Monthly archive

November 2014


Anns Lee Pelton, 7 year old granddaughter of Robert Pelton, this week won 1st place at her school for her sketch honoring women veterans and and all women supporting veterans.  Anns Lee comes from a long line of veterans, including her dad, both granddads and great great granddads all the way back to the ones who fought in the Civil War.  Her great great granddad was named Robert E Lee Cox.  Her great great great great granddad Abraham George Washington Cox enlisted in the Confederate army at age 15 with his dad Abraham Cox, who was 51.

October 2014 SDR – Voice for the Defense Vol. 43, No. 8

Voice for the Defense Volume 43, No. 8 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

Because the Kentucky Supreme Court’s rejection of D’s Fifth Amendment claim was not objectively unreasonable, the Sixth Circuit erred in granting the writ. White v. Woodall, 134 S. Ct. 1697 (2014).

        D pled guilty to capital murder, capital kidnapping, and first-degree rape. The trial court denied D’s request to instruct the jury not to draw an adverse inference from his decision not to testify at the penalty phase; the jury sentenced D to death. The Kentucky Supreme Court affirmed, finding that the Fifth Amendment’s requirement of a no-adverse-inference instruction to protect a nontestifying defendant at the guilt phase is not required at the penalty phase. The U.S. Supreme Court denied certiorari. However, the federal district court granted D habeas relief, holding that the trial court’s refusal to give the instruction violated D’s privilege against self-incrimination. The Sixth Circuit affirmed. The Supreme Court reversed and remanded.

        Prior judicial decisions did not give D a right to a no-adverse-inference instruction during the penalty phase. Because D admitted to the elements of the case that the prosecution would otherwise have had to prove, there was no inference left for the jury to make. The Court therefore held that the state courts’ rejection of D’s Fifth Amendment claim was not objectively unreasonable and should not have been considered by federal courts.

Restitution to the respondent, who was used to produce child pornography, is proper under 18 U.S.C. § 2259 only to the extent that D, who pleaded guilty to possessing images of child porn, including two images of respondent, was the proximate cause of respondent’s losses; defendants should only be made liable for the consequences and gravity of their own conduct, not the conduct of others. Paroline v. United States, 134 S. Ct. 1710 (2014).

        After D pled guilty to possession of child pornography, the district court denied restitution to a respondent because the government failed to show what losses were proximately caused by D. The Fifth Circuit concluded D was liable for the respondent’s entire losses from the trade of her images. The Supreme Court vacated the Fifth Circuit’s judgment and remanded.

        The issue, which was of conflict among courts, was whether 18 U.S.C.S. § 2259 limited restitution to the losses proximately caused by D’s offense conduct. The Supreme Court concluded that the proximate-cause requirement applied to all the losses described in § 2259. Restitution was therefore proper under § 2259 only to the extent D’s offense proximately caused the respondent’s losses. Where it could be shown both that a defendant possessed a respondent’s images and that a respondent had outstanding losses caused by the continuing traffic in those images, but where it was impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying § 2259 should order restitution in an amount that comported with defendant’s relative role in the causal process that underlay respondent’s general losses. On remand, the district court was to assess as best it could the significance of D’s conduct in light of the broader causal process that produced respondent’s losses.

Where D was convicted of fraudulently obtaining a loan and thus owed restitution under 18 U.S.C. § 3663A(b)(1)(B), he was not entitled to have the restitution offset by the date-of-return value of collateral returned to the bank. Robers v. United States, 134 S. Ct. 1854 (2014).

        D was convicted of conspiracy to commit wire fraud after he submitted fraudulent loan applications to two banks; the trial court ordered him to pay restitution to the banks, pur­suant to the Mandatory Victims Restitution Act of 1996, to com­pensate them for losses they sustained when they foreclosed the mortgages. The Seventh Circuit affirmed, and the U.S. Supreme Court affirmed.

        The Court held that 18 U.S.C.S. § 3663A(b)(1) did not track state mortgage law and did not require the trial court to value the banks’ collateral as of the date the banks made the loans, and the trial properly applied § 3663A(b)(1) when it ordered petitioner to pay the banks $220,000. Although losses the banks suffered were due in part to the fact that the value of both houses declined after the banks made the loans, they were proximately caused by petitioner’s criminal behavior. The phrase “any part of the property” in § 3663A(b)(1)(B) refers only to the specific property lost by the victim, which, in the case of a fraudulently obtained loan, is the money lent; therefore, no “part of the property” is “returned” to the victim within the meaning of § 3663A(b)(1)(B) until the collateral is sold and the victim receives money from the sale. Thus, a sentencing court must reduce the restitution by the amount of money the victim received in selling the collateral, not the value of the collateral when the victim received it.

Fifth Circuit

District court abused its discretion in refusing to dismiss four counts of the indictment on the government’s motion. United States v. Hughes, 726 F.3d 656 (5th Cir. 2013).

        The Fifth Circuit reversed the denial of the government’s motion to dismiss the four counts and rendered a dismissal on those counts. However, D was not entitled on plain-error review to vacatur of his guilty plea for claimed violations of Fed. R. Crim. P. 11 (inadequate factual basis, failure to explain the consequences of the guilty plea, advisement of the incorrect sentencing range, or failure to advise that D would be required to pay a special assessment for each count of conviction). Nor did the district court abuse its discretion in denying D’s motion to withdraw his plea.

Even if it was assumed that the district court erred in not determining whether either party wanted the criminal forfeiture issue submitted to the jury, as required by Fed. R. Crim. P. 32.2(b)(5)(A), D failed to show that the error affected his substantial rights; the Fifth Circuit declined to vacate the forfeiture order. United States v. Valdez, 726 F.3d 684 (5th Cir. 2013).

District court plainly erred in failing to explain D’s sentence; but reversal was not required because D did not show how this affected his substantial rights. United States v. Rouland, 726 F.3d 728 (5th Cir. 2013).

        “[T]he district court’s failure to provide any explanation of reasons supporting Rouland’s sentence amounts to clear error. . . . [T]his error does not constitute reversible plain error because Rouland was sentenced to a within-Guidelines sentence of 30 months and Rouland has failed to demonstrate how a fuller explanation would have altered his sentence.” Furthermore, D’s claim that the written judgment included special conditions of supervised release not pronounced by the court was reviewed only for plain error because these conditions were in a government exhibit admitted with no objection by D; on plain-error review, D did not show an effect on his substantial rights. Finally, the district court did not abuse its discretion in imposing supervised-release conditions relating to mental-health, substance-abuse, and cognitive-behavioral treatment, and a workforce development program; these are effectively standard conditions in the Western District of Texas, and there was evidence supporting imposition of these conditions.

The Fifth Circuit reversed for insufficient evidence D’s convictions for bank fraud in violation of 18 U.S.C. § 1344; the government failed to prove that the victim—the American Express Company—was a “financial institution” in the manner charged, namely, as “a depository institution holding company.” United States v. Davis, 735 F.3d 194 (5th Cir. 2013).

In prosecution of D accused of plan to bomb and shoot service members at Fort Hood, district court did not err in denying D’s motion to suppress; even though D was detained at gunpoint and put in a police car in handcuffs, that was not a full arrest requiring probable cause but a proper investigatory stop supported by reasonable suspicion. United States v. Abdo, 733 F.3d 562 (5th Cir. 2013).

         (2) There was no plain error in convicting D on two counts of possession of a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c)(1), although each count charged possession of the same firearm in furtherance of a different predicate offense. Although the Fifth Circuit has held that “§ 924(c)(1) does not unambiguously authorize multiple convictions for a single use of a single firearm based on multiple predicate offenses,” United States v. Phipps, 319 F.3d 177 (5th Cir. 2003), Phipps did not control the case here because D here was not convicted of possessing the firearm on a single occasion in furtherance of simultaneous dual criminal purposes; because neither Phipps nor any other decision ruled out the possibility of multiple convictions based on separate uses/possessions of a single firearm, there was no clear or obvious error in D’s multiple convictions.

        (3) Even if D did not waive his appellate argument that he was improperly denied expert assistance, that argument failed on the merits because the proffered trial testimony of the bomb expert for whom funds were denied would not have materially assisted the defense.

The Fifth Circuit rejected Texas D’s claims that the dis­trict court (1) adjudicated his competency to be executed without the due process required under Ford v. Wainwright, 477 U.S. 399 (1986), and Panetti v. Quarterman, 551 U.S. 930 (2007); and (2) erred in finding him competent to be executed. Panetti v. Stephens, 727 F.3d 398 (5th Cir. 2013).

        The Fifth Circuit also rejected D’s claim that, under Indiana v. Edwards, 554 U.S. 164 (2008), he was improperly allowed to proceed pro se at trial. Edwards states a new rule of criminal procedure that, under the nonretroactivity doctrine of Teague v. Lane, 489 U.S. 288 (1989), may not be applied retroactively to cases (like this one) that were final on direct review before Edwards.

The Fifth Circuit ultimately concluded that the Border Patrol agent had reasonable suspicion to stop D. United States v. Garza, 727 F.3d 436 (5th Cir. 2013).

        Although the issue was “a close one,” the Fifth Circuit concluded that under the totality of the circumstances considered in connection with the factors in United States v. Brignoni-Ponce, 422 U.S. 873 (1975), the Border Patrol agent had reasonable suspicion to stop D. The area had a reputation as a smuggling route; it was close to the border; the truck was unfamiliar to the agent and was carrying plywood, which the agent knew to be a common method of concealing persons or contraband; and D became nervous and hurriedly left the gas station once he spotted the agent.

Texas death-sentenced D, convicted of murder-for-hire, was not entitled to a certificate of appealability on his claim that trial counsel was ineffective for failing to in­vestigate and present evidence of D’s abusive childhood; D failed to establish that this evidence would have changed the sentencing outcome. Ruiz v. Stephens, 728 F.3d 416 (5th Cir. 2013).

Ds’ convictions for conspiracy to possess an illicit substance aboard a plane with intent to distribute (in violation of 21 U.S.C. §§ 959(b) and 963) based on a conspiracy involving U.S. citizens traveling to South America and acquiring drugs, which they transported to the United Kingdom, did not involve an impermissible extraterritorial application of the statutes of conviction. United States v. Lawrence, 727 F.3d 386 (5th Cir. 2013).

        Statutory interpretation showed that Congress did intend for the statutes of conviction to apply extraterritorially; the presumption against extraterritoriality (United States v. Bowman, 260 U.S. 94 (1922)) was overcome, and extraterritorial application of the statutes did not run afoul of international law or Ds’ due-process rights. Moreover, Congress did not exceed its authority in enacting these statutes with extraterritorial application; such application was authorized under Congress’ power to enforce international treaties (in this case the 1961 Single Convention on Narcotics Drugs) in conjunction with the Necessary and Proper Clause. Finally, the indictment was sufficient to enable Ds to mount their defenses.

Court of Criminal Appeals

For restitution purposes, a “victim” is any person who suffered a loss as a direct result of a criminal offense; however, the State failed to offer evidence that D’s commission of the DWI was the direct cause of the accident. Hanna v. State, 426 S.W.3d 87 (Tex.Crim.App. 2014).

        D pled guilty to driving while intoxicated; the trial judge then ordered him to pay $7,767.88 in restitution to Lubbock Power and Light (LP&L) to repair a utility pole that D’s car struck. D appealed that Tex. Code Crim. Proc. art. 42.037 does not authorize restitution because LP&L was not a “victim” of the offense. COA agreed, holding that the restitution order was improper because (1) DWI is a victimless crime because it “does not encompass per se a particular category of complainant,” and (2) there was no victim alleged in the charging instrument.

        CCA concluded that restitution (1) may be ordered in a DWI case, and (2) may be ordered for someone whose name did not appear in the charging instrument. However, the State must prove that D’s commission of the offense was the direct cause of the harm. Because the State failed to prove that D’s intoxicated driving caused the damage to the pole, CCA affirmed COA’s deletion of restitution.

A new trial may not be granted in the interest of justice on a claim that defense counsel failed to call an exculpatory witness if the claim is not based on ineffective assistance. State v. Thomas, 428 S.W.3d 99 (Tex.Crim.App. 2014).

        CCA affirmed COA in holding that the trial court abused its discretion by granting a new trial motion in the interest of justice under Tex. R. App. P. 21.3. “A motion for a new trial, whether for guilt or punishment, requires a valid legal claim. The failure of trial counsel to call an exculpatory witness who was available at trial and known to the defense is not, by itself, a valid legal claim.”

The requirement in a community supervision revocation hearing, at which it is alleged that the defendant failed to pay appointed counsel, community supervision fees, or court costs, for the State to prove that the defendant was able to pay does not apply to fines. Gipson v. State, 428 S.W.3d 107 (Tex.Crim.App. 2014).

        On D’s plea of true, the trial judge revoked D’s community supervision for failing to pay his fine and various court-assessed fees. COA reversed on the basis that the State failed to satisfy its burden of showing, under Tex. Code Crim. Proc. art. 42.12 § 21(c), that D was able to pay and did not. In its petition for review, the State contended that § 21(c) does not apply to fines. CCA agreed: “The statute mentions certain types of fees and costs, but it makes no mention of fines.”

Non-expert testimony was sufficient to prove loss greater than $200,000 by either a damage or destruction theory of criminal mischief. Campbell v. State, 426 S.W.3d 780 (Tex.Crim.App. 2014).

