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March 2014

March 2014 SDR – Voice for the Defense Vol. 43, No. 2

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Voice for the Defense Volume 43, No. 2 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

When a defense expert who examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological exam for the limited purpose of rebutting defendant’s evidence. Kansas v. Cheever, 134 S. Ct. 596 (2013).

        The Kansas Supreme Court vacated D’s murder conviction, holding that he had not waived his Fifth Amendment privilege and that the federal court-ordered psychiatric examination should not have been used against him at trial. Certiorari was granted to consider whether the Fifth Amendment prohibited the government from introducing the evidence to rebut expert testimony offered in support of a voluntary intoxication defense. The U.S. Supreme Court unanimously vacated the Kansas Supreme Court and remanded.

        The U.S. Supreme Court reaffirmed the rule that where a defense expert who has examined the defendant testified that the defendant lacked the requisite mental state to commit an offense, the prosecution was allowed to present psychiatric evidence in rebuttal. In the instant case, the prosecution elicited testimony from its expert only after D offered expert testimony about his inability to form the requisite mens rea due to the temporary and long-term effects of D’s drug use. The testimony of the government expert rebutted that of D’s expert. The court therefore did not violate the Fifth Amendment when it allowed the prosecution’s expert to testify that D made a choice to shoot because the State permissibly followed where the defense led.

Fifth Circuit

The pleadings of pro se inmates, including petitions for state post-conviction relief, are deemed filed at the time they are delivered to prison authorities. Richards v. Thaler, 710 F.3d 573 (5th Cir. 2013).

        Campbell v. State, 320 S.W.3d 338 (Tex.Crim.App. 2010), made clear that under Texas law the pleadings of pro se inmates, including petitions for state post-conviction relief, are deemed filed when they are delivered to prison authorities, not when they are received and stamped by the court clerk. Although in Howland v. Quarterman, 507 F.3d 840 (5th Cir. 2007), the Fifth Circuit declined to apply such a mailbox rule, the conclusion in Howland—that Texas does not apply the prison mailbox rule in criminal proceedings—was contradicted by the Campbell holding that the rule does apply in criminal cases. Applying a mailbox rule, only 351 days elapsed between Texas prisoner’s state and federal habeas filings; thus his federal petition was filed within AEDPA’s one-year statute of limitations. The Fifth Circuit reversed the district court’s dismissal of the federal petition as untimely.

D showed at best a possibility—and not the requisite reasonable probability—that the outcome would have been different but for the district court’s error in considering the outdated version of USSG § 5D1.1. United States v. Cancino-Trinidad, 710 F.3d 601 (5th Cir. 2013).

        The district court committed plain error by imposing a supervised release term on deportable alien D under an outdated version of USSG § 5D1.1 that did not included § 5D1.1(c), which advises that supervised release should “ordinarily” not be imposed on deportable aliens. However, this error did not affect D’s substantial rights, warranting reversal on plain-error review, because the court’s comments indicated implicit consideration of the deterrent effect of supervised release on D and because D’s substantial criminal history supported the necessary finding that the imposition of supervised release would provide an added measure of deterrence and protection based on the facts and circumstances of this case.

Where undefined predicate offenses are not common-law offenses, a court should derive their generic, contemporary meaning rather than examining how the predi­cate offenses are defined in the codes of most states. United States v. Cabecera Rodriguez, 711 F.3d 541 (5th Cir. 2013).

        Overruling a number of panel decisions, the en banc Fifth Circuit held that where undefined predicate offenses are not common-law offenses, a court should derive their “generic, contemporary meaning” from the common usage of their terms as stated in legal and other well-accepted dictionaries, rather than examining how the predicate offenses are defined in the criminal codes of most states. Under this rubric, the Fifth Circuit determined that the undefined term “sexual abuse of a minor” in USSG § 2L1.2 includes any offense with a victim under 18; further, the Fifth Circuit determined that “statutory rape” in § 2L1.2 includes sexual intercourse with a person below the age of sexual majority as defined by the jurisdiction where the crime occurred. Accordingly, the Fifth Circuit rejected D’s argument that his Texas conviction for sex­ual assault of a “child” under 17 was outside the generic definition of these terms.

Though in 2004 D had encounters with state police, a federal probation officer, and a federal court, he was not “found” by immigration authorities until 2010; therefore, the statute of limitations had not elapsed at the time of D’s indictment. United States v. Compian-Torres, 712 F.3d 203 (5th Cir. 2013).

        For the crime of being found unlawfully in the United States after deportation, in violation of 8 U.S.C. § 1326, being “found” requires that the alien’s physical presence be discovered and noted by immigration authorities, and the illegality of the alien’s presence must be reasonably attributable to immigration authorities.

        The Fifth Circuit noted an intra-circuit split about whether a general motion for judgment of acquittal preserves a sufficiency-of-the-evidence claim that turns on a purely legal question that was not specifically preserved in the district court; however, the court declined to address this because D lost even under the more generous de novo standard.

District court did not err in applying a vulnerable vic­tim enhancement under USSG § 3A1.1(b)(1) based on the age of the children in the pornography. United States v. Jenkins, 712 F.3d 209 (5th Cir. 2013).

        Although the specific offense guideline already contains an enhancement for victims under age 12, the “vulnerable victim” enhancement may still apply when the victims are especially vulnerable due to their age. The Fifth Circuit also rejected D’s argument that even if the victims were especially vulnerable with respect to the production of child pornography, they were not especially vulnerable with respect to the crimes of which D was convicted (receipt, distribution, and possession of child pornography).

A state habeas petitioner’s disclaimer of an argument has the same effect as his failure to raise it in the first place. Johnson v. Cain, 712 F.3d 227 (5th Cir. 2013).

        Federal district court did not err in dismissing Louisiana defendant’s federal habeas petition as unexhausted; even if D fairly presented in state court his federal claim that his attorney interfered with his right to testify, D explicitly disclaimed that federal argument twice (once in the state habeas court and once on a state appeal of that ruling) and relied solely on a state ground for relief. Moreover, the failure to exhaust could not be excused because D lacked good cause for the procedural default and because he did not show that this dismissal would result in a fundamental miscarriage of justice.

District court committed reversible plain error in basing D’s supervised-release revocation sentence on the court’s perception of D’s rehabilitative needs. United States v. Culbertson, 712 F.3d 235 (5th Cir. 2013).

        Under United States v. Garza, 706 F.3d 655 (5th Cir. 2013), it is error to consider rehabilitative needs in imposing or lengthening a supervised-release revocation sentence; moreover, the error was plain in light of Garza, even though Garza did not clarify the law until this case was already on appeal. Furthermore, the error affected D’s substantial rights because, in giving D a sentence that was three times his Guideline range, the district court repeatedly referred to D’s need for rehabilitation, including after defense counsel specifically questioned why the sentence so greatly exceeded the Guidelines. Finally, the Fifth Circuit determined that it would exercise its discretion to correct this error and remanded for resentencing.

D, a sophisticated computer user, downloading child pornography from a peer-to-peer network and storing it in a shared folder accessible to other users amounted to distribution under 18 U.S.C. § 2252A(a)(2)(B). United States v. Richardson, 713 F.3d 232 (5th Cir. 2012).

        Furthermore, application of a Sentencing Guideline enhancement under USSG § 2G2.2(b)(6) for use of a computer did not constitute impermissible “double counting.” Double counting is prohibited only if the relevant Guideline expressly forbids it, and the Guideline here does not. Furthermore, the offense of conviction can be committed in a way that does not involve a computer. Finally, any error would have been harmless in light of the district court’s clear statements that it would have imposed the same sentence regardless of the correctness of the Guideline calculation.

Court of Criminal Appeals

To support a deadly-weapon finding under Tex. Code Crim. Proc. art. 42.12, the weapon must have facilitated the associated felony offense; D’s mere exhibition of a deadly weapon during a felony was not covered by this provision. Plummer v. State, 410 S.W.3d 855 (Tex.Crim.App. 2013).

        A deadly weapon finding under Article 42.12, § 3g, was not supported because there was no evidence that D’s posses­sion of a pistol facilitated his possession of body armor by a felon. Both the body armor and the pistol were used for a common purpose—looking like a security guard—but neither offense facilitated or furthered the commission of the other. CCA deleted the deadly-weapon finding and affirmed the conviction for unlawful possession of body armor by a felon.

D was properly denied an instruction on voluntariness because even if he had ingested one medication thinking it was a different one, he still voluntarily ingested that medication. Farmer v. State, 411 S.W.3d 901 (Tex.Crim.App. 2013).

        The question was whether the evidence at D’s DWI trial entitled him to a jury-charge instruction on voluntariness. COA held that D was entitled to a voluntariness instruction. CCA reversed COA and affirmed the trial court. Whether D took Ambien by mistake or on purpose was irrelevant to the court’s analysis of whether there was a voluntary act under Tex. Penal Code § 6.01(a), because the proper inquiry was whether he voluntarily picked up and ingested prescription medication. This was not a case of unknowingly or unwillingly taking medication; this was a case of knowingly taking a medication but mistakenly taking the wrong one, and D was involved in two accidents because of his mistake.

