Monthly archive

October 2012 - Page 2

Federal Corner: What Does ‘Williams’ Tell Us? – By F. R. Buck Files Jr.

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On occasion, the Supreme Court will tease us by handing down a three-line opinion that does not give us guidance but only raises questions. That is what occurred on October 1, 2012, when the Court wrote, “The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of Williams v. Illinois, 132 S.Ct. 2221 (2012). Shanton v. United States, __S.Ct.__, 2012 WL 1985502 (2012).

Because the Court cited Williams, we know that Shanton involves a confrontation issue that is found in an unpublished per curium opinion of the Fourth Circuit. [Panel: Circuit Judges Wilkinson, King, and Senior Circuit Judge Hamilton]. United States v. Shanton, __ F.3d __, 2012 WL 1985502 (2012). The opinion reads, in part, as follows:

[The Fourth Circuit’s Overview of the Case]

After a jury trial, David Wilbert Shanton, Sr., was convicted of two counts of armed bank robbery and related firearm offenses. On appeal, Shanton argues that (1) the district Court erred admitting testimony of a DNA expert without requiring the testimony of those persons involved in conducting that DNA testing, and (2) the Court erred by ordering that he serve a consecutive ten year sentence for the first of his two 18 U.S.C. § 924(c) (2006) convictions. Finding no error, we affirm.

[The Confrontation Issue]

At trial, Jennifer Luttman, a forensic examiner for the FBI, and an expert in the area of forensic DNA analysis, testified that, in her opinion, the results of DNA testing performed by her staff on a piece of gum found at one of the crime scenes showed the presence of DNA belonging to Shanton. Shanton argues that because Luttman was relying upon data generated by members of her staff, and that the data was testimonial, it was incumbent upon the Government to present as witnesses those persons who conducted the tests, citing Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), and Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

      We remember that Williams was decided only five months ago. The Court held that an expert’s testimony referring to a DNA profile having been produced from semen found on the victim did not violate the Confrontation Clause. Williams is another one of those “gloriously divided Court” cases. Justice Alito authored the opinion in which he was joined by Chief Justice Roberts and Justices Kennedy and Breyer. Justice Breyer filed a concurring opinion. Justice Thomas filed an opinion concurring in the judgment. Justice Kagan filed a dissenting opinion in which she was joined by Justices Scalia, Ginsburg and Sotomayor. Justice Alito’s opinion reads, in part, as follows:

[The Supreme Court’s Overview of the Case]

In this case, we decide whether Crawford v. Washington, 541 U.S. 36, 50, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), precludes an expert witness from testifying in a manner that has long been allowed under the law of evidence. Specifically, does Crawford bar an expert from expressing an opinion based on facts about a case that have been made known to the expert but about which the expert is not competent to testify? We also decide whether Crawford substantially impedes the ability of prosecutors to introduce DNA evidence and thus may effectively relegate the prosecution in some cases to reliance on older, less reliable forms of proof.

[The Confrontation Issue]

In petitioner’s bench trial for rape, the prosecution called an expert who testified that a DNA profile produced by an outside laboratory, Cellmark, matched a profile produced by the state police lab using a sample of petitioner’s blood. On direct examination, the expert testified that Cellmark was an accredited laboratory and that Cellmark provided the police with a DNA profile. The expert also explained the notations on documents admitted as business records, stating that, according to the records, vaginal swabs taken from the victim were sent to and received back from Cellmark. The expert made no other statement that was offered for the purpose of identifying the sample of biological material used in deriving the profile or for the purpose of establishing how Cellmark handled or tested the sample. Nor did the expert vouch for the accuracy of the profile that Cellmark produced. Nevertheless, petitioner contends that the expert’s testimony violated the Confrontation Clause as interpreted in Crawford.

[The Petitioner’s Argument]

But both the Illinois Appellate Court and the Illinois Supreme Court found that this statement was not admitted for the truth of the matter asserted, and it is settled that the Confrontation Clause does not bar the admission of such statements. See id., at 59–60, n. 9, 124 S.Ct. 1354 (citing Tennessee v. Street, 471 U.S. 409, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985)). For more than 200 years, the law of evidence has permitted the sort of testimony that was given by the expert in this case. Under settled evidence law, an expert may express an opinion that is based on facts that the expert assumes, but does not know, to be true. It is then up to the party who calls the expert to introduce other evidence establishing the facts assumed by the expert. While it was once the practice for an expert who based an opinion on assumed facts to testify in the form of an answer to a hypothetical question, modern practice does not demand this formality and, in appropriate cases, permits an expert to explain the facts on which his or her opinion is based without testifying to the truth of those facts. See Fed. Rule Evid. 703. That is precisely what occurred in this case, and we should not lightly “swee[p] away an accepted rule governing the admission of scientific evidence.” Melendez–Diaz v. Massachusetts, 557 U.S. 305, 330, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) (Kennedy, J., dissenting).

[The Issue Before the Supreme Court]

The issue here is whether petitioner’s confrontation right was violated, not whether the State offered sufficient foundational evidence to support the admission of Lambatos’ opinion.

 [The Supreme Court’s Conclusion]

We now conclude that this form of expert testimony does not violate the Confrontation Clause because that provision has no application to out-of-Court statements that are not offered to prove the truth of the matter asserted. When an expert testifies for the prosecution in a criminal case, the defendant has the opportunity to cross-examine the expert about any statements that are offered for their truth. Out-of-Court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause. Applying this rule to the present case, we conclude that the expert’s testimony did not violate the Sixth Amendment.

[A Second Basis for the
Supreme Court’s Conclusion]

As a second, independent basis for our decision, we also conclude that even if the report produced by Cellmark had been admitted into evidence, there would have been no Confrontation Clause violation. The Cellmark report is very different from the sort of extrajudicial statements, such as affidavits, depositions, prior testimony, and confessions, that the Confrontation Clause was originally understood to reach. The report was produced before any suspect was identified. The report was sought not for the purpose of obtaining evidence to be used against petitioner, who was not even under suspicion at the time, but for the purpose of finding a rapist who was on the loose. And the profile that Cellmark provided was not inherently inculpatory. On the contrary, a DNA profile is evidence that tends to exculpate all but one of the more than 7 billion people in the world today. The use of DNA evidence to exonerate persons who have been wrongfully accused or convicted is well known. If DNA profiles could not be introduced without calling the technicians who participated in the preparation of the profile, economic pressures would encourage prosecutors to forgo DNA testing and rely instead on older forms of evidence, such as eyewitness identification, that are less reliable. See Perry v. New Hampshire, 565 U.S. ____, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012). The Confrontation Clause does not mandate such an undesirable development. This conclusion will not prejudice any defendant who really wishes to probe the reliability of the DNA testing done in a particular case because those who participated in the testing may always be subpoenaed by the defense and questioned at trial.

My Thoughts

  • So what do we conclude after looking at Shanton and Williams? It appears that the distinction between Shanton and Williams is that Sandy Williams was convicted after a bench trial was held in the Circuit Court of Cook County, Illinois. David Wilbert Shanton was convicted after a jury trial in the United States District Court for the District of Maryland.
  • In Williams, Judge Alito noted,

    Under both the Illinois and the Federal Rules of Evidence, an expert may base an opinion on facts that are “made known to the expert at or before the hearing,” but such reliance does not constitute admissible evidence of this underlying information. Ill. Rule Evid. 703; Fed. Rule Evid. 703. Accordingly, in jury trials, both Illinois and federal law generally bar an expert from disclosing such inadmissible evidence. In bench trials, however, both the Illinois and the Federal Rules place no restriction on the revelation of such information to the factfinder. When the judge sits as the trier of fact, it is presumed that the judge will understand the limited reason for the disclosure of the underlying inadmissible information and will not rely on that information for any improper purpose. As we have noted, “[i]n bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions.” Harris v. Rivera, 454 U.S. 339, 346, 102 S.Ct. 460, 70 L.Ed.2d 530 (1981) (per curiam). U.S. v. Williams, 132 S.Ct. 2221, 2235-2236 (2012).

  • Is it possible that we are going to have one confrontation rule for defendants in bench trials and another for defendants in jury trials? I suppose that we’ll find out later this year.

Said & Done

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Kudos

Kudos to former TCDLA employee Celeste Villarreal, whose stellar career has led to yet another honor. In September, Celeste was named president of the Mexican-American Bar Association of Texas (MABA-TX). An associate judge in Austin Municipal Court, she served as editor of the TCDLA Capital Litigation Update as well as a legislative lobby assistant and research clerk. Way to go, Celeste.

Kudos also to John Stickels, who secured a favorable ruling for a veteran in U.S. District Court in Fort Worth. The charges carried an offense level of 33—which meant a 135- to 168-month sentence. John managed a 36-month probation for him. Good work, John.

Emily Detoto won the first battle in a Houston case originally filed as a super felony, 25 to life, on two charges of aggravated sexual assault of a child, an 8-year-old female. After about 9 hours of deliberations over two days, the jury sent in a note indicating they were deadlocked on one charge, and that vote never changed. The judge then brought the jury in, and they returned one verdict of “not guilty” in the count alleging D performed oral sex on the “victim,” at which point Emily moved for and was granted a mistrial on the cause the jury deadlocked on. Emily reports that the DA refiled the case, set to be tried in November.

Randy Mack scored a directed verdict for his client on a burglary of a habitation charge in Nueces County this September. Senior Judge Manuel Banales granted the verdict after the State was unable to prove the identity of the defendant. Good work, Randy.

Robert Pelton and Jennifer Vielman, with the assistance of investigators Alan Steuart and Carolyn Kizzee, recently got a capital murder case dismissed in Harris County. Witnesses said the client admitted to the killing and was spending money saturated with the victim’s blood. After doing their own investigation and presenting their findings to the Assistant District Attorney, the DA’s Office fulfilled their oath to seek justice and dismissed the case. Congratulations on a job well done.

September 2012 SDR – Voice for the Defense Vol. 41, No. 7

Voice for the Defense Volume 41, No. 7 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Though the jury foreperson reported “not guilty” votes on the capital and first-degree murder charges, D could be retried on all charges. Blueford v. Arkansas, 132 S. Ct. 2044 (2012).

        In D’s capital murder trial, the foreperson reported that the jury was unanimous against guilt as to capital murder and first-degree murder, but deadlocked on manslaughter and had not voted on negligent homicide. The jury had been instructed it could either find guilt on one offense or acquit on all, unanimously. When a verdict still could not be reached, a mistrial was granted. On retrial, D’s motion to dismiss the capital and first-degree murder charges due to Double Jeopardy was denied. The Supreme Court affirmed that D could be retried on all charges.

        When the foreperson told the court how the jury had voted on each offense, the jury’s deliberations had not concluded; the jurors went back to the jury room. When they later emerged, the foreperson stated only that they were unable to reach a verdict, with no indication whether all jurors still believed petitioner was not guilty of capital or first-degree murder, or what any vote on the other charges had been. Thus, the report before the end of deliberations lacked the finality necessary to amount to an acquittal on those offenses, quite apart from any requirement that a formal verdict be returned or judgment entered. Furthermore, the court did not abuse its discretion to refuse to add another option of acquitting on some offenses but not others.

At the time of respondent’s 2006 arrest, it was not clearly established that an arrest supported by probable cause could violate the First Amendment. Reichle v. Howards, 132 S. Ct. 2088 (2012).

        Respondent arrestee sued petitioner Secret Service agents, alleging that he was arrested in retaliation for criticizing the Vice President in violation of the First Amendment. The district court and Tenth Circuit denied the agents’ summary judgment on qualified immunity. Certiorari was granted on whether clearly established law held such a claim could lie despite probable cause for the arrest. The Supreme Court reversed the judgments denying qualified immunity and remanded.

