” 43 Cal. W.L. Rev. 451, 472 (2007) (“[U]nder Davis, courts should treat health care providers as agents of the police and their interactions with the declarant as police interrogation” based on principles of agency law). Ms. Stevens’ article is attached to this motion in the appendix as “B.” The United State Supreme Court has applied agency related issues in the criminal context. See Pinkerton v. United States, 328 U.S. 640 (1946).

4. Therein lies the rub: Just because statements may have a dual purpose, it does not diminish the constitutional nature of such statements. The dual purpose is what makes those kinds of statements so dangerous and readily manipulated by police. It allows testimonial statements to be smuggled into court under the guise of a non-testimonial hearsay rationale. Once the smuggled statements have reached the jury, unconfronted, there is no unringing that bell.

5. But see Roman, John, PhD, Walsh, Kelly, PhD, Post-Conviction DNA Testing and Wrongful Conviction, Urban Institute, Justice Policy Center, 2100 M St. NW, Washington, DC 20037. This project was supported by Contract No. 2008F-08165 awarded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. This study found an absolutely staggering rate of wrongful convictions for sexual assault cases in Virginia:

“We find that in convictions in Virginia between 1973 and 1987 where evidence was retained in a sample of 422 convictions for sexual assault:

  • The convicted offender was eliminated as the source of questioned evidence in 40 out of 422 convictions (9 percent).
  • The convicted offender was eliminated as the source of questioned evi­dence in 33 out of 422 convictions (8 percent) and that elimination was supportive of exoneration.
  • The convicted offender was eliminated as the source of questioned evidence in 40 out of 227 convictions (18 percent) where a determination could be made from the DNA analysis.”

According to the Innocence Project, of the 250 people who have been wrongfully convicted then released from prison, 84% were convicted of sexual assault, p19. These types of statistics on wrong­ful convictions should cause everyone who touches the criminal justice sys­tem, particularly in sexual assault cases or in cases (such as Appellant’s) where sexual assault issues play a vital role in obtaining a conviction; to pause; to hesitate; to reevaluate exactly what it is we are doing. In short, it should cause all of us to shudder. Each and every time a person goes to jail based in whole, or in part, on allegations of sexual assault, the evidence and the established procedures which allowed in the evidence of the purported sexual assault, needs to be scrupulously reviewed. Due process demands this. See United State Supreme Court case of Mathews v. Eldridge, 424 U.S. 319 (1976). The Eldridge court articulated three elements that need to be rigorously assessed in deciding what due process requires in terms of procedural safeguards established by a court. And remember, confrontation is a procedural safeguard, not a substantive guarantee of the evidence. The three Eldridge interests are as follows: (1) the private interests at stake, (2) the government’s interest, and (3) the risk that the procedures used will lead to erroneous decisions. Eldridge factor three is dispositive on this issue.

6. “Confusion of the language of good and evil: this sign I give unto you as the sign of the State.” Thus Spoke Zarathustra, Frederick Nietzsche, Simon & Brown Publishing 2012, p. 72. More specifically here, “[Deliberate] [c]onfusion of the language of [testimonial] and [non-testimonial]: this sign I give unto you as the sign of the state.”

7. This reticence by courts to hold statements testimonial is likely a means of trying to breathe continued life into pre-Crawford hearsay statutes. Prior to Crawford, many state legislatures (including Texas) had fashioned special hearsay exceptions for cases involving domestic violence. Pre-Crawford courts had liberally construed these statues to open the hearsay floodgates, allowing in statements by domestic violence victims very lax hearsay exceptions. This solicitous treatment of hearsay reflected a belief that many domestic violence victims and family members who witness domestic violence recant or refuse to cooperate after initially complaining to the police. See Lininger, Tom, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747 (2005).


Undermining the Breath Test: Building the Disconnect Defense

I. Introduction

Many inexperienced DWI lawyers cringe when they see high Intoxilyzer results—for example, 0.235—but the experienced DWI lawyer embraces the high number because it might create a good defense. An exculpatory video performance by a client can create an indisputable conflict between an inculpatory breath test score and a juror’s ingrained belief that they can trust their eyes and common sense, e.g. a “disconnect.” A high breath alcohol concentration (“BAC”) provides skilled DWI lawyers a logical story to provide their jury with reasonable doubt to carry home and tell their family and friends about the inherent unreliability of the Intoxilyzer. This article is about how to tell the disconnect story from voir dire to closing.

II. Collecting the Corner Stones

The foundation of the Disconnect Defense (“DD”) is sobriety evidence. In most cases where the DD is applicable, client’s video is exculpatory for the client. An explainable bobble here and there or some erratic driving does not mean that you should throw in the towel where there is a legitimate, common-sense explanation. The good lawyer will provide innocent explanations for signs mistakenly noted as indicators of intoxication. This is done by obtaining medical records of foot, leg, back, neck, or head injuries to explain away clues on the Standard Field Sobriety Tests (“SFSTs”). Further, elicit testimony that impeaches the officers’ comments concerning red eyes caused by intoxication where the evidence shows the client was in a smoked-filled room, was a smoker, had allergies, was wearing contacts, or was fatigued. Such evidence can be bolstered by receipts for the purchase of eye drops, allergy medication, or cigarettes.

Additionally, the well-read lawyer knows that drowsy driving is responsible for more accidents than drunk driving. Phone use, text messaging, medical records, or testimony of sleep deprivation can be used to explain erratic or sloppy driving. Time in the library can also be effective for the lawyer, used to collect scien­tific treatises to counter the State’s attempt to discredit the DD with the excuse of tolerance.

