Monthly archive

November 2012

November 2012 SDR – Voice for the Defense Vol. 41, No. 9

Voice for the Defense Volume 41, No. 9 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Fifth Circuit

Though it would abuse discretion to deny an evidentiary hearing on an Atkins claim where the court dismisses a valid Atkins claim without giving the petition adequate opportunity to develop the claim, CCA’s determination that D did not make a prima facie Atkins claim was not objectively unreasonable. Blue v. Thaler, 665 F.3d 647 (5th Cir. 2011).

        Death-sentenced Texas D was not entitled to a certificate of appealability. The federal district court did not abuse its discretion in refusing to hold an evidentiary hearing on D’s claim under Atkins v. Virginia, 536 U.S. 304 (2002) (holding that the Eighth Amendment prohibits the imposition of the death penalty on the mentally retarded). Nor did the district court reversibly err in denying D’s Atkins claim on the existing record.

District court did not err in dismissing superseding indictment because it did not state a crime against D for knowingly and willfully making false statements on loan applications and knowingly making false statements for the purpose of influencing action of a bank. United States v. Fontenot, 665 F.3d 640 (5th Cir. 2011).

        The gravamen of the offenses was that D made false statements on applications to refinance his residence by failing to include an illegal $100,000 campaign loan (D was a Louisiana senator) under “outstanding debts.” However, D’s statements were literally true because, under Louisiana law, the illegal loan was an absolute nullity and consequently was not a debt that ever existed.

Mere payment of the purchase price of drugs by whatever means does not constitute money laundering, and here the government showed nothing more. United States v. Harris, 666 F.3d 905 (5th Cir. 2012).

        Fifth Circuit reversed for insufficient evidence Ds’ convictions for money laundering and attempted money laundering (18 U.S.C. § 1956(a)(1)(B)(i)) and conspiracy to commit money laundering (§ 1956(h)). The government failed to prove that the transactions involved the proceeds of illegal activity; a transaction to pay for illegal drugs is not money laundering, because the funds are not proceeds of an unlawful activity when the transaction occurs but become so only after the transaction is completed.

Though the offense of importation was arguably complete (by the controlled substance reaching its final destination) before D’s possession took place, that means only that she did not import the drugs not that her possession did not “involve” importation. United States v. Rodriguez, 666 F.3d 944 (5th Cir. 2012).

        In sentencing D for possession of meth with intent to distribute, court did not err in enhancing D’s sentence under USSG § 2D1.1(b)(4) on the ground that the offense “involved the importation of amphetamine or meth[.]” The scope of actions that “involve” the importation of drugs is larger than the scope of those that constitute the actual importation. The Fifth Circuit did not reach the question whether § 2D1.1(b)(4) contains an implicit mens rea of possession (requiring that a defendant know the drugs were imported) because there was sufficient evidence to find that this D knew the drugs were imported.

D’s conviction for attempted sexual assault of a child was a qualifying crime of violence for USSG § 2L1.2(b)(1)(A)(ii) because the object offense (sexual assault of a child) was a qualifying crime of violence. United States v. Sanchez, 667 F.3d 555 (5th Cir. 2012).

        The offense of attempt under Texas law is within the “generic, contemporary meaning” of “attempt.” Although Texas’ attempt statute appeared to differ linguistically from the generic definition of attempt, illegal reentry D could not show any case in which a Texas court applied the Texas attempt statute to criminalize conduct that would not satisfy the generic definition of attempt.

D did not meet the standard to file a successive 28 U.S.C.S. § 2255 petition. In re Lampton, 667 F.3d 585 (5th Cir. 2012).

        D’s motion to vacate sentence was “second or successive” within the meaning of 28 U.S.C. § 2255. However, D could not avail himself of Magwood v. Patterson, 130 S. Ct. 2788 (2010), which held that when a first habeas petition results in a new judgment, a later-in-time petition challenging that new judgment is not “second or successive” under the AEDPA. D’s previous § 2255 petition did not result in the issuance of a new judgment within the meaning of Magwood. Rather, the previous § 2255 resulted in the vacatur of the conviction and sentence on a lesser-included count as a remedy for the double-jeopardy violation; the conviction and sentence on the greater offense remained undisturbed. Thus, D was challenging the same judgment of conviction that was the subject of his first § 2255 petition, which was a “second or successive” petition. NOTE: The Second Circuit reached a different result on virtually identical facts in Johnson v. United States, 623 F.3d 41 (2d Cir. 2010); but unlike here, the government had conceded that the petition was not successive. Twice recently, the Ninth Circuit criticized the Fifth Circuit’s holding here.

D’s prior conviction was not an aggravated felony; when Congress passed the immigration reform act of 1996, a majority of states did not consider digital penetration to be rape. Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. 2012).

        On the record of D’s prior conviction for “sexual intercourse without consent,” in violation of Mont. Code § 45-5-503(1), D’s conviction could have rested on the basis of digital penetration. In 1996 a large majority of states did not consider digital penetration to be “rape”; the Fifth Circuit held that digital penetration did not constitute rape within the meaning of 8 U.S.C. § 1101(a)(43)(A). The Fifth Circuit reversed the decision of the Board of Immigration Appeals upholding D’s removal on the basis of that conviction, and remanded.

The totality of the circumstances indicates D was in Miranda custody when he made his incriminating statements. United States v. Cavazos, 668 F.3d 190 (5th Cir. 2012).

        The Fifth Circuit affirmed the district court’s order suppressing statements made by D (charged with offenses arising out of “sexting” a minor) in his home prior to being given Miranda warnings. The totality of the circumstances, drawn from the record and in the light most favorable to D (the prevailing party on the motion to suppress), indicates D was in Miranda cus­tody. D was awakened at 5:30 a.m., identified, and handcuffed, while a dozen officers entered and searched his home; he was separated from his family and interrogated by two federal agents for an hour; he was informed he was free to use the bathroom or get a snack but was followed and monitored when he did so; and he was allowed to make a phone call but only when holding the phone so agents could hear the conversation. These circumstances would lead a reasonable person to believe he was not at liberty to terminate the interrogation and leave, notwithstanding that the interrogation occurred in his home and that he was informed the interrogation was “non-custodial.”

Illegal reentry D was not subject to a 16-level crime of violence enhancement because no removal order issued after his prior convictions. United States v. Nevares-Bustamante, 669 F.3d 209 (5th Cir. 2012).

        Where alien (1) was removed from the United States in March 1989, (2) illegally reentered a month later, (3) was convicted of rape and armed criminal action in Missouri in 1990, (4) was released from Missouri’s custody without being turned over for removal, and then (5) was found illegally present in the United States, D was not subject to a 16-level “crime of vio­lence” enhancement under USSG § 2L1.2(b)(1)(A)(ii) on the basis of the 1990 convictions for rape and armed criminal action. No removal order issued after his 1990 convictions, nor had any prior removal order been reinstated. Although the text of USSG § 2L1.2 could arguably support enhancement on the ground that D had “unlawfully remained in the United States” after a “crime of violence” conviction, the commentary to that Guideline made clear that there had to be a removal order issued after the conviction, which there was not in this case. Moreover, the commentary was binding under the rule of Stinson v. United States, 506 U.S. 36 (1993). The enhancement was erroneous under the Guideline’s commentary; the Fifth Circuit remanded for resentencing.

In prosecution for illegal-alien trafficking, agent’s controverted testimony did not warrant reversal on plain-error review. United States v. Montes-Salas, 669 F.3d 240 (5th Cir. 2012).

        Agent’s testimony that guides usually sit in the front (D was in the front passenger seat) was problematic. However, the error was not so clear or obvious to prevail on plain error review; it was permissible background testimony about how alien trafficking works, rather than impermissible profile testimony. Agent’s testimony that the sister of one of the aliens gave him a phone number she identified as belonging to one of the other smugglers was inadmissible hearsay; however, this error did not affect D’s substantial rights or impugn the fairness, integrity, and public reputation of this proceeding and, thus, did not warrant reversal on plain-error review.

Court of Criminal Appeals

To be considered substantially similar, an out-of-state offense must display a high degree of likeness but can be less than identical. Outland v. State, No. PD-1400-11 (Tex.Crim.App. Sept 12, 2012).

D was not entitled to an Article 38.23 instruction for the jury to disregard evidence obtained during traffic stop because officer had RS. Hamal v. State, No. PD-1791-11 (Tex.Crim.App. Sept 12, 2012).

        D was charged with possession of a controlled substance; the trial court denied her motion to suppress evidence seized from her car. The trial court also denied D’s Tex. Code Crim. Proc. art. 38.23 jury instruction. D was convicted. COA sustained D’s jury instruction claim, reversed her conviction, and remanded for new trial. CCA affirmed the trial court.

        COA erred in holding that D was entitled to an Art. 38.23 jury instruction. After the officer conducted a criminal history check, certain information was sufficient, when viewed as a whole, to establish reasonable suspicion. D was traveling late at night and had exceeded the speed limit. She was nervous, and her hands were shaking. She had a prior criminal record, which included arrests for drug offenses. One of the drug arrests was recent—seven months prior. She responded “no” when officer asked if she had ever been in trouble before.

The trial court properly suppressed cocaine found in D’s home because the search warrant was insufficient for the magistrate to determine PC. State v. Duarte, No. PD-1511-11 (Tex.Crim.App. Sept 12, 2012).

        The boilerplate search warrant affidavit contained insufficient particularized facts about D’s alleged possession to allow the magistrate to determine probable cause to issue a search warrant. There was no substantial basis for crediting the first-time confidential informant’s hearsay statement, as officers failed to corroborate the informant’s tip except to confirm D’s address. The tip was not a statement against interest, was not repeated by other informants, there was no accurate prediction of future behavior, and it contained no particular level of detail regarding D’s premises or his criminal activity. The informant, who was facing criminal charges of his own, merely told officer he saw D at his home on a particular date in possession of cocaine.

D was not entitled to an Article 38.23(a) instruction for the jury to disregard evidence if it found officer’s belief unreasonable, but D could be entitled to suppression of the evidence. Robinson v. State, No. PD-0238-11 (Tex.Crim.App. Sept 19, 2012).

