Monthly archive

January 2014

January/February 2014 SDR – Voice for the Defense Vol. 43, No. 1

Voice for the Defense Volume 43, No. 1 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

The Sixth Circuit failed to apply the doubly deferential standard of review recognized by Supreme Court case law when it refused to credit the state court’s reasonable fact-finding and assumed counsel was ineffective where the record was silent. Burt v. Titlow, 134 S. Ct. 10 (2013).

        D filed a federal habeas petition, challenging the state court’s denial of his ineffective assistance claim. The Sixth Circuit reversed the denial, finding that the factual predicate for the state court’s decision was an unreasonable interpretation of the record. The Supreme Court reversed the Sixth Circuit on the ground that the state court’s decision that D was adequately advised to withdraw a guilty plea was reasonable and supported by the record.

        Although the record supported the state court’s factual finding that the attorney had advised withdrawal of a guilty plea only after D’s proclamation of innocence, the Sixth Circuit relied on the attorney’s statement that the decision to withdraw the plea was based on the fact that the State’s plea offer was substantially higher than the Michigan guidelines for manslaughter to conclude that the state court’s finding had been sufficiently rebutted. However, the state court was well aware of the attorney’s representations and recognized that asserting innocence and refusing to plead guilty to higher-than-normal punishment was consistent. Accepting the state’s court’s factual determination that D proclaimed innocence to the attorney, the Sixth Circuit’s Strickland analysis could not be sustained where D claimed innocence only days away from offering self-incriminating testimony in open court pursuant to a plea agreement involving an above-guidelines sentence. Moreover, the Sixth Circuit essentially ignored the strong presumption of effectiveness. Although the attorney’s conduct was “far from exemplary,” it was not ineffective.

Fifth Circuit

The evidentiary hearing was held by the district court’s discretion because the district court first found on the state-court record that the state courts committed legal error. Smith v. Cain, 708 F.3d 628 (5th Cir. 2013).

        Federal district court was not precluded under Cullen v. Pinholster, 131 S. Ct. 1388 (2011), from holding an evidentiary hearing because the district court first concluded, solely on the state-court record, that the state courts committed legal error, as required under 28 U.S.C. § 2254(d)(1), through the courts’ “unreasonable application of clearly established Federal law.” Thus, the evidentiary hearing was committed to the district court’s discretion, subject to § 2254(e)(2). Because the federal district court did not abuse its discretion in conducting the hearing, the Fifth Circuit reviewed D’s claim (of racial discrimination in jury selection) in light of the federal evidentiary record. Based on that rec­ord, the Fifth Circuit held that D had failed to carry his burden of proving that the prosecutor’s race-neutral explanations for striking two black panelists were a pretext for purposeful discrimination; the Fifth Circuit affirmed the district court’s denial of federal habeas relief.

D’s motion clearly went to the merits of his habeas claim and thus was an unauthorized successive habeas petition that the district court had no authority to consider. United States v. Zuñiga Hernandes, 708 F.3d 680 (5th Cir. 2013).

        Where D had been previously denied federal habeas relief under 28 U.S.C. § 2255, D’s post-judgment motion—purportedly a motion for relief from judgment under Fed. R. Civ. P. 60(b)(6)—was a successive habeas petition that the district court could not consider unless COA authorized its filing. Where a Rule 60(b)(6) motion advances one or more substantive claims, as opposed to a merely procedural claim attacking some defect in the integrity of the federal habeas proceedings, the motion should be construed as a successive § 2255 motion. The Fifth Circuit dismissed D’s appeal.

A violation of the prophylactic rules of Miranda and its prog­eny does not require suppression of the physical fruits of otherwise voluntary statements. United States v. Gonzalez-Garcia, 708 F.3d 682 (5th Cir. 2013).

        Even if asking D for consent to search house was an “interrogation” within Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards v. Arizona, 451 U.S. 477 (1981), any Edwards violation arising from asking consent after D invoked his right to counsel did not require the suppression of marijuana found in the house. Nor did the Miranda/Edwards violation automatically render D’s consent to search involuntary. The Fifth Circuit affirmed the conviction based on the partial denial of D’s motion to suppress.

Lay witnesses are permitted to give opinion testimony on a defendant’s mental state. United States v. Heard, 709 F.3d 413 (5th Cir. 2013).

        In bribery/fraud/tax-evasion case, district court did not abuse its discretion in allowing first defendant’s employee to testify that in his opinion, D was trying to get the quid pro quo of a good recommendation from a government employee. The Fifth Circuit has held that lay witnesses are permitted to give opinion testimony on a defendant’s mental state, and this testimony was rationally based on the witness’ perception as informed by his experience with D.

        (2) As to the second D, the court properly admitted evidence that D had committed bankruptcy fraud in connection with a bankruptcy petition he filed in 1994. The Fifth Cir­cuit rejected the government’s argument that the evidence was “intrinsic,” as opposed to “extrinsic” evidence subject to Fed. R. Evid. 404(b); nevertheless, the evidence was probative enough of D’s intent that it was not an abuse of discretion to admit it under Rule 404(b). The Fifth Circuit also noted that although Rule 404(b) does not require the government to give a defendant written notice of its intent to introduce Rule 404(b) evidence, it was debatable whether the notice given here was suf­fi­cient; reversal was not required because any lack of notice did not affect D’s substantial rights.

        (3) District court did not violate second D’s Confrontation Clause rights by refusing to allow him to cross-examine an IRS revenue agent’s suspension for viewing pornography on his work computer during business hours. Evidence of the motivation was simply not relevant to the agent’s bias or motivation for testifying. Nor was the evidence admissible under Fed. R. Evid. 608(b); the agent’s conduct was not clearly probative of truth­fulness or untruthfulness. Moreover, even if it were error to exclude the testimony, the error would be harmless beyond a reasonable doubt.

        (4) As to second D, district court properly excluded testimony to the effect that D regularly paid his payroll taxes; this was not habit evidence admissible under Fed. R. Evid. 406.

For purposes of the federal crime of child enticement proscribed by 18 U.S.C. § 2422(b), it is not necessary that there be communication between a perpetrator and a child or that a perpetrator request an intermediary to communicate with a minor. United States v. Caudill, 709 F.3d 444 (5th Cir. 2013).

        “[A] defendant who communicates solely with an adult intermediary can be held to violate § 2422(b).”

The good-faith exception precluded application of the exclusionary rule because there were no aggravating facts. United States v. Woerner, 709 F.3d 527 (5th Cir. 2013).

        In this child-pornography case, the Fifth Circuit declined to announce a categorical rule respecting whether the good-faith exception applies to evidence seized pursuant to a warrant, the probable-cause showing for which was based on evidence that was the product of an illegal search or seizure. The Fifth Circuit suggested that the exception might not apply if the officer behind the warrant knew or had reason to know that the information was tainted but included the information anyway without full disclosure or explanation. Suppression might likewise be justified if the officer responsible for the illegal search provided information—knowing it to be tainted but concealing that fact—to a second officer for use in a successive search warrant application. Here, however, there were no such aggravating facts.

        Furthermore, D’s two convictions for possession of child pornography and his three convictions for distribution of child pornography were not multiplicitous. Possession of child por­nography is not a lesser-included offense of distribution of child pornography, and the convictions were all based on separate acts of possession or distribution.

In Texas capital-murder trial, where D was sentenced to death for robbery/murder, the prosecutor violated D’s Fifth Amendment rights by his “extraordinarily extensive comments” on D’s failure to testify. Gongora v. Thaler, 710 F.3d 267 (5th Cir. 2013), reh’g en banc denied, 726 F.3d 701 (5th Cir. Tex. 2013).

        Moreover, the error was not harmless in this case. The Fifth Circuit reversed the district court’s judgment denying federal habeas relief, granted D’s habeas petition, vacated his conviction, and ordered him released from custody unless the state retried him (or he pleaded guilty) within six months of the issuance of the Fifth Circuit’s mandate.

Court of Criminal Appeals

Strickland requires the applicant claiming ineffective assistance to establish, by a preponderance of the evidence, that the harm resulting from counsel’s deficiency undermines the confidence in the trial’s outcome. Ex parte Parra, No. AP-76,871 (Tex.Crim.App. Sept 18, 2013).

        D sought habeas relief on the grounds that his trial counsel was ineffective for failing to object to the judge’s response to a jury note and for failing to question the venire to reveal one juror’s alleged experience as the victim of both domestic violence and sexual assault of a child. CCA held that D failed to satisfy the requirements of Strickland v. Washington, 466 U.S. 668 (1984), and denied relief.

        A judge’s response to a jury’s question regarding the consequences if two of the jurors walked out of deliberations was, although assertive, neutral, and appropriate in stating that, in essence, he would hold them in contempt, confine them in jail, and bring them to court the following day to deliberate further with their peers; therefore, counsel’s allegedly ineffective failure to object was not prejudicial. Although it was not clear that counsel was given notice of the jury’s note’s existence and contents before the judge addressed the jury, as required by Tex. Code Crim. Proc. art. 36.27, it was not probable that had counsel objected and been given an opportunity to craft a more subtle message, the outcome of the proceeding would have been different. Furthermore, there was no showing of prejudice from counsel’s allegedly deficient performance in voir dire.

The trial court’s order mandating involuntary medication of D was not permitted under the competency-to-be-executed statute and did not meet the requirements of other statutes that may permit involuntary medication; but for that unauthorized order, the evidence shows that D is incompetent to be executed. Staley v. State, No. AP-76,798 (Tex.Crim.App. Sept 11, 2013).

        The issue before CCA was whether state or federal law disallows the execution of a mentally ill inmate who was previously found incompetent to be executed and later became competent only after he was involuntarily medicated pursuant to a court order. CCA concluded that it had jurisdiction over this appeal pursuant to the current competency-to-be-executed statute, Tex. Code Crim. Proc. art. 46.05, including jurisdiction to review the involuntary-medication order to the extent that it is intertwined with the trial court’s ruling that appellant is now competent to be executed. As to the merits of the appeal, CCA held that the trial court’s order mandating involuntary medication of D was not permitted under the competency-to-be-executed statute and did not meet the re­quirements of other statutes that may permit involuntary medi­cation. Because the trial court lacked authority to render it, CCA vacated the trial court’s involuntary-medication order. Furthermore, CCA determined that but for that unauthorized order, the evidence conclusively shows that D is incompetent to be executed; therefore, CCA also vacated the trial court’s order finding D competent to be executed.

A defendant must raise a speedy-trial claim unambiguously in trial court to preserve it for appeal. Henson v. State, 407 S.W.3d 764 (Tex.Crim.App. 2013).

        D appealed his aggravated assault conviction. CCA affirmed the First Court of Appeals, holding that a defendant must raise a speedy-trial claim in the trial court to preserve that issue for appellate review. CCA held that the preservation requirements applied to D’s Sixth Amendment speedy-trial claims. CCA reasoned that a speedy-trial demand should be unambiguous. D’s announcement that he was ready for trial was not a demand for a speedy trial. D’s actions were inconsistent with a demand for a speedy trial, as he did not file a speedy-trial motion, did not request a hearing on the delays, and explicitly agreed to each and every reset in the case.

The game warden’s stop-and-frisk violated the Fourth Amendment because D’s refusal to cooperate was accompanied only by his extreme nervousness and the warden’s hunch that D was up to no good. Wade v. State, No. PD-1710-12 (Tex.Crim.App. Sept 11, 2013).

        The trial court denied D’s motion to suppress, and the Tenth Court of Appeals upheld the denial. CCA reversed and remanded. CCA held that the consensual encounter between D and the game warden escalated into a Fourth Amendment detention when the warden ordered D out of his truck for a pat-down. The warden did not have reasonable suspicion to detain and frisk D based only on D’s nervousness and his withdrawal of his consent to the encounter by demanding to know why he was being targeted, and therefore D’s statement about the pipe in his truck was fruit of the poisonous tree and could not provide probable cause for searching his truck.

The judge’s clear error in shackling D was not a constitutional error because there is no evidence the jury saw his restraints. Bell v. State, No. PD-0087-12 (Tex.Crim.App. Sept 18, 2013).

        It has been held that the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a finding they were justified. The trial judge here did not make any particularized finding articulating the reasons for shackling D, and the statement that everyone in custody had the same necessity of restraint did not suffice; it was clear error to order D shackled. However, CCA could not find a reasonable probability that the jury saw D’s restraints, and thus the error in shackling him was not of constitutional dimension.

        COA incorrectly applied the constitutional error harm analysis under Tex. R. App. P. 44.2(a), and not Rule 44.2(b), but CCA did not remand because by finding the error harmless under the greater standard, COA held the shackling did not affect D’s substantial rights. CCA affirmed COA.

The fact that D was taking pictures at a public swimming pool did not in any way suggest that he was, had been, or soon would be engaged in criminal activity. Arguellez v. State, 409 S.W.3d 657 (Tex.Crim.App. 2013).

        D was charged with multiple offenses of improper photography. The trial court denied D’s motions to suppress, and then he plead nolo contendere to both indictments. After a punishment hearing, the trial court sentenced him to 20 months’ confinement in state jail and imposed a $2,500 fine in each case, with the sentences to run concurrently. On direct appeal, D’s sole issue asked, “Does merely taking photographs at a public pool give police reasonable suspicion to stop appellant’s vehicle?” COA overruled the issue and affirmed the trial court. CCA reversed and remanded.

        CCA granted review on the following: “Is ‘crime afoot’ when a person takes pictures at a public pool permitting a police officer to conduct an investigative detention?” CCA concluded crime was not afoot. There was insufficient evidence to establish reasonable suspicion for the stop of D’s vehicle, and the investigatory detention of him was not supported by reasonable suspicion; a generally matching description of his vehicle simply connected him to the “suspicious” photography, but did not in any way suggest that by taking pictures in a public place, he was, had been, or soon would be engaged in criminal activity.

When the trial court failed to include the certification of D’s right to appeal in the record, the appellate clerk correctly notified the trial clerk and directed that the certification be filed, pursuant to Tex. R. App. P. 37.1 and 34.5(c)(1); when the record was not supplemented within 30 days, the next step for the appellate court, under Rules 34.5(c)(2) and 44.4, was to order the trial court to provide the certification rather than dismissing D’s appeal. Cortez v. State, No. PD-1349-12 (Tex.Crim.App. Sept 18, 2013).

