Monthly archive

April 2015

April 2015 SDR – Voice for the Defense Vol. 44, No. 3

Voice for the Defense Volume 44, No. 3 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

The Fifth Circuit erred in holding that a federal habeas petitioner who prevailed in district court must file a separate certificate of appealability to respond to the State’s appeal. Jennings v. Stephens, 135 S. Ct. 793 (2015).

        Texas petitioner sought habeas relief based on three theories of ineffective assistance during the punishment phase of his state capital murder trial. The district court granted relief on his two “Wiggins theories”—that counsel failed to present evidence of a deprived background and failed to investigate evidence of mental impairment (Wiggins v. Smith, 539 U.S. 510 (2003))—but not on his “Spisak theory”—that counsel expressed resignation to a death sentence during his closing argument (Smith v. Spisak, 558 U.S. 139 (2010)). The court ordered Texas to release D unless, within 120 days, the State granted him a new sentencing hearing or commuted his death sentence. The State attacked the Wiggins theories on appeal, but D defended on all three theories. The Fifth Circuit reversed the habeas grant under the two Wiggins theories and determined that it lacked jurisdiction over the Spisak claim. Implicitly concluding that raising this argument required a cross-appeal, the Fifth Circuit noted that D neither filed a timely notice of appeal, see Fed. Rule App. Proc. 4(a)(1)(A), nor obtained the certificate of appealability required by 28 U.S.C. §2253(c). The Supreme Court reversed the Fifth Circuit and remanded.

        D’s Spisak theory was a defense of his judgment on alternative grounds, and thus he was not required to take a cross-appeal or obtain a certificate of appealability to argue it on appeal. D had prevailed on his Wiggins theories of ineffective assistance, and the district court’s judgment granted the prisoner the right to release, resentencing, or commutation, at the State’s option, and the Spisak theory would have given D and the State the same rights. When an appellee does not cross-appeal, he may urge a defense of his judgment on alternative grounds without filing a certificate of appealability unless doing so would enlarge his rights or lessen those of his adversary as provided by the previous judgment. It was clear that § 2253(c) required a certificate of appealability only when an appeal was taken to the court of appeals, which did not embrace the defense of a judgment on alternative grounds.

An Arkansas prison policy that prevented a Muslim prisoner from growing a half-inch beard in accordance with his religious beliefs violated the Religious Land Use and Institutionalized Persons Act. Holt v. Hobbs, 135 S. Ct. 853 (2015).

        D was an Arkansas inmate and a practicing Salafi Muslim. He sought an injunction and temporary relief from the Arkansas Department of Corrections’ grooming policy, which allowed trimmed mustaches and quarter-inch beards for diagnosed dermatological problems but otherwise no facial hair. D argued that growing a beard was a necessary part of the practice of his religion, that the grooming policy significantly burdened his ability to do so, and that the grooming policy was therefore a violation of the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc (RLUIPA). D was willing to limit his beard to one-half inch as a form of compromise with the policy. The district court granted temporary relief but then dismissed the complaint upon being presented with evidence of the other ways in which D was allowed to practice his religion and the extent to which the grooming policy was necessary to maintain prison security. The Eighth Circuit affirmed. The U.S. Supreme Court unanimously reversed and remanded.

        It was undisputed that the policy substantially burdened the inmate’s sincerely held religious belief that a beard was required by his religion, and there was no showing that the policy was the least restrictive means of furthering compelling prison interests. The unlikelihood of hiding contraband in a short and easily searched beard precluded showing of a compelling interest, and the prison did not require inmates to have short head hair. Nor was the policy the least restrictive means of furthering the interest in inmate identification, since the inmate could be photographed both with and without a beard and periodically thereafter as commonly occurred at other prisons.

D’s counsels’ actual conflict of interest met the “in­ter­ests of justice” standard and required the appointment of conflict-free counsel; furthermore, the counsel should not continue their court appointment and determine the existence of pleas regarding their own abandonment or misconduct. Christeson v. Roper, 135 S. Ct. 891 (2015).