        D was convicted of arson and criminal mischief with pe­cu­ni­ary loss greater than $200,000 for burning down an Ar­by’s restaurant. The Arby’s owner testified that his insurance company paid him approximately $400,000, and that it would cost him $1,000,000 to replace the restaurant. D appealed that the evidence was legally insufficient to support his conviction for criminal mischief with loss greater than $200,000. A person commits criminal mischief by damage or destruction if he intentionally or knowingly damages or destroys tangible prop­erty without consent. Tex. Penal Code § 28.03(a)(1). The amount of pecuniary loss to the owner determines the degree of the offense. If the property is damaged, the loss is the cost of repair. If the property is destroyed, the loss is the fair market value or the cost of replacement. See § 28.06. COA rendered an acquittal as to D’s criminal-mischief conviction.

        CCA reversed, finding that the testimony proved loss un­der both theories. “The property owner’s unobjected-to hear­say testimony regarding the payment from his insurance sup­plied the critical piece of evidence necessary to elevate the owner’s testimony from a mere lay, ‘off the wall’ opinion as to damages to the type of evidence that we have held is sufficient to prove the cost of repairs and, thereby, pecuniary loss. . . . With respect to criminal mischief by destruction . . . we presume that an owner’s testimony estimating the value of his property is either estimating the purchase price of the property or the cost to replace the property in terms of the fair market value[.]”

CCA identically remanded these five cases because COA lacked the benefit of Johnson v. State, 423 S.W.3d 385 (Tex.Crim.App. 2014), in which CCA “set forth a roadmap for resolving questions regarding court costs.”

Jelks v. State, 426 S.W.3d 104 (Tex.Crim.App. 2014).
Handy v. State, 426 S.W.3d 104 (Tex.Crim.App. 2014).
Rogers v. State, 426 S.W.3d 105 (Tex.Crim.App. 2014).
Romero v. State, 427 S.W.3d 398 (Tex.Crim.App. 2014).
Flores v. State, 427 S.W.3d 399 (Tex. Crim. App. 2014).

On the facts, the trial court did not err in allowing the State to introduce a machete into evidence without revealing the machete to the defense in discovery. Francis v. State, 428 S.W.3d 850 (Tex.Crim.App. 2014).

        D was convicted of aggravated robbery; the indictment alleged that D “used a deadly weapon, namely, A KNIFE.” Months before trial, the trial court signed a discovery order that required the State to give the defense an opportunity to inspect “all physical objects to be introduced as part of the State’s case [and] [a]ll weapons . . . acquired by the State or its agents in the investigation of the alleged offense.”

        On the first day of trial, defense counsel noticed a large machete among the items the State intended to introduce. D immediately objected: “What is in our pleadings is a knife, nothing about a machete.” The court issued a limine order requiring the parties to approach the bench before any mention of the machete to the jury. At the start of the second day of trial, D filed a motion for continuance, complaining that the preceding day had been “the first time defense counsel had been made aware of a machete” and asking the court “to allow investigation into the machete . . . to formulate a defensive strategy.” The court granted the motion. Defense counsel acknowledged that he “had a chance to inspect the machete in question and had ample opportunity to speak to his client about it and prepare for cross-examination.” But counsel informed the court that this access to the machete “doesn’t eliminate the objections that will be made.” The limine order remained in effect as the complainant took the witness stand; after a bench conference, the complainant testified that D hit her repeatedly and she wavered out of consciousness but remembered that D threatened her with a pocketknife and the machete.

        On appeal, D argued that the prosecutor willfully violated a pretrial discovery order, and that the trial court erred in fail­ing to exclude the evidence wrongfully withheld from his court-ordered pretrial scrutiny. COA upheld the trial court. CCA affirmed, finding no grounds for exclusion as a function of prosecutorial willfulness.

        Nor did CCA find grounds for exclusion as a function of due process: “The trial court did grant a continuance, and the appellant confirmed on the record that the delay was sufficient to allow him to inspect the machete prior to its admission into evidence and to consult about it with counsel—which was, after all, the only thing that the discovery order explicitly guaranteed him. Moreover, we are unpersuaded that the appellant was disadvantaged in any other material way by his belated receipt of notification of the full significance the State would attribute to the machete (i.e., that it was the ‘KNIFE’ alleged in the indictment).”

Juveniles sentenced to life imprisonment were not entitled to individualized sentencing hearings; individualized hearings are only mandated for sentences without the possibility of parole. Lewis v. State, 428 S.W.3d 860 (Tex.Crim.App. 2014).

        Both Ds were 16 years old at the time of the murders for which they were convicted. The respective versions of Tex. Penal Code § 12.31(a), of 2008 and 2009, required they be sentenced to life imprisonment without parole. They were not allowed to present mitigating evidence at their punishment hear­ings because life imprisonment without parole was automatic. COA reformed Ds’ sentences to allow for parole.

        Ds filed petitions for review, claiming their reformed sentences of life imprisonment with the possibility of parole were unconstitutional because Miller v. Alabama, 132 S.Ct. 2455 (2012), required individualized sentencing of juvenile offenders, specifically because it is the most severe punishment for which juveniles are eligible in Texas under the current § 12.31. CCA affirmed the sentences. “These consolidated cases ask us to interpret the United States Supreme Court’s recent decision in Miller v. Alabama, which held that the Eighth Amendment to the United States Constitution forbids sentencing schemes for juveniles in which life imprisonment without the possibility of parole is mandatory rather than based upon an individualized sentencing assessment. Appellants argue that their sentences, which the appellate courts reformed to life imprisonment, are unconstitutional because they were not afforded individualized hearings at which to present mitigating evidence. We do not read Miller so broadly and therefore affirm the judgment of the appellate courts.”

A juror’s hurry to get home did not qualify as an improper outside influence because it was unrelated to any issue at trial; furthermore, the juror’s post-trial testimony that his desired verdict had been “not guilty” was inconsistent with his trial-time statements, and the time for doubts passed when the jurors were excused. Colyer v. State, 428 S.W.3d 117 (Tex.Crim.App. 2014).

        A jury convicted D of DWI. The foreman seemed uncertain when he read the verdict, so D motioned for a new trial. At the new-trial-motion hearing, the foreman testified that “his verdict was not a fair expression of his opinion due to an array of ‘outside influences,’ including the late time of day, the distance to the parking lot, the approaching inclement weather, and the amount of time it was taking to respond to the jury’s notes. [The foreman] was particularly affected by a call he received during deliberations from his doctor informing him that his daughter had tested positive for [a serious infection]. He testified that this call influenced him to change his verdict: ‘[He] had to concede to the other people and get home to [his] daughter immediately.’ He agreed that the deliberations were cut short because all of the jurors were affected by ‘outside influences.’” The trial judge denied D’s new trial motion. COA held that the trial court abused its discretion in denying D’s new trial motion alleging juror misconduct. CCA reversed COA.

        “Because appellant’s ‘outside influence’ argument misapplies our holding in McQuarrie v. State [380 S.W.3d 145 (Tex.Crim.App. 2012)], we granted the State’s petition for discretionary review. Personal pressures—such as a fear of inclement weather or concern about a child’s illness—are not ‘outside influences’ under Texas Rule of Evidence 606(b). Accordingly, juror testimony about these issues is not admissible. Because appellant failed to prove that the jury’s verdict was tainted by juror misconduct, the trial judge did not abuse his discretion in denying appellant’s motion for new trial.”

Two State exhibits that purported to be foreign public documents or certified public records were not properly authenticated; neither was accompanied by a final certification from a diplomatic or consular official, and good cause for failing to obtain certification was lacking. Bruton v. State, 428 S.W.3d 865 (Tex.Crim.App. 2014).

        COA properly reversed a trial court decision that admitted two State exhibits purporting to be foreign public documents, admissible under Tex. R. Evid. 902(3), and certified copies of public records, admissible under Rule 902(4), of D’s prior convictions. “The State has given no reason for failing to obtain a final certification and has not suggested that it made any attempt to contact an appropriate diplomatic or consular official about authenticating the documents in State’s Exhibits 13 and 15. In fact, the record supports the inference that the State failed to attempt to contact the appropriate official because the prosecutors misunderstood the final-certification requirement. But the State’s ignorance of Rule 902(3)’s requirements is not a legitimate excuse.” CCA affirmed COA, reversing and remanding for a new punishment hearing.

D’s online-solicitation-of-a-minor convictions were set aside because CCA had held that the relevant statute, Tex. Penal Code § 33.021(b), was unconstitutional. Ex parte Chance, No. WR-81,136-01 (Tex.Crim.App. May 7, 2014).

        Ex parte Lo, 424 S.W.3d 10 (Tex.Crim.App. 2013), “held unconstitutional the online solicitation of a minor statute for which Applicant was convicted. Applicant, through counsel, filed this habeas application based on the Lo decision and asks that his convictions be set aside. The trial court recommends granting relief. After considering the trial court’s findings and the parties’ objections and responses regarding them, this Court agrees with the trial court, and relief is granted. . . . Applicant is remanded to the custody of the Sheriff of Montgomery County to answer the charges as set out in the indictment so that the indictment may be disposed of in accordance with this Court’s opinion in Ex parte Lo.

Court of Appeals

Prosecutor’s introduction of possible punishment ranges was not the sort of flagrant repeated misconduct that would deprive D of due process; that being the case, D was required to preserve any perceived error. Johnson v. State, 432 S.W.3d 552 (Tex.App.—Texarkana 2014).

        “During direct examination by the State, Officer Matt Cashatt of the Texarkana Police Department testified that the penalty for a first-degree felony is 5 to 99 years’ or life imprisonment and that the penalty for a second-degree felony is 2 to 20 years’ imprisonment. . . . To preserve a prosecutorial misconduct complaint, a defendant must generally make a timely and specific objection, request an instruction to disregard the matter improperly placed before the jury, and move for a mistrial. . . . [D] objected on the basis of relevance when the subject was initially broached during Cashatt’s testimony. The trial court overruled the objection and gave [D] a running objection. [D] complains that the State improperly elicited the subject testimony and argued punishment during closing argument. However, [D] failed to object on the basis of prosecutorial misconduct.”

The definitional instructions on “female sexual organ” and “penetration” in the jury charge were harmful error; COA reversed and remanded for a new trial. Green v. State, 434 S.W.3d 734 (Tex.App.—San Antonio 2014, pet. granted).

        “We conclude the charge’s definitions of ‘female sexual organ’ and ‘penetration’ similarly constituted an improper comment on the weight of the evidence because they focused the jury’s attention on the specific type of evidence that would support a finding of the contested element of penetration. . . . [W]e must determine whether the error was harmful. Because Green properly objected to the definitions, we determine whether ‘the error appearing from the record was calculated to injure’ his rights, i.e., whether there was ‘some harm.’… [T]here was conflicting testimony on the critical, and hotly contested, question of . . . whether penetration occurred—a question of fact for the jury to resolve—was the focus of counsel’s questioning of the witnesses and closing arguments. Viewed in the context of the entire jury charge, the definitional instructions were error because they impinged on the jury’s fact-finding authority by focusing the jury’s attention on the evidence that would support a finding of penetration. . . . On this record, we cannot say with ‘fair assurance’ that the charge error did not have an ‘injurious effect or influence in determining the jury’s verdict.’”

D, convicted of capital murder, raised a question of fact undermining the given jury instructions; upon a harm analysis, COA ordered a new trial. Zamora v. State, 432 S.W.3d 919 (Tex.App.—Houston [14th Dist] 2014).

                “When this case was first before us, appellant argued that the trial court erred in failing to instruct the jury that if it determined that witness Benjamin Rosales was a co-conspirator accomplice, then it could consider Rosales’ testimony only if it was corroborated by other evidence tending to connect appellant to the offense. . . . We concluded that this complaint was waived because appellant had asked the trial court to in­struct the jury to determine whether Rosales was a direct-party accomplice rather than a co-conspirator. . . . The Court of Criminal Appeals reversed and remanded the cause for us to consider appellant’s charge-error complaint under the procedural framework of [Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g)]. . . . We conclude that the evidence raises a question of fact as to whether Rosales was a co-conspirator accomplice, and thus, the trial court erred in failing to instruct the jury accordingly. We further conclude that appellant was egregiously harmed by the error. . . . [The] court’s failure to instruct the jury that there was a question of fact about witness’ status as an accomplice under a co-conspirator theory of liability egregiously harmed D in that it made the case clearly and significantly more persuasive and deprived him of the statutory right not to be convicted of an offense based on the uncorroborated testimony of accomplice witnesses.”

Winning Opening Statements

You can have the greatest close in the world, but if you haven’t won the case by the time that you get to the close, it’s too late. The opening statement is where you win the trial.

—Gerry Spence

Is an opening statement really necessary?

In varying degrees, social scientists assert that 65 to 90 percent of jurors make up their minds after hearing the opening statement.1 It does not take a rocket scientist to figure out that if, empirically speaking, this many jurors are deciding a case based in large part on the opening statement, the chances of a first-place finish are drastically, even fatally, reduced by not giving one. After the prosecutor has told the jury all of the terrible things your client has done, this is your first opportunity to show there is another side to the story. As Paul Harvey said, it is your chance to tell “the rest of the story.” In short, not only must you give one, but it also must be better than the prosecutor’s.

So how does this article help me?