III. Pouring the Foundation

As learned trial lawyers say, “The case is won or lost in voir dire.” Look to juror professions to identify persons who can act as temporary witnesses during voir dire. Use these jurors to further your DD by having them share their own personal experiences that bolster your defense. Pay special attention to engineers, mechanics, machinists, and computer people because they can help you create the DD. As a personal preference, I generally do not like engineers or IT persons on the jury, but they can be useful for short, powerful pieces of DD information during voir dire. To illustrate, they will admit that machines/computers do not work perfectly all the time, and that they do break down, freeze, malfunction, and act not as warranted. Remember, the Intoxilyzer is a government-bought machine and was probably the low-bid device at the time of purchase.

You can highlight Intoxilyzer deficiencies by analogizing it to hypothetical or other measuring devices—e.g., thermometer, Taxalyzer 5000EN,1 Doppler 5000. Whatever machine you invent for jury use, use it to demonstrate the obvious error the machine made when contrasted with what you see—i.e., common sense. The importance of embracing common sense can be related to a dire consequence of being wrong, for example, brain surgery when a thermometer reads 110°F, jail time for failing to pay taxes, or a natural disaster. Further, analogize each unreliability example in the breath test machine with your hypothetical machine: 20% acceptable range of error; self checking for accuracy; no warranty for merchantability or accuracy; recalled in multiple states; newer model available; citizen cannot purchase from manufacturer; manufacturer refuses to provide source code; not available for independent scientific testing; destroys the only direct evidence of sobriety/intoxication (when the State had the ability to save that evidence); operator has no idea how the machine works; “scientist,” who does, rarely checks it in person; any inconsistencies or strange occurrences found in test records; and so forth.

Begin with the first juror and the first unreliability example and ask how that makes the juror feel about the hypothetical machine. “Why would you trust this machine?” or “Why would you submit to this type of testing?” Go through the jurors and expose as many problems as possible as they relate to your machine. Your jury will remember, relate, and recognize the relation of deficiencies common to the hypothetical machine and the Intoxilyzer. Prepare yourself for the State’s objection to an improper commitment question and be prepared to argue that these examples are to be likened to witnesses who jurors can have pre-existing bias/prejudice, and they will aid you in the exercising of preemptory challenges and the proper framing of challenges for cause based on their answers.2

IV. Framing the Structure

The DD begins by establishing contradictions between the reported and actual reasonable suspicion and probable cause by effectively cross-examining each police officer/witness. The State will attempt to establish the requisite loss of mental and/or physical faculties by eliciting testimony to establish that intoxication caused the poor driving and SFST results. Erratic driving can be neutralized through explanations using common driving errors or through the client’s or passenger’s testimony regarding specific reasons for the erratic driving or traffic violation.

Knowing the SFST manual better than the police officer provides the defense lawyer an immeasurable advantage. The skilled lawyer leads the officer and the jury to the conclusion that the validity of each SFST was compromised and/or that the video demonstrates no indication of intoxication. Remember, the State’s own science teaches us that impairment affects mental faculties before physical faculties.3 Build the disconnect stronger by emphasizing the client’s mental faculties—i.e., he was polite, cooperative, and coherent through all the testing and contact with the officer. In the end, the accomplished lawyer may be able to lead the officer into admitting that he observed no loss of mental faculties. Henceforth, according to the science, any loss of physical faculties cannot be the result of intoxication and must be the result of something normal, such as fatigue, inexperience, injury, or nervousness.

Most importantly, establish with each witness that the client did not urinate on themselves and never asked to go to the bathroom. Later, in closing, contrast this testimony with the number of drinks consumed required to support the Intoxilyzer result: 0.235 equals 12 beers equals 144 ounces of fluid in the system at the time of the breath test.

By neutralizing the State’s evidence concerning loss of mental or physical faculties, the jury is then compelled to decide the intoxication element on the reliability of the Intoxilyzer result. Make the State’s case rely solely on the number.

V. Roofing

The Breath Test Operator (“BTO”) rarely has any significant ex­posure with the client; however, their testimony can easily destroy the State’s case. Many large metropolitan BTOs usually operate the Intoxilyzer all night, running suspected DWI clients through the intox room like cattle. Some BTOs put personal notes on their reports. Here, remember that these notes are, in effect, small police reports and inadmissible hearsay as per Texas Rule of Evidence 803(8)(b).

The State will attempt to make the BTO look credible. Yet you can enlighten the jury by examining his alcohol and Intoxilyzer experience. As per Texas Rule of Evidence 803(18), establish that the Texas Breath Alcohol Testing Program Operator Manual is authoritative so that you can cross-examine the BTO with this learned treatise. Ask the BTO about the Intoxilyzer and his knowledge of the inner dynamics of the machine. Most will admit they know very little about Henry’s Law, Infrared Spectroscopy, the simulator solution, or the checking and maintainenance of the machine. Establish that the BTO only pushes buttons and the machine checks itself. Here, remember the “self-check” function of the Intoxilyzer does not check all of the systems.

Through effective cross-examination, the BTO may admit indisputable error regarding the simulator solution temperature and/or the 15-minute presence period. This may be a ripe area for suppression of a breath test result if the BTO does not accurately remember the temperature requirement. Ask the BTO what the temperature was, what it is required to be, and what the government-accepted deviation is for the simulator solution. All you need is one mistake! If you get one, the Technical Supervisor (“TS”) must admit the results could be compromised—e.g., if the temperature was off or outside the allowable deviation.4

Another suppression area exists for failure to properly adhere to the 15-minute presence period; that is, the arresting officer brings the client to the BTO who immediately runs an Intoxilyzer test. Accordingly, be familiar with what the testifying TS considers is acceptable for compliance of “in the presence” requirement—i.e., line of sight, single or multiple officers for the duration, or within hearing range. Ask the BTO where the client was observed. Was there a video? Whose choice was it not to record the observation? Did the client burp or belch during the period? How would they know if they did? Did the client put anything in his mouth? Did he think it would have been useful for the jury to be able to see all this for themselves?