        Petitioner D’s first federal habeas petition was dismissed as untimely. Because his appointed attorneys—who had missed the filing deadline—could not be expected to argue that D was entitled to the equitable tolling of the statute of limitations, D requested substitute counsel who would not be laboring under a conflict of interest. The district court denied the motion, and the Eighth Circuit summarily affirmed.

        “In so doing, these courts contravened our decision in Martel v. Clair [132 S. Ct. 1276] (2012).” An actual conflict of interest meets the “interests of justice” standard of Martel and requires substitution of conflict-free counsel for conflicted counsel appointed under 18 U.S.C. § 3599. Where D’s appointed attorneys had missed the filing deadline for his first habeas petition, D’s best argument for equitably tolling the limitations period was the attorneys’ own failure to satisfy the AEDPA’s statute of limitations, and thus, there was a significant conflict of interest. The two attorneys would have to claim serious attorney misconduct against themselves to prevent the enforcement of the statute of limitations, and they cannot reasonably be expected to do so. Secondly, the appointed counsel who procedurally defaulted D’s habeas application by untimely filing should not continue their court appointment and deter­mine the existence of, and plead, their own abandonment or egregious misconduct warranting equitable tolling of D’s statute of limitations. The Supreme Court reversed the district court and Eighth Circuit and remanded.

Fifth Circuit

District court erred in granting an acquittal for D convicted of knowing possession of child pornography; the government presented sufficient evidence such that the jury could find, beyond a reasonable doubt, that D down­loaded the files and knew what he was downloading. United States v. Smith, 739 F.3d 843 (5th Cir. 2014).

        The government did not need to rely on a theory of constructive possession because the evidence was sufficient to show that D actually possessed the child-pornography images at the time of download. Declining to require the district court to revisit its denial of D’s alternative motion for a new trial, the Fifth Circuit reversed the judgment of acquittal and remanded for sentencing.

The Fifth Circuit reversed D’s conviction for false registration of a domain name, 18 U.S.C. § 3559(g); the gov­ernment did not prove that D used the false domain name after it was registered. United States v. Simpson, 741 F.3d 539 (5th Cir. 2014).

The Fifth Circuit affirmed the denial of prisoner’s 28 U.S.C. § 2241 habeas petition challenging the constitutionality of the Federal Bureau of Prisons’ Inmate Financial Responsibility Program (IFRP); prisoner did not establish that the IFRP violated his constitutional rights to access to the courts, equal protection, or due process. Driggers v. Cruz, 740 F.3d 333 (5th Cir. 2014).

District court plainly and harmfully erred when it sentenced D, on revocation of his probation, to 30 months (over three times the recommended Guideline revocation range of three to nine months) based on D’s need for drug treatment. United States v. Wooley, 740 F.3d 359 (5th Cir. 2014).

        In sentencings on revocation of conditional liberty, just as in original sentencings, a district court may not impose or lengthen the term of imprisonment imposed solely for the pur­pose of promoting rehabilitation. Because this error affected D’s substantial rights and seriously affected the fairness, integrity, and public integrity of judicial proceedings, the Fifth Circuit remanded for resentencing.

In sentencing D convicted of making false statements relating to a credit application (in violation of 18 U.S.C. § 1014), district court reversibly erred in calculating the Guideline loss amount under USSG § 2B1.1 without a determination that all the conduct underlying the loss amount was criminal. United States v. Benns, 740 F.3d 370 (5th Cir. 2014).

        Relevant conduct must be criminal conduct; here, despite an objection on this point by D, the district court did not find, and the record did not show, that the losses were based only on criminal conduct. Accordingly, the Fifth Circuit remanded for resentencing to include findings on this point; the Fifth Circuit also held that the district court should make findings on (1) whether all the transactions included in relevant conduct were part of a “common scheme or plan,” and (2) whether D’s criminal acts actually caused the losses in question.

        (2) The district court’s restitution order was plainly erroneous because it included losses that were outside the strict parameters of D’s offense of conviction; because the error affected D’s substantial rights and seriously affected the fairness and integrity of the judicial proceeding, the Fifth Circuit remanded for reconsideration of the restitution amount.