        At the time of the arrest, the Supreme Court had never held that there was a specific right to be free from a retaliatory arrest that was otherwise supported by probable cause. In Hartman v. Moore, 547 U. S. 250 (2006), the Court held that a plaintiff could not state a First Amendment retaliatory prosecution claim if probable cause supported the charges. For qualified immunity purposes, it is at least arguable that the Hartman rule extends to retaliatory arrests. Hartman injected uncertainty into the law governing retaliatory arrests; that uncertainty was confirmed by subsequent appellate decisions that disagreed over whether that reasoning applied similarly to retaliatory arrests. Accordingly, at the time, it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation. Petitioners were entitled to qualified immunity.

Out-of-court statements related by an expert to explain the assumptions on which her opinion rests fall outside the scope of the Confrontation Clause. Williams v. Illinois, 132 S. Ct. 2221 (2012).

        In a bench trial, petitioner was convicted of rape after a forensic specialist for the Illinois State Police lab testified that a DNA profile produced by an outside lab matched a profile produced by the police lab. The Supreme Court affirmed that there was no Confrontation Clause violation.

        The out-of-court statements related by the expert solely for the purpose of explaining her opinion were not offered for their truth and thus fell outside the scope of the Confrontation Clause. The expert did not vouch for the quality of the lab work. She was asked if there was a computer match generated of the male DNA profile found in semen from the swabs of the victim to a male DNA profile that had been identified as having originated from D; she answered yes. That the matching profile was found in semen from the victim’s swabs was a mere premise of the question, and the expert simply assumed that premise to be true. The fact that the lab’s profile matched D (identified by the victim as her attacker) was itself confirmation that the sample tested was the victim’s sample. The important issue was the conclusion that the expert reached, and that the expert was available to D for cross-examination. Additionally, such a test does not fall within the bounds of the Confrontation Clause because the results were not directed to prove the guilt of the defendant; Williams was not even a suspect when the test was conducted.

A fact that increases the penalty for a crime, beyond the prescribed statutory maximum, must be tried by a jury if the penalty is criminal fines. S. Union Co. v. United States, 132 S. Ct. 2344 (2012).

        A jury convicted Southern Union of storing mercury without a permit, but the jury did not determine how many days Southern Union stored the mercury in voilation of 42 U.S.C. § 6928(d), which provided a maximum fine of $50,000 per day of violation. Multiplying $50,000 times 762, the full number of days in the indictment, the court set a maximum fine of $38.1 million, from which it imposed a fine of $6 million and a “community service obligation” of $12 million. Southern Union objected and argued that the number of days should have been determined by a jury, because it increased the maximum criminal penalty. Southern Union believed the imposition of the $38.1 million fine violated the Fifth and Sixth Amendments. The First Circuit rejected Southern Union’s arguments and affirmed. The Supreme Court reversed and remanded.

        In light of the rights to criminal due process under the Fifth Amendment and a trial by jury under the Sixth Amendment, a fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt if the penalty is the im­position of criminal fines. The Court previously held that under the Sixth Amendment, the determination of any fact that increases a maximum potential sentence should be left to the jury. The government argued that fines are not serious criminal sentences, and therefore do not require a jury determination. The Court disagreed, reasoning that the right to a jury trial would not even be triggered if a fine were so insubstantial.

Fifth Circuit

D did not waive his right to appeal; accordingly, the AEDPA one-year period did not begin until the appeal period expired. Rodriguez v. Thaler, 664 F.3d 952 (5th Cir. 2011).

        District court reversibly erred in dismissing D’s 28 U.S.C. § 2254 habeas petition as untimely under AEDPA’s one-year statute of limitations. The Texas state court began counting the year from the date of D’s sentencing, rather than upon the elapsing of the 30-day appeal period, because it found D waived his right to appeal as part of his guilty plea. The Fifth Circuit, however, found that the record did not establish that D actually waived his right to appeal; accordingly, his state judgment did not become “final,” and the AEDPA one-year period did not begin until the appeal period expired. Taking this into account, D’s § 2254 petition was timely under the AEDPA. The Fifth Cir­cuit reversed the judgment that dismissed the petition and remanded for the district court to consider the petition on the merits.

The evidence was insufficient to sustain D’s conviction for possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B), where others besides D had access to the computer on which the pornography was found. United States v. Moreland, 665 F.3d 137 (5th Cir. 2011).

The district court reversibly erred in concluding that D’s conviction under Cal. Health & Safety Code § 11379.6 was a drug-trafficking offense warranting a 16-level enhancement under USSG § 2L1.2(b)(1)(A)(i); in the absence of information to narrow the statute of conviction, the court must determine whether the statute could be violated in a way that does not meet the definition of the predicate offense. United States v. Reyes-Mendoza, 665 F.3d 165 (5th Cir. 2011).

District court did not err in granting the government’s motion to dismiss the first indictment to re-indict in another district; Ds did not overcome the presumption that the government acted in good faith. United States v. Jones, 664 F.3d 966 (5th Cir. 2011).

        (1) The government gave a rationale for dismissing and re-indicting elsewhere that was more than a mere conclusory interest. Nor did the court violate Ds’ procedural due process rights by granting the motion without notice to Ds or a hearing. No liberty interest was implicated by the dismissal, standing alone. It was not until the re-indictment that a liberty interest was implicated; but at that time, the court held a hearing on whether the dismissal and re-indictment were in bad faith.

        (2) Even if the submission of a “deliberate ignorance” instruction was erroneous, any error was harmless in light of the substantial evidence of actual knowledge. This conclusion was not altered by the lack of a balancing instruction. District court properly refused an instruction on entrapment by estoppel; Ds did not establish an evidentiary predicate of reliance on a government agent’s assurances. Ds’ proposed ambiguity and good-faith instructions were not correct statements of law. Finally, the court did not err in refusing Ds’ limiting instruction; the general instructions to the jury specifically said to consider only the federal crimes charged, and not state regulations.

        (3) The verdict form misstated the mens rea necessary to convict for health care false statements, 18 U.S.C. § 1035; the mens rea is “knowingly and willfully,” but the verdict form told the jury they could find D guilty if he “knew, or should have known.” This error was not harmless because the case centered on D’s knowledge; the Fifth Circuit reversed D’s health care false statement convictions. However, because the verdict form did not change the requisite proof to convict Ds of money laundering, although the court added detail, there is no reversible error for the laundering convictions.

        (4) A judge’s ex parte communications with the jury are reviewed for abuse of discretion and may constitute harmless error. Here, the judge’s four relatively innocuous communications with the jury were harmless error.

Court of Criminal Appeals

The record contains sufficient evidence that EMIT, with or without a confirmation test, is reliable scientific evi­dence under Tex. R. Evid. 702. Somers v. State, 368 S.W.3d 528 (Tex.Crim.App. 2012).

        D was convicted of intoxication manslaughter. COA affirmed, holding that the trial court did not abuse its discretion by excluding enzyme-multiplied immunoassay technique (EMIT) drug test results of the victim’s blood. CCA reversed and remanded.

        COA erred by holding that EMIT tests were unreliable without a confirmation test. CCA concluded that the reliability of even a single, unconfirmed EMIT test had been sufficiently established to meet the first two prongs of Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App. 1992), which are the validity of the underlying scientific theory and the validity of the technique applying that theory. The record showed that: (1) the expert witnesses testified that the underlying scientific theory and technique of the EMIT test were accepted as valid by the accredited Department of Public Safety laboratory and the greater forensic toxicology community in Texas; (2) an expert testified that there was literature supporting EMIT as a reliable screening test; (3) from the experts’ testimony, the trial court understood that EMIT was a screening test based on enzyme reactions; (4) the expert testimony suggested that the potential error rate in EMIT was very low; and (5) the experts testified as to the validity and reliability of the EMIT test and were subject to cross-examination by the State.

D was entitled to the mistake-of-fact instruction because he was subjected to a transferred-intent instruction. Louis v. State, No. PD-0323-11 (Tex.Crim.App. June 6, 2012).

        COA reversed D’s capital murder conviction on sufficiency of evidence grounds, acquitting him of that charge, and determined there was jury-charge error. COA remanded to the trial court for a new trial on the lesser-included offenses in the jury charge. CCA affirmed COA.

        COA properly determined that the jury could not have inferred from the totality of the circumstantial evidence viewed in a light most favorable to its verdict that D intended to cause the death of the child. The injuries caused by D became fatal in combination with the later injuries separately caused by the child’s mother, who independently struck the child’s head repeatedly and hung him from his arms. D was entitled to the mistake-of-fact instruction, which he requested but was denied, because he was subjected to a transferred-intent instruction. Because the transferred-intent instruction was applied to all of the offenses in the jury charge and authorized conviction of each specific offense, if causation were transferred pursuant to Tex. Penal Code § 6.04, the mistake-of-fact instruction was needed to permit the jury to negate the transferred intent if the jury believed that D had a reasonable mistaken belief about the type of injury he was inflicting. The lack of D’s requested mistake-of-fact instruction effectively prevented him from presenting his defense and was not harmless.

D’s complaint that the trial court commented on him testifying was not preserved for review because D did not state grounds for his objection and the trial court did not rule on it. Brewer v. State, 367 S.W.3d 251 (Tex. Crim. App. 2012).

        D was convicted of DWI. COA reversed and remanded. The State petitioned for review. CCA reversed COA and remanded to COA to consider D’s other claims.

        At D’s trial, the State implied he left his car running because he intended to flee the scene. Defense counsel attempted to elicit testimony from a witness suggesting D kept the engine running to keep the car’s heater functioning. When the State objected, the trial judge said D could testify to that. COA erred in holding D’s complaint that the trial court commented on him testifying was preserved for review under Tex. R. App. P. 33.1(a), because D did not state grounds for his objection and the trial court did not rule on it. D’s failure to request a curative instruction before moving for a mistrial forfeited appellate relief for an error that could have been cured by an instruction. D’s handwritten motion for a mistrial or an instruction to the jury to disregard the court’s comments was made after the State’s final witness testified. This untimely request was insufficient to preserve error.

The evidence was insufficient to find D guilty for endangering her child; no evidence showed that the child was experiencing physical pain or impaired organ function or that D placed the child in imminent danger of bodily injury or physical impairment. Garcia v. State, 367 S.W.3d 683 (Tex. Crim. App. 2012).

        COA acquitted D of her conviction for endangering a child under Tex. Penal Code § 22.041(c) on the basis of insufficient evidence. CCA affirmed; the evidence was insufficient to prove that D’s child sustained bodily injury from being too cold because, although there was evidence that the child was shivering, had blue lips, and wore only a wet diaper, no evidence showed that she was experiencing physical pain or impaired organ function from being exposed to the 58-degree weather while wearing only a wet diaper. CCA also held that the evidence was insufficient to prove that D placed her child in imminent danger of bodily injury or physical impairment by failing to properly clothe the child for the cold weather because it showed only that: (1) the child was outside in almost 60-degree weather for a short amount of time; (2) the child was sheltered in a car by D who sometimes held her close to her body; and (3) the child, though obviously cold, did not cry until she was taken from D’s arms.

The clerk of the Dallas County district courts is ordered to forward all remaining materials which are or should be contained in these habeas corpus records. Ex parte Williams, 366 S.W.3d 714 (Tex.Crim.App. 2012). Ex parte Jackson, 366 S.W.3d 201 (Tex.Crim.App. 2012).

        Co-defendants claim wrongful conviction of aggravated sexual assault. They rely on recent DNA testing that excludes them as contributors of the sperm obtained from the victim. The State filed an amended answer that agreed Ds’ claim was meritorious. According to the State, not only did the DNA testing exonerate Ds; it also identified the true perpetrators. In May 2012, the judge of the convicting court signed Agreed Findings of Fact and Conclusions of Law recommending CCA grant relief on Ds’ habeas corpus writs.

