Monthly archive

March 2015

March 2015 SDR – Voice for the Defense Vol. 44, No. 2

Voice for the Defense Volume 44, No. 2 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

No clearly established federal law required placing the restriction of a closing argument in the narrow category of structural error; preventing the defense from arguing in the alternative and forcing them to choose between legal theories did not rise to this level of error. Glebe v. Frost, 135 S. Ct. 429 (2014).

        On the witness stand, D admitted his involvement in several robberies but claimed he acted under duress. As closing arguments drew near, D’s lawyer expressed the desire to contend that (1) the State failed to prove D was an accomplice to the crimes and (2) D acted under duress. The trial judge insisted that the defense choose between these alternative arguments, explaining that state law prohibited a defendant from simultaneously contesting the elements of the crime and presenting the affirmative defense of duress. Accordingly, D’s lawyer limited his summation to duress. The jury convicted D of six counts of robbery, one count of attempted robbery, one count of burglary, and two counts of assault.

        The Washington Supreme Court sustained D’s conviction; by preventing the defense from presenting both theories during summation, the court said, the trial court violated the U.S. Constitution’s Due Process and Assistance of Counsel Clauses. But the State Supreme Court continued; this improper restriction of closing argument qualified as a trial error (a mistake reviewable for harmlessness) rather than a structural error (a mistake that requires automatic reversal). Because the jury heard three taped confessions and D’s admission of guilt on the witness stand, and because it received proper instructions on the State’s burden of proof, the State Supreme Court held that any error was harmless. D filed a habeas corpus petition. The district court dismissed the petition, and COA affirmed. The Ninth Circuit reversed and instructed the district court to grant relief.

        The U.S. Supreme Court unanimously reversed the Ninth Circuit. “Assuming for argument’s sake that the trial court violated the Constitution, it was not clearly established that its mistake ranked as structural error. Most constitutional mistakes call for reversal only if the government cannot demonstrate harmlessness. . . . Only the rare type of error—in general, one that ‘infect[s] the entire trial process’ and ‘necessarily render[s] [it] fundamentally unfair’—requires automatic reversal.”

A police officer’s reasonable mistake of law could provide the individualized reasonable suspicion that the Fourth Amendment required to justify a traffic stop. Heien v. North Carolina, 135 S. Ct. 530 (2014).

        A sheriff’s sergeant pulled over a vehicle with a broken brake light and noticed D lying under a blanket in the backseat. Sergeant spoke with the two men, felt that their stories did not match, and was concerned that D had not gotten up from the backseat. Sergeant asked to search the vehicle. D agreed, and sergeant found a bag containing 54.2 grams of cocaine.

        A grand jury indicted D for two counts of trafficking cocaine. D filed a motion to suppress the evidence; the trial court denied the motion. The North Carolina Court of Appeals reversed and held that the traffic stop was not objectively reasonable because North Carolina law only required one working brake light. The North Carolina Supreme Court reversed and held that when an officer’s mistake of the law is reasonable, it may give rise to the “reasonable suspicion” required by the Fourth Amendment; the North Carolina Supreme Court sent the case back to COA. COA found no error in the trial court’s judgment. A dissenting judge, however, stated that the North Carolina Supreme Court’s ruling created “fundamental unfairness” because it held citizens to the traditional rule that “ignorance of the law is no excuse” while allowing police to be ignorant of the law. Based on this dissent, D again appealed to the North Carolina Supreme Court and was rejected. The U.S. Supreme Court affirmed.

        Under the Fourth Amendment, reasonable suspicion could rest on a mistaken understanding of the scope of a legal pro­hi­bition. The Fourth Amendment tolerated only reasonable mistakes, and those mistakes, whether of fact or law, had to be objectively reasonable; an officer cannot gain the benefits of Fourth Amendment reasonableness through a sloppy or in­com­plete knowledge of the law. An officer’s error of law in stopping a vehicle for a violation of N.C. Gen. Stat. § 20-129(g) because one of its two brake lights was out was objectively rea­son­able, thereby justifying the stop, where the statute had not previously been construed by North Carolina’s appellate courts, and under the language of the statute, it was reasonable to conclude that the word “other” meant that the rear lamps dis­cussed in § 20-129(d) included brake lights.

D who entered a woman’s home through an unlocked door after his attempt to rob a bank was subject to an enhanced penalty under 18 U.S.C.S. § 2113(e) because he guided the woman from a hallway to a computer room where she suffered a fatal heart attack. Whitfield v. United States, 135 S. Ct. 785 (2015).

        Petitioner, fleeing a botched bank robbery, entered 79-year-old Parnell’s home and “encountered a terrified Parnell and guided her from the hallway to a computer room (which Whitfield estimates was between four and nine feet away . . .). There, Parnell suffered a fatal heart attack. Whitfield fled, and was found hiding nearby.” D was convicted of, among other things, violating 18 U.S.C. § 2113(e), which establishes enhanced penalties for anyone who “forces any person to accompany him without the consent of such person” in the course of committing or fleeing a bank robbery. On appeal, the Fourth Circuit held that the movement D required the woman to make satisfied the forced-accompaniment requirement. The Supreme Court unanimously affirmed.

        A bank robber “forces [a] person to accompany him,” for purposes of § 2113(e), when he forces that person to go somewhere with him, even if the movement occurs entirely within a single building or over a short distance. At the time the forced-accompaniment provision was enacted, just as today, to “accompany” someone meant to “go with” him. The word does not, as D argued, connote movement over a substantial distance. Accompaniment requires movement that would normally be described as from one place to another. Here, D forced Parnell to accompany him for at least several feet, from one room to another, and that surely sufficed. The severity of the penalties for a forced-accompaniment conviction—a mandatory minimum of 10 years, and a maximum of life imprisonment—does not militate against this interpretation, for the danger of a forced accompaniment does not vary depending on the distance traversed. This reading also does not make any other part of § 2113’s graduated penalty scheme superfluous.

Fifth Circuit

Where death-sentenced Texas D claimed he should have been exempt from the death penalty under Roper v. Simmons, 543 U.S. 551 (2005)(holding that the Eighth Amendment bars the death penalty for a person younger than 18), he was not entitled to a certificate of appealability to appeal district court’s denial of federal habeas relief on that claim. Tercero v. Stephens, 738 F.3d 141 (5th Cir. 2013).

        The state court’s rejection of D’s claim was an adjudication on the merits entitled to deference under the AEDPA; furthermore, the state court’s rejection of D’s Roper claim was not an unreasonable determination of the evidence presented in the state habeas proceedings, given the suspect nature of the evidence that D was under 18 at the time of his offense, and the considerable amount of contrary evidence.

District court did not abuse its discretion in giving a “deliberate ignorance” instruction as the record showed that D had a subjective awareness of a high probability of illegal conduct, and that she purposefully contrived to avoid learning of the illegal conduct. United States v. St. Junius, 739 F.3d 193 (5th Cir. 2013).

        Likewise, the district court did not plainly err in instructing the jury that the “deliberate ignorance” instruction was limited to only this D and not her co-defendants.

        (2) Where district court told the jury that it used pens with different colors of ink to note particular types of things about the trial, the Fifth Circuit rejected D’s claim that amounted to plain error warranting reversal of D’s convictions.

        (3) The Government conceded and the Fifth Circuit agreed that, as to two Ds, the district court had improperly assessed restitution in excess of the losses that stemmed from the offenses of which Ds were convicted. The Fifth Circuit vacated these two Ds’ restitution orders and remanded for resentencing.

Death-sentenced Texas D claiming ineffective assistance (based on (1) allegedly inadequate voir dire, (2) failure to call an investigator as a witness and failure to introduce hospital records at the guilt/innocence phase, and (3) failure to present mitigating evidence at the punishment phase) was not entitled to a certificate of appealability to appeal district court’s denial of habeas relief on these claims. Garza v. Stephens, 738 F.3d 669 (5th Cir. 2013).

In Clean Water Act trial, even if district court abused its discretion in excluding certain defense-requested evidence (including evidence about the lack of environmental harm caused by the allegedly violating discharges, which the court excluded as irrelevant), the error did not affect D’s substantial rights; the lack of environmental harm did not absolve D of criminal liability, which was based solely on the act of discharging untreated water. United States v. Tuma, 738 F.3d 681 (5th Cir. 2013).

         (2) District court did not abuse its discretion in denying D the right to depose a Canadian witness either pursuant to Fed. R. Crim. P. 15(a) or pursuant to the letters-rogatory provision of 28 U.S.C. § 1781(b)(2). Nor did the inability to secure this foreign witness violate D’s rights under the Compulsory Process Clause.

        (3) District court did not violate D’s confrontation rights, or abuse its discretion, in limiting D’s cross-examination of his son, a co-defendant-turned-government-witness. D was given an adequate opportunity to bring out information about son’s bias and motives for testifying against his father; for this reason, it was also not plain error to exclude the testimony of two proposed defense witnesses, as the testimony would have been essentially cumulative of impeachment evidence already before the jury.

In denying D’s motion to suppress gun seized from car search, district court erred in finding probable cause to search based on D’s statement that there was a gun in the car. United States v. Guzman, 739 F.3d 241 (5th Cir. 2014).

        If the police officer prompted that statement by a false claim of lawful authority (i.e., a statement that he was “going to search the car”), that could taint both D’s statement (thus preventing it from being used as the basis for probable cause) and the consent that D allegedly gave to a search of the car. Although the Fifth Circuit will normally affirm even in the absence of specific findings so long as any reasonable view of the evidence supports the district court’s ruling, the “any reasonable view of the evidence” rule rests on two assumptions: first, that the district court asked the right legal questions in making its ruling and, second, that it actually weighed the evidence bearing on the facts needed to answer them. Doubting the validity of both assumptions in this case, the Fifth Circuit vacated D’s conviction and sentence and remanded to the district court.

In healthcare-fraud trial, there was no reversible error in introducing evidence of civil violations of Medicare and Medicaid regulations, even without a limiting instruction. United States v. Imo, 739 F.3d 226 (5th Cir. 2014).

        This was unlike United States v. Christo, 614 F.2d 486 (5th Cir. 1980), where the civil violations were bootstrapped into criminal liability; the violations here were permissibly used for more limited purposes. Furthermore, though it would have been preferable for the district court to give the requested limiting instruction, the refusal to give such an instruction was not an abuse of discretion where the regulatory violations were not used improperly, where the jury was generally instructed not to judge Ds on conduct other than that alleged in the indictment and where the defense was free to argue that regulatory violations were not evidence of criminal guilt.

        (2) District court did not abuse its discretion in allowing prosecution to cross-examine D doctor on (a) evidence that she signed blank prescription forms while working at two pain management clinics, (b) the fact that the clinics required patients to pay cash, and (c) a letter in D’s safe from an anonymous person, which letter warned her that prescriptions bearing her name were being sold on the street. The first and third of these were probative of D’s character for truthfulness; the second was as well, although less so. Finally, any prejudice D may have incurred as the result of this evidence was reduced by the limiting instructions given by the court.

In sentencing D convicted of child-pornography offenses, district court probably erred in applying a two-level vulnerable-victim enhancement under USSG § 3A1.1(b)(1); however, any error was harmless. United States v. Ramos, 739 F.3d 250 (5th Cir. 2014).

        Under United States v. Jenkins, 712 F.3d 209 (5th Cir. 2013), the vulnerable-victim inquiry should focus on whether the factor that makes the person a vulnerable victim is incorporated in the offense guideline. Here, the only factor that made the children in the child-pornography images vulnerable as compared to other prepubescent children was the fact that some images depicted the children bound to chairs with rope; however, this was already accounted for in the sadistic-conduct enhancement of USSG § 2G2.2. Nevertheless, any error was harmless; the district court did not sentence within the erroneous range of 188 to 235 months, but rather varied downward to a 120-month sentence. Because it did not appear that the district court’s variance was arrived at by calculating downward from improperly calculated Guidelines, but rather was arrived at independently, the record showed that the district court would have imposed the same sentence even if the Guideline range had been properly calculated (as 151 to 188 months).

Child-pornography D validly waived appeal of his sen­tence where D affirmed that he had read the plea agree­ment containing the appeal-waiver provision and had understood that agreement. United States v. Higgins, 739 F.3d 733 (5th Cir. 2014).

        The plain language of the waiver (allowing only an appeal of a sentence in excess of the statutory maximum) barred D’s claim that the district court had improperly assessed D’s statutory minimum sentence as 15 years, rather than 5 years; the appeal waiver also barred D’s appellate claim that the written judgment’s recitation of the conditions of supervised release conflicted with the oral pronouncement of the supervised-release conditions. The written judgment, no less than the oral pronouncement, is also the “sentence” for purposes of appeal; therefore, an appeal regarding a potential conflict between the two sentences is an appeal of a sentence under the appeal waiver. Finding all of D’s appellate challenges barred by the appeal waiver, the Fifth Circuit dismissed his appeal.