District court did not err in denying Texas death-sentenced D’s motion to amend the judgment denying him federal habeas relief under Fed. R. Civ. P. 60(b); although D claimed that McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), rendered erroneous the district court’s prior ruling of procedural default, a change in decisional law does not constitute the extraordinary circumstances necessary to support Rule 60(b) relief. Tamayo v. Stephens, 740 F.3d 986 (5th Cir. 2014).

        Additionally, the district court was correct that D’s claim was not brought within a reasonable time because McQuiggin was decided on May 28, 2013, but D waited until January 20, 2014 (two days before his scheduled execution), to file his Rule 60(b) motion.

Death-sentenced Texas D, a Mexican national, was not entitled to a certificate of appealability or stay of execution for his claim that he was entitled to habeas relief on the U.S. treaty obligations as interpreted in a January 2014 decision of the Inter-American Commission on Human Rights. Tamayo v. Stephens, 740 F.3d 991 (5th Cir. 2014).

In prosecution for attempted use of a weapon of mass destruction, in violation of 18 U.S.C. § 2332a(a)(2), D was not entitled to suppress evidence acquired under the Foreign Intelligence Surveillance Act (FISA); based on its in-camera review of the classified materials, the Fifth Circuit held that the FISA searches were properly authorized and that the evidence collected during the searches was properly admitted. United States v. Aldawsari, 740 F.3d 1015 (5th Cir. 2014).

        Particularly, the Fifth Circuit found that the authorization of these searches was justified by a showing of probable cause to believe that D satisfied one of the definitions of “an agent of a foreign power” under 50 U.S.C. § 1801. Moreover, the objective of the searches was not solely the criminal prosecution of D, but also the protection of the nation against terrorist threats (which, under FISA, must be at least a “significant purpose” of the search).

        (2) District court’s instruction regarding the crime of attempt was not reversible error. Although one sentence taken in isolation was arguably flawed, the district court’s instruction taken as a whole correction described the “preparation-attempt continuum.” That is, when read in context, the court’s instruction adequately distinguished between “mere preparation,” which is not an attempt, and “some preparations,” which may amount to an attempt so long as such acts clearly indicate a willful intent to commit a crime.

        (3) District court did not err in cross-referencing, pursuant to USSG § 2K1.4(c)(1), to the guideline for attempted murder. Contrary to D’s argument, this cross-reference does not require a targeted victim. Moreover, even if targets were necessary under the cross-reference, there was evidence that D had considered many targets.

Fifth Circuit rejected D’s claim that the requirements of the Sex Offender Registration and Notification Act (SORNA) violated the First Amendment. United States v. Arnold, 740 F.3d 1032 (5th Cir. 2014).

        These requirements did not fit within the compelled-speech precedents of the U.S. Supreme Court. Furthermore, there is no right to refrain from speaking when essential operations of government require it for the preservation of an orderly society; sex-offender registration fits in this rubric.

District court properly denied child-pornography D’s motion to suppress evidence garnered from a search of his business pursuant to a search warrant; even with the information D claimed should have been included in the warrant affidavit, there would still have been probable cause for issuance of the warrant. United States v. Robinson, 741 F.3d 588 (5th Cir. 2014).

        Nor did the district court err in denying D’s motion to suppress evidence garnered as the result of a search of his residence. The information in the affidavit was not so stale that it rendered the affidavit a “bare-bones” affidavit. Moreover, the affidavit established a sufficient nexus between D’s residence and alleged child-pornography activity. Accordingly, the information was sufficient to entitle the executing officer to invoke the good-faith exception.

        (2) A sentencing court has the power to consider a defendant’s cooperation under 18 U.S.C. § 3553(a), irrespective of whether the government files a substantial-assistance motion under USSG § 5K1.1. This sentencing court’s failure to recognize its discretion to consider D’s cooperation under § 3553(a)(1) was a significant procedural error; on this record, that error was not harmless. The Fifth Circuit remanded for resentencing.

Where D pleaded guilty to firearms charges having to do with one firearm, the district court reversibly erred in applying a four-level enhancement pursuant to USSG § 2K2.1(b)(1)(B) on the ground that the relevant conduct involved between 8 and 24 firearms. United States v. Hagman, 740 F.3d 1044 (5th Cir. 2014).