The jury instructions properly defined the punishment range of a third-degree felony because there was no conflict between Tex. Penal Code §§ 19.05(b) and 12.35(c), the state-jail felony deadly-weapon enhancement was applicable to criminally negligent homicide, and its application was not contrary to legislative intent. Chambless v. State, 411 S.W.3d 498 (Tex.Crim.App. 2013).

        “The statutes’ plain language and placement within the Penal Code is evidence of their distinct purposes and subjects: one defines the offense, the other defines the offense’s pun­ish­ment range. Section 19.05—found in Chapter 19, titled ‘Criminal Homicide’—defines criminally negligent homicide as ‘caus[ing] the death of an individual by criminal negligence.’ Although classifying criminally negligent homicide as a state-jail felony, it makes no mention of an applicable punishment range. Section 12.35—in Chapter 12, titled ‘Punishments’—defines how state-jail felonies shall be punished.”

A trial court must sua sponte give an accomplice-witness instruction when the evidence raises the issue under the theory that the witness was a party as a co-conspirator. Zamora v. State, 411 S.W.3d 504 (Tex.Crim.App. 2013).

        “Furthermore . . . when the issue of a trial court’s failure to give an accomplice-witness instruction is raised on appeal, a court of appeals should first determine whether a trial court erred by failing to sua sponte give that instruction before it considers whether a defendant preserved his complaint for appeal, a matter that is pertinent to a harm analysis. Because it failed to address the question of charge error in the first instance, we hold that the court of appeals erred by determining that [D] forfeited his jury-charge complaint by failing to request an accomplice-witness instruction that was based specifically on a co-conspirator theory of party liability. We, therefore, reverse the judgment of the court of appeals and remand[.]”

COA did not have the benefit of a recent Supreme Court determination that a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a search. Rivas v. State, 411 S.W.3d 920 (Tex.Crim.App. 2013).

        D was charged with two counts of possession of a controlled substance with intent to deliver. A dog sniff at his front door led to the charges. He filed a motion to suppress, which the trial court denied. D then pleaded guilty. D appealed that the court erred in denying his motion to suppress. COA disagreed and affirmed the convictions. D filed for discretionary review arguing that COA erred under Florida. v. Jardines, 133 S. Ct. 1409 (2013). In Jardines, the Court held that using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a “search” within the Fourth Amendment. Jardines was handed down 12 days after COA decided this case. Accordingly, CCA vacated COA’s judgment and remanded.

Due to insufficient evidence and conflicting testimony of medical experts, the State did not prove beyond a reasonable doubt that D acted with negligence. Britain v. State, 412 S.W.3d 518 (Tex.Crim.App. 2013).

        A jury convicted D of manslaughter and injury to a child for recklessly causing the death of her stepdaughter. COA held there was insufficient evidence that D was “aware of but consciously disregard[ed] a substantial and unjustifiable risk” as required to prove recklessness. COA reversed the trial court and acquitted on both counts. CCA granted the State’s petition to answer one question: Should COA have reformed the verdict to the lesser-included offense of criminally negligent homicide rather than rendering a verdict of acquittal? CCA affirmed COA.

        When COA held that there was no evidence of the required mental state of recklessness under Tex. Penal Code § 6.03(c) for manslaughter, COA did not also find that there was evidence of the lesser mental state of negligence for criminally negligent homicide purposes. CCA could not say that the State proved that D acted with negligence, as one could not impute to D as a layperson the standard of care of medical professionals, and there was no evidence on the standard of care an ordinary person should have been held to or that showed D should have been aware of the risk.

Even if evidence had been presented at trial that decedent’s blood was not on the knife found in D’s car, it is unlikely that such evidence would have overcome the testimony of witnesses who saw D with a knife, saw D use a knife, or were injured by a knife D wielded, whether or not it was the same knife in his car after the offense. Ex parte Holloway, 413 S.W.3d 95 (Tex.Crim.App. 2013).

        CCA held that D was not entitled to habeas relief from his manslaughter conviction based on post-conviction DNA testing of blood on a knife. The absence of decedent’s DNA from the blood was not clearly exculpatory, as testimony from witnesses indicated D stabbed people during the fight; even if the knife was the tangible evidence the jury relied on to convict D, ample “intangible” evidence supported the conviction, and clear and convincing evidence did not show that no reasonable juror would have convicted D with the new DNA evidence.

COA erred by failing to (1) apply a de novo standard of review to the trial court’s legal determination that D was in custody when he made incriminating statements, and (2) abate the appeal for further findings of fact. State v. Saenz, 411 S.W.3d 488 (Tex.Crim.App. 2013).

        Because the matter of whether appellee was in custody when interrogated was a mixed question of law and fact that did not turn on credibility or demeanor, CCA applied a deferential standard of review to the assessment of the circumstances surrounding the interrogation and a de novo review to the legal determination that D was in custody. COA apparently focused only on the first part of the test, without addressing the second that required the appellate court to analyze de novo whether the facts determined by the trial court amounted to custody. Because the factual findings were inadequate to assess whether the circumstances fit within a certain custody situation described in case law, further findings were necessary. CCA reversed and remanded with instructions to abate to the trial judge for supplemental findings.

Written findings are required in all cases concerning voluntariness. Vasquez v. State, 411 S.W.3d 918 (Tex.Crim.App. 2013).

        Tex. Code Crim. Proc. art. 38.22, § 6 clearly requires that the trial court make written findings in all cases concerning voluntariness; the statute has no exceptions. No findings of fact were filed here, and COA erred by not abating for such findings. CCA remanded for the trial court to determine (1) whether the original, unrecorded interview of D was custodial in nature, (2) whether D was Mirandized prior to the original interrogation, (3) if not, whether the police deliberately employed an unconstitutional two-step interrogation process, and (4) if they did, whether curative measures were taken before the second confession.

Court of Appeals

Releasing a sergeant from further testimony did not violate D’s right to compulsory process because evidence that sergeant believed the arresting officer was untruthful during an unrelated incident was inadmissible under Tex. R. Evid. 608(b). Freeman v. State, 413 S.W.3d 198 (Tex.App.—Houston [14th Dist] 2013).

        Furthermore, the trial court properly denied D’s lesser-included offense instruction for misdemeanor DWI because an expert witness’ fingerprint analysis linked D to both prior DWI judgments. The jury charge correctly stated the applicable law by requiring the jury to find beyond a reasonable doubt that D was twice convicted of an offense related to the operating of a motor vehicle while intoxicated.

Exigent circumstances did not justify the warrantless entry and search of D’s home; officer’s testimony did not support a concern for the child’s safety but instead showed his reasons and actions upon entry were focused on preserving evidence. Turrubiate v. State, 415 S.W.3d 433 (Tex.App.—San Antonio 2013).

        D appealed his conviction for possession of marijuana. In a 2012 opinion, this court reversed D’s conviction after concluding the trial court erred in denying D’s pretrial motion to suppress. CCA agreed “that probable cause to believe that illegal drugs are in a home coupled with an odor of marijuana from the home and a police officer making his presence known to the occupants do not justify a warrantless entry.” However, CCA remanded for COA to decide (1) whether the State made the argument at trial that exigent circumstances existed regarding the imminent risk of harm to a child allegedly inside the home and, if not, (2) whether COA may nonetheless address that argument on appeal as an alternative basis to uphold the trial court’s denial of the motion to suppress.

        COA held here that the totality of the circumstances did not reveal any evidence from which it would be reasonable to infer that any exigency existed requiring a warrantless entry into D’s home. COA reversed the trial court’s order on the mo­tion to suppress and remanded.

Trial counsel’s deficient performance in failing to take the statutory steps to depose an eyewitness prejudiced D because D’s conviction was dependent on the complainant’s credibility, and the eyewitness’ testimony would have corroborated the most important points of D’s version of events and contradicted complainant. Frangias v. State, 413 S.W.3d 212 (Tex.App.—Houston [14th Dist] 2013).

        There was no physical evidence that a sexual assault occurred; and the eyewitness, had she been deposed, would have testified that although D assisted the drunk complainant upstairs and delivered towels to her room, he did not enter. “[D] argues that the trial court abused its discretion in failing to grant his motion for new trial based on ineffective assistance of counsel. On original submission, we held that the record did not show that his attorneys’ performance fell outside the broad range of prevailing professional norms. The Court of Criminal Appeals reversed, holding that ‘by any view of the evidence,’ counsel failed to render reasonable professional assistance. . . . The Court of Criminal Appeals remanded the case for this court to determine whether appellant was prejudiced. . . . We conclude there is a reasonable probability that but for his trial attorneys’ failure to take the steps necessary to procure and introduce the deposition testimony of a crucial witness, the result of appellant’s trial would have been different. We therefore reverse his conviction and remand[.]”