Where Texas inmate challenged the constitutionality of the Texas statute providing that inmates must pay a $100 annual health care services fee when they receive medical treatment in the prison system (Tex. Gov’t Code § 501.063), district court did not err in granting prison director’s motion to dismiss. Morris v. Livingston, 739 F.3d 740 (5th Cir. 2014).

Noting that the circuits are split on whether the district court must instruct the jury to disregard evidence of a defendant’s pre-18 conduct when assessing guilt in a continuing crime, such as a conspiracy, but that the Fifth Circuit has not yet taken sides on that split, the Fifth Circuit held here that the court’s failure to give such an instruction did not constitute plain error given the substantial amount of evidence relating to D’s conduct after he turned 18. United States v. Harris, 740 F.3d 956 (5th Cir. 2014).

Court of Criminal Appeals

Evidence of the content from six calls over a ten-month period, combined with evidence of D’s combative conduct and verbal abuse toward complainant, was sufficient for D’s phone-harassment conviction. Wilson v. State, 448 S.W.3d 418 (Tex.Crim.App. 2014).

        D appealed her telephone-harassment conviction and claimed the evidence was legally insufficient. COA acquitted, finding that D’s calls were neither repeated nor reasonably likely to harass or annoy. CCA reversed and remanded, holding that (1) “repeated telephone communications” in Tex. Penal Code § 42.07(a)(4) does not require the communications to occur within a certain time frame in relation to one another, and (2) a facially legitimate reason for the communication does not negate per se an element of the statute. The jury could have rationally found that D, with the intent to harass, annoy, alarm, abuse, torment, or embarrass complainant, made repeated phone communications to complainant in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend her.

Trial court did not abuse its discretion in denying D’s new-trial motion on the ground that his trial counsel had a conflict of interest, despite counsel’s refusal to testify. Odelugo v. State, 443 S.W.3d 131 (Tex.Crim.App. 2014).

        After pleading guilty, on the advice of his retained trial counsel, to engaging in organized criminal activity, D filed a new-trial motion alleging a conflict of interest on counsel’s part. At the trial court’s hearing on the motion, trial counsel, accused of having misappropriated certain funds entrusted to him by his client, invoked his Fifth Amendment right to refuse to be a witness against himself. In response, D argued that
“[a]n inference can be taken from that” that counsel had misappropriated the funds. The court declined to adopt that inference and denied the motion. COA, noting that the entirety of the evidence offered by D in support of his new-trial motion was “uncontroverted due to [trial counsel]’s invocation of his Fifth Amendment right not to incriminate himself,” held that the trial court abused its discretion in denying the motion. It reversed the trial court (thereby vacating D’s conviction) and remanded for a new trial. CCA reversed and remanded.

        “[T]he trial court’s ruling . . . must be inspected from every reasonable vantage in the light most favorable to the trial court’s ruling, and found to have been deficient in each, before it may be overturned as an abuse of discretion. And in this case, there is at least one reasonable view of the record that would support the trial court’s denial of the appellant’s motion for new trial, notwithstanding the ‘uncontroverted’ nature of the appellant’s evidence. . . .” Furthermore, appellant’s right to effective, conflict-free counsel was not per se violated by counsel’s invocation of his Fifth Amendment right. “[G]iven our determination that the trial court reasonably found that trial counsel had not rendered ineffective assistance pre-conviction (that is, in the events leading up the trial court’s entry of a judgment of conviction, including the appellant’s failure to make the promised restitution payments), counsel’s conduct after that point in time (i.e., his assertion of his Fifth Amendment right) could only have affected what occurred post-conviction (i.e., at the hearing on the motion for new trial). Were we even inclined to afford the appellant any relief on the basis of trial counsel’s refusal to testify, it would be to grant him a new hearing on his motion for new trial—not summarily to grant him a new trial outright[.]”

        “Because the court of appeals sustained the appellant’s first and second issues on appeal, it did not reach the appel­lant’s ‘third and fourth issues, in which he argue[d] that the trial court erred in denying his new-trial motion on the ground that his trial counsel failed to adequately inform him of the im­migration consequences of his guilty plea.’ Accordingly, the cause is remanded to the court of appeals[.]”

D did not violate the unlawful carrying weapons statute by carrying a gun in the common area of his condominium complex because that area qualified as his own premises. Chiarini v. State, 442 S.W.3d 318 (Tex.Crim.App. 2014).

        D, a condominium owner, carried a handgun in the common area of the condo complex. The complex had 180 units, and the president of the homeowners’ association testified that D owned a 1/180th undivided interest in the common area. D was convicted of unlawfully carrying a weapon under Tex. Penal Code § 46.02. COA rendered an acquittal, which CCA af­firmed.

        D did not violate the “unlawful carrying weapons” (UCW) statute, which generally prohibits the carrying of a hand­gun but does not prohibit carrying a handgun on “the per­son’s own premises.” “We do not agree with the State that the plain language of the statute leads to absurd results, and in any event, we do not agree that extratextual factors support the State’s interpretation of § 46.02. We conclude that appellant’s undivided ownership interest in the common area of the condominium complex made the common area appellant’s ‘own premises’ under the UCW statute. Because appellant was carrying a handgun on his own premises, he did not violate § 46.02.”

Tex. Penal Code § 21.15(b)(1), which makes it a crime to photograph or electronically record an image of another person under broad circumstances, is facially unconstitutional. Ex parte Thompson, 442 S.W.3d 325 (Tex.Crim.App. 2014).

        D was charged with 26 counts under Texas Penal Code § 21.15(b)(1), which states, “A person commits an offense if the person . . . photographs or by videotape or other electronic means records . . . a visual image of another at a location that is not a bathroom or private dressing room . . . without [consent and] with intent to arouse or gratify the sexual desire of any person.” Each count of the indictment alleged that D, “with intent to arouse or gratify the sexual desire of THE DEFENDANT, did by electronic means record another . . . at a location that was not a bathroom or private dressing room.” Some of the counts contained additional information, describing “unknown female[s]” with various colors of bathing suits at “a water park.”

        D filed a pretrial habeas application, alleging that the statute on which his prosecution was based was facially unconstitutional. The trial court denied the application, and D appealed. COA held that § 21.15(b)(1) was void on its face in violation of the U.S. Constitution’s First Amendment. CCA affirmed COA.

        “It is obvious that the portion of the statute at issue is not the least restrictive means of protecting the substantial privacy interests in question. One need only look at the next subsection of the statute—§ 21.15(b)(2)—to see an example of a provision that is in fact narrowly drawn to protect substantial privacy interests—the provision that makes it a crime to ‘photograph or . . . record[] . . . a visual image of another at a location that is a bathroom or private dressing room.’. . . By its very wording negating the ‘bathroom or private dressing room’ element, the provision before us, § 21.15(b)(1), was designed as a catch-all. . . . The statutory provision at issue is extremely broad, applying to any non-consensual photograph, occurring anywhere, as long as the actor has an intent to arouse or gratify sexual de­sire. This statute could easily be applied to an entertainment reporter who takes a photograph of an attractive celebrity on a public street. But the statute operates unconstitutionally even if applied to someone who takes purely public photographs of another for personal reasons with the requisite intent. . . . [W]e must look to whether the improper reach of the statute is ‘real,’ as well as substantial. . . . And we can look to the prosecution before us as evidence of the real danger posed by the statute. The record in the present case consists solely of the indictments, but the descriptions in a number of the counts suggest that the images recorded were of people in a public place (a water park) and of areas of the person that were exposed to the public (wearing swimsuits).”

COA failed to analyze two of the four prongs that must be satisfied for the new-trial claim at issue and, therefore, failed to address every issue necessary to the disposition of the appeal. Carsner v. State, 444 S.W.3d 1 (Tex.Crim.App. 2014).

        D was convicted of capital murder and sentenced to life in prison without the possibility of parole. COA held that she was entitled to a new trial on the basis of newly discovered evi­dence. CCA concluded that COA neglected to analyze two prongs of the applicable four-pronged test and to address the State’s arguments regarding those prongs; the State argued in its brief for COA that those two prongs had not been met. CCA vacated COA’s decision and remanded to that court.

CCA remanded for COA to address whether D was harmed by any error in the jury charge; the charge allowed the jury to convict only if D “changed his address for more than seven days and intentionally or knowingly failed to report in person” to the police department to register the address, rather than the broader manner and means of conviction authorized by the registration statute. Thomas v. State, 444 S.W.3d 4 (Tex.Crim.App. 2014).

        “There was sufficient evidence to sustain Appellant’s conviction for failure to report a change in his address under Article 62.055(a) of the Texas Code of Criminal Procedure as alleged in the indictment. However, we remand this case to the court of appeals to decide whether Appellant was harmed by any error in the jury charge.”

A court may consider sua sponte whether laches should bar an applicant’s claim; CCA remanded D’s habeas application to give D an opportunity to explain his ten-year delay in filing the claim. Ex parte Smith, 444 S.W.3d 661 (Tex.Crim.App. 2014).

        Although the State did not plead laches in its answer to D’s application, CCA held that a court may consider sua sponte whether laches should bar an applicant’s claim. CCA further held that the current record supports a sua sponte laches inquiry. D’s application was remanded to the habeas court to give D an opportunity to explain his delay and for the entry of findings of fact and conclusions of law.

Habeas relief denied based on D’s unreasonable and unjustified delay in filing the application and the State’s assertion that it was prejudiced as a result. Ex parte Perez, 445 S.W.3d 719 (Tex.Crim.App. 2014).

        In his post-conviction habeas application, D raised claims of ineffective assistance of appellate counsel and sought permission to file an out-of-time petition for discretionary review to appeal his 1991 murder conviction. After D filed this 2011 application, and after an initial remand to the trial court for evidentiary development of D’s claims, CCA issued an opinion in which it revised its approach to laches as that doctrine applies to a long-delayed application for a post-conviction habeas writ. See Ex parte Perez, 398 S.W.3d 206 (Tex.Crim.App. 2013) (adopting Texas common-law doctrine of laches as proper standard in post-conviction writ proceedings). CCA then remanded to the trial court a second time for consideration of D’s claims in light of this revised approach. The trial court recommended relief be denied. CCA agreed.

        “[A]pplicant’s delay is unreasonable and unjustified in light of his failure to diligently assert his rights within an appropriate time period once he realized that he had been deprived of his right to seek discretionary review. We further agree with the trial court’s conclusion that the State has been prejudiced as a result of the delay in light of the faded memories of witnesses and the lack of available evidence, both of which have compromised the reliability of any future trial proceedings. See Perez, 398 S.W.3d at 219 (stating that laches should apply as bar to relief ‘when an applicant’s unreasonable delay has prejudiced the State, thereby rendering consideration of his claim inequitable’). The trial court also took into account the State’s and society’s interest in the finality of this now twenty-three-year-old conviction as a relevant factor, and we agree. . . . Although applicant has attempted to justify his delay by claiming that he was unaware of the proper procedural vehicles by which to further challenge his conviction in this Court, we find that those justifications are inadequate to warrant a grant of equitable relief in light of the excessive delay and applicant’s failure to take any meaningful action to assert his rights during the past decade and a half. Agreeing with the trial court’s assessment that there are no other equitable considerations that weigh in favor of granting relief, we hold that the application is thus barred by the equitable doctrine of laches.”

The balance of the warrant affidavit failed to provide probable cause; CCA remanded for COA to address the good-faith issue. McClintock v. State, 444 S.W.3d 15 (Tex.Crim.App. 2014).

        Having concluded that a Fourth Amendment violation occurred, COA held that the trial court should have granted appellant’s motion to suppress. The State petitioned to CCA that COA should not have reversed appellant’s conviction without first deciding whether the good-faith exception to the exclusionary rule applied. CCA granted the State’s petition to examine whether COA erred in that respect and also to determine whether COA erred in one of the questions it did decide—namely, whether after excluding (what it found to be) illegally obtained information from the search-warrant affidavit, the remaining information still served to supply probable cause to search. Concluding that COA did not err to hold that the balance of the warrant affidavit failed to provide probable cause, CCA vacated COA’s judgment and remanded for that court to address the good-faith issue in the first instance. The motion to suppress should not have been granted without first considering whether the good-faith exception to the exclusionary rule ought to apply.

D could not claim for the first time on appeal that the restitution was for items that she was not charged with stealing; she accepted the restitution requirement as a condition of probation by failing to object. Gutierrez-Rodriguez v. State, 444 S.W.3d 21 (Tex.Crim.App. 2014).