        The other 11 firearms that were attributed to D disappeared in a burglary of the gun store where D worked; however, the record demonstrated only conjecture and suspicion that D was involved in the burglary. Because the government did not prove the applicability of the sentencing enhancement by a preponderance of the evidence, the Fifth Circuit remanded for resentencing.

Illegal-reentry D’s appellate challenge to the 16-level crime of violence enhancement was waived by the appeal-waiver provisions of his plea, which unambiguously waived the right to appeal the sentence “on any grounds set forth in Title 18 U.S.C. § 3742.” United States v. Rodriguez-Estrada, 741 F.3d 648 (5th Cir. 2014).

        Although D reserved (with the permission of the magistrate judge administering the guilty plea) the right to object to the characterization of the prior conviction as a “crime of violence,” this reservation only allowed D to raise this objection during sentencing and did not carve out an exception to the appeal waiver. Finding the appeal waiver applicable, the Fifth Circuit dismissed D’s appeal.

Court of Criminal Appeals

The district attorney’s certification is necessary to confer jurisdiction on the court of appeals; courts were not hypertechnical in requiring the prosecutor to vouch for the facts that his interlocutory appeal was not being taken for purposes of delay and that the evidence suppressed was of substantial importance. State v. Redus, 445 S.W.3d 151 (Tex.Crim.App. 2014).

        In these two consolidated cases, the trial judge granted Ds’ motions to suppress evidence. The State filed a notice of appeal in each case, but COA dismissed the appeals, concluding that it did not have jurisdiction because the elected district attorney failed to comply with Tex. Code Crim. Proc. art. 44.01(a)(5)’s certification requirements because the district attorney did not timely file the required facts that the appeal was not made for purposes of delay and the evidence suppressed was of substantial importance to the case, but simply signed a document that quoted the statute. The State filed for CCA to review whether COA’s interpretation of the certification requirement was “hypertechnical” and contrary to statutory construction.

        “We conclude that it was neither. As we explained in State v. Riewe [13 S.W.3d 408 (Tex.Crim.App. 2000)], the district attorney’s certification is necessary to confer jurisdiction on the court of appeals. We, therefore, affirm COA’s judgments in these cases.”

Ushering out friends and family during D’s voir dire, without a legitimate overriding interest, closed a critical stage of the proceedings, violating D’s rights. Cameron v. State, No. PD-1427-13 (Tex.Crim.App. Oct 8, 2014, reh’g granted).

        In this murder case, appellant argued that her constitutional right to a public trial was violated when the trial court excluded the public from voir dire. She appealed the conviction and sentence of 70 years’ imprisonment and a $5,000 fine. COA reversed her conviction and remanded for a new trial. CCA affirmed COA.

        “In all criminal prosecutions, the accused shall enjoy the right to a . . . public trial. . . .” This right extends to voir dire and is necessary to ensure that jurors, prosecutors, and the court are kept aware of their responsibility and can carry out their functions. It also discourages perjury by holding parties responsible to the public. A violation of this right is a structural error and does not require a showing of harm. The right to a public trial may give way to other competing rights or interests (such as a defendant’s right to a fair trial). However, these circumstances should be rare, and the trial court must issue findings specific enough for a reviewing court to determine if the closure was properly ordered. Here, the record established that the courtroom was closed during voir dire because counsel made an undisputed statement that D’s friends and fam­ily were ushered out and not allowed back in; the judge, far from disputing these facts, attempted to justify the removal of observers by citing space limitations and safety concerns. The trial court did not make findings to support a legitimate overriding interest for this closure. Therefore, D’s rights were violated because space limitations and safety concerns did not outweigh the right to a public trial under U.S. Const. Amend. VI; the trial court could have moved to a bigger courtroom or split the panel in half and did not make any specific findings as to security. Furthermore, defense counsel preserved this com­plaint for appeal; the record shows very clearly that, as soon as the court went on record, defense counsel brought the complaint to the court and requested (at least six separate times) that the court rule on his objection, but the court declined to rule.