Representing the Sovereign Citizen

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On a Sunday afternoon, Maris Crane1 was pulled over by the Austin police for failing to show proper Texas registration stickers on her car. When the officer asked her for identification, she refused multiple times, telling the officer that she would not give him her driver’s license because he did not have any authority over her. Ms. Crane explained that because the car was her personal property she was using to “travel,” she was not required to register it with the State of Texas. When the officer requested her information several more times, she passed him a stack of papers bearing seals from several government departments and the phrases “Sovereign Living Soul” and “UCC 1-207’’ printed on them. Ms. Crane began filming the encounter after the officer took the stack of papers. The officer called dispatch for backup when he realized the documents were false. He, and the arriving officers, then blocked in Ms. Crane’s car and placed stinger spikes in front of and behind the car to keep her from driving away.

The officer’s response may at first appear to be an overreaction to Ms. Crane’s behavior. She only made a few legally questionable statements, presented some false documentation with forged departmental seals, and videotaped the police encounter. None of those events seem so egregious that a police officer should feel the need to call for backup and block in a car with other cars and stinger spikes. For the officers, however, these statements, the false documents, and the failure to show proper Texas registration stickers painted a completely different picture. That picture was one of an individual associated with the sovereign citizen movement (sovereign citizens), a recent movement that believes the United States government is illegitimate, attempting to usurp each individual’s sovereign rights. The Federal Bureau of Investigation has recently recognized the sovereign citizen movement as a domestic terror threat for their extreme anti-government beliefs and violent attacks upon peace officers.2

People that espouse these beliefs often end up in the criminal justice system. Once there, they are often thought to be mentally ill and incompetent to stand trial. Sometimes they are, sometimes they are not. This article intends to shed light on this quickly growing population, who many of us will encounter in the criminal courts.

I. What Is the Sovereign Citizen Movement?

The sovereign citizen movement arose from the ashes of the Posse Comitatus, a 1970s extremist racist group that believed the county was the highest seat of government because all other levels of government had engaged in a conspiracy to destroy and override the Constitution.3 Sovereign citizens are not a militia or organized group with established leadership.4 Sovereign citizens are typically individuals or loosely associated groups of true believers.5 This makes them a difficult group to track or count. Although there is no established leadership in the movement, there are several well-known sovereign citizens who are prominent in the media and justice system.6 In addition, some sovereign citizens host seminars (for a hefty fee) in which they teach newcomers the intricacies of freeing oneself from the illegitimate United States government and fighting it legally.

Sovereign citizens believe that the United States government is illegitimate and operating outside of its jurisdiction.7 According to sovereign citizen theory, the United States was once governed by “common law,” when everyone was a sovereign, not subject to any oppressive laws, taxes, or regulations.8 At some point, the United States departed from the “common law” system, replacing it with admiralty law, which governs the sea and international commerce.9 Because of this, sovereign citizens do not recognize the United States or state law, believing that the change to admiralty law marked the transition of the United States from government to corporation.10 Sovereign citizens believe that their status as sovereign citizens exempts them from the United States laws and tax system.11 Whereas in common law, where citizens would be free men, under admiralty law, the United States government subjugates all citizens by eliminating the rights given to individuals by the Declaration of Independence and Bill of Rights.12

Sovereign citizens differ on when this usurpation of rights occurred.13 Some believe it occurred with the passage of the Fourteenth Amendment, which created Fourteenth Amendment citizens—essentially slaves under admiralty law.14 Others argue it occurred when the Federal Reserve Act was passed in 1913.15 The most prominent view, called Redemption Theory, postulates that it occurred in 1933 when the United States departed from the gold standard.16 Regardless of when it happened, sovereign citizens believe it marked the government’s declaration of people as animals, enabling the largest genocide in the world’s history.17 The derivation of each person’s individual sovereignty is the cause of the sovereign citizen movement.18

Redemption theorists believe that the 1933 departure from the gold standard as the backing for United States currency marks the replacement of “common law” with admiralty law.19 At this time, they believe, the United States government was dissolved due to bankruptcy, resulting in the reformation of the United States as the United States government-corporation.20 To fund foreign trade agreements and pay off debts to foreign countries, the United States began to use its citizens as collateral.21 The United States, now a government-corporation operating under admiralty law, registers people as collateral by way of birth certificates and social security numbers issued at birth.22 Each citizen’s projected lifetime earnings were gathered in a “strawman” account in the United States Department of Treasury when any United States citizen is born.23 These accounts contain any amount from $300,000 to over more than $20 million.24 The individual’s rights are then split between the flesh-and-blood individual and the corporate individual created by the “strawman” account.25

Sovereign citizens believe that they can free themselves from the illegitimate United States government.26 By freeing themselves from the government, sovereign citizens believe they regain the rights that have been stolen.27 To do so, a sovereign citizen gives notice to the government that he or she is revoking United States jurisdiction by filing legitimate Internal Revenue Service and Uniform Commercial Code forms.28 This process may also include the destruction or return of the sovereign citizen’s license, birth records, marriage license, and social security card.29 For a non-Redemption theorist, these documents inform the United States that the individual has reclaimed his sovereign citizenship and is therefore no longer subject to his own personal debt and United States laws, taxes, and registration requirements.30 If the individual is a Redemption theorist, he or she believes that once these forms are filed, it compels the Internal Revenue Service to release the funds from the corporate account created for that particular individual’s birth.31

Once they have declared themselves sovereign from the United States government, sovereign citizens consider themselves to be “nonresident aliens” who live upon United States land, but are free of any legal attachment to state or federal government.32 After declaring their sovereignty from the United States government, sovereign citizens are free men or women, subject only to common law.33 The United States courts, which operate under admiralty law, do not have jurisdiction over them.34 Only “common law” courts set up randomly throughout the country by different sovereign citizens have jurisdiction over them.35

Newcomers to the sovereign citizen movement often find this task particularly difficult, and enroll themselves in expensive schools and seminars.36 More experienced sovereigns teach seminars in which they educate newcomers on how to renounce their United States citizenship.37 Other seminars educate newcomers on how to interpret and apply the law.38 Several of these seminars even teach newcomers how to exploit money from the Internal Revenue Service, whether or not they believe in the Redemption Theory.39 There is even a non-ABA-accredited sovereign citizen law school where sovereign citizens can pay to learn the law.40

Although the sovereign citizen movement may seem like it does not merit national attention or the labeling of the members as domestic terrorists, sovereign citizens often draw attention to themselves by harassing law enforcement, court, and government officials. Many times this takes the form of “paper terrorism,” but there have been several incidents where sovereign citizens have acted out violently against these officials. Their behavior toward those associated with the court, government, and law enforcement is generally in furtherance of their belief that the United States government is illegitimate.41 They will engage in paper terrorism against those they believe interfere with their status as sovereign living souls by filing liens against others’ real property or flooding the courts with nonsensical documents.42 The liens are used as a means of damaging credit or financial history.43 During legal proceedings, sovereign citizens will also file massive amounts of court documents containing nonsensical language, archaic secondary sources, and overruled case law (typically from the nineteenth century).

Sovereign citizens have their own language, which twists the definitions of seemingly ordinary words—such as “citizen,” “common-law court,” and “birth certificate”—to support their theory. The problem with this language is that there is no dictionary to interpret it. One can only translate these nonsensical documents if they have been trained to do so. Sovereign citizens often flood the courts with thousands of these documents, filing briefs questioning everything from the in personam and subject-matter jurisdiction of the court to asserting the illegitimacy of the court using overruled case law and a mishmash of secondary sources—the Bible, the Magna Carta, and other legal documents dating back to the early medieval times.

Some sovereign citizens’ behavior has escalated beyond paper terrorism, taking the form of aggravated assault and murder. It becomes emotionally taxing when their beliefs continue to be questioned by everyone around them.44 In 1995, an Ohio sovereign citizen pulled a gun on an officer during a traffic stop.45 In February 2010, after years of ranting about the illegitimacy of the Internal Revenue Service, a Texas sovereign citizen flew a private plane into an Austin Internal Revenue Service building, killing one tax collector and himself, injuring thirteen others.46 In May 2010, father and son sovereign citizens shot and killed two Arkansas police officers after being stopped for an illegitimate license plate.47 Most recently, the Arizona man who shot U.S. Representative Gabrielle Giffords and eighteen others (ultimately killing six) at a constituent meeting was identified as a sovereign citizen.48

However, most sovereign citizens do not encourage violence. Most believe that although violence may become necessary because of the despotic illegitimate United States government, it is still a last resort.49 Although violence is a last resort for most sovereign citizens, they do believe that the Second Amendment ensures the right of individuals to kill politicians such as the president, senators, congressman, government employees, and court officials.50 This is the Second Amendment’s primary purpose. Any other protection given by the Second Amendment is incidental.51 Beliefs like these and the numerous violent acts by sovereign citizens led the Federal Bureau of Investigation to classify sovereign citizens as domestic terrorists.52

Attorneys may have difficulties interacting with sovereign citizens because of their beliefs concerning attorneys. For instance, sovereign citizens believe that if an attorney represents sovereign citizens in court instead of allowing them to defend themselves, then those persons become a ward of the court.53 In addition, lawyers themselves are not viewed as citizens because they have received a title of “esquire,” which sovereign citizens believe is a title of nobility.54 A title of nobility precludes an individual from having citizenship.55 Also as members of the American Bar Association, attorneys are franchisees of an illegitimate government-corporation that licenses its franchisees and regulates their activities.56 For these reasons, sovereign citizens strongly distrust attorneys.