        D filed a motion to suppress evidence stemming from the traffic stop in his possession with intent to deliver case. He argued that the stop, purportedly for failure to signal a turn, was pretext to justify an ongoing investigation of D. The trial court denied D’s motion, finding that probable cause existed to justify the stop, and that D voluntarily consented to the search leading to discovery of the contraband. D was convicted. COA reversed. CCA reversed and remanded to COA for further consideration of D’s first point of error—that the trial court abused its discretion in denying his motion to suppress.

        COA erred by concluding D was entitled to a Tex. Code Crim. Proc. art. 38.23(a) jury instruction; there was no dispute about the material historical facts. The only dispute was about the legal significance of those facts, which the jury was not au­thorized to resolve. The dispute was not about the character of the roadway, but about the legal significance of the character of the roadway. The question of whether D was required to use his turn signal was therefore a question of law, not fact, and the admissibility of evidence officer obtained as a result of the traffic stop did not depend on the reasonableness of his belief that D was legally required to signal.

There was no reasonable probability that counsel’s erroneous advice led to D’s murder conviction and 50-year prison sentence. Riley v. State, No. PD-1531-11 (Tex.Crim.App. Sept 19, 2012).

        The trial court denied D’s appeal, which claimed counsel’s ineffective assistance precluded his opportunity for deferred-adjudication community supervision. COA reversed D’s conviction. CCA reversed COA and remanded.

        D failed to show that if defense counsel properly informed him of his ineligibility for probation, there was a reasonable probability that his trial would have produced a different result. Regardless of whether D proceeded with a jury or plead, the same possible results were available. D’s attorneys informed him before trial that he would be eligible for probation from the jury if he was convicted of murder; D elected a jury trial for guilt and punishment. After D was convicted, defense counsel learned he was ineligible for probation because he was convicted of murder by a jury. While the trial court could have considered D’s self-defense claim in a plea and found him guilty of a lesser-included offense, the trial court implicitly upheld the murder conviction in its denial of D’s appeal; by pleading guilty to murder, D would have waived his opportunity to argue defenses and hold the State to its burden of proof.

D was convicted under the subjective theory of intoxication as alleged in the information; including the per se definition of intoxication in the abstract of the jury charge did not expand the allegations against him. Crenshaw v. State, No. PD-1252-11 (Tex.Crim.App. Sept 26, 2012).

        In this DWI case, the trial court permissibly included in the jury charge both the subjective definition of intoxication in the application paragraph and the per se definition in the abstract portion, though the information alleged only the subjective definition. The Texas Penal Code sets out two definitions of “intoxicated.” The subjective definition is not having the normal use of mental or physical faculties, § 49.01(2)(A); the per se definition is having an alcohol concentration of 0.08 or more, § 49.01(2)(B). Although the State was not required to provide either definition of intoxication in the information, it went beyond the minimum notice requirement by providing the definition that it intended to pursue. Furthermore, this case did not involve a variance because the application paragraph tracked the language of the information.

A general reference to the law of parties in the application paragraph was sufficient and was not error when D did not object and request a narrowing of the specific statutory modes of conduct that constituted party liability. Vasquez v. State, No. PD-0321-11 (Tex.Crim.App. Oct 3, 2012).

        The district court convicted D of aggravated robbery. COA found reversible error because the trial judge, over D’s objection, declined to apply the law of parties more explicitly in the jury charge application paragraph. CCA affirmed the trial court.

        The jury charge contained the correct abstract definition of “party liability.” A reasonable juror would refer to the abstract definition of the law of parties without need to have it repeated in the application paragraph. There was no question that the only theory of D’s liability was that of being a party. He was the getaway driver. He clearly admitted that he acted as the driver for his roommates after the three hatched the robbery scheme the night before. A reasonable juror could infer that D was the one who solicited, encouraged, or directed the other two to com­mit the robbery. D did not suggest how the jury might have been confused by the application paragraph.

Jurors’ testimony regarding another juror’s misconduct was admissible because it concerned an outside influence—something originating from a source outside the jury room and other than from the jurors themselves. McQuarrie v. State, No. PD-0803-11 (Tex.Crim.App. Oct 10, 2012).

        COA affirmed the trial court’s denial of D’s motion for new trial, holding that the trial court properly excluded the jurors’ affidavits and testimony pursuant to Tex. R. Evid. 606(b) and that Rule 606(b) was constitutional. CCA reversed and remanded to the trial court for a new hearing on D’s motion.

        The trial court abused its discretion in excluding jurors’ testimony and affidavits reflecting the misconduct of another juror. The internet research conducted by juror, during an overnight break, about date rape drugs constitutes an “outside influence” to fall squarely within an exception in Rule 606(b). A trial court should be able to inquire as to whether jurors received such outside information and the impact it had on their verdict without delving into their actual deliberations.

D’s substantial rights were violated by the improper removal of the dissenting juror and may not be disregarded. Scales v. State, No. PD-0442-11 (Tex.Crim.App. Oct 10, 2012).

        D was charged with aggravated robbery with a deadly weapon. During a recess in jury deliberations on the second day of trial, the jury foreman sent a note to the judge stating: “We have one juror who refuses to deliberate this case any further nor take the facts, testimony, of this case into account. I request she be removed from the jury.” After questioning the foreman about the juror’s actions, the trial judge indicated an intent to dismiss the juror, Regina Collins, and seat an alternate. Defense counsel requested that the judge question the recalcitrant juror directly, which the judge refused to do. Instead, the judge again questioned the foreman about Collins’ issues and, finding the foreman credible, dismissed Collins over defense counsel’s objection and seated an alternate. Within half an hour of replacing Collins, the jury reached a verdict. It later assessed D’s punishment at 20 years’ confinement. COA correctly held that Collins was not “disabled” as defined in Tex. Code Crim. Proc. art. 33.011. Using the standard in Tex. R. App. 44.2(b), CCA found that the error is reversible and affirmed COA.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Deemed a mere investigative detention, despite use of handcuffs and use of words “under arrest,” and even though the detention lasted 45 minutes and D was moved by officer to a different location; handcuffing was reasonable considering officer was a bike patrol officer. Castro v. State, No. 04-11-00312-CR (Tex.App.—San Antonio Apr 4, 2012).

        “Considering [officer] only maintained access to a bike as opposed to a patrol vehicle, as well as the other circumstances, we cannot say the use of handcuffs in this instance was unreasonable. . . . [Officer’s] testimony showed [D’s] detention lasted approximately 25 to 45 minutes, although an exact time frame was uncertain. This was not an unreasonable amount of time under the circumstances, i.e., the officer had to go inside the restaurant to find and detain the second suspect, and then transport both suspects to the park for the on-site identification. . . . [D’s] detention, which lasted under one hour, falls within the zone of reasonableness contemplated by the court of criminal appeals. And, although officers transported [D] to another location, the distance was minimal and furthered the investigatory purpose of the stop. Finally, [officer’s] testimony that it was an investigatory detention, despite his statement to [D], provides additional support for the trial court’s conclusion that an investigatory detention, rather than an arrest, occurred. The officer explained his use of the word ‘arrest’ when speaking to [D], stating he would not inform an individual that he was ‘under detention.’”

D’s delayed reaction to officer’s emergency lights among factors supporting RS to stop D for DWI. Ritchie v. State, No. 02-10-00512-CR (Tex.App.—Fort Worth Apr 5, 2012, pet ref’d).

        “[D] did not pull over immediately after [officer] activated his emergency lights, and in that regard, the evidence viewed in the light most favorable to the ruling supports a finding that [D’s] response was delayed if not ‘exceedingly slow.’”

D not in custody, despite being transported in the back of patrol car to homicide unit of police department and persistent and continued questioning by officers in a small windowless room with a single door and bathroom access only while escorted by an armed officer. Zuniga-Duarte v. State, No. 14-10-00967-CR (Tex.App.—Houston [14th Dist] Apr 10, 2012, pet ref’d).

        “[D] was not physically deprived of his freedom of action in any significant way. [D] was not handcuffed and went to the station voluntarily. Prior to the unrecorded statement to [officer], [D] was escorted to and from the restroom. This fact indicates a restriction of [D’s] freedom of movement, but alone is not necessarily enough to show custody. [Citing case for proposition that ‘The fact that appellant was accompanied during restroom breaks, although given an innocuous explanation, is also to be considered.’] While he was escorted to the restroom, there was no evidence that officers told [D] he could not leave. Even assuming that the officers never told [D] he was free to leave at any time, they all testified that they would have allowed [D] to leave at any time if [D] had asked. . . . A reasonable person would not believe that his freedom of movement was significantly restricted in this situation, where he voluntarily accompanied officers to the station; was given food; was neither handcuffed nor told he was under arrest; did not ask to leave; and was not threatened or coerced.”

D, an overnight guest, successfully argued that homeowner’s consent to search house did not include D’s backpack; homeowner’s son indicated to officer that backpack was the backpack D carried. State v. Rogers, No. 08-10-00119-CR (Tex.App.—El Paso Apr 11, 2012).

        “[Homeowner’s son] retrieved [D’s] backpack from beneath his bed and handed it to the officer, stating that it was the backpack which [D] carried. The evidence also showed that [officer], at that moment, did not necessarily believe [homeowner’s son] regarding ownership of the backpack because he had been untruthful with the officer throughout their encounter that evening. While [homeowner] had actual authority to consent to a search of the premises for the stolen property, [homeowner’s son’s] statement would have raised a question in the mind of a reasonable person whether [homeowner] had actual authority to consent to a search of the backpack. At the very least, [homeowner’s son’s] statements presented the officer with ambiguous circumstances which obligated him to stop and make inquiries as to the continued effectiveness of [homeowner’s] consent with respect to the backpack. . . . The State failed to prove that [homeowner] had either actual or apparent authority to consent to the search of [D’s] backpack.”

The State established chain of custody as to bag of co­caine found on D during jail intake search, despite State’s failure to identify the seizing officer (the jailer who performed the search). Casas v. State, No. 01-11-00057-CR (Tex.App.—Houston [1st Dist] Apr 12, 2012, pet ref’d).