        CCA has not been able to resolve Ds’ writ applications in an expeditious manner because the Dallas County District Clerk failed to forward all the records and materials contemporaneously with the applications. Some supplemental materials, including a sealed exhibit (which should have remained sealed when sent), were forwarded to CCA after CCA received the applications. However, the clerk has still not forwarded all the records and materials that are or should be part of the habeas record, including a transcript of the writ hearing. Although a deputy clerk certified that the May 23, 2012, transmittal included “a true and correct transcript of all the matters and proceedings had and done in said cause,” that was inaccurate. Tex. Code Crim. Proc. art.11.07, § 3(d) requires the clerk of the convicting court to “transmit to the Court of Criminal Appeals, under one cover, the application, any answers filed, any motions filed, transcripts of all depositions and hearings, any affidavits, and any other matters such as official records used by the court in resolving issues of fact.” Especially when the judge of the convicting court has recommended granting relief—and most especially when he recommends relief on the basis of actual innocence—the clerk must expeditiously forward all pertinent materials.

CCA has the exclusive authority to rule on a motion to withdraw in cases docketed under Tex. Code Crim. Proc. art. 11.07, § 5, and counsel must file the motion with CCA. Ex parte De Leon, 366 S.W.3d 203 (Tex.Crim.App. 2012).

        Applicant seeks relief, contending that his guilty pleas were involuntary. In March 2012, CCA filed and set the writ applications for submission and ordered briefing from the parties. In its briefing order, CCA also directed the trial court to determine if D was indigent and wanted counsel. The trial court held a hearing, determined D was indigent, and appointed counsel. After learning that D wished to proceed pro se, counsel filed a motion in the trial court to withdraw. The trial court held a second hearing, heard from D, and orally granted counsel’s motion to withdraw. In May, counsel filed a motion to withdraw in CCA.

        In cases that have been filed and set for submission and docketed pursuant to Tex. Code Crim. Proc. art. 11.07, § 5, CCA had not clearly stated whether it has the exclusive authority to rule on a motion to withdraw. CCA held here that it does have the exclusive authority in cases docketed under § 5, and that counsel must file his motion to withdraw in CCA. Therefore, in these cases, the trial court’s decision to grant counsel’s motion to withdraw had no legal effect. CCA nonetheless takes judicial notice of the proceedings before the trial court and grant counsel’s motion to withdraw filed in CCA.

COA erred by upholding the trial court’s implicit finding that D’s consent to search was voluntary without evaluating all the evidence that was admitted in the record, including a video. Tucker v. State, 369 S.W.3d 179 (Tex.Crim.App. 2012).

        D pleaded nolo contendere to possession of marijuana near a drug-free zone after the trial court denied his motions to suppress evidence. COA affirmed. CCA reversed and remanded. On remand, the appellate court should view the video in the light most favorable to the trial court’s ruling and assume the trial court made implicit findings that support the denial of D’s motion to suppress. If the video evidence did not support the trial court’s conclusion, the appellate court should reverse.

COA erred in holding that two prosecuting authorities could not be the same party for res judicata purposes. Ex parte Doan, 369 S.W.3d 205 (Tex.Crim.App. 2012).

        COA affirmed the trial court’s ruling that res judicata did not bar prosecution for a criminal offense in one county after a prosecutor in another county unsuccessfully tried to revoke D’s community supervision on the ground that he committed the same offense. CCA reversed and remanded for COA to consider the claims briefed by the parties.

        CCA looked at the issues and procedures in the Brazos County revocation hearing and the Travis County criminal pros­ecution and asked whether the government prosecutors had the same interests and authority to litigate a final adjudication. CCA found that the issues and procedures were nearly identical. In both proceedings, prosecutors plead and sought to prove that D committed the same act. Both were criminal, judicial proceedings with nearly identical procedural rules, in which the State was represented by sworn prosecutors. The only difference between the interests of the Brazos County Attorney and the Travis County Attorney was that one sought to prove theft in order to criminally punish D for theft, while the other sought to prove theft in order have D’s criminal punishment from a prior case altered to his detriment. This difference allows the case to escape the narrow grasp of the Double Jeopardy Clause.

D had no Fifth Amendment right to refuse to answer questions that were a condition of his community super­vision related to counts in his indictment for which no plea was entered because double jeopardy precludes use of those facts in future criminal proceedings. Ex parte Dangelo, Nos. PD-0769-11 & PD-0770-11 (Tex.Crim.App. June 20, 2012).

By virtue of Tex. Code Crim. Proc. art. 42.12, §§ 5(a) and 22(c), a trial court has authority to extend the orig­i­nal term of community supervision of an accused who was placed on deferred adjudication for a state-jail felony. Garrett v. State, Nos. PD-0934-11 & PD-1117-11 (Tex.Crim.App. June 20, 2012).

Court of Appeals

Summaries by Chris Cheatham of the Cheatham Law Firm, Dallas

Trial court abused its discretion in allowing officer to testify that D’s prescription medications could not have caused the signs of intoxication exhibited by D, where officer conceded that he was not certified as a drug-recognition expert. Delane v. State, 369 S.W.3d 412 (Tex.App.—Houston [1st Dist] 2012).

        “[Officer] agreed that he did not conduct the standard twelve-step examination that would have been conducted by a drug-recognition expert, and he explained that he did not con­tact such an expert in accord with HPD policy after [D] re­fused a breath test.”

It was not error for the court to deny mistrial during voir dire despite prospective juror’s statement (in presence of the panel) that he read about the case in the newspaper; when asked if he had an opinion of guilt, he answered, “Yes, he was caught red-handed.” Davila v. State, No. 06-11-00091-CR (Tex.App.—Texarkana Feb 7, 2012).

        “The panelist was questioned further at the bench and was excused for cause… The challenged statement, although blunt and unfortunate in this setting, is also a statement of a belief existing as a result of reading the newspaper, rather than a statement of personal knowledge of unlawful activities. As such, it falls squarely within the range of matters that are typically curable[.]”

“We reject [D’s] argument that [officer] needed a reasonable suspicion of criminal activity before he used his spotlight to illuminate [D’s vehicle].” King v. State, No. 14-11-00153-CR (Tex.App.—Houston [14 Dist] Feb 7, 2012).

        “To adopt such a position would be to severely handicap law enforcement during nighttime hours—the time when crime is especially likely to occur.”

Officer ordering D to lie in a prone position while being handcuffed did not transform D’s detention into an arrest. Jensen v. State, No. 02-10-00449-CR (Tex.App.—Fort Worth Feb 16, 2012).

Juvenile deemed not in custody even though officer told juvenile he could not leave because there was no other indicia of arrest. In re C.M., No. 10—10-00421-CV (Tex.App.—Waco Feb 22, 2012).

Search warrant affidavit that failed to characterize confidential informant as reliable deemed defective, despite State’s argument that it is a statement against penal in­terest because the affidavit indicates that informant gave police the statement following Miranda warnings. Davidson v. State, No. 05-10-01264-CR (Tex.App.—Dallas Feb 23, 2012).

            “The affidavit does not include any additional information regarding the reason the confidential informant had been given the Miranda warnings. Instead, the information that the confidential informant was under arrest for suspected drug trafficking was provided by statements made during the hearing on [D’s] motion to suppress. Statements made during a suppression hearing do not factor into the probable cause determination.”

Portable Breath Testers: A Potentially Dangerous Non-Specific and Non-Selective Measure at Roadside

The history of alcoholic beverages can be traced to the Neolithic period (ca. 10,000 B.C.), shortly after the agricultural revolution.1 Even though alcohol’s impairing effects have long been known, its adverse consequences when combined with travel were not publicly condemned until the invention of the steam train locomotive.2 After the First World War, there was a dramatic rise in motor transportation that brought to the public’s attention the role alcohol could play in accidents on the roadways.3 This focus led to an outcry for legislative punishments for “drunk drivers.”4 In 1939, Indiana and Maine became the first states to criminalize Driving Under the Influence.5 These events spotlighted the need for a reliable way for testing a person for intoxication.6

Alcohol most affects the central nervous system.7 Cognitive functioning and psychomotor functioning changes caused by alcohol are rooted in this system.8 Because blood transports alcohol to the brain and affects the central nervous system, blood was first considered as a source for testing for alcohol concentration and in turn what is thought to be a useful convention to try to correlate a numerical value to a diminished ability to operate a motor vehicle safely.9

In 1927, Emil Bogen became the first person to propose using breath analysis as a means to test for blood alcohol content.10 Breath testing soon became more popular than blood testing because of its noninvasive nature, its quick result, and its ease of use by police.11 When the driver of a stopped vehicle is suspected to be under the influence of alcohol, the officers will retrieve the PBT device from their vehicle and have the driver submit to a test. It is the authors’ experience that the average time from stop to arrest is 7 to 9 minutes. Often the person is stopped near the location where they had recently consumed alcohol.

Today, many police officers carry devices for roadside testing of individuals for alcohol12 concentration in their vehicles. The use of these devices is growing in popularity every day across the country, so much so that they are even popularly offered in retail stores. These devices are called “portable breath testers,” “preliminary breath testers,” “pre-arrest breath test” (PBTs), or “passive alcohol sensors” (PASs). For purposes of this article, we will refer singularly to this family of devices as PBTs.

It is because of the increased use and popularity of PBTs that we need to understand how police devices work to determine if they are used correctly or incorrectly.

There are two technologies and two chemical processes of action that govern PBTs: fuel cell devices and Taguchi gas sensor devices.13

Although the fuel cell was invented in the early 1800s, it was not applied to breath alcohol detection until the 1960s.14 A fuel cell, which consists of two platinum-coated conduction electrodes separated by an ion-conducting electrolyte layer, is designed to convert a fuel and an oxidant into direct current. PBTs use alcohol as the fuel and oxygen from the air as the oxidant.15 Alcohol is oxidized into acetic acid inside the fuel cell.16 This oxidation produces two electrons for each molecule of alcohol.17 In turn, these electrons produce an electrical current that is converted to a BAC and reported by the PBT.18

Exhaling human breath is a continuous input into the machine. Yet, any machine can only report a digital signal as reported on the LED screen. This quantitation with an analog-to-digital signal translation is set based upon a dose-response curve constructed by using a wet bath calibrator that uses a partition ratio of 2100:1 derived from assuming that Henry’s Law applies to the lungs. The human lung is not a closed system. Human breath is not exhaled at a constant temperature or flow or pressure. Therefore, Henry’s Law does not apply. Taguchi gas sensors are small porous stannic oxide semiconductor elements. Alcohol in the breath is attracted to the sensor. This attraction increases the sensor’s electrical conductivity. Increasing the sensor’s conductivity increases the electricity flowing through the sensor. Just like with the fuel cell, the greater the electricity flows, the higher the alcohol reading becomes.19 Of the two methods, the fuel cell has all but replaced this device in PBTs, and therefore, we will only discuss that method in any detail.

The Problems of Fuel Cell Devices

1.1. Lack of Specificity20 for Ethanol

As PBTs are used for purportedly forensic purposes, their specificity for ethanol becomes a critical factor. The electrochemical detector is not specific for ethanol.21 Indeed, there is “much evidence to show” they are actually not specific for ethanol.22 Garriott’s Medicolegal Aspects of Alcohol lists methanol, isopropanol, n-propanol, and acetaldehyde as other alcohols that fuel cells can respond to in addition to ethanol.23 Other studies have also found fuel cells reacting to substances other than ethanol.24

A. W. Jones, PhD, a renowned toxicologist, reports that fuel cells will respond to compounds that contain the hydroxyl group, other than ethanol.25 In a later study, Jones again found that the fuel cell is not specific to ethanol and that other alcohols and aldehydes will also oxidize in the fuel cell.26 This is important because it has been found that in the alcohol family there are over 1,500 chemical compounds that are not found in alcoholic beverages.27 Moreover, it is claimed that ketones such as acetone are not detected by the fuel cell as they are with infrared devices.28 Interestingly, there is at least one documented case where a driver has tested over the legal limit for ethanol, due to acetone, when the driver had no ethanol in his system.29 The fuel cell device used on the stop had falsely reported isopropanol as ethanol.30 The individual had latent diabetes and had been fasting, causing acetone to be present in his system, which his body in turn reduced to isopropanol, resulting in a true false positive.31

In addition, there are documented cases of methanol being mistakenly reported as ethanol by fuel cell devices.32 Absent chromatographic separation, which PBTs do not employ, distinguishing ethanol from methanol is an extremely difficult task,33 if not an impossible one. Of import is that when a PBT detects ketones and hydrocarbons, it can mistakenly report them as ethanol and add to the breath alcohol concentration.