        During two vehicle burglaries, a number of items were stolen. D was charged with misdemeanor theft for stealing two of these items. After she was convicted, the trial judge placed her on probation and, as a condition of probation, imposed restitution for some of the missing items that D had not been charged with stealing. Evidence in the record showed the value of these items. Although the issue of restitution and the basis for imposing it were thoroughly discussed at trial, D raised no objection to the restitution requirement. Relying on Speth v. State, 6 S.W.3d 530 (Tex.Crim.App. 1999), CCA held that she could not claim for the first time on appeal that the restitution was for items she was not charged with stealing because, in accordance with Speth, she accepted the restitution requirement as a condition of probation by failing to object.

The State was permitted to bring its argument that the amended right-to-appeal certification was inaccurate for the first time on appeal, and the evidence showed that D did waive his right to appeal. Marsh v. State, 444 S.W.3d 654 (Tex.Crim.App. 2014).

        After D’s pretrial motion to suppress was denied, he pled nolo contendere. The written plea agreement included a waiver of appeal, and D asserted that he understood this when questioned by the trial judge. The judge then sentenced D as agreed and entered a certification that stated D had no right of appeal. One month later, D filed a motion to amend the certification to reflect that he did have a right to appeal, which COA granted, ordering the trial court to correct the certification. With the amended certification, D appealed the denial of his motion to suppress. COA affirmed the denial, but also asserted that the State had not preserved its argument that the amended certification was defective, and concluded that the evidence did not support the State’s argument that D had waived his right to appeal.

        CCA held that Tex. R. App. P. 25.2(f) did not require the State to preserve its argument that D waived his right to appeal; COA failed to acknowledge that this rule’s language plainly bears no mandate that the State raise a complaint about an amended certification as a prerequisite to arguing such issue on appeal. “Because the State was permitted to bring its argument that the amended certification was inaccurate for the first time on appeal and the evidence shows that Appellant did, in fact, waive his right to appeal the pretrial motion to suppress, we vacate the court of appeals’ decision. Further, because Appellant had validly waived his right to appeal, the court of appeals never acquired jurisdiction. Therefore, we order the court of appeals to withdraw its opinion and dismiss the appeal.”

The evidence was insufficient to support D’s convictions for money laundering and conspiracy to commit money laundering; what the State proved did not constitute either alleged offense. Delay v. State, 443 S.W.3d 909 (Tex.Crim.App. 2014).

        D was convicted of (1) money laundering funds of an aggregate value of $190,000, a first-degree felony at the time, and (2) conspiracy to commit money laundering of the same aggregate amount, then a second-degree felony. COA reversed both convictions and rendered acquittals, determining that the evidence was legally insufficient. CCA affirmed COA.

        “To be convicted of money laundering, the accused must be shown to have ‘knowingly . . . conduct[ed], supervise[d], or facilitate[d] a transaction involving the proceeds of criminal activity[,]’ and the crime that generated the proceeds must generally rise to the level of a felony. The appellant was convicted of having facilitated and conspired to facilitate the making of campaign contributions to certain Texas candidates with funds that were tainted because they were generated under cir­cumstances that constituted a felony-grade violation of the Texas Election Code. The appellant has steadfastly insisted, both at trial and on appeal, that the funds were not tainted, for purposes of either money laundering or conspiracy to commit the same, because as a matter of law, the circumstances under which the funds were generated did not violate any felony provision of the Election Code.

        “[S]ometimes appellate review of legal sufficiency involves simply construing the reach of the applicable penal provision in order to decide whether the evidence, even when viewed in the light most favorable to conviction, actually establishes a violation of the law. . . . ‘If the evidence establishes precisely what the State has alleged, but the acts that the State has alleged do not constitute a criminal offense under the totality of circumstances, then that evidence, as a matter of law, cannot support a conviction.’ We agree with the court of appeals’ ultimate conclusion that, as a matter of law, what the State has proven in this case does not constitute either of the alleged criminal offenses.”

Court of Appeals

In a trial for official oppression, Tex. Penal Code § 39.03(a)(1), there was sufficient evidence to reject a claim that police officer D’s use of force was necessary and to find that he knew his use of force was unlawful because a videotape of the arrest showed that after the victim was struck by a police car and fell to the ground, officers encircled him, and D kneed him four times as at least five other officers held, kicked, and stomped on him. Ryser v. State, No. 01-13-00634-CR (Tex.App.—Houston [1st Dist] Nov 25, 2014).

        “Houston Police Department Officer Drew Ryser’s use of force while arresting a burglary suspect, C. Holley, led to a police department internal investigation, termination of Ryser’s employment, and criminal charges against him. A jury convicted Ryser of the Class A misdemeanor offense of official oppression. . . . We affirm. . . . When viewing the evidence in the light most favorable to the verdict—including the arrest videotape—we conclude that there was legally sufficient evidence from which the jury could have concluded that Ryser intended to knee and strike Holley, and that he knew he was using more force than was immediately necessary to effectuate the arrest, i.e., that he knew his mistreatment of Holley was unlawful.”

        Furthermore, it was proper to instruct the jury on the victim’s right to self-defense. And, because the videotape of the beating was admitted at trial, the earlier publication of the video was not, by itself, so prejudicial and inflammatory that a change in venue was required. Finally, no harm resulted when a juror looked up and shared the dictionary definition of “mistreatment” regarding § 39.03(a)(1) (providing that a public servant acting under color of his office or employment commits an offense if he “intentionally subject another to mistreatment . . . that he knows is unlawful”).

The evidence was insufficient to support D’s conviction of tampering with physical evidence under Tex. Penal Code § 37.09(a)(1) because the State alleged only one specific means of tampering; evidence that D took the firearm from the scene on the night of the shooting before police were aware that an offense had been committed did not show that he removed the firearm from the scene at a time when he knew an investigation was pending or in progress. Graves v. State, No. 06-13-00233-CR (Tex.App.—Texarkana Dec 11, 2014).

Jury charge error egregiously harmed D because D was indicted for failing to comply with sex-offender registration, but the jury was charged with the law pertaining to the commission of that offense by a manner and means not alleged in the indictment. Thomas v. State, No. 06-13-00046-CR (Tex.App.—Texarkana Dec 30, 2014).

        D appealed his conviction of failure to comply with sex-offender registration requirements. In 2013, this court reversed the trial court. CCA reversed that judgment, holding that the evidence was legally sufficient to support D’s conviction. In this opinion on remand, COA was called on to consider whether D was harmed by any error in the jury charge. Finding that error in the charge did egregiously harm D, COA reversed the trial court and remanded for a new trial.

        The jury charge said that a person commits “Failure to Comply with Sex Offender’s Registration Requirements,” under Tex. Code Crim. Proc. ch. 62, namely, if a person required to register changes address and fails to report in person to the local law enforcement authority, and provide the authority with proof of identity and proof of residence, where the person has resided for more than seven days. This was an incorrect statement of the law as applied to this case. The jury charge, unlike the indictment, did not include the failure to comply with registration requirements by failing to advise the police de­partment of the anticipated move date and new address at least seven days before the move. At trial, D defended against the offense as set out in the jury charge (failure to report after moving). He testified that he did not change his registered address because he did not actually move from his registered address. Although D admitted that he told police that he lived at a different address, he explained that this misinformation was provided in an attempt to protect his family from eviction. Furthermore, the State’s arguments and evidence at trial exacerbated the jury-charge error.

Beyond a Reasonable Doubt: The Undefinition

We were trying to pick a jury. The client was charged with continuous sexual abuse of a young child. The judge was good enough to give each side an hour and a half for voir dire. The prosecutor started her voir dire by telling the jurors how smart she was and that her favorite police show was NCIS. When discussing the State’s burden of proof, she told the jury that the State did not have to prove its case 100%. I objected that the prosecutor was trying to dilute the State’s burden of proof. My objection was overruled. She continued this line of discussion by asking the jurors if they would require the State to prove its case 100%. I continued to object and continued to be overruled. I asked the judge for a running objection to the explanation and discussion of 100% proof. That request was denied, so I continued to object until the subject was exhausted and several jurors had committed to the State that they would not require the State to prove its case 100%.

The State continued with a normal voir dire for the State in these kinds of cases, including a discussion of the one witness rule. The prosecutor correctly asked the jurors whether they could convict a defendant upon the testimony of one witness, if the juror believed that witness beyond a reasonable doubt. The prosecutor’s explanation sounded right, but did not feel right. I made an objection that was overruled. The State found several jurors who stated they could not convict on the testimony of one witness even if they believed the witness beyond a reasonable doubt. By the time the State concluded its voir dire, it appeared that so many of the prospective jurors had disqualified themselves that it was unlikely we could seat a jury. I started my voir dire, and after ten minutes it became clear to the court and the lawyers that we would not be able to pick a jury from this group. The judge declared a mistrial and we all went home.

I found this experience frustrating and perplexing. I thought there were problems with the 100% analogy and the one witness rule explanation—that they effectively diluted the burden of proof of beyond a reasonable doubt. So, I did some legal research on proper voir dire questions and the “definition” of beyond a reasonable doubt. What I found was illuminating and encouraging.

1. “Beyond a reasonable doubt” cannot be defined.

For many decades, courts in Texas would not define “beyond a reasonable doubt.” In Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991), the Court of Criminal Appeals decided that “beyond a reasonable doubt” should be defined and approved the definition that had been employed in federal courts for many years. Thereafter, Texas courts explained “beyond a reasonable doubt” to juries during voir dire, and then gave jury instructions, employing the federal definition. This did not last long. A change in personnel on the Court of Criminal Appeals led to overruling that portion of Geesa v. State that required trial courts to instruct juries on the definition of beyond a reasonable doubt. Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). The court held, “We find that the better practice is to give no definition of reasonable doubt at all to the jury.” Paulson v. State, supra at 573. Courts have continued to follow Paulson and hold that the better practice is to not define “beyond a reasonable doubt” at all. Woods v. State, 152 S.W.3d 105, 115 (Tex. Crim. App. 2004); Mays v. State, 318 S.W.3d 368, 389 (Tex. Crim. App. 2010); Fuller v. State, 363 S.W.3d 583, 586 (Tex. Crim. App. 2012); Johnson v. State, 263 S.W.3d 405, 418 (Tex. App.—Waco 2008, pet. ref’d); Steadman v. State, 262 S.W.3d 401, 408 (Tex. App.—Waco 2008), reversed on other grounds, 280 S.W.3d 242 (Tex. Crim. App. 2009); Ledet v. State, 2013 Tex. App. Lexis 5426, *7 (Tex. App.—Fort Worth, May 2, 2013, pet. ref’d).

A court does not abuse its discretion by charging the jury that, “It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution’s proof excludes all ‘reasonable doubt’ concerning the defendant’s guilt.” Woods v. State, supra, 152 S.W.3d at 114–115: see Wilder v. State, 111 S.W.3d 249, 253 (Tex. App.—Texarkana 2003, pet. ref’d); Steadman v. State, supra, 262 S.W.3d at 408; Bolen v. State, 321 S.W.3d 819, 827–828 (Tex. App.—Amarillo 2010, pet. ref’d). The foregoing language is not considered to be a definition of beyond a reasonable doubt. O’Canas v. State, 140 S.W.3d 695, 701–702 (Tex. App.—Dallas 2003, pet. ref’d); Bates v. State, 164 S.W.3d 928, 931 (Tex. App.—Dallas 2005, no pet.).

2. Counsel must be allowed to compare burdens of proof.

In State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979), the Texas Supreme Court held that the clear and convincing evidence standard of proof is to be “employed in those civil proceedings brought under state law to commit an individual for an indefinite period to a state mental hospital. Clear and convincing evidence is defined as that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. This is an intermediate standard, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings.” The same definition of “clear and convincing evidence” is set forth in Sec. 101.007, Family Code. Clear and convincing evidence is also required to involuntarily terminate parental rights. Sec. 161.001, Family Code; Santosky v. Kramer, 455 U.S. 745, 102 S.Ct 1388, 71 L.Ed.2d 599 (1982).

I have never had a judge prohibit me from comparing the civil burdens of proof with the burden of beyond a reasonable doubt. It has seemed to be common practice for lawyers to employ that comparison. Some have incorporated the definitions of “reasonable suspicions” and “probable cause” into their explanation about burdens of proof. This seemed to be the norm—until a district judge in Dallas decided that when the courts said there was no definition of beyond a reasonable doubt, that meant there was no definition, even by saying what it is not.

According to this judge’s view, the State could not say that the burden was not beyond a shadow of a doubt, and the defense could not compare beyond a reasonable doubt to the lessor civil burdens of proof. That case, Fuller v. State, went to the Court of Criminal Appeals, which held it was error for a trial court to not allow defense counsel to explain and compare the various standards of proof in civil cases to the burden of proof of beyond a reasonable doubt and to tell the jurors that beyond a reasonable doubt is the highest burden of proof. The court stated this explanation is a necessary lead-in to asking jurors if they understand that proof beyond a reasonable doubt is the highest burden that we have in our legal system. Fuller v. State, supra, 363 S.W.3d at 588–589; Anderson v. State, 414 S.W.3d 251, 256 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d).