        “[D] incorrectly assumes that the predicate for the admission of [bag of cocaine] must be established by the jailer who first picked the baggie up off the floor, and not by [a second officer], who was the second person to have custody of the baggie[.]”

D unsuccessfully argued “that six officers in tactical uniforms arriving at a late hour would have given a reasonable person the impression an emergency was occurring and that he or she was not at liberty to refuse to open the door.” Also unsuccessful was D’s argument that those circumstances caused his consent to be coerced. Davalos v. State, Nos. 01-11-00069-CR, 01-11-00070-CR (Tex.App.—Houston [1st Dist] May 3, 2012, pet ref’d).

        “[W]hen [D’s] mother opened the door the officers immediately explained to her they were at the home for the purpose of speaking with [D]. If indeed [D’s] mother had only opened the door to officers because she believed an emergency was occurring, at this point she could have declined to speak further with the officers and closed the door. . . . And, although six officers entered [D’s] home, only two or three sat with him at his kitchen table when consent was obtained, and officers did not block the path from the kitchen table to the front door. . . . While the late-night arrival of six officers dressed in tactical uniforms might create an intimidating environment, we are unpersuaded the circumstances were sufficient to overbear [D’s] will and critically impair ‘his capacity for self-determination.’”

Court committed reversible error by defining “operate” as “to exert personal effort to cause the vehicle to function” in DWI trial because it was an improper restriction on the jury’s understanding of what evidence could constitute “operating,” which vitally affected D’s main defensive theory and made the case for conviction significantly more persuasive. Kirsch v. State, 366 S.W.3d 864 (Tex.App.—Texarkana).

        The main defensive theory was that D was merely sitting on the motorcycle, not operating it. D was in the middle of intersection sitting on his motorcycle attempting to kick-start it and was wearing a helmet and had keys in hand. “[W]hile the evidence is sufficient to support Kirsch’s conviction, the trial court’s definition of ‘operate’ commented on the weight of the evidence, resulting in egregious harm. Accordingly, we reverse the trial court’s judgment and remand for a new trial[.]”

Results of blood test deemed admissible despite six-hour delay in drawing blood following the arrest. Morales v. State, No. 04-11-00363-CR (Tex.App.—San Antonio May 9, 2012).

        “Unlike other cases where retrograde extrapolation testimony has been held to be improper, the expert here . . . did not express an opinion as to a range of alcohol concentration at the time of driving. In fact, he specifically told the jury that he could not determine [D’s] BAC at the time of driving. Given the absence of an estimated BAC at the time of driving, the trial court could have reasonably concluded that the jury was equipped to evaluate the probative force of the blood test result. . . . Further, the admission of the blood test result did not necessarily encourage the jury to engage in its own crude retrograde extrapolation because, under the impairment definition of intoxication submitted to them, the jury did not need to establish [D’s] exact blood alcohol concentration at the time that he drove. . . . [T]he trial court could have reasonably concluded that the probative value of the blood test result was not substantially outweighed by the danger of unfair prejudice.”

Seizure of female underwear during warrant search of home was lawful under plain view doctrine, even though the underwear was not specifically listed on warrant as an item to be seized. Barrett v. State, 367 S.W.3d 919 (Tex.App.—Amarillo).

            “[A]lthough not attached to the search warrant as evidence of probable cause, officers executing the search warrant were aware of chat logs, received from the FBI. . . . [G]iven the chat logs already known to the officers, the ‘incriminating character’ of the underwear was ‘immediately apparent,’ and they had the right to seize that evidence.”

Psychodrama: Preparing Yourself, Your Client, Your Case

Preparing Yourself

Lawyers who know the law backwards and forwards and have memorized the evidence but have not looked inside themselves to determine where their passion or their energy comes from in their case have a slim chance of winning it. Preparing yourself means putting all the law, all the evidence, all the other stuff to the side for a while and simply feeling your case.

How do you do that? Sit quietly, with no distractions, and just let your mind wander through your feelings about the “whole” case—your client, the jury pool, the judge, the prosecutor, the witnesses, and your fears. You want, and need, to get out of your head in this process and into your heart. Recognize the feelings you get as you proceed. As this process continues you will be shocked at the number of things you feel that you were not seeing and not feeling when you were stuck in your head with the cerebral task of “knowing” the law and evidence and all the other “lawyer” stuff.

I am convinced that most juries and even most judges would tell you that they ruled based on what they “thought” (their head), but that they really and truly did so based on what they “felt” (their heart). Part of what a jury wants and needs to feel—and I would argue one of the biggest parts—is that the lawyer is being real and honest at all times. In my opinion, being real and being honest are decisions of the heart, not the head.

Gerry Spence once told me that the opposition he fears most in trial is the new lawyer, stumbling over himself or herself, stuttering and making the wrong objections, and at all times trying so very hard and being so very honest, making these mistakes with passion. It scares him because people can understand a person like that, people can feel connected to a person like that. We may call them jurors, but they are people with all the baggage and feelings that everybody else has.

I am not saying that you need to stutter or mess up the law for a jury to believe or “feel” for you. I am saying that if you do stutter and mess up, and it is real, and it comes from a place of passion, then it is not a bad thing to “let them see you sweat.” It makes you human, and juries understand humans much easier than they understand the cerebral lawyers we were all taught to be in law school.

Psychodramatist Katrena Hart (M.S., LPC, CP, PAT, CBT, Certified Psychodramatist, Allen, Texas) is one person qualified to talk to you about psychodrama and its purposes, but I have been involved with psychodrama on a personal level on several occasions and it was a major component in the training I received at the Trial Lawyer’s College with Gerry Spence in Wyoming. Based on that first-hand knowledge, I can relate to you a little bit about how this process can assist in the world of lawyers.

How does Psychodrama prepare ME for my case?

You are a month out from picking a jury in a case that has caused you to lose sleep. You have researched every possible issue, you have interviewed every witness who would talk to you, you have filed all your motions, and you remain baffled as to what you are going to do at trial. My understanding of psychodrama is that it is a process that cuts through all the head games and goes straight for the heart. Knowing all the law and the evidence and all of that without knowing what is going on—really going on—inside of you with regards to your case will leave you baffled and unsure. Psychodrama, in its classic form, requires multiple participants, and is to be lead by a qualified professional. But, some of the same tools used in psychodrama can be used by you on you.

One process I was taught while participating in psychodrama is as follows:

  • Three to four chairs are placed in a row, one in front of the other.
  • The person participating in the psychodrama sits in the first chair.
  • The person is asked what is it that concerns them (what do they want to work on).
  • The person then answers.
  • The person is then asked to stand up and sit in the sec­ond chair directly behind the chair they had just been sitting in and is asked to tell the person who was in the first chair (you) what really concerns you and how it makes you feel.
  • This process continues until you know that you are dealing with the true concerns or issues, and when you know that is when you finally recognize what was going on in your heart, rather than your head.

It is a process of being honest with yourself. We spend so much time, especially as lawyers, in our head, in our intellect. The process described above is the slow withdrawal from the head and journey to the heart. Gerry Spence describes psychodrama as “an archeological dig of the soul.” I see it as a journey to the heart.

An example of how this might work

You are preparing for voir dire and you are going through the “lawyer” questions that are so easy for you to deal with.

Probable Cause/Burden of Proof/
Two Sides to Every Story/Presumption of Innocence

You get it all ready and you still have this horrible feeling that you are not going to learn one single thing that will really tell you who your jury is. If you have not taken the time to crawl into your heart and determine what you feel about your case then you will never have a connection with the jury in voir dire because you may be legally prepared to try the case, but you are not ready. That is where you can set up some chairs as described above and sit in the first one and ask yourself what it is about your case that concerns you the most. I can promise you the first thing that comes to mind will not be the 100 percent reality of what has got you so concerned; it is generally an intellectualized concept, not of the heart. Before starting this process make a promise to yourself that you will be completely honest and open to this process. An example I remember of this process being done by an attorney went something like this:

1st Chair: I am concerned that my client won’t get a fair trial no matter what I say.
2nd Chair: DWI cases are so hard to win because of all the news about DWI deaths and all of that.
3rd Chair: I don’t think I know the right question to ask the jury to find out if they agree with my fear.

That is obviously an oversimplification of what occurred but I can tell you the result that came out of that process for the lawyer. He decided that he should just be honest with the jury and the question that was formulated out of the process above was:

“I stand before you scared to death. I don’t know, with all the stuff we are bombarded with regarding DWI, if I know how to get a fair jury for my client. I don’t know if I know the right question to ask to find out. Is there anybody here that can help me figure out what I am supposed to do, what I should ask you?” Immediately a juror raised her hand and said: “I thought we were supposed to presume your client innocent. The State has to prove it to us. What we have heard about DWI has nothing to do with your guy.” The attorney then asked another juror what they thought about that, and so on and so on.

In ten minutes the jury panel themselves had solved the lawyer’s problem simply because the lawyer was honest and real about his fear. It was as if the lawyer admitting his fear had put the whole panel at ease. Remember, prospective jurors are in a place that most have never been before, a place that can be intimidating, and there is nothing like showing them that you have the same feelings as they do to take some of the staleness out of the room. (He also won the case.)

Some lawyers, and maybe some reading this, believe that we should never admit fear or that we don’t know how to get to where we need to be. I disagree if that is how you feel. Facts covered in intellect are not near as powerful as facts covered in passion and truth—whatever the truth may be, including that you are scared. Admitting fear and asking for help immediately makes you real to the jury. Juries respond to “real” much better than they respond to “lawyers,” and juries respond wonderfully to lawyers who are being real, from the heart.

Preparing Your Client

I am going to break this section up into two parts. The first part will deal with preparing your client when you know your client is going to testify, and the second part will be in the case where your client will not testify.

Client is going to testify

I will use a case I had some time ago as an example. I am going to change the fact scenario a little bit so as to avoid any chance of recognition about which case and client I might be talking. (This was a case in another county, but it is still better to be safe with confidences.)