Further proof of the apocryphal nature of the manufacturers’ claims that these devices will not react to anything other than alcohol is documented on YouTube by one of the authors of this paper, Justin J. McShane, F-AIC, JD. The recording shows a .046 g/210L breath reading on an Intoximeters FST PBT, while free of ethanol and eating ordinary white bread.34 In addition to white bread, there are other cases of a fuel cell device falsely reporting milk, soda pop, and cigarette smoke as ethanol.35 Toothpaste (specifically Sensodyne) that contains Sorbitol, a type of alcohol, registers as ethanol on a fuel cell device.36 This has been independently verified in testing by the Boston Herald.37

Another source of Ethanol is by sugar fermentation. This process has been found to occur naturally in the human body when yeast from breads and carbohydrates are present.38 Informal tests at DWI/DUI seminars across the United States have shown results over the legal limit (0.08 g/210L of breath) merely by chewing pizza, bread, or hot dog buns.39 Common foods and drinks have even been found to contain alcohol. Diet 7-Up contains some small amounts of ethanol, and high-energy drinks such as Monster and 180 Energy contain several times more ethanol than Diet 7-Up.40 Breads, pizza, English muffins, wheat bread, and apple walnut rolls have all been found to contain both yeast and ethanol.41 See the endnotes for tables containing more detailed information about the alcohol content of various soft drinks and baked goods, and other beverages.42

1.2. Residual Mouth Alcohol (RMA)

As discussed earlier, alcohol only affects the body once it is transported to the brain by the blood. The PBT and its method assume that the breath sample and source of ethanol comes only from the deep lung or alveolar air.43 A second assumption is that there is no residual mouth alcohol (RMA). As such, we citizens interested in science must be concerned with the validity of these assumptions when testing breath samples. For there to be any measure of the true value, these key assumptions are required to be accurate.44

With the above in mind, it is well known that after drinking an alcoholic beverage, the body retains alcohol in the mucosal lining of the mouth for some time.45 When breath makes contact with mouth alcohol, then the alcohol reading will be falsely ele­vated,46 fantastically so at times. Sources of mouth alcohol include recent ingestion of an alcoholic drink, regurgitation of stomach contents, eructation of stomach gases, Gastroesophageal Reflux (GER), Gastroesophageal Reflux Disease (GERD), Laryngoesophageal Reflux (LER), Laryngopharyngeal Reflux (LPR), and use of breath freshening items.47

PBTs are not designed with RMA safeguards. They do not contain slope detectors48 that would help in detecting RMA.49 Most importantly, when RMA is present, it only works one way: against the defendant, creating a falsely high ethanol content reading.50 Therefore, without these protections, PBTs have no way of distinguishing alveolar air from an inaccurate false high reading caused by any other source. One study found that it might take up to 19 minutes for RMA dissipation.51 The same study cited another source that stood for the possibility of effects lasting for up to one hour after consumption.52

This is why deprivation/observation periods are mandated in full Evidentiary Breath Testing (EBT) schemes like the Intoxilyzer 5000 EN. Yet, at roadside, there is no such requirement. Therefore, it is best practice that a suitable deprivation/observation period be conducted at roadside to ensure the subject’s sample is only deep lung air.53 Further, it would be best practice for the officer to conduct a replicate analysis after another deprivation period to further give confidence to a PBT estimate.54

1.3. Other Factors

Carry Over: Carry over is a potential problem where a portion of a previous breath specimen remains in the PBT and is added to a subsequent estimate. As the National Highway Traffic Safety Administration has cautioned, if the air temperature is low enough, it is possible for carry over to occur in that one person’s sample remains in the PBT and carries over to the next person’s test.55 It is not difficult to see the problems this could cause when the PBT is being used on many drivers, one after another. An example of where this could be a problem is in a roadblock situation where multiple drivers are being tested or in an underage drinking event.

Radio Frequency Interference: PBTs do not have detectors to guard against interference caused by radio frequencies (RFI).56 Here, it is important to note that in Texas, EBT devices, like the Intoxilyzer 5000 EN, are required to have RFI detectors by the Texas Department of Public Safety Breath Alcohol Testing program. Absent an RFI detector, an officer will not know when RFI interference occurs because electric fields are not detectable by the five human senses.57 One manufacturer even cautions officers to avoid “environments with high levels of radio interference or magnetic fields.”58 For the patrol officer, there are plenty of sources of RFI—e.g., hand-held and vehicle mounted radio transmitters, cell phones, CB radios, light bars, in-car video, computer terminals with internet link inside the patrol vehicle, and police radar.59

Independent Sources of Variation: These include the traditional metrological concerns of calibration and bias of the device itself, and variations in taking of the breath sample: temperature fluctuations, physiological differences of individuals, and phase of ethanol metabolism to name a few.60 Most police agencies do not perform routine or preventive calibration or verification checks for these PBTs during the entire period of their deployment in the field. If the police agencies do perform calibration or verification checks, the efforts are typically not validated or well designed.

2. Texas Law

Texas law requires that analysis of a breath sample, to determine a BAC, must be performed according to methods approved by the Texas Department of Public Safety (DPS). Texas Administrative Code establishes the Office of Scientific Director to administer the regulations and qualifications for breath testing and for use as evidence in court cases. Accordingly, the state director evaluates breath test instruments to determine which instruments are approved devices for forensic breath alcohol testing and for use as evidence in court cases. Devices that meet the state director’s approval are placed on a list of approved instruments, which is maintained by DPS.61 This list contains all breath test instruments approved and certified for breath testing in the state in compliance with rules of the Texas Breath Alcohol Testing Regulations.62

There are no approved PBT devices on the DPS list.63 DPS also maintains a list of approved reference sample devices. Again, there are no approved reference sample devices for any PBT device.64 Therefore, PBT results are not admissible to establish any level of impairment or BAC.

Furthermore, attorneys should be familiar with the following Texas cases: Hartman v. State,65 Fernandez v. State,66 and Kelly v. State.67 In Kelly the court adopted a two-prong test for the admissibility of scientific evidence. The court must first determine whether the scientific evidence is sufficiently reliable and then whether it is relevant.68 The court in Kelly adopted three “common sense” criteria that must be met before scientific evidence can be deemed reliable:

a) the underlying scientific theory must be valid;
b) the technique applying the theory must be valid; and
c) the technique must have been properly applied on the occasion in question.69

Hartman recognized the Daubert70 and Kelly test and applied or extended it to all forms of scientific evidence, including breath testing.71

In Fernandez, a wrongly decided case, the court held that PBTs are not certified by DPS, and therefore are only admissible as another form of a field sobriety test and are not admissible for quantitative purposes.72 In other words, they cannot be used to report a specific BAC level, even though many of them will report an amount. Interestingly, the court ignored the Kelly and Hartman requirements. Following the doctrine of stare decisis, Fernandez should have held that PBT evidence is not admissible where the state fails to meet the requirements set forth in Kelly and reaffirmed and further clarified by Hartman.

3. Conclusion

In today’s times, DWI/DUI enforcement is more organized and focused than ever. Everywhere you turn there is a public service announcement promoting strict DWI/DUI enforcement. Whether it is the “Over the Limit, Under Arrest” or the “Drink, Drive, Go to Jail” campaigns or another slogan from a powerful lobbyist and court-watching organization like MADD, DWI/DUI enforcement is serious business. Encouragement and incentives for officers to make DWI/DUI arrests come with serious consequences: false arrests and non-scientific shortcuts. The limitations of commonly used PBTs play directly into the confirmation bias and cognitive bias that exists in DWI/DUI enforcement. Accordingly, it is of utmost importance that we understand and appreciate what PBTs are, how they work, and what they can and cannot do. For when mistakes are made in this field and someone is arrested on an incorrect and false belief they were driving under the influence, it can have large detrimental effects on the person, their family, freedom, liberties, and career that last forever. This, of course, is a greater crime than DWI itself, because we Americans pride ourselves on protecting the innocent. Knowledge and appreciation of the PBT’s limitations must remain constant in order to prevent wrongful arrests and convictions.

Notes

1. Bill H. McAnalley, PhD, & Erik H. Aguayo, BS, Chemistry of Alcoholic Beverages, in Medicolegal Aspects of Alcohol 1 (James C. Garriott ed., 5th. ed., Lawyers & Judges Publishing Company, Inc., 2008).

2. Gary W. Kunsman, Human Performance Toxicology, in Principles of Forensic Toxicology 16–19 (Barry Levine ed., 3d ed., AACCPress, 2009).

3. A. W. Jones, Physiological Aspects of Breath-Alcohol Measurement, Vol. 6 No. 2, Alcohol, Drugs and Driving 1–25 (1990).

4. Id.

5. Gary W. Kunsman, Human Performance Toxicology, in Principles of Forensic Toxicology 16–19 (Barry Levine ed., 3d ed., AACCPress, 2009).

6. A. W. Jones, Physiological Aspects of Breath-Alcohol Measurement, Vol. 6 No. 2 Alcohol, Drugs and Driving 1–25 (1990).

7. James C. Garriott, PhD, & Joseph E. Manno, PhD, Pharmacology and Toxicology of Ethyl Alcohol, in Medicolegal Aspects of Alcohol 29 (James C. Garriott ed., 5th. ed., Lawyers & Judges Publishing Company, Inc., 2008).

8. Id.

9. A. W. Jones, Physiological Aspects of Breath-Alcohol Measurement, Vol. 6 No. 2 Alcohol, Drugs and Driving 1–25 (1990).

10. Id.

11. H. W. Bay, K. F. Blurton, H. C. Lieb, & H. G. Oswin, Electrochemical Measurements of Blood Alcohol Levels, Vol. 240 Issue 5375 Nature 52–53 (1972).

12. The term “alcohol” in the criminal justice system is usually assumed to mean the chemical compound “ethyl alcohol” or “ethanol” for it is ethanol that is found in beer, wine, and spirits.

13. Donald J. Ramsell, Preliminary Breath Screening Devices and Their Limitations, in Understanding DUI Scientific Evidence 187–222 (2d ed., Aspatore, 2009).

14. Id.

15. Patrick Harding, BS, & J. Robert Zettl, BS, MPA, Methods for Breath Analysis, in Medicolegal Aspects of Alcohol 241(James C. Garriott ed., 5th. ed., Lawyers & Judges Publishing Company, Inc., 2008).

16. Id.

17. Id.

18. Intoximeters Inc., Fuel Cell Technology, http://www.intox.com/t-FuelCell.aspx (accessed Jan. 23, 2012).

19. Lawrence Taylor & Steven Oberman, Drunk Driving Defense, 300–304 (6th ed., Aspen Publishers 2006).

20. The International Union of Pure and Applied Chemistry (IUPAC) describes the relationship between Specificity and Selectivity as follows: “A specific reaction or test is one that occurs only with the substance of interest, while a selective reaction or test is one that can occur with other substances but exhibits a degree of preference for the substance of interest. Few reactions are specific, but many ‘exhibit selectivity.’”