Based on the TS’ requirements, try establishing a conflict with the BTO’s observation period. If truthful, the TS must admit that a violation in breath test procedure for failure to properly conduct the 15-minute observation period compromises the validity of the result.5 Of course, the trial lawyer couples any violation with Article 38.23 of the Texas Code of Criminal Procedure, which is our statutory exclusionary rule.

VI. Putting Up the Walls

The TS is the State’s paid “expert” in the field of breath alcohol testing. Most likely the TS will be recognized by the court as an expert in breath testing, so be prepared to converse in science lay terms for the benefit of the jury. Only the skilled lawyer—with a firm working knowledge of breath testing science, the Intoxilyzer, and in possession of multiple studies authoritative in the field of breath testing for 803(18) purposes—should cross-examine a TS.

Most TSs will acknowledge the following breath testing authorities: Dr. Kurt M. Dubowski, Dr. A.W. Jones, and Professor Dr. E. M. P. Widmark. The prepared DWI defense lawyer will have articles by these noted authorities and use them readily as learned treatises for cross-examination. Texas Rules of Evidence 803(18).

With a good video performance or exculpatory testimony that demonstrates little or no loss of normal mental or physical faculties, Dr. Dubowski’s table of the Stages of Acute Alcoholic Influence/Intoxication for a high BAC can be used to exemplify the disconnect between the client’s faculties and the scientifically expected faculties. For example, Dubowski states a person’s characteristics at a 0.235 are disorientation, mental confusion, dizziness, impaired balance, muscular incoordination, staggering gait, etc.6 The TS may disagree and attempt to explain, but Dubowski is far more authoritative than the TS. Remember, being a TS does not automatically equate to being an expert in chemistry, toxicology, physiology, anatomy, pharmacology, and the like. Prevent the TS from testifying about tolerance, drug or medication effects, or any medical conditions or injuries by challenging their qualifications using Rules 702 and 703.

Additionally, remember that an Intoxilyzer test administered during the absorption period (14 to 138 minutes) yields an erroneously high result.7

Another ripe area is that the Intoxilyzer breath specimens are not saved though they could be. Rather, the State destroys them by failing to preserve them, and they are discharged out the back of the machine. There is a device called the “ToxTrap” that can be utilized with the Intoxilyzer to preserve breath specimens.8 The TS is the only witness who will know about the ToxTrap and destroying the breath specimen. Compare the destroyed breath specimen to a written statement by a defendant that the police destroy because it is inconvenient/costly to keep it.

Remember that the jury was primed to distrust the hypothetical machine in voir dire based on certain unreliability issues. Establish each comparative issue with the breath test machine through the TS or the BTO—i.e., the breath test score must come within 0.02 of the first reading, which equals 20% acceptable range of error on either side of the Intoxilyzer score, or a 40% swing of acceptable error. Furthermore, subpoena the TS to bring a copy of the Statement of Warranty for that particular machine. This document fails to state the Intoxilyzer is warranted for merchantability or fitness for a particular purpose. As a precaution, bring your copy provided in discovery as well. If the TS refuses to admit the issues, cross-examine as a statement rather than a question regarding the other issues, thereby allowing the jury to judge the TS’ credibility.

The State will certainly attempt to explain the high BAC through the TS using tolerance. Object to this testimony. If sustained, you do not need to deal with the issue. Remember, being a TS does not equate to being a tolerance expert. However, have a compilation of as many articles on tolerance as possible. Then, cross the TS on exactly which type of tolerance the State is relying upon and ask the difference between the other types of tolerance. Additionally, ask the TS the basis of his knowledge. Flip through the compilation of articles as you inquire: What’s the name of the article? The author? The country of origin? Why would a TS who knew they were testifying on a high BAC case not bring any authorities to support their position? A skilled attorney can use tolerance against the State by making the TS appear uncredible, unprepared, and prejudiced.

Last off, impeach the TS by showing he failed to even watch the video (they rarely do). “So, all of your testimony that my client is highly intoxicated is based solely on that Intoxilyzer score and not on any actual loss of mental or physical faculties?”

VII. Making It Pretty

If the client can afford it, you may consider hiring an expert. Make sure to investigate your expert for possible impeachment statements. Spend time reviewing anticipated testimony to prevent anything damaging. Make sure your expert is familiar with and knowledgeable about all the relied-upon authorities and has viewed all of the evidence, including the video. And last, prepare your clients before they meet with the expert.

VIII. Selling It

Your closing argument should consolidate the many disconnects into a defense and make logical deductions from the evidence. Depending on your personal style, choose a few effective demonstrations to illustrate the indisputable conflict between the tangible evidence (the client’s video performance and mug shot) and the high BAC result.

The hypothetical machine discussed in voir dire should be revisited to remind jurors that the breath test machine contains the same unreliabilities. Empower the jury to acknowledge that they wouldn’t trust the hypothetical machine and should likewise mistrust the breath test machine.

In closing argument, all demonstrative aids should stimulate attention and present the DD theory concisely and logically. Personally, I like to use a piece of green paper that says no loss of mental faculties, another green piece that says no loss of physical faculties, and a red piece that says “machine X.” Remind the jurors that as exclusive judges, they decide which evidence to trust. Crumble up that red piece of paper and throw it in the trash. Additionally, I like to use pictures of ordinary people with written statements involving unrealistic numbers—i.e., skinny person who can bench-press 500 pounds, heavy fellow who can run a 4.5 40-yard dash, or a little cowboy that wears a men’s size 12 boots. Similarly, the State is asking the jury to convict based on an outrageous number unsupported by common sense and the tangible, physical evidence: good video, good mug shot, never urinated, no loss of mental or physical faculties. And finally, don’t forget how many alcoholic drinks the TS testified the client contained in their system at the time of testing. If you can, smuggle in that many beers to demonstrate and conclude the impossibility of actual consumption by the client without urinating. Either the machine is wrong, or the client’s body defies the laws of science and common sense.