Taking tidbits from famous cases tried by legendary lawyers, this article seeks to provide some insight into how the lions of the trial bar give opening statements. Those cases, the charges, and the lawyers are as follows:

 New York v. Sean Combs (aka Puff Daddy) | Unlawful Gun Possession and Bribery | Benjamin Brafman2
Texas v. Robert Durst
| Murder | Dick DeGuerin and Mike Ramsey3
United States v. Terry Nichols
| Conspiracy to Use a Weapon of Mass Destruction and Murder | Michael Tigar4
Oregon v. Sandy Jones
| Murder | Gerry Spence5
Virginia v. Marv Albert
| Sexual Assault | Roy Black6

Drawing on concepts from these legends, and various other resources, what follows is a synthesis of how to give a powerful, effective, and (hopefully) winning opening statement.

How do I structure my opening statement?

Like many things, getting started can be the most difficult task. I find myself with so much to say, but I am unsure how to say it, usually resulting in a self-imposed writer’s block. This formula helps me get my thoughts down into an understandable, cohesive format:

 Power Statement/Sound Bite/Why My Client Wins: Typically between one and three gripping, powerful sentences getting to the heart of your case.
 The Big Picture: Ten sentences or less tying in your power statement and providing a little more detail about your theory and giving context to your power statement.
 Cast of Characters: Introduce the main players and provide any relevant background.
 Tell the Story: Fill in all of the details that illuminate your power statement and theory.
 Conclude: Call the jury to action and empower them to say “Not Guilty.”

The opening statement you ultimately give may or may not end up being in this format. This just helps me organize my thoughts. After getting my thoughts out in this format, a natural adjustment usually occurs. The story does not have to be linear or in chronological order. In fact, different parts of the story may be better told in another format. For example, a circular story—one that begins and ends in the same place—may be most effective. After organizing your thoughts in this way, a natural structure will emerge. For almost any case, though, the above format will work.

Write it out, but do not read it. I type almost everything, but for some reason when I make my first outline and write my first draft, I am more creative if I handwrite my opening. From there, I will type it on the computer. Then, I will type a final one- or two-page list of bullet points. Much of what I end up saying at trial is what I wrote originally, but with bullet points—as opposed to reading word for word—the delivery is much more genuine.

Power Statement/Sound Bite/Why your client wins

You must be able to distill your case down to one to three sentences that tell the jury why you win. A wealth of research reveals that jurors will remember best what they hear first and last—i.e., primacy and recency.7 Powerful opening lines are critical. Two examples illustrate this concept.

First, in Puff Daddy’s trial, one of the major issues was dealing with Puff Daddy’s celebrity. Brafman began his opening like this:

Ladies and gentlemen, this is Sean “Puff Daddy.” You can call him Sean, you can call him Mr. Combs, you can call him Puff Daddy, or even just plain call him Puffy, but what you cannot do in this case, you cannot call him guilty, because from the facts, from the evidence, from the law, you will conclude that he is not guilty. It’s that simple.8

The jury ultimately agreed and acquitted.

Second, in Terry Nichols’ trial, the obvious goal was to save his life. Tigar’s opening statement was brilliant in playing on the fact that Nichols was not present for the bombing because he was at home with his family, tying in this one-sentence phrase throughout: “Terry Nichols was building a life, not a bomb.”9 Nichols ultimately received a life sentence.10

Hopefully it goes without saying that knock-knock jokes are not a good way to start your opening statement.11 But however you do it, make sure to say something that will grab the jury’s attention.

Elaborate: Give the big picture

At this point, you have the jury’s attention, but to keep it, you must provide context and give a little more detail about a critical moment in the case—one that if understood in any other way may cause you to end up with a second-place finish. You should tie it in to your power statement, if possible. Here is an excellent example from DeGuerin’s opening in the Durst trial:

[Power Statement:] May it please the court. Self-defense/ accident, and no motive whatsoever. Why did Morris Black die? How he died will not be an issue. Morris Black died as a result of a life-and-death strug­gle over a gun that Morris Black had threatened Bob Durst with. And as they struggled, the gun went off and shot Morris Black in the face.

[Big Picture Elaboration:] Bob had arrived unexpectedly at the apartment that he had rented in Galveston, a rundown $300-a-month apartment that he rented, dressed as a woman named Dorothy Ciner, a name from his past. He arrived unexpectedly. He caught Morris Black in his apartment. And he knew, because he knew Morris Black, that Morris Black likely had a gun. And he felt both fear and anger because he had kicked Morris Black out of his apartment. He knew Morris Black was dangerous.12

But do not go too far. You want the jury to hunger for more of the story. Keep them on the edge of their seats. Fill in the details after you introduce your client and the parties—in the best light possible for you.

Introduce the cast of characters

Only introduce the main players. Obviously your client will be the main focus in most cases, so we will start there.

Humanize your client, but be careful. As Gerry Spence says, let them be real people; real people have faults. No matter who your client is or what they may have done, he or she possesses some qualities that people will identify with. Explore how to get these good character traits before the jury, without opening unwanted doors. Again, borrowing from Spence with a few additions, here are some examples:

 Not the type to be on welfare
 Worked with kids
 Cared about the poor
 Involved in church

But beware of Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008). In Bass, the defendant was a pastor at a church accused of indecency with a young girl on church property. During opening statement, his attorney characterized Mr. Bass as a “genuine,” “real deal” pastor, saying the allegations were “contrary to his character” and “not worthy of belief.” Id. at 557. The attorney went on to say the allegations were “pure fantasy” and “pure fabrication,” among other things. The trial court then allowed evidence of two extraneous uncharged offenses of extremely similar character, and the Court of Criminal Appeals ultimately upheld this type of evidence during the State’s case-in-chief. Id. at 563 (“Our case law supports a decision that a defense opening statement, like that made in this case, opens the door to the admission of extraneous-offense evidence, like that admitted in this case, to rebut the defensive theory presented in the defense opening statement”). Moral of the story: If you have extraneous offenses, be extremely careful.

For the other major players, try to theme the witnesses. Sometimes it is as simple as calling them by their title. For example, in a DWI, very rarely will you need to help jurors remember multiple officers; calling the lone officer by his or her name works just fine. But in multiple-officer scenarios, or for non-law enforcement, jurors are not going to remember names at the outset, but they will remember titles:

 He was the detective who never made a mistake;
 She was the witness with incredible vision;
 He was the patrol officer who always went by the book.

After setting up the critical issues and introducing the characters, you are ready to give the jury what they have been waiting for on the edge of their seats—the “rest” of your story.

Tell your story

To do this, according to Spence, you must first figure out where the injustice is in the case—what is it that turns you on as a human being?13 Where do you get passionate about the case?14 Because, “if you don’t care, and if you’re not passionate about your client and your case, how can you expect a jury to care and be compassionate about your case?”15 Put simply, caring is contagious. Once you figure out what turns you on, a theme will emerge.

And you must have a theme. Trials are story battles. Everyone loves a good story—one with any of these types of overarching themes:

 Heroes vs. Villains
 Good vs. Evil
 Abusive vs. Fair
 Tough vs. Terrorized
 Greedy vs. Sharing
 Manipulative vs. Trusting

We all know that sometimes it is hard to find good things to say about the facts of your case. In that scenario, tell the jury what it will not hear. In other words, contrast the facts of your case with just how bad it could really be. For example, in a plain vanilla traffic stop DWI, tell the jury about all of the drunk driving they expect to see but will not:

You will not hear about a car that was weaving and serving all over the road; you will not hear about a car that spent more time on the sidewalk than on the street; you will not hear about a driver so drunk that he wrapped his car around a tree. None of that. Instead, you will hear about John, who drove perfectly normally but stopped too far over the line at a stop sign—according to the officer who arrested him. That’s it.

Word choice is important. Opening statements that impress lawyers will be misunderstood by jurors. So use ABCs, not legalese—or KISS, Keep It Simple Stupid. Speak in language the jurors will understand—no lawyer talk.

Similarly, lose the “I believe the evidence will show,” or “I think you will hear,” or “we hope to bring you.” If you believe, think, and hope you will prove something, the jury is going to give you less credibility—probably the most important thing the lawyer has going. You will also probably end up believing, thinking, and hoping you win your appeal. Of course, if the prosecutor objects and the judge forces you, you can use these phrases, but do it somewhat cynically. The jurors will think it is just as stupid as you should. Finally, do not tell the jurors that what you say is not evidence; this is another thing that makes jurors wonder why they are listening anyway.

Use trilogies to drive the point home. Some powerful three-word combos:

 Describing interactions between police and our clients: abused, taken advantage of, violated;
 No loss of faculties: reacted normally, walked normally, talked normally;
 Discrediting state’s science: inaccurate, unreliable, and unscientific;
 Reasonable doubt: wavering, unsettled, unsatisfied.

As an example, in describing Durst having Asperger’s as a reason for why he continuously “retreated” from and “returned” to Galveston after throwing the deceased’s body into the bay, Ramsey said:

And those people who are weak to begin with, who are broken to begin with, who are troubled to begin with, are much more likely to drift into that kind of state of reaction, an attempt to retreat.16

Use “devil words” to describe the state’s evidence. This concept comes from Dr. Sunwolf’s book Practical Jury Dynamics.17 Some examples of devil words you can use:

 Rules were Violated, Trampled, Disregarded, and Ignored.18

Whatever you do, in the opening and throughout the trial, do not use police words.19 Figure out their lingo, and adjust it to your liking. For example, in a DWI, how many times do you read reports using words that make things sound much worse than they really are, or that are completely misleading? Here are some alternative words and phrases you can use:

 Standardized Field Sobriety Tests: Roadside Exercises, Coordination Exercises, Stupid Human Tricks;
 Refuse: Conscious, thoughtful decision;
 Intoxilyzer 5000 / Instrument: Breath box or government breath machine;
 Horizontal Gaze Nystagmus Test: Eye Test or the Trust-me Test;20
 Walk-and-Turn Test: Walk the fake balance beam on the side of the road;
 One-leg-stand Test: Balance on one leg.

Sometimes, it is as easy as adding the word “government.” Calling a blood test the government blood test adds a level of skepticism, especially if you set it up properly during your voir dire.

Use those new words, and paint a word picture. Like Disney says, be an “Imagineer.”21 Use descriptive adjectives, action verbs, and colorful phrases. Take the jury to the moment, as if they were there themselves. In the Durst trial, for instance, one of the major themes was separating the shooting, which was self-defense (the jury agreed and acquitted), from what happened after, Durst dismembering and discarding the body in Gal­veston Bay. To drive this point home, the lawyers split the opening—DeGuerin telling what happened before the shooting, and Ramsey telling what happened after. In concluding his portion of the opening, DeGuerin described Durst’s desperation after realizing what he had just done:

And he went down to Morris [the deceased], and he knelt down, and he said, “Morris, Morris.” And Morris didn’t move. And he could tell Morris was dead. And he thought, “Morris is dead. He’s shot with my gun. He’s shot in my apartment that I rented as a mute woman wearing a wig because I was hiding from an investigation in New York. They are never going to believe me.” He went to his bed, and he sat down and put his head in his hands and he descended into the depths of despair.22

In doing this, sometimes it is difficult to invite visualization of a scene where you were not—and would rather not be—present. To help me, I think about the five senses and what would stick out: What did the witness see? What did the witness hear? What did the witness smell? What did the witness touch (and what did it feel like)? What did the witness taste (probably the least likely to help, but sometimes can). I have found that this technique helps me come up with a much more descriptive version of the scene.

Embrace your weaknesses. If the case you are trying were perfect, you would not be trying it. You cannot run from your weaknesses; you have to confront them head on. Our brother defense attorney in Fort Worth, Wm. Reagan Wynn, calls it “hugging the turd.” If facts are in dispute, tell the jury. Tell the jury your position and your opponent’s, and explain why your position is better. If you have facts that cannot be explained, tell the jury that too. According to Spence, “There may be regrets that need be expressed, apologies made and shared with the jurors. But the overriding justice of the case still rests with our side.”23

If you suspect disputes will arise due to changing or evolving stories, you could handle it like Brafman in the Puff Daddy trial. There, the state’s star witness was the driver of Puff’s Lincoln Navigator. He had sued Puff Daddy already, and the prosecution claimed that Puff had tried to bribe him not to testify that Puff threw the gun out of the car window. Brafman primed the jurors for his impeachment:

And [Mr. Fenderson, the prosecution’s star witness,] will tell you, because now he’s stuck with this statement, and if he deviates from it I’m going to put it in his face, and [remind him that] when he previously testified under oath, [he testified differently than we expect him to now].24

As is commonly the case when someone is falsely accused of child sexual abuse, you must confront the fact that a convincing child will come to the witness stand and testify. Here is one way:

When Abigail [the complaining witness] testifies, you’re going to hear a child that is committed to her story. You’re going to hear a very intelligent, articulate young lady that, in her own mind, has convinced herself that these terrible things really happened to her. But what you’re also going to hear is how she has told this story over, and over, and over again. And the State’s expert forensic interviewer will tell you is that repeatedly telling a story causes a child, especially a young one with an impressionable memory, to begin believing things that are not true. The state’s expert will also explain to you how children come up with these terrible stories in the first place—a concept called suggestibility. When repeatedly questioned by a parent, young, impressionable children will pick up on cues that they are not giving the right answers. When Mom suggests an action and a person, like, “Did Ted (the person) touch your private parts (the action)?”—instead of asking open-ended questions so the child can tell the story—children begin to integrate these things into their own minds, and begin thinking this really happened. Even when nothing inappropriate ever occurred, and even when Ted is totally innocent.