The charge was murder. My client was obviously not a cold-blooded killer; I could tell that the first time we met. The facts were going to be of the sort that the jury would probably believe it was murder if my client did not testify because he was the only one capable of explaining that it wasn’t murder. My client grew up hard and grew up fair. He worked hard for a living, raised good children, and never had asked for a handout from anybody. I would consider his outlook on life as kind of “old school”: Be fair to others, keep your nose clean, work hard, and don’t show much emotion.

That last part—the “don’t show much emotion” part—is the part that was proving dangerous for him as we progressed towards trial. I needed him to be able to “connect” with the jury. I needed the jury to “feel” him, and I needed him to roll back that “old school” protection and allow himself to feel. We did multiple mock direct and cross-examinations. I simply could not get him to allow his emotions about the event to show. In truth, he looked like a cold man when he testified.

At that point I made a decision to employ a psychodramatist to maybe help me crack through my client and get to his heart. Using much of what Katrena Hart teaches, we got to the soft spot in less than two hours. He cried, he cried like a child, and you could tell that emotions that needed to be felt and dealt with came rushing out. The entire process lasted about three hours. He was exhausted, I was exhausted, and we were ready. We were ready because my client had learned that his feelings and showing them were a release, a release he had probably not allowed himself since he was a child.

He processed for about a week what we had done, and we conducted another mock direct and cross-examination. And this “old school” man, this man who had been so closed off, connected with everybody involved and I knew that we would be fine. We were.

Psychodrama is a valuable tool to help when you have a client who you know is covering up his emotions and needs to let them out. It will allow his testimony to speak to the heart of the jury because it is coming from his or her heart, and as I stated above, I firmly believe that juries makes decisions based on what they feel in their heart, not what they think in their head.

Client is not going to testify

This is the more complicated use of the psychodrama method with your client. Every one of us has had a client (or a hundred clients) who, when looking at the evidence and facts, is not going to win a jury trial short of a miracle. There are times that we simply must try the case that should not have been tried because it is what our client wants. There are also occasions when you look at your clients and you know that they are so caught up in their own situations that they have blinders on with regards to the reality of their case and what will likely happen at a trial. This is when it is helpful to get your client to “crawl into the skin” of the jury and maybe even the prosecutor. There are clients that this will not ever help, and for those clients a jury trial will be conducted and the outcome will likely be as predicted. There are also clients who, if they allow themselves to see what others will see, benefit greatly from this exercise and may come away from the process with a different outlook on their situation. This is not an effort to “talk your client into a plea” but rather to assist your client in seeing things as they really are. An example of how this might be done is as follows:

  • Client has been to prison twice before for assault offenses.
  • Client is now charged with aggravated assault.
  • Two eyewitnesses saw client commit the crime.
  • Forensic evidence is insurmountable.
  • Client made statements that hurt him.
  • Client is angry.
  • Client has been getting “jailhouse” advice.
  • Client does not trust you.

As with any issue in your cases, you have been honest with the client regarding the case and the state of the evidence. The prosecutor has offered 20 years in prison, 5 years less than the minimum the jury could give him if he is found guilty. Your client, in his or her anger, has told you countless times that he or she will not “accept” anything, that a jury will just have to “give” it to him or her. If possible, after having spent sufficient time with the client and always being honest, ask the client to be quiet for just a second. Ask the client to close his or her eyes. Ask the client to picture the courtroom. To picture 12 people sitting in the jury seats. To picture the prosecutor explaining each piece of evidence. To picture the jurors and how the evidence must make them feel. To picture the argument the prosecutor will make about how much time the client should spend in prison. To “feel” what a jury will probably feel after hearing the evidence and learning of prior trips to prison.

Have you “told your client to accept the plea bargain”? No. You have done what you are required to do as an attorney—offer honest and frank advice to your client based on the evidence and your experience. Is it always going to work? No. Are there clients who are so angry and distrustful that they will never be able to be anywhere other than in their own head? Yes. Can it open the eyes of some clients to the reality of their situation? Yes. If the client won’t participate and allow the reality to penetrate, will you have to try the case? Yes. Will you sleep better knowing that you did everything you could to allow your client to see his or her situation for what it really is? I hope so.

Preparing Your Case

Obviously, much of what has already been covered is “preparing your case,” but this portion of the story is a general discussion of how this process can assist in the nooks and crannies of your preparation.

What kind of case is it?

Use the “crawling into the skin” concept when starting your case. Get out of your head at some point and free associate with yourself about the charge, what the charge makes you feel, how you are going to handle those feelings, and what scares you about the case. Knowing the parts of your case that scare you at the onset is incredibly helpful in pointing your investigation in the right direction and forces you to begin the process of facing the fears and being honest with yourself. Crawl into the skin of the jury months before you would ever have a trial. What do they need to hear to rule with you? Can that be found in your investigation? What about your case is likely to upset them, and how can you be honest with them about your feelings? Doing all of this on the front side of the case gives you an incredible head start should it go to trial.

Who is the prosecutor (“know thy enemy”)?

I know, this will be an unpleasant journey… but crawling into the skin of the prosecutor can be unbelievably enlightening as to what you need to do to get the proper plea bargain or prepare for trial. Try to look at the case as the prosecutor looks at it. Not in your head, but really crawl into his or her skin and feel it in your heart. If you let the process work it is almost like cheating. You can almost try the case as a prosecutor, making your voir dire for conviction, making your opening statement, putting on your evidence and cross-examining the defendant’s witnesses, and then making your closing argument. This process can literally give you the State’s case before you ever walk into court.

The key to the process and its success is to put your heart into the endeavor, not just your head. You have to let yourself get riled up against your case like a prosecutor would, feel the righteous indignation, the need to convict, the need to imprison. This really does work, and when you crawl back out of their skin and into yours, you will have insights into what you need to do that you would never have had otherwise. Again, it only works if you let yourself really feel it. “Know thy enemy,” and the prosecutor is most certainly the enemy—and most certainly wants to put your client in prison or jail.

Who is the judge (all hail Caesar)?

You have probably been in front of the judge before, probably tried a case before him or her before. Even if you have not, you can ask those who have about the judge and the manner in which he or she tries cases. Do the same exercise you did for the prosecutor: “Crawl into the robe.” You know what your objections will be, you know what your evidence is, and if you crawl into the robe of the judge, you will allow yourself much more insight into how you get what you want during the trial.

Who are you (whoever it is, it is enough)?

The most important skin you must crawl into is your own. I firmly believe that each person, whether eloquent or not, whether a weathered trial attorney or not, can make any winning argument at any time. I believe that as long as you have taken the time to know yourself—not who you wish you were but who you are—you are enough, always. Sounds simple but you can watch any number of trials in any court in this state, or country for that matter, and you will see attorneys being somebody else. A jury, if nothing else, is a collective set of receptors that accept what is real and reject that which is not. Being real, regardless of all the stops and starts, the fumbling, the miscues, and other things common to humanity, is the most powerful tool at any trial lawyer’s disposal. I believe that to be 100 percent true. From the “real” comes passion, and you can feel it; you can feel it in you and so can the jury. Real speaks to the heart, which, in my opinion, is where all verdicts are born.

Who is your client?

This has been addressed to some degree earlier but warrants a little more attention. Get all the information you can about your clients—from them, from their families, from any source you can tap. Then do the exercises described above. Get quiet with yourself and crawl into their skin. Feel how they feel with the State against them, feel how they must see you, feel how jail and their lives have left them. This gives you great insight into your clients that can be helpful in all aspects of the case.

The Bottom Line

Psychodrama. Two words you usually would not want to see linked together. I hope I have adequately explained that it is not magic but can have magical benefits. It is really an exercise in taking a trip from your head to your heart.

Note: This concept of using this psychodrama in the practice of criminal defense work is not something I came up with. I was introduced to this valuable tool while attending the Trial Lawyer’s College at the ranch of Gerry Spence, the legendary attorney, in Wyoming.

Who and What Are We? Lawyers or Salespeople?

Over the years, I have been cognizant of members of the bar who, while having the piece of plastic in their pocket that says they are members of the State Bar, were not living up to the high ideals of the profession. This gave me a sense of unease, but I could not put my finger on the problem.

Then it came to me. I was finally hit with the realization that many of us are not lawyers in the highest sense or counselors at law but rather just salespeople out to make money. Three experiences made me come to that realization.1 These experiences just seemed to hit me all at once and have an impact on me. And mind you, I have been practicing criminal law for over 30 years.

The first experience that made me think about what our calling is, or should be, was when I was appointed to represent a young Black male charged with drug possession in a drug-free zone. I got to meet the young man and he seemed like so many youths of today, uncertain about what he was going to do with his life. His case was set on the magistrate’s docket, and right off I was given a really good deal. The deal was reduce to a Class A possession of a controlled substance, Zanex, with either time served or a two-year deferred. I would get my voucher paid within two weeks (and like everyone else I need the money), and my client gets out of jail. But is that all I should be doing? Is that what lawyering is?

I will not plead anyone until I have investigated the case as to the facts and all applicable law. I also have to know who my client was and what would be in his best interest—not only now but later in life. So many young people might have been diverted and their lives improved had someone done more than process them quickly through the system and get their quick fee.

In this case, I decided to do all I could to get him out of jail and into some kind of counseling. I also decided that given the stop-and-search issues and the constitutionality of the drug-free zone statute, I would do all I could to get the charges dropped. There were serious issues concerning the officer’s detention of the young man and the subsequent search and interrogation.

These issues merit challenge. I do not know if I will succeed and if this will ultimately have a positive impact on this young man, but a quick plea and a quick fee would not have been “law­yering” in my opinion. I will have invested more time and received less money for my time on this appointed case. But I feel that I will have lived up to my oath of attorney, to “discharge [my] duty to [my] client to the best of [my] ability.”2

The next experience that caused me to rethink our profession was when I was in a county court and saw a young associate of a “firm” with a stack of files a foot high, going through each for about five minutes with a prosecutor who was doling out plea offers. I was thinking how in heaven’s name could these clients be getting the benefit of Padilla,3 Lafler,4 and the Performance Standards for Representation on Non-Capital Offenses? The answer is no darn way!