In an appeal from a judgment reversing the trial court and acquitting D of aggravated sexual assault of a child, CCA found that a reasonable jury could have inferred the child complainant mistook D’s closed eyes and heavy breathing for sleep. Whatley v. State, 445 S.W.3d 159 (Tex.Crim.App. 2014).

        A jury found D guilty of aggravated sexual assault of a child by touching. On direct appeal, D claimed that the evidence was legally insufficient to support his conviction because the State did not offer evidence disputing his claim that he was asleep at the time and that his actions were therefore involuntary. COA agreed and reversed the trial court and entered a judgment acquitting D. CCA reversed COA and remanded for consideration of D’s final point of error.

        “Viewing the evidence in the light most favorable to the verdict, we conclude that a jury could have reasonably inferred that appellant was awake, but feigning sleep, when he inappropriately touched the complainant and that his actions were therefore voluntary under Section 6.01(a) of the Texas Penal Code.” A reasonable jury could have had difficulty believing that D, who only sometimes fell asleep quickly while in bed with his wife, was so deeply asleep within minutes on three different occasions that he unconsciously undertook the dexterous action of putting his hands inside the complainant’s pants.

D properly preserved his voir dire objection because once D posed the question he sought to ask and the trial court refused to allow the question, the court’s ruling amounted to a direct order not to ask the question and thus D obtained a specific ruling as to a specific question and properly preserved the issue. Samaripas v. State, No. PD-135-13 (Tex.Crim.App. Oct 15, 2014).

        A jury convicted D of engaging in organized criminal activity and sentenced him, as a habitual criminal, to 53 years in prison. On appeal, D argued that the trial court improperly sustained the State’s objection to D’s questions during voir dire. COA concluded that D failed to preserve error for appellate review. CCA granted review of Appellant’s following questions: (1) To preserve error relative to a limitation on voir dire examination of a prospective juror, must a defendant object after the trial court sustains the State’s objection to a proposed question? (2) May a non-aggravated state-jail felony conviction, previously punished under the range for a second-degree felony, be used for the purpose of enhancing punishment to that of a habitual criminal under Tex. Pen. Code § 12.42(d)?

        “We hold that error was preserved and that the court of appeals failed to apply the correct, particularized standard re­garding preservation of error during voir dire. We further hold that under Sections 12.42(d) and (e) of the Texas Penal Code as it was worded at the time of Appellant’s offense in the present case, the non-aggravated state-jail felony conviction that was punished as a second-degree felony was properly used for subsequent habitual-criminal punishment enhancement. We will reverse and remand to the court of appeals for consideration of the merits of the first issue.”

D who chose to employ peremptory strikes outside the strike zone could not then complain about harm concerning a juror within the strike zone who could have been removed instead. Comeaux v. State, 445 S.W.3d 745 (Tex.Crim.App. 2014).

        “This is a case of first impression in Texas. A jury convicted appellant of burglary of a habitation and sentenced him to fifty years’ imprisonment. Appellant appealed his conviction, arguing that the trial judge erred when he denied a challenge for cause to a potential juror. [COA] affirmed, holding that appellant failed to preserve error on the challenge for cause because, although he exhausted his peremptory strikes and identified an objectionable juror, he used a peremptory strike on a potential juror Comeaux outside of the ‘strike zone,’ and thus suffered no detriment. . . . We granted review to determine if a defendant, while using all of his peremptory strikes ‘wastes’ one on a venireperson who is not in the ‘strike zone,’ has preserved his claim of an erroneous denial of a challenge for cause for appellate review. The issue, however, is one of harm, not preservation. We hold that appellant failed to show harm because he could have, but chose not to, strike the objectionable juror.”

        Even if a trial judge had erroneously denied D’s challenge for cause to a potential juror, D did not show harm because the ruling did not force him to waste a peremptory strike, given that he could have, but chose not to, strike the objectionable juror, instead skipping over the juror and striking a later panel member who was not even within the strike zone of potential jurors. CCA affirmed D’s conviction.