Finally, consider telling the story from a perspective other than your client’s, and always tell it in the first person. Identify which critical witness the jury would most identify with, and tell the story from that witness’ perspective. Either way you tell the story, however, try to tell it in first person. Transition by saying at the beginning, “Imagine I am Joe.” And then speak as if you were Joe and tell what you saw, felt, touched, smelled, etc., or transition by saying, “If you were in Joe’s shoes, you would hear him say . . .” Differing perspectives and first-person point of view are much more effective in taking the jury to the moment.

Be the most credible person in the courtroom

This deserves its own section because it is so critical. Your credibility is the most important thing you have. Tell a compelling, convincing story, but do not overdo it. Make sure your story is true—and that you can prove it. If not, and the prosecutor capitalizes on exposing the defense lawyer’s questionable credibility, the case is lost. Whatever you do, do not overpromise and underdeliver.

Conclude, empower, and call the jury to action

There are many different ways to conclude. Remember the recency effect—jurors will recall most what you tell them at the end of your opening. As you will see from the final three examples, impassioning and empowering the jurors works best.

Brafman concluded his opening in Puff Daddy’s trial this way:

We have an awesome responsibility. Yours is more awesome. You are sitting in judgment in a case where, at the end of the trial, you will conclude that a man has been falsely accused of a serious felony. You asked for it. You could have been excused. You said you would be fair. We trusted you then, and at the end of the case we will trust in your verdict. We trust that your verdict will be a verdict of not guilty.25

And Roy Black finished his opening in Marv Albert’s trial by suggesting the only way the jury would convict him would be because of his celebrity:

You will see that Marv Albert did nothing with Vanessa Perhach other than what had been done many, many times before and [in] many, many different places. It was all consensual. There was no forcible sodomy. There was no forcing of oral sex. Any type of biting was done voluntarily and consensually. And it was simply not a crime. And hopefully in this country, being successful and being a celebrity and being well known is not enough to convict you of a crime.26

Finally, Gerry Spence shows exactly how to empower the jury to do justice:

At the conclusion of this trial, I am going to ask you to do what no one else in this case has done for Mrs. Jones. I am going to ask you to protect her—to protect her as a citizen under the constitution. I am going to ask you at the conclusion of this case not to leave her any longer at the mercy of the state. I am going to ask you to rescue her from the mercy of the prosecution. That, ladies and gentlemen, is the great calling and the great function of an American jury. That’s what we’re here to do today—to do justice. Thank you very much.27

One final note on resources and borrowing

Nearly none of the material in this paper is my original thought. Take a look at the books and materials in notes 3 through 7, supra, for the full context of the things I have cited in this paper. More importantly, figure out who the best lawyers are and “borrow” ideas, concepts, or word-for-word phrases from them. Every lawyer I have ever told that I stole something from them has been anything but offended; in fact, most are flattered to hear this—because they have done it themselves. We are all in this together, and we need to help each other. With that frame of mind, our clients and criminal justice system will be better off.

I would like to thank my partner and outstanding trial lawyer, Dan Hurley, who put together the original presentation from which most of the material for this paper was taken.


1. Gerry Spence, Win Your Case: How to Present, Persuade, and Prevail—Every Place, Every Time (St. Martin’s Griffin 2006), at 128; Dr. Donald E. Vinson, “How to Persuade Jurors,” ABA Journal, The Lawyer’s Magazine (2014),; Robert B. Hirschhorn, “Opening Statements: You Never Get a Second Chance to Make a First Impression,” 42 Mercer L. Rev. 605 (1991), at 3.

2. Joel J. Seidemann, In the Interest of Justice: Great Opening and Closing Arguments of the Last 100 Years (HarperCollins Publishers, Inc. 2004), at 92.

3. Ray Moses, “Defense Opening Statement: Robert Durst Murder Case,” Criminal Defense Homestead (Jul. 1, 2014, 4:37 PM), available at


5. Videotape: “Spence in Trial: How to Win with Your Opening Statement” (produced, edited, and directed by Michael Shinn, Gerry Spence 1993).

6. Seidemann, supra note 2, at 68.

7. See, e.g.,

8. Seidemann, supra note 2, at 92.



11. Adam Goldberg, “George Zimmerman’s Lawyer Tells ‘Knock-Knock Joke’ at Trial,” Huffington Post (Jul. 7, 2014, 2:17 pm),

12. Moses, supra note 4,

13. Videotape: “Spence in Trial: How to Win with Your Opening Statement” (produced, edited, and directed by Michael Shinn, Gerry Spence 1993).

14. Id.

15. Id.

16. Moses, supra note 4, (emphasis added).

17. Dr. SunWolf, Practical Jury Dynamics 2: From One Juror’s Trial Perceptions to the Group’s Decision-Making Processes (Matthew Bender & Company, Inc. 2007), at 174, 242.

18. Thank you, Deandra Grant, for teaching me about this concept.

19. Thank you, Lewis Dickson, for teaching me about how not to fall into this trap.

20. Thank you, Mark Thiessen, for teaching me about this gem.


22. Ray Moses, “Defense Opening Statement: Robert Durst Murder Case,” Criminal Defense Homestead (Jul. 1, 2014, 4:37 pm),

23. Joel J. Seidemann, In the Interest of Justice: Great Opening and Closing Arguments of the Last 100 Years (HarperCollins Publishers, Inc. 2004), at 130.

24. Id. at 103.

25. Seidemann, supra note 3, at 75.

26. Id. at 108.

27. Id.

A History of Accomplishment: Lubbock Criminal Defense Lawyers Association Celebrates 35 Years

There are basically two types of people: people who accomplish things, and people who claim to have accomplished things. The first group is less crowded.
–Mark Twain.

In 2015, the Lubbock Criminal Defense Lawyers Association (LCDLA) will celebrate its 35th year in conjunction with the 34th annual Prairie Dog Lawyers Advanced Criminal Defense Seminar January 8–10 at Texas Tech University School of Law’s Lanier Center. Highlighting the festivities will be a 1980s-themed dinner and dance Friday evening, January 9, at Kershner’s Four-Bar-K, south of Lubbock. About 18 surviving charter members of LCDLA will be honored.1

Now is a good time to take a look back at LCDLA’s history of accomplishment.

Ancient History

Upon the organization of Lubbock County in 1891, the village of the same name was home to fewer than 200 souls, including as many as four lawyers. All were general practitioners who dabbled in criminal law, but there was little crime and very little litigation at the courthouse. When criminal cases were litigated, the pioneer criminal defense lawyers seemed to do very well.

Lubbock County’s first felony jury trial was in June 1892. Jim Vance was accused of stealing a horse from the IOA Ranch the previous November. Vance—described as just a boy—was placed in the custody of his lawyer, W. C. “Connie” Henderson, to await trial.2 The defense was necessity and lack of criminal intent.

“They are after me for killing two Mexicans,” read the note Vance left for the horse owner. “My horse broke down, and I think you would let me have yours if you was here. I will send her back or give you $60.” Apparently the mare was neither returned nor paid for, but Henderson’s defense worked. Vance was acquitted.3

State vs. William E. Taylor, tried in December 1912, was Lub­bock’s first murder trial. Taylor was an assistant city marshal who gunned down two unarmed men in a saloon two months earlier. Nevertheless, Taylor claimed self-defense, as his attorney attacked the characters of the dead inebriates, “Poker Tom” Collins and “Jug” Reynolds. After 3 hours of deliberation, a 12-man jury turned Taylor loose. His lawyer, William H. Bledsoe, went on to become state senator, and is credited with bringing Texas Technological College to Lubbock.4

Over the ensuing few decades, the practice of criminal law in Lubbock was unremarkable. After mid-century, criminal defense lawyers began taking it on the chin, both literally and figuratively. In 1961, District Attorney George Gilkerson became enraged when criminal defense lawyer Byron Chappell made an objection—as a spectator from the gallery—in a felony DWI trial Gilkerson was prosecuting. Gilkerson charged over the rail at Chappell, caught him with a left to the chin, and Chappell went down.5 The judge claimed he dropped his pencil on the floor, looked down to pick it up, and did not see the fracas. The incident was reported by all of the local media. Chappell recovered, and the two adversaries made up over dinner with their wives, but Gilkerson left office soon after the incident.

Without much fanfare, Blair Cherry and Alton Griffin swapped spots as the DA over the next couple of decades. With the death penalty on a hiatus, civil litigation in a high-stakes, drawn-out wrongful foreclosure trial that seemingly involved all Lubbock’s major players dominated the headlines.6 Then, in the DA election of 1978, Griffin was defeated by a brash, upstart young lawyer, John T. Montford.

The times, they were about to change.

LCDLA’s Early Years

Montford, age 36, took office as the Lubbock County Criminal District Attorney on January 1, 1979, and quickly began implementing his “get tough on crime” campaign promises. Soon after, several unsolved homicide cases were presented to the Lubbock County grand jury, resulting in indictments of at least a half-dozen individuals for murder or capital murder. Early on in his term, Montford first-chaired a handful of high-profile felony trials with maximum sentences meted out for the defendants. The media quickly became enamored with the new DA, and he earned a nickname, “John T. 99,” reflective of the number of years in prison defendants always seemed to receive in cases he prosecuted.

The criminal defense bar was reeling, and clients were anxious.

Brown was active in the Texas Criminal Defense Lawyers Association (TCDLA), formed a decade earlier. He felt a local association similar to TCDLA could help educate and motivate the criminal defense bar, and the citizen accused would be more likely to receive effective assistance of counsel. Brown and a few other Lubbock lawyers spent several months planning the creation of a new association.

In February 1980, about 30 lawyers met in the Lubbock Club on the top floor of the First National Bank building, and the Lubbock Criminal Defense Lawyers Association was formed. The purpose of the new organization was to “encourage cooperation among local lawyers to achieve the purposes of the Texas Criminal Defense Lawyers Association; sponsor educational programs and seminars . . . ; receive reports on legislation . . . ; promote local court rules and procedures in furtherance of the common good; promote relations among local judicial and law enforcement officers; maintain a local brief ‘bank’; and otherwise further the common goals, interest and education of the criminal defense bar . . .”8

Clifford Brown was elected LCDLA’s first president. Other officers and directors were Gerald Anderson, Tom Cannon, Alton Griffin, Mark Hall, Dennis McGill, Albert Perez, and Bill Wischkaemper.9 Meetings were held on the third Thursday afternoon of each month at 5:30. The meeting places varied and over the years included the Lubbock Club, the Inn Town Inn, the Holiday Inn Civic Center, the Godbold Center, the law offices of O’Shea, Hall, Hart & Forcum, the law offices of Chappell & Lanehart, Bleacher’s Sports Bar, and the Blue Light Bar.

According to legend, LCDLA bylaws were amended to provide that no meeting of the Association would ever be held in a place where alcohol was not readily available. There is no evi­dence that such a bylaw amendment was reduced to writing, but the unwritten booze bylaw has seldom been violated.

By the end of 1980, LCDLA members were sharing ideas and strategies, learning new trial techniques, and generally becoming more prepared as advocates. They began having success against Montford and his prosecutors in the courthouse, and clients felt more confident with their attorneys.10

Over the ensuing decades, LCDLA developed many services for its members, including a huge form motions catalogue, a local strike force, an email listserve, a website, a brochure program encouraging misdemeanor defendants to hire LCDLA members rather than represent themselves, and even a courthouse closet for clients in need of free trial apparel. In addition, LCDLA has a long-standing tradition of senior attorneys serving as mentors to the “puppy lawyers.”

LCDLA’s educational effort, notably its annual seminar known as Prairie Dog, is no doubt the group’s greatest accomplishment.

Evolution of Prairie Dog

Until 1985, there was no mandatory requirement that Texas lawyers maintain continuing legal education hours. Nevertheless, LCDLA’s early efforts to provide quality CLE were immediately successful. In May 1981, LCDLA’s first seminar, “Criminal Defense,” was presented at Texas Tech University School of Law (TTUSL). The course director was Mike Brown and tuition was $35.11

Out-of-town presenters were Texas Court of Criminal Appeals Judge John Onion on “Recent Significant Decisions,” Dallas lawyer Vincent Perini on “Criminal Attorney Fees,” and Tyler attorney Weldon Holcomb on “Preserving Error and Protecting the Record.” Local luminaries on the agenda were Ralph H. Brock, George Gilkerson, Alton Griffin, Dale Jones, Dennis McGill, Travis Shelton, and Bill Wischkaemper, all LCDLA charter members. In addition, local judges J. Q. Warnick Jr., John McFall, Robert Wright, and William Shaver appeared on the program.

In 1983, the third LCDLA seminar drew more than 100 attendees, this time at the Holiday Inn Civic Center. The 1983 seminar also marked the first time LCDLA hosted the quarterly TCDLA board of directors meeting in conjunction with the seminar, now titled “Criminal Practice Update.” I served as course director, and I remember a “who’s who” of statewide criminal defense talent featured on the agenda: Rusty Duncan of Denton, Texas Court of Criminal Appeals Judge Chuck Miller, Warren Burnett of Odessa, Tim Evans of Fort Worth, Tom Sharpe of Brownsville, Gerald Goldstein of San Antonio, and Bill Habern of Riverside.