While that lawyer was going through this quick bargain-basement sale, another came in with a daily docket with 50 peo­ple on it getting reset after reset—all the while I waited in line to reset the 2 cases that I had been working on. I thought wow, intense advertising, in-office sales pitches, cut-rate fees, and a lot of money. But is this lawyering? Does either live up to our Oath of Attorney?

The next experience was one that just made me wonder whether this was an honorable profession, one that I could be proud of and continue to be part of. That experience involved a contract lawyer—for a high-volume firm—cutting a quick but ultimately terrible plea deal. This was a young lawyer hired by a high-volume, heavy-advertising firm to handle a felony driving while intoxicated case.

These contract lawyers get a fee that is capped at a certain amount. They are tasked with working the case out in order to get their fee (and thereby make themselves a profit). These capped fees do not envision taking a case to trial. These capped fees don’t even envision the contract lawyer doing the kind of evaluation envisioned by the Performance Standards. And, in my opinion, these capped fees create an inherent conflict of interest between the lawyer’s financial self-interest and the client’s right to diligent, competent representation.

The problem with lawyers contracting to take these capped fees is that it ultimately results in representation that is questionable, at best. This lawyer did not view the video of the stop or of the field sobriety tests. But he made a quick offer to the prosecutor for a long probation with a long jail sentence as a condition. The client, not knowing any better and rightfully relying upon his lawyer, took the plea.

Fortunately for this defendant, a friend of his who is a lawyer referred him to an attorney who takes lawyering seriously. The client was awaiting sentencing and decided to retain the lawyer he was referred to. The newly retained lawyer undertook an investigation and viewed the video. In doing this, he discovered how weak the case was.

After convincing a prosecutor (who is higher up the chain of command) to view the video with him, that prosecutor also had doubts about the merits of the case. The prosecutor who handled the case was brought in to discuss the case. Both prosecutors and the newly hired lawyer went to the judge with a motion for new trial to set aside the guilty plea. The ultimate result was a reduction to a misdemeanor.

What a difference! An attorney who takes his Oath of Attorney seriously and realizes that his relationship with his client is one of uberrima fides—instead of a lawyer who is only concerned with counting the stools.5

These scenarios play out daily in our courts. But is this abiding by our oaths? Is it really lawyering? Is it fulfilling our obligations to our clients and to the courts? Not in my opinion.

I am very proud of my membership in the Texas Criminal Defense Lawyers Association. I am equally proud of my fellow advocates, those who abide their Oaths of Attorney, those who believe in the values of our United States and Texas Constitutions, and those who fight daily to defend and preserve the Rule of Law. My concerns are not with those of us who are mem­bers of this organization, those who are the true advocates. My concerns are with those lawyers who have lost sight of what lawyering really is, and especially with those who are not members of our group.

But what the lawyers depicted in the above scenarios are doing by putting business models and the bottom line first is having a negative impact on our practices, on us individually, and on how others view us. Is it any wonder that used car salesmen continue to have a more favorable opinion among the general public than lawyers do?

So how do we address the concerns I have raised? I am not sure. One possibility would be for TCDLA to propose some guide­lines of our own and to disseminate those guidelines to lawyers who handle criminal cases. Another would be educating the public about what they should expect from those who take on the responsibility of undertaking their cases. Public Service Announcements (PSAs) work great for this sort of thing.

Another could be a willingness on each of our parts to look at previously pled cases when clients who have priors come to us with new cases—looking more closely at those cases not just in terms of how they affect a client’s liability on a new case and how they can be proven up, but on what was done in securing the plea to those cases in the first place. In looking at those previous convictions, if they were the result of guilty pleas, we should look at Padilla, Lafler, and the Performance Standards to determine if the pleas were intelligently and voluntarily entered. In those cases where the pleas do not appear to have been entered intelligently and voluntarily due to the ineffective assistance of counsel, we need to be willing to file post-conviction habeas ap­pli­cations to set aside those pleas. And perhaps we need to set up a committee within TCDLA to accept and file complaints with the State Bar against attorneys whom we see engaged in these practices.6

We are the first line of defense against governmental excess. We are defenders of our Constitutions and of the Rule of Law. Our decisions and our performance can affect people and their families for years to come if not for the rest of their lives. And given our high calling, we must do all we can to make sure that all of us who undertake this calling remain true to the highest ideals of that calling. Help me address these problems. Be silent no longer.

Notes

1. The experiences detailed in this article are those of Leonard Martinez. While this article is written in the first person, Butch Bradt has had similar experiences and agrees with the views and opinions expressed by Leonard Martinez herein.

2. § 82.037, Tex. Gov’t code.

3. Padilla v. Kentucky, 130 S.Ct. 1473 (2010).

4. Lafler v. Cooper, 132 S.Ct. 1376 (2012).

5. This is an expression from the restaurant business. It refers to the profit that can be made from a given number of chairs. To make a given profit, the res­tau­rateur must either raise prices or increase the turnover, increasing the num­ber of patrons in a given hour. The same logic applies to lawyers who have a “volume practice.”

6. Rule 8.03(a), Texas Disciplinary Rules of Professional Conduct requires us to report lawyers who violate the applicable rules of professional conduct.

The Current State of Confrontation

At the conclusion of this year’s session, a splintered Supreme Court authorized the use of laboratory reports during trial without allowing the defendant an opportunity to cross-examine the technician who created the report. Williams v. Illinois 567 U.S. __(2012). This opinion is a slight retreat from recent rulings that broadly interpreted the Sixth Amendment “right of confrontation” in favor of defendants in comparable cases (Crawford v. Washington, 541 U.S. 36, 50 (2004), Melendez-Diaz v. Massachusetts, 557 U.S. 305, 330 (2009), and Bullcoming v. New Mexico, 564 U.S. ____(2011)).

Williams v. Illinois

Justice Samuel Alito, writing for a four-justice plurality, affirmed that the testimony of an expert witness based upon a test that the testifying expert did not personally perform is admissible and does not violate the defendant’s Sixth Amendment rights. The Court held that because the evidence of the third-party test was not offered to prove the truth of the matter asserted (but merely to provide a basis for the conclusions that the expert reached), the prosecution had not infringed on the defendant’s Sixth Amendment right to confront and cross-examine witnesses. The Court’s ruling hinged on the following: First, the government witness testified and concluded that the DNA report in question matched a profile report the state laboratory had previously produced using a sample of Williams’ blood. Second, the government witness proffered was available to the defendant for cross-examination during trial. Accordingly, the Court concluded that the testimony offered did not fall within the bounds of a Confrontation Clause violation because the results were considered (by the testifying witness) for the limited purpose of seeing whether it matched the profile report from the state laboratory. The DNA report was not offered to prove the guilt of the defendant, as Williams was not a suspect at the time the test was conducted.

In Williams, the defendant (Sandy Williams) was convicted of two counts of aggravated criminal sexual assault and one count each of aggravated kidnapping and aggravated robbery in Illinois state court. At the defendant’s bench trial, Sandra Lambatos, a forensic specialist at the Illinois State Police lab, testified that she matched a DNA profile (of the defendant) previously produced by a private laboratory, Cellmark, to a profile the state laboratory produced using a sample of the defendant’s blood. Lambatos testified that Cellmark was an accredited laboratory and that business records showed that the evidence was taken from the victim, sent to Cellmark, and returned. That was the extent of her testimony.

The defense moved to exclude, on Confrontation Clause grounds, Lambatos’ testimony insofar as any reference to the Cellmark report as “hearsay.” The prosecution countered that the defendant’s Confrontation Clause rights were satisfied because he had the opportunity to cross-examine the expert who had testified as to the matching reports. The trial court admitted the evidence and found Williams guilty. Both the Illinois Court of Appeals and the Illinois Supreme Court affirmed the conviction, concluding that Lambatos’ testimony did not violate Williams’ Confrontation Clause rights because Cellmark’s report was not offered into evidence to prove the truth of the matter asserted.

The decision in Williams departs to some degree from the recent Supreme Court rulings referred to by the defense bar as “the trilogy.” However, the plurality in Williams felt that its decision was consistent with both the Melendez-Diaz and Bullcoming opinions (where the forensic reports were introduced for the purpose of proving the truth of what they asserted). Here, Cellmark’s report was considered and admitted for the limited purpose of seeing whether it matched something else, and the relevance of that match was established by independent circumstantial evidence—which showed that the report was based on a sample from the crime scene. Furthermore, the Court specifically noted in Williams that “the forensic reports in Melendez-Diaz and Bullcoming ran afoul of the Confrontation Clause because they were the equivalent of affidavits made for the purpose of proving a particular criminal defendant’s guilt.” In contrast, the Court went on to note in Williams that the primary purpose of the Cellmark report was to catch a dangerous rapist who was still at large, and not to obtain evidence for use against the defendant. Accordingly, there was no “prospect of fabrication” in the Court’s eyes.

Justice Elena Kagan (joined by Justices Ginsburg, Sotomayor, and Scalia) wrote a vigorous dissent, proclaiming, “Under our Confrontation Clause precedents, this is an open-and-shut case.” She found this case to be in the same vein as the trilogy of cases mentioned above where the Court found that in order to satisfy the requirements of the Confrontation Clause, the defendant must have the opportunity to cross-examine the analyst who performed the test. Without such an opportunity, an unreliable report is assumed to be true.

More specifically, the dissent suggests that the DNA profile report produced by an analyst at Cellmark’s laboratory is identical to the report in Bullcoming (and Melendez-Diaz) in “all material respects.” Therefore, Justice Kagan wrote, “under this Court’s prior analysis, the substance of the report could come into evidence only if Williams had a chance to cross-examine the responsible analyst.” However, that is not what happened.

“Instead,” wrote Justice Kagan, “the prosecutor used Sandra Lambatos—a state-employed scientist who had not participated in the testing—as the conduit for this piece of evidence.”

Finally, the dissent disagreed with the plurality’s conclusion that Cellmark’s report was not offered into evidence to prove the truth of the matter asserted, arguing that the “admission of the out-of-court statement in this context has no purpose separate from its truth; the factfinder can do nothing with it except assess its truth and so the credibility of the conclusion it serves to buttress.”