Each disconnect weaves the defense stronger. Remind the jury of the presumption of innocence, that any doubt in the evidence always reflects “Not Guilty.” Use the totality of the circumstances against the State by arguing the totality of sober circumstances. These indisputable conflicts create reasonable doubt. Now, the jurors have a constitutional duty to follow the law and find the client not guilty. The higher the test, the stronger your defense.9


1. Thanks to Doug Murphy of Trichter & Murphy, PC, for this example.

2. See Standefer v. State, 59 S.W.3d 177 (Tex.Crim.App. 2001).

3. See Texas Breath Alcohol Testing Program Operator Manual (2001), pg. 44.

4. See Texas Breath Alcohol Testing Program Operator Manual, pg. 35.

5. See Texas Breath Alcohol Testing Program Operator Manual, pg. 49, and Texas Administrative Code Section 19.3(a) and (c)(1).

6. See Dubowski, Kurt M., Alcohol Determination in the Clinical Laboratory, Am. J. Clin. Pathol. 74: 747, 749 (1980).

7. See Dubowski, Kurt M., Absorption, Distribution, and Elimination of Alcohol: Highway Safety Aspects, J. Stud. Alc. Suppl. No. 10: 98, 99 and 106 (1985); Widmark, E. M. P., Principles and Applications of Medicolegal Alcohol Determination, Biomedical Publications, pg. 99, Davis, CA (1981).

8. See Bergh, Arne, “Observations on ToxTrap Silica Gel Breath Capture Tubes for Alcohol Analysis,” J. of Forensic Sciences 30: 186–193 (1985).

9. Additional thanks to J. Gary Trichter of Trichter & Murphy, PC, for help in contributing and editing.

Do You Know What You Don’t Know?

Have you ever defended any of the following types of cases?

– Injury to a child?
– Injury to a child resulting in death?
– Aggravated sexual assault of a child?

As a general rule, these cases are guaranteed to get your client a very long sentence if he is convicted—what some lawyers call the “slow death penalty.”

And as a general rule, these cases are among the most complicated cases to defend. This is doubly important in light of the sentences that juries are likely to impose upon conviction. Unfortunately, most lawyers don’t really understand just how complicated they are, or the land mines they are filled with. In other words, they don’t know what they don’t know.

Even well-meaning lawyers who don’t know what they don’t know help create bad case law. And we have an overabundance of bad case law created by lawyers who did not know. These attorneys cannot properly protect the appellate record, and this leads to even more bad case law. Lawyers who do not know there is a special body of science dealing with all aspects of child abuse do not know what they do not know.1

Not knowing what you don’t know often leads to convictions. When only three of thirteen alleles match, it is an absolute exclusion, not an absolute match. But there was testimony in a rape case, which apparently went unchallenged, that the DNA was an exact match when only three alleles matched. The defendant was convicted. The authors suggest that the defense counsel did not know what he did not know.

If you’re honest with yourself, you would probably rather defend a straight-up murder case than an injury to a child or a sexual assault of a child. Why? Because you may be able to sneak in the old “S.O.B. needed killing” defense. But the authors have yet to meet the first juror who ever thought that a child needed injuring, or killing. In other words, your ordinary defenses are missing. That alone is a tremendous hurdle to overcome.

And if you didn’t realize that a straight-up murder case is easier to defend than one of these cases, then you don’t know what you don’t know.

The work-up on these cases is critical. Whether the child is dead or injured or allegedly abused or sexually assaulted, there are going to be volumes of records to go through. Invariably, there are even more records and evidence that will need to be obtained. Do you even know what you are looking at, much less looking for, in the records?

Consider an infant who has died from what the State says is ethylene glycol poisoning? Do you know what to look for in the medical records to see if it could be the result of a genetic defect? Do you know which experts to consult with? Do you know what testing has to be done to confirm the genetic defect? If you don’t, then you don’t know what you don’t know.2

Consider a case involving an allegation of sexual assault of a child where the physical findings are normal, or inconclusive? The alleged assault is said to have occurred years before, and the State is relying upon the “outcry witness” and psychologists who have interviewed, counseled, and treated the child. Who and what are the experts you need to defend this case? If you can’t name them, then you don’t know what you don’t know.3

Consider a case involving scald injuries to a child. Do you know how to look at the photos and tell the difference between accidental and intentional scalds? Do you know who to send the photos to for an expert opinion on same? Again, if you can’t or don’t, you don’t know what you don’t know.

Consider the following hypothetical scenario. A father finds his six-month-old child unresponsive in a crib. He calls 911 and tries CPR. EMTs arrive and the child is still unresponsive. EMT records show periods of anoxia during transport. The child is received in ER, followed by more periods of anoxia. The first CT scan is clear, but the second shows a subdural hematoma and rib fracture. The child ultimately dies. Multiple bleeds are found in and around the brain, and an autopsy finds fractures of the ribs, of different ages—some new and some healing. The case is indicted as injury to a child resulting in death. The DA refers to it as a “shaken-baby” case. Who and what are the experts you need to defend this case? If you can’t name them, then you don’t know what you don’t know.4

In that hypothetical case, what medical records would you need to obtain, other than those of the EMTs and the hospital to which the child was taken? If you can’t name them, then you don’t know what you don’t know.5 And if you can’t say why these particular records are important, then you don’t know what you don’t know.6

Who is the State going to call as its experts? How are you going to deal with each of them?