II. How Can I Tell If My Client Is a Sovereign Citizen?

A sovereign citizen does not look or sound a particular way. Typically, in their everyday life, they are indistinguishable from the non-sovereign citizen. They are able to carry on intelligent conversation, make jokes, and hold a job. Only when the conversation turns towards law and the government, or individuals are charged with a crime, do they become vocal about their beliefs and reveal their affiliation.

This is the problem with recognizing a sovereign citizen. Even when asked outright, a sovereign citizen typically will not call him or herself a “sovereign citizen.”57 Instead they will answer that they are individuals seeking the truth, not a “statutory person.”58 What makes sovereign citizens even more difficult to identify is that the movement does not appeal to any one particular demographic.59 Unlike the Posse Comitatus, the exclusively white radical militia group from which the sovereign citizen movement evolved, the sovereign citizen movement appeals to all races, all ages, all political leanings and affiliations—to people from all walks of life.60 What connects all people lured into the movement is a common belief that the “system” has targeted them in some way.61

There are certain clues that can help you discern if you are dealing with a sovereign citizen, the first being the way individuals sign their name. Sovereign citizens often sign their name in peculiar ways.62 For example, they might write their names in all capital letters.63 They may also intersperse their names with seemingly random punctuation,64 for instance placing a colon between first and last name or first and middle name. This might look like “Edgar: Allan Poe” or “Edgar Allan: Poe.” Or maybe even write “Edgar Allan of the Family Poe” to indicate sovereign status. Sovereign citizens who are proponents of the Redemption Theory believe that the use of odd composition or punctuation in names signifies that they are flesh-and-blood people, not the corporate shell that government established at their birth. In addition, sovereign citizens may write “under duress,” “Sovereign Living Soul” (SLS), or a copyright symbol as part of their signature.65 They may even write “No Liability Accepted” near their signature if they possess a valid driver’s license or other government identification.66

Also look for the odd or seemingly inane use of secondary legal materials, statutes, and overruled, misunderstood, or outdated case law. Their correspondence and other self-produced documents will frequently reference these types of legal materials.67 Sovereign citizens believe these legal references prove their theories conclusively; whenever they write to or speak with non-sovereign citizens, they will cite these cases and secondary legal sources—such as Corpus Juris Secundum,68 the 1215 Magna Carta, or treaties with foreign governments—to explain and prove their point.69 Also be on the lookout for the phrase “UCC 1-207” or anything having to do with the Uniform Commercial Code.70 Because sovereign citizens believe that the Uniform Commercial Code frees them from their Fourteenth Amendment citizenship to the United States, they write it in their correspondence, put it on bumper stickers on their cars, or write it on currency or with their signature if they have legally issued licenses.71

The third indicator that a client might be a sovereign citizen is a history of minor criminal charges. These charges might include failure to pay taxes or creation of false license plates, driver’s licenses, and other government documents.72 These seemingly innocuous charges arise from a refusal to contract with the “illegitimate” United States government. Although not every client with these charges will be a sovereign citizen, most likely any sovereign citizen an attorney sees will have them.

III. Is Your Sovereign Citizen Competent to Stand Trial?

Sovereign citizens have a bizarre, almost nonsensical belief system that is impenetrable to those not in the know. The first time a lawyer meets a client who introduces him or herself as a sovereign living soul, the lawyer may raise an eyebrow. When the client follows the odd statement with the proclamation that his or her arrest was illegal because the government does not have jurisdiction or authority over them, that attorney’s (completely reasonable) first response may be to consider whether there is some mental illness affecting the client’s competency.73 The client certainly does not make a better case for himself when he tells the attorney his status as a foreign alien, free from his corporate identity, with natural human rights not afforded to a Fourteenth Amendment citizen. The few studies on the subject, however, conclude that sovereign citizens typically will be competent to stand trial.

Most psychologists and researchers believe that a sovereign citizen is not incompetent to stand trial simply by virtue of being a sovereign citizen. Although sovereign citizens’ beliefs appear to be delusional, they typically are not considered delusions sufficient for the diagnosis required for incompetence.74 Delusional disorder, the mental illness with which a sovereign citizen would most likely be diagnosed, requires that the belief be a non-bizarre delusion.75 The types of delusions that qualify for the diagnosis are personally held and could possibly happen in real life, and generally relate to the person’s perception of life events.76 Common examples of qualifying delusions include believing that someone is conspiring against you, or that people are talking about you.77

However, widely held and culturally sanctioned beliefs that might be considered delusional in other cultures, but are recognized in one’s own culture, often do not qualify for a diagnosis of delusional disorder.78 For example, many commonly held religious beliefs may sound delusional to some people. Although they may sound delusional, they are culturally non-native beliefs shared by many individuals and therefore not delusions. Because sovereign citizen beliefs are shared by up to, and maybe exceeding, 300,000 people, the psychologists and researchers who have studied the subject conclude that the sovereign citizen’s odd, seemingly delusional beliefs have been sanctioned and accepted by too many to be considered delusions.79

In addition, sovereign citizens will typically not be found incompetent to stand trial because their beliefs do not interfere with their social and occupational functioning.80 Often sovereign citizens will be successful in their careers.81 For example, Ms. Maris Crane from the excerpt above successfully held a position as a paralegal at a prominent legal firm for almost 20 years. When attorneys first see their clients, they are in the throes of legal distress. Psychiatrists believe that sovereign citizens would be more preoccupied with their sovereign beliefs in a legal situation.82 More useful indicators of whether a sovereign citizen’s beliefs are delusional include pre-arrest, social, and occupational functioning and baseline level of preoccupation.83

There are, however, instances when a sovereign citizen may be found incompetent. Psychologists and researchers believe that for sovereign citizens, factors other than their beliefs decide competency issues. The biggest factor is an actual mental illness.84 Jared Lee Loughner, the sovereign citizen who shot Representative Giffords in 2012, was diagnosed as schizophrenic, in addition to being identified as a sovereign citizen. At the beginning of the criminal proceedings, a psychologist found Loughner incompetent to stand trial, diagnosing him with undifferentiated schizophrenia. Although he did espouse sovereign beliefs, he also exhibited diagnostic criteria for a mental illness, outside of the delusional thought content that was similar to sovereign beliefs. Psychologists agree that holding sovereign beliefs does not mean that an individual has a mental illness; however, a person could have these beliefs and still suffer from a mental illness.85

Courts have also held that sovereign citizens are not protected by a “good faith” defense because of their beliefs.86 The Sixth Circuit recently ruled that a sovereign citizen’s belief that the law does not validly constrain him is not an appropriate matter-of-law defense.87 In that case, a sovereign citizen provided an officer with a false license when he veered off the road.88 This license bore the seal of both the Department of Homeland Security and the White House, as well as the phrase “All Rights Reserved: Non-Assumpsit” and references to the 1887 United States Supreme Court case Mugler v. Kansas and “Title 42, Section 1983 United States Code.”89 The officer arrested him for knowingly counterfeiting the seal of a government agency as well as possessing a false United States identification.90 The court reasoned that the “good faith” defense did not apply because the sovereign citizen rejected the authority of the federal and state government and law. This did not stop him from knowingly making and possessing the false identification.91

Ultimately, sending a sovereign citizen for a competency evaluation is an attorney’s judgment call. If the evaluating psychologist or psychiatrist is unaware of the sovereign citizen movement and beliefs, the individual may appear delusional because the belief does not appear to fit a cultural standard. In most criminal cases where the psychologist or psychiatrist recognizes sovereign citizen theories in a defendant without an underlying mental illness, the evaluator will make a finding of competency to stand trial.92 Courts are generally becoming much more aware and far less tolerant of sovereign citizen beliefs and combative attitudes towards government officials, court officials, and the government in general.93

Notes

1. All names have been changed to maintain confidentiality.

2. United States Department of Justice, Federal Bureau of Investigation, Counterterrorism Analysis Section, Sovereign citizens: A growing domestic threat to law enforcement, FBI (Sept. 2011), http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/september-2011/September-2011-leb
.pdf.

3. Anti-Defamation League, Sovereign Citizen Movement—Extremism in America, ADL (2010), http://archive.adl.org/learn/ext_us/scm.html?xpicked=4 .

4. Id.

5. Id.

6. Dario Busch, The Sovereign Citizen Movement, Dario Busch (2013), http://dariobusch.com/2011/10/the-sovereign-citizen-movement-patriots/.

7. United States Department of Justice, Federal Bureau of Investigation, Domestic Terrorism Operations Unit II, Sovereign Citizens: An Introduction for Law Enforcement (Nov. 2010), http://www.mschiefs.org/wp-content/uploads/2012/05/Sovereign_Citizens_Intro_For_LE.pdf.

8. Busch, supra note 6.

9. Anti-Defamation League, supra note 3.

10. United States Department of Justice, Federal Bureau of Investigation, Domestic Terrorism Operations Unit II, supra note 7.

11. Id.

12. Dario Busch, supra note 6.

13. Id.

14. Id.; Shela Van Ness, Understanding the sovereign citizen movement: a guide for corrections professionals, Corrections Compendium (Dec. 22, 2011), http://www.thefreelibrary.com/Understanding+the+sovereign+citizen+movement%3A+a+guide+for+corrections…-a0313251234.