In D’s sexual assault trial, the court improperly admitted extraneous-offense pornographic images over D’s objection; the images referred to a crime for which D was not on trial. Pawlak v. State, No. PD-1616-12 (Tex.Crim.App. Sept 18, 2013).

        At D’s trial for sexual assault, sexual assault of a child, and attempted sexual assault, the trial court admitted thousands of extraneous-offense pornographic images over D’s objection under Tex. R. Evid. 403. COA affirmed. CCA reversed and remanded for a harm analysis.

        The admitted images referred to a crime for which D was not on trial—possession of child pornography. The evidence was unfairly prejudicial, as it invited the jury to convict D of sexually assaulting or attempting to sexually assault the victims because he possessed child pornography. As the State had multiple victims testify about specific incidents of inappropriate sexual behavior and the similarities in their stories were striking, the State’s need for the extraneous-offense evidence was not great.

At a murder trial where D claimed self-defense, the trial court erred by instructing the jury on provocation under Tex. Penal Code § 9.31(a)(4) absent evidentiary support. Reeves v. State, No. PD-1711-12 (Tex.Crim.App. Sept 18, 2013).

        At trial, D admitted he stabbed the victim but claimed self-defense. The judge instructed the jury on self-defense; but, over D’s objection, he also instructed the jury on provocation as a qualification on the self-defense issue. The jury rejected D’s self-defense claim and found him guilty of murder. D raised one claim on appeal: The judge erred by including the provo­cation instruction. COA agreed and, finding that D had suffered some harm under Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985), reversed D’s conviction and ordered a new trial. CCA agreed that D suffered actual harm when his self-defense claim was improperly limited by the inclusion of an unwarranted provocation instruction.

        The evidence of guilt was not so overwhelming that the erroneous provocation instruction was harmless. The evidence concerning self-defense was hotly contested, and D’s version of events was plausible at a minimum and perhaps exonerating. The prominence of the provocation instruction within the charge magnified its harm. Furthermore, the State misspoke about the law of provocation and then told the jury to pay careful attention to it.

Given the record as a whole, D did not waive appellate review of the court’s ruling on her motion to suppress when counsel later stated “no objection” to the evidence. Thomas v. State, 408 S.W.3d 877 (Tex.Crim.App. 2013).

        D was convicted of felony possession of marijuana. She initially preserved error with a motion to suppress the evidence, which she claimed was seized in an illegal roadside detention. But when that evidence was proffered by the State during the punishment proceeding following her guilty plea, her attorney declared that he had “no objection” to the admission of the evidence. The trial court manifested its understanding that D persisted in her wish to appeal the denial of her pretrial motion to suppress and expressly granted her permission to do so. COA nevertheless refused to reach the merits of her claim, relying on CCA precedent to hold that her attorney “waived” the previously preserved objection to the evidence for purposes of appeal when he declared “no objection.” CCA reversed COA.

        CCA has long held that such an affirmative statement con­stitutes a “waiver” of the right to raise on appeal the error that was previously preserved. D did not argue that CCA should abolish it—only that CCA should qualify it, as several Texas appellate courts have done. Several courts of appeals have identified circumstances under which to deviate from the principle that a statement of “no objection” will serve to “waive” an earlier-preserved claim of error in failing to grant a motion to suppress.

        The rule that a later statement of “no objection” will forfeit earlier-preserved error is context-dependent. Stating that D had “no objection” to certain evidence during the punishment phase, and D’s signature on the boilerplate waiver of appeal, did not mislead the court into believing that she intended to waive her right to appeal, much less that she meant to forfeit the particular complaint she took pains to litigate in her pretrial motion to suppress.

The trial court erred by ordering D to pay court costs without finding that he had resources to pay for his court-appointed attorney; however, D expressly waived his objection. Wiley v. State, 410 S.W.3d 313 (Tex.Crim.App. 2013).

        After finding that D was indigent and appointing counsel for him, the court accepted his guilty plea for the offense of hindering apprehension and sentenced him to eight years’ imprisonment. Thereafter, the trial court suspended D’s sentence and imposed community supervision. Without making a finding that D had the present resources to repay the county for his appointed trial attorney, the trial court ordered him to pay court costs that, according to a bill of costs attached to the judgment, included the attorney fees. D did not appeal at the time of the imposition of community supervision. When his community supervision was later revoked, he appealed and com­plained that the evidence had been insufficient to support the order to pay his appointed lawyer for the initial plea proceedings. COA acknowledged that the evidence was insufficient to order payment of those attorney fees, but held that D procedurally defaulted this claim by failing to object in trial court when community supervision was imposed. CCA affirmed.

        Because the trial court failed under Tex. Code Crim. Proc. art. 26.05(g) to find that D’s financial status changed after initially finding him indigent, the record was insufficient to support the order of attorney fees. A reviewing court may inquire whether the record rationally supports an obligation to pay attorney fees even in the absence of an objection in trial court. However, CCA held that D did procedurally default his claim, albeit on a basis different than COA relied. D forfeited his claim because he failed to bring it in a direct appeal from the order originally imposing community supervision.

A subsequent habeas application must establish not only that a new legal basis for relief exists but also that the facts are at least minimally sufficient to bring D within the ambit of that new legal basis. Ex parte ­Oranday-Garcia, 410 S.W.3d 865 (Tex.Crim.App. 2013).

        CCA dimissed D’s habeas petition: “[I]t is enough to declare a subsequent [Tex. Code Crim. Proc. art. 11.07, § 4(a)(1)] application abusive . . . if it fails to make out a prima facie case for relief under the new law that it identifies.” D invoked a new law under Padilla v. Kentucky, 559 U.S. 356 (2010), but did not establish that the new law applied to the facts of his case; Padilla could not apply to him in any event because other case law held Padilla did not apply retroactively.

In an aggravated robbery trial, a jury could have inferred that the store clerk was threatened or placed in fear of imminent bodily injury or death, even though she did not realize D had a firearm, because when she opened the register to make change, D reached over the counter and took all the money; that action was a menacing indication of something dangerous. Boston v. State, 410 S.W.3d 321 (Tex.Crim.App. 2013).

        Also, the clerk testified that she feared she could have been injured.

Court of Appeals

Counsel’s failure to procure a witness’ testimony by dep­osition prejudiced D; D’s conviction was dependent on the complainant’s credibility, and the eyewitness testimony would have corroborated the most important points of D’s story and contradicted complainant. Frangias v. State, No. 14-10-01090-CR (Tex.App.—Houston [14 Dist] Sept 26, 2013).

        On original submission, COA held that D’s attorneys’ performance did not fall outside the broad range of prevailing professional norms. CCA reversed, holding that “by any view of the evidence,” counsel failed to render reasonable professional assistance. CCA remanded for COA to determine whether D was prejudiced.

        COA here found a reasonable probability that but for his attorneys’ failure to take the steps to procure and introduce the deposition testimony of a crucial witness, the result of D’s sexual assault trial would have been different. There was no physical evidence; and the eyewitness would have testified that although D assisted the drunk complainant upstairs and delivered towels to her room, he did not enter. COA reversed D’s conviction and remanded to the trial court.

Relying on Wiley, above, COA held that D waived her objection to attorney’s fees. Riles v. State, No. 07-12-00386-CR (Tex.App.—Amarillo Oct 7, 2013, reh’g denied).

        “[A]ppellant [was] placed on community supervision. Appearing in the order manifesting that decision was the obligation for appellant to pay attorney’s fees. Furthermore, she and her attorney acknowledged the obligation in the plea admonishments and waivers signed by both as well as in her application for probation. . . . Though she could have appealed from that decision and questioned the sufficiency of the evidence underlying the obligation to pay such fees, she did not. Instead, she waited to do so until after the trial court revoked her probation, adjudicated her guilt, and levied sentence. To conform to [CCA precedent], we cannot but hold that the delay caused appellant to forfeit the claim now before us. . . . It may well be that the Court of Criminal Appeals wanted to include within the category of jurisdictional error any complaint which could have been appealed when a defendant is given deferred adjudication but of which the defendant may not have known for some reason. But we leave it to that court to clarify its desire, if any.”

Proposal for Counsel at TEX. CODE CRIM. PROC. ART. 15.17 Proceedings

Abstract

The following is a proposal for a pilot program to provide counsel to criminal defendants at their initial appearance before a magistrate in Harris County.1 The intent is to provide advice and advocacy, as needed, with the least delay to the process.

Existing Procedure

Defendants arrested in Harris County appear before a magistrate who reads them their legal rights, assesses whether there is probable cause for the charges, sets or denies bond, and informs them of their right to counsel at future proceedings. The time from arrest to “magistration”2 is usually less than 24 hours. A magistrate, a deputy clerk, deputy sheriffs, and an experienced prosecutor are present at these proceedings. Defendants are either physically present or appear by video transmission.

Bond is typically in the form of cash, which can be met with the assistance of a commercial surety. The amounts of bond are determined by means of a schedule previously approved by the County Criminal Courts at Law for misdemeanors and the Criminal District Courts for felonies. Personal bonds (those that do not require a surety) are available in some cases.

Arrests occur and magistration proceeds 24 hours a day, seven days a week. Harris County has a direct filing system. Once charges are accepted, the case is assigned to a court and receives a case number. Defendants often appear in the court to which their case is assigned the following business day after magistration. Indigent criminal defendants are appointed counsel at that first appearance in the court of record.

Reasons for Counsel at Magistration3

There are policy and legal reasons for access to counsel at magistration. It satisfies defendants’ need to talk to someone without incriminating themselves in open court. It allows the magistrates to hear from trained attorneys4 instead of defendants, who may be unable to focus upon relevant issues or incapable of articulating applicable facts. As described below, use of this practice in other jurisdictions appears to show that it both saves money and reduces jail overcrowding without increasing the risk of releasing defendants who are either a danger to the community or a flight risk. Finally, United States Supreme Court and Texas authority imply that the participation of state actors may require the appointment of defense counsel.

Self-Incrimination

Rarely, if ever, do defendants speak to an attorney before they appear before a magistrate. Typically, they have spoken only to law enforcement and pretrial officers. Although each has likely told them they have a right to remain silent, criminal defendants are usually focused upon obtaining release from custody. When they appear before a magistrate, many are motivated to try to explain their situation in the hope that charges will be dismissed or bond will be set low. A review of magistration proceedings from 2012 to date reveals that it is fairly common for defendants to attempt to speak on their own behalf.5

The result is that defendants’ desire to speak will often overcome any formal warnings. Only lawyers, who can speak for defendants, are likely to convince them that it is not in their interest to openly discuss their cases on the record in front of prosecutors. For example, in one case the magistrate explained to the defendant that she should wait to discuss her case, but she persevered. After the defendant made an incriminating statement, the magistrate asked, “Are you done confessing?” A police officer in the back of the courtroom can be heard saying, “That’s a slam dunk.” In another example, there was an extended discussion by the defendant and the magistrate about the defendant’s citizenship status.

The presence of attorneys, who can explain to defendants how even minor admissions can affect their cases, would reduce the gratuitous statements by defendants that ultimately hurt them and do nothing to benefit the magistration process. This is especially important when defendants are speaking on the record and in the presence of experienced prosecutors who can take notes or get recordings of the proceeding to use against defendants.

In discussions with former Harris County prosecutors, many remembered occasions when defendants’ statements at magistration were used against them later in their prosecutions. The problem is not merely hypothetical.

Time

One of the natural hesitations about adding defense attorneys to the process is that it could slow down these proceedings. That is unlikely for two reasons. First, the attorneys’ interaction with the magistrates will replace that of the defendants. Defendants are already taking up time having discussions with the magistrates, often about issues irrelevant and unhelpful to determining probable cause or bond. Discussions between attorneys and clients will occur prior to the proceedings.

Second, attorneys will do a kind of triage. Not everyone who appears will benefit from advocacy at the initial bail hearing. Defendants who face the most serious charges and the high­est bonds (or no bond) are best addressed in the court of jurisdiction through a motion for bond reduction or a writ of habeas corpus. The most valuable use of lawyers’ time will be on borderline cases where lawyers can quickly proffer to the court information they have received from the defendant, family, or employers, or to simply emphasize favorable information discovered by pretrial services. In many ways, this mirrors what the prosecutors do—filling in gaps and advocating the facts most favorable to their side.

Cost

One might think that adding a lawyer to the process will be more costly. However, the addition pays for itself and can even save money. The savings comes from those defendants who are released from jail. Even the additional release of only a couple of defendants each day would save thousands of dollars annually.

There is now evidence that having defense lawyers at bail hearings does result in more persons being released by personal bonds or lower money bonds. A study has shown:

For eighteen months at bail hearings, the Baltimore City Lawyers at Bail Project (“LAB”) defended the liberty of nearly 4,000 lower-income defendants accused of nonviolent offenses. The study showed that more than two and one half times as many represented defendants were released on recognizance from pretrial custody as were unrepresented defendants. Additionally, two and one half times as many represented defendants had their bail reduced to an affordable amount. Indeed, delaying representation until after the pretrial release determination was the single most important reason for lengthy pre­trial incarceration of people charged with nonviolent crimes. Without counsel present, judicial officers made less informed decisions and were more likely to set or main­tain a pretrial release financial condition that was beyond the individual’s ability to pay.6

That study is corroborated by earlier studies that came to the same conclusions, but with less sophisticated social research techniques.7 Most impressive was that one of the authors, Professor Douglas Colbert, initiated the study with the use of law students. He convinced a Baltimore magistrate to allow the students to appear and act as advocates at the initial bail hearings. The results were dramatic.8 The results in Harris County would likely be less substantial, because defendants in Baltimore often remained unrepresented for weeks; but even a small increase in released defendants would provide significant savings.

The lawyers would not be salaried county employees, but a list of qualified private assigned counsel who would be paid hourly for shifts that include nights and weekends. The compensation would be similar to what is already approved for appointed work. The Public Defender’s Office could oversee their training and scheduling, subject to court approval.

Benefit to Defendants

The importance of counsel at other proceedings in a criminal case is accepted and uncontroversial. Many of the same benefits will accrue at magistration. Defendants will have someone to talk to in confidence, lawyers can answer their questions, and lawyers can speak on defendants’ behalf.9 It can also help get some defendants released from custody in what were already close calls.