The “Trilogy”

The three primary opinions authored by the United States Supreme Court in the last ten years dealing with a defendant’s Sixth Amendment right to confront the witnesses against him started with the seminal opinion of Crawford v. Washington. Briefly, the facts of the Crawford case are as follows: Michael Crawford stabbed a man that he claimed was trying to rape his wife. During Crawford’s trial in state court, prosecutors played his wife’s tape-recorded statement given to the police describing the stabbing for the jury. The statement contradicted Crawford’s claim that he stabbed the man in defense of his wife. Crawford argued that allowing the jury to hear his wife’s prerecorded statement violated his Sixth Amendment right of confrontation because he was not allowed any opportunity to cross-examine the recording. Citing Ohio v. Roberts, 448 U.S. 56 (1980), the state Supreme Court upheld Crawford’s conviction. Roberts was a 1980 opinion in which the U.S. Supreme Court upheld an Ohio state court conviction where the state was allowed at the trial level to offer the preliminary hearing transcript of a critical witness in lieu of live testimony. The U.S. Supreme Court held that the use of the transcript testimony did not violate the Confrontation Clause because it bore an adequate “indicia of reliability”—and that in such cases, this type of evidence would fall “within a firmly rooted hearsay exception.”

In a unanimous opinion written by Justice Scalia, the Court reversed Crawford’s conviction and ruled that his Sixth Amendment right to confront and cross-examine witnesses against him had been violated. Defendants have the constitutional right to confront witnesses and cross-examine their testimony in criminal prosecutions. This holding directly overruled Roberts. In summary fashion, the Court held that the framers of the Constitution designed the Confrontation Clause to strictly prohibit out-of-court testimony as evidence against a defendant—again, without the benefit of the defendant being allowed to cross-examine the testimony.

In Crawford, Justice Scalia recited a detailed history of the Confrontation Clause. He went on to describe the context in which the framers of the Constitution drafted the clause and gave numerous examples of how American courts have interpreted the clause over the years. Scalia concluded that the Confrontation Clause of the Sixth Amendment applies to any “witnesses” against the defendant, meaning any person, statement, or document whose purpose was to “bear testimony.” The Crawford opinion has been consistently viewed as a bellwether case for defendant’s rights. It had an immediate and far-reaching effect in criminal courts nationwide. Previously, prosecutors had been enjoying a fair amount of leeway involving the use of affidavits and lab reports (where they gained admission through various exceptions to the hearsay rule). In Crawford, the Court expressly held that any out-of-court statement that was “testimonial in nature” was not admissible unless the defendant had the opportunity to cross-examine the declarant.

In Melendez-Diaz v. Massachusetts, the Court applied the standard as set forth in Crawford to a state forensic laboratory report. Briefly, in the prosecution of a drug case against Melendez-Diaz, the trial court allowed lab reports identifying the substance as cocaine without any testimony from the analyst. In a 5–4 decision, the Supreme Court held that because the lab report was prepared for use in a criminal prosecution, the Sixth Amendment Confrontation Clause demanded that the defendant be given the right to cross-examine the author of the lab report. As set forth in Crawford , the Supreme Court held that the laboratory report prepared and used in a criminal prosecution was “testimonial in nature,” and that the defendant had a fundamental Sixth Amendment right to confront and cross-examine the analyst who prepared the report prior to it being admissible.

In 2010, the Court revisited the Crawford and Melendez-Diaz opinions in a case involving a laboratory report of a blood alcohol reading in a DUI case. Once again, and in a 5–4 decision, the Court held a line that it created in Crawford. In Bullcoming v. New Mexico, the Supreme Court held that the admission of the blood alcohol report without the actual testimony of the person who prepared the report violated Bullcoming’s Sixth Amendment rights. Specifically, Justice Ginsburg stated, “The Confrontation Clause (of the Sixth Amendment) does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification (as to its accuracy), made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform the test. . . .”

Conclusion

The trilogy opinions had a huge impact in helping defendants accused of DUI or drug charges obtain a fair trial where they are allowed to cross-examine the laboratory analyst who performed the examination. Any breath alcohol test, blood alcohol test, or forensic drug examination of any type must be accompanied by the officer or laboratory technician who per­formed the test before it can be admissible. Critically, this allows a defendant the right to vigorously confront and cross-examine the witness regarding the obtaining, handling, storage, and testing of the sample. In Williams, the Court pares a defendant’s right to confront laboratory test evidence prepared by an unavailable witness. However, the Williams opinion does not appear to infringe upon a defendant’s right of confrontation where the laboratory report offered would be considered “testimonial in nature” and “offered as proof of truth of the matter asserted.”

Poaching Soiled Dove: Are Prostitution Stings Illegal Under Texas Law?

Criminal defense lawyer, sometimes gunfighter, and son of an even more famous father Temple Lea Houston began his famous “soiled dove plea” on behalf of alleged prostitute Minnie Stacey with the words, “one of our own sex was the author of her ruin, more to blame than she.” While more than a century later our society may have moved beyond such gender baiting, often the “author of her ruin, more to blame than she” is a law enforcement officer engaged in an undercover investigation, the fruits of which are arguably inadmissible.

Prohibition on Illegally Obtained Evidence

The evidence against many defendants charged with prostitution cases is obtained by law enforcement as a result of violations of the same criminal statute. This evidence is obtained illegally in so-called “stings” under the belief that their conduct is excused by law. Whether this is true or not remains an open question.

Texas Code of Criminal Procedure Article 38.23 states that “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”1

Section 43.02 of the Texas Penal Code states that a person commits the offense of prostitution “(a) . . . if he knowingly (1) offers to engage, agrees to engage, or engages in sexual conduct for a fee; or (2) solicits another in a public place to engage with him in sexual conduct for hire. (b) An offense is established under Subsection (a)(1) whether the actor is to receive or pay a fee. An offense is established under Subsection (a)(2) whether the actor solicits a person to hire him or offers to hire the person so­lic­ited.”2

Unlike most other crimes in Texas law, the specific intent to go through with the actual sex act is not required in order for the offense to have been committed.3 Accordingly, the officer’s intent is irrelevant to the legality of their conduct. Moreover, police officers often, according to defendants, do engage in the sexual act that is the subject of the agreement, negating the point entirely.

There are many permutations of how undercover peace officers commit the crime of prostitution as part of their investigations. For example, many officers solicit a particular sex act from the suspect for a fee in violation of Section 43.02 of the Texas Penal Code. The suspect’s alleged agreement, which is frequently the basis of the charges against him or her, could only have been obtained in reply to and/or as a result of officer’s illegal solicitation. If parties to a prostitution crime are compelled to testify at trial about their participation in the offense, they are immune to prosecution.4 This testimonial immunity, however, does not authorize the commission of the offense in the first place.

Testimonial immunity merely prevents the assertion of the privilege against self-incrimination by a party to the offense who is compelled to testify.5 It is available to any party, not just police officers, and applies not only to Prostitution, but Promotion of Prostitution, Aggravated Promotion of Prostitution, and Compelling Prostitution, the latter three of which are often difficult to prove without accomplice testimony.6 It does not immunize a party, including an undercover officer who committed the crime but is not ever called to testify.

The affirmative defense created for victims of human trafficking in the prostitution law is illustrative of this point.7 It protects a class of people who may have been forced to commit the offense, yet will never be called to testify against anyone. No similar affirmative defense exists for peace officers, who may have been ordered by a superior to commit the act, but also may not ever be called to testify.

This frequently occurs in “stings,” where a hotel or motel room has hidden cameras and microphones and the officer posing as the “john” or prostitute in the recording is identified by other witnesses—but is never called to testify. So long as the other witnesses are able to authenticate the recording and the images or voices thereon, it may be admissible, and the undercover officer’s testimony unnecessary. In such trials, the officer who was a party to the offense is not immunized, was not otherwise authorized to do so, and is potentially subject to prosecution.8

Had the legislature intended to provide police officers with more than mere testimonial immunity, it could have done so, as it has done in many other situations as discussed below. “It is a well-known rule of statutory construction express mention or enumeration of one person, thing, consequence, or class is tantamount to an express exclusion of all others.”9 Accordingly, when officers or other witnesses inexcusably violate Texas Penal Code Section 43.02 as the quid pro quo for the accused’s crime, to allow it into evidence would seem to violate the plain language of Texas Code of Criminal Procedure Section 38.23.10

No Grant of Authority to Officers to Commit Prostitution

The same statute that prohibits the use of illegally obtained evidence also contains an exception for officers acting on good faith upon a warrant issued by a neutral magistrate.11 However, as many investigations are used to develop the probable cause required by a warrant, the Texas Legislature has passed numerous statutes authorizing law violations necessary for law enforcement to carry out its tasks.

The Texas Penal Code has at least 15 provisions allowing government agents to violate the listed laws in order to conduct investigations and perform their official duties.12 Likewise, the Texas Health & Safety Code provides for law enforcement to commit law violations in furtherance of their duties or investigations relating to drug crimes.13 The Texas Alcoholic Beverage Code makes similar provisions authorizing minors to violate the law as a part of law enforcement activities.14 Prostitution is not among them.

Like prostitution, each of these law violations is unique in that there is no specific intent requirement or the mere conduct, itself, is a crime. This characteristic is what necessitates the specific authorizing statue. Contrast this with the classic undercover investigation such as a solicitation for murder, where the officer can never have violated the law because he never had the specific intent to actually commit the murder or a theft ring where there was no intent to permanently deprive the owner of the property.

There is no “catch-all” statute or principal of common law authorizing police to violate the law. While it is certainly within the legislature’s prerogative to create such a broad statute or a specific law authorizing prostitution stings, it has not done so.

Law Violation Unnecessary

The commission of the offense of prostitution by undercover officers is not only unauthorized, it is also unnecessary. Law enforcement may conduct effective undercover prostitution investigations without violating the law. For example the undercover officer can pose as a “john” who is approached by a prostitute and the recipient of the offer to engage in sex for a fee. Likewise, an undercover officer can pose as a prostitute and let someone solicit him or her without making the first and illegal statement. Third, an officer may pose as a mere bystander at a bar, on a sidewalk, or elsewhere and witness an offer and agreement by two suspects—and then arrest both. A violation of the law is not necessary to conduct a legal investigation. Had the leg­islature intended to authorize such conduct, it would have done so as it has in many numerous instances.