15. Busch, supra note 6; Van Ness, supra note 14.

16. Busch, supra note 6.

17. Alfred Adask, Am I About to Be Labeled a Domestic Terrorist? Alfred Adask Blog (May 16, 2011), http://adask.wordpress.com/2011/05/15/am-i-about-to-be-a-domestic-terrorist/.

18. Id.

19. United States Department of Justice, Federal Bureau of Investigation, Counterterrorism Analysis Section, supra note 2.

20. United States Department of Justice, Federal Bureau of Investigation, Counterterrorism Analysis Section, supra note 2; Van Ness, supra note 14.

21. United States Department of Justice, Federal Bureau of Investigation, Counterterrorism Analysis Section, supra note 2.

22. Southern Poverty Law Center, Sovereign Citizens Movement, SPL, spl.org.

23. Van Ness, supra note 14.

24. Busch, supra note 6.

25. Id.

26. Id.

27. Id.

28. Id.

29. Casey Sanchez, Return of the Sovereigns, Intelligence Report, Spring 2009, at 14.

30. United States Department of Justice, Federal Bureau of Investigation, Counterterrorism Analysis Section, supra note 2; Van Ness, supra note 14.

31. United States Department of Justice, Federal Bureau of Investigation, Counterterrorism Analysis Section, supra note 2.

32. Southern Poverty Law Center, What is a “Sovereign Citizen”? Intelligence Report, 2010, at 132.

33. Southern Poverty Law Center, supra note 23; Van Ness, supra note 14.

34. American Defamation League, supra note 3.

35. Id.

36. Van Ness, supra note 14.

37. Id.

38. Id.

39. Southern Poverty Law Center, supra note 22.

40. Erwin Rommell School of Law, http://rommellaw.com/.

41. United States Department of Justice, Federal Bureau of Investigation, Domestic Terrorism Operations Unit II, supra note 7, at 10.

42. Id.

43. Id.

44. Adask, supra note 17.

45. Southern Poverty Law Center, supra note 22.

46. J. J. MacNab, What is a Sovereign Citizen? Forbes (Feb. 13, 2012, 12:53 PM), http://www.forbes.com/sites/jjmacnab/2012/02/13/what-is-a-sovereign-citizen/.

47. Southern Poverty Law Center, supra note 22.

48. Janet Novack, Expert: Loughner Rants Sound Like Sovereign Citizen Beliefs, Forbes (Jan. 12, 2011, 10:01 AM), http://www.forbes.com/sites/janetnovack/2011/01/12/expert-loughner-rants-sound-like-sovereign-citizen-beliefs/.

49. Adask, supra note 44.

50. Id.

51. Id.

52. Id.

53. J. M. Sovereign, Title 4 Flag Says You’re Schwag! The Sovereign Citizen’s Handbook (Sovereignty, 2009).

54. Id.

55. Id.

56. Id.

57. MacNab, supra note 46.

58. Id.

59. Id.

60. Id.

61. Id.

62. United States Department of Justice, Federal Bureau of Investigation, Counterterrorism Analysis Section, supra note 2.

63. United States Department of Justice, Federal Bureau of Investigation, Domestic Terrorism Operations Unit II, supra note 8, at 2.

64. United States Department of Justice, Federal Bureau of Investigation, Counterterrorism Analysis Section, supra note 2.

65. Id.

66. Id.

67. See United States v. Svoboda, 633 F.3d 479, 480 (6th Cir. 2011), where defendant creates a fraudulent driver’s license imprinted with the Department of Homeland Security seal, the White House seal, and citations to 42 USCS § 1983 and Mugler v. Kansas, 123 U.S. 623 (1887).

68. Corpus Juris Secundum (C.J.S.)

69. United States Department of Justice, Federal Bureau of Investigation, Counterterrorism Analysis Section, supra note 2.

70. American Defamation League, supra note 3.

71. Id.

72. United States Department of Justice, Federal Bureau of Investigation, Counterterrorism Analysis Section, supra note 2.

73. See Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

74. See Jennifer Pytyck & Gary A. Chaimowitz, The Sovereign Citizen Movement and Fitness to Stand Trial, International Journal of Forensic Mental Health, 12: 149-153, 2013, at 149; George Parker, Are Sovereign Citizens Competent to Stand Trial? 27, American Acad. of Psychiatry and the Law, Transcript of Competency Hearing at 11, United States v. Brown, No. 09-CR-30-01-GZS (2010); Svoboda, 633 F.3d at 481.

75. See American Psychiatric Association, Diagnostic And Statistical Manual Of Mental Disorders 327 (American Psychiatric Association, 4th ed., text rev.).

76. WebMD, Mental Health and Delusional Disorder (Sept. 13, 2013, 11:21 a.m.) http://www.webmd.com/schizophrenia/guide/delusional-disorder.

77. See id.

78. See Pytyck & Chaimowitz, supra note 72, at 153; Novack, supra note 48.

79. See Pytyck & Chaimowitz, supra note 72, at 153; Novack, supra note 48.

80. See Pytyck & Chaimowitz, supra note 72, at 152; American Psychiatric Association, supra note 73.

81. See Pytyck & Chaimowitz, supra note 72, at 153.

82. See id.

83. See id.

84. See id.; Forensic update at 8, United States v. Loughner, No. I 1-CR-00187-LABU (2012); Transcript of Competency Hearing, supra note 72, at 20.

85. Transcript of Competency Hearing, supra note 72, at 19.

86. Svoboda, 633 F.3d, at 480

87. Id. at 484.

88. Id. at 480.

89. Id.

90. Id.

91. Id. at 485.

92. See Novack, supra note 48; Transcript of Competency Hearing, supra note 72; Forensic Update, supra note 80, at 5; Pytyck & Chaimowitz, supra note 72, at 153.

93. See generally, Gray v. State, No. 03-09-00408-CR, 2010 (Tex. App.—Austin [3rd Dist.] Aug. 8, 20 I 0) (not designated for publication).

Five Things You Need to Know About the Texas SR-22 (A Peek Behind the Insurance Curtains)

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In addition to being a proud member of Texas Criminal Defense Lawyers Association, I am also a Texas insurance agent who has specialized in the issuance of the Texas SR-22 form for over 30 years. As I speak to groups around the state, it seems I hear the same questions over and again regarding the impact an SR-22 can have on your clients and their families’ automobile insurance. Therefore, I hope you will allow me this opportunity to share some information from an insurance agent’s perspective that might be of benefit to you and your clients.

Let me begin by addressing the actual SR-22 form itself. A Texas SR-22 (or Financial Responsibility Form) is actually an endorsement that is attached to an insurance policy; this is why your client cannot just purchase the form by itself—it is actually part of the policy to which it is attached. The way I usually explain the SR-22 to clients is to describe it as a tool used by the Texas Department of Public Safety (DPS) that transfers responsibility of monitoring the policy status to the insurance company that issued the SR-22.

The State of Texas requires that an SR-22 be filed for many different reasons, such as:

  • multiple no-insurance tickets,
  • an occupational or essential needs driver’s license,
  • an unpaid judgment for a liability claim,
  • convictions for driving under the influence of alcohol or drug-related offenses,
  • excessive violations,
  • just to name a few . . .

When an SR-22 is issued and filed with DPS, this action obligates the insurance company that issued the SR-22 to constantly monitor the status of the policy to which the SR-22 is attached and notify DPS of any changes in that policy’s status. The SR-22 itself has an effective date but no expiration date. It is good until the issuing company notifies DPS that the policy has terminated (however DPS does require that the insuring company submit an updated copy of the SR-22 every two years). When the policy is terminated, the issuing company submits another form called the SR-26, which cancels the SR-22.

(1) Not every insurance company will issue an SR-22

Even though DPS advises people to obtain the SR-22 from their insurance carrier, many insurance companies consider the SR-22 to be “high-risk” and will initially refuse to issue the form. If the client tries to force the issue, this action will usually flag the policy for non-renewal—and seldom results in the client receiving the SR-22 within a timely period. You see, the Texas personal automobile policy contains a provision that allows a company to cancel a policy if the license of a driver is suspended or revoked. Many insurance companies simply delay the SR-22 until the license status shows “suspended” and then cancel the policy. In addition, even the companies that will issue the SR-22 typically move the family’s business into their “high-risk” side of companies upon renewal, and it will normally take several years to earn their way back to better rates.

(2) The SR-22 impacts all drivers and vehicles listed on the policy

Although the problem might lie with the child who got into trouble while away at college, the ramifications of the SR-22 affect all drivers and vehicles listed on the policy. Because a single driver cannot be rated using a different set of underwriting guidelines in a single policy, all drivers and vehicles are forced into the “high-risk” policy. Although it is possible to separate a single driver onto another policy, this is often impractical because it restricts who is covered to drive which family vehicles. In addition, most insurance companies offer generous multi-lines discounts, so a problem with a family’s automobile insurance can also result in large premium increases in other insurance policies like their homeowners insurance.