Aside from the remarkable speaker lineup and the huge attendance, I have two vivid memories of the 1983 course, both related to the budget. First, the hotel charged about $75 for each vat of coffee. Thereafter, LCDLA opted to use the much more economical law school as the venue for most of its seminars. Following the event, I received a travel expense voucher from presenter Gerald Goldstein for several thousand dollars. It seems he had rented a Lear Jet in San Antonio, made a couple of stops around the state picking up his buddies, flew on to Lubbock to speak, and then the whole entourage took off for an Aspen vacation. Goldstein’s bill amounted to much more than the entire budget for our little conference, so I was horrified: I thought I had bankrupted LCDLA! Of course, it was Goldstein’s idea of a joke, and of the many times he has anchored our seminar over the years, I cannot remember him ever asking for a dime in re­im­bursement. The seminar was a financial success.

Over the next two decades, LCDLA hosted a seminar each year. Some were large events in conjunction with TCDLA. Others were smaller affairs with small budgets designed for and presented by local lawyers.

In 2005, LCDLA celebrated its 25th birthday in grand fashion, ushering in a new era of legal education. The huge event, “25 Years of Wild, Western Justice,” offered not only a star-studded seminar at the law school, but also a blowout of a party featuring Austin country recording artists the Derailers, plus LCDLA souvenir T-shirts and other memorabilia, a tailgate party, and tickets to an Oklahoma State vs. Texas Tech basketball game. The affair (co-hosted by TCDLA) was a huge success, drawing folks from all across Texas: About 170 attended the seminar and almost 400 attended the party.12 Profits from the event funded an LCDLA donation of $10,000 to the TTUSL Foundation, which went to benefit the law school’s new criminal defense clinic. The State Bar of Texas later recognized LCDLA with its “Star of Achievement” award for the accomplishments produced through the 2005 event.13

The popular new title chosen for the Lubbock conference in 2006 reflected the roots of rural criminal defense, dating to late 1800s South Plains advocates known as “prairie dog lawyers.” Thus, LCDLA’s Prairie Dog Lawyers Advanced Criminal Law Seminar was born.14 LCDLA’s little legal powwow has gained a well-deserved reputation as the second-best criminal defense seminar in Texas, sometimes nicknamed “Rusty Duncan North,” a flattering comparison to TCDLA’s flagship seminar, the Rusty Duncan Advanced Criminal Law Course, held annually in San Antonio. The Prairie Dog has grown in attendance and in stature, solidifying LCDLA’s reputation for producing top-quality legal education.15 Via the seminar, annual party, and other efforts, LCDLA has helped raise almost $100,000 for the TTUSL Foundation, which benefits the Brendan Murray Scholarship Fund.16

LCDLA’s Unpopular Causes

In LCDLA’s first year, there was very little controversy to stir the membership to collective action. This would soon change, as a tradition began to develop. LCDLA: the champion of honorable, though often unpopular, causes.

LCDLA vs. Church of Christ Minister, 1981

Dennis McGill was LCDLA’s second president. Early in his term, an article appeared in the Lubbock Avalanche-Journal about a local Church of Christ minister’s reaction to the verdict in a highly publicized Lubbock capital murder case in which a DPS trooper was killed. LCDLA member Floyd Holder obtained a life sentence for his client, Billy Wayne Alexander.17 The minister, Grover Stevens, preached sermons and published pamphlets for the public condemning the sentence. Reverend Stevens argued the death penalty should have been imposed, and he blamed Holder. The minister was quoted in the newspaper article saying Holder was “as guilty as Alexander because of his efforts to prevent the death penalty.”18

The LCDLA board authorized President McGill’s response, which was published under banner headlines in the A-J: “Lubbock Lawyers Condemn Minister’s Remarks.” McGill used strong language in outlining the obvious reasons the minister was so misguided. “Every person in our community, state, and nation should be outraged at the commentary by Mr. Stevens; for to follow his advice would return us to the dark ages.”19

The minister never recanted his remarks, of course, but LCDLA had strongly and publicly stood against intolerable legal and moral abuse. It was just the beginning.

Gilmore vs. Lubbock County, 1981–1982

A new Lubbock County Jail Annex was constructed in 1980. Although the new facility included rooms for attorney-client visitations, Sheriff D. L. “Sonny” Keesee refused to allow attorneys to use the rooms, citing safety concerns, as prisoners would have to be transported to the rooms through a security corridor used by jailers. Defense lawyers were relegated to public jail visitation areas and forced to confer with clients through glass walls via telephone as public visitors sat nearby. There were no provisions for private attorney-client conferences.

President McGill and Alton Griffin spearheaded LCDLA’s public response to the sheriff’s position, petitioning the Lubbock County Commissioners and CDA Montford for relief. But LCDLA’s concerns fell on deaf ears.

In August 1981, on behalf of clients of LCDLA members, Mike Brown and Danny Hurley filed a federal class-action lawsuit against Lubbock County, the sheriff, and the commissioners, citing constitutional complaints about the lack of attorney-client visitation facilities.20 Litigation followed, forcing a settlement in favor of the plaintiffs that was reached in the summer of 1982.21 Space in the adjacent old county jail facility was converted, and five new attorney-client conference rooms were constructed. The new visitation cells, with no glass and no telephones, provided for face-to-face visits between attorneys and clients.

The 1982 visitation facilities served the needs of Lubbock lawyers and their clients for almost 30 years, until the new Lubbock County Detention Center was opened in 2010. The sheriff during construction of the 2010 facility, David Gutierrez, made it a point to confer with LCDLA representatives before planning new inmate visitation cells.

Stearnes vs. Clinton, 1987–1989

Carlton McLarty and I were appointed to represent a young man named Michael Stearnes, one of four accused in a high-profile drug-related triple murder case in 1987. Damon Richardson was the first co-defendant to face trial. He was convicted, largely on the testimony of one Anita Hanson—known as “Snowgirl”—who said she witnessed the murders. Richardson was sentenced to death.22

Snowgirl had been held in “protective custody” until the verdict in the Richardson trial. After her release, Snowgirl called McLarty asking for legal advice. McLarty declined, but Snowgirl agreed to an interview with McLarty. He appeared at her home with Quinn Brackett, an attorney for another co-defendant, and a legal assistant armed with a tape recorder. At first, Snowgirl cooperated and answered all of McLarty’s questions. However, midway through the interview, she secretly called an assistant Criminal District Attorney. The prosecutor soon appeared at Snowgirl’s home with police and ended the interview.

Outraged, McLarty and I immediately filed a motion to take Snowgirl’s deposition. However, at the hearing on our motion, something unexpected happened. The Lubbock County Criminal District Attorney, Travis Ware, alleged that McLarty had tampered with his “protected witness,” and that the attorney had violated the CDA’s rule “to ask permission before interviewing a state’s witness.” Judge Thomas Clinton agreed, stated on the record that McLarty and I lacked experience to handle the case, and fired us as Stearnes’ attorneys.

Stearnes stood to address the Court, “I ain’t gonna stand for no shit like that!”

The judge replied, “You keep a civil tongue in your mouth or I will have you up for something else besides capital murder.”

Stearnes: “Well, this is wrong!”

LCDLA agreed with Stearnes: What Judge Clinton did was very wrong. At an emergency special meeting, members passed the hat to send LCDLA Vice President for Court Liaison Mark Hall and me to TCDLA headquarters in Austin to seek help from the TCDLA strike force. The result: Austin lawyer David Botsford volunteered to join LCDLA lawyer Ralph H. Brock to file a mandamus action on behalf of Stearnes. The National Association of Criminal Defense Lawyers (NACDL) and the NAACP Legal Defense Fund would join the effort as well.

After the dust settled, the Texas Court of Criminal Appeals granted mandamus relief in a landmark opinion, holding zealous representation requires even a court-appointed lawyer to interview witnesses, and “the power of the trial court to appoint counsel to represent indigent defendants does not carry with it the concomitant power to remove counsel at his discretionary whim.”23

Once reinstated as Stearnes’ counsel, we demolished Snowgirl’s credibility. We also attacked the credibility of another prosecution witness, Dr. Ralph Erdmann, a local pathologist who seemed to tailor his testimony in every case to favor the prosecution. Stearnes was acquitted.24

Revelations in the Stearnes trial helped clear the remaining two co-defendants, and a new trial was eventually ordered for Richardson, who settled for a life sentence.25 Dr. Erdmann’s scandalous body of work came under intense scrutiny, including a memorable CBS “60 Minutes” exposé by Ed Bradley in 1992.

“The Range Wars,” 1992–1994

About the same time, two West Texas criminal district attorneys who promoted Erdmann’s fabricated evidence brought vindictive prosecutions against famed Georgia criminal defense lawyer Millard Farmer and two Lubbock police officers who had criticized Erdmann.26

Once again, members of LCDLA, including Rod Hobson, Danny Hurley, Brian Murray, and Denette Vaughn—joined by volunteers from TCDLA and NACDL—jumped into the fray on behalf of Farmer and the police officers. Murray and Hobson were also threatened with grand jury action, so David Botsford and I volunteered to assist, and the LCDLA lawyers dodged indictments.

The prosecutors found themselves the subject of a federal racketeering lawsuit, which resulted in injunctions halting their prosecutions against Farmer and the police officers and a $300,000 civil judgment against Lubbock, Randall, and Potter counties.27 The prosecutors were defeated in the next election, and Erdmann went to prison for faking autopsies.28

Victim’s Memorial, 2005

In April 2005, local victims advocacy groups erected a granite monument on the west lawn of the Lubbock County Courthouse, along with two benches and a stone flower garden. The monument carried an inscription that read, “Justice will not be served until those who are unaffected are as outraged as those who are.” The quote was misattributed to Benjamin Franklin.

The members of LCDLA were not pleased. LCDLA President Pat Metze, along with Alton Griffin and Rusty Gunter, led the charge to have the memorial removed. “It encourages people to become enraged,” Metze said in a newspaper interview.29

Griffin, a former Lubbock County CDA, told the newspaper he had a great deal of sympathy for victims of crime. “However, our country is based upon the fact that a defendant is entitled to a fair trial. Victims don’t have any liberty at all without that.”30

When the Lubbock County Commissioners Court ignored LCDLA’s request to remove the memorial, the organization threatened to file a lawsuit. Within days, the commissioners capitulated, and the monument was demolished.31 LCDLA members kept chunks of the smashed granite as souvenirs.

LCDLA vs. The Party Patrols, 200732

The annual return of Texas Tech students each August is historically known to cause an increase in minor alcohol-related crimes, but 2007 was quite different. That fall, citations issued by Lubbock law enforcement for minor in possession, minor in consumption, public intoxication, and violations of the local noise ordinance reached record numbers. According to Lubbock Municipal Court records, about 1,300 of the tickets were issued in the first month of the semester. The figure reflected an increase of about 500 percent for alcohol-related violations from the same time period the previous year.33

LCDLA members began hearing stories of outrageous con­duct engaged in by the Lubbock Police Department’s ag­gres­sive “Party Patrol.” One student reported that revelers refused consent for a Party Patrol officer to enter an apartment to investigate a noise complaint. The officer climbed a ladder to reach the apart­ment balcony, entered through an unlocked door, and issued citations to everyone at the party. Another officer crawled under a garage door opened only 12–18 inches to gain access to a home where a party was in progress, and gave everyone present at the gathering some kind of citation. There were many reports of large parties being busted—50, 60, or even more students—and every individual received some sort of citation. Minors were typically issued possession or consumption tickets. Those of age were issued noise ordinance tickets.34

LCDLA initiated a pro bono effort to assist the young people accused by the Party Patrol. LCLDA member Jill Stangl, Director of Student Legal Services at Texas Tech, recruited about 20 members to offer their expertise free of charge for those impacted by the Party Patrol’s enforcement efforts. Several hundred students were served by the LCDLA volunteers.35

The pro bono group successfully caused enough havoc to return the enforcement of minor alcohol offenses and noise ordinance tickets to their usual levels. Of the hundreds of cases accepted by the LCDLA volunteers, very few resulted in any sort of sanction.

Ben Webb vs. Jim Bob Darnell, 200936

In June 2009, young LCDLA member Ben Webb was subpoenaed by the Lubbock County CDA’s office to testify in the punishment phase of a trial involving a former client. The prosecutor wanted Webb to provide information that involved attorney-client communications in order to prove up an unindicted felony.

Webb, who had been licensed but three years at the time, sought the counsel of more experienced members of LCDLA be­fore appearing in court. Their advice and willingness to stand and fight with Webb gave him the confidence to do the right thing. When called to the stand, he refused to testify. Furious, Judge Jim Bob Darnell of the 140th District Court ordered Webb to jail.

Following the contempt allegation, Webb’s attorney, Rod Hob­son, fought aggressively to prevent a finding of contempt at the hearing to follow.37 Throughout the process, members of LCDLA were there to offer their time, expertise, and encouragement to Webb and Hobson.38 In the end, the CDA’s office and Judge Darnell backed down and signed off on an Agreed Finding of Not Guilty on the contempt allegation. At the hearing to enter the order, LCDLA filled the courtroom to capacity in a show of continued support and solidarity as a group.39

Lubbock County Frequent Courthouse Visitors Badge Program, 2010–present

In May 2010, Lubbock County officials authorized a security system utilizing conveyor-belt scanners and metal detectors at the main entrances of the courthouse. The Lubbock County Sheriff implemented a screening policy that allowed county employees and many other designated classes of courthouse visitors to bypass the security system. Sheriff Kelly Rowe did not include private lawyers among courthouse visitors allowed to bypass security devices.40

Beginning long before the new security measures were

implemented in 2011, LCDLA representatives met informally with the sheriff in an attempt to establish a procedure to allow private attorneys to bypass security devices. The meetings continued, eventually involving the lobbying efforts of Lubbock Area Bar Association leaders and State Senator Bob Duncan. In October 2012, the sheriff decided local attorneys would not be

included among those exempted from the security procedures.41

In November 2012, LCDLA led a collaborative effort to establish a security bypass program to be approved by the Lubbock County Commissioners Court, pursuant to Government Code § 291.010. Six bar organizations, representing more than 500 local and area lawyers, joined in the planning and formulation of the Lubbock County Frequent Courthouse Visitors Badge Program (LCFCV).42

The Lubbock County Commissioners were individually briefed on the proposal in the fall of 2013, and LCFCV committee members participated in a work session with the full Commissioner’s Court earlier this year. The Commissioners are scheduled to vote on the measure before the end of the 2014.