There is a common misconception that time and money spent upon obtaining release through a bond is better used to hire an attorney. Statistics refute that belief. For example, 34 percent of the detained clients represented by Harris County Public Defender’s Office avoided a final conviction because their cases were either dismissed or because they received deferred adjudication. However, a higher 58 percent avoided a final conviction when they were out on bond during their case.10 Surprisingly, when defendants retained counsel but remained in custody, their rate of conviction increased.11

Defendants have obligations apart from those required by the criminal justice system. They may have jobs and family that will be affected by their incarceration. Even 24 hours in custody can mean the loss of employment or the inability to care for children, parents, or siblings. These effects go beyond the defendants’ families and cost money to employers and businesses. Opportunities to bring relevant information to the courts’ attention may not affect every case, but enough cases to justify their worth.

Benefit to the Court

The magistrates will be assisted by trained lawyers who can point them to relevant information about defendants that is necessary to determining probable cause and bond.12 A model for this is the federal system, in which there is a statutory right to counsel at initial appearances where release and probable cause are determined. Although federal criminal defendants have rights to preliminary hearings (unless indicted) and to detention hearings, most of these issues are informally resolved by agreements between the parties and by proffers to the magistrate judge. Texas magistration proceedings are not designed to be full evidentiary hearings.

Addressing defendants’ bond issues at the first opportunity reduces the need for reviewing them later. It is much better to make rulings when both sides can provide information, than to second-guess decisions previously made. There is a natural hesitancy to reconsider what others have already done.

Legal Justification

As discussed above, there are practical reasons for providing counsel at magistration proceedings, but there is a legal basis as well. In Green v. State, the Texas Court of Criminal Appeals held that a criminal defendant’s Sixth Amendment right to counsel was not violated when he appeared without counsel before a magistrate for his “preliminary initial appearance” after arrest.13 That ruling may now be superceded by the United States Supreme Court’s opinion in Rothgery v. Gillespie County.14

In Rothgery, the Supreme Court held that a defendant’s Sixth Amendment right to counsel attaches at an Article 15.17 hearing.15 The Court recognized that “[f]rom that point on, the defendant is ‘faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law’ that define his capacity and control his actual ability to defend himself against a formal accusation that he is a criminal.”16

The Rothgery opinion discussed whether a particular stage of the criminal proceedings against the accused is “critical,” and thus required the presence of counsel unless the right to counsel is waived, in a manner that is broader than the critical stage analysis employed by the Court of Criminal Appeals in Green. The Rothgery Court noted that a stage is critical if it is a proceeding between an individual and agents of the state, “whether formal or informal, in court or out, that amount to trial-like confrontations at which counsel would help the accused in coping with legal problems or meeting his adversary.” That sounds very much like what a defendant faces in Harris County by the presence and participation of an experienced prosecutor at magistration.17

Additionally, the Court of Criminal Appeals’ decision in Green preceded the Fair Defense Act.18 The Act requires each county’s written indigent defense procedures to “ensure that each defendant in the county who is charged with a misdemeanor punishable by confinement or with a felony and who appears in court without counsel has an opportunity to confer with appointed counsel before the commencement of judicial proceedings.”19 Read in conjunction with Rothgery, which holds that the Article 15.17 hearing is a judicial hearing that commences adversary judicial proceedings,20 a strong argument can be made that Article 26.04 requires appointment of counsel before the Article 15.17 hearing. In fact, if counsel is not appointed before the Article 15.17 hearing, the statute itself provides that the magistrate must allow an arrested individual to consult with counsel before the portion of the hearing at which bail is set.21

Challenges

There are practical and legal questions surrounding this proposal. Anything that adds another step of legal representation costs money and adds time to the process. However, as addressed above, the practical aspects are offset by the benefits to justice, the potential for reducing jail population, and savings in the long run.

The legal questions concern allowing one lawyer at magistration and another for the remainder of the case. This raises issues of vertical representation, conflicts of interest, and confidentiality. Vertical representation is addressed in the American Bar Association’s Ten Principles of a Public Defense Delivery System. (“7. The same attorney continuously represents the client until completion of the case.”). More importantly, in Texas an appointed attorney:

[S]hall… represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is permitted or ordered by the court to withdraw as counsel for the defendant after a finding of good cause is entered on the record.22

These rules assume an attorney is appointed as early as possible and represents each client from that point forward to avoid discontinuity. The rules do not take into account the present situation in which defendants simply have no counsel at magistration and virtually never have.23 In reality, substitutions of appointed counsel occur all the time when conflicts emerge, when the attorney-client relationship fails, or when other unforeseen events occur that prevent one attorney from continuing. They are not in themselves destructive to the representation, just not ideal.

Under the Texas statute, the only question would be whether substitution after magistration is for “good cause.”24 The ability to facilitate a defendant’s Sixth Amendment right to counsel seems to meet that definition. The only other alternative would be to make all permanent appointments begin at magistration. That would be a significant and difficult change for the third-largest county in the United States. On the other hand, New York City has used such a model for many years.

The issue of conflicts is resolved primarily by the attorneys’ limited role in the case. They are there to advocate for release, not to advise about potential case outcomes. They will have little opportunity to talk to defendants, and that time is best used to help them get a personal bond or a cash bond they can afford. Discussions about the case itself are better left for an extended meeting with the trial attorney later. The likelihood that representing someone at a 15.17 hearing will result in an actual conflict is virtually nil.25

Confidentiality is the same for all attorney-client relations. If someone talks to an attorney for the purpose of receiving legal advice, the conversation is confidential and the attorney-client privilege applies.26

Next Steps

Implementation of this as a pilot would require a majority vote of support by the judges of the Harris County Criminal Courts at Law and Criminal District Courts. I suggest that this proposal be studied by the judges, magistrates, court administration, Pretrial Services, District Clerk, Sheriff, District Attorney, Harris County Criminal Lawyers Association, and Criminal Coordinating Council. Although funding will ultimately be the responsibility of Harris County, a pilot like this is an excellent project for seeking grants to get it started.

Notes

1. There is no reason why a version of this plan could not be applied in any Texas county.

2. Various forms of this term have been recognized by the Texas Court of Criminal Appeals. See Watson v. State, 762 S.W.2d 591, 594 n. 4 (Tex.Crim.App.1988). The term encompasses the proceedings required by Article 15.17 of the Texas Code of Criminal Procedure. See Rothgery, at 195 (“Texas law has no formal name for this initial appearance before a magistrate, which is sometimes called the ‘article 15.17 hearing’; it combines the Fourth Amendment’s required probable-cause determination with the setting of bail, and is the point at which the arrestee is formally apprised of the accusation against him”) (internal citations omitted).

3. Three questions are typically raised when discussing the propriety of such a proposal. Each is addressed in this paper. The first is related to “vertical representation,” or pursuant to Tex. Code Crim. P. Art. 26.04(j), that appointed counsel remain on the case until the conclusion of all proceedings. The others are potential conflicts of interest and attorney-client confidentiality.

4. Although the plural is used here, it is only expected that one defense attorney would be used per session, as there is only one prosecutor.

5. Pursuant to the settlement in Roberson v. Richardson, H-84-2974 (S.D.TX 1987), all magistration proceedings are recorded and saved for 120 days.

6. Douglas Colbert, et al., Do Attorneys Really Matter? The Empirical and Legal Case for the Right of Counsel at Bail, 23 Cardozo L. Rev. 1719 (2002).

7. Id. at p. 1747–48.

8. Id. at p. 1735–36 and n. 44.

9. Plans for the proposed “Joint Processing Center,” where arrested defendants will be taken for booking, include attorney-client meeting rooms.

10. Council of State Governments, Justice Center, Improving Indigent Defense: Evaluation of the Harris County Public Defender (2013), available at http://harriscountypublicdefender.org/wp-content/uploads/2013/10/JCHCPDFinalReport.pdf. A similar pattern, but with a slightly smaller divergence in outcomes between detained and released defendants, holds for both assigned and retained counsel in Harris County. Overall, results improved by 10 percent when the defendants were released.

11. Id.

12. “At first, some judges complained about lawyers wasting precious time. Some questioned why lawyers were needed at all when a pretrial representative was present. But as the semester progressed, students convinced judges of the value of representation. They presented rich, concise snapshots of a client’s family, employment, and personal reliability within the same time it had taken judges to explain the proceedings to unrepresented defendants. Most judges appreciated the additional corroborated information and recognized the different roles played by advocates and the neutral court representatives previously relied on.” Colbert, et al., supra at 1735.

13. 872 S.W.2d 717, 722 (Tex. Crim. App. 1994).

14. 554 U.S. 191 (2008).

15.17. 554 U.S. at 199.

16. Id. at 207 (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)).

17. After Rothgery, some state courts have recognized that defendants have the right to counsel at initial bail hearings. See, e.g., Hurrell-Harring v. New York, 15 N.Y.3d 8, 20, 930 N.E. 2d 217, 223 (2010) (“[t]here is no question that ‘a bail hearing is a critical stage of the State’s criminal process’”) (quoting Higazy v. Templeton, 505 F.3d 161, 172 (2d Cir. 2007); DeWolfe v. Richmond, 434 Md. 444, 456 (2013) (holding that state constitution provides right to counsel at initial bail hearings).

18. The “Fair Defense Act” is the popular name for all of the 2001 revisions to state statutes governing indigent defense. Texas Fair Defense Act, 77th Leg., R.S., ch. 906, 2001 Tex. Gen. Laws 906.

19. Tex. Code Crim. Proc. Art. 26.05(b)(3).

20. Rothgery, 554 U.S. at 213.

21. “The magistrate shall allow the person arrested reasonable time and opportunity to consult counsel and shall, after determining whether the person is currently on bail for a separate criminal offense, admit the person arrested to bail if allowed by law.”

22. Tex. Code. Crim. Proc. Art. 26.04 (j)(2).

23. It is possible some retained counsel has managed to get to a Harris County magistration proceeding in time to represent a client, but research has uncovered no instance.

24. “[We] define ‘good cause’ as ‘a substantial or legal cause as distinguished from an assumed or imaginary pretense.’” Ex parte Byram, 974 S.W.2d 384, 386 (Tex. App.—San Antonio, 1998).

25. It would be easy to develop a form for defendants to sign acknowledging they intend to talk to the lawyer provided at the 15.17 hearing solely for the purpose of seeking advice and advocacy regarding release.

26. Texas Rule of Evidence 503 protects confidential communications “made for the purpose of facilitating the rendition of professional legal services to the client.” Tex.R.Evid. 503(b)(1); see also Huie, 922 S.W.2d at 922; In re ExxonMobil Corp., 97 S.W.3d 353, 357 (Tex.App.—Houston [14th Dist.] 2003, no pet.).

You Snooze You Lose, or How to Preserve Error and Give Your Client a Fighting Chance on Appeal

I write a lot of appellate briefs. And like all appellate “nerds,” I find there is an unexplainable joy upon discovering a small facet of law that is both an interesting read and the death knell to the prosecution’s argument. That being said, only melancholy sadness follows when you realize that the trial counsel did not preserve error.

Case in point: During the closing arguments of a close case, involving a two-time convicted felon/gang member/defendant charged with engaging in organized criminal activity, where the judge had previously kept out all extraneous bad acts during the defendant’s testimony, the state made the following argument:

THE STATE: We’re out of here in less than three days. I had more evidence. I wanted to ask the defendant more questions. I had more evidence about whether the defendant was a Barrio Azteca gang member. If you recall, I asked the detective, “Did you personally investigate the defendant.” “Yes. In a different case.” “What did you arrest him for?” “Objection.” The judge would not let me offer that evidence. So when you go back there and say, “Hey, I would like more evidence,” okay, I had more evidence to offer.
DEFENSE ATTY: Objection.
THE COURT: Sustained.
DEFENSE ATTY: Thank you… Can I get an instruction to the jury to disregard that last train of thought?
THE COURT: The jury to disregard the last comment.
THE STATE: But when the witnesses are in agreement… [state continues argument]

And that was it! The next step—“I move for a mistrial”—was not taken. In a case where the defendant’s record of arrests was clearly off-limits (and in closing the state went into it anyway), trial counsel failed to preserve possibly the strongest error for appeal.

In order to preserve a complaint for review, a party must have presented to the trial court a timely request, objection, or a motion that states the specific grounds for the desired ruling if it is not apparent from the context of the request, objection, or motion.1 In addition, the trial court must rule on the request, objection, or motion, either expressly or implicitly, or the complaining party must object to the trial court’s refusal to rule.2 If one fails to preserve the error, a reviewing court will not address the merits of an issue on appeal.3 An objection must be made as soon as the basis for the objection becomes apparent.4

Sounds simple, hunh? But in case after case, the ability to preserve the most important issues seems out of the reach of most trial lawyers’ abilities. In an unpublished opinion out of the 8th Court of Appeals,5 in Gary v. State,6 the appellant appealed the trial court’s judgment convicting him of driving while intoxicated–repetition and sentencing him to 25 years’ imprisonment. In a single issue, the appellant contended that the trial court erred by admitting the testimony of the State’s expert because she did not properly apply the technique used to project the quantity of alcohol he consumed to reach a particular blood alcohol content (“BAC”).7 The COA held that that the appellant failed to preserve error for appellate review.8 Although the appellant objected to the expert’s testimony, he never obtained a ruling on his objection. Instead, the appellant acquiesced to the prosecutor’s representation that he did not intend “to ask the expert to extrapolate back, but rather “to use the Widmark formula.”9 That the trial court may not have understood that the Widmark formula is used when conducting retrograde extrapolation was irrelevant.10

In McMaster v. State,11 the appellant appealed his conviction of possession of more than one but less than four grams of methamphetamine with intent to deliver, enhanced by a prior felony conviction and sentence of 40 years. In Issue One, the appellant contended that the State failed to produce to his attorney a cellular telephone log used during the prosecutor’s cross-examination.12 The appellant did not object at that moment, but instead raised the issue for the first time in his motion for new trial.13 Consequently, the COA held the objection was untimely.14 Quoting Justice Cochran in his concurring opinion in Ex parte Medellin,15 “in Texas, we have a contemporaneous objection rule which requires all litigants to make a timely request, claim, or objection or forfeit the right to raise that request, claim, or objection after trial.” Because any error was waived, the COA overruled Issue One.16