(3) If your client elects to obtain the SR-22 from an outside source, the SR-22 must be written on a non-owners/operators policy

This is absolutely the most important advice you can give your client regarding their SR-22. In order to avoid the problems listed above, many clients elect to obtain the SR-22 from a secondary source. This is often a very good idea, but without your guidance they could find themselves making a mistake that could be financially devastating. Most people will just go to the first insurance agency they see advertising SR-22s and ask to purchase one as inexpensively as possible. This agency will typically issue a liability-only policy on whatever vehicle your client happens to be driving that day. The problem is that your client has now automatically terminated his current insurance coverage on that vehicle without even knowing it.

The problem lies in the Texas Personal Auto Policy, specifically in the Termination Section of Part F: General Provision. Under this section, Rule C reads as follows:

AUTOMATIC TERMINATION—“If at any time, you obtain other insurance on your insured auto, any similar insurance provided by this policy will terminate as to that auto on the effective date of the other insurance.”

This dilemma can be easily overcome by simply advising your client to obtain the SR-22 by purchasing an operator’s policy (also commonly referred to as a non-owner’s policy). This type of policy solves the problem because it insures only the client as a driver and does not provide duplicate coverage on a specific vehicle. Therefore it completely avoids the automatic termination rule in the Texas Personal Auto Policy.

(4) Your client’s primary carrier will not necessarily discover the SR-22 or any subsequent conviction

Your client has absolutely no requirement or obligation to notify their insurance company of any changes to their driving record or the need for an SR-22 filing. It is the responsibility of the insurance company to determine if there are any factors that might impact the premium, and as a matter of business, many insurance companies do not normally perform an in-depth underwriting review prior to offering to renew a client’s policy. Due to the substantial cost of performing these reviews (consider that a driving record costs a company around $10 per insured, then multiply that by the number of people insured by any given company and one can imagine the expense), many insurance companies rely on a client’s claims history to determine premium changes. It often occurs that many convictions are never discovered.

(5) Advise your client to avoid obtaining the SR-22 thru the Texas Automobile Insurance Plan Association

Because of a lack of experience in dealing with the Texas SR-22, some insurance agents will attempt to provide the form by selling your client a non-owners policy written thru the Texas Automobile Insurance Plan Association (TAIPA)—commonly referred to as the “state pool.” This path creates its own set of problems for both you and your client. First, an SR-22 is not issued by the agent. An application with a request for the SR-22 is submitted to TAIPA in Austin. TAIPA issues an SR-22, which is sent directly to DPS and the policy is assigned to a company admitted to write automobile insurance in Texas. Once that company receives the assignment, they are charged with producing the policy documents (including the SR-22) and mailing those documents to the client. As you can imagine, it might be weeks if not months before your client actually receives the SR-22.

I’m sure you can foresee the problems this can cause in providing an occupational driver’s license (ODL). Additionally, it is important to keep in mind that this is not a voluntary relationship as far as the assigned company is concerned. They are being forced to provide this coverage for your client. Therefore, many of these companies are actively looking for a reason to cancel your client’s policy, which can easily be found in your client’s license status. Even though your client has a valid ODL, his driver’s license status at DPS will show as suspended. Since the assigned company is not required to provide insurance for a driver with a suspended license, they can simply cancel the policy and remove themselves from the risk. This can launch the client into a vicious circle of continuously replacing the SR-22 in order to keep the ODL in force.

In closing, thank you for allowing me the opportunity to share, and I hope you will find this information helpful while assisting your clients in solving their driving privilege problems.

List of Useful Websites for Texas: Free Legal Research

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The following list of useful websites for criminal law practi­tioners in Texas is by no means complete or authoritative. It is really just the result of my law professor sister in Massachusetts trying to teach me to be a better researcher. There is also a wealth of information out on the internet on various practitioners’ websites and blogs. These resources, and many others, are easy to find with a well-crafted Google search. We hope you find something in this list that is helpful to you.

General Texas State Law Research

1. CASEMAKER on State Bar of Texas website (good for pulling cases and shepardizing);

2. Google Scholar ( http://scholar.google.com/ ) Great for starting your research and narrowing your topic. To get their Advanced Search, there are three paths: a) google “Google Scholar” and choose Advanced Search from the results; b) at the Google Scholar site, select the “old venerable look” from the bottom left corner, and then “Advanced Search” is an option to the right of the search button; or c) at the modern Google Scholar site, select the arrow in the search box next to the magnifying glass icon, and you will have the Advanced Search option. );

3. UT Austin Law Library Research Guides ( http://tarlton.law.utexas.edu/research/research-guides.html ) Includes very in-depth guides on Texas legal research with hyperlinks—way beyond my list);

4. Texas State Law Library Research Page ( http://www.sll.state.tx.us/research/texaslaw.html ) With all the law links above & more, including municipal codes;

5. Travis County Law Library ( http://www.traviscountylawlibrary.org/research_links2.html ) Handy links to online resources for briefs, Texas and federal statutes and constitutions, lots more administrative law links, court rules, and other law and legislative libraries

6. Texas Law Help—“Helping low-income individuals solve civil legal issues” ( http://texaslawhelp.org/ ) Good to refer people to if they just want advice so they can handle their case themselves. Also a good place to get an overview of an area of law you may not be particularly familiar with

7. Any published article you want from Hein or PubMed or any of the fee services can be obtained for free through your local library

8. Jury Charge Bank—Harris County ( http://www.justex.net/courts/criminal/JuryChargeBank/Default.aspx )

9. Statutes, Codes, Legslative Research:
Texas Legislature, Constitution & Statutes ( http://www.statutes.legis.state.tx.us/ ) Search by citation or word

Texas Legislature, Bill Search ( http://www.legis.state.tx.us/Search/BillSearch.aspx ) Search for bills by sponsor, topic, committee and/or action

Texas Legislation, Index to Sections Affected ( http://www.lrl.state.tx.us/legis/isaf/ ) Search by code or bill

State Office of Administrative Hearings ( http://www.soah.state.tx.us/ )

For research on Texas Legislative intent:
Archived broadcasts of Senate session and public hearings held at the Texas State Capitol may be viewed from the Senate RealMedia Video Archives page ( http://www.senate.state.tx.us/avarchive/ )

( http://www.house.state.tx.us/video-audio/ ) Some hearings are available as videos through this site, but if it was not videotaped, there will still be an audio recording of the hearing, as House committee clerks are responsible for recording audio of every public hearing. You may listen to these recordings in CD or cassette format in the House Communications, Video/Audio Services office, located in the John H. Reagan Building at 105 West 15th St., Room 330, Austin (just north of the state Capitol). Copies of the audio recordings may be purchased for a fee. For more information, call (512)463-0920. You may send your signed Open Records Request letter via fax to (512)463-5729 or mail to the Texas House of Representatives, c/o Video/Audio Services, P.O. Box 2910, Austin 78768-2910.

Federal Law Research

1. OYEZ ( http://www.oyez.org/ ) Search all published Federal cases by keyword(s). For example, the search string “Texas search and seizure vehicle” produced results limited by these terms. Very powerful search engine;

2. Justia ( http://law.justia.com/ ) Federal & state statutes, federal regulations, federal court decisions, U.S. Con­sti­tu­tion. Browse and a simple search. Test the search function before assuming you have found everything—it’s simpler and you need to know how all the search engines work on the free websites!)

3. Public Library of Law ( http://www.plol.org/Pages/Search.aspx ) Federal court cases; state court decisions from all 50 states (only back to 1997); federal and state statutes, federal regu­lations and court rules, state court rules as posted to the web, legal forms that can be ordered via email

Related Federal Sites

1. USA.gov ( http://www.usa.gov/ ) Portal for federal government agencies, state, local and tribal government websites

2. GPO FedSys—Government Printing Office ( http://www.gpo.gov/fdsys/ ) GPO identifies itself in this manner: “The core mission of Keeping America Informed, dated to 1813 when Congress determined to make information regarding the work of the three branches of Government available to all Americans. The U.S Government Printing Office (GPO) provides publishing and dissemination services for the official and authentic government publications to Congress, Federal agencies, Federal depository libraries, and the American public.”

3. OpenCongress ( http://www.opencongress.org/ ) Non-partisan, non­profit bill tracker that also tracks the money & influence in Congress

4. PACER and RECAP ( http://www.recapthelaw.org/ ) Firefox required, PACER is the official way to access the docket and filings for federal courts. It costs per page, and it is not hugely expensive, but can add up for a large document. Look first to see if some kind person has posted the docu­ment you want to the RECAP archives. Be a good web citizen, and anytime you use PACER yourself to download a document, donate a copy to the RECAP archives!