Did you know that the American Academy of Pediatrics now offers a Board Certification in Child Abuse? Imagine, doctors who are now board certified in diagnosing crimes. And those doctors testify with great conviction (and efficacy) as to the “proof” that they find of the crimes your client has committed. Never mind the very serious flaws in the studies they rely upon—they are board certified, after all, and by the American Academy of Pediatrics, at that. Do you even know the names of the studies that these experts rely upon to say that certain types of retinal hemorrhages are pathognomonic of abuse, much less the research that shows how deeply flawed these studies are? If you didn’t know this, then, again, you don’t know what you don’t know.

The State’s expert (an M.D.) is going to testify that the forces that the child was subjected to are equivalent to the forces that would be experienced in a fall from a third story onto concrete—and that it is this type of force that caused the injuries the child or the child’s brain suffered. Anything wrong with that analysis or analogy? If you said no, or if you cannot articulate what is wrong, then you don’t know what you don’t know.7 Interestingly, there is at least one forensic pathologist who will testify, and who has performed autopsies on persons who committed suicide by jumping off of third-story balconies onto pavement. Needless to say, what he found in his autopsies bears no resemblance to what will have been found on the autopsy of the child in your case. And if you don’t know who this pathologist is, you don’t know what you don’t know.8

Do you know what questions you need to ask the State’s witnesses to try to establish your defense? Do you know what questions you need to ask your experts? If you didn’t know this, then, again, you don’t know what you don’t know.

The voir dire on these cases is critical. What is your expertise in preparing to voir dire for one of these cases? Not what is your experience (read: number of cases) in conducting voir dire, but what is your expertise in preparing to voir dire for one of these cases? If you did not realize that expertise in preparing voir dire for this particular type of case was necessary, then, again, you don’t know what you don’t know.

When is the last time that you attended a seminar dedicated exclusively to the science involved in defending these types of cases? If it is more than a year ago, then, in the authors’ opinion—and in the words of Wolf-brand Chili®—that’s too long. And again, you don’t know what you don’t know.

How many books do you have in your personal library dealing with the issues that arise in these types of cases? How recent are they? If your answer is only a few, and if they are older than ten years, then you probably don’t know what you don’t know.

What do you do to stay current on the latest developments in the science of these cases? What do you do to stay abreast of which experts to use and which experts to avoid (and why) and which experts fall in the middle?9 If you don’t do anything in this regard, then you probably don’t know what you don’t know.

Is there a solution to overcoming not knowing what you don’t know? The authors, who between them have 67 years of experience as attorneys, suggest there is. Interestingly, they came to the same solution independently—one 10+ years ago and the other within the last year. But they write together because they are so convinced of the value of the solution that they each came to.

That solution is this: They have both resolved to never undertake one of these cases without the assistance of Kim Hart. Who, you may ask, is Kim Hart?

Kim Hart is listed on TCDLA’s List of Experts under child abuse. She is a trial consultant living in Toledo, Ohio, and has more than 25 years’ experience assisting attorneys defending these type of cases all over the country—actually, the world.10 During that period of time, she has helped lawyers defend over 2,000 of these types of cases. Does your experience come anywhere near that? The authors’ combined experience is but a fraction of a percentage of that number.

In addition, she is the Executive Director of the National Child Abuse Defense and Resource Center (NCADRC). NCADRC is a 501(c)(3) entity that hosts its own seminar every two years on defending these cases. NCADRC has also co-sponsored CLE seminars with other criminal defense associations on these same topics in various parts of the country.

Because of this work, Ms. Hart deals with the foremost experts in many fields related to defending allegations of child abuse. She also stays current on the most recent developments in the fields, either through reading or in speaking directly to the various experts. Because so many of the very best experts have presented at the NCADRC seminars and hold her in such high regard, Ms. Hart is able to call them and get through to them, especially when time and answers are critical.

The insight she brings to these cases is invaluable. In a case in Toledo, Ohio, one of the state’s experts claimed to have been part of Dr. Ommaya’s team that did the research with rhesus monkeys.11 Ms. Hart located Dr. Ommaya in retirement and got him to come testify that the expert had never been part of the research team. Would you have thought to try to contact Dr. Ommaya? Even if you had, do you think you could have gotten him to come testify?

Kim Hart is a must-have member of any team defending a child abuse case. In one case, Leonard Martinez was brought into the case by another lawyer just days before trial. It was a continuous sexual abuse of a child case. A 13-year-old child was accusing her mother’s former boyfriend of having raped her once a week for 16 or more weeks. It would allegedly happen when her mom left early in the morning to go to a flea mark in San Antonio. And the sister of the complainant, who is a year younger than the complainant, was allegedly an eyewitness to at least one of the rapes.

Leonard contacted Kim Hart, and even though the trial judge refused to give any resources, Kim helped with brainstorming, resources, and strategy. The case was a nightmare from Hell. The trial judge refused to give counsel any additional time to prepare. In a motion for continuance, counsel cited the “Performance Standards for the Representation of Non-Capital Cases.” The judge was not even aware of such standards.12 As a result of some of the judge’s rulings, a motion to recuse was filed, and after a hearing, counsel was given just two additional weeks to prepare. Counsel had a total of three weeks to deal with a case no less complicated than a death penalty case, a case more emotionally charged than a death case, one that carried the potential of life without parole—the slow death penalty.

With the help of Kim Hart’s advice, Leonard’s team was able to have their client acquitted of all charges from continuous sexual abuse of a child all the way down to indecency by exposure. Without her help and advice, there is little doubt in the defense team’s mind that their client would have, in all probability, been convicted.

It is the opinion of the authors13 that you should never take one of these cases without hiring Kim Hart or having her appointed.14 There may be other trial consultants out there who are as competent in this field, but the authors have never heard of any, much less met one. Until they do, they are going to stick with what has been proven time and time again, throughout this country, by other lawyers who have used her services.15

Unfortunately, there are too many lawyers who believe child abuse cases can be handled like any other criminal case. Those who believe that are woefully unprepared to take on such a case. They don’t know what they don’t know.