The record was clear that the trial judge orally made restitution part of the sentence, but either the amount or the person(s) to whom it was owed was unclear, incorrect, or insufficient; COA should vacate the faulty order and remand for a new restitution hearing. Burt v. State, 445 S.W.3d 752 (Tex.Crim.App. 2014).

        “Appellant was convicted of misapplication of fiduciary property in excess of $200,000, sentenced to 14 years’ confinement, and given a $10,000 fine. The trial court orally pronounced at the end of the sentencing hearing that appellant would owe restitution, but he did not specify the amount. The next day, the trial judge entered an order for $591,000 restitution in the written judgment. The court of appeals vacated the order and remanded the case to the trial court for a restitution hearing. Appellant claims that the appellate court should have simply deleted the restitution order. We agree with the court of appeals that remanding the case for a formal restitution hearing is proper because this practice is consistent with our case law and adequately protects a defendant’s due-process rights while providing justice to victims.” Because the trial judge made restitution part of his oral pronouncement of sentence, the restitution order under Tex. Code Crim. Proc. art. 42.037 was not to be deleted.

Forged checks were properly suppressed because probable cause did not support D’s warrantless arrest for misdemeanor assault of her boyfriend, and thus the search of her parked car could not be justified as inci­dent to the arrest; an anonymous report of a vehicle chasing a man in a field did not support the arrest because both involved parties indicated they were having an argument and D was simply driving beside the boyfriend. State v. Story, 445 S.W.3d 729 (Tex.Crim.App. 2014).

        “Appellee . . . was charged with forgery after police found forged checks in her car. See Tex. Penal Code § 32.21 (2014). The trial court, however, granted her motion to suppress the checks that were recovered from her vehicle, which was searched during the arrest of Appellee and her boyfriend . . . for unrelated offenses. The trial court determined that Appellee was arrested without probable cause and that the search of her vehicle and seizure of the evidence found there were the result of a trespass by the officer. The court of appeals affirmed the ruling of the trial court, finding no abuse of discretion in the court’s conclusion that Appellee’s arrest was unlawful and the evidence inadmissible. We agree with the court of appeals[.]”

D’s convictions for both contacting and penetrating the victim’s sex organ with his mouth violated his right against multiple punishments for the same offense in the Double Jeopardy Clause of the U.S. Const. amend. V because the contact and the penetration were based on the same act; the facts necessary to prove contact were included within the proof necessary to establish penetration. Aekins v. State, 447 S.W.3d 270 (Tex.Crim.App. 2014).

        “A jury found [D] guilty of three counts of sexual assault. [COA] held that his convictions for both contacting and penetrating the adult victim’s sexual organ with his mouth violated his right against multiple punishments for the same offense because the contact and penetration were based on the same act. We granted the State Prosecuting Attorney’s petition for discretionary review to clarify that (1) when a single exposure or contact offense is ‘incident to and subsumed by’ a penetration offense, the offenses are the ‘same’ for double-jeopardy purposes, and (2) the Texas Legislature has not manifested its intent to allow multiple punishments for those ‘same’ offenses, so (3) multiple convictions for those ‘same’ offenses violate double-jeopardy principles. We conclude that [COA] properly vacated the conviction for the ‘contact’ sexual-assault count, and we affirm its judgment.”

Where D was improperly sentenced to 10 years’ confinement after a community supervision revocation, the right to be sentenced by a judge who considered the entire range of punishment was not subject to procedural default because it was a waiver-only right. Grado v. State, 445 S.W.3d 736 (Tex.Crim.App. 2014).

        D’s community supervision was revoked, and the judge sentenced D to ten years’ confinement, believing that was the statutory minimum for D’s offense when in fact it was five. D did not object. D appealed his sentence and conviction asserting that (1) the judge arbitrarily refused to consider the correct range of punishment, and (2) he was constructively denied effective assistance when counsel agreed with the State’s representation of the minimum punishment. COA held that D’s first claim could be raised for the first time on appeal; COA held that “the right to be sentenced under the correct statute by a sentencing authority who has meaningfully considered the appropriate range of punishment” falls under the second category of Marin v. State, 851 S.W.2d 275 (Tex.Crim.App. 1993), a right that “must be implemented by the [legal] system unless expressly waived” and does not require a contemporaneous ob­jection. COA found that the judge’s error was harmful under Tex. R. App. P. 44.2(b) and did not address D’s ineffective-assistance claim. CCA granted the State’s sole ground for review of COA’s Marin analysis: Is the right to be sentenced by a judge who considers the entire range of punishment subject to procedural default? Concluding that it is a waiver-only right, CCA held that it is not and affirmed COA.