Specific Areas of Interest

Collateral Consequences:

http://www.abacollateralconsequences.org/CollateralConsequences/RetrieveValues?id=Texas

Basic Guide to Effects of Criminal Convictions on Immigration Status:
http://immigrantdefenseproject.org/criminal-defense/padilla-pcr
http://www.law.cornell.edu/uscode/text/8/1182

ALRs and DL Suspensions/Surcharges:
SOAH web site: http://www.soah.state.tx.us/

DPS Driver Eligibilty: https://txapps.texas.gov/txapp/txdps/dlreinstatement/login.do

Pay Surcharges and Sign Up for the Indigency or New Incentives Program:

http://www.txsurchargeonline.com/default.aspx

Failure to Appear to Take Care of Traffic Ticket:

http://www.texasfailuretoappear.com/

http://www.NHTSA.gov (SFST and DRE Training and Resources for Law Enforcement):

1. An example of publications from NHTSA: Challenges and Defenses II: Claims and Responses to . . . [PDF])

2. SFST Student Manual 2009 ( http://www.888oviohio.com/pdf/DWI_STUDENT_2009.pdf )

3. For SFST Papers and Manuals ( http://www.nhtsa.gov/search?q=sfst&x=-1054&y=-12 )

4. HGN ( http://www.nhtsa.gov/people/injury/enforce/nystagmus/hgntxt.html )

Drug Identification/Information:

( http://www.drugs.com/imprints.php )

Criminal Lab Certification/Accreditation:
( http://www.txdps.state.tx.us/CrimeLaboratory/LabAccreditation.htm )

BAT Operator’s Manual:

( http://www.txdps.state.tx.us/CrimeLaboratory/documents/BATOperatorManual.pdf )

Standard Operating Guidelines: Evidential Breath Alcohol Instrument Calibration:

( http://www.txdps.state.tx.us/CrimeLaboratory/documents/OSD-CAL-01.pdf )

Best Practices Collection, Packaging, Storage, Preservation, and Retrieval of Biological Evidence:

( http://www.txdps.state.tx.us/CrimeLaboratory/documents/labBP01BestPractice.pdf )

Other Research Resources Not Spe­cifically Dealing With Criminal Law

1. Council of State Governments ( http://www.csg.org/ ) A regional multi-state organization serving all three branches of state government, helping them shape policy and solve problems—an excellent resource for reports and data

2. National Conference of State Legislatures ( http://www.ncsl.org/ ) A bipartisan organization that serves all 50 states’ legislators by providing technical assistance and research on a variety of issues—an excellent resource for legal researchers as well

3. Texas Secretary of State ( http://www.sos.state.tx.us/ ) You have to dig, but there are full text statutes and rules here on a variety of topics, from the UCC to Elections to border relations—worth a look

4. Texas Attorney General ( http://www.oag.state.tx.us/index.shtml ) Law enforcement, forms, studies with quotable data, Offenses by Punishment Range, AG Opinions and Grants Applications!

5. Offices of the United States Attorneys bulletins ( http://www.justice.gov/usao/eousa/foia_reading_room/ )

6. Join TDCAA so you can access their monthly articles and postings. They also offer some very useful publications that prosecutors routinely rely on.

List of a Few Sites Associated With Various Law Schools

1. Duke Law Library ( http://www.law.duke.edu/lib/researchguides/intresearch ) Free legal research

2. Georgetown ( http://www.ll.georgetown.edu/guides/freelowcost.cfm ) Free or low-cost legal research

3. Cornell University Legal Information Institute ( http://www.law.cornell.edu/uscode/text/8/1182 ) Free legal research

4. Kent College of Law ( http://www.oyez.org ) Free legal research on constitutional issues

Improving Your Research Skills

1. A wonderful, free tutorial from Sarah Glassmeyer at CALI: The Law Student Guide to Free Legal Research on the Internet ( http://freelaw.classcaster.net/about/ )

2. Google Law search: ( http://scholar.google.com/intl/en/scholar/help.html )

Keep On Keepin’ On…

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We signed up for a reason. It is not about the money. We are severely underpaid to begin with. We accept that. We signed up because we believe in an ideal. That everyone—no matter financial means, race, creed, education, lifestyle—deserves the best representation possible. We fight injustice—even systemic injustice. We do not differentiate between the hours or the effort we pour into retained versus appointed cases. We lose sleep over all cases just the same. Our families know the sacrifices we make—the time, the stress, and that we frequently dig into our own pockets. We know these people depend on us. We are all that stands between them and the complete and often abrupt loss of liberty and freedom, between them and the infinite wealth, resources, and power of the State. We know we must stand firm. We believe in justice for all. We are court-appointed lawyers.

And we are officers of the court. It is reasonable to expect to be paid (albeit at the built-in reduced rate) for work performed. That expectation is not unique to this profession. We swear to the time designated and work performed in our fee vouchers. So what does it say when a judge slashes our bills? The message is loud, clear, and unacceptable. It says we lied. We lied about the hours designated or the work performed or both. Think about it. Is there any other party who the court blatantly calls out as a liar… other than the accused, of course? It also says we should not have worked so hard on the case—that we should not have invested so much time, that it is not worth it. We should not have done more than the constitutional minimum. It is insulting—insulting to us, to our clients, and to the system of justice. It is a slap in the face.

Perhaps before a judge or an administrator slashes a bill, the lawyer should be consulted. If there is a question about the work performed or time expended, perhaps the lawyer should be given a chance to explain if necessary. To explain yes, it is possible to have performed all of the listed work because our hours are not just 8 to 5 Monday through Friday. To explain that just because the courthouse is closed for the weekend or a holiday does not mean we are not working. To explain that yes, we have sacrificed sleep and—most importantly—time with our families to perform this work. After all, would not a judge want that same courtesy?

Certainly, there will always be budgetary constraints in any governmentally funded program. We are not ignorant to that fact. The unfortunate reality is that most of us have become accustomed to our bills being cut; that it is just a given. But let us think about what message that sends to us, to the people we represent, and to the public. It is a message that screams we are not worth it. Our clients are second-rate to those who are blessed enough to have money. It is no wonder court-appointed lawyers get a bad rap.

And it is no wonder that it is hard to continually find experts who will agree to work on court-appointed cases. Again, money is the issue. Always. And it is never easy or fun to ask for money. To have to beg for money from a closed fist, to be told no. However, it has to be done. We have an obligation to ask for adequate money for experts and investigators when the case calls for it even if we have been retained. When we do not get it, we have an obligation to ask again and to preserve the record. When we have used it all and still need more, we are required to ask. We should not be made to feel bad about it. And we should not expect to be told “no.” After all, this is the constitutional minimum for effective representation and due process. Judges who know find the funds and a way to make the budget work. We all need to be asking. Repeatedly. Otherwise, a fair trial and justice will remain luxuries that only the wealthy can afford.

The problem with all of this is that the real bottom-line impact is not on the court-appointed lawyer but on indigent people accused of crimes. Why would a lawyer agree to take court appointments and do a good job—the same job as he would do for a paying client—knowing that the pay will be de minimus, that most of the time you will basically lose money by taking these cases or work for next to nothing, and that you will constantly be told you should not have worked that hard or much?

Every time we fill out and turn in a bill, we have a choice to make. Do we record all of the time we have spent on a case with a full awareness that we will not be paid for that work, or do we preemptively cut our bills ourselves in hopes to appease those in power? I say be honest—record all of the time you have spent on a case. It can only benefit all of us. What that tells a judge is what actually goes into a case to do it right—that justice is not cheap. It tells the judges that we spend the time, that we are willing to work hard—equally hard—for all of our clients. It will only improve our reputations with our colleagues, our clients, and judges.

Is there incentive for us to perform our absolute best despite consistent underpayment? Yes. There is personal pride and satisfaction in a job well done. We all also have reputations to uphold. After all, in our chosen profession our reputations are everything. These intangibles mean more than money to us. We are not all hall-of-fame lawyers, but we do more than the constitutional minimum. And judges should embrace that because it betters the entire justice system. We all do our best, everything we can, every time, in every case. We will never be satisfied with the constitutional minimum. We are defenders; the government has to go through us. We do it because we know we are often the very last and only ones to stand for people when all too often their own friends and families have abandoned them. We stand.

The problem with an indigent defense plan that caps a lawyer’s compensation at a minimum dollar amount is that it discourages good lawyers, diligent lawyers, hard-working lawyers, smart lawyers from taking appointments. It encourages lawyers to plead out court-appointed cases. After all, why spend the time and effort if you do not get paid for the time and energy a trial takes if it is easier and quicker to sign plea papers? In turn, that encourages judges to appoint those lawyers who take appointments for the quick check.

It is upsetting and insulting to have your bill slashed. But it is even more frustrating that the result of this system is to discourage the good, smart, diligent, hard-working lawyers from taking appointments to the detriment of all of those people who are financially unable to afford a lawyer on their own. Shame on any such system and the individual players who contribute to it. We refuse to contribute to a system so eager to plead everyone out, and we believe even the poorest among us deserves a good, hard-working defense lawyer who is not just concerned with the bottom line. Satisfaction with the status quo or constitutional minimum is just not in our DNA. To us, it is not about the money; it is about the ideal.