21. A. W. Jones, Electrochemical measurement of breath-alcohol concentration: precision and accuracy in relation to blood levels, Vol. 146 Issues 2–3 Clinica Chimica Acta Vol 175–183 (1985); Donald J. Ramsell, Preliminary Breath Screening Devices and Their Limitations, in Understanding DUI Scientific Evidence 187–222 (2d ed., Aspatore, 2009); Thomas E. Workman Jr., Violating the “Alcohol-Free” Probation Requirement—Learning from the Galluccio Matter, Vol. 12 No. 3 Mass. Bar Assoc. Section Review 4–7 (2010).

22. James Nesci, Esq., Defense of Driving Under the Influence Cases, in Medicolegal Aspects of Alcohol 401–408 (James C. Garriott ed., 5th. ed., Lawyers & Judges Publishing Company, Inc., 2008).

23. Patrick Harding, BS, & J. Robert Zettl, BS, MPA, Methods for Breath Analysis, in Medicolegal Aspects of Alcohol 241 (James C. Garriott ed., 5th. ed., Lawyers & Judges Publishing Company, Inc., 2008).

24. A. W. Jones & L. Goldberg, Evaluation of breath alcohol Instruments I. In Vitro Experiments with Alcolmeter Pocket Model, 12 Forensic Science International 1–9 (1978).

25. Id.

26. A. W. Jones, Electrochemical measurement of breath-alcohol concentration: precision and accuracy in relation to blood levels, Vol. 146 Issues 2–3 Clinica Chimica Acta Vol 175–183 (1985).

27. Thomas E. Workman Jr., Violating the “Alcohol-Free” Probation Requirement—Learning from the Galluccio Matter, Vol. 12 No. 3 Mass. Bar Assoc. Section Review 4–7 (2010).

28. A. W. Jones, Electrochemical measurement of breath-alcohol concentration: precision and accuracy in relation to blood levels, Vol. 146 Issues 2–3 Clinica Chimica Acta Vol 175–183 (1985).

29. A. W. Jones, PhD, D.Sc., & L. Andersson, B.Sc., Biotransformation of Acetone to Isopropanol Observed in a Motorist Involved in a Sobriety Check, Vol. 40 No. 4 Journal of Forensic Sciences 686–687 (1995).

30. Id.

31. Id.

32. Alan Wayne Jones, PhD, Observations on the Specificity of Breath-Alcohol Analyzers Used for Clinical and Medicolegal Purposes, Vol. 34 No. 4 Journal of Forensic Sciences 842–47 (1989).

33. Alan Wayne Jones, PhD, Observations on the Specificity of Breath-Alcohol Analyzers Used for Clinical and Medicolegal Purposes, Vol. 34 No. 4 Journal of Forensic Sciences 842–47 (1989).

34. The McShane Firm, LLC, Creating a False PBT Positive with Ordinary Bread, http://www.youtube.com/watch?v=7PrC5gQWLqE (accessed Jan. 23, 2012).

35. Donald J. Ramsell, Preliminary Breath Screening Devices and Their Limitations, in Understanding DUI Scientific Evidence 187–222 (2d ed., Aspatore, 2009).

36. Thomas E. Workman Jr., Violating the “Alcohol-Free” Probation Requirement—Learning from the Galluccio Matter, Vol. 12 No. 3 Mass. Bar Assoc. Section Review 4–7 (2010).

37. Id.

38. Id.

39. Id.

40. Id.

41. Id.

42.

43. A. W. Jones, PhD, D.Sc., Biochemical and Physiological Research on the Disposition and Fate of Ethanol in the Body, in Medicolegal Aspects of Alcohol115–119 (James C. Garriott ed., 5th. ed., Lawyers & Judges Publishing Company, Inc., 2008).

44. Lawrence Taylor & Steven Oberman, Drunk Driving Defense 303 (6th ed., Aspen Publishers 2006).

45. Barry K. Logan & Sandra Distefano, Ethanol Content of Various Foods and Soft Drinks and their Potential for Interference with a Breath-Alcohol Test, Vol. 22 Journal of Analytical Toxicology (1998).

46. Dr. Donald C. Denney & Dr. Paul M. Williams, Mouth Alcohol: Some Theoretical and Practical Considerations, Alcohol, drugs and traffic safety T86 (1987).

47. See Dr. Donald C. Denney & Dr. Paul M. Williams, Mouth Alcohol: Some Theoretical and Practical Considerations, Alcohol, drugs and traffic safety T86 (1987); Rod G. Gullberg, The Elimination Rate of Mouth Alcohol: Mathematical Modeling and Implications in Breath Alcohol Analysis, Vol. 37 No. 5 Journal of Forensic Sciences, JFSCA, 1363–1372 (1992).

48. A “Slope Detector” is a script written into the source code that evaluates a breath sample as it enters the machine. The script monitors the slope of the graph of ethanol in the subject’s sample. If the slope does not remain within the parameters programmed into the code, then the machine is supposed to flag the sample as RMA and terminate the test.

49. Donald J. Ramsell, Preliminary Breath Screening Devices and Their Limitations, in Understanding DUI Scientific Evidence 187–222 (2d ed., Aspatore, 2009).

50. James Nesci, Esq. Defense of Driving Under the Influence Cases, in Medicolegal Aspects of Alcohol 401 (James C. Garriott ed., 5th. ed., Lawyers & Judges Publishing Company, Inc., 2008).

51. Glenn R. Caddy, Mark B. Sobell, & Linda C. Sobell, Alcohol breath tests: Criterion times for avoiding contamination by “mouth alcohol,” Vol 10(5) Behavior Research Methods & Instrumentation 814–18 (1978).

52. Id.

53. Rod G. Gullberg, The Elimination Rate of Mouth Alcohol: Mathematical Modeling and Implications in Breath Alcohol Analysis, Vol. 37 No. 5 Journal of Forensic Sciences 1363–1372 (1992).

54. Id.

55. Special Testing for Possible Carry Over Effects Using Intoximeters Inc. Alco Sensor IV at 10 Degrees Centigrade, DOT HS 809 424 (U.S. Dept. of Transp., N.H.T.S.A., 2002); James Nesci, Esq. Defense of Driving Under the Influence Cases, in Medicolegal Aspects of Alcohol 401–405 (James C. Garriott ed., 5th. ed., Lawyers & Judges Publishing Company, Inc., 2008).

56. James Nesci, Esq. Defense of Driving Under the Influence Cases, in Medicolegal Aspects of Alcohol 401–405 (James C. Garriott ed., 5th. ed., Lawyers & Judges Publishing Company, Inc., 2008).

57. Effects of Electromagnetic Fields on Evidential Breath Testers, Rpt. (Natl. Bureau of Standards, Electromagnetic Fields Division).

58. Intoximeters, Inc. Alco-Sensor FST Operators Manual (June 2007).

59. See Intoximeters, Inc. Alco-Sensor FST Operators Manual (June 2007); Alcohol breath analyzers and radiofrequency interferences, 16 Int. J. Bio-Medical Computing 3–8 (1985).

60. A. W. Jones, Evaluation of Breath Alcohol Instruments II. In Vivo Experiments with Alcolmeter Pocket Model, 12 Forensic Science International 11–23 (1978).

61. Texas Department of Public Safety, Breath Alcohol Testing Overview, http://www.txdps.state.tx.us/CrimeLaboratory/BAT/index.htm (accessed Jan. 24, 2012).

62. Texas Department of Public Safety Breath Alcohol Testing Bureau, Certified Breath Test Instruments Revised February 23, 2007, ftp://ftp.txdps.state.tx.us/breathtest/Certs_intox/ApprovedList_BreathTestInstruments.pdf (accessed Jan. 24, 2012).

63. Id.

64. Texas Department of Public Safety Breath Alcohol Laboratory, Approved Reference Sample Device List Revised June 10, 2010, ftp://ftp.txdps.state.tx.us/breathtest/Certs_intox/ApprovedList_ReferenceSampleDevices.pdf (accessed Jan. 24, 2012).

65. 946 S.W.2d 60 (Tex. Crim. App. 1997) (en banc).

66. 915 S.W.2d 572 (Tex. App. San Antonio 1996).

67. 824 S.W.2d 568 (Tex. Crim App. 1992) (en banc).

68. Kelly at 572.

69. Kelly at 573.

70. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

71. Hartman at 60.

72. Fernandez at 572.

Representing the Traumatized Client: the Case, the Client, and You

Attorneys “often see people when they’re at their worst. Once they’re OK, you don’t see them anymore.”1 Interacting with some clients may be exceptionally difficult or frustrating because of the client’s behavior. Although you are just helping them with a specific legal matter, some clients are unable to manage their actions or emotions. One of the most difficult and draining parts of legal work is “the experience of having to deal on a day-to-day basis with the expectations and demands of clients who are highly emotional and, much of the time, really out of line because they don’t know how not to be.”2 For example, the client who calls your office every hour to see if there is any “news” on their case, but then doesn’t show up for court dates and other appointments to assist with the case, may be reacting to trauma in their current situation or past. The client with a substance abuse problem who stays clean in treatment, and then immediately relapses after and gets revoked on probation, may have unaddressed trauma that needs to be dealt with in order to heal long term. Client behavior can lead to feelings of frustration and powerlessness for even the most well-intentioned attorneys.

In addition to dealing with interpersonal relationships with challenging clients, lawyers also experience personal and institutional pressure to produce results that many times are outside of their control. “For lawyers, there is the additional and profoundly debilitating expectation of the ‘perfectionist dragon’: It’s as if the entire legal world is haunted by two dragons. One breathes fire and warns ‘Hurry up! There’s always more to do.’ While the other has an icy, paralyzing breath that whispers snidely, ‘Be careful. Everything you do could be wrong.’”3 Attorneys are caught in the paradox of practicing a socially prominent profession in which they have very little direct control over the outcome of their work.

The success and well-being of attorneys, clients, and their cases depends in part on the attorneys’ ability to skillfully negotiate the pressures on themselves and their clients. Trauma can be so damaging to clients that it negatively impacts their relationship with the attorney. In turn, the attorney can feel worn down by the pressures of working with clients with challenging life situations and behaviors. Actively addressing the negative influence of trauma creates a space for healthy and constructive legal practice.

Things Are Not as They Seem: Trauma

“Earth-shattering,” “life-changing,” “crushing.” Traumatic experiences are frequent. Trauma is the lasting effect from experiences that alter an individual’s schematic understanding of the way the world is organized. “Trauma is the harm produced by a traumatic experience. Traumatic experiences shake the foundations of our beliefs about safety, and shatter our assumptions of trust.”4 The lasting effect of these changes varies by person and situation. One of the key components of trauma is a persistent feeling of powerlessness, which can be manifested in a myriad of ways.5 This powerlessness stems from the experience of having factors change outside of your control.

There is a high likelihood that many of your clients are experiencing trauma that predates your legal interactions with them, or is the result of it. “As long as attorneys practice criminal and family law, they will serve clients with PTSD. Common issues within these two practice areas can aggravate the client’s symptoms, trigger anxious responses, or produce other obstacles in client representation.”6 For attorneys who are unaware of what is happening psychologically with their clients, this can be extremely frustrating and confusing. In addition, it may be difficult to immediately label your clients as suffering from trauma because the source of the trauma is not obvious, or “common sense.” For example, litigation itself can produce trauma, and both victims and perpetrators of crime can suffer from the same level of trauma.7 In the meantime, your client is engaging in behavior that may seem bizarre or frustrating.

The difficulty in identifying trauma is exacerbated by how differently it manifests from one person to the next. “Some clients can be very emotional, while others may relate horrific experiences with no emotion whatsoever. Many traumatized clients avoid discussing traumatic events at all costs . . . Clients who have experienced trauma also have difficulty during trial preparation, exhibiting patterns of forgetfulness and avoidance. For example, the client may have difficulty remembering specific facts or incidents—either because he has blocked the events or because discussing the events forces him to relive the traumatic experiences, which the client wants to avoid.”8 Working with clients whose behavior is difficult is made that much harder if their underlying trauma is not recognized. You may feel that their behavior is personally directed at you, or that they have personality problems or flaws.