The Lubbock Private Defender Office43

LCDLA established and oversees one of the largest undertakings of any local bar organization in Texas, the Lubbock Private Defender Office (LPDO). LPDO evolved from the Lubbock Special Needs Defender Office (LSNDO), a pilot program created in 2007 to serve the needs of offenders with a mental health diagnosis.44

Within four years, LSNDO had proven so successful, expansion of the pilot program was sought to include all indigent defense in Lubbock County other than juvenile and capital murder cases. In 2011, Lubbock County sought a grant from the Indigent Defense Commission to assist with expansion of the program and put out a request for proposals, seeking an entity to run the program. LCDLA rose to the occasion, forming a non-profit 501(c)(3) corporation to accept the county and state funds and oversee the Managed Assigned Counsel Program, administered by the LPDO.

Modeled after a similar program in San Mateo, California, the LPDO opened for business in October 2011. It was the first of its kind in Texas, and only the second nationwide. Working much like a public defender office, the LPDO receives referrals from the courts and assigns the cases to various private attorneys based on the level of experience of the assigned attorney. Since its inception, the office has averaged processing between 6,000 and 7,000 cases each year, utilizing an average of 75 private contract attorneys, all LCDLA members, to handle the representation of the clients.

The program, operating on a $2.7 million budget, has proven to be a win-win situation. Lubbock County pays a fair and foreseeable price for indigent defense, clients are represented by well-trained and effective advocates, and lawyers are fairly compensated for their services. There is a general consensus that the local justice system has been well served by the LPDO.

LCDLA Statewide Leadership

The Lubbock criminal defense bar has produced a great number of statewide bar leaders. Prior to the 1980 formation of LCDLA, Travis Shelton had served as president of the State Bar of Texas. George Gilkerson was a founding member of TCDLA and its third president.

Since 1980, LCDLA members Clifford Brown, Bill Wischkaemper, and Danny Hurley have each served as president of TCDLA, and Mark Snodgrass is the current treasurer of TCDLA. Numerous LCDLA members have served as directors and associate directors of TCDLA. Others have volunteered as seminar speakers statewide, and have helped other legal communities establish similar local organizations across Texas. In addition, Ralph H. Brock and I each served as director of the State Bar of Texas, District 16.45

Softball and Other Diversions

In the summer of 1980, LCDLA President Cliff Brown suggested LCDLA organize a softball team and challenge the Lubbock County CDA’s office to a game. Brown felt friendly competition might create a bit of comradery among the fierce advocates, and it might give the defense attorneys a chance of winning against prosecutors who were regularly hammering LCDLA’s best lawyers in the courtroom. And, it might be a lot of fun.

The CDA’s office agreed to the challenge, and the two sides took the field on a sunny Saturday afternoon at Mose Hood Park near downtown. CDA Montford managed the prosecutor’s team, and Brown managed the LCDLA team. Brown was 60 years old at the time, but he penciled himself in as the starting pitcher. He was also a switch-hitter and batted left-handed his first and only trip to the plate, swatting a double to right field. Advocates on both sides now claim victory, but the actual outcome of the game is lost in history. What is certain is that a good time was had by all, and Brown’s plan to create a comradery among the participants was quite successful.

The softball games continued sporadically through about 1990, and there was even an LCDLA vs. CDA basketball game in 1985. Following each game, a party was usually held so the two sides could socialize. At one particularly wild party held at Bill Wischkaemper’s home, some legendary fraternization among opposing advocates occurred, too graphic to be recounted here. The softball tradition faded, and there were no LCDLA vs. CDA sporting events for years.

LCDLA President Pat Metze suggested reviving the softball tradition in May 2005. New jerseys were ordered, including Metze’s special manager’s jersey (number .08). The game was well-attended, even drawing media attention from the courthouse beat reporter of the Lubbock Avalanche-Journal, present perhaps in hopes of documenting some bench-clearing brawls. There was nothing to see other than a lot of fun. LCDLA’s version of the San Diego Chicken made an appearance. Several local judges served as umpires, drawing catcalls for their perceived blindness. Adult beverages were smuggled into the dugouts in coffee mugs. In the end, the prosecutors won the first game of the doubleheader 8-4. The second game was taken by the defense lawyers 10-8 after a walk-off home run in the 9th inning by Dwight McDonald. Following the game, Bill Wischkaemper again hosted the post-game party, though this time the prosecutors mostly stayed away, perhaps wary of the palpable trouble that was expected to follow.46


Since its inauspicious beginnings, LCDLA has come a long way. Membership has grown from about 30 original members to more than 120 dues-payers in 2014. LCDLA has been offered as a paradigm for others hoping to form similar local criminal defense organizations. The educational efforts sponsored by LCDLA have no doubt dramatically improved the effective assistance of counsel rendered by those in attendance. LCDLA’s willingness to step in and act when injustice arises has resulted in dramatic rightings of wrongs. Thirty-five years is a short time for a small organization to have made such a big difference in the way criminal law is practiced in a community. Those of us who are longtime members of LCDLA are justifiably proud of our accomplishment, and we are eager to see those who follow us build on our remarkable history.


1. Surviving charter members of LCDLA are Gerald Anderson, David Bass, Mike Brown, Judge Tom Cannon, Judge Mark Hall, Judge Mackey Hancock, Judge Kevin Hart, Bob Jones, Dale Jones, Chuck Lanehart, Dennis McGill, Carlton McLarty, David Martinez, Carolyn Moore, Albert Perez, Everett Seymore, Jack Stoffregen, Tommy Turner, and Bill Wischkaemper. Deceased LCDLA charter members are Jim Aldridge, Jim Alexander, Lane Arthur, Dan Benson, Quinn Brackett, Ralph H. Brock, Clifford Brown, Byron Chappell, Ralph Daniel, George Gilkerson, Alton Griffin, Rusty O’Shea, Travis Shelton, and Wanda Wray.

2. Max Coleman, From Mustanger to Lawyer, Part B, 170 (Carleton Printing Co., 1953).

3. State v. Jim Vance, Cause No.10, 50th District Court of Lubbock County, Texas (1891).

4. Chuck Lanehart, “The Trial of William E. Taylor,” Voice for the Defense (June 1990). Bledsoe also founded the Lubbock law firm now known as Crenshaw, Dupree & Milam.

5. Jerry McCarty, “DA Punches Attorney in Court Row,” Lubbock Avalanche-Journal, January 28, 1961, at A1.

6. Broadus Spivey and Jesse Sublett, Broke Not Broken (Texas Tech University Press, 2014).

7. Clifford Brown was a charter member of TCDLA, later served as TCDLA president, and was enshrined in the TCDLA Hall of Fame. Other elders of the Lubbock criminal defense bar in 1980 included former Lubbock County CDA Alton Griffin, past president of the State Bar of Texas Travis Shelton, and past president of TCDLA George Gilkerson. Shelton and Gilkerson—both former Lubbock County DAs—were charter members of TCDLA, and Shelton was later enshrined in the TCDLA Hall of Fame. Byron “Lawyer” Chappell, eldest of LCDLA’s charter members, was in 1989 the first inductee into the LCDLA Hall of Fame, and was awarded the Lubbock County Bar Association’s Distinguished Senior Lawyer Award in 2000.

8. Original Bylaws of the Lubbock Criminal Defense Lawyers Association, Article II, approved February 21, 1980.

9. News Release Lubbock Criminal Defense Lawyers Association, Voice for the Defense, March–April 1980, at 13.

10. Montford said in a 2014 telephone interview the Lubbock criminal defense bar was the best he encountered as a lawyer. He served one term as CDA, then became a popular and effective State Senator, later was appointed the first Chancellor of Texas Tech, and then became President of AT&T. Now a business consultant in San Antonio, Montford fondly remembers his years as CDA in Lubbock, and most of the defense lawyers from that era respected him as prosecutor. “I remember Lawyer Chappell coming to see me when I took office,” Montford recalled with a chuckle. “He said I’d make a good DA if I learned the difference between crime and sin.”

11. Mike Brown remembers LCDLA’s early CLE efforts: “Continuing legal education was sparse for criminal lawyers on the South Plains in the 1980s. The first seminar developed from necessity. I organized the initial seminar, with the able help of Ralph H. Brock and Mark Hall, among others. The budget was modest, and the speakers donated their time and efforts. The goal was educational, not financial. The custom continues. Ambitious vision prevailed over perceived limitations, and LCDLA staged a successful program that exceeded expectations. The seminar began to draw lawyers from beyond the Caprock. Soon, Lubbock lawyers were invited to speak statewide. The Prairie Dog seminar remains one of LCDLA’s most ambitious, significant, and successful projects.”

12. Chuck Lanehart, “LCDLA Celebrates 25th Birthday in Grand Fashion,” Lubbock Law Notes, February 2005, at 11.

13. Chuck Lanehart, “Defense Lawyers vs. Prosecutors Softball Doubleheader a Big Hit,” Lubbock Law Notes, August 2005, at 20.

14. Austin lawyer Keith Hampton and I are both avid history buffs. Separately, we had studied old manuscripts describing the colorful South Plains and Panhandle lawyers of the late 1800s. The lawyers often had no formal offices. Instead, they followed the district judge on his circuit from town to town, carrying the tools of their trade—statutes, pen, and ink—in saddlebags. These tough, transient, mostly self-taught advocates became known as “prairie dog lawyers.” (The black-tailed prairie dog, a type of ground squirrel native to the Lubbock area, resides in colonies of burrows known as “towns,” but often relocates when conditions become difficult.) When Keith and I got together in Lubbock in 2005, we compared notes about our history research on prairie dog lawyers, and somehow the idea was hatched to rename the LCDLA annual conference the Prairie Dog Lawyers Advanced Criminal Law Seminar. Meanwhile, LCDLA had already adopted the prairie dog as its mascot and symbol. During Mike Brown’s term as LCDLA president (1990), he asked renowned Lubbock cartoonist Dirk West to create a new logo for LCDLA, and the now-famous LCDLA prairie dog logo was born.

15. Since 2009, LCDLA has been privileged to utilize the new Mark and Becky Lanier Professional Development Center at TTUSL for its annual seminar. The 34,000-square-foot facility includes a lecture hall with a capacity of about 300 and a teaching courtroom featuring the latest in trial technology.

16. The Brendan Murray Criminal Defense Scholarship was created following his tragic death on September 14, 2006. Brendan, son of longtime LCDLA and TCDLA member Brian Murray and wife Lynne, was a 22-year-old Texas Tech law student and TCDLA employee. He was a zealous advocate for the poor and oppressed throughout his life. The scholarship benefits worthy law students attracted to defending God’s children who have not yet attained perfection from those who have. To date, the fund has reached more than $90,000 in donations.

17. State v. Billy Wayne Alexander, No. 21744 (137th Dist. Ct. Tex., 1980).

18. Pat Graves, “City Lawyers Respond to Minister’s Charges,” Lubbock Avalanche-Journal, February 27, 1981, at A12.

19. Pat Graves, “Lubbock Lawyers Condemn Minister’s Remarks,” Lubbock Avalanche-Journal, February 28, 1981, at A12.

20. Vernon Ray Gilmore and Ricky Laverne Smith v. Lubbock County et. al., No. CA-5-81-130, (D. N. Dist. Tex., Lubbock Div., 1981).

21. Mike Brown remembers the back story: “After initial pleadings, U.S. District Judge Hal Woodward called a chambers conference with me, Hurley, and a representative of the CDA, Yvonne Faulks. The judge opined that his order would garner only grudging compliance from Sheriff Sonny Keesee, and foot-dragging in the future. Judge Woodward explained to Faulks that LCDLA would likely get the order they requested. He encouraged discussion and settlement, which promptly ensued. LCDLA got its way.”

22. State v. Damon Richardson, No. 87-406,922 (72nd Dist. Ct. Tex. 1987).

23. Stearnes v. Clinton, 780 S.W.2d 216 (Tex. Crim. App. 1989).

24. State vs. Michael Stearnes, Cause No. 87-406,927 (99th Dist. Ct. Tex. 1987). Brock, Botsford, McLarty, and I were each honored with the TCDLA President’s Commendation “in recognition of outstanding service on behalf of the citizen accused that exemplifies the highest standards and goals of this association and promotes justice through law.”

25. Jason Womack, “Richardson Deal Could Bring Parole,” Lubbock Avalanche-Journal, August 3, 2005, at A1.

26. Joe Gulick, “Indictments Hit Police Sergeant,” Lubbock Avalanche-Journal, October 22, 1992, at A1.

27. Farmer, et al. v. Sherrod, et al., No. 2:93-cv-00017-J (D. N. Dist. Tex., Amarillo Div., 1993). See also .

28. State v. Ralph Rodney Erdmann, No. 92-415,716 (364th Dist. Ct., Tex. 1992).

29. Rana Sharkaway, “Crime Victims’ Memorial Comes Under Fire,” Lubbock Avalanche-Journal, June 27, 2005, at A1.

30. John Reynolds, “Monumental Disagreement Between Attorneys, County Unresolved,” Lubbock Avalanche-Journal, July 22, 2005, at A2.