As my dad always said, keep on keepin’ on…

March 2014 Complete Issue – PDF Download

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Features
24 | Pictures from the Prairie Dog Lawyers Advanced Criminal Law Seminar – By Chuck Lanehart
26 | Representing the Sovereign Citizen – By Melissa L. Shearer & Christina M. Koenig
32 | Five Things You Need to Know About the Texas SR-22 (A Peek Behind the Insurance Curtains) – By Jay Freeman
35 | The DPS Incentive Program – By Andrew J. Forsythe
37 | List of Useful Websites for Texas: Free Legal Research – By Barrett Hansen & Prof. Elizabeth McKenzie
40 | Keep On Keepin’ On… – By Sarah Roland

Columns
7 | President’s Message
9 | Executive Director’s Perspective
13 | Federal Corner

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

President’s Message: Hope for the Crumbling Federal Prison System? – By Bobby Mims

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Recently it has become apparent that the federal prison system is crumbling from overcrowding. In 1980, the federal prison population was approximately 25,000 people, but since then it has grown exponentially—over 800 percent. Currently, the Federal Bureau of Prisons (“BOP”) has custody of nearly 219,000 people. The agency’s facilities are operating at almost 40 percent over capacity. With less than 5 percent of the world’s population, the U.S. has more than 25 percent of the world’s prisoners. The average cost per inmate to the taxpayer is more than $28,000 per year. That is unsustainable, and incarcerating nonviolent offenders is a poor use of the taxpayer’s dollar.

Congress passed the Fair Sentencing Act (“FSA”) in 2010 to equalize the guidelines for crack and powder cocaine. However, the act was not retroactive and only applied to sentencing imposed after the effective date of the FSA. This was the first effort to address some of the unfairness in sentencing, but the act did not do much to slow the growth of the federal prison population.

Recently, Attorney General Eric Holder has directed all U.S. Attorneys to draft complaints so that the mandatory minimum provisions would not apply to low-level nonviolent drug offenders. More recently, Deputy Attorney General James Cole addressed the New York Bar Association, calling upon defense attorneys to identify federal inmates sentenced to long prison sentences that would not be imposed if they were convicted today. Deputy AG Cole has requested that the criminal defense bar assist the U.S. Attorneys in identifying low-level drug offenders who no longer pose a threat to public safety and whose “long-term incarceration harms our criminal justice system” . . . for possible commutation of sentence. A qualified petitioner is one who has a clean record in prison, who does not present a threat to public safety, and who is facing a life or near-life sentence that is excessive under current law.

There have been signs that there are efforts in the Department of Justice (“DOJ”) to review some of these old marijuana cases that resulted in long prison sentences. After all, Washington and Colorado have legalized the possession and use of marijuana. The DOJ advised that they would not enforce federal marijuana laws in those states so long as strict regulations were imposed and enforced under state law. The DOJ essentially advised that they were taking a “hands-off but watchful eye” policy on the enforcement of federal marijuana laws in those states. These developments have drawn into stark relief the unfairness of federal inmates serving long sentences based on old convictions that if the crime occurred today would not even be enforced.

Last September I met with federal officials in the Western District of Texas about a 1996 case involving a Jamaican who had been indicted, tried, and convicted of possession for the mere possession of marijuana seeds. The West Texas federal jury had convicted him, and the court sentenced him to 35 years pursuant to the sentencing guidelines. With the cooperation of the Assistant U.S. Attorney who had prosecuted him, this individual’s sentence was reduced to “time served” pursuant to Rule 35 by the same Judge who sentenced him. He was turned over to immigration authorities and deported to Jamaica. He has been reunited with a family he has not seen in many years. I try not to tell “war stories,” but this example is offered as indicative, at least to me, that something encouraging may be underway in the DOJ.

Pending in Congress is the Smart Sentencing Act (“SSA”), which has bipartisan support in the House. This bill seeks to reduce the statutory mandatory minimums for some low-level drug cases and expand the “Safety Valve” provision. The SSA also, if enacted, would make the FSA retroactive as well. There is an unusual coalition of supporters from the right and left wings of the political spectrum to reduce prison populations. Both have different reasons for supporting the reduction of prison population, but the effect would be the same if the SSA is enacted.

Presently, it is encouraging that in the federal prosecution bar there appears to be an effort to “look back and do justice” in some cases. Members of TCDLA should encourage this hopeful development and render assistance. Many prosecutors and judges are dismayed at the severe sentences the present federal law and guidelines impose. The “tough on crime” policies and the “war on drugs” have forced this situation on the public. The SSA, if adopted, could give some relief to the system and correct some of the injustices that have been imposed in the past.

Members are encouraged to review their old files and identify cases for review by the DOJ. There is no guarantee you will get relief, but at least in some circumstances you might find that the door is open at the U.S. Attorney’s office.

Bobby Mims
President

Executive Director’s Perspective: Springing Ahead – By Joseph A. Martinez

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Special thanks to Rey Merino (McAllen), President of the Hidalgo County Bar Association (HCBA) and TCDLA Board Member, for allowing TCDLA/CDLP to co-sponsor the Bill of Rights seminar held in McAllen on January 31, 2014. We also thank Carlos Sanchez, Executive Director HCBA, for all of his help on the event.

Thanks to CDLP and the CCA, we have started a new CLE initiative called Innocence Criminal Law 101. These will be a one-hour lunch and CLE on the campus of law schools in Texas. The first lunch seminar was held at the Texas Tech University School of Law on January 22, 2014. We thank Professor Pat Metze for coordinating the event. A second was held February 26 at St. Mary’s University School of Law, and we thank Stephanie Stevens for coordinating. There will be more to follow. Please check out the seminar schedule on our website.

Special thanks to our course directors, Rick Wardroup (Lubbock) and Carlos Garcia (Austin), for the Capital Case Litigation Initiative (CCLI) program held in Houston February 5–7, 2014. This was a three-day bring-your-own capital case training. The training focused on teamwork in the defense of persons charged with capital murder and facing the potential of a death sentence. Small group breakout sessions provided the opportunity to work on the implementation of the skills taught. The program had plenary sessions where attendees were educated on specific issues in capital representation, and the plenary sessions were followed by breakout sessions where the groups, most comprising two teams per group, applied the teaching to their individual cases. Thanks to our 13 faculty who came from across the country. Thanks to everyone’s help, we had 16 teams, which included investigators and mitigation specialists. We had a total of 62 participants.

This is the third CCLI program TCDLA has done. The funds for the CCLI program come from the U.S. Department of Justice to the Texas Court of Criminal Appeals and to TCDLA.  The Center for American and International Law (CAILaw) in Plano handles the prosecutorial capital training.

TCDLA owes a huge thanks to Judge Barbara Hervey at the Texas Court of Criminal Appeals (CCA). She found the grant, then initiated the discussion with TCDLA and CAILaw to make the initial grant submission with the CCA in 2012. Thanks to the Judge’s leadership and foresight, justice is being served in Texas.

Special thanks to our course directors, Rick Wardroup (Lubbock) and Carlos Garcia (Austin), for the Mental Health/Capital Trial seminar held in Houston February 6–7, 2014. Thanks to everyone’s efforts we had 47 attendees.

Special thanks to our course director, Troy McKinney, and our speakers for the DWI Public Defender seminar held at the Southern Methodist University Dedman School of Law in Dallas on February 13, 2014. Special thanks to Dean Julie Forrester for allowing TCDLA to come on the law school campus and train. Special thanks to Mike McCollum, Adjunct Law Professor, for opening the doors of the Dedman School of Law to TCDLA. TCDLA could not have done these seminars without his help and support. Semper fi, Mike. Law-school students attended any of the TCDLA CLEs at no cost. Thanks to everyone’s efforts we had 60 attendees.

Special thanks to our course directors, Mike McCollum and Professor Chris Jenks, for the Veterans seminar held on the Southern Methodist University Dedman School of Law campus. Thanks to everyone’s efforts we had 33 attendees.

Special thanks to our course directors, Lynn Richardson, Public Defender Dallas County, and Rick Wardroup (Lubbock), for the Indigent Defense seminar held on the Southern Methodist University Dedman School of Law campus. Thanks to everyone’s efforts we had 92 attendees.

Special thanks to Anthony Haughton (Houston) and Alex Bunin (Houston), course directors for the 3rd Annual Honorable Craig Washington and Senator Rodney Ellis Seminar held at the Thurgood Marshall School of Law in Houston February 20–21, 2014. Thanks to their efforts and our speakers we had 111 attendees.

TCDLA wants to give special recognition to Dean Dannye Holley of the Thurgood Marshall School of Law for allowing TCDLA/CDLP to co-sponsor this event. Specials thanks to Ms. Prudence Smith, Assistant Dean of External Affairs, who helped put on the event and was instrumental in making this event a huge success.

The 27th Annual Rusty Duncan Advanced Criminal Law Course is rapidly approaching. Please pre-register at our TCDLA website and make your hotel reservations as early as possible.

Please help us get the word out on the 18th Annual TCDLA Golf Tournament to be held on Wednesday, June 11, at the beautiful course in Silverhorn Club. The top three teams will be recognized. Registration fee includes lunch at 11:30 am. Shotgun start at 12:00 pm.

The TCDLA Board of Directors invites you to attend the TCDLA Annual Members Meeting on Saturday, June 14, 2014, immediately following the adjournment of the 27th Annual Rusty Duncan Advanced Criminal Law Course. This should be approximately at 11:30 am in Ballroom B of the Henry B. Gonzalez Convention Center in San Antonio. Please go to the TCDLA website for more information or call the Home Office (512-478-2514)

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.

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