3. The requirement of “beyond a reasonable doubt” may not be diluted.

Explanations by judges and prosecutors to prospective jurors that equate proof beyond all doubt to 100% proof have been found not to be fundamental error. Muhammed v. State, 331 S.W.3d 187, 194 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d.); Alvarado v. State, 821 S.W.2d 369, 374 (Tex. App.—Corpus Christi 1991, no pet.). In Alvarado and Muhammed, there was not an objection by defense counsel to the use of the 100% analogy, so the courts were left to determine if that explanation was fundamental error. In Wilder v. State, supra, 111 S.W.3d at 253, defense counsel did object to the use of the 100% analogy, which was overruled by the trial court. The jury charge in Wilder included language that stated the prosecution was not required to prove guilt beyond all possible doubt, but was required to exclude all reasonable doubt concerning the defendant’s guilt. While stating that it did “not encourage the use of a percentage equation in describing the concept of beyond a reasonable doubt,” the court found that the statement by the prosecutor was not contrary to the jury charge and thus was not error. Id.

If the court or the prosecution says 100% means all possible doubt, that is not error. However, if the court or the prosecution says 100% means beyond all reasonable doubt and the State does not have to prove its case 100%, that is incorrect, and is error, because it dilutes the constitutionally required burden of proof. The Hon. Richard Mays, a retired district judge from Dallas, used to tell prospective jurors that the State must prove its case 100%, meaning that the State must prove each element of the charge beyond a reasonable doubt. If the State uses the 100% analogy, defense counsel should object that it is an incorrect statement of the law because it dilutes or reduces the State’s burden of proof. If the objection is overruled, ask the State to clarify what constitutes 100%. The 100% analogy risks confusing the jury and diluting the State’s burden of proof, and so should not be used.

4. A venireman whose personal threshold of beyond a reasonable doubt
requires more than one witness is not dis

“Beyond a reasonable doubt” is what it means to the juror. A voir dire examination may not “suggest to” a venire member that he could require a different quantum of proof other than beyond a reasonable doubt. Goff v. State, 931 S.W.2d 537, 550 (Tex. Crim. App. 1996); Johnson v. State, 263 S.W. 3d 405, 418 (Tex. App.—Waco 2008, pet. ref’d 2009). “But each juror may properly form his personal threshold of reasonable doubt”—that is, “the type and amount of evidence a juror would ‘require to reach th[e] level of confidence’ of beyond a reasonable doubt.” Johnson v. State, supra, 263 S.W.3d at 418, citing Murphy v. State, 112 S.W.3d 592, 598 (Tex. Crim. App. 2003).

“[A] venireman who categorically refuses to render a guilty verdict on the basis of only one witness is not challengeable for cause on that account so long as his refusal is predicated on his reasonable understanding of what constitutes proof beyond a reasonable doubt.” Zinger v. State, 932 S.W.2d 511, 514 (Tex. Crim. App. 1996); Castillo v. State, 913 S.W.2d 529, 533 (Tex. Crim. App. 1995); Lee v. State, 206 S.W.3d 620, 623 (Tex. Crim. App. 2006). “[A] venireman who categorically refuses to render a guilty verdict on the basis of a single eyewitness may only be indicating that his threshold for proof beyond a reasonable doubt is somewhat higher than the minimum that the law recognizes as sufficient. Unless we are prepared to hold that jurors must always convict on the basis of legally sufficient evidence, we cannot say that such a venireman has a bias against the law . . . As long as the law permits a range of ‘reasonable doubt,’ the individual venireman who says he will hold the State to the high end of the range is not requiring anything that the law does not tolerate. Unless reasonable doubt is a fixed point—unless, in other words, the law requires a jury to convict whenever presented with legally sufficient evidence—a venireman who will not be convinced beyond a reasonable doubt on the testimony of a single eyewitness is nevertheless a venireman who can follow the law. If the State does not want that venireman on the jury, it is obligated to use one of its statutorily allotted peremptory challenges to remove him.” Castillo v. State, supra at 533.

It is the burden of the challenging party to demonstrate that the venireman he seeks to challenge is in fact incapable of, or at least substantially impaired from, following the law. Hernandez v. State, 757 S.W.2d 744, 753 (Tex. Crim. App. 1988). “[B]efore the trial court may sustain a State’s challenge for cause on the ground that the venireman will not convict on the testimony of a single eyewitness, it must be demonstrated to the trial court that the venireman’s categorical refusal is predicated upon something other than his understanding of proof beyond a reasonable doubt. Otherwise there is no indication the venireman cannot follow the law, and the State has failed to carry its burden to show the venireman should be excused.” Castillo v. State, supra, 913 S.W. at 534. Thus, for a State’s challenge for cause to be sustained on the basis of the one witness rule, the State must show the inability to convict on the testimony of one witness is not due to the juror’s personal threshold of beyond a reasonable doubt.

The prosecution has the right to determine if a juror can convict on the testimony of one witness in order to intelligently exercise its peremptory strikes or to determine if the juror is subject to a challenge for cause because the juror cannot follow the law. If the prosecutor or the court states or implies that a juror must be able to convict on the testimony of one witness, an objection should be made that this dilutes the burden of proof and because a juror’s individual view of proof beyond a reasonable doubt may require the testimony of more than one witness. Whether the objection is sustained or not, defense counsel should come back to the issue on his or her voir dire and explain that the need for more than one witness may be part of an individual juror’s personal belief about the meaning of beyond a reasonable doubt, and individuals who had previously said they could not convict on the testimony of one witness should be asked to clarify whether or not that is because more than one witness is necessary to satisfy that juror’s personal definition or understanding of beyond a reasonable doubt.

5. Conclusion.

Now, in Texas, beyond a reasonable doubt is a range of proof that is greater than “clear and convincing evidence” and less than proof beyond all possible doubt, as determined by each individual juror. Whether this explanation is considered to be a definition, or not, is unimportant. What is important is that the prosecution and the courts not be allowed to dilute that burden by erroneous analogies or explanations. Hopefully, you will be able to use the foregoing to help provide an effective voir dire for your client.

The Current Legal Landscape of the U.S. Government’s Bulk Collection of Telephone Record Metadata, August 2014

After the catastrophe of 9/11, the United States government launched a number of counterterrorism measures, including a program of bulk collection of telephone record metadata. Each time someone in the United States makes or receives a telephone call, the telecommunications provider makes a record of when, and to what telephone number, the call was placed, as well as how long it lasted. It is these records that the government, pursuant to court orders, has been gathering since 2006.

On June 5, 2013, the British newspaper The Guardian reported the first of several “leaks” of classified material from Edward Snowden, a former National Security Agency (NSA) contract employee. Mr. Snowden’s leaks revealed multiple United States government intelligence collection and surveillance programs. Snowden’s disclosure showed that the NSA collects all metadata of several, if not all, telephone service providers, and that such data, if mined, can reveal a profile of every individual in the United States as well as a comprehensive record of people’s associations with one another.

In order to better understand the legal context of the collection of this metadata, a legal history lesson is in order, as taken from Klayman v. Obama, 957 F.Supp.2d 1 (D.D.C. 2013). In 1978, Congress enacted the Foreign Intelligence Surveillance Act (FISA) to authorize and regulate governmental electronic surveillance of communications for foreign intelligence purposes. The executive branch had, for decades, engaged in warrantless domestic intelligence-gathering activities that had illegally infringed the Fourth Amendment rights of American citizens. Congress passed FISA in large measure as a response to the revelations that warrantless electronic surveillance in the name of national security had been abused.

FISA created a procedure for the government to obtain judicial orders authorizing domestic electronic surveillance upon a showing that the target of the surveillance was a foreign power or an agent of a foreign power. In addition, authorizing wiretaps enabled the government to obtain orders authorizing physical searches as well as pen registers. Under the business record provision, the FBI was permitted to apply for an order authorizing businesses, such as telephone service providers, to release to the FBI copies of business records upon a showing in the FBI’s application that there are specific facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.

Following the September 11, 2001, terrorist attacks, Congress passed the USA PATRIOT Act, which made changes to FISA and several other laws. The PATRIOT Act replaced FISA’s business-records provision with a more expansive “tangible things” provision. Information that the FBI acquires through such a production order concerning any United States person may be used and disclosed by federal officers and employees without the consent of the person only in accordance with the minimization procedures adopted by the Attorney General and approved by the Foreign Intelligence Surveillance Court (FISC).

The government’s collection of the metadata concerning telephonic communications has been going on since 2006. The FISC orders governing the metadata collection provide that the records may be accessed only for counterterrorism purposes. Nevertheless, NSA intelligence analysts may access the records to obtain foreign intelligence information through queries of the records performed using identifiers such as telephone numbers associated with terrorist activity.

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” A Fourth Amendment “search” occurs either when “the [g]overnment obtains information by physically intruding on a constitutionally protected area,” United States v Jones, ___U.S.___, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), or when “the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)(Harlan, J., concurring).

The Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), is the most relevant Supreme Court decision when it comes to the constitutionality of the government’s collection of telephone service provider metadata under FISC. In Smith, police were investigating a robbery victim’s reports that she had received threatening and obscene phone calls from someone claiming to be the robber. Without obtaining a warrant or court order, police installed a pen register, which revealed that a telephone in Smith’s home had been used to call the victim on one occasion. The Supreme Court held that Smith had no reasonable expectation of privacy in the numbers dialed from his phone because he voluntarily transmitted them to his phone company, and because it is generally known that phone companies keep such information in their business records.

In one of two cases challenging the government’s metadata gathering, Judge Leon of the United States District Court of the District of Columbia wrote:

When do present-day circumstances—the evolutions in the [g]overnment’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now . . . I am convinced that the surveillance program now before me is so different from a simple pen register that Smith is of little value in assessing whether the Bulk Telephony Metadata Program constitutes a Fourth Amendment search. To the contrary . . . I believe that bulk telephony metadata collection and analysis almost certainly does violate a reasonable expectation of privacy.

Klayman v. Obama, supra, 957 F.Supp.2d at 31–32.

On the other hand, in ACLU v. Clapper, 959 F.Supp.2d 724 (S.D.N.Y. 2013), the United States District Court for the Southern District of New York, Judge Pualey concluded otherwise, writing that in Smith, “the Supreme Court found there was no legitimate privacy expectation because ‘[t]elephone users . . . typically know that they must convey numerical information to the telephone company; that the telephone company has facilities for recording this information; and that the telephone company does in fact record this information for a variety of legitimate business purposes.” Id., citing Smith, supra, 442 U.S. at 743; United States v. Reed, 575 F.3d 900 (9th Cir. 2009).
“[T]he Supreme Court has instructed lower courts not to predict whether it would overrule a precedent even if its reasoning has been supplanted by later cases. ‘[T]he Court of Appeals should . . . leav[e] to th[e Supreme] Court the prerogative of overruling its own decisions.’” ACLU v. Clapper, supra, citations omitted.

The Current Legal Landscape of the U.S. Government’s Bulk Collection of Telephone Record Metadata, Feb. 2015 Update

The plaintiff in Klayman attempted to bypass the U.S. courts of appeals and give the U.S. Supreme Court the opportunity to overrule or distinguish its decision in Smith right away, something it declined to do on April 7, 2014. The Klayman case was argued before the D.C. Circuit Court of Appeals on November 11, 2014. Clapper was argued before the Second Circuit Court of Appeals on September 9, 2014. Neither circuit has issued an opinion yet. Several other cases also have challenged the legality of the metadata mining program, most notably United States v. Moalin, 2013 WL 6079518 (Nov. 18, 2013), and Smith v. Obama, 24 F.Supp2d 1005 (June 3, 2014), both of which are pending in the U.S. courts of appeals. After this issue is addressed by several of these appellate courts it will almost certainly be addressed by the U.S. Supreme Court in what will be one of the most important Supreme Court decisions in the history of our country.

Literature as a Portal into Human Nature for the Defender

Lawyers seem to agree that a knowledge of human nature helps in the defense of a criminal case. For example, Leonard E. Davies in his book, Anatomy of Cross- Examination: A History and the Techniques of an Ancient Art, emphasizes “a keen understanding of human nature” as the basis for effective cross-examination. Davies at 285. It may be that not everyone needs to study human nature. I do believe that some defenders have excelled at trial with little interest in the subject, but they seem to have had a set of interests and opinions that were shared by other people, their jurors, in a largely homogenous venue. Beyond these, the skilled defenders I have known all studied human nature.

What I offer below is not the “answer” to human nature, of course, but what perhaps will be an insight. It does not say much about emotion, which is key to decision-making. Nor does it talk about group dynamics—an individual and a pair and a jury and a mob are of different sizes and are different from each other. Nonetheless, I hope you find it interesting and helpful. Our theme is the complexity of human nature and human society. As our guide is Hamlet: “What a piece of work is a man! How noble in reason, how infinite in faculty! In form and moving how express and admirable! In action how like an angel, in apprehension how like a god! The beauty of the world. The paragon of animals. And yet, to me, what is this quintessence of dust?” 