31. John Reynolds, “County Sacks Monument, Keeps Garden,” Lubbock Avalanche-Journal, July 22, 2005, at A1.

32. Jill Stangl assisted in writing this chapter of LCDLA’s history.

33. Chuck Lanehart, “Lubbock Lawyers Volunteer to Oppose ‘War Against College Kids,’” Lubbock Law Notes, November 2007, at 1.

34. Mary Alice Robbins, “Tech Students Fight Party Patrol Citations with Pro Bono Help,” Texas Lawyer, November 5, 2007, at 1.

35. Id.

36. Ben Webb assisted in writing this chapter of LCDLA’s history.

37. Rod Hobson, a former president of LCDLA, had previously participated in the Range Wars, supra, involving Dr. Ralph Erdmann.

38. LCDLA members who assisted Webb included Ralph H. Brock (who previously participated in Stearnes v. Clinton, supra), Danny Hurley (who previously participated in the Range Wars, supra), Everett Seymore, Ted Hogan, David Guinn, and me.

39. Logan G. Carver, “Attorney Who Refused to Testify Against Client Cleared of Contempt,” Lubbock Avalanche-Journal, September 30, 2009, at A1.

40. Chuck Lanehart, “Commissioners to Consider Courthouse Security Bypass Program,” Lubbock Law Notes, May 2014, at 1.

41. Id.

42. Id.

43. Philip Wischkaemper assisted in writing this chapter of LCDLA’s history.

44. The LSNDO was the brainchild of Jim Bethke, Executive Director of the Task Force on Indigent Defense (now the Indigent Defense Commission), who approached Lubbock County with the idea in 2006.

45. LCDLA member Roger Key is the current chair of the SBOT Board of Directors. Roger practices business and transactional law, not criminal law, but joined the defense lawyers group “because they are so much fun.”

46. Chuck Lanehart, “Commissioners to Consider Courthouse Security Bypass Program,” Lubbock Law Notes, May 2014, at 1.

Managing Attorney Case and Work Loads to Improve Indigent Defense

Most would agree that Texas’ indigent defense delivery system has improved markedly since the passage of the Texas Fair Defense Act in 2001. Many more defendants are benefiting from the early appointment of counsel, fee schedules have been increased in many places, and counties are implementing a variety of new strategies to more effectively provide these services. In spite of these advances, concerns remain about the substantial caseloads some attorneys take on and their effect on the quality of legal representation provided. Even the best attorney will be unable to provide competent representation to each client when trying to represent too many people.

The 83rd Texas Legislature sought to address these concerns by increasing our overall understanding of the caseloads being handled by defense attorneys. HB 1318 requires new reports from both attorneys and counties regarding the caseloads of attorneys who accept public appointments. The reporting requirements will benefit both policymakers and the bar. The information will allow policymakers to make better decisions on the best way to manage their appointment processes. It should also benefit the bar by raising awareness of the work attorneys do and help identify situations in which low pay may be creating pressures on some defense attorneys to accept more cases than they can reasonably handle. It may also help pinpoint places where the wheel system may not be working as designed and further investigation may be warranted to ensure that appointments are being made in a fair, neutral, and nondiscriminatory manner.

Charged with implementing the new requirements, the Texas Indigent Defense Commission’s staff met with a variety of stakeholders, including criminal defense attorneys, to do so in a seamless manner while providing meaningful information to policymakers.

New Attorney Reporting

HB 1318 included the following provision in Article 26.04, Code of Criminal Procedure:

An attorney appointed under this article shall: . . . not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney’s practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code.

Beginning October 15, 2014, all attorneys handling indigent defense cases are required to annually report for the preceding fiscal year (October 1st to September 30th) the percentage of the attorney’s practice time that was dedicated to appointed 1) criminal cases (trial and appeals) and 2) juvenile work (trial and appeals) in each county. This report should not include work on other types of appointed work such as CPS or guardianship cases, nor should it include practice time devoted to federal criminal appointments—only indigent criminal work in state and county courts.

With significant input from TCDLA leadership, the Commission adopted a form and reporting instructions.1 The Commission is working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to create a web-based attorney reporting portal. This will enable attorneys to report their work in all counties in which they did appointed work at the same time. This portal was developed to make the reporting as simple as possible for the individual attorneys. The report will go directly to the Commission but will be accessible by the counties. Although some counties may permit the use of the paper form, the attorney portal will provide a streamlined way for attorneys to report and for the information to be collected.

Attorneys are not required to use a particular methodology to complete the practice time report. You may do so by using time records, if you keep such records. Others may use a case-counting methodology or some other method. All you will need to do is indicate which method(s) when submitting the information on the attorney portal or paper form.

The Commission, working with TCDLA, also developed a worksheet that attorneys may use to help calculate the practice time percentages. The worksheet is simply a tool to help you allocate your practice time among various case types and counties. Use of the worksheet is strictly voluntary and will not be submitted to the county or Commission.2

Penalties for failing to submit a required practice time report by the October 15th due date are not contained in the legislation, although the judges handling criminal or juvenile cases in each county may prescribe one. Many judges have already chosen to amend their indigent defense plans to provide for an attorney’s removal from the list of attorneys eligible to receive future court appointments until they complete the report. This procedure is analogous to the current requirement to report your annual criminal and juvenile law CLE hours.3

New County Reporting of Attorney Caseloads

HB 1318 included the following provision in Section 79.036, Government Code:

Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure.

In addition to the attorney reporting requirements above, starting November 1, 2014, the bill requires each county to submit to the Commission annually the information provided to the county by the attorneys described above, along with information that describes for the preceding fiscal year the number of appointments made to each attorney accepting appointments in the county.

As to this new report, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (juvenile, capital murder, adult felony, adult misdemeanor, juvenile appeals, felony appeals, and misdemeanor appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. County auditors have indicated that they already collect this information as part of the attorney payment process.4

For the first time in Texas, these new reporting requirements will provide judges, legislators, the bar, and the public a clear picture of the caseloads handled by attorneys who accept public appointments. Until now, even the best local systems could only provide information on cases handled by attorneys within a single county or at most a single judicial district encompassing more than one county. These reports will provide greater transparency of the caseloads being carried across all counties. By combining the case figures from each county with the practice time information submitted by each attorney, there will be a better understanding of the resources being allocated to the representation of each indigent client.

The legislation discussed above also directed the Texas Indigent Defense Commission to conduct a weighted caseload study to determine the time required to represent indigent defendants. This study will be published by January 1, 2015, and will provide policy makers with another source of information to inform our understanding of current court appointed criminal caseloads as well as how this impacts the effective representation of the indigent client.5


1. The attorney reporting form and instructions may be viewed at the following address: (there are also links on the TCDLA website).

2. The optional attorney practice-time reporting worksheet may be viewed at the following address (or the TCDLA website):

3. You can see what the courts have done in each county by reviewing the local plan:

4. To learn more about the county reporting process, see the IDER reporting manual on pages 13–15 at this address:

5. To learn more about this research, please see the article in the October 2013 issue of the Voice for the Defense and visit the study website at

October 2014 Complete Issue – PDF Download



20 | Winning Opening Statements – By Frank Sellers
26 | A History of Accomplishment: Lubbock Criminal Defense Lawyers Association Celebrates 35 Years – By Chuck Lanehart
37 | Managing Attorney Case and Work Loads to Improve Indigent Defense – By Wesley Shackelford

9 | Executive Director’s Perspective
11 | Ethics and the Law
13 | Off the Back
15 | Federal Corner
18 | Said & Done

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

Executive Director’s Perspective: Take One for the Team – By Joseph A. Martinez


Please help us get out the word for the upcoming 10th Annual Stuart Kinard Memorial Advanced DWI Seminar to be held in San Antonio November 6–7 at the historic Menger Hotel. Our course directors will be Mark Stevens (San Antonio), Adam Kobs (San Antonio), and Michael Gross (San Antonio).

We know you have a choice in whose seminars you attend. We sincerely appreciate your supporting TCDLA by attending our TCDLA seminars. Thanks to your attendance, TCDLA is able to provide outstanding services to our members. This includes our lobbying efforts at the upcoming 84th Texas Legislative session.

Special thanks to our course directors, Natalie Roetzel (Dallas) and Nick Vilbas (Lubbock), for our Innocence Clinic for Students seminar held in Dallas in October. Thanks to their efforts we had 48 attendees. This seminar was held in conjunction with our 12th Annual Forensics Seminar.

Special thanks to E. X. Martin (Dallas), Larry Renner (Santa Fe, NM), Philip Wischkaemper (Lubbock), and Rick Wardroup (Lubbock), our course directors for the 12th Annual Forensics Seminar held in Dallas. Thanks to them and our speakers we had 108 attendees. Thanks to Paul Bieber, we also did a fire for the first time ever at the Dallas Training Facility.

Special thanks to Jeffrey Propst (Abilene) and Kelly Pace (Tyler), our course directors for the Training Your Defense Team to Win in Abilene in October. Thanks to their efforts we had 25 attendees. This is a unique training open to criminal defense attorneys who regularly represent the indigent, legal assistants, Texas judges, paralegals, social workers, investigators, mitigation specialists, and students.

Training Your Defense Team to Win will be held in the following locations. Please bring your staff:

November 14Galveston
November 18McAllen
January 16, 2015Austin
April 17, 2015Waco
April 24, 2015Longview
July 9-10, 2015South Padre Island

Are you interested in forming a local criminal defense bar?  Need help getting organized? Please contact Susan Anderson (Dallas), , Laurie Key (Lubbock), , or Carmen Roe (Houston), , Co-Chairs of the TCDLA Affiliate Committee.

Good verdicts to all.

Ethics and the Law: Just Keep on Pickin’


My cousin, Joe Hood, recently died after living his entire life in Cooke County, Texas. Cooke County was, and remains to this day, a rough area for law breakers—or outsiders, for that matter. During the Civil War, Cooke County dealt with many a Union sympathizer by the end of a hangman’s noose.

Cousin Joe, who could play everything from a banjo to a piano and in between, had a band that played on weekends in and around Cooke County. The band performed at many functions and dances. Some functions were attended by teetotalers, and others were packed with those that were “known to have a social drink on occasion.” During one of the dances with beer bottles flying, gunfire erupting, and a stabbing thrown in for good measure, a band member asked Joe, “What are we going to do?” Without missing a beat, Joe replied, “JUST KEEP ON PICKIN’.”

When you feel the burdens of being railroaded or when government lawyers or hostile judges are about to do you in, “Just keep on pickin’.” Call for help from other TCDLA members. The practice of law has changed much in the past years since TCDLA was formed, but concepts have remained the same: Educate lawyers who practice criminal law, and form relationships with those who have common goals. Word of mouth is still the best way to get clients.

Advertising and tort reform changed the way many older lawyers practiced law. Some ads border on ads run by snake-oil salesmen. In Houston, lawyers send out mail outs to all persons arrested. The ads brag about winning cases, knowing the judges and prosecutors, payment plans, and more. Some let their alligator mouth overload their hummingbird ass.

It is election time for judges, and some have gotten carried away in their comments about being tough on crime. Those that do need to read the oath they took to be a judge. If you run into a judge who you believe needs to be recused, there is an example you can use that is included online in this article, along with a Motion for a PR Bond if the situation deteriorates to the point where a lawyer is held in contempt.

Remember, being a lawyer is a profession. It is a high calling, and there are many times where you can actually make a difference, and by your hard work change the path and future of your client. Encourage clients to go to church and to get involved in positive activities. Assess up front if you have a defense, and if so, start digging. If you believe you are only dealing with punishment, then start building a foundation to explain the conduct and try to mitigate the punishment. Get releases so you can get school records and medical records. Even the worst amongst us have generally done something positive in their lives. Get your client’s life history and letters of recommendation for your client. Always tell your clients to be up front with the people writing those letters so they know the client has a criminal accusation pending. NA/AA meetings or counseling are crucial. Document, document, document your file. If your case does not end well, you can have a record to show the grievance committee or have evidence to show if a writ is filed against you. When a client turns down a plea offer, get the client’s declination in writing. If he gets 40 years rather than the 5 he was offered, you will be able to show what happened.

If you have a “Cool Hand Luke” client, get another lawyer to help you discuss the case with your client. Sometimes it takes a village to effectively communicate with a client.

Reach out for help if you need it. Call Rick Waldroup in Lubbock if you need help on a capital case, or call the hotline if you need an ethics checkup.

After a recent investigation, I discovered the number of misdemeanor defendants who pled on the first setting in Harris County. There are only a few times an accused citizen should plead on the first setting: 1) If you know there is something bad the state will find out about if you wait; and 2) if you are 100 percent sure the state can make the case. Otherwise, do not plead a case on the first setting. Do not bow to the pressure of the rocket docket judges. Remember the oath you took when you were excited and became a lawyer. It is you, not the judge, fading the heat when you are on the receiving end of a writ and/or grievance because you pled the client out with no investigation. Sitting in the defendant chair in a malpractice case or before the disciplinary committee is worse than undergoing simultaneously an IRS audit and root canal with no anesthesia.