Keep in mind that any objection must occur the moment the error is committed. Objecting after evidence is already admitted is untimely. In Ratliff v. State, the COA held that appellant’s failure to object at the time the witness described the evidence and explained how he found it was untimely and did not preserve error.17 And in Tell v. State, the Fort Worth COA held that the defendant’s objection to a witness’ testimony after the witness had already answered questions about objected-to evidence was untimely and did not preserve error.18 Almost universal, objections to testimony after the witness had testified were untimely and did not preserve error.19

However, there are exceptions to the rule. In Birdsong v. State, the appellant’s trial counsel did not object to the appellant being called to the witness stand by the prosecutor, nor did he in any other way raise the issue to the district court.20 Although the appellant did not preserve his alleged error, Texas law provides that a limited class of errors may be presented for the first time on appeal.21

One exception may occur when a trial judge instructs the parties before trial to withhold their objections until after the evidence has been presented.22 Another exception is when deal­ing with “rights.”23 In Marin, the Court of Criminal Appeals recognized three categories of rights—“absolute rights” that are not optional and cannot be waived or forfeited by the defendant.24 Jurisdiction and due process are two other such issues.25 There are “waivable rights,” and those may only be surrendered by affirmative, plain, free, and intelligent waiver.26 In this instance, the court has an independent duty to implement these rights unless expressly waived.27 And finally, there are “forfeitable rights,” which must be requested by the defendant and include most procedural and evidentiary issues and many constitutional rights.28 Tex. R. Evid. 33.1’s requirement of preservation of error does not apply to rights falling within the first two categories.29

Going back to Appellant Birdsong, while his error was not preserved, the COA held that it could address his issue only if the Court first determined that the error falls within either the “absolute” or “waivable” class of rights.30 The COA held that a defendant’s right not to testify is the latter and thus can only be waived if the defendant’s waiver is knowing, intelligent, and voluntary.31 However, the right not to testify may be waived when the defendant voluntarily takes the stand.32 And the right may also be waived when the defendant pleads guilty or confesses to the crime for which he is charged, so long as he is expressly warned that the admission waives his right to silence.33

Now back to trial mistakes. Waiver of error doesn’t just have to happen in trial. Waiver can occur pre-trial when counsel unwittingly reveals to the state evidence that later becomes harmful when disclosed to a jury. Take for example the hapless lawyer in Carmona v. State.34 In Carmona, the COA held the attorney-client privilege was waived as to everything when appellant’s lawyer disclosed the defendant’s expert’s written report to the police and the district attorney’s office.35 The COA also held appellant’s trial objection as to Barton’s notes based on the attorney-client privilege failed to preserve for appeal his claim that Barton’s notes were protected by the work-product doctrine.36

Waiver of appeal doesn’t have to happen at trial. Appellate lawyers waive all the time when they try to cram too many errors into one issue. This is called the presentation of multifarious issues, and nine times out of ten you will waive your error if you commit this type of mistake on appeal. An issue, or point of error, is multifarious if it embraces more than one specific ground of error. By combining independent grounds together into a single issue, an appellant risks rejection of his arguments on the basis that nothing has been presented for review.37 The rationale is that it is not the appellate court’s job to comb through the record in an effort to verify an appellant’s claims.38 Nor is the appellate court obligated to construct and com­pose an appellant’s issues, facts, and arguments for him.39 However, despite what appears to be a hard and fast rule, an appellate court may have the authority to address multifarious issues, and often does, provided the contentions are adequately briefed.40

Another way to waive error is to make the wrong objection at trial. In another unpublished opinion, the 8th COA in Gossett v. State held that an appellant failed to preserve his complaint on appeal because his argument on appeal did not comport with his objection at trial.41

Waiver can happen during a probation revocation hearing if you have the defendant admitting true to just one violation and hope to fight, and appeal, the remainder. Again, in an unpublished opinion, the COA in Kendrick v. State found that the appellant’s sufficiency claims to several of the court findings regarding alleged violations had no merit, regardless of whether the appellant needed to object in order to properly preserve error, because the appellant pled true to one of the allegations as alleged in the state’s petition to revoke his community supervision.42 The COA decided that since it only takes one single violation of community supervision to support a revocation of community supervision, and the appellant pled true to one violation, this alone was sufficient to support the trial court’s finding of true regarding the other violations.43

Try not to waive error in the event you have to mandamus a judge. In the case styled In re Stofan, the relator alleged that the court failed to rule on his motion to quash the indictment and motion for speedy trial.44 The COA denied mandamus relief because the motions were not brought to the trial court’s attention.45 To obtain mandamus relief, the relator must establish both that he has no adequate remedy at law to redress his alleged harm, and that what he seeks to compel is a ministerial act not involving a discretionary or judicial decision.46 When a motion has been properly filed and brought to the court’s attention, and the act of giving consideration to and ruling upon the motion is a ministerial act, mandamus may issue to compel the court to rule.47 The COA held that the record before the court did not demonstrate that the relator filed the motions with the trial court clerk, or that they were brought to the trial court’s attention.48 Consequently, the relator failed to establish that he is entitled to mandamus relief.49

There once was a time when the appellate courts were truly the courts of last refuge. That time has come and gone. More and more appellate courts, as well as the Court of Criminal Appeals, utilize procedural rules to throw out appeals without ever addressing issues that consequently may have unfairly prejudiced a defendant’s right to a fair trial. Don’t be that attorney who helped slam the door on a client by failing to preserve what may be his only hope.

Notes

1. Tex.R.App. P. 33.1(a)(1); Sample v. State, 405 S.W.3d 295, 300 (Tex. App.—Fort Worth 2013, no pet.); Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App.2012); Clay v. State, 361 S.W.3d 762, 765 (Tex. App.—Fort Worth 2012, no pet.).

2. Tex.R.App. P. 33.1(a)(2); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App.2011).

3. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App.2010) (op. on reh’g); Clay, 361 S.W.3d at 765.

4. Tex.R. Evid. 103(a)(1); Pena, 353 S.W.3d at 807; see Lackey v. State, 364 S.W.3d 837, 843–44 (Tex. Crim. App.2012) (discussing policies underlying the timeliness requirement); Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App.2002) (failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence even when the error concerns a constitutional right); Reyes v. State, 361 S.W.3d 222, 228–29 (Tex.App.—Fort Worth 2012, pet. ref’d).

5. An interesting side note, the 8th Court of Appeals (COA) usually issues unpublished opinions involving attorney error. Thus, all the opinions out of the 8th COA in 2013 involving waiver are unpublished.

6. 08-12-00046-CR, 2013 WL 5302582 (Tex. App.—El Paso Sept. 18, 2013, no. pet. h.)(unpublished).

7. Id.

8. Id.

9. Id.

10. Id.

11. 08-11-00223-CR, 2013 WL 4506403 (Tex. App.—El Paso Aug. 21, 2013, no. pet. h.)(unpublished).

12. Id.

13. Id.

14. Id.

15. 280 S.W.3d 854, 860 (Tex. Crim. App.2008).

16. McMaster v. State, 08-11-00223-CR, 2013 WL 4506403 (Tex. App.—El Paso, Aug. 21, 2013, no. pet. h.)(unpublished).

17. 320 S.W.3d 857, 861–62 (Tex.App.—Fort Worth 2010, pet. ref’d).

18. 908 S.W.2d 535, 544 (Tex. App.—Fort Worth 1995, no pet.).

19. Thomas v. State, 884 S.W.2d 215, 216–17 (Tex. App.—El Paso 1994, pet. ref’d).

20. 82 S.W.3d 538, 542–43 (Tex. App.—Austin 2002, no pet.).

21. Id.

22. See Garza v. State, 126 S.W.3d 79, 84–85 (Tex. Crim. App.2004) (explaining that the holding “is not meant to apply in situations outside the special circumstances of this case”).

23. Marin v. State, 851 S.W.2d 275, 278–79 (Tex. Crim. App.1993).

24. Id.

25. Id. at 279–80.

26. Id.

27. Id.

28. Id.

29. Marin, 851 S.W.2d at 279–80 (citing predecessor to Rule 33.1).

30. Birdsong, 82 S.W.3d 538, 542–43.

31. Id.

32. Brumfield v. State, 445 S.W.2d 732, 735 (Tex. Crim. App.1969).

33. Tex. Code Crim. Proc. Ann. art. 38.22, § 2(a) (West 1979). Until recently, a guilty plea could waive the right to silence for both guilt and punishment purposes. See Carroll v. State, 975 S.W.2d 630, 632 (Tex. Crim. App.1998) (Carroll II), overruled by Carroll v. State, 42 S.W.3d 129 (Tex. Crim. App.2001) (Carroll V). However, in 1999 the U.S. Supreme Court held that waiving the right to silence by entering a guilty plea does not waive the right at the punishment phase of trial. Mitchell v. United States, 526 U.S. 314, 325, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999); see also Carroll V, 42 S.W.3d at 132.

34. 941 S.W.2d 949, 952 (Tex. Crim. App. 1997).

35. Id. at 234.

36. Carmona, 880 S.W.2d at 235.

37. Matthews v. State, 08-11-00157-CR, 2013 WL 4517280 (Tex. App.—El Paso Aug. 23, 2013, no. pet. h.).

38. Id.

39. Id.

40. Id.

41. 08-11-00229-CR, 2013 WL 3943089 (Tex. App.—El Paso July 31, 2013, no. pet. h.). Appellant Gossett objected to the admission of a photo at trial on the basis of relevance under Texas Rule of Evidence 401. However, despite appellant’s single objection at trial, appellant’s argument on appeal was divided into two separate complaints, based on separate rules of evidence—Rule 401 and Rule 403. On the one hand, Gossett contended that the trial court erred in overruling his relevance objection to the photograph because the photograph simply was not relevant. On the other hand, Gossett also argued that the trial court abused its discretion because, “[t]he minimal probity, if any, from the photograph was substantially outweighed by the prejudice.” The COA held that Gossett failed to preserve the portion of his argument relating to Rule 403 because he objected at trial only to the relevance of the photo.

42. 08-12-00048-CR, 2013 WL 4624438 (Tex. App.—El Paso Aug. 28, 2013, no. pet. h.).

43. Id.

44. 08-13-00265-CR, 2013 WL 4859318 (Tex. App.—El Paso Sept. 11, 2013, no. pet. h.).

45. Id.

46. Id.

47. Id.

48. Id.

49. Id.

The Systemic Denial of Due Process in Post-Trial Criminal Forfeiture Proceedings

Intro

When I played little league baseball (and that is about as far as my talent took me), I was taught to always keep my eye on the ball. Whether it was fielding a routine grounder or a pop fly, I cannot tell you how many times my coaches repeated that message. In fact, this became more than just advice. It became an internal requirement on my playing checklist. Truth be told, between the repetition and its importance, this mantra became a part of me. So much so that it is the first lesson I have offered to my children when teaching them to play catch, basketball, and even soccer.

However, as important as this childhood lesson was, I would be lying to you if I said I never strayed. Do not get me wrong. I knew that it was important to keep my eye on the ball, and that a failure to do so could have disastrous results, but I must confess it became easy to tune out this advice after hearing it so many times. I dare say it is part of human nature to overlook the importance of fundamentals from time to time. Unfortunately, this carelessness can be found in institutions as well.

While this may seem a curious introduction to a discussion of federal criminal forfeiture practices, it is instructive to look at this body of law through the prism of overlooked fundamentals that have dramatic negative consequences to our clients and their families.

Asset forfeiture is the legal mechanism where a state or federal entity seeks to deprive persons (individuals or organizations) of private property on the basis that such property is improperly connected to illegal activity. Classic forfeiture examples are found within drug cases. Government entities often seek the seizure and forfeiture of cars, guns, jewelry, houses, cash, and other property that is either used to facilitate the drug distribution or the ill-gotten fruits of that activity.

Because it is designed to take away the largest motivator for most crimes (greed), forfeiture has become one of the most innovative and effective efforts of the Department of Justice. In fact, administrative, civil, and criminal forfeiture recoveries have resulted in the growth of the DOJ’s Asset Forfeiture Fund (AFF) to $1.8 billion in 2011 (GAO Analysis of DOJ Data). Obviously, such huge numbers would raise the eyebrows of any successful business let alone government entities strapped for funds. By the way, the Treasury Department has its own asset forfeiture fund, known as the Treasury Executive Office for Asset Forfeiture (TEOAF), and we have not even mentioned the many state and local law enforcement agencies, including many DA offices in on the action.1

While the desire to deprive criminals the fruit of their crimes is completely understandable, such obvious material incentive for the government brings with it the risk of tunnel vision and overzealousness. As with most other things, many unfortunate roads are paved with good intentions.

It should be pointed out that the purpose for such recovery efforts is not simply greed on the government’s part. These funds are often targeted for crime victims, recovery of lost taxpayer funds, DOJ operations and personnel, local law enforcement agencies, and, recently, non-law-enforcement congressional programs. These goals make forfeiture efforts attractive to politicians because of their moral worthiness and political popularity. This kind of political capital means that forfeiture is here to stay—and is likely to grow.

Further, this danger is not only expressed through the discretion of prosecutorial agencies in evaluating whether to pursue forfeiture of a particular asset. This danger has also allowed the procedural framework of federal criminal forfeiture proceedings to become so unbalanced in the government’s favor that there exists a serious question as to whether these proceedings even resemble any reasonable conception of justice at all. Put simply, it appears that Congress and the courts have taken their eyes off the ball of fairness.

While the federal government is more methodical in its forfeiture activities, it would be a mistake to view asset forfeiture as a tool used only by the feds. In fact, most states have extensive statutes and personnel dedicated to the seizure and forfeiture of private assets alleged to be connected to criminal activity.

This being said, it should be noted that the federal government provides more avenues to prosecutors to seek forfeiture than does the State of Texas. The most obvious difference between federal and Texas courts lies within the fact that federal courts provide a path to forfeiture within a criminal case itself. This is known as criminal forfeiture, authorized under 18 U.S.C. Section 982 and FRE 32.2. This article will examine the federal criminal forfeiture procedural system and illustrate its abandonment of certain basic and fundamental conceptions of fairness and justice.

Specifically, I would suggest that Congress overlooked some of the legal fundamentals that are designed to ensure fairness in federal criminal forfeiture proceedings—namely, the rights to fair notice and reasonable opportunity to present a defense. This discussion will address this topic in a comparative/analogical fashion. First, it will examine the differences between rights afforded to accused persons in general criminal proceedings and criminal forfeiture proceedings. Second, it will discuss how these differences can deprive defendants of any reasonable ability to fight the government’s seizure and forfeiture of their property. Third, systemic suggestions will be offered. Finally, it will offer some practice suggestions that can hopefully help defense lawyers help their clients.