The issues involved in child death, child injury, and child sex abuse cases are often difficult to identify and very difficult to analyze once identified. Kim can help you not only identify the issues, but also review the records and analyze the issues, bringing in the experts needed to assist the team in effectively representing the accused.

And if you didn’t know about Kim before this article, you now know part of what you didn’t know. For your benefit, the benefit of your clients and the benefit of Texas jurisprudence, please don’t ever handle one of these cases without Kim’s active participation and involvement. You may not be perfect, but you will at least be prepared. And you will no longer be in the position of not knowing what you don’t know.


1. Some of the “science” is not even worthy of being referred to as junk science. But you need to know which is which.

2. This is the case of Patricia Stallings in Missouri. She was sentenced to prison for life but subsequently exonerated on a writ when it was conclusively established that the laboratory results were misread and the recessive genetic defect that she and her husband both had was conclusively identified, thereby showing the cause of the propionic acid (not ethylene glycol) poisoning. Among the other problems with the case were that one laboratory claimed to find ethylene glycol even though its retention time (the period it takes for a compound to traverse a GC column) was not identical to a standard sample of ethylene glycol. Another laboratory did not even bother to run a standard. One laboratory did not calculate that the child would have had to consume 300 liters of ethylene glycol to account for the results of the chemical analysis. Genetic testing showed that the dead son had MMA, and the compound identified as ethylene glycol was shown to be propionic acid instead.

3. There are at least two: a SANE nurse or a pediatrician with experience in sexual assaults and a psychologist familiar with implantation of memories or corruption of memories.

4. There are at least two: an ME and a biomechanician.

5. You need to obtain the records relating to the birth of the child and any med­ical records of the child, especially those showing any vaccinations ad­min­istered to the child.

6. The birth records will show the child’s health at the time of birth and whether there was any birth trauma that could account for the rib fractures, among other conditions. Vaccinations have been shown to cause severe adverse reactions in young children, including subdural hematomas and even death.

7. A physician is not competent to calculate the forces that the body suffers in any particular situation. That job belongs to a biomechanician. And courtesy of biomechanics, we know that it is impossible to shake a child and generate any­where near those forces.

8. The pathologist is David Posey, M.D. He presented at the 2008 National Child Abuse Defense and Resource Center’s biennial seminar in Las Vegas. From May 1985 to August 1990, while he was Staff Pathologist and Forensic Pathologist at Tripler Army Medical Center, he was locum tenens at City and County of Honolulu Medical Examiner’s Office.

9. There are some physicians who are extremely competent in diagnosing hematomas and explaining their non-criminal causes, but they want to express opinions about the forces involved. If you know that up front, you can use them as experts, so long as they understand that they will not, under any circumstances, opine on the forces involved.

10. Ms. Hart has helped attorneys defend these type of cases in all 50 states, Puerto Rico, Guam, American Samoa, Canada, Australia, and Great Britain.

11. Ayub Ommaya, M.D. Dr. Ommaya’s research with rhesus monkeys provided the experimental data needed to model traumatic brain injury, which was used to come up with the unfounded theory of “shaken baby.”

12. This raises the question, were you?

13. The authors know other attorneys in other states who are of the same opinion when it comes to defending this type of case. Those lawyers will also not defend one of these cases without Ms. Hart’s assistance.

14. In several cases on which he has been appointed, Leonard Martinez has been able to have the trial judge authorize fees for Ms. Hart to be retained to assist in the defense. While it may be difficult, getting Ms. Hart appointed can be accomplished.

15. See Endnote 10, above.

Eyewitness Identification: Certainty Doesn’t Equal Accuracy. Ask Me How I Know.

In 1998, I was beginning what would be the last year of my very brief career at the Harris County District Attorney’s Office under the legendary Johnny B. Holmes. I was the number three prosecutor in the 230th district court, which meant I had no power and was not free to use my discretion on cases. I handled the lowest level of felonies, ranging from petty drug offenses to second-degree felony aggravated assaults. If there was a dead body, I wasn’t allowed to touch the case. And that was really fine by me.

So, on a nondescript day, a day no different than any of my other days in court, I found myself about to pick a jury on an aggravated assault case—The State of Texas v. Gilbert Amezquita. Gilbert was accused of having been fired from a family-owned plumbing company and then coming back the next day and beating the woman who fired him to a pulp. He was accused of beating her so severely, she was left unrecognizable by her own family. It was also alleged that this woman, Kathy, was pregnant at the time of the horrendous beating and lost her unborn baby.

At the hospital, when Kathy regained consciousness, the first word she uttered was “Gilbert.” The police took this and ran with it and ultimately arrested a former worker at the plumbing company, Gilbert Amezquita. Gilbert was a handsome first offender with no criminal record to speak of. He was in the ROTC or Reserves, I forget, but he seemed to have the whole world, his whole life, in front of him.

I always had an affinity for Gilbert because he was a young Hispanic man. As a young Hispanic prosecutor, I was very disappointed in him and wished he would have made better choices in his life. But I also knew in my heart he was guilty.

We proceeded to trial, and Kathy identified Gilbert in front of the jury. Her identification was rock solid and unwavering. You see, Gilbert was not a stranger to Kathy. He was an ex-employee. Surely she knew him by name and sight. She was not wrong. She was certain and, in my opinion, accurate and reliable.

Gilbert’s lawyer put on a defense that consisted of some ill-prepared alibi witnesses, and as a young relentless prosecutor I had my way with them.