You may not know at first that your client suffered from a traumatic experience. Developing an attorney-client relationship with traumatized clients may begin even before you know their background and personality. Approaching new clients with the expectation that they are a potentially traumatized person may reduce your frustration when a client acts in unpredictable and upsetting ways. While it is not possible to change clients’ past, the way in which you interact with them can help them reclaim a positive sense of agency and self.

Empathetic Engagement

Once you know that clients suffer from trauma, there are a number of things you can do to work effectively with them. It is important that the client feel emotionally secure when interacting with you. That may involve engaging with the client’s feelings in an empathetic manner. “To ignore fear, anxiety, sadness, denial, or any other psychological states of mind is to leave the client in a condition that makes rational informed decision-making difficult, if not impossible.”9 This engagement with the client’s feelings is not focused on in-depth analysis and processing, as in a therapeutic relationship with a mental health care provider. Rather, the role of the attorney in this case is to acknowledge the existence and validity of the client’s feelings.

Avoid Re-Traumatization

There are a number of strategies to avoid re-traumatizing your client. Be aware that retelling the events of a crime may be equally traumatizing for offenders as for victims.10 Having to relive traumatic events through multiple narrative accounts can re-traumatize clients. “To avoid or reduce retrauma, try to reverse the dynamics of the trauma in your work with your client . . . It may be as simple as giving the client power to make some decisions in the representation. Tell her you are going to talk about this matter and you know how difficult it is. Ask her when she would like to talk about it. Or, when she decides she is ready to talk about it, offer breaks to give her the opportunity to decide how she tells you about it, and how long the sessions are . . . [L]isten deeply, use her own words back, try to authentically understand her story.”11 The goal of this strategy is to allow clients to recount the traumatic event under circumstances in which they have personal agency.

Impact of Client Trauma on the Attorney/Counselor at Law

Until the legal profession becomes automated, attorneys will be as human as the clients they represent. The traumatic events that are experienced by clients affect the attorneys that they interact with. It is not a matter of whether traumatized clients affect the attorneys they work with but how. The parameters of this interaction are largely governed by the level of the lawyer’s awareness of trauma and its effects.

Legal professionals are affected by their clients’ trauma at higher rates than other service providers. “Lawyers are trained to assume that the only things relevant to their relationships with their clients are how well they know the law and how well they can read and apply it.”12 As a result, attorneys are less equipped to deal with the results of interacting with traumatized clients. In one study, attorneys who were recruited from domestic violence and family law and legal aid criminal services experienced more symptoms of secondary trauma and burnout compared with comparison groups of mental health providers and social workers.13 Though the content of the work that attorneys do with traumatized clients may be different than that of mental health providers, its effects are the same or worse on their psychological well-being.

The ways in which working with traumatized clients affects professionals is alternatively named “vicarious trauma,” “secondary trauma symptoms,” compassion fatigue, and empathetic strain.14 It is also defined as counter-transference in the psychological sphere.15 “In short, vicarious traumatization refers to the experience of a professional developing and reporting personal symptoms of trauma as a result of responding to traumatized clients. For some, simply learning about a traumatic event carries potential for vicarious traumatization.”16 Symptoms of vicarious trauma are generally emotional in nature, and range from “a decreased sense of energy, no time for one’s self, increased disconnection from loved ones, social withdrawal, and an increased sensitivity to violence, threat, or fear. The opposite symptoms may also appear, manifested as decreased sensitivity, cynicism, and a generalized sense of despair and hopelessness.”17 Just as the effects of trauma vary by individual, vicarious trauma has myriad manifestations.

A number of intersecting factors make attorneys susceptible to vicarious trauma, including personality, level of training, work environment, and supervision. Empathy, crucial to effectively working with clients, correlates to higher susceptibility for vicarious trauma. “‘It has been recognized that workers [including attorneys] who have the greatest capacity for feeling and expressing empathy are at the greatest risk from experiencing secondary traumatization’ (Figley, 1995).”18 Preventive factors such as professional awareness and support are often missing from legal workplaces. “Levin noted the lawyers encountered more traumatized clients than other professionals did, and they often lacked knowledge about trauma and its effects on both clients and themselves. Lawyers said that their supervisors weren’t knowledgeable about trauma, and that they had no regular forums to talk about their feelings. These factors contributed to secondary trauma.”19

The effects of working in the legal profession take a disproportionate toll on those who practice law. “Lawyers experience alcoholism, depression, and other forms of psychological distress and dissatisfaction at a rate of about twenty percent, about twice the amount found in the general population.”20 Part of this may be the result of working with traumatized clients without necessary awareness and prevention. The frustration and feelings of powerlessness felt by many attorneys may in fact be vicarious trauma that mirrors their clients’ own mental and emotional state.

Strategies in Addressing Trauma in Work

Emotional, interpersonal interactions are the cornerstone of much of legal work. Working to stay emotionally healthy is one of the most important ways to ensure a successful outcome for yourself and your client. There are a number of techniques used in different fields that are targeted specifically for the enhancement of practitioner well being.

Many of the techniques advocated in preventing and treating vicarious trauma overlap with stress management techniques. “For lawyers who are regularly through their client work exposed to trauma, there are overlaps between vicarious trauma management and stress management. Many of the things that people recovering from or trying to manage vicarious trauma are asked to do is to start with the very basic parts of your daily life: food, sleep, exercise, water, breathing. These are things that many helping professionals don’t attend to in themselves, as sensitive as they are to those needs in their clients.”21

Leading a full and satisfying life is the most effective approach legal practitioners can take to effectively serve clients. “To protect themselves from secondary trauma, carers [including attorneys] should aim to have a balanced life in which their own needs are taken into account alongside the needs of work, home, family, and friends (Stamm, 1995). Carers [including attorneys] have found that discussing cases with colleagues, attending training workshops, spending time with family or friends, having holidays, socializing, exercising, limiting workload, developing spiritual life, and supervision were most helpful (Pearlman, 1999).”22 Though it may seem counterintuitive, prioritizing your emotional and mental health benefits not just yourself but also the clients that you interact with.

Spiritual Practice

A spiritual life in general, and mindfulness meditation in particular, are methods for enhancing clarity and increasing general relaxation for practitioners. “Specifically, commentators have found that spirituality is important for preparing a lawyer’s mental state for legal work, maintaining a lawyer’s mental health, facilitating a lawyer’s professional choices, and influencing the way a lawyer interacts with clients.”23

Balanced Caseload

Striving for a balanced caseload is another strategy to prevent vicarious trauma, burnout, and other occupational hazards. “One of the most important recommendations for preventing vicarious trauma is balance: managing one’s caseload to include a diversity of clients (e.g., non-traumatized clients).”24 Working with a range of clients ensures that attorneys are exposed to a broader range of healthier behavior.

Professional Boundaries

Professional boundaries set by the legal professional prevent practitioners from vicariously taking on the experience of their clients. “From structural boundaries of space and time (not giving out home phone numbers, considering carefully where one will meet clients, etc.) to the more permeable boundary of emotional distance and connection, attorneys… must strive to protect themselves from making their client’s problem their own.”25 This is even more important in cases where the attorney has shared a similar type of personal traumatic experience.

Institutional Environment

Supervision, support, and institutional acceptance of an attorney’s needs are crucial in preventing burnout and vicarious trauma, and addressing it when it does occur. “The incidence of secondary trauma can be reduced when the carer [including the attorney] has access to professional support (Salston & Figley, 2003). The importance of regular professional supervision has been identified as essential (Cerney, 1995; McCann & Pearlman, 1990).”26

Without addressing the way in which trauma affects legal work, both clients and attorneys suffer. “At worst professionals may become perpetrators of psychological or economic violence upon clients who may be too ignorant, confused, impoverished, or exhausted to protect themselves. In turn, professionals themselves may suffer a range of physical, psychological, or legal assaults, whose scope is limited mostly by the creativity, scruples, and resources of the individuals launching the attack.”27 “Success” in legal terms can extend beyond court decisions and settlement to the well-being of clients and attorneys.

Conclusion

In the context of the legal profession, trauma is a code word for the emotional life of the client. Though not a formalized part of the legal process, the personal experiences of those most directly affected by the legal system infuse the entire system. Without real people with a huge range of emotional and psychic interests, the legal system would not exist. Ignoring the emotional aspect of legal practice is not only a disservice to clients and attorneys but may be dangerous to both.

A constructive approach to dealing with traumatized clients must simultaneously take into account the needs of clients and attorneys. Surprisingly, the type of relationship that is beneficial to the client is the same type that is beneficial to the attorney as well. “Law as a healing profession has great transformational potential. It could begin to address the ‘tripartite crisis’ in the legal profession of deprofessionalism, low public opinion of lawyers, and lawyer distress. It could make the legal system a more inspiring, humane, and hospitable place for clients, lawyers, judges, and indeed society as a whole.”28

Traumatic experience is a terrifying reality for many people. The resulting trauma and powerlessness can make it very difficult to function, relate to other people, and feel whole. Many times clients’ experience in the legal system compounds those feelings of powerlessness, leading to difficult behavior that negatively affects their relationship with their attorneys. With awareness, attorneys can become more effective at protecting themselves and their clients from the negative effects of trauma. The legal relationship can even encourage growth and healing for clients. “There is an emerging body of evidence to show that where an individual has been able to understand and make sense of the traumatic exposure, post-trauma growth is possible (Tedeschi & Calhoun, 1995).”29 The transformative potential of trauma means that instead of being daily witnesses to crushing powerlessness, attorneys can be inspired by their clients’ growth.

Notes

1. Greenwood, Arin. “Ripple Effects: Education and Self-Care Can Help Lawyers Avoid Internalizing Client Trauma.” ABA Journal, January 2006, p. 20, quoting Dr. Andrew Levin.

2. Fines, Barbara Glesner & Madsen, Cathy. “Caring Too Little, Caring Too Much: Competence and the Family Law Attorney.” UMKC Law Review. Summer, 2007, p. 11.

3. Art of Lawyering, p. 188.

4. Parker, Lynette M. “Increasing Law Students’ Effectiveness When Representing Traumatized Clients: A Case Study of the Katharine & George Alexander Community Law Center.” Georgetown Immigration Law Journal. Winter, 2007, p. 3.

5. Debra Jenkins. “Reducing Trauma for Children Involved in Dependency and Criminal Court.” Child Law Practice. Mar. 2008, Vol. 27 Issue 1, p 1–10, p. 1.

6. Seamore, Captain Evan R. “Attorneys as First Responders: Recognizing the Destructive Nature of Posttraumatic Stress Disorder on the Combat Veteran’s Legal Decision-Making Process.” Military Law Review, Winter 2009, p. 5.

7. Id.

8. Parker, p. 3.

9. Fines et al., p. 7.

10. Seamore, p. 163.

11. Panel Discussion. “Stress, Burnout, Vicarious Trauma, and Other Emotional Realities in the Lawyer/Client Relationship.” Touro Law Review 2004. 19 Touro L. Rev. 847, quoting Professor Jean Koh Peters, pp. 4–5.

12. Id., p. 1.

13. Greenwood, p. 1.

14. Fines et al., p. 9.

15. Teherani, Noreen. “The cost of caring—the impact of secondary trauma on assumptions, values and beliefs.” Counselling Psychology Quarterly, December 2007; 20 (4); 325–339. p. 327.