I. How Criminal Forfeiture Fits Into the Course of a Criminal Case

Unfortunately, the procedural framework regarding federal criminal forfeitures is so incompetent you will wonder if the analysis you are reading appeals to licensed practitioners or eighth-grade civic students. In other words, the federal criminal forfeiture system, which will be referenced as the “federal method,” raises due process concerns on the most basic levels.

Starting with such basics, every criminal accusation in this country requires some sort of pleading to initiate court proceedings. Obviously this allows an accused to know what he or she is being accused of and under which statute he or she faces punishment. Although one need not have attended law school to understand this concept, its importance cannot be overstated (sounds like my tee-ball coach constantly telling me to keep my eye on the ball). To put this principle into perspective, every five-year-old put into timeout demands to know the reason why.

Another basic concept rests in the ability of accused persons to meaningfully defend themselves. Not only does every case involve a charging instrument; but every accused has the opportunity to demand evidence to be put forth and to test such evidence. Once again staying at the most rudimentary levels, part and parcel of a person’s right to challenge an accusation is being afforded requisite time to prepare his or her own defense.

Shockingly, fair notice and fair opportunity to defend one’s self are not afforded the accused when it comes to facing the prospect of losing his or her interest in assets via forfeiture. To put it starkly, even though due process is supposed to be afforded persons facing deprivation of life, liberty, or property, an examination of the federal method leaves one to wonder where the constitution went, and possibly worse, where the basic vision of justice that every five-year-old shares has gone.

The Typical Federal Criminal Case

Obviously, federal cases begin with events that happen in the real world that are investigated by some law enforcement agency. Then, in the typical federal case, a decision is made by an agency along with the U.S. Attorney’s Office to bring charges into district court. Whether an arrest occurs before or after an indictment depends on the judgment of the prosecutor and the facts of an individual case. Regardless of the specific order, every case has a charging instrument. Then preliminary court proceedings such as arraignment occur, affording the opportunity to ensure the accused understands the specific charge he or she faces. Obviously, this knowledge gives the accused specific information about the range of punishment. Then typically, the defense attorney receives discovery from the prosecutor, which includes police reports, records, recordings, data, and other information relevant to the government’s case. When the defense attorney has an opportunity to review these items and interview the client and other witnesses, he or she can make a recommendation. At this point, the client decides whether to go to trial or plead guilty. Once a client is either found guilty at trial or pleads guilty, an interview then takes place and a presentence report is created for consideration by the district judge who will assess the sentence.

This process, while containing significant differences from Texas state procedure (like the unavailability of jury sentencing and the usage of a presentence investigation in nearly every case), generally fits the overall flow of state criminal cases. More importantly, this flow generally fits our most important precepts regarding basic justice: Every person ought to know what he or she is charged with, and every person ought to have a fair opportunity to defend him or her self against the charges. However, when a forfeiture notice is introduced in a criminal case, such precepts suffer significantly.

Application of Basic Hallmarks of Justice in the Adjudication of a Typical Federal Offense

For example, wire fraud under 18 U.S.C. Section 1343 carries a prison term up to 20 years and a fine up to twice the value of the property involved. Thus, a person charged by indictment with this offense conceivably understands what he or she is facing in terms of both liberty and pecuniary consequences.

The ability for an accused to know the scope of liberty and pecuniary exposure is a hallmark of our system of justice. Once again appealing to the obvious, if a person is accused of committing this crime, he or she must receive a charging instrument that gives 1) the name of a specific perpetrator or perpetrators; 2) a general jurisdictional location; 3) a written statement of the essential facts constituting the offense charged; and 4) customary citation of a statute or rule. Fed. R. Crim. P. 7.2 This framework, in most cases, satisfies the basic justice requirement of notice. Further, the framework also establishes static parameters. Namely, the persons punishable under the accusation, the term of imprisonment, and the amount of fine are limited to those identified within the charging instrument. For example, you could not list John Doe as the only accused defendant in an indictment for wire fraud and then imprison Jane Doe because she is not listed and, unless another charging instrument exists, has no notice that she is charged with a crime. Also, the statute listed in a charging instrument places a specific range of punishment for the accusation that cannot be exceeded. Forgive the obviousness of this discourse, but when you see the breadth of power afforded the government in criminal forfeiture, you will be astonished.

Steps in a Federal Criminal Case Including a Forfeiture Notice

Where Rule 7 sets requirements for a substantive criminal pleading, Rule 32.2 sets a very different standard for forfeiture notices. The rule starts out with a semblance of fairness by requiring all indictments to contain a forfeiture notice to authorize a criminal forfeiture; however, this is simply a notice and not a count. The burden of proof is preponderance of evidence. More striking is the fact that forfeiture notices do not need to list the object of prosecution (the property items sought). Instead, the notices simply need to state a general warning that the government will seek property if the client is convicted.

Specifically, Rule 32.2(a) brazenly states, “The indictment or information need not identify the property subject to forfeiture or specify the amount of any forfeiture money judgment the government seeks.” Even more amazing is the fact that the government need not inform the court which items are subject to deprivation until after a finding of guilt. Once again, the Rule states, “As soon as practical after a verdict or finding of guilty, or after a plea of guilty or nolo contendere is accepted… the court must determine what property is subject to forfeiture.”

Where “seizure” is the act of the government taking possession of private property, “forfeiture” is the legal mechanism where the government tries to own/keep the property. At this point it would be helpful to explain that the government can seek a seizure warrant for property once probable cause exists for the application of a forfeiture theory. This means that seizures often take place long before indictment. However, it is not at all uncommon for seizure efforts to begin at the time of conviction. That being the case, the government is under no obligation to notify the client which items it seeks before conviction. The problem is that the client is often expected to defend him or her self on the fly.

Application of Rule 32.2 in a Typical Federal Forfeiture Proceeding

Taking the wire fraud example listed above, a forfeiture notice contained in an indictment under 1343 gives the government the right to forfeit all property used to facilitate the offense or that is traceable to the gross proceeds the defendant obtained from the offense. (Other federal offenses allow the forfeiture of commingled assets, which is more expansive than facilitation or proceeds theories. Such ramifications go beyond the scope of this article.3) However, where the object of the prosecution in a criminal count is the corpus of the defendant, the object of prosecution in a forfeiture notice could be anything from a car to a necklace to a fossil to a bank account. Worse, since the government does not need to specify the object of its prosecution, the defendant is often left in the dark as to what he or she stands to lose.

Further applying the wire fraud example, imagine a fraudster sells 15 nonexistent Porsches on eBay to 15 separate victims for $50,000 each. For ease of example, say the sales all took place on the same day and the money transferred to the client on the same day. Obviously, the government will seek a money judgment in the amount of $750,000. But please realize that forfeiture is not confined to money judgments consisting simply of debt obligations. It often encompasses specific assets.

Imagine further that the day after the illegal money arrived, the fraudster bought 10 necklaces for $10,000, a BMW for $75,000, and put $100,000 into a bank account.4 In that case, the government would likely seek to forfeit those items.

Also imagine that since the fraud, the client put $250,000 to pay off the beach house he bought 10 years before committing the offense. The government will likely seek this home but there becomes a question whether the entire home is subject to forfeiture. The client will need to establish what portion of the home came via legitimate means and what portion did not.5

II. The Unfairness of Criminal Forfeiture Proceedings

In cases where a client pleads guilty, you can expect that forfeiture discussions will be a part of the overall plea negotiation process. Thus, the danger of unfair surprise is not as great (but actually still happens) in plea scenarios. However, forfeiture proceedings where the client demands and receives a trial are far more treacherous. This is because the government, as already stated, is under no obligation to identify which assets it will seek to forfeit until “as soon as practical” after a finding of guilty.

Also realize that third-party claims are often dealt with long after the criminal case is concluded. On the other hand, the client’s interest is usually dealt with very quickly after conviction, and it is the client who is in danger of losing property without a meaningful opportunity to fight.6

Imagine that the client is found guilty after a trial. This may very well be the first time he or she learns that the necklaces, account, beach house, and BMW are at risk. While few people will lose sleep over the fact that the client loses ill-gotten property, forfeiture of these items may have a devastating effect on a spouse or children. Further, remember that hybrid assets such as the beach house are not sheer proceeds. Does the government deserve the entire property? Is the client prepared to establish which portion he or she should keep?

Remember, as stated above, the government may have taken possession of the items via warrant before the trial/plea—or it can wait to mention its intention to seize and forfeit the property at this point. If the government already seized the property, then the client obviously knows of the government’s intention to forfeit. However, if the government has not taken possession before the verdict or plea, then the client might be shocked to see that he or she is losing more than liberty. Remember, the judge is not called upon to identify the items subject to forfeiture until “as soon as practical after a verdict or finding of guilty.” The problem for the client is that since he or she may be unaware that these items were targeted by the government, he or she has probably not taken any steps to establish the legitimacy of these items.

Not only is there a possibility that the client may learn for the first time what items are targeted after the conviction; there is also the possibility that he or she may be expected to defend the legitimacy of those items (or the absence of a nexus between the offense and the property) immediately after a verdict. I know of several instances where forfeiture hearings take place immediately after a jury’s finding of guilt. In fact, if the client has the gall to demand that a jury decide whether a piece of property is connected to a crime, such a jury hearing will almost assuredly take place immediately after the verdict of guilt. That hardly seems fair, given that the client may have just learned for the first time which items are subject to forfeiture.

Further complicating matters is the fact that the government may seek items that are owned by the client but unconnected to the offense under a theory known as substitute property. This means that if our wire fraud client does not have $750,000 worth of property traceable to the offense to satisfy the entire obligation, then the government can go after any other items the client owns. So unless the client kept the fruit of the crime, good-bye beach house or anything else the client owns. Once again, nobody is weeping for the client’s loss, but that home or other items may have sentimental value for the client’s spouse or kids. What if for example, the client owned one car upon which the family depends while he or she is in prison? Or, if an elderly client’s spouse stands to lose the pension your client earned?

Now imagine the client learns of this for the first time right after the verdict comes down.

Rule 32.2 provides: “If the forfeiture is contested, on either party’s request the court must conduct a hearing after the verdict or finding of guilty.” The problem is that these hearings often take place immediately after the verdict. How can a client prepare to establish a lack of nexus between an item of property and the underlying offense if he or she does not know which items the government wants?7

Compounding the client’s problem is the fact that the government enjoys a massive informational advantage over the defense attorney and the trial judge. While forfeiture jurisprudence has existed for centuries, very few judges and lawyers are familiar with it except for one group—government forfeiture specialists. Being a part of this select group harkened back to my speech and debate days in college and high school. Nobody thought we were cool, or even understood what we did, but we huddled together as a testament to ourselves.

Not being familiar with forfeiture law, judges often rely heavily on prosecutors to shepherd them through forfeiture proceedings. Further, these proceedings can utilize “evidence already in the record… or any additional evidence or information submitted by the parties and accepted by the court as relevant and reliable.” This includes the introduction of summary and hearsay evidence. With little exaggeration, the client’s chances regarding forfeiture stand as between slim and none, regardless of the level of connectedness targeted property has to the criminal activity.

The diagram on the facing page charts the flow of a criminal case, along with intervening forfeiture steps if the case involves criminal forfeiture.

III. Possible Systemic Solutions to Provide Fairness in Criminal Forfeiture Proceedings

Clearly, our clients need a fair opportunity to know what items they stand to lose sufficiently in advance of any determination that the property is subject to criminal forfeiture. Obviously, the government would object that any advance notice would allow for dissipation of assets. The clear trend of the legislation and court rulings in this area makes it clear that the government will receive every opportunity to capture assets to avoid dissipation. Thus, solutions must balance the government’s interest with reasonable justice tenets such as notice and time for preparation. Surely fairness should not be sacrificed to ensure the government’s rightful interest in avoiding dissipation of assets.

A reasonable framework to resolve this tension begins by recognizing that possession and forfeiture are distinct. The system can easily accommodate this concern by allowing seizure of targeted assets during any time period necessary to allow our clients to prepare for a forfeiture proceeding. Oh wait, they can already do that: It’s called a seizure warrant. Be that as it may, the government does not always elect to seize assets before trial. Oh,wait again, the rules of criminal procedure already allow trial courts to order seizure of any asset of the defendant’s after conviction. This allows the government to retain possession while the ultimate issue regarding the client’s interest in such items is resolved.

Solution Number One: Require the government to name known assets 60 days before trial. If the government identifies an asset after that time, see Solution Number Two.

Solution Number Two: Require 60 days for preparation between the government’s naming of an asset targeted for forfeiture and the hearing deciding the issue. This means that criminal forfeiture proceedings regarding assets that are not identified sufficiently in advance of trial will need to be addressed at a separate hearing. In other words, gone should be the days that the client needs to immediately face a forfeiture hearing right after the verdict—unless of course, the government names such assets 60 days before trial.

Keep in mind that that federal law allows the government to name assets for forfeiture long after the criminal case is concluded. There is no artificial deadline attached to either the date of conviction, sentencing, or even appellate decision. Thus, the rules already contemplate that proceedings can be held years after the criminal case is concluded. Thus, requiring a 60-day window between naming/seizure of an asset and the hearing is perfectly reasonable.

Solution Number Three: In the alternative, require that all assets not named in the criminal indictment be dealt with via civil forfeiture. For all practical purposes, once the client is sentenced, the trial court is putting the case behind it. It is rare that assets identified after sentencing are pursued under a criminal forfeiture theory. This means that most criminal forfeiture case only deal with the client’s interest in the property until the ancillary process begins. This makes sense because the ancillary process handles third-party claims in much the same way as do civil forfeiture proceedings. Since post-verdict forfeiture hearings only deal with the client’s interest in the property, why not keep the proceedings clean? If a sentence only applies to the objects of prosecution contained within the indictment—namely, the person and the penalty range—why not confine the criminal for­feiture proceedings to objects that are listed within the indictment, namely, the listed items for forfeiture?