Why does a keen understanding of human nature aid in the defense at trial? Understanding human nature allows us to understand why our client may have committed the crime he committed. It helps us tell our client’s story; if we do not know what facts will produce a reaction of pity or terror in our audience, we will be unable to select events that matter to the story. Understanding human nature helps us pick a jury and perhaps provides a hunch about which jurors will help or hurt us. Studying human nature helps us predict how a person will respond to our actions or answer a question in direct or cross-examination. Being correct about these aspects of human nature will help us make the decisions in trial. Certain jurors may disagree with us about aspects of human nature and this is worth understanding as well. 

What must the defender know about human nature? Many fields require a study of human nature. Economists, anthropologists, and theologians, for example, all develop theories of how people act. Although these are all of interest, as criminal defenders our immediate needs are more limited. It may not be important to us whether people act the way they do because of nature or nurture, but we may want to know how prospective jurors or witnesses feel about this subject so we may tailor our choices and questions. We may not need to know whether there is free will or determinism, but, again, it may be helpful to know this about jurors or witnesses. Whether there is an external or internal control over our actions is less important to our decision-making than what the jurors and witnesses believe about this. Even disputes of correlation or causation are less important to us than in other fields. If we can reliably associate chickens and eggs, we may not need to know what came first. If we know a cock crows at sunrise, whether or not he caused the sun to rise is not quite so important.

We must make a good guess about how people will react in different situations. Which jurors will acquit? What story will move a jury? How will this witness answer my question? Often, even if we are correct about the reaction, we can be wrong about the reason and still gain for our client.

For example, many people and philosophies make predictions based on a theory that people are innately bad. My experience is that most prosecutors who fit the job have this view. “People are bad, so there must be a strong government with strong laws to keep them in line, or there will be chaos that is harmful to all people.” This theory allows them to correctly predict behavior from time to time. It also forms the basis for most of the prosecutors’ trial themes presented to jurors. Sometimes it resonates with jurors and works well. Usually, jurors recognize that it over-simplifies human-kind and they will not swallow it whole.

Other people and philosophies (fewer, I think) make predictions based on a theory that people are innately good, or at least malleable to be made good. “People are good until society corrupts them, and if we have the right responses to social problems, including education and decent treatment, we can bring about a utopia.” Some criminal defenders hold this view, but likely it has declined as Clarence Darrow fades into the past. This theory will also sometimes correctly predict behavior and it will resonate with a few jurors. For the most part, in my experience, it is viewed as naive, and jurors recognize it over-simplifies human nature and will not swallow this whole, either.

Still others rely on a variety of theories, some of which espouse a single description of human behavior: Man is a blank slate. Man is a noble savage. Economic determinism governs human conduct. Repressed sexual desires and the unconscious dictate conduct. In this article, we avoid the explanations that wrap up people in a single big idea and revert back to the more complex understanding that comes from traditional sources from Aristotle to Aquinas. As a portal to traditional understanding of human nature, we propose the defense lawyer study literature. 

The best way for defenders to view human nature is through literature. This is not as frivolous as it may first appear—many of the theorists of human nature rely heavily upon literature. For examples, Freud and Rene Girard come to mind. The great advantage is that literature recognizes the complexity of human personality and human society that confront the criminal defense lawyer. This complexity is also confirmed by science, of course, but literature frees us from being blown around by each new study. Chicago writer Joseph Epstein describes this: “One of the most important functions of literature in the current day is to cultivate a healthy distrust of the ideas thrown up by journalism and social science.” Novels and poems can be the antidote here. “The novel’s spirit is the spirit of complexity,” Milan Kundera writes. “Every novel says to the reader: ‘things are not as simple as you think.’” When he is working well, the good novelist persuasively establishes that life is more surprising, bizarre, fascinating, complex, and rich than any shibboleth, concept, or theory used to explain it. A literary education establishes a strong taste for the endless variousness of life; it teaches how astonishing reality is—and how obdurate to even the most ingenious attempts to grasp its mechanics or explain any serious portion of it! “A man is infinitely more complicated than his thoughts,” wrote Valéry—which, if you think about it, is happily so. A Literary Education at 311.

Why does literature so well describe human nature for criminal defense? First, literature reflects tradition representing centuries of experience about how people act, and through trial and error, it usually gets the right answer. The simpler explanations of human nature that have been espoused since the Enlightenment in efforts to improve upon tradition have fallen short when tested. The older and the more universal the tradition, the more it can be trusted. Newer, more regional traditions are less trustworthy. For example, we do not now believe that trial by battle will find the truth in a lawsuit. This was primarily a Germanic concept (8th century). When exposed to the older and more universal Roman and Christian law, it lost credibility. Second, even if a tradition (in the long, long run) proves to be false, in the shorter run, it is still believed by jurors, so may still for some purposes be relied upon in defending a case. That having been said, we do not live in an age of faith, so to the extent literature is bolstered by psychology as I understand it, I will present it.

First, the literature. In Shakespeare’s play, As You Like It, Act II, Scene VII, Jaques in his monologue beginning “All the world’s a stage,” presents seven stages of man. They are represented by the infant, the schoolboy, the lover, the soldier, the justice, the pantaloon, and the old man in second childishness. These stages did not begin with Shakespeare, but represent a tradition rooted in the Christian philosophy of the Middle Ages. Jaques’ description is humorous and presents a physical description of a man in each of these ages:

All the world’s a stage,
And all the men and women merely players.
They have their exits and their entrances,
And one man in his time plays many parts,
His acts being seven ages. At first the infant,
Mewling and puking in the nurse’s arms.
Then, the whining school-boy with his satchel
And shining morning face, creeping like a snail
Unwillingly to school. And then the lover,
Sighing like a furnace, with a woeful ballad
Made to his mistress’ eyebrow. Then, a soldier,
Full of strange oaths, and bearded like the pard,
Jealous in honour, sudden, and quick in quarrel,
Seeking the bubble reputation
Even in the cannon’s mouth. And then, the justice,
In fair round belly, with a good capon lin’d,
With eyes severe, and beard of formal cut,
Full of wise saws, and modern instances,
And so he plays his part. The sixth age shifts
Into the lean and slipper’d pantaloon,
With spectacles on nose and pouch on side,
His youthful hose, well sav’d, a world too wide
For his shrunk shank, and his big manly voice,
Turning again toward childish treble, pipes
And whistles in his sound. Last scene of all,
That ends this strange eventful history,
Is second childishness and mere oblivion,
Sans teeth, sans eyes, sans taste, sans everything.

Next, the evolutionary psychology. These seven stages for Jaques are presented in chronological order. Please understand we are not describing types of people. This is exactly what we are trying not to do: decide that someone is of a type. These are all characteristics within every person, and we never know which one we will see (or be). The evolutionary psychologists recognize that they are explaining the ancient wisdom. Steven Pinker in his book, The Blank Slate: The Modern Denial of Human Nature, refers to this connection:

Evolution is central to the understanding of life, including human life. Like all living things, we are outcomes of natural selection; we got here because we inherited traits that allowed our ancestors to survive, find mates, and reproduce. This momentous fact explains our deepest strivings: why having a thankless child is sharper than a serpent’s tooth, why it is a truth universally acknowledged that a single man in possession of a good fortune must be in want of a wife, why we do not go gentle into that good night but rage, rage against the dying of the light.

Jaques’ stages of man are explained, I believe, by another evolutionary psychologist, Douglas T. Kenrick. Kenrick, a psychology professor at Arizona State University, based on his clinical experiments with human beings, comes to the conclusion that we each have seven subselves that make decisions. For me, this explains why Jaques was correct in describing the seven personalities and also why so much more traditional wisdom about people is also correct. Kenrick places the different selves in a pyramid and describes them from bottom to top: 1. Immediate Physiological Needs, 2. Self-Protection, 3. Affiliation, 4. Status/Esteem, 5. Mate Acquisition, 6. Mate Retention, and 7. Parenting. Kenrick at 1600, Figure 7.2. If this sounds familiar, Kenrick acknowledges Abraham Maslow’s pyramid of the hierarchy of needs and argues that he improves it.

If, in fact, our brains produce seven different subselves, it should not be surprising that much of human organizing of the information brought into the brain reflects different characteristics for that self. How can this work? It is not phrenology and there are not particular parts of the brain that hold each separate self. But there are different parts of the brain that light up a positron emission tomography (PET) imaging test, depending what part of the brain is doing the work. Hearing words, seeing words, speaking words, and generating words all light up different parts of the brain. The neuroscientists tell us: “With the use of these techniques it is becoming increasingly apparent that during a specific task several different brain regions are working simultaneously. There is not just one brain area for one function but rather several brain areas appear to contribute to a particular function.” The Human Brain at 342.

The significant factor, though, is that parts of the brain respond, not the whole brain. If a different part of the brain responds, we get a different result: Happy and sad light up different parts of the brain; romantic and maternal love light up different parts of the brain; cocaine and sugar have similar pleasure centers; a baseline scan and a scan when the person is in prayer are different; exposure to angry faces lights up a bigger area after consuming alcohol. So, neuroscience appears at least not to negate Kenrick’s model. If Kenrick is correct that there are different subselves and if these do correlate with different areas of the brain that are governed by certain hormones that are expressed in different emotions, I suggest, it makes sense that the manifestations of these differences would have been noticed by humanity and described similarly throughout history.

If we accept the theory that the brain produces these separate selves to best promote survival, the reverence shown the number is natural. We have the Seven Deadly Sins, the Seven Virtues, the Seven Sacraments, the Seven Corporal Acts of Mercy, the Seven Spiritual Acts of Mercy, Seven Gifts of the Holy Spirit, the Seven Sorrows and Seven Joys of the Virgin Mary, the seven days of the week, the Seven Heavens, the seven liberal arts, the Seven Wise Masters, seven notes of music in the scale, seven days of creation, vengeance seven times over for killing Cain, Noah’s command to bring seven pairs of every clean animal into the ark, seven years of plenty and seven years of famine in Pharaoh’s dream, seven days in the feast of Passover, a seven-year cycle for a year of Jubilee, seven trumpets for seven days around the walls of Jericho, seven things detestable to the Lord, seven pillars of the House of Wisdom, seven loaves multiplied into seven baskets, and seven demons driven out of Mary Magdalene. When Isaac Newton identified colors of the rainbow—red, orange, yellow, green, blue, indigo, and violet—he grouped seven. As moderns, we have produced the seven stages of grief and the seven dwarfs. And Mickey Mantle wore number seven. Something about that number moves us.

What follows, then, is a description of each of Jaques’ and Kenrick’s seven selves, together with other characteristics that traditionally explain human behavior, especially the seven sins and the seven virtues. A more modern addition comes from the sociobiologist, Edward O. Wilson. He describes different types of aggression with many types of animals, such as rattlesnakes. His summary of the different forms of aggression, not shown by all animals, but all shown by man says there are . . . seven.

No fewer than seven categories can be distinguished: the defense and conquest of territory, the assertion of dominance within well-organized groups, sexual aggression, acts of hostility by which weaning is terminated, aggression against prey, defensive counterattacks against predators, and moralistic and aggression used to enforce the rules of society.”

On Human Nature at 1560.

What follows then, are a list of the competing impulses, desires, urges, personalities, selves, as described by tradition and explained by evolutionary psychology. I have offered a correlation with how I believe these human characteristics best match up. The matches are not exclusive, because greed, for example, may be a harmful excess produced by most personalities. For example, to the extent greed helps satisfy immediate physiological needs or helps to buy weapons or buy status, it could be identified with any subself. However, I suggest it is best viewed as the excess or sin related to retaining a mate, and other personalities are more readily identified with propensities to excess identified with one of the six other sins. Also, Wilson’s types of violence may be invoked for other personalities.

Although I have matched defense of territory aggression with the soldier/night watchman below, this form of aggression may be important for other subselves as well. Also, emotion (which because it is produced mainly by three hormones producing eight combinations) does not match neatly with a personality. A lover or a fighter or a mother can all be angry, sad, or happy. Nonetheless, I believe the alignments ring true in most cases and are helpful in understanding why folks are acting the way they are, and always have been.

The infant mewling and puking in his nurse’s arms. The first of Kenrick’s subselves is the one driving us to fulfill immediate physiological needs. He also calls this subself “the compulsive,” and says it is in charge of avoiding disease. If something smells bad or tastes bad, this subself is engaged. For several years, a child is appropriately selfish and oriented towards fulfilling his own needs, both for food and care and in relation to siblings. No one faults a two-year-old for being in the “terrible twos.” According to both tradition and Kenrick’s evolutionary psychology, the subself, like all of them, once they manifest, stay with us. Even an old man may feel a strong desire to fulfill immediate physiological needs; as an example, Jaques’ justice “with the fair round belly lined with capon” has carried the overindulgence of childhood into a later stage of life. However, this stage greatly marks infancy.