Tools of the Profession:

  1. Motion for PR Bond;
  2. Put the hotline number in your cell phone: (512)646-2734;
  3. Keep a copy of the criminal procedure and penal code in your briefcase;
  4. Get a summary sheet from TCDLA that shows a summary of offenses and lesser included offenses and objections;
  5. Present evidence to the grand jury when it is warranted;
  6. Always get copies of complaint, information, probable cause document, search warrant, and affidavit. Many times mistakes in the documents can help win a case;

Remember: No matter how bad it may look, “Just keep on pickin’.”

Off the Back: Defense at a Premium – By Stephen Gustitis


Providing clients the highest level of customer service is a top priority. Generally, high quality service results from the time we invest in a case, and legion are the justifications for managing our caseloads accordingly. More time invested generally means better service. One caseload management approach is expressly rejecting new clients. However, I was never fond of that technique since I feared developing a reputation for saying “no.” I believed the reputation might hinder the flow of potential new clients to my door. For this reason, I settled on charging premium fees to control the size of my caseload.

May I be bold? Defense lawyers should charge premium fees for their legal services. In fact, charging premium fees may be the foundation of any successful criminal law practice. My theory—of course. But experience taught me high fees helped keep a caseload manageable, which enabled the lawyer to focus on quality rather than quantity. Premium fees also controlled the volume of low-paying business in the practice, resulting in a robust bottom line. The more satisfying profit, the more freedom we enjoyed to provide quality services at reduced rates or pro bono. In a like manner, the support staff could deliver better service when they managed fewer cases. The heart of the matter was that fewer cases handled at a premium fee resulted in more time the firm had to address specific client needs.

With this said, charging a premium fee was a privilege. It presupposed we had the professional experience to deliver what we promised. Young attorneys may need 10 years to become proficient at lawyering, before they should charge a premium fee. During those years the young lawyer accepts court appointments and handles the very difficult, complicated cases. They’re becoming good cross-examiners, good negotiators, and smart lawyers. In other words, they are establishing the necessary foundation before earning the privilege of setting a premium fee for criminal defense services.

I understand success is in the eye of the beholder. It may be defined in many ways. But I propose a successful criminal law practice is the marriage of professional excellence and business acumen. First, our clients deserve the highest quality legal services we can provide. It is our ethical duty. But second, our practice should create a satisfying business profit. We have bills to pay, families to support, retirement accounts to fund. Not to mention it’s fun to make a good living at what we do. Specifically, the business aspect of our practice is the confluence of professional competence, marketing, selling, and customer service. All aspects take study, work, and practice. Each is a worthy column topic. But setting a premium fee may be at the top of the successful business pyramid, and lawyers shouldn’t be afraid to ask for a premium fee. Of course, higher fees may deter the price-shopping prospects. But price shoppers must also know they often get what they pay for. Setting fees will always remain a risk for the committed defense lawyer. But running a successful business always involves risk. Without risk there is no reward.

Lawyers don’t seem to discuss their fees much. As it happens, I don’t remember ever talking with a fellow defense lawyer about the price they charged for legal services. But maybe I should. Maybe we should start sharing ideas about how fee setting can help us control our caseloads and affect the quality of service we can provide clients. The business success of our professional law practice is important. And premium fee setting can be the starting place for better client service and a more satisfying bottom line.

 “Off the Back” is an expression in competitive road cycling describing a rider dropped by the lead group who has lost the energy saving benefit of riding in the group’s slipstream. Once off the back the rider struggles alone in the wind to catch up. The life of a criminal defense lawyer shares many of the characteristics of a bicycle rider struggling alone, in the wind, and “Off the Back.” This column is for them.

Federal Corner: Beware of the “Butner Study” Redux – By F. R. Buck Files Jr.


On the front page of the New York Times on September 2, 2014, was an article by Adam Liptak entitled “Seeking Facts, Justices Settle for What Briefs Tell Them.” From this article we learned that:

The Supreme Court received more than 80 friend-of-the-court briefs in the Hobby Lobby case. Most of these filings, also called amicus briefs, were dull and repetitive recitations of familiar legal arguments.

        Others stood out. They presented fresh, factual information that put the case in a broader context.

        The justices are hungry for such data. Their opinions are increasingly studded with citations of facts they learned from amicus briefs.

        But this is a perilous trend, said Allison Orr Larsen, a law professor at the College of William and Mary.

        “The court is inundated with 11th-hour, untested, advocacy-motivated claims of factual expertise,” she wrote in an article to be published in The Virginia Law Review.

        Some of the factual assertions in recent amicus briefs would not pass muster in a high school research paper. But that has not stopped the Supreme Court from relying on them. Recent opinions have cited “facts” from amicus briefs that were backed up by blog posts, emails, or nothing at all.

        Some amicus briefs are careful and valuable, of course, citing peer-reviewed studies and noting contrary evidence. Others cite more questionable materials.

        Some “studies” presented in amicus briefs were paid for or conducted by the group that submitted the brief and published only on the Internet. Some studies seem to have been created for the purpose of influencing the Supreme Court.

        Yet the justices are quite receptive to this dodgy data. Over the five terms from 2008 to 2013, the court’s opinions cited factual assertions from amicus briefs 124 times, Professor Larsen found.


I was reminded of this article when I read the opinion of United States District Judge James O. Browning of the United States District Court of New Mexico in United States v. Crisman, ___ F.3d. ___, 2014 WL 4104415 (D. New Mexico).

Richard D. Crisman had entered a plea of guilty to possessing child pornography. The problem for Judge Browning was what the appropriate punishment should be—and the Government had an answer. They had a study that indicated that only 15 percent of child pornography offenders had not committed any hands-on offense, and they argued to Judge Browning that Crisman should be sentenced to 97 months confinement and a lifetime of supervised release.

Judge Browning’s opinion contains the following:

[The Issue before the Court]

The primary issue is whether, and how, the Court should consider the findings in Michael L. Bourke & Andres E. Hernandez, The “Butner Study” Redux: A Report of the Incidence of Hands-on Child Victimization by Child Pornography Offenders, 24 J. Fam. Violence 183 (2009)(“Butner Study Redux”), in determining an appropriate sentence for Defendant Richard D. Crisman.

[It Would Have Been Difficult for Any Judge to Be Sympathetic to the Defendant]

According to the NCMEC, Crisman had 1,884 known child pornography images from approximately 100 different series and nine known child pornography videos from five different series. See PSR ¶ 34, at 15.


“He indicated he would masturbate two to three times a day while viewing the pictures and at times would masturbate five to six times daily.” PSR ¶ 26, at 9. Crisman also told officers about a specific fantasy that he had about a five-year-old boy who lived next door to him: he wanted to
“kiss[ ] and lick [ ] everything, including the penis.” PSR ¶ 27, at 10 (quotation unattributed). Further, Crisman admitted to stealing “approximately 50 pairs of soiled underwear from various children in his neighborhood and from the children of his friends,” which he would place on his face while masturbating. PSR ¶ 32, at 14.


[The Government’s Position]

The United States argues that “[s]ignificant empirical data provides support for concluding that those who distribute, receive, and posses[s] child pornography pose a significant danger to our community,” pointing specifically to the Butner Study Redux as demonstrating that “offenders involved in child pornography-related conduct are often unknown hands-on offenders.’


[The Butner Study Redux]

One study in particular, published in 2009—the Butner Study Redux—offers scientific justification for a claim that convicted child pornography offenders are likely guilty of additional crimes against children. Michael Bourke and Andres Hernandez conducted research on 155 child pornography offenders treated at the Federal Correctional In­sti­tution (“FCI”) in Butner, North Carolina. Bourke and Hernandez concluded that the vast majority of convicted child pornography offenders—eighty-five percent in their study—had committed at least one hands-on sexual offense. Butner Study Redux at 187–88.


[A History of the First Butner Study]

In 2000, Hernandez, the director of the Sex Offender Treat­ment Program (“SOTP”) at FCI Butner, presented preliminary findings before the annual conference for the Association for the Treatment of Sexual Abusers (“ATSA”) in San Diego, California. Andres E. Hernandez, Self-Reported Contact Sexual Offenses by Participants in the Federal Bureau of Prisons’ Sex Offender Treatment Program: Implications for Internet Sex Offenders (Nov.2000)(unpublished manuscript), available at http://–Reported–Contact–Sexual–Offenses Hernandez–et–al–2000.pdf (“First Butner Study”). The preliminary findings suggested a significantly higher rate of hands-on offenses amongst the population of child pornography offenders than had been known at the time of sentencing. First Butner Study at 6. The study involved . . . sixty-two people in the “Child Pornographer/Traveler” group, whose crimes of conviction “involve[d] the production, distribution, receipt, and possession of child pornography,” or “involve[d] luring a child and traveling across state lines to sexually abuse a child . . .”


[The Study’s Conclusions]

Hernandez found that prisoners in the Child Porn/Traveler group identified fifty-five contact sex crimes in their PSRs, but, following their treatment, “these offenders admitted to an additional 1,379 contact sexual crimes for which they were never detected by or reported to the criminal justice system.” This difference represents a significant increase in the number of crimes that known child molesters and those with no previous history of hands-on offending committed.


[The Beginning of the Butner Study Redux]

Given the striking nature of these initial findings, Hernandez continued recording the incidents of hands-on offenses in the Butner SOTP. See Hernandez Statement at 4. He enlisted the assistance of Michael Bourke, the Chief Psychologist for the United States Marshals Service. See Butner Study Redux at 183. Together, Hernandez and Bourke interviewed 155 offenders undergoing treatment at Butner between 2002 and 2005. See Butner Study Redux at 185.


[Judge Browning’s Criticism of the First Butner Study]

The distinction between the First Butner Study and the Butner Study Redux is important, as Hernandez’ initial research lacks the specificity, clarity, and reliability of the later research. The remainder of this Memorandum Opinion and Order will consider only the published article—the But­ner Study Redux—and the findings contained therein.

[The Butner Study Redux]

Bourke and Hernandez conducted their research by interviewing child pornography offenders that chose to participate in an optional treatment program, SOTP, between 2002 and 2005. See Butner Study Redux at 186. Each SOTP participant worked with his clinician over the course of eighteen months. See Butner Study Redux at 185. They attended group and individual therapy sessions as well as unstructured “therapeutic activities” for fifteen hours a week. Butner Study Redux at 185. In addition, offenders spent sixty weeks attending a psychoeducational series in which they learn about coping mechanisms and managing their criminality after release. See Butner Study Redux at 185. They were also subjected to psychological testing.


The remaining 155 participants comprise the entire research sample relied upon in the published article. See Butner Study Redux at 186. Researchers studied two separate issues—“Contact Sexual Criminality” and “Crossover Behavior.”


[The Butner Study Redux’s Conclusion]

Bourke and Hernandez used the above procedure to determine how many of the 155 child pornography offenders had also molested a child. In doing so, they recorded the number of hands-on victims disclosed on the PHQ and compared that number to what was in the PSR. See Butner Study Redux at 186. At sentencing, twenty-six percent were known to have committed a hands-on offense. See Butner Study Redux at 187. At the end of treatment, eighty-five percent admitted to molesting at least one child. See Butner Study Redux at 187. The study indicated that only fifteen percent of child pornography offenders had not committed any hands-on offense.

[Judge Browning’s Conclusions]

Although the Butner Study Redux indicates that many child pornography “lookers” are also “touchers,” the Court does not think it is appropriate to enhance Crisman’s sentence when there is no evidence that Crisman has molested children. The Court also will not use the Butner Study Redux’s findings to conclude that Crisman poses a risk to the community, because the Court thinks it should base its finding of Crisman’s future risk of harm on evidence in his case and not on a study in which he was not involved. The Court finds that the Butner Study Redux’s findings are, however, persuasive for the following purpose: the Court will not vary from the sentencing guidelines calculation based on a Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), disagreement with the guidelines, because, although the guidelines may punish child pornographers harshly, the Butner Study Redux’s findings that many “lookers” are also “touchers” are disturbing and, in part, justify the United States Sentencing Commission’s, and ultimately Congress’, decision to set harsh punishments for child pornographers. The Butner Study Redux may support what most parents, and the public at large, intuitively think: men who frequently view child pornography might touch children inappropriately, and such men should not be around their children. Congress and the Commission’s sentences reflect these fears, and the Court should be reluctant to set aside these harsh sentences on Kimbrough v. United States grounds. The Court will not do so here. The Court will sentence Crisman to ninety-seven months of imprisonment and twenty-five years of supervised release.

My Thoughts

  • If you are confronted with a Butner Study Redux issue, you have to read Judge Browning’s entire opinion. Downloaded, it is 66 printed pages and contains the following:
    • A History of the Child Pornography Guidelines;
    • Research Regarding the Butner Study Redux (Including an Overview of the Research);
    • A Judicial History of the Cases in which the Butner Study Redux was Cited;
    • Criticisms of the Butner Study Redux (Including Methodology, Author Bias, Sample Size and Representativeness, Verifying the Results and Generalizing the Butner Study Redux’s Findings);
    • The Sentencing Commission’s 2012 Report to Congress; and,
    • An Analysis of the Case before the Court.
  • What the Government has done in Crisman is precisely what the defense bar has been doing in seeking below the Guideline sentences in child pornography cases by citing United States v. Grober, 595 F.Supp.2d 382 (D.N.J.2008), and Troy Stabenow’s Deconstructing the Myth of the Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines.
  • If you are defending child pornography cases, you must be familiar with Crisman and Grober and Stabenow’s article.