Instead, Fed R. Crim. P 32.2 does the opposite and allows a generic forfeiture notice. Hopefully, this article has demonstrated that there are massive problems in the federal criminal forfeiture system, and hopefully it has done so in a clear way. In the end, even the most ardent prosecutor would agree that persons should have meaningful notice of what they stand to lose as well as a reasonable opportunity to prepare a defense. Hopefully, these systemic suggestions at least point to potentially positive first steps to address these concerns.

IV. Practice Tips

Living in the real world, we can’t simply lament the problems that exist within the system. As defense practitioners, we should take steps to protect our clients even in the face of difficult odds. Actually, it is one of the sick satisfactions that we can take as defense attorneys—that is, the fact that we are expected to drain the ocean with a teaspoon. With this spirit in mind, and with the hopes of trying to look out for our clients and their families, here a few things that can be done to deal with the current system.

Tip #1: Stop the Unacceptable Excuses

We all have enough to do as defense lawyers. Between making court appearances, advising clients, preparing for contested settings, and, of course, engaging in the never-ending battle of actually collecting the fees we have earned, there are not enough hours in the day. However, it is important to recognize that forfeiture, even civil forfeiture, is part and parcel of many criminal cases and we cannot just ignore it. Certain excuses such as, “I do not do forfeiture,” “Financial Investigations are hard,” or “Your wife did not hire me” do not serve your client. To be sure, your client’s spouse is not your client and you need to avoid conflicts of interest. Please do not read anything within this article to sugarcoat this issue. Thus, referring separate counsel to the spouse if she has a distinct property interest makes sense. Having said that, property owned by the client outright, which typically would allow only the client the right to claim it, may still be critically important to people the client loves.

Tip #2: Start Thinking About the Financial/Forfeiture Case Early

Financial records do not magically appear. The facts that trigger a criminal defense ought to also trigger a forfeiture defense at the same time. Once you receive a charging instrument that contains a forfeiture notice (or the government has seized an asset belonging to your client), you should begin interviewing your client regarding these assets and issuing subpoenas for bank records. Also request copies of your client’s tax returns and pay stubs. Demonstrating legitimate income is crucial, and you have to begin early.

Tip #3: Consider Dedicating Another Attorney to Handle the Forfeiture Part of the Criminal Case

As stated before, the primary defense attorney has enough to worry about trying to keep the client out of prison. Further, not all practitioners have expertise in this unique area of law. Consider either commandeering an attorney within your practice group or reaching out to another attorney who can begin to address these issues. Clearly structure your fee to ensure you are not working for free. If the client does not want to pay for work on the forfeiture case, then that is his or her decision. Offering a service that the client rejects is different than ignoring the issue.

Tip #4: File a Bill of Particulars

Just as you can file a bill of particulars demanding additional information regarding substantive criminal counts, you can file such a pleading to demand specific information regarding the forfeiture. While there is some controversy as to whether the government needs to list known assets targeted for forfeiture, many AUSAs will go ahead and either file a response or amend the charging instrument. By the way, this information may be helpful in understanding the government’s theory of fraud or the money flow of what they feel are transactions related to the underlying offense. In other words, this information can be helpful to the criminal defense.

Tip #5: Start Talking to the AUSA about Assets

The importance of communicating with the case prosecutor cannot be overstated. If you ask the government what assets they are seeking, you might be surprised that they answer you. If the prosecutor does not answer, you have not lost anything by asking. Also inquire whether the government will seek a jury determination regarding forfeiture and whether the government is seeking substitute assets. Also, request any equity valuations of targeted assets and other forfeiture related discovery they might have.

Tip #6: File or Submit a FRCP 16 Request for Discovery of Items Related to Forfeiture

FRCP 16 allows for discovery of multiple items upon a defendant’s request. You can have access to items such as the defendant’s statements, prior record, and inspection of documents but only if you request it. While it is unclear whether Rule 16 applies to forfeiture cases, surely you should try to invoke it in a criminal forfeiture proceeding. Even if you do not do so formally under Rule 16, request these items informally to the prosecutor. Any gained information would be more than you had before you requested it.

Asset forfeiture is a practice area expanding at an incredible rate. This is because the incredible material incentive it offers government agencies is undeniable. Also, these successes enjoyed by the government make it safe to assume that forfeiture efforts will only increase over time. Therefore it is incumbent on defense practitioners to take reasonable steps to protect their clients. While the law is slanted significantly in the government’s favor in this area, there are some reasonable steps that be taken to help your clients, and hopefully this article can help the practitioner in that endeavor. Best of luck!

Notes

1. Equitable sharing of forfeited assets is an interesting area but outside the scope of this article.

2. Many cases have addressed the level of specificity required under the Con­stitution. In a nutshell, due process requires sufficient facts so that an accused can present a meaningful defense—and which facts are going to be used to support the government’s theory.

3. Another issue beyond the scope of this article rests in the fact that property interests are often not confined to the accused. It is important to understand that criminal forfeiture not only contemplates depriving a defendant of property, but also ensuring that such property is taken from all others and given to the government. Once again, as alluded to earlier, I do not mean to suggest that the government seeks to take property from innocent persons, and to be sure, 18 U.S.C. Section 982 and FRE 32.2 include assurances that third parties can make “ancillary claims.”

4. And that the bank account had no withdrawals between the day of the offense and the verdict/plea. Not that account activity per se negates the government’s right to seize and forfeit the asset, but in such cases, accounting efforts to properly trace the assets must be used. For ease of discussion, this article will not address tracing concerns.

5. The government has the burden of proof to establish a nexus (connection) between the item of property and the offense, but this is usually done because hearsay is admissible and the general case agent will be allowed to present summary evidence to establish the nexus. However, proper tracing and accounting for assets is not always done, meaning that such a nexus may be based upon innuendo rather than accounting principles. Thus, for practical purposes, the client has the real burden of establishing legitimacy.

6. It is true there are two forfeiture orders regarding the client. One is the preliminary order of forfeiture and then comes a final order of forfeiture. However, it would be a mistake to take this to mean that the preliminary order is the lesser mandate. The final order is only used to allow “the parties to suggest revisions or modifications.” The preliminary order is the mandate dealing with the substantive issues regarding how much property the government will take in a forfeiture proceeding.

7. Third-party interests are not dealt with in the criminal forfeiture hearing or the criminal sentencing hearing but rather through a separate ancillary process that closely resembles civil forfeiture procedural rules.

2013 Criminal Law Legislative Update

Introduction

During the 83rd Texas Legislature, criminal justice issues were dominated by Michael Morton, a man who was wrongfully convicted of killing his wife and who spent 25 years in prison before being officially exonerated. Michael Morton’s case highlighted the fact that Texas leads the nation in wrongful convictions and forced the Legislature to confront the issues that lead to wrongful convictions head-on. In his biennial address to the Legislature, State Supreme Court Justice Wallace Jefferson called on the Legislature to establish a special commission to investigate wrongful convictions, suggesting that public faith in the legal system is undermined when “wrongful convictions leave our citizens vulnerable, as actual perpetrators remain free.” While the bill to establish an innocence commission ultimately failed to pass, the Morton case generated tremendous momentum on all sides to legislatively address the systemic issues that led to Mr. Morton’s wrongful conviction and incarceration in order to prevent future wrongful convictions. In response to the Michael Morton travesty, which resulted in part from the withholding of favorable evidence by the prosecution, the “Michael Morton Act,” SB 1611, was signed into law and completely reforms the discovery process for criminal cases in Texas. In addition to the Michael Morton Act, there were several other criminal justice reform bills that passed that were designed to increase prosecutorial accountability and to prevent and remedy wrongful convictions. Also, numerous penalty-enhancement and new crime bills passed, as well as a bill that significantly alters the rules of evidence in certain criminal cases, and a bill in response to the U.S. Supreme Court’s recent decision in Miller v. Alabama.

Criminal Justice Reform Legislation

SB 1611, the “Michael Morton Act,” requires prosecutors to open their files to defendants and keep records of the evidence they disclosed in an attempt to reduce wrongful convictions in Texas. While the U.S. Supreme Court’s decision in Brady v. Maryland (1963) has long required prosecutors to disclose evidence that is “material either to guilt or punishment,” this new law requires disclosure of all police reports and witness statements, regardless of whether the evidence is material to guilt or punishment, and requires that any other evidence that is material to any matter be disclosed.

SB 344 addresses the appeals process for those who were convicted based on junk science by expressly allowing courts to overturn convictions in cases where the forensic science that originally led to the verdict has changed. The bill authorizes courts to grant relief on applications for writs of habeas corpus if the relevant scientific evidence is currently available but was not available at the time of the conviction because the evidence was not ascertainable through reasonable diligence at the time of trial as long as the scientific evidence would be admissible.

SB 1238 was in direct response to the Attorney General opinion sought by John Bradley while he was chairman of the Texas Forensic Science Commission. The Attorney General opinion limited the Commission’s investigative authority to labs and facilities that were accredited by DPS at the time the forensic analyses took place and restricted the Commission’s authority to investigate fields of forensic analysis that were not included in the statutory definition. This legislation specifically authorizes the Commission to investigate many more types of forensic disciplines that are unaccredited such as arson, fingerprinting, breath-alcohol testing, ballistic examinations, and unaccredited entities.

HB 1847 requires that prosecutors complete at least one hour of ethics relating to the duty to disclose exculpatory and mitigating evidence as part of the State Bar’s minimum continuing legal education requirements each year.

SB 825 disallows the State Bar from issuing private sanctions when prosecutors are found to have committed Brady violations and also changes the statute of limitations for state bar grievances alleging Brady violations to begin to run when a wrongfully imprisoned person is released from prison.

HB 2090 requires a written statement signed by an accused to be in the language that he or she can read and understand before it can be admitted as evidence in a criminal proceeding in an effort to reduce the possibility of false confessions being admitted at trial by a person that does not speak or understand English.

Penalty Enhancement and New Crime Legislation

HB 1302 requires an automatic sentence of life in prison without parole upon a second conviction for a “sexually violent offense” against a child under the age of 14. This leg­is­lation also specifically prohibits registered sex offenders from working at amusement parks, or seeking employment as a cab, bus, or limousine driver.

SB 124 provides that the offense of tampering with a governmental record is enhanced from a Class A misdemeanor to a third-degree felony if the governmental record was a public school record, report, or state-mandated assessment instrument (or a second-degree felony if the actor’s intent was to defraud or harm another).

HB 8 was the major bill that addressed human trafficking and provides for many enhancements including an enhancement on all prostitution offenses from a Class B misdemeanor to a second-degree felony if the person solicited is younger than 18 years of age, regardless of whether the actor knows the age of the person solicited at the time of the offense. This legislation also significantly alters the definition of the crime of possession of child pornography by providing that a person commits an offense if he knowingly or intentionally “access with the intent to view” child pornography.

SB 1360 enhances the penalty to the greater of a third-degree felony or the most serious offense charged in the criminal case if the underlying official proceeding involves family violence. This legislation also provides a statutory for­feiture by wrongdoing provision, which provides that a party to any criminal case who wrongfully procures the unavailability of a witness forfeits the right to object to the admissibility of evidence or statements based on the unavailability of the witness.

SB 275 enhances the penalty from a third-degree felony to a second-degree felony for the offense of leaving the scene of an accident resulting in the death of a person.

SB 549 enhances the minimum penalty from 5 to 15 years in prison upon a conviction for a first-degree felony engaging in organized crime offense. In addition, this legislation requires an automatic sentence of life without parole upon conviction of engaging in organized crime if the underlying offense is an aggravated sexual assault and the defendant is at least 18 years of age or older and the victim was either younger than 6; or if the victim was younger than 14 and the person caused serious bodily injury or placed the victim in fear of death, serious bodily injury, or kidnapping; or if the victim is younger than 17 and suffered serious bodily injury.

HB 2539 places an affirmative duty on computer technicians to immediately report the discovery of an image on a computer that is or appears to be child pornography and provides a new Class B misdemeanor offense if the computer technician fails to make such report.

Evidentiary Change Legislation

SB 12 suspends evidentiary rules 404 and 405 in trials for certain sex offenses by allowing the admission of evidence during the guilt/innocence phase of the trial that the defendant has committed a separate enumerated sex offense for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant. This legislation requires the trial judge to make a determination outside the presence of the jury and prior to the introduction of this evidence that the defendant committed the separate offense beyond a reasonable doubt.

Legislation in Response to Miller v. Alabama

SB 2 is an attempt by the Legislature to address the U.S. Supreme Court’s decision in Miller v. Alabama, which held that mandatory sentences of life in prison without the possibility of parole are unconstitutional for juvenile offenders (those under the age of 18). Prior to the passage of SB 2, the only punishment available for an individual convicted of capital murder was either automatic life in prison without the possibility of parole, or the death penalty. This posed a unique issue for 17-year-olds, who under Texas law are treated as adults and not juveniles, who were convicted of capital murder since both of its man­datory punishments (life in prison without parole and the death penalty) had been declared unconstitutional. As a result, SB 2 requires that an individual younger than 18 years of age who is convicted of capital murder be punished with an automatic sentence of life in prison with the possibility of parole.

Other Highlights

HB 434 expands the list of those authorized to draw blood from a person during a driving while intoxicated investigation to include emergency medical technicians and paramedics. Under previous law, only a physician, qualified technician, chemist, registered nurse, or licensed vocational nurse was authorized to take a blood specimen at the request or order of a peace officer for purposes of intoxication-related offenses. This new legislation will allow for a person’s blood to be drawn without having to transport the individual to a separate facility such as a hospital during an intoxication-related investigation.

HB 1862 amends the prohibited weapons statute by removing the switchblade knife from the prohibited weapons list so that there are no longer criminal consequences to possessing, manufacturing, transporting, repairing, or selling a switchblade knife.

SB 821 Brings Texas law up to date by adding “hot drafts” to “hot checks” statutes to allow prosecution of those who pay with hot drafts by adding “sight order,” along with checks, for purposes of theft by check to allow prosecution for insufficiently funded electronic transfers, or “hot drafts.”

Conclusion

Overall, the 83rd Texas Legislature made some significant improvements in the criminal justice system, decreasing the likelihood of wrongful convictions by increasing transparency and accountability. As a result, hopefully fewer innocent people will be wrongfully convicted and imprisoned in Texas. However, despite the significant progress made this session, there is still a lot that needs to be done to improve our criminal justice system in upcoming sessions.