When tradition talks about original sin, it is perhaps this tendency being described. Philosopher Rene Girard describes the basis for infant learning as “mimetic desire.” Children imitate so they can learn and they also imitate desires of others, so that the desire of one child for a particular toy will make that toy more valuable to the other child. Girard then describes this as the basis of original sin; human beings are born with a propensity to imitate each other. Girard at 1602. Girard says because of this, human culture was laid upon a foundation of violence. In the context of Wilson’s forms of violence, I nominate aggression against prey as that most likely to be needed by this subself. The propensity for sin—that is, when this subself dominates the other subselves and we suffer from the excesses—is gluttony. The virtue that manages gluttony is temperance. 

The whining schoolboy with his satchel. Kenrick describes a subself who seeks affiliation as the “team player.” This subself manages problems and opportunities related to affiliation. “To survive and reproduce, our ancestors needed to get along with other people,” Kenrick says. “Friends share food, teach us valuable skills, and fill us in on essential information; they team up with us to move things that are too big; and they provide safety in numbers when the bad guys are around.” Kenrick at 1553. I see this as a source of wanting to be popular in high school. We make alliances, form friendships, and develop a tit-for-tat idea of whether someone has been a true friend. Cliques and rivalries are driven by this subself. This subself may carry on into old age, as well. The old men whittling in front of the general store or the old women in a quilting club would likely be governed by this subself. Wilson’s form of violence associated with this is the “assertion of dominance in organized groups.” The sin, when this subself acts in excess, is envy, and the virtue that manages the sin is kindness. 

The lover sighing like furnace, with a woeful ballad made to his mistress’ eyebrow. Kenrick says we have a subself that is involved in mate acquisition. He calls this the “swinging single.” “This is the subself,” Kenrick says, “concerned with acquiring mates. As I have discussed, the ‘his’ and ‘hers’ versions are somewhat different, tuned to the sex-specific cues that make for good mates.” Id. at 1563. Shakespeare places this subself early in the stages of man, but remember, other cultures had different concepts about when a young woman was ready to marry. Romeo’s Juliet was only thirteen. However, this subself can carrying on into old age as well. The old basketball club owner with the young mistress is likely suffering a visitation of this subself. Wilson has a form of aggression for this called, appropriately, “sexual aggression.” The sin is lust and the virtue is chastity. 

The soldier . . . jealous in honor, sudden, and quick in quarrel. Kenrick describes a subself devoted to self-defense. He calls him “the night watchman”:

This subself manages problems and opportunities linked to self-protection. The night watchman subself is tuned in to information such as: Is that band of nasty looking guys who just walked over the hill going to steal something from me or burn down my hut? Are there enough of my tribe members around that I can protect myself?”

Id. at 1560.

This is the 18-year-old who wants to join the army or study martial arts. This is the inmate who joins the gang. This is the desire to get a concealed handgun license. When threatened, we all have this subself who will help protect us. This is also a young person’s self that may be needed in old age. The elderly couple who buy the doberman, for instance would be making this decision in this subself. Wilson’s form of violence for this subself is the “defense and conquest of property.” The sin is wrath and the virtue is patience. 

The justice, In fair round belly, with a good capon lin’d, With eyes severe, and beard of formal cut, Full of wise saws, and modern instances. The subself that represents much of human creativity is described by Kenrick as that related to self-esteem or status in society. Kenrick calls this subself the “go-getter.” Kenrick describes the function for survival of this subself:

Being respected by others brings numerous survival and reproductive benefits; being disdained carries some serious costs. But respect and status do not come for free: Leaders have to give the group more than followers do, and people do not like it when their friends step over them. The go-getter subself is tuned in to where we stand in the dominance hierarchy and to who is above and below us.

Id. at 1558. This subself comes into dominance in adulthood. Much of what Abraham Maslow called “self-actualization”—the desire to fulfill your unique potential as a musician, poet, or philosopher—is folded by Kenrick into this category of self-esteem. Id. at 1664. Wilson’s aggression matching this category is “aggression used to enforce the rules of society,” which we might expect from the round-bellied justice. The sin is vainglory and the virtue humility. 

The lean and slipper’d pantaloon. This character and the next are objects of ridicule by Jaques because of their physical decline, but they are important as subselves. Kenrick’s category is mate retention. This is the subself Kenrick says is in charge of retaining mates. He calls this subself “The good spouse.” This subself “is tuned in to information about whether my partner seems to be happy or unhappy,” explains Kenrick, “and it is also scanning the social horizon for potential interlopers who might be in the market to make my partner happier.” Id. at 1565. This is for the couple who have picked their mates and now hope to live happily ever after. This is the subself who, for instance, feels guilt or remorse or shame when she betrays her husband and cannot tell herself why. This is also the nest-builder, who makes sure they have a house and cars and 401K. Wilson’s form of aggression for this subself is “defensive counterattacks against predators.” This subself’s sin is greed and its virtue is charity or love. 

Second childishness and mere oblivion, Sans teeth, sans eyes, sans taste, sans everything. This is grandpa’s and grandma’s subself, but it is also represented in parents caring for their young. Jaques gives a grim picture of this age, but for some of us, at least physically, it is not quite that bad. However, it does often, as the years pass, crowd the other subselves. Kenrick puts it on top of his pyramid, calling the subself “parenting.” I would suggest that it is somewhat broader and involves a general devotion to kin; “blood is thicker than water.” This is the ferocious mother protecting her young. This is why you may accept an annoying habit from a family member, but the same habit in a neighbor is intolerable. The form of aggression Wilson gives that fits this subself includes “acts of hostility by which weaning is terminated.” The sin is sloth or acedia. This requires some explanation because in modern times we understand sloth differently than was traditionally true. Sloth is now viewed as the amiable weakness of indolence. Glittering Vices at 1401. However, sloth is not merely inaction; this may have been honored traditionally as a period of prayer and meditation. A hint about the meaning of sloth comes from looking at its virtue: diligence. “The telltale root of our word diligence is the Latin diligere, which means ‘to love.’ Sloth, on this view, is apathy—comfortable indifference to duty and neglect of other human beings’ needs.” Id. at 1420. Within the context of this subself, sloth is shown by the mother who doesn’t feed her child and the son who leaves his invalid father alone without care. We would consider it akin to criminal negligence.

How can we apply this understanding of human nature to trial? Among other things, clients are often unable to explain their conduct. This interpretation of human nature may give some reasons why. When a client says, “I wasn’t myself,” to explain an action, we may get an inkling of what he means. We can more readily discover the client’s story if we understand why he has acted as he has. We can develop a sentencing argument of “aging out” of certain crimes. We are given an argument why some types of violence are not likely to be repeated. Moreover, this view of human nature explains and mitigates some crimes based on which subself has committed the crime. Theft to provide for a kin is different than theft to advance self-esteem. Possession of drugs driven by gluttony (moderns sometimes say “addiction”) is different than possession of drugs driven by greed. It may be helpful in direct or cross-examination to the extent the witness accepts your characterization of his motives. It helps explain hypocrisy. With an innocent client, it may help show lack of motive.

I do not suggest it is necessary or perhaps even a good idea to describe this theory to the jury, but to the extent it is true and resonates in our traditions, a theory of human nature is a good companion for all parts of the trial. In this one matter I have some small measure of certainty: It is a greater task for a juror to give death or a long prison sentence or even to find guilty someone the juror believes carries the seeds within himself to be noble in reason, infinite in faculty, express and admirable in form and moving, in action like an angel, in apprehension like a god, the beauty of the world, the paragon of animals, the quintessence of dust.

Thoughts on Cross-Examination

Believe it or not, a successful cross-examination begins when clients first hire us as their attorney. First, we should listen carefully to the client, get their full story, and start right then preparing them for their ultimate cross-examination (i.e., assuming they will take the stand). Second, when we first know who the opposition witnesses will be, we should investigate their story, ascertaining weak spots, falsehoods, and other points for their cross-examination. We should investigate their background, criminal record, demeanor, and other matters that might be relevant and shed some light on their cross-examination.

Through these many years of my career, I have been amazed that all too many attorneys, both prosecutors and defense counsel, frantically take copious notes of the direct testimony of a witness. Then, when the witness is passed for cross, they stumble willy-nilly through their notes asking all sorts of senseless, irrelevant questions, often raising their voice in thunderous volume hoping to catch the witness off guard, sometimes even repeating the direct testimony, to the confusion of the jury, gaining nothing positive for their side.

For Example

Several years ago I was retained in federal court to handle an appeal for a man convicted of running an illegal interstate gambling operation at Caesar’s Palace in Las Vegas. I was appalled by defense counsel’s cross-examination of the main witness for the prosecution:

Q: You told this jury that my client, not you, organized the gambling operation. Is that true? Look at this jury and remember you are under oath.
A: [turning to the jury] Yeah, that’s what he done all right.
Q: Very well. Okay. And you claim that my client received 75% of the take but you only got 25%. Is that what you expect this jury to believe?
A: Yeah, that’s right. That was our deal—75 to him, 25 to me.
Q: Well, if you were partners, I don’t understand why my client received 75% of the take but you only got 25%.
A: Because, in an earlier game at the Flamingo he got 25% and I got 75%, that’s why!

Another Killer Explanation

A young patrolman, the arresting officer in a DWI case, testified that in his opinion the defendant was literally drunk out of his gourd at the time of his arrest. Defense coun­sel asked:

Q: But you have been a patrolman for only 3 months, haven’t you, sir?
A: That’s right, only 3 months.
Q: Then how could you possibly know my client was drunk?
A: Because I was a bartender for 14 years before I became a cop!

Witness in a Ridiculous, Untenable Position

If you are fortunate enough to trap the witness into a ridiculous, untenable position he cannot explain, that is like icing on the cake.

In the Barry Gray1 case, defendant Gray raped his neighbor lady, thrust a kitchen knife through her throat, bashed her on the head with a champagne bottle, and left her for dead. I was fortunate in my cross of Doctor Domres, an Air Force shrink who testified that Gray was insane when he committed the offense but was completely sane now at the time of his trial—and that he would never, ever again commit any crime, let alone one of violence.

On cross-examination, I asked the doctor if prior to the offense would he in his wildest dreams have ever predicted that Gray would commit such a horrible, brutal crime. He answered, “No! Certainly not!”

“But he did, didn’t he, doctor? He did! So, how can you possibly expect this jury to believe he won’t do it again?”

He gulped and admitted that he could not.

Don’t Be Greedy

When you are fortunate enough to get a favorable answer, do not push for more because the witness might either change his answer or destroy the favorable aspect of his earlier answer.

For example, before becoming a judge, Justice Shirley Butts2 defended a man accused of robbing a cab driver in Fort Worth when I was in the DA’s office there. I was the prosecutor. Her cross-examination of the cab driver went like this:

Q: Mr. Cab Driver, it was dark in the park that night and the dome light in your cab was burned out, wasn’t it?
A: Well, yes.
Q: And you identified the man who robbed you through your rear-view mirror, isn’t that right?
A: Well, yes, ma’am.
Q: You only got a glimpse of the man who robbed you for a few moments and, as you say, through your rear-view mirror?
A: Yes ma’am, that’s right.
Q: Actually, Mr. Cab Driver, my client Mr. Jones here just looks like the man who robbed you. Right?
A: Well, that’s true. He does look like him. Yes, ma’am. He looks like him.
Q: That’s all. Thank you, sir. Pass the witness.

During her argument, she noticed a juror who closely resembled President Eisenhower. She addressed that particular juror, saying, “You, sir, look very much like President Eisenhower, but ‘looking like’ doesn’t make it so, does it?”

The jury quickly found her client “not guilty.”

A Few Tips and Suggestions

1. Take and keep control of the witness.
2. Do not allow him or her to trap you into answering their questions.
3. Do not repeat their testimony.
4. Keep eye contact at all times, and study their facial reactions.
5. Be positive and confident at all times.
6. Do not fumble around with your notes or other papers.
7. If the witness is a “smart alec,” sarcastic, would-be comedian, antagonistic, argumentative, or hostile . . . keep your cool.
8. Be courteous, do not get angry, and never argue with the wit­ness.
9. Save your comments for argument. Capture “center stage.”

Criminal Trial Strategy3

If you do not have a copy of Charlie Tessmer’s most valuable book, Criminal Trial Strategy, get it! You can buy it from the Texas Criminal Defense Lawyers Association on the website at for just $39, including shipping, or at most seminars.

Chapter 6 (pages 71–106), “Examination of a Witness, Cross-Examination,” is worth the price.

For Example

From page 81 about cross-examination: “The objects of cross-examination are three-fold: (1) to prove something in your behalf, (2) to weaken the force of what the witness has said against you, (3) to show from his demeanor or past life that he is unworthy of belief.”