16. Fines et al., p. 9.

17. Id., p. 10.

18. Teherani, p. 328.

19. Greenwood, p. 1.

20. Daicoff, Susan. “Law as a Healing Profession: The “Comprehensive Law Movement.” Pepperdine Dispute Resolution Law Journal. 2006. 6 Pepp.Disp.Resol.L.J.1, p. 23.

21. Panel Discussion. “Stress, Burnout, Vicarious Trauma, and other Emotional Realities in the Lawyer/Client Relationship.” Touro Law Review 2004. 19 Touro L. Rev. 847, quoting Professor Jean Koh Peters, pp. 4–5. Quoting Professor Peters, p. 3.

22. Teherani, p. 329.

23. Daicoff, p. 21.

24. Fines et al., p. 12

25. Id., p. 13.

26. Teherani, p. 329.

27. Fines et al., p. 1.

28. Daicoff, p. 1.

29. Tehrani, p. 326.

September 2012 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
21 | Portable Breath Testers: A Potentially Dangerous Non-Specific and Non-Selective Measure at Roadside – By Justin J. McShane & Josh D. Lee
28 | Representing the Traumatized Client: the Case, the Client, and You – By Abby Anna Batko-Taylor & Melissa L. Shearer
40 | Defendant’s Motion for Downward Departure, or, Alternatively, for Sentence Below Minimum Guideline Imprisonment Range Based on Military Service – By John W. Stickels

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

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

President’s Message: “Selling Out” – By Lydia Clay-Jackson

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Our voices carry a heavy responsibility, as well as a solemn duty. We are the “VOICE” for the defense. The words we speak have lasting effect—not only on our present clients but also for those who will come after. As wordsmiths, we are successful by the manner in which we use our words.

My bar card was yet warm from the printing press when I was appointed to represent a young man on an MRP. Speaking with him, back in the holdover, I overheard another lawyer speaking with his client. He had a look on his face, one I have often seen him wear to this day, and he said, “Do you think I am going to sell you out like one of those court-appointed lawyers?”

His tone, loud enough for all in the holdover including my client to hear, made me pause. Did the lawyer really mean that only court-appointed lawyers would “sell out” their clients? It has not been my experience that only clients with court-appointed lawyers receive offers they do not like. All of us at one time have had to relay to our clients information they did not want to hear. Were we “selling them out”?

Implying to a client that court-appointed lawyers perform in a subpar manner does all of us an injustice. This is true whether one only represents those appointed by the courts, or whether one has never once accepted an appointment from a judge. A good criminal defense lawyer has no need to demean another lawyer to illustrate a point or gain an advantage.

Also, demeaning a client to a prosecutor by our words—i.e., “My client is a numbskull”; “My client is an idiot”; “Don’t blame me because I represent the idiot”—will not enhance our position in negotiations or in securing other clients. Prosecutors speak to one another and often use the words we speak about our clients to describe us.

I have yet to see in the many cast images of Themis a human bone. She stands with her foot upon a snake that lies upon a book. The snake, by analogy, represents evil and injustice, the book represents the written law of man. She is our proud symbol, not because of who she conquers but what she conquers. Her sword and words bring about the demise of the snake.

By the use of our words, we make our reputations. Whether the words are spoken by a retained lawyer, a public defender, or a court-appointed lawyer makes no difference in the end. We all rejoice with one another over two-word verdicts. When this happens we do not put disclaimers on the lawyer by making snide remarks saying, “That retained lawyer really pulled it off,” or, “That court-appointed lawyer/public defender lucked out.” Why then do we act so differently when a lawyer gets a one-word kick. Comments such as, “Was he court appointed?” or, “What did you expect, he was court appointed,” have a most disparaging ring when every trial lawyer in our Association has received a one-word kick.

We celebrate the case that put TEETH into the Sixth Amendment, Gideon v. Wainwright, 372 U.S. 335 (1963). We understand, appreciate, and applaud the rightness of the decision. We know that it was Abe Fortes who argued the case. Abe Fortes was court appointed. Thus, with this acknowledgment be aware: “It’s a good idea to keep your words soft and sweet because you never know when you’ll have to eat them” (The Half-Wit and Wisdom of Alfred E. Neuman).

Oh, by the way: My client walked out of jail that night, free. The other lawyer’s client did not.

Good verdicts to you all. Your Hat Lady.

Executive Director’s Perspective: Board Motions – By Joseph A. Martinez

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Special thanks to our course directors, Brian Wice (Houston) for Appellate Seminar, Kam­eron Johnson, Public Defender (Austin), for Juvenile Seminar, and Robert “Bobby” Lerma for the Drugs Seminar. The seminars were held in Galveston in September, and thanks to their efforts had 59, 51, and 66 participants, respectively. Special thanks to Judge Alcala, who presented “A View from the Appellate Bench: What Works, What Doesn’t, and What Drives Us Crazy” at Appellate. Also, special thanks to Justice Terry Jennings, who presented “The Rules of Appellate Procedure: They Don’t Call It ‘TRAP’ for Nothing” at Appellate.

Thanks to Jenny Henley (Abilene) and Sarah Roland (Denton), course directors for the first CDLP Gideon’s Trumpet CLE held in Abilene. Thanks to their efforts, we had 36 participants. This was the first Gideon’s Trumpet CLE held this year. There will be another 6 Gideon’s Trumpet seminars held across the State. Please check the CLE schedule in the Voice and on the TCDLA website.

Thanks to Bob Phillips (Georgetown), John Convery (San Antonio), Bennie Ray (Austin), and Sarah Roland (Denton), course directors for the CDLP Gideon’s Trumpet held in Georgetown in September. This is the first CLE that TCDLA or CDLP has done in Williamson County. Thanks to the course directors we had 46 participants.

The TCDLA Board of Directors met in Galveston for their quarterly board meeting on September 15, 2012. The following motions were voted on:

MOTION: Polk County Criminal Defense Lawyers Association Affiliation

        Motion to approve Polk County Criminal Defense Lawyers Association as a TCDLA affiliate. Motion made by Craig Jett, seconded by Bobby Mims—motion carries.

MOTION: Minutes, June 9, 2012

        Motion to approve minutes from June 9, 2012, TCDLA Annual Board Meeting in San Antonio. Motion made by Larry Boyd, seconded by Nicole DeBorde—motion carries.

MOTION: Staff Gift Policy

        Motion to add Staff Gift Policy to personnel manual regarding gifts given to staff to be disclosed. Motion made by John Convery, seconded by Jim Darnell—motion carries.

MOTION: TCDLA FY 2013 Budget

        Motion to approve the TCDLA FY 2013 Budget. Motion made by John Convery, seconded by William Harris—motion carries.

MOTION: Procedures of Transferring Funds

        The Budget and Executive committees recommend that TCDLA staff send an email to the TCDLA Budget committee for approval to transfer funds. Once approved, the TCDLA Budget committee will notify the Executive committee and TCDLA Board. Motion to accept made by John Convery, seconded by Nicole DeBorde—motion carries.

MOTION: Ratify Executive Committee Motions

        Motion to ratify the following Executive committee motions made by Craig Jett, seconded by Bobby Mims—motion carries.

        • Executive Committee vote to give a donation of $1,000 to George Forman Youth Group in tribute of George Foreman’s presentation at Rusty Duncan.

        • The Executive committee voted to pay half of the expenses for the TCDLA/Goldstein Pachanga $7,000 plus.

MOTION: Robert Rules of Order

        Motion to use Robert Rules of Order at board meet­ings made by Craig Jett, seconded by William Harris. Discussion given. Motion to table made by Gary Trichter, seconded by Pat Metze, one opposed—motion carries.

FY 2013  TCDLA Budget

  • The total income budgeted for FY 2013 is $1,399,264, which consists of revenue generated from membership dues ($415,000), seminar registration ($836,840), scholarships ($46,196), and other income ($101,228).
  • The total expenses budgeted for the year is $1,395,068. The expenses budgeted help cover expenses associated with seminars ($435,649), membership sustainability ($102,500), lobbying expenses ($135,500) for the upcoming legislative year, operating expenses ($192,726), staff salaries ($374,428), governance ($42,500), and other expenses ($111,764).
  • The profit projected for FY 2013 is $4,196.00

TCDLA members can select to be on the following TCDLA listserves: General TCDLA, Legislative, Public Defender, Capital, and Psychodrama. Please call the Home Office (512-478-2514) for help in signing on to any of these listserves.

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

The TCDLA Long Range Planning Committee Report was summited and approved by the Membership in June 2012. This report sets the course for TCDLA for the coming years. Please go to the TCDLA website to see the report. Comments should be directed to Lydia Clay-Jackson, President, or Sam Bassett, chair of the Long Range Planning Committee.

All of our TCDLA publications have been updated and are available in both hard copy and CD. You can order on the  TCDLA website or purchase at any of the seminars. Please call Rick Wardroup (806-763-9900) if you have any questions.

TCDLA still has complimentary iPhone app for Texas judges. Please call the Home Office (512-478-2514) for more information.

Good verdicts to all.

Ethics and the Law: Beauty Is in the Eyes of the Beholder

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Sometimes I hear a new client badmouthing his previous lawyer where I am almost certain the lawyer believes he got his client the deal of the century. Beauty is truly in the eyes of the beholder. The key is making sure the beholder shares your same vision of what beauty is.

Clients who think you have done a great job for them will tell their friends and family about your performance. It is important to comply with ethical rules, but it is also important to have satisfied clients. That is not always possible, but too often lawyers believe they have gotten their clients fantastic deals without truly knowing the clients’ view on it. What you may think is beautiful work may very well be considered an ugly deal to the person who accepted it. Something changes in a person after a few months in prison—that sweet deal is suddenly not looking so sweet. That former client is now an angry inmate plotting ways to retaliate against his victorious lawyer, who has long forgotten his case and the so-called great deal he got him.

On the other hand, if a client truly has gotten a great deal, it is important that he see it that way, even if it means he may have to spend some time in jail. It is not his gratitude you are seeking, but a mutual understanding between you and your client.

Whether relaying good news, bad news, or a mediocre plea offer, it is important to stay in touch with your clients on a regular basis. Failure to communicate is the primary source of most grievances. It is a good idea to call your clients even when there is no news. Clients do not always understand how slowly the wheels of justice can turn, so they begin to assume you are not doing anything on their case. While that may be true, there are often good reasons for that. Explaining the delays can go a long way in keeping your clients satisfied.

It is also important to remember that your client is not a lawyer. Several times I get contacted by defendants’ families who do not understand the legalese of a fellow lawyer. First, after getting the client’s consent, I call the fellow lawyer to let him know his client has contacted me. Most times the fellow lawyer is grateful, and most of those times, the fellow lawyer allows me to be hired as co-counsel to act as the interpreter. Being raised on the north side of Abilene surrounded by the junkyards and my dad’s auto repair shop has given me many advantages. Talking street language enables some clients to truly understand what is going on with their case. Do not talk down to your clients and do not talk above them. Gauge their intellect, but practice speaking to your clients in plain English. Impressing them with your extensive knowledge of penal codes may have worked for you in law school, but it does no good in the real world if your clients do not understand you. They are facing critical decisions that will impact their lives long-term. It is essential that they understand what is happening in their case and what is expected of them. When in doubt, ask your clients to sign a document after each meeting, whether at your office or in jail, that states you have met with them and they fully understood the discussion.

Finally, do not make promises or guarantees you cannot keep. If a client believes you promised him certain victory, then rest assured once he finds himself sitting behind bars, he will be filing a grievance. Make certain the client understands every plea negotiation and all its terms. Be careful in your wording that nothing you say to them could be misconstrued as a promise or a guarantee. Even if the odds are looking good, giving a false impression of victory could backfire on you later. We can no more predict what a judge, jury, witness, or prosecutor will do than we can predict the winning lottery numbers. There are far too many variables beyond our control to make such wild promises or guarantees, so never promise any favorable outcome.