Gilbert was convicted as charged and the judge gave him a sentence of 15 years TDCJ-ID. Gilbert would eventually appeal his case and was consistently turned away until he ultimately exhausted all of his appeals. Thankfully, he had a hard-working and zealous writ attorney who just would not stop. His writ attorney was able to track down leads that were not followed up on by law enforcement, and eventually, they came across another Gilbert. They interviewed him and he ultimately confessed to the horrific crime.

In 2007, I was sitting at a restaurant in Jackson Hole, Wyoming, having a lavish breakfast with my lawyer friends when I received an email. This email shook me to my core and changed my life forever. The contents of the email? ”Gilbert Amezquita Pardoned by Governor Perry on Actual Innocence,” or something to that effect. My heart stopped, I was sick to my stomach, and I began to cry.

I had to make this right. So upon my return to Houston, I emailed Gilbert’s writ lawyer and asked him if he would ask Gilbert if he would meet with me. You see, I had to apologize. I had to ask for forgiveness and try and make this right. To my shock and surprise, Gilbert said yes. There was no turning back now.

So on another nondescript day, I woke up, got dressed, took my children to day care, and set off to ask for forgiveness.

I walked into his lawyer’s office and there he sat, Gilbert Amezquita, the innocent man who I had put in prison. The innocent man who had spent nine years in a Texas prison for a crime he didn’t commit.

When we saw each other we began to cry, and we hugged for what seemed like an eternity. I then sat across from him, held his hands, looked him in the eye, and told him three simple words: “I am sorry.” He forgave me, and we chatted for about an hour about how our lives had been for the last nine years. He told me that his wife had divorced him, and that she miscarried upon hearing the verdict. It seems that the stress of it all was just too much. I told him that I had married, had two children, and was a defense attorney.

I suppose we both try not to think about Gilbert’s life in prison. I can think of no worse pain—the kind of pain that makes you literally go insane, knowing in your core that you are innocent, but stuck in a horrible horrible place you do not belong. I can’t let myself go there because the guilt will eat me up alive. So, we both move forward and make the best of what we can with the life we have left.

I am telling this story because it needs to be told. It is my personal testimony on how I have seen first hand how certainty does not equal reliability. And no matter how many times an eyewitness points to the same person over and again, it doesn’t make her identification accurate, reliable, or credible. Certainty does not equal accuracy. This is a tough lesson I learned the hard way.

October 2012 Complete Issue – PDF Download



20 | SANE Examinations Are Testimonial and Are Subject to Confrontation – By Johnathan Ball
29 | Undermining the Breath Test: Building the Disconnect Defense – By Mark Thiessen
34 | A Client Contract Agreement – By Edward Mallett
36 | Do You Know What You Don’t Know? – By L. T. “Butch” Bradt & Leonard Martinez
40 | Eyewitness Identification: Certainty Doesn’t Equal Accuracy. Ask Me How I Know. – By Emily Munoz Detoto

7 | President’s Message
9 | Executive Director’s Perspective
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: Invictus – By Lydia Clay-Jackson


Out of the night that covers me,
Black as the Pit from pole to pole,
I thank whatever gods may be
For my unconquerable soul.

In the fell clutch of circumstance
I have not winced nor cried aloud.
Under the bludgeonings of chance
My head is bloody, but unbowed.

Beyond this place of wrath and tears
Looms but the Horror of the shade,
And yet the menace of the years
Finds, and shall find, me unafraid.

It matters not how strait the gate,
How charged with punishments the scroll.
I am the master of my fate:
I am the captain of my soul.

—William Ernest Henley

The back-story of this poem is one of a man who believed in thinking and acting “outside the box” as it applied to medical science of the time. Henley had a leg amputated and instead of letting doctors amputate his second leg, researched and studied a new and emerging science and allowed Joseph Lister to treat him. Henley wrote INVICTUS not only to describe the pain he endured after his amputation but also to aid in his mental recovery.

I had to memorize this poem in the sixth grade and next remember hearing it during “hell week” in college. The words of the poem came back to me a decade or so later as I was preparing for a trial. I was surely not “unafraid” because of the issues in the case. The words of the poem helped me to focus. I walked into trial feeling like a trial lawyer because of Henley’s words; I walked out of that trial as a trial lawyer because of the words I used.

We as Texas Criminal Defense Lawyers are a justifiably ego­tistic lot. We go into courtrooms every day upholding the sacrifices, principals, and ideals of all those who fought, and fight, for all of our fundamental principals of law. It matters not the “horrors” of the political agendas of the different prosecuting offices; our job description never changes, and we are the “captains” of the barriers to injustice. What we do every day affects the quality of everyone’s life.

Good verdicts to you all.

Executive Director’s Perspective: Falling Forward – By Joseph A. Martinez


Special thanks to Janet Burnett (El Paso), Greg Velazquez (El Paso), and Rick Wardroup (Lubbock), our course directors for the Indigent Defense Training: Fighting for Those Who Have Served Us CLE held in El Paso in September. Thanks to their efforts we had 80 attendees.

Special thanks to Troy McKinney (Houston), our course director for the DWI CLE held in Onalaska in September. Thanks to everyone’s efforts we had 8 attendees.

Special thanks to Carlos Garcia (Austin) and Rick Wardroup, Capital Assistance Attorney (Lubbock), our course directors for the Capital Case Litigators Initiative (CCLI) CLE held in Houston in October. Thanks to our speakers and faculty. This was a Department of Justice grant through the Texas Court of Criminal Appeals. Thanks to everyone efforts we had 75 attendees. TCLDA gives its appreciation to Judge Barbara Hervey, Texas Court of Criminal Appeals, for having the foresight to apply for the CCLI grant. TCLDA also thanks all of the Judges on the Texas Court of Criminal Appeals for their support in securing the CCLI funds.