Page 86: “Always examine the witness on who has talked to them before trial and for how long and where. The prosecutor on redirect will usually ask the witness if he did not tell the witness to tell the truth. If this occurs, ask the witness if he knows why the prosecutor found it necessary to warn him to tell the truth. If possible, show that the prosecutor got all witnesses together and talked to them about their respective testimony and about the case.”

This little book itself tells you all you need to know about cross-examination and much more. I bought it when it was first printed in 1968 and have used it repeatedly these many years hence.

J. W. (Jake) Ehrlich4

Jake Ehrlich’s classic The Lost Art of Cross-Examination should be in your library. It was first published by Putman and Sons in 1979 and again in 1987 by Dorset Press (ISBN 0-88029-151-6) with a Foreward by Percy Foreman.

The object of cross-examination is to test the truth of statements of a witness made on direct examination; to sift, modify, or explain what has been said; and to weaken, disprove or destroy the case of your adversary.

Good cross-examination is the result of thorough preparation and is most effective when based upon knowledge of the legal and factual issues involved in a trial.

Wichita Falls, 1949

I was privileged to visit with and hear Jake Ehrlich, the renowned San Francisco attorney, at a meeting of the Wichita Falls Bar Association in 1949. The famous Hollywood attorney Jerry Geisler5 (who represented Errol Flynn, Charlie Chaplin, Robert Mitchum, and numerous other Hollywood celebrities) also spoke to us. As a young fledgling lawyer eager for knowledge, I was literally mesmerized by their presence!

Quit While You’re Ahead: Don’t Ask for an Explanation

Jake Ehrlich, among other stories, related the following: A few years ago in a California courtroom, a personal injury suit was being tried. The plaintiff was contending he had been physically and financially injured as a result of an accident. Cross-examination from the defendant’s eager young attorney went like this:

Q: Did you, at the time of the accident, when you were asked if you were hurt, reply that you were not?
A: Yes, sir, I did.

Oops! Instead of stopping there, our young and eager hero was not satisfied.

Q: Well, sir, why have you been testifying all morning that you were hurt?
A: Well, Mr. Lawyer, you see it was like this. I was driving my finest horse and buggy along the road, when along comes your client sputtering along in one of those new-fangled automobiles and knocks us in the ditch. You never saw such a mess in all your life! I was lying flat on my back with my right leg broken. My buggy was in shambles, completely wrecked. Your client gets out of his car, looks at us, and sees my poor horse is suffering and has a broken leg. He rushes back to his automobile, gets a big old pistol, rushes back and shoots my horse in the head . . . Blam! Then he comes up to me and says, “How about you? Are you hurt?”

Cutting the House Edge6


When I was licensed on May 10, 1949, if I could have had the benefit of Mark Daniel’s paper “Cutting the House Edge—Cross-Examination,” delivered at Rusty Duncan, June 12, 2014, I need not have spent so many hours sitting in the Atticus Finch balcony watching “how to do it” from older, more experienced lawyers, would not have had to dig from scratch ideas on cross-examination.

Mark’s paper, with the Crawford update, literally covers the waterfront. He detailed the importance of investigating everything possible about the adverse witness—the witness for the prosecution, if you will. If you did not attend the 2014 Rusty Duncan and do not have a copy of this outstanding presentation, I urge you to get in touch with the home office and get one.


In the first part of this paper I mentioned the value, the importance, of investigating the adverse witness. I lamented further: Through these many years of my career I have been amazed that all too many attorneys, both prosecutors and defense counsel, almost frantically take copious notes of the direct testimony of a witness. Then, when the witness is passed for cross they stumble willy-nilly through their notes with all sorts of senseless, irrelevant questions, often raising their voice in thunderous volume hoping to catch the witness off guard, sometimes even repeating the direct testimony, to the confusion of the jury, gaining nothing positive for their side.

Likewise, Mark Daniel on page 1 says: Most cross-examinations are conducted without a great deal of prior preparation or thought. Far too often, cross-examination consists of a number of unplanned questions without purpose that often fill gaps in the prosecution, repeat direct testimony, and results in an argument with the witness.”

’Nuf said!


1. State of Texas vs. Barry Gray: 35 years in TDC (no appeal) 166th District Court (1970), Judge Jim Barlow presiding, Warren Burnet and Emmett Rahm, defense counsel, Ted Butler and Charles D. (Charlie) Butts, prosecutors.

2. Shirley W. Butts: Senior Justice, Texas 4th Court of Appeals, Honorary Member TCDLA, Member SABA Hall of Fame, received the Judge Sarah T. Hughes Award from the Women of State Bar, married to Charles D. (Charlie) Butts.

3. Criminal Trial Strategy, by Charles W. (Charlie) Tessmer, charter member of TCDLA and former President of TCDLA and NACDL, member of TCDLA Hall of Fame.

4. Jake Ehrlich (1900–1971), famous San Francisco criminal lawyer, author also of Never Plead Guilty, as well as admin of websites including

5. Jerry Geisler (1886–1962), early-Hollywood celebrity lawyer of renown, representing Errol Flynn, Charlie Chaplin, Robert Mitchum, and many other high-profile Hollywood celebrities.

6. Mark G. Daniel, Fort Worth firm of Evans, Daniel, Moore & Evans, President of Texas Criminal Defense Lawyers Association 2002–2003.

March 2015 Complete Issue – PDF Download



23 | Beyond a Reasonable Doubt: The Undefinition – By Craig Jett
27 | The Current Legal Landscape of the U.S. Government’s Bulk Collection of Telephone Record Metadata, August 2014 – By Mick Mickelsen
29 | Literature as a Portal into Human Nature for the Defender – By Ed & Sara Stapleton
35 | Thoughts on Cross-Examination – By Charles D. “Charlie” Butts

9 | Executive Director’s Perspective
13 | Off the Back
15 | Legislative Gleanings
16 | Federal Corner
20 | Said & Done

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

Executive Director’s Perspective: Winter Tidings – By Joseph A. Martinez


Special thanks to Jaime Gandara, El Paso Public Defender (El Paso), our course director for the Michael Morton Act Public Defenders seminar held in El Paso in January. Thanks to Jaime’s efforts we had 43 attendees.

Special thanks to Bill Habern (Huntsville) and David O’Neil (Huntsville), our course directors for the Post-Conviction seminar held in Dallas in January. Thanks to their efforts we had 54 attendees.

Special thanks to Anthony Haughton (Houston) and Sarah Guidry (Houston), course directors for the 4th Annual Honorable Craig Washington and Senator Rodney Ellis Seminar held at the Thurgood Marshall School of Law in Houston in February. Thanks to their efforts and our speakers we had 153 attendees. TCDLA would like to give special recognition to Dean Dannye Holley of the Thurgood Marshall School of Law for allowing TCDLA/CDLP to co-sponsor this event.

Special thanks to course director Rick Wardroup (Lubbock) and staff members Melissa Schank and Cindy Escobar for the Capital Case Litigation Initiative (CCLI) program held in Houston in February. The training at this three-day bring-your-own capital case training focused on the investigation of the facts of the offense, mitigation investigation, the engaging of appropriate experts, and teamwork in the defense of persons charged with capital murder and facing the potential of a death sentence. Only complete teams that had an active death penalty case were allowed to come to the training. The program had plenary sessions where attendees were educated on specific issues in capital representation, followed by breakout sessions where the teams brainstormed the application of the teaching to their individual cases. The breakout sessions comprised two or three teams and two or three faculty members in each room, working collaboratively. Thanks to our 12 faculty, who came from across the country. Thanks to everyone’s help, we had 13 teams, which included investigators, mitigation specialists, and paralegals. We had a total of 70 participants. This is the fourth CCLI program TCDLA has done. The funds for the CCLI program come from the U.S. Department of Justice to the Texas Court of Criminal Appeals. The Court has chosen to conduct the training of defense counsel each year. The Court has chosen the Center for American and International Law (CAILaw), in Plano, to handle the prosecutorial capital training.

TCDLA owes a huge debt of gratitude to Judge Barbara Hervey at the Texas Court of Criminal Appeals. She found the Department of Justice grant and initiated the discussion with TCDLA and CAILaw to make the initial grant submission with the Court in 2012. Thanks to the Judge’s leadership and foresight, Justice is being served in Texas.

Special thanks to course director Rick Wardroup (Lubbock) for the Mental Health/Capital Trial seminar held in San Antonio in February 2015. Thanks to his efforts we had 54 attendees.

The 28th Annual Rusty Duncan Advanced Criminal Law Course is being held June 18-20, 2015, in San Antonio. The special pre-registration rate is available until May 20. Please start making plans to attend. There are scholarships available. The CCA has approved funds for judicial travel stipends for this one event. Please call our home office for more information. This year’s Rusty theme is “United We Stand.”

Join us for the annual Pachanga (Party) at the Goldstein’s (Kristi and Gerry). The Goldstein Pachanga is a cultural icon: 600+ people gather in the Goldstein’s backyard around their pool and feast on food, beverages, and great company.

The TCDLA Membership Party will be a Casino Night with a masquerade theme. It will be a fundraiser for TCDLEI, providing scholarships for lawyers. We will have prizes for the biggest winners at Casino Night. So you can enjoy the evening and know you are making a contribution to a worthy cause. We will have a bike ride with our guide Gerry Goldstein. We are also working on a morning fun run down the unique and picturesque San Antonio River. See you in San Antonio.

Don’t have a local criminal defense bar in your area? Would like to re-energize or jump-start your organization? 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.

Off the Back: On Choosing the Right Law Partner – By Stephen Gustitis


Joining forces. Teaming up. Going partners. Whatever you call it, choosing a law partner can be a pivotal decision in one’s career. Most criminal defense attorneys practice solo, enjoying the “lone-wolf” style of life. However, a well working partnership can enhance the lives of each partner in ways that one lawyer working alone cannot. Conversely, the wrong collaboration (as in marriage) could mean professional and financial disaster. So, what essential qualities should your partner have if you’re contemplating the plunge? What qualities should a prospective law partner look for in you? A successful and long-lasting alliance, suffice it to say, is one based on value compatibility at many different levels.

On ethics and character. Partners should be acting for the greater good of the firm even at their personal expense. Will your potential law partner regularly make this sacrifice? And will you? Partners should share similar standards of ethical conduct. You don’t want to lose sleep over what your law partner is doing in and out of the office. In this regard, you may not want to be the significantly more conservative lawyer. Once bound in business, lawyers may be liable for the unethical conduct of their law partner. See Rule 5.01, Texas Disciplinary Rules of Professional Conduct. Consequently, prospective law partners should share a similar level of commitment toward ethical conduct. At a more foundational level, your law partner must be someone you trust. Lack of trust builds resentment on both sides and erodes the partnership’s goals. Would you trust the candidate with your money? With your clients? Partners in a law firm have a fiduciary responsibility to each other and the firm. Will you trust them to do the right thing where the conduct of client matters is concerned? And beyond this, how will the partners deal fairly and ethically with associates and staff? If you have questions about a prospect’s qualifications, talk to judges, opposing counsel, and other lawyers with whom the candidate has worked. If they are a good choice, your inquiries will be welcomed.

On spending money. Are you a saver or a spender? Your law partner’s spending habits may become your problem. Since money troubles bring relationship troubles, the partners should be synchronized when it comes to cash. We tend to avoid financial issues until obstacles develop. Consequently, talk money before committing yourself to the partnership. How much will you spend on salaries and benefits? What is the most appropriate compensation formula for the partners? What about the marketing budget? How much of gross monthly receipts should be earmarked for overhead and new client development? Will your partner require large expenditures for malpractice insurance? How will the profits of the partnership be disbursed or plowed back into the firm as equity? Are you bringing money or property to the partnership? Who will control the utilization of these resources? The money issue list goes on and on. Develop a plan with your partner to address contingencies.

On practice management and business development. People combine forces for mutual advantage. A successful partnership doesn’t require the attorneys to practice the same kind of law. Indeed, lawyers practicing in different specialties can support each other and develop opportunities for cross-selling. In the stock market world, it’s called diversification. Are you in agreement regarding the types of clients the firm will accept? More clients at lower fees or fewer clients at premium pricing? Are your strategies for fee collection complementary? Is your prospective partner as committed to business expansion as you? How will the firm develop new clients? Who will be the rainmaker or will both partners pull equal weight? Who will be responsible for updating the firm’s website with regular, fresh content? Do you have the same commitment to customer service, returning phone calls, and promise keeping? Depending upon your natural strengths and talents, what qualities make you a valuable asset to a prospective partner? A law partnership is, first and foremost, a business arrangement. Reduce your partnership agreement to writing and avoid messiness, conflicts, and misunderstandings in the future. Considering hiring an outside consulting lawyer to help craft the accord.