Does It Even Matter?

The Texas Court of Criminal Appeals has never dealt directly with this issue, though two lower courts of appeals have touched on it.

In a 1988 appeal from a juvenile delinquency proceeding, the El Paso Court of Appeals dealt with the conflict between Tex. Pen. Code Tex. Pen. Code § 43.06, which allows conviction on the basis of uncorroborated testimony of a party, and Tex. Fam. Code § 54.03(e), which requires corroboration of accomplice testimony. It held that an undercover policeman was not an accomplice if he does not bring about the crime but merely obtains evidence to be used against those engaged in crime and if he cannot be prosecuted for the offense charged.15 This ruling, however, did not address an actual CCP 38.23 challenge and failed to recognize the difference between testimonial immunity and exemption under the law.

More recently, in 2000, the Austin Court of Appeals dealt with the issue head on. In a case involving a surreptitious recording obtained by an undercover officer, it ruled that 38.23 did not apply in prostitution stings because its purpose is to deter unlawful conduct violating the rights of suspects, and that the undercover officer did not violate the defendant’s rights.16 The opinion, however, did not contain any substantive rights anal­ysis—which may leave open the door to a challenge based upon clearly articulated affected rights. Regardless, neither the Austin nor the El Paso Court of Appeals set the law of the land, and until the Texas Court of Criminal Appeals rules otherwise, the issue is not settled.

Given the state of Texas criminal jurisprudence, one cannot reasonably expect the CCA to reach a different conclusion. However, with the elevation of a fourth prostitution to a state jail felony and other legislative changes, the odds are increasing that it may ultimately require their attention.

I raised the issue in a misdemeanor trial years ago and had my motion to suppress denied, but request for a “38.23 Instruction” granted. The finer points of my argument were lost on the six female jurors, but it didn’t matter. They knew that they were more “creeped out” by what the vice officers did than what my client was and so they acquitted her. And, perhaps that’s the real soft underbelly of prostitution stings: They’re not only illegal; they’re also vulnerable to exploitation and condemnation by counsel.

Temple Lea Houston won his famous prostitution case, the all-male jury acquitting Ms. Stacie after a mere ten minutes. They may have accepted their part in the fall of the woman on trial and let her go out of guilt. Modern trial lawyers who make police officers complicit in the crime of the accused may effectively use the law to acquit theirs.

Notes

1. Tex. Code Crim. Pro. Art. 38.23(a) (Vernon’s 2010).

2. Tex. Pen. Code § 43.02 (Vernon’s 2007).

3. Mattias v. State, 731 S.W.2d 936, 937 (Tex.Crim.App. 1982).

4. See Tex. Pen. Code § 43.06.

5. Whether a police officer who voluntarily testifies would be afforded the protections of this statute is an open question.

6. Tex. Pen. Code § 43.02, 43.02, 43.04, and 43.05.

7. Tex. Pen. Code § 43.02(d).

8. It should be noted that in the unlikely event of a prosecution of an officer for his participation in prostitution, the defense of “Public Duty” would likely be available. However, the availability of a defense excluding criminal responsibility is not authorization to commit the crime. See Tex. Pen. Code § 9.21.

9. Ex parte McIver, 586 S.W.2d 851, 856 (Tex.Crim.App. 1979).

10. I anticipate some appellate court may eventually opine that the allowance for uncorroborated testimony of a party obviates 38.23.

11. Id., at Art. 38.23(b).

12. Unlawful Interception, Use, or Disclosure of Wire, Oral or Electronic Communications, Tex. Pen. Code §§ 16.02(c)(2) and (c) (8)(C); Unlawful Use of Pen Register or Trap & Trace Device, § 16.03 (c)(3); Unlawful Access to Stored Communications, § 16.04(e)(4); Illegal Divulgence of Public Communications, § 16.05(c)(3); Unlawful Installation of Tracking Device, § 16.06 (d)(2); Criminal Trespass, § 30.05(c); Tampering With Identification Numbers, § 31.11(b)(2); Money Laundering. § 34.02(c); Witness Tampering, § 36.05(c); Prohibited Substances & Items in Correctional Facility or on TDCJ Property, § 38.11(e); Obstructing Highway or Other Passageway, § 42.03 (a); Abuse of Corpse, § 42.08(a) and (e); Cruelty to Animals, § 42.09 (f) and (h)(B); various weapons laws, §§ 46.15 (a); 46.02 and 46.03; 46.035 (h-1); 46.04(c); and 46.05(b); Gambling, § 47.09(a)(3).

13. Possession of a Controlled Substance, Tex. Health & Safety Code § 481.062; Manufacture With Intent to Deliver or Delivery of Simulated Controlled Substance, § 482.002(b)(1); Possession of a Dangerous Drug, § 483.041(c)(5); Contributing to the Delinquency of a Narcotics Addict, §§ 463.011 and 463.013.

14. Purchase of Alcohol by a Minor. See Tex. Alcohol & Bev. Code § 106.02(a); Possession of Alcohol by a Minor, § 106.05(b)(3).

15. J.A.F.R. v. State, 752 S.W.2d 216, 216–217 (Tex.App.—El Paso 1988, no writ)—dealing with the conflict between Tex. Pen. Code Tex. Pen. Code § 43.06, allowing conviction on the basis of uncorroborated testimony of a party, and Tex. Fam. Code § 54.03(e), which requires corroboration of accomplice testimony—held that “[a]n undercover agent is not an accomplice so long as he does not bring about the crime but merely obtains evidence to be used against those engaged in crime. Lopez v. State, 574 S.W.2d 563, 565 (Tex.Crim.App.1978). One is not an accomplice if he cannot be prosecuted for the offense charged. Carrillo v. State, 591 S.W.2d 876, 882 (Tex.Crim.App.1979).”

16. Watson v. State, 10 S.W.3d 782, 784 (Tex.App.—Austin 2000, no pet.), “It has been stated that the primary purpose of the exclusionary rule, Article 38.23, is to deter police activity that could not have been reasonably believed to be lawful by officers engaging in the activity. See Drago v. State, 553 S.W.2d 375, 378 (Tex.Crim.App.1977); Jimenez v. State, 838 S.W.2d 661, 665 (Tex.App.—Houston [1st Dist.] 1992, no pet.); Curry v. State, 831 S.W.2d 485, 487 (Tex.App.—Houston [14th Dist.] 1992, pet. ref’d); Reed v. State, 818 S.W.2d 569, 571 (Tex.App.—Beaumont 1991, pet. ref’d). We believe a more accurate expression of Article 38.23(a)’s “primary purpose . . . is to deter unlawful actions which violate the rights of criminal suspects.” Carroll, 911 S.W.2d at 221. Because Officer Small did not violate appellant’s rights, appellant lacks standing to complain that the evidence against him was unlawfully obtained. See Chavez v. State, 9 S.W.3d 817, 819 (Tex.Crim.App.2000) (citing Fuller v. State, 829 S.W.2d 191, 201-02 (Tex.Crim.App.1992)).”

November 2012 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
18 | Psychodrama: Preparing Yourself, Your Client, Your Case – By Mark Griffith
26 | Who and What Are We? Lawyers or Salespeople? – By Leonard Martinez & L.T. “Butch” Bradt
30 | The Current State of Confrontation – By Steve Sumner
33 | Poaching Soiled Dove – By Q. Tate Williams

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

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

President’s Message: On the Shoulders of Giants – By Lydia Clay-Jackson

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Edmund Burke (1729–1797) wrote, “Those who don’t know history are destined to repeat it.” Burke was a British statesman and philosopher, and generally known as the philosophical founder of modern political conservatism. There are many spin-offs of his famous quote, but the premise behind them all is sound.

A young lawyer came up to me in the courthouse and said he read my article and wondered why Gideon was so important: “Everybody knows poor people have to have a lawyer.” Although his comment was shocking, it did cause me to reflect on how commonplace it has become to take the efforts of others as a “given.”

How did you become a criminal defense lawyer? Some of our number may answer, “I was forced into it because of tort reform.” Others may answer, “My civil firm had layoffs.” Still others may answer, “There was no other field in which I wanted to practice.” It makes no difference the reason because we are all in this together.

Our history as criminal defense lawyers is one of blood, sweat, and cursing. Do you know about the contribution of William Garrow, a British barrister? He started our adversarial court system. More important, he introduced the phrase “presumed innocent unless proven guilty,” insisting that accusers and their evidence be thoroughly tested in court. Do you know the history of John Adams’ defense of British soldiers? What about Gladys Root’s relentless defense of those accused of child sex crimes? Closer to home (and history), do you know about the court battle between Richard Haynes and Ernie Ernest? One of the characteristics these lawyers have in common is the uncompromising way they had in defending the accused (regardless of the character, or purse, of the accused). Every one of these defense lawyers found honor in standing as the trumpet for their client, regardless of the outcome of the lawsuit.

Every one of these criminal defense lawyers has paved a path for us to follow. A path that has fewer ruts because of what they did before us. Because of criminal defense lawyers like these, we have fewer “wheels” to invent.

Being a TCDLA member, you know that means more than just showing up for court. You know it means at times biting your tongue when the judge looks at you and asks if you have any authority “for that”—most often, “that” being your request for relief or information from the government/state that will help ensure a level playing field. When all you really want to blurt out is, “Judge, we are at the presumption of innocence phase and the burden is solely on the government/state to detail how giving the accused what is asked for is not in the interest of justice.” Alternatively, that other phrase that is thought but not spoken: “Judge, we want you to grant us the presumption of innocence advantage that you will tell the jury we have.”

Thus, as criminal defense lawyers, we come to court prepared with our arguments and authority seeking to have not only the letter of the law, but the spirit as well, serve our clients. We do this as criminal defense lawyers because we really believe that the presumption of innocence is not a legal fiction. Can you imagine how effective we would be if we did not believe in this fundamental principal of law and continuously argue this point?