January/February 2014 Complete Issue – PDF Download

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Features
18 | Proposal for Counsel at Tex. Code Crim. Proc. Art. 15.17 Proceedings – By Alex Bunin & Andrea Marsh
23 | You Snooze You Lose, or How to Pre­serve Error and Give Your Client a Fighting Chance on Appeal – By Louis E. Lopez Jr.
28 | The Systemic Denial of Due Process in Post-Trial Criminal Forfeiture Proceedings – By Steve Jumes
37 | 2013 Criminal Law Legislative Update – By Kristin Etter, David Gonzalez & Allen D. Place Jr.

Columns
7 | President’s Message
9 | Executive Director’s Perspective
12 | Ethics and the Law
15 | Federal Corner

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

President’s Message: State of the Association at the Close of 2013 – By Bobby Mims

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As 2013 closed and as 2014 began, it is time to review the state of the Texas Criminal Defense Lawyers Association. In doing so it is informative to review 2013 and set out the challenges of 2014.

When 2013 began the TCDLA was faced with a multitude of proposed legislation that would greatly impact the practice of criminal defense and the people of the State of Texas. TCDLA lobbyists and leadership took on the challenge of advising the legislature and leaders about this legislation. Some proposed new laws were allowed to “die in committee” while others were passed signed by the governor. The Michael Morton Act was the most significant criminal justice legislation out of the last legislative session, and TCDLA had a great impact on its final language.

The TCDLA leadership has determined that one of the most important roles of this association was to be involved in the legislative process. A decision was made by the board in September to augment lobbying efforts and allocate additional resources. A decision was made to employ full-time personnel to assist the paid lobbyists and to have a permanent presence at the Capitol.

TCDLA began a participation with the Texas Indigent Defense Commission (“TIDC”) in a study of Indigent Defense programs in Texas. TCDLA and TIDC agreed to participate with Texas A&M Research Group and gather data on the practices of actual criminal defense lawyers in indigent cases. At the close of 2013 more than 200 TCDLA members had volunteered to participate in the study.

The American Bar Association Task Force reviewed the capital murder statutes in Texas and published its evaluation, making suggestions to improve the capital murder system. The TCDLA has called for a moratorium on executions until the legislature and the leaders have had an opportunity to decide whether to address these suggestions. Presently there does not appear to be an actual mechanism under the law to impose a moratorium unless the judiciary generally abates setting execution dates until action by the governor and the legislature in 2016.

As 2013 closed the association is on sound financial ground. The professional staff and comptroller have improved the accounting procedure, and audit exceptions are rare and have been corrected. The Board of Directors approved the employment of outside auditors Montemayor and Hill & Company to audit the association. The results of this audit will be made available to the TCDLA Budget Committee and available for review by members when it is completed in April 2014.

The Challenges and Opportunities for 2014

TCDLA along with the Criminal Defense Lawyers Project (“CDLP”) sponsors about 50 seminars a year to train criminal defense lawyers. Recently there have been indications that some seminars have seen a reduction in attendance. This may be attributable to seminar fatigue, the economy, or to the success of the past training. One of the concerns expressed by some is that the DWI seminars have saturated the market and more such seminars will diminish the established programs. Others hold that more DWI training is needed in areas of the state where members do not have access to the big seminars in New Orleans, Houston, San Antonio, and the DFW metroplex due to expense. There are some issues in our important partnership with other associations that need to be addressed. The leadership is actively working to resolve these issues. TCDLA and its members are fortunate that we have the best DWI lawyers in the country volunteering to train Texas lawyers.

The Board of Directors of TCDLA has hired an excellent lawyer to serve as General Counsel. This position has been vacant for three years, and the association has relied on outside counsel for legal advice. The new position will assist in publication revision, coordinate with capital counsel, provide legal advice to the Board and the professional staff, and will co­or­di­nate lobbying efforts with paid lobbyists. This is a signifi­cant organizational event for the association. This position will improve the functioning and efficiency of the organization. The General Counsel will assume duties on March 3, 2014.

TCDLA will call on its Capital Assistance Committee to work with the Legislative Committee to propose legislation seek­ing to address the issues that were raised by the ABA Task Force on capital murder. The challenge will be to draft proposed legislation that has a reasonable chance of enactment. TCDLA has an excellent cadre of experienced capital defenders as a resource and some of the most effective lobbyists who can advise on what legislation is likely to pass.

In December an ice storm required the Board of Directors meeting to be canceled. The leadership decided to reschedule and relocate the meeting to Lubbock in conjunction with the TCDLA and Lubbock Criminal Defense Lawyers Association’s “34th Annual Prairie Dog Advanced Criminal Law Seminar.” Also the TCDLA Nominations Committee met and nominated its slate of officers and board members for election by the membership for 2014–2015. An excellent slate of candidates has been nominated for these offices. TCDLA has a goal to enhance diversity in leadership positions, and the nominations committee slate advances toward this goal.

Looking out to 2016, it is likely that the President of TCDLA and the President of the NACDL will both be Texans, TCDLA members, and excellent criminal defense lawyers from Austin. TCDLA will work closely with NACDL on a seminar and other event planned for Austin to celebrate this significant event, which should enhance the relationship of the two sister associations.

There are other opportunities and challenges for 2014. The members of this association make up the largest state criminal defense association in the country. Our members are the best trained lawyers in the nation and provide the best possible legal representation for the accused. We are more than 3200 strong and growing. We are on sound financial ground and operate efficiently. Our professional staff is the best in the business and continually seeks for ways to improve service to the membership and to the public. Our relationship with our affiliate organizations is solid, and we have added several new affiliate organizations in important areas of Texas.

As 2014 begins, the state of the Texas Criminal Defense Lawyers Association is “SOUND!”

Best wishes for all in 2014.

Bobby Mims
President

Executive Director’s Perspective: TCDLA in Motion – By Joseph A. Martinez

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TCDLA Members held a memorial to Mr. George Gilkerson, our fourth President, who passed away on November 5. Bill Wischkaemper presided over the memorial held in Mr. Gilkerson’s hometown of Lubbock. Members saw a video of our first President, Honorable Judge Frank Maloney, speaking about Mr. Gilkerson’s love for TCDLA. TCDLA members should be thankful for Mr. Gilkerson’s leadership and guidance. TCDLA stands today on the shoulders of Mr. Gilkerson and his contributions to justice.

The following motions were made and passed by the TCDLA Board at their quarterly meet held at the Texas Tech School of Law in Lubbock on January 11, 2014. This quarterly board meeting was rescheduled when the Austin Board meeting in December was canceled because of inclement weather.

MOTION: Minutes, June 15, 2013
Approve minutes from June 15, 2013, TCDLA Board Meeting in San Antonio.
Motion made by Michael Gross, seconded by Sam Bassett—motion carries.

MOTION: To Approve Coastal Bend Criminal Defense Lawyers Association as a TCDLA Affiliate
Motion made by Mark Snodgrass, seconded by Bill Harris—motion carries.

MOTION: Resolution of Texas Criminal Defense Lawyers Association Board of Directors in Support of the Harris County Criminal Lawyers Association Call for Judicial Reform Related the Granting of Pretrial Release Bonds and Personal Recognizance Bonds
Motion made by David O’Neil, seconded by Carole Powell—motion carries.

MOTION: To approve Ron Goranson, David Botsford, and Stan Schneider for TCDLA 2014 Hall of Fame recipients
Motion made by David Moore, seconded by Bennie Ray—motion carries.*

Special thanks to the David Hazlewood, President of the Lubbock Criminal Defense Lawyers Association (LCDLA), and all of the members of LCDLA who helped put on one of the most extraordinary training events in the State of Texas—the 33rd Annual Prairie Dog Advanced Criminal Law Seminar, “One Toke Over the Line,” held January 10–11, 2014, with 216 attendees. In addition to the Prairie Dog seminar, LCDLA put on a Nuts ’n’ Bolts seminar on January 9 for 75 attendees.

Thanks to course director Troy McKinney, as well as the National College for DUI Defense and CDLP, a Public Defender DWI CLE also was held on January 9, hosted by LCDLA. We had 36 attendees.

LCDLA put on the Annual Bash party at the Alumni Pavilion, Texas Tech, with entertainment provided by Your Brother’s Uncle Frazier. They had over 300 attendees at the party.

Many thanks to the 29 speakers who presented throughout the week.

Many thanks to Dean Darby Dickerson of the Texas Tech Law School for allowing TCDLA/LCDLA/NCDD the use of the Law School. Special thanks to Professor Pat Metze, who helped coordinate all of the activities with the Law School. Special thanks to LCDLA and the Texas Tech Law School for hosting the quarterly TCDLA Board Meeting.

Special thanks to the Lubbock Outlaw Grillers, who cooked brunch for the TCDLA board and lunch for the Prairie Dog attendees, under the watchful eyes of Master Griller Bill Trantham.

Thanks to our course directors, Kelly Pace, Grant Scheiner, and Derick Smith, for the Trial Strategies That Work/Technology seminar held in Sugarland in November. Thanks to their efforts we had 89 attendees.

Thanks to our course director, Troy McKinney, for the DWI—Public Defender training held in Edinburgh on November 15. Thanks to his efforts we had 43 attendees.

Thanks to course director Jorge Aristotelidis, President of the San Antonio Criminal Defense Lawyers Association (SACDLA), for the Nuts ’n’ Bolts seminar held in San Antonio on November 15 of last year. Thanks to his efforts and SACDLA members we had 216 attendees.

Thanks to our course directors, Rick Wardroup, Jeanette Kinard, and Ed Stapleton, for the Capital Litigation/Mental Health seminar in South Padre Island November 21–22. Thanks to their efforts we had 57 attendees.

Thanks to Cris Abel and Patty Tress, our course directors for the 6th Annual Jolly Roger Hal Jackson Memorial Law Seminar held in Denton in December. Thanks to their efforts we had 99 attendees.

Thanks to Troy McKinney, Doug Murphy, and Gary Trichter, our course directors for the Stuart Kinard Memorial Advanced DWI Seminar held in San Antonio November 6–7. Thanks to their efforts we had 134 attendees.

Thanks to Marjorie Bachman, Sam Bassett, and Gerry Morris, our course directors for Defending Those Accused of Sexual Assault seminar held in Austin December 4–5. Thanks to their efforts we had 136 attendees.

Are you interested in forming a local criminal defense bar? Need help getting organized? Please contact Susan Anderson (Dallas), , or Ray Rodriguez (Laredo), , Co-Chairs of the TCDLA Affiliate Committee.

Good verdicts to all


*Minutes from the TCDLA January Board Meeting are a draft and not yet approved by the TCDLA Board.

Ethics and the Law: Be Ye Kind One to Another

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Since the beginning of time, leaders and scholars have tried to encourage people to get along and cooperate with each other for the common good. As we all know, there have been wars and rumors of war since the beginning of mankind. We supposedly live in a sophisticated society, but things have changed little. Lawyers were once leaders and role models for the citizenry but now have digressed in to what some people think are nothing but shysters preying on clients. As we go about our job of representing people of all kinds, it is always better to take the high road and try to do what is right in the eyes of the world. Recently in a high-profile and hotly contested trial in Houston, the judge, in an attempt to bring civility to the lawyers, brought them to the bench and made them read the lawyers creed.

THE TEXAS LAWYER’S CREED
A MANDATE FOR PROFESSIONALISM
Promulgated by
The Supreme Court of Texas and the Court of Criminal Appeals
November 7, 1989

I am a lawyer. I am entrusted by the People of Texas to preserve and improve our legal system. I am licensed by the Supreme Court of Texas. I must therefore abide by the Texas Disciplinary Rules of Professional Conduct, but I know that professionalism requires more than merely avoiding the violation of laws and rules. I am committed to this creed for no other reason than it is right.

I. OUR LEGAL SYSTEM

A lawyer owes to the administration of justice personal dignity, integrity, and independence. A lawyer should always adhere to the highest principles of professionalism.

1.  I am passionately proud of my profession. Therefore, “My word is my bond.”
2.  I am responsible to assure that all persons have access to competent representation regardless of wealth or position in life.
3.  I commit myself to an adequate and effective pro bono program.
4.  I am obligated to educate my clients, the public, and other lawyers regarding the spirit and letter of this Creed.
5.  I will always be conscious of my duty to the judicial system.

II. LAWYER TO CLIENT

A lawyer owes to a client allegiance, learning, skill, and industry. A lawyer shall employ all appropriate means to protect and advance the client’s legitimate rights, claims, and objectives. A lawyer shall not be deterred by any real or imagined fear of judicial disfavor or public unpopularity, nor be influenced by mere self-interest.

1.  I will advise my client of the contents of this creed when undertaking representation.
2.  I will endeavor to achieve my client’s lawful objectives in legal transactions and in litigation as quickly and economically as possible.
3.  I will be loyal and committed to my client’s lawful objectives, but I will not permit that loyalty and commitment to interfere with my duty to provide objective and independent advice.
4.  I will advise my client that civility and courtesy are expected and are not a sign of weakness.
5.  I will advise my client of proper and expected behavior.
6.  I will treat adverse parties and witnesses with fairness and due consideration. A client has no right to demand that I abuse anyone or indulge in any offensive conduct.
7.  I will advise my client that we will not pursue conduct which is intended primarily to harass or drain the financial resources of the opposing party.
8.  I will advise my client that we will not pursue tactics which are intended primarily for delay.
9.  I will advise my client that we will not pursue any course of action which is without merit.
10.  I will advise my client that I reserve the right to determine whether to grant accommodations to opposing counsel in all matters that do not adversely affect my client’s lawful objectives. A client has no right to instruct me to refuse reasonable requests made by other counsel.
11.  I will advise my client regarding the availability of mediation, arbitration, and other alternative methods of resolving and settling disputes.

 

III. LAWYER TO LAWYER

A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings. Ill feelings between clients shall not influence a lawyer’s conduct, attitude, or demeanor toward opposing counsel. A lawyer shall not engage in unprofessional conduct in retaliation against other unprofessional conduct.