The purpose of the training is to focus on teamwork in the defense of persons charged with capital murder and facing the potential of a death sentence. Plenary sessions included presentations on brainstorming culpability and punishment issues; techniques to improve communication with clients and their families; and the effect of mental health issues and trauma on the clients. Instruction were given on working with victim families and obtaining the resources necessary to properly defend the clients. Small group breakout sessions provided the opportunity to work on the implementation of the skills taught. TCDLA will have another CCLI CLE in early February 2013. Please check our website for more information.

Please make plans to come to beautiful San Antonio for the Annual Stuart Kinard Ad­vanced DWI seminar. Come enjoy the unique Menger Hotel and the San Antonio River November 15–16.

Please also make plans to attend the Defending Those Accused of Sexual Assault CLE in Houston December 6–7, 2012. Enjoy the Houston nightlife and stay over to attend the TCLDA Board of Directors meeting. The Board invites you to attend this quarterly board meeting, Saturday, December 8, at 10:00 a.m. The seminar and board meeting will both be at the Crowne Plaza Hotel on Smith Street in downtown Houston.

Thanks to the leadership of TCDLA and the support of its members, the following is a list of what TCDLA has accomplished in the past 12 months:

Dues-current TCDLA Membership                             3,245
Total Sales of TCDLA Publications               $101,806.29
Total Hits on TCDLA Website                               1,661,435
Total Hits for Voice for the Defense Online      500,000+
Number of Members on TCDLA Listserve                   995
 Lawyers on TCDLA Public Defender Listserve       194
 Lawyers on Capital Listserve                                        195
 Lawyers on TCDLA Legislative Listserve             1,838

Please join President Lydia Clay-Jackson for the Annual TCLDA Membership Trip and Cruise CLE. The dates for the Trip are February 16–21. There will be 6 hours of CLE for the five-day cruise. Come join the fun, the summer-like weather, and great company.

The 37th Annual Texas Criminal Trial College (TCTC) will be held March 17–22, 2013, on the Sam Houston State Uni­versity campus in Huntsville. Lydia Clay-Jackson (Conroe) and Tim Evans (Fort Worth) are Deans of Student and Faculty, respectively. Eighty lawyers will be accepted to the TCTC. Please help us recruit lawyers with fewer than five years of criminal defense trial experience. The application is on page 19 and on the TCDLA website, Or you can call the Home Office and have one faxed to you (512-478-2514). The deadline for the submission of the applications is noon, January 18, 2013.

Good verdicts to all.

Ethics and the Law: “Girl on the Billboard” – By Robert Pelton


When I drove from Houston to Huntsville to see a client, it was a tossup on who had the most billboard ads: lawyers or fried chicken places. Was it the smiling faces of lawyers and their staff, or someone eating a chicken leg? Seeing those billboards reminded me of the song “Girl on the Billboard.” “Girl on the Billboard” is a song about a truck driver who falls in love with a picture of a scantily clad woman he sees on a billboard along his daily freight route on Route 66. As he sees this young woman daily, the truck driver begins to fantasize about having a relationship with her. One day, the truck driver goes to the home of the artist who painted the billboard and asks for the young woman’s contact information. The painter then informs him that the “girl wasn’t real,” and that he’d “better get the [censored] on his way.” Brokenhearted by the reality that his fantasy girl was not real, the truck driver goes along his way on the highway wailing, “You’ll find tiny pieces of my heart scattered every which a way.” Sound familiar?

When I drive from Houston to Abilene I see billboards by lawyers stating that they are the “Slammer,” the “Jammer,” the “Hammer”—“we win our cases,” and “we don’t plead cases out.” Then I walk in the walls of the prison and see the results of some of these lawyers. While waiting for my client, I talked to several inmates who were mopping the floor and checking in laundry, and they told me stories of what their lawyers told them and then what happened.

All public media advertising must comply with Rule 7.02 of the Disciplinary Rules of Professional Conduct in that it cannot be false, misleading, or create an unjustified expectation about the lawyer’s qualification or services. The rules were created to protect the public. When I hear from an expert on advertisements that the majority of ads do not meet the criteria set by the State Bar, I can’t help but remember those men I met at the jail. Remember, we are dealing with living breathing human beings who were sent to prison like caged animals, so when it comes to advertising we must be careful not to create ads that would leave prospective clients brokenhearted like the truck driver. Most ads have to be reviewed to comply with ethical rules. The contact information for the State Bar advertisement review is 1-800-566-4616, or .

Article by Don Davidson of Bedford, Texas:

A person walks into your office and wants to talk about hiring you. You quickly ascertain that this person already has a lawyer with whom he or she is dissatisfied, and is therefore looking to replace that lawyer. You instantly remember that Rule 4.02(a) of the Rules of Professional Conduct prohibits an attorney from speaking with a person who is represented by another attorney without that other attorney’s consent. What do you do? Do you have to call the other attorney and get his permission to talk to his dissatisfied client? Fortunately, the answer is no.

Rule 4.02(d) expressly trumps 4.02(a). Rule 4.02(d) says: “When a person… that is represented by a lawyer in a matter seeks advice regarding that matter from another lawyer, the second lawyer is not prohibited by paragraph (a) from giving such advice without notifying or seeking consent of the first lawyer.” The comment to Rule 4.02 is even more explicit: “Paragraph (a)… does not prohibit a lawyer from furnishing a second opinion in a matter to one requesting such opinion, nor from discussing employment in the matter if requested to do so.” [Emphasis added.]

Of course, Rule 4.02(d) presumes that the client approaches the lawyer, and not the other way around. So soliciting a represented person to change lawyers would not fall within this exception to 4.02(a). In addition, the comment reminds us that we must still comply with Rule 7.02, which prohibits a lawyer from making false or misleading communications about (1) the lawyer’s qualifications or services, or (2) another lawyer’s qualifications or services.

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