Do you remember burning the midnight oil researching a point of law or an issue you were to argue? Do you further remember the frustration you felt when you found that all the law was against you? I do. I had Professor Hippard for criminal procedure, and he told the class when you find yourself in such a position, all you have left is to “whine, whimper and snarf—you may not get the relief, but make the record anyway.” Therefore, we as defense lawyers make the record, and lawyers not unlike J. David Niehaus are able to change the law. David Niehaus was the defense lawyer who argued the case in Batson v. Kentucky, 476 U.S. 79 (1986). Niehaus’ success would have been far more difficult if defense lawyers had not kept arguing the point.

Many county commissioners, and unfortunately some judges, ask the same question as that aforementioned young lawyer. They do not blink (or give a thank you) when the defense is borne by the defense attorney (especially financially), in the guise of “flat fees.” However, to give a short answer to that young lawyer—and I believe Abe Fortes said it best when he argued Clarence Gideon’s case before the Supreme Court—“Even Clarence Darrow knew he needed a lawyer when he was charged with jury tampering.”

As always, Good Verdicts to you all.

-The Hat Lady

Executive Director’s Perspective: The Busy Season – By Joseph A. Martinez

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Special thanks to Carlos Garcia (Austin), Rick Wardroup (Lubbock), Larry Renner (Santa Fe, NM), and E. X. Martin (Dallas), our course directors for the 10th Annual Forensics Seminar held in Dallas in October. This year’s event had forensic specialists presenting on topics such as Crime Scene Processing, Investigation Failures, Qualification of Experts, Autopsy, DNA, and Case Study in Investigative Bias. There was also a crime scene re-creation and forensic analysis done by the Dallas Crime Forensic Department. Thanks to everyone’s efforts we had 100 attendees. In conjunction with the Forensics seminar we had an Innocence Clinic for students to attend with exonorees Billy Smith, Corey Session, Johnny Pichback, and Charles Chapman sharing their experiences. Course directors Jeff Blackburn (Amarillo) and Gary Udashen (Dallas) provided law students from throughout the state an experience to remember. We had 70 attendees.

Special thanks to Edward Nolan (Laredo), TCDLA member and President of the Webb County Bar, for allowing the Criminal Defense Lawyers Project (CDLP) to co-sponsor the Criminal Law CLE: Trends and Updates Seminar held in Laredo in October. Thanks to the Laredo-Webb County Bar Association’s efforts we had 33 attendees.

Special thanks to Michael R. Gibson (El Paso) and the El Paso Criminal Law Group for allowing TCDLA to exhibit at their recent 20th Annual Criminal Law Seminar held in Ruidoso, New Mexico, in November. Texas Criminal Defense Lawyers Educational Institute made a contribution of $2,500 for the seminar. TCDLA would like to recognize Federal District Judge David Guaderrama who, 20 years ago when he was the Public Defender in El Paso County, saw a need for quality CLE for criminal defense lawyers and started this annual seminar.

Special thanks to Patrick McCann (Houston), Derick Smith (Stafford), and David Moore (Longview), our course directors for the CDLP Gideon’s Trumpet seminar held in Sugar Land in November. Thanks to their efforts we had 76 attendees.

Special thanks to Jay Norton (San Antonio), TCDLA member and President of the San Antonio Criminal Defense Lawyers Association, for allowing CDLP to co-sponsor the Jim Greenfield Memorial Nuts ’n’ Bolts seminar. Also special thanks to Aissa Garza, Executive Director of SACDLA. Thanks to their efforts we had 117 attendees.

Please make plans to attend the Defending Those Accused of Sexual Assault CLE in Houston December 6–7, 2012. Attendees will receive as part of the seminar materials the NEWLY released Cheat Sheet: Defending Clients Accused of Sexual Assault. TCDLEI is offering scholarships; contact the TCDLA office for more information. Come enjoy the HCCLA Holiday party Thursday, December 7th, the Houston nightlife, and stay over to attend the TCDLA Board of Directors Meeting.

The TCDLA Board of Directors invites you to attend the next quarterly board meeting on Saturday, December 8, at 10:00 am. The seminar and board meeting will both be at the Crowne Plaza Hotel on Smith Street in downtown Houston.

Please join President Lydia Clay-Jackson (Conroe) for the Annual TCDLA Membership Trip and Cruise CLE. The dates for the Trip are February 16–21, 2013. There will be six hours of CLE over the five-day cruise. You do not need a passport. Come share the fun, the summer-like weather, and great company.

November 12, 2012, is the first day bills can be filed by Texas legislators in anticipation of the Texas Legislative Session. TCDLA’s Legislative Committee, chaired by Mark Daniel (Fort Worth), has been preparing for the session. The TCDLA lobby team of Allen Place (Gatesville), David Gonzalez (Austin), and Kristin Etter (Austin) are prepared to ensure that the rights of the accused in Texas are protected. The TCDLA Legislative Com­mittee will meet in Houston on December 7 in Houston.

Please sign up for the TCDLA Legislative Listserve to follow legislative news. Please call the Home Office (512-478-2514) and a staff member will add you to the listserve.

Please contact any members of the Legislative Committee if you have any particular issue you would like TCDLA to address during the upcoming session. Here are the committee members:

Mark Daniel (Fort Worth), Chair
Lydia Clay-Jackson (Conroe)
Bobby Mims (Tyler)
Robert “Bobby” Lerma (Brownsville)
Susan Johnston (Waco)

TCDLA/CDLP will have three days of Capital training from February 4–6, 2013, in San Antonio. February 4–6 will be the second Capital Case Litigation Initiative (CCLI), where criminal defense lawyers and their team will bring their own capital case(s) to the training. Travel expenses will be covered. Get your application in today—space is limited. February 7–8 will be a Capital and Mental Health seminar. Both seminars will be held at the historic Sheraton Gunter Hotel in downtown San Antonio. So please make plans to come and enjoy the San Antonio Riverwalk and attend the outstanding Capital and Mental Health seminars.

The 37th Annual Texas Criminal Trial College (TCTC) will be held March 17–22, 2013, on the Sam Houston State Uni­ver­sity campus in Huntsville. Lydia Clay-Jackson (Conroe) and Tim Evans (Fort Worth) are Deans of Students and Faculty, respectively. The course is designed for those whose criminal defense trial experience ranges from 0–10 jury trials. Many will be younger lawyers, but some will have recently left prosecution or changed areas of practice. The College is committed to responsible racial and gender balance.

For this coming TCTC, 80 lawyers will be accepted. The application is on the TCDLA website at www.tcdla.com and on page 15 of this issue, or you can call the Home Office and have one faxed to you (512-478-2514). The deadline for the submission of the applications is noon, January 18, 2013.

Good verdicts to all.

Ethics and the Law: Talk Is Cheap

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Several calls to the hotline have concerned threats from prosecutors for interviewing witnesses. To properly do our job we must talk to or have someone else talk to witnesses. The better practice is to have an investigator talk and tape all interviews to keep you, the lawyer, from being accused of some impropriety. There are some very honorable prosecutors, but as we have seen, there are some who hide evidence and try to prevent justice.

As soon as you get a felony case, see if it is one where a no-bill is possible. All sorts of things can be presented that cannot at trial—such as polygraphs, letters, and your written theory of the case. Plan on getting a polygraph done on your client and refer to an article by Gary Trichter, “Putting on a Defense Before the Grand Jury” (Voice for the Defense, February 1989) about grand jury presentations.

If you get appointed or hired on a felony case before indictment, you need to immediately consider the idea of presenting a defense at the grand jury level. Many opportunities may be lost if you do not act quickly and ethically. Send a letter to the district attorney handling the case and the district attorney heading the grand jury section stating that you intend to present evidence. You can also send a letter to the grand jury foreman of a particular grand jury in session requesting that they review your case. DO NOT LET the DA BULLY you on this. Refer to Attorney General Opinion H-508 (January 28, 1975), which allows correspondence of counsel addressed to a grand jury, and a copy which is delivered to the prosecuting attorney is not prohibited as long as it contains no threat.

Some counties may give you some difficulty, so be prepared to show them the material in this article. Sad to say I have heard lawyers say they don’t want a no-bill because it keeps them from getting a fee. These people are vultures and are not real lawyers and should go turn in their bar card. If you do this right, you can charge a fee for your time in preparing your client, witnesses, and materials that you intend to present. Sometimes you will find that the DA in marginal cases would rather have a case no-billed than explain to the complaining witnesses and supervisors why they dismissed a case. Preparing all the investigation, research, and assembling documents takes many hours. Prepare a booklet for each grand juror, the prosecutor, your client, and the original for your file. Even if your case gets indicted, if grand jurors had questions, the DA may realize the case is weak and you may end up with dismissal, reduction of charges, or in a better position to strike a deal.

David Sheppard, co-chair of the Ethics Committee from Austin, helped a lawyer who needed to know if she could ethically talk to a person in jail who had a lawyer about an unrelated case. Here is what he says:

Lawyer A needs to talk to a defendant in jail who has Lawyer B. Lawyer A needs to talk to person regarding another case not related to case involving Lawyer B:

Applying Rule 4.02, it appears that your contact with the prisoner about his possible testimony in your case is not prohibited. The prohibition applies to situations in which “the lawyer knows (the person being contacted) to be represented by another lawyer regarding that subject.” The operative term, of course, is “regarding that subject.” While the prisoner did have counsel, that representation was related to another case . . . not the case against your client.

There isn’t a lot written on this issue. Of interest, though, is ABA Formal Opinion, 95-396 (July 28, 1995), at 14 & n.42, which says that if the government has indicted a defendant for one crime, the rule does not prohibit the prosecutor from communicating with the defendant, either directly or through investigators, about a different crime. This approach, of course, has been adopted by the courts: McNeil v. Wisconsin, 111 S.Ct. 2204 (1991), and Guidry v. State, 9 S.W.3d 133 (Tex. Crim. App. 1999). So, if it’s okay for the prosecutor… it’s okay for the defense counsel.