Be mindful of these things and you should have more content clients: 1) Make sure your clients understand their case, including their options, the deals they accept, the terms of those deals, the consequences of non-compliance, etc.; 2) communicate with them often, using clear simple language; and 3) never make promises or guarantees to a client you cannot keep.

TCDLA Ethics Committee Hotline: 512.646.2734
Robert Pelton, Chairman (Houston)
Jack Zimmermann (Houston)
Robyn Harlin (Houston)
Ray Fuchs (San Antonio)
David Sheppard (Austin)
David Zavoda (Odessa)
Joe Pelton (Abilene)
Greg Velasquez (El Paso)
Joseph Connors (McAllen)
Don Davidson (Bedford)
Doug Barlow (Beaumont)

Below is an article written by co-chair Don Davidson from Bedford, Texas, about Ethics Opinion #619.

 A common source of irritation for attorneys—and especially criminal defense attorneys—is a former client’s request that the attorney send him the attorney’s file after the representation is concluded. Of course, in the criminal defense context, such a request is often made in anticipation of filing a habeas application for ineffective assistance of counsel. So the attorney has the double irritation of being asked to comply with what is often a costly and time-consuming request (since the prudent attorney will copy the file before sending it to the client), while also potentially providing ammunition for the client to try to use against him. No wonder many attorneys faced with such a request ask the question, “Do I really have to do this?” In most cases, the answer is, “If you would like to keep your bar card in good standing, yes.”

Ethics Opinion #570 (May 2006) analyzed this issue in the context of an attorney’s notes, and concluded that the attorney does indeed have to provide those notes to the former client upon request. The justification for this conclusion is that the file belongs to the client, and Rule 1.14(b) of the Rules of Disciplinary Conduct requires an attorney to promptly deliver to the client any property to which the client is entitled. Several Texas courts have come to a similar decision. See, for example, In re George, 28 S.W.3d 511, 516 (Tex. 2000), and Hebison v. State, 615 S.W.2d 866, 868 (Tex.App.—Houston [1st Dist. 1981] no writ).

Opinion #570 does list three exceptions to this general requirement (and there may be other exceptions as well). For example, the attorney would not have to furnish his file to a mentally ill client if doing so could seriously harm the client. Another exception is when releasing the file would violate a duty the attorney owes to another person. However, the third exception is the one which comes up most frequently—when doing so would violate a court order restricting further disclosure of discovery documents. I have seen this sometimes in federal cases, where the government is trying to keep discovery documents from becoming public knowledge and jeopardizing an ongoing investigation.

Recent Opinion #619 (June 2012) approaches this problem from a slightly different angle, concluding that a prosecutor may condition disclosure of discovery documents on defense counsel’s agreement not to provide copies of the discovery to the defendant and to return the discovery documents at the conclusion of the case. This avoids the problem by removing the documents from the defense counsel’s file, so that they are long gone by the time the client requests a copy of the file.

On the other hand, what if the prosecutor conditions discovery on the defense attorney’s promise not to provide a copy of the discovery to the client, but there is no court order and no requirement to return the documents at the conclusion of the case? (I have had this situation arise in some federal criminal prosecutions.) In such cases, I get the client’s voluntary written consent to discovery on those terms. My consent form explains, among other things, that the client normally has the right to obtain his file at the conclusion of my representation, but that if discovery is conditioned on me not providing a copy of the discovery to the client and the client refuses to consent to discovery on those terms, then I may be denied access to discovery that could be helpful in representing the client. And the form includes the language: “With the foregoing in mind, I agree to waive, now and forever, my right to receive a copy of that portion of your files which contains government reports and records which you agree not to further disseminate.” I recommend this procedure, or something similar, for any attorney faced with discovery on such terms.

Federal Corner: Pinging: The Newest Sport for Law Enforcement Officers – By F. R. Buck Files Jr.

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On August 14, 2012, The United States Court of Appeals for the Sixth Circuit affirmed the conviction of Melvin Skinner, a drug defendant whom law enforcement officers had tracked—by using data from Skinner’s cell phone—from Tucson, Arizona, to near Abilene, Texas, where they arrested him. United States v. Skinner, ___ F.3d ___, 2012 WL 3289801 (6th Cir. 2012)

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The August 27, 2012 edition of Time included an article entitled “The Phone Knows All—How Companies and Cops Snoop on Your Digital Life, Whether You Realize It or Not” by Massimo Calabresi.

If you will take the time to read each of these, you will realize how the cellular telephone has become law enforcement’s new best friend.

James Michael West was the kingpin in a drug trafficking operation that reached from North Carolina to Arizona. Federal law enforcement officers obtained court orders permitting them to intercept calls made to and from two telephones that were subscribed in West’s name. As the result of their monitoring these telephone calls, the officers learned that West used Skinner as a driver to deliver money to a drug dealer in Arizona and then transport hundreds of pounds of marijuana back to North Carolina.

West furnished pay-as-you-go cell phones to Skinner and others. West himself used one of these phones that had the number (520)869-6447, and Skinner used a phone with a (520)869-6820 number. During their investigation, officers obtained two orders from a United States Magistrate Judge authorizing the telephone company to release subscriber information, cell site information, CPS real-time location, and “ping” data for the phones in order to monitor Skinner’s location while he was en route back to North Carolina.

The officers were able to continuously “ping” the 6820 phone and to track Skinner from Tucson, Arizona, to a location near Abilene, Texas, without ever following Skinner’s vehicle or conducting visual surveillance. There, they arrested him and seized 1100 pounds of marijuana and several firearms.

Skinner was indicted for violations of 21 U.S.C. §§ 846, 841 (a)(1), 841 (b)(1)(A), 18 U.S.C. § 1956(h), 841 (a)(1), 841 (b)(1)(B) and 18 U.S.C. § 2. Prior to trial, Skinner’s lawyer filed a motion to suppress the evidence obtained by the officers who had searched Skinner’s motor home at the time of his arrest. Skinner’s lawyer alleged that the officers’ use of GPS location information emitting from Skinner’s cell phone was a warrantless search that violated the Fourth Amendment. The United States District Judge Thomas W. Phillips of the Eastern District of Tennessee denied the motion. After a 10-day trail, Skinner was convicted of three counts in the indictment and sentenced to 235 months’ imprisonment. Skinner gave notice of appeal.

A panel of the Sixth Circuit (Circuit Judges Clay, Rogers, and Donald) affirmed Skinner’s conviction. Judge Rogers delivered the opinion of the Court in which Judge Clay joined. Judge Donald delivered a separate opinion, concurring in part and concurring in the judgment. Judge Rogers’ opinion reads as follows:

[There Is No Fourth Amendment Violation]

There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cell phone. If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal. The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools. Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent nature of cell phone location technology does not change this. If it did, then technology would help criminals but not the police. It follows that Skinner had no expectation of privacy in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car’s paint.

[There Is Supreme Court Authority]

This conclusion is directly supported by United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). In Knotts, the police, with the consent of a chemical company, placed a beeper in a five-gallon drum of chloroform in order to track the movements of a defendant and discover the location of a clandestine drug laboratory. Using visual surveillance, as well as the signal emitted from the beeper when police lost visual contact, law enforcement officials traced the car to a secluded cabin, where the defendant and others had been manufacturing illicit drugs. The Supreme Court held that this monitoring did not violate the Constitution because “[t]he governmental surveillance conducted by means of the beeper in this case amounted principally to the following of an automobile on public streets and highways. . . . A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Id. at 281. The Court noted that, in Knott’s case, “[a] police car following [a defendant] at a distance throughout his journey could have observed him leaving the public highway and arriving at the cabin. . . . [T]here is no indication that the beeper was used in any way to reveal information . . . that would not have been visible to the naked eye.” Id. at 285. Similar to the circumstances in Knotts, Skinner was traveling on a public road before he stopped at a public rest stop. While the cell site information aided the police in determining Skinner’s location, that same information could have been obtained through visual surveillance.

[Law Enforcement Officers May Take
Advantage of New Technology]

There is no inherent constitutional difference between trailing a defendant and tracking him via such technology. Law enforcement tactics must be allowed to advance with technological changes, in order to prevent criminals from circumventing the justice system. The Supreme Court said as much in Knotts, noting that, “[i]nsofar as respondent’s complaint appears to be simply that scientific devices such as the beeper enabled the police to be more effective in detecting crime, it simply has no constitutional foundation. We have never equated police efficiency with unconstitutionality, and we decline to do so now.” Id. at 284. In drawing this conclusion, the Court discussed Smith v. Maryland, 442 U.S. 735, 744–45, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), where a defendant was found to have no reasonable expectation of privacy in the numbers he dialed on his phone, even after that information was automated by the phone company. The Court compared this technology to giving the numbers to a telephone operator, where they would not be confidential: “We are not inclined to hold that a different constitutional result is required because the telephone company has decided to automate.” Knotts, 460 U.S. at 283. Similar reasoning compels the conclusion here that Skinner did not have a reasonable expectation of privacy in the location of his cell phone while traveling on public thoroughfares.

 [The Officers Obtained Court Orders]

Although not necessary to find that there was no Fourth Amendment violation in this case, the Government’s argument is strengthened by the fact that the officers sought court orders to obtain information on Skinner’s location from the GPS capabilities of his cell phone. The government received authorization from the magistrate judge to receive location information from the cell phone company so that officers could locate and track Skinner’s vehicle that was carrying the load of marijuana. When the first cell phone number turned out to be with West in North Carolina, officers then sought and obtained a second order from the magistrate judge to “ping” the second cell phone number and locate the drugs while they were still en route.

[Conclusion]

Because officers tracked a known number that was voluntarily used while traveling on public thoroughfares, Skinner did not have a reasonable expectation of privacy in the GPS data and location of his cell phone. Therefore, suppression is not warranted and the district court correctly denied Skinner’s motion to suppress.

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Mr. Calabresi’s article reads, in part, as follows:

If someone wanted to create a global system for tracking human beings and collecting information about them, it would look a lot like the digital mobile-device network. It knows where you are, and—the more you text, tweet, shop, take pictures, and navigate your surroundings using a smart phone—it knows an awful lot about what you’re doing. [Emphasis added.]

        Which is one reason federal officials turned to Sprint, Verizon, AT&T, and T-Mobile in early 2009 when they needed to solved the robbery of a Berlin, Conn., branch of Webster Bank. Using a loophole in a 1986 law that allows warrantless searches of stored communications, the feds ordered the carriers to provide records of phones that used a nearby cell tower on the day of the crime. The carriers turned over to the prosecutors the identities, call records, and other personal information of 169 cell-phone users—including two men who were eventually sentenced to prison for the robbery. With a simple request, the feds cracked a case that might have otherwise taken years to solve. In the process, they collected information on 167 people who they had no reason to believe had committed a crime, including details like numbers dialed and times of calls that would have been protected as private on a landline.

        Such cases are common. In response to a request from Representative Ed Markey, major cell carriers revealed in July that they had received more than 1.3 million requests for cell-phone tracking data from federal, state, and local law-enforcement officials in 2011. By comparison, there were 3,000 wiretap warrants issued nationwide in 2010. That revelation has added to a growing debate over how to balance the convenience and security consumers now expect from their smart phones with the privacy they traditionally have wanted to protect. Every second we enjoy their convenience, smart phones are collecting information, recording literally millions of data points every day. [Emphasis added.]

My Thoughts

  • Skinner is going to be the tip of the iceberg. We can only anticipate that we will have more and more cases involving the GPS tracking of defendants by the use of cellular phone data. It is absolutely remarkable that law enforcement had received more than 1.3 million requests for such data during 2011.
  • Before long, we will all have a standard paragraph in our motion for discovery that will request all of the data that the government obtained from the telephone company in Skinner.
  • The humor is that many criminals went to cell phones to avoid court-ordered wiretaps. Now, they may want to go back to landline telephones.