1.  I will be courteous, civil, and prompt in oral and written com­munications.
2.  I will not quarrel over matters of form or style, but I will con­centrate on matters of substance.
3.  I will identify for other counsel or parties all changes I have made in documents submitted for review.
4.  I will attempt to prepare documents which correctly reflect the agreement of the parties. I will not include provisions which have not been agreed upon or omit provisions which are necessary to reflect the agreement of the parties.
5.  I will notify opposing counsel, and, if appropriate, the Court or other persons, as soon as practicable, when hearings, depositions, meetings, conferences or closings are cancelled.
6.  I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided legitimate objectives of my client will not be adversely affected.
7.  I will not serve motions or pleadings in any manner that unfairly limits another party’s opportunity to respond.
8.  I will attempt to resolve by agreement my objections to matters contained in pleadings and discovery requests and responses.
9.  I can disagree without being disagreeable. I recognize that effective representation does not require antagonistic or obnoxious behavior. I will neither encourage nor knowingly permit my client or anyone under my control to do anything which would be unethical or improper if done by me.
10.  I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties and witnesses. I will not be influenced by any ill feeling between clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel.
11.  I will not take advantage, by causing any default or dismissal to be rendered, when I know the identity of an opposing counsel, without first inquiring about that counsel’s intention to proceed.
12.  I will promptly submit orders to the Court. I will deliver copies to opposing counsel before or contemporaneously with submission to the Court. I will promptly approve the form of orders which accurately reflect the substance of the rulings of the Court.
13.  I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence.
14.  I will not arbitrarily schedule a deposition, court appearance, or hearing until a good faith effort has been made to schedule it by agreement.
15.  I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.
16.  I will refrain from excessive and abusive discovery.
17.  I will comply with all reasonable discovery requests. I will not resist discovery requests which are not objectionable. I will not make objections nor give instructions to a witness for the purpose of delaying or obstructing the discovery process. I will encourage witnesses to respond to all deposition questions which are reasonably understandable. I will neither encourage nor permit my witness to quibble about words where their meaning is reasonably clear.
18.  I will not seek Court intervention to obtain discovery which is clearly improper and not discoverable.
19.  I will not seek sanctions or disqualification unless it is necessary for protection of my client’s lawful objectives or is fully justified by the circumstances.

IV. LAWYER AND JUDGE

Lawyers and judges owe each other respect, diligence, candor, punctuality, and protection against unjust and improper criticism and attack. Lawyers and judges are equally responsible to protect the dignity and independence of the Court and the profession.

1.  I will always recognize that the position of judge is the symbol of both the judicial system and administration of justice. I will refrain from conduct that degrades this symbol.
2.  I will conduct myself in Court in a professional manner and dem­onstrate my respect for the Court and the law.
3.  I will treat counsel, opposing parties, the Court, and members of the Court staff with courtesy and civility.
4.  I will be punctual.
5.  I will not engage in any conduct which offends the dignity and decorum of proceedings.
6.  I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities to gain an advantage.
7.  I will respect the rulings of the Court.
8.  I will give the issues in controversy deliberate, impartial and studied analysis and consideration.
9.  I will be considerate of the time constraints and pressures imposed upon the Court, Court staff and counsel in efforts to administer justice and resolve disputes.

ORDER OF THE SUPREME COURT OF TEXAS AND THE COURT OF CRIMINAL APPEALS

The conduct of a lawyer should be characterized at all times by honesty, candor, and fairness. In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession’s broader duty to the legal system.

        The Supreme Court of Texas and the Court of Criminal Appeals are committed to eliminating a practice in our State by a minority of lawyers of abusive tactics which have surfaced in many parts of our country. We believe such tactics are a disservice to our citizens, harmful to clients, and demeaning to our profession.

        The abusive tactics range from lack of civility to outright hostility and obstructionism. Such behavior does not serve justice but tends to delay and often deny justice. The lawyers who use abusive tactics instead of being part of the solution have become part of the problem.

        The desire for respect and confidence by lawyers from the public should provide the members of our profession with the necessary incentive to attain the highest degree of ethical and professional conduct. These rules are primarily aspirational. Compliance with the rules depends primarily upon understanding and voluntary compliance, secondarily upon re-enforcement by peer pressure and public opinion, and finally when necessary by enforcement by the courts through their inherent powers and rules already in existence.

        These standards are not a set of rules that lawyers can use and abuse to incite ancillary litigation or arguments over whether or not they have been observed.

        We must always be mindful that the practice of law is a profession. As members of a learned art we pursue a common calling in the spirit of public service. We have a proud tradition. Throughout the history of our nation, the members of our citizenry have looked to the ranks of our profession for leadership and guidance. Let us now as a profession each rededicate ourselves to practice law so we can restore public confidence in our profession, faithfully serve our clients, and fulfill our responsibility to the legal system.

        The Supreme Court of Texas and the Court of Criminal Appeals hereby promulgate and adopt “The Texas Lawyer’s Creed—A Mandate for Professionalism” as attached hereto and made a part hereof.

Federal Corner: A Judge’s Erroneous Ruling Does Not Always Implicate the Fifth Amendment – By F. R. Buck Files Jr.

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On December 5, 2013, a panel of the United States Court of Appeals for the Seventh Circuit did not send Frank Caira an early Christmas present; instead, they affirmed his convictions for conspiracy to commit murder of a United States official and solicitation of a violent felony. United States. v. Caira, ___F3d___, 2013 WL 6326589 (7th Cir. 2013) [Panel: Chief Judge Wood and Circuit Judges Easterbrook and Hamilton. Opinion by Chief Judge Wood].

The Court held that:

  • The testimony of the defendant’s former attorney that the defendant was in a panic when he showed his former attorney text messages that the defendant had received from his alleged co-conspirator was not hearsay;
  • The district court’s erroneous ruling that the testimony was hearsay and would not be admissible without the defendant’s testimony concerning the conversation did not com­pel the defendant to testify in violation of the Fifth Amendment; and,
  • The district court’s ruling did not affect the defendant’s substantial rights.

Over the years, I have enjoyed reading opinions written by the judges of the Seventh Circuit—and the opinion in Caira was no exception. Judge Wood began his opinion with this sentence:

Frank Caira is a smart man who has done some stupid things. Prominent among the latter was his plan for beating a felony drug indictment by having the prosecutor and Drug Enforcement Administration agent on his case murdered.

When I read that, I knew that this was going to be an interesting case.

A Synopsis of the Facts in the Case

Caira was “an accomplished and well-published medical researcher” who decided to get into the illegal drug business and eventually produced more than 70,000 pills of ecstasy. DEA Special Agent Patrick Bagley and other federal officers arrested Caira. After he was indicted, Caira met and his lawyer met with Assistant United States Attorney Shoshana Gillers and several federal agents on five occasions to discuss his cooperation and a resolution of his case.

Another lawyer—Tamara Holder—contacted the Federal Bureau of Investigation with information that one of her clients, Ricardo Ruiz, had information about a plot to kill Bagley and Gillers. FBI agents met with Ruiz, who gave them information that Jack Mann had recruited him to murder Bagley and Gillers. He was to be paid two kilograms of cocaine and given lessons on how to make synthetic drugs. Ruiz had in his possession copies of court documents from Caira’s drug case as well as an envelope that Mann had given to him. Handwritten notes containing Bagley’s and Giller’s names were on the envelope. Ruiz informed the investigators that he had never had any contact with Caira.

FBI agents arrested Mann, who agreed to cooperate. The agents provided Mann with a recording device that he wore to a meeting with Caira. Although the device malfunctioned, Caira was arrested by these agents, who also seized his cell phone. A forensic examination of the cell phone revealed text messages between Caira and Mann. Based on these text messages and the testimony of Mann and Ruiz, Caira was indicted for violations of 18 U.S.C. §§ 1117 and 373. After a jury trial, Caira was convicted on all counts and sentenced to life in prison plus 20 years; thereafter, he gave timely notice of appeal.

Returning to Judge Wood’s opinion, he writes:

[The Guts of the Government’s Case]

[T]he government’s case rested primarily on the testimony of Mann and Ruiz and the text messages recovered from Caira’s phone. Mann and Ruiz testified that Caira approached Mann about finding a hitman to kill Gillers and Bagley, whereupon Mann recruited Ruiz. In the text messages, Caira and Mann discussed the murder plot in coded language. “When can you get me the paperwork with names of people to be underwritten?” asked Mann at one point. Caira wrote back, “You have two names, and you know the big one,” and Mann replied, “Pat is first to be insured.”

[The Testimony at Trial]

At trial, Caira testified that Mann used the term “underwritten” to “refer[ ] to contracts in general, and that was a term of having people underwritten to be killed that he came up with.” In another text message, Mann told Caira that the plan was a “green light.” Asked later what this message meant, Caira said, “He was referring to this whole plan of killing the prosecutor and saying, look, there’s a green light[.]”

[The Defendant’s Theory of the Case]

Caira never disputed that a plot to kill Gillers and Bagley existed. Rather, his defense was that the plot was all Mann’s idea and that Caira never intended that anyone should be hurt. Caira pointed to cajoling text messages sent by Mann and a threatening voicemail from Ruiz as evidence that Mann and Ruiz were the driving forces behind the plot.

[The Defense’s Case Begins to Crater]

For his first witness, Caira attempted to call his former lawyer, Jeffrey Fawell, to testify that Caira had shown him Mann’s text messages in a panic. This evidence, Caira argued, was relevant to show his state of mind at the time, specifically, that he lacked murderous intent. The government objected that Fawell’s testimony would be hearsay, and the district court agreed, stating that “[Fawell’s] statement as to what Mr. Caira said without some testimony as to the person making that statement would be rank hearsay. . . . [T]here are certain conditions precedent which must be met in order to have that evidence come in and not be hearsay.” After a short recess, defense counsel announced that Caira would testify, while attempting simultaneously to preserve the Fifth Amendment issue for appeal.

        Caira was on the stand for hours.

***

The government’s cross-examination of Caira was devastating.

[Judge Conlon’s Erroneous Ruling in Response to the Government’s Hearsay Objection]

Under the Federal Rules of Evidence, hearsay is defined as “a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c). The statements at issue here were made during a conversation between Fawell and Caira, and they were about text messages that Caira had received from Mann. In those statements, Caira supposedly told Fawell that he had received Mann’s messages; Fawell then advised him to stay away from Mann. Neither Caira nor Fawell made his statements “while testifying at the current trial,” and so the first part of Rule 801(c)’s definition was met. The question is whether any of the contested statements was offered for the truth, or if instead it was offered for another purpose. In our view, the more natural interpretation is that these statements were offered to show Caira’s state of mind, not to prove the point that he actually had received text mes­sages from Mann or that he should avoid Mann. Because the statements were not offered to prove the truth of the matter asserted, the district court erred by characterizing them as hearsay.

[Judge Conlon’s Error Does Not Result in a Win for Caira]

That conclusion in itself, however, does not compel a ruling in Caira’s favor. He urges that this evidentiary error had the effect of forcing him to take the stand, and further that this compelled testimony necessarily violated his rights under the Fifth Amendment. But the link between an evidentiary error and a constitutional violation cannot be drawn so readily. As we noted in United States v. Paladino, 401 F.3d 471 (7th Cir.2005), the Supreme Court has held that there is no compulsion as the Fifth Amendment uses that concept in this situation, because the defendant retains the option of standing on his right not to testify and seeking appellate correction of the evidentiary ruling. Id. at 477, citing United States v. Luce, 469 U.S. 38, 41–43, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984).

***

As we noted in Paladino, “there is no compulsion in such a case, since the defendant has the option of refusing to testify and instead, if he is convicted, of obtaining appellate correction of the erroneous evidentiary ruling and with it a new trial.” 401 F.3d at 477. We acknowledged that “this rule puts the defendant to a hard tactical choice,” but we were concerned that “the alternative would be to give him two bites at the apple: testify, and try to win an acquittal; if that fails, appeal and get a new trial on the basis of the judge’s ruling.” Id.; see also Wilson, 307 F.3d at 599–600 (rejecting defendant’s argument that such a choice impermissibly puts defendant “on the horns of a dilemma”). We see no reason to jettison that logic.

[Caira’s Difficult Choice]

As in Luce and Paladino, the district court’s decision here left the defendant with a difficult choice, but a choice nonetheless. Caira’s decision was voluntary, strategic and fully informed—that is, it was the antithesis of compulsory. Had the jury believed him, he might be a free man today. But it did not. We are satisfied that Caira’s decision to testify was based on much more than the district court’s evidentiary ruling. That is not unusual: “an accused’s decision whether to testify ‘seldom turns on the resolution of one factor[.]’” Luce, 469 U.S. at 42, 105 S.Ct. 460 (quoting New Jersey v. Portash, 440 U.S. 450, 467, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979) (Blackmun, J., dissenting)).

[Judge Conlon’s Erroneous Ruling Did Not Affect Caira’s Substantial Rights]

Understood as an ordinary evidentiary error, the mistaken decision to exclude Fawell’s testimony would not call for reversal unless it affected Caira’s substantial rights. See Fed. R. Crim. P. 52(a). It did not have such an effect. First, the proffered testimony concerned only a small part of Caira’s overall defense. Weighed against the incriminating text messages, the fact that the targets of the alleged plot were the prosecutor and DEA agent involved in Caira’s own case, and the testimony of Mann and Ruiz, Fawell’s testimony would not have been likely to influence the jury’s verdict. In addition, Caira elected to testify before offering his other witnesses.

***

In the end, Caira cannot show that the mistaken exclusion of one line of evidence had the necessary effect on his rights.

***

Our conclusion is bolstered by the fact that if Fawell’s testimony were really so vital to his case, Caira could have directly challenged its exclusion on appeal.

[The Court’s Limited Holding]

We hold only that because Caira’s decision to testify was voluntary, under the governing Supreme Court cases there is no merit to his argument that his testimony was compelled in violation of the Fifth Amendment privilege against self-incrimination. Moreover, the evidentiary error we have identified did not affect his substantial rights.

My Thoughts

  • This is the only case that I have ever seen where a hit-man’s compensation was to include instructions on how to make synthetic drugs.
  • No matter how long someone has been a trial lawyer or a trial judge, there is always that hearsay issue that has the potential to sneak up on the lawyer or the judge. That should never surprise us. Brett Harrison—my colleague for the last eight and a half years in the practice of criminal law—and I just finished a murder case during which we kept drawing hearsay objections when we were not offering the statements to prove the truth of the matter asserted. Such a common problem—and the judge didn’t always rule with us.
  • I’m always amused at coincidences. When I discovered this case, Brett and I had been discussing a pending case and the issue of whether a district judge’s ruling could require our client to take the stand and testify. After reading Caira, we determined that in at least our case, this would not be a good strategy. Thank you, Judge Wood!