Given these points, there is something visionary about an alliance becoming greater than the sum of its individual parts.  An effective law partnership can do that by being both professionally and personally rewarding. So, if you wish to renounce the lone-wolf lifestyle and team up with another lawyer, consider the multifarious values at stake. Money and practice management will always be an issue. Ethics and character are even more foundational. Most of all, enjoy the adventure together.

Legislative Gleanings – Early Returns – By Bill Harris


The legislature is rumored to still be in session. Our team of legislative specialists continues to monitor several bills and to support those that are important to the people we represent.

Although several committees could hear bills related to criminal law and procedure, most bills are referred to the Criminal Jurisprudence Committee. Representative Abel He­rrero, D-Corpus Christi, has been appointed to chair Criminal Jurisprudence, just as he was in 2013. Chairman Herrero is a veteran legislator, and although he is a civil attorney, he has shown great temperance and fairness in his handling of this committee. Traditionally, this committee hears more bills than any other committee and is known for working late into the night.

On the Senate side, Lt. Governor Dan Patrick appointed Senator John Whitmire, D-Houston, to once again chair the Criminal Justice Committee. Senator Whitmire has over 40 years’ experience in the Texas Legislature as a House and Senate member. Currently, Senator Whitmire is the Dean of the Senate and has chaired this committee for over 20 years. This is an appointment for which we should be grateful.

Good news on the Michael Morton Act. Robert Kepple of TDCAA told Patricia Cummings and several others that there was no plan on the prosecution side to amend Article 39.14 during this session. While nothing is set in stone at this point, it does not appear that the prosecutors’ organization will urge any changes in the law this year.

Michael Morton himself was at the Capitol recently supporting changes in Chapter 64 of the Code of Criminal Procedure. This is the chapter relating to DNA testing on prior convictions. Senator Ellis has introduced a bill at the urging of the New York Innocence Project to make it easier for a person convicted of a crime to seek DNA testing of evidence.

We continue to hope for improvements to the expunction process.

Federal Corner: Two Surprising Race-Neutral Explanations for the Use of Peremptory Strikes – By F. R. Buck Files Jr.


Batson v. Kentucky, 476 U.S. 79 (1986), is such a familiar case that judges writing on a peremptory challenge issue commonly refer to it as Batson without giving the full title of the case or the citation. This is not surprising because a Batson issue has been raised and written about in 4,734 federal cases (110 in the first 29 days of 2015); the United States Court of Appeals for the Fifth Circuit has decided 648 of these cases (3 in the first 45 days of 2015); and Texas appellate courts have decided a Batson issue in 1,552 cases (4 in the first 45 days of 2015).

On January 29, 2015, a panel of the United States Court of Appeals for the District of Columbia Circuit [Senior Judge Nebeker and Associate Judges Fisher and Easterly (opinion by Judge Nebeker)] held that as a matter of first impression, being soft-spoken and non-assertive were race-neutral explanations for the use of peremptory strikes; and a prosecutor was not engaged in purposeful discrimination when exercising peremptory strikes. Johnson v. U.S., ___ A.3d.___, 2015 WL 358272 (D.C. Jan. 29, 2015) [emphasis added].

Bobby Johnson was convicted of various firearms charges in the Superior Court of the District of Columbia. Judge Michael L. Rankin was the trial judge. This case was a pleasure to read because Judge Rankin was a cautious trial judge—with an obvious sense of humor—and Judge Nebeker authored a very readable opinion that contains the following:

…appellant contends that either the trial court failed to make a Batson finding that the government’s peremptory strikes were not the result of purposeful discrimination or the trial court’s Batson finding of no purposeful discrimination was clearly erroneous. Second, appellant contends that some of his convictions merge. We affirm appellant’s convictions, and remand for the trial court to merge the appropriate offenses and resentence appellant consistent with this opinion.

[Note: This article is only concerned with the Batson issue]


During voir dire, the court asked several questions of each juror and both appellant and the government were offered an opportunity to ask follow up questions. Following voir dire, the government used peremptory strikes on jurors number 018 and 442, two African American males. The trial court had questioned these jurors during voir dire, but the government did not ask them additional questions. The trial court sua sponte pressed the government for a race-neutral explanation for the strikes:

the court: Would counsel approach the bench.

(Bench conference.)

THE COURT: I want the government to explain these two strikes, juror 442 and juror 018.

MS. ACEVEDO: 442 is the older man, I thought he was very soft spoken and I thought that he would get pushed around in a jury.

THE COURT: That doesn’t pass muster [emphasis added].

MS. ACEVEDO: That he’s soft spoken? To me he seems like somebody who would not—who would not express himself and could get pushed around by other jurors.

THE COURT: What about the other one?

MR. TRUONG: Your Honor, that gentleman because—similar reason, given his youth, we have to believe that he’d not be an assertive member of the jury if he has an opinion or given the fact that he’s inexperienced in his youth, and we are concerned that he may not have the confidence to voice his views during deliberation.

THE COURT: Let me ask you a question: Did it occur to either one of you to ask either of those jurors questions going to that? I mean, we had him up here. If that was a concern, could you have asked some kind of question about that [emphasis added]?

MS. ACEVEDO: It is our experience, Your Honor, jurors don’t admit that they would be.

THE COURT: But you could see his reaction, sort of like cross-examination, people don’t confess but you ask them questions that would allow you to draw reasonable inferences [emphasis added].

MR. TRUONG: We thought the Court’s questioning of both jurors gave us enough—we thought that the Court’s questioning of both jurors gives enough information to form an opinion whether we would like them to be on the jury. My impression of 018 was that he was kind of shy, and coupled with the fact that he—his age and my concern that he’s not forceful in expressing his views if there is a vigorous deliberation of the facts.

THE COURT: I guess that I could see that in the way he answered the questions. I don’t think I see any of that in the way the older man answered those questions. I don’t get that at all [emphasis added]. What did he say? Did you make any notes on him?

MS. ACEVEDO: Yes, Your Honor, my notes for him was that he was soft spoken. His tone of voice was very quiet. He didn’t seem like—

THE COURT: So you like screamers, you like yellers [emphasis added]?

MS. ACEVEDO: Not screamers, Your Honor, but I believe jurors have to be very willing to express their opinions, and he didn’t—based upon his—in his gentle manner, he didn’t seem like somebody who would.

MR. TRUONG: The concern is not only expressing their opinion, but to defend it also.

THE COURT: All right. I want you to know that I’m going to have a keen eye going forward. We get panels that don’t necessarily have a lot of black males to start with, and if you start striking black males because they’re soft spoken, it raises my eyebrow. All right [emphasis added].

      Do you have anything on this?

MR. McCANTS: Just, we want to make a challenge, and we felt as if the government has targeted black males. Striking the only two black males in the jury. Without articulating any unbiased reason.

THE COURT: Well, I think that they—I think that’s exactly what I asked them to do, and I believe they did articulate non-race based reasons. I guess it’s not my job to agree with them or disagree with them but to listen and see whether the reason is based on anything that the jurors said or any behavior that the juror demonstrated, so I’d have to say at this point that it does not raise to the level of a legitimate challenge, but my antenna is definitely up [emphasis added].

      Let’s go forward.

[End of bench conference.]

After trial, the court sentenced appellant to an aggregate sentence of 336 months’ incarceration. The sentences for PFCV, AAWA, and UPF are consecutive as to each count, while the sentences for the remaining charges are concurrent as to each count and with AAWA. Appellant timely appealed.

        Appellant argues that the trial court did not properly conduct the Batson analysis. At oral argument, appellant contended that the trial court did not (as it should have) make a factual finding determining whether the strikes of the jurors were a result of purposeful discrimination. In his brief, appellant suggests that, if there was such a finding, it was clearly erroneous. We disagree with both arguments.

A. The Batson Framework

Batson requires a three-part inquiry into whether the prosecutor engaged in purposeful discrimination while using a peremptory strike.

   [O]nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.

Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). Although the burden of producing evidence shifts during this inquiry, “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Id. at 768, 115 S.Ct. 1769 [emphasis added].

B. The Trial Court’s Ruling

The trial court’s comments must be read in the context of this three-step process. The court’s initial reaction was to state that the government’s explanation for striking juror number 442 “doesn’t pass muster.” Appellant contends that this statement constitutes a factual finding of purposeful discrimination, but it is important to recognize that it was made at the outset of the inquiry, not at step three of the analysis. After this comment was made, the court and the prosecutors engaged in a long discussion, and the court ultimately concluded that the reasons given by the prosecutors did indeed “pass muster,” in the sense that they were “non-race based reasons.”

        When defense counsel asserted that the prosecutors had not articulated “any unbiased reason” for striking the two jurors, the trial court responded:

I believe they did articulate non-race based reasons. I guess it’s not my job to agree with them or disagree with them but to listen and see whether the reason is based on anything that the jurors said or any behavior that the juror demonstrated, so I’d have to say at this point that it does not raise to the level of a legitimate challenge. . . .

The judge’s analysis properly recognized that, at step two of the Batson inquiry, it was not his “job to agree . . . or disagree with” the prosecutors’ strategy for exercising peremptory strikes. “Although the prosecutor must present a comprehensible reason, ‘[t]he second step of this process does not demand an explanation that is persuasive, or even plausible’; so long as the reason is not inherently discriminatory, it suffices.”Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006) (quoting Purkett, supra, 514 U.S. at 767–68, 115 S.Ct. 1769). Although the trial judge quickly moved from step two to step three of the inquiry, he clearly held that the prosecutors had satisfied step two by “articulat[ing] non-race based reasons.”

        The court then focused on step three of the Batson procedure to determine whether appellant had carried his burden of proving that the prosecutors were engaged in purposeful racial discrimination when exercising their pe­remp­tory strikes. At this stage, “the trial court must evaluate not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor.”Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). The court echoed these principles by commenting that its job was “to listen and see whether the reason is based on anything that the jurors said or any behavior that the juror demonstrated. . . .” His ultimate assessment was: “I’d have to say at this point that it does not raise to the level of a legitimate challenge. . . .” Considered in context, this conclusion is properly interpreted as a ruling on stage three of the Batson process.

C. Legal Analysis

Only the third step of the analysis is challenged on appeal. Because the prosecutors gave reasons for their strikes, the existence of a prima facie case is moot, see Epps v. United States, 683 A.2d 749, 752 (D.C.1996), and appellant concedes that “the government did articulate a race and gender-neutral reason for each strike.” This court’s case law does not specifically address whether being soft spoken or non-assertive are qualities that survive step two of a Batson challenge, but many courts have held that they do. E.g., People v. English, 119 A.D.3d 706, 988 N.Y.S.2d 697, 699 (2014) (soft spoken); State v. Carroll, 34 S.W.3d 317, 320 (Tenn.Crim.App.2000) (non-assertive); Magee v. State, 994 S.W.2d 878, 889 (Tex.Ct.App.1999) (soft spoken). We hold today that being soft spoken or non-assertive are both race-neutral explanations for a peremptory strike [emphasis added].

        For the reasons already stated, we reject appellant’s argument that the trial court failed to make a ruling on the issue of purposeful discrimination. We now turn to appellant’s attack upon the finding that was made.


The trial court observed the prosecutor and the jurors, and used these observations to make the finding quoted above. Given that the trial court is not required to make detailed factual findings, we hold that the trial court’s explanation is sufficient to satisfy the third part of Batson [emphasis added].

        Appellant contends that the trial court clearly erred in finding the race-neutral explanations credible because the prosecution did not ask the two African American male jurors questions during voir dire. This court rejected a very similar objection in Jefferson v. United States, 631 A.2d 13, 16 (D.C.1993) (rejecting an objection when the prosecution “excluded a black male who had not answered a single question during voir dire”). Since the trial court asked questions of these two jurors, could observe their responses first hand, and sua sponte pressed the prosecutors for more detailed ex­planations about why they wanted to strike these two jurors, the trial court was in the best position to make these critical credibility determinations.

        Considering all of the circumstances presented, we are not persuaded that the trial court’s finding of no purposeful discrimination was clearly erroneous.

        For the reasons already stated, we reject appellant’s argument that the trial court failed to make a ruling on the issue of purposeful discrimination.

My Thoughts

  • I would have missed this one. When I made it down to Judge Rankin’s comment that the prosecutor’s reasons for exercising his peremptory strike “doesn’t pass muster,” I would have guessed a different result. Wrong.
  • Most of us have been there. One side or the other has raised a Batson issue and the trial judge has called for a reason for the strike. Sometimes, the explanation is totally understandable. On other occasions, it sounds as though the lawyer is stretching for an explanation that was probably not the basis for his strike—if the truth be known.
  • What Johnson reaffirms is the lesson that Batson issues are decided on a case by case basis and that an appellate court—federal or Texas—will probably not find error in the trial judge’s ruling on the peremptory strike. Once again, we win or lose in the trial court.