        The application of the general preservation requirement of Tex. R. App. P. 33.1 turned on the nature of the right allegedly infringed on. The right to be punished after consideration of the full range of punishment fell outside of a Marin category-one right because it was waivable or forfeitable by the parties. The due process right here was a significant feature of the judicial system that was properly classified as a category-two right. Because the record did not show an effective waiver of the right, the merits of the complaint were properly entertained.

In this habeas proceeding, CCA denied D’s motion to remand the Tex. Code Crim. Proc. art. 11.07 habeas application to the convicting court for additional fact development by way of an evidentiary hearing because he was required to file any supplemental materials in the convicting court. Ex parte Whisenant, 443 S.W.3d 930 (Tex.Crim.App. 2014).

        By filing his affidavits and declarations directly with CCA, D deprived the convicting court of evidence and undermined its statutory duty to decide whether there were controverted, previously unresolved facts material to the legality of his confinement. If supplemental materials are filed only with CCA, it will not consider them absent compelling and extraordinary circumstances. D offered no such circumstances in his motion to remand. “If Applicant wishes to properly present his affidavits, declarations, and other documentary evidence to this Court, he may file them with the convicting court in Johnson County within 30 days of the date of this order. If he does file them there, the District Clerk shall immediately forward them to this Court as a supplemental record.”

Court of Appeals

Trial court did not unreasonably or arbitrarily interfere with D’s right to choose retained counsel (in violation of U.S. Const., amend. VI; Tex. Const. art. I, § 10; or Tex. Code Crim. Proc. art. 1.05) where the record did not reflect that D or anyone on his behalf took steps to retain another lawyer, he did not request additional time to retain another lawyer, and he did not state he could no longer afford retained counsel. Ibarra v. State, No. 14-13-00337-CR (Tex.App.—Houston [14th Dist] Jan 22, 2015).

        Furthermore, the trial court did not err by not appointing counsel under Tex. Code Crim. Proc. art. 1.051 where, although D requested appointment of counsel, he did not assert that he was indigent, make any showing that he was indigent, or request a determination of indigency.

D was denied effective assistance; D’s counsel incorrectly believed D was eligible for deferred adjudication community supervision, and D cannot be said to have entered his plea knowingly and intelligently if he did so while operating under a misunderstanding of the law applicable to such a critical phase of his case. Anthony v. State, No. 07-13-00089-CR (Tex.App.—Amarillo Feb 12, 2015).

        In 2009, D entered a plea of guilty to aggravated sexual assault. The trial court accepted the plea and placed D on deferred adjudication community supervision for eight years. The Order found the age of the victim to be three years. In 2013, the State moved to proceed with an adjudication of guilt alleging D violated his community supervision. At a hearing on the motion, D entered pleas of true; after hearing testimony, the trial court adjudicated him guilty of the offense and assessed punishment at confinement for life.

        Appellant here sought to reverse the trial court. Among other contentions, he contended his original plea was involuntary under Tex. Code Crim. Proc. art. 26.13(b) because it was based, in part, on the representation that he was eligible for deferred adjudication community supervision (wherein the trial court was not authorized to place D on deferred adjudication community supervision under Tex. Code Crim. Proc. art. 42.12, §§ 3(e)(1) and 5(d)(3)(B) when he was charged with an offense punishable under Tex. Penal Code § 22.021(f)). Appellant contended that but for that representation, he would not have given up his right to a jury trial and entered a plea of guilty. COA found the ineffective assistance claim to be dispositive and pretermitted the remaining issues.

        “We examine an ineffective assistance of counsel claim by the two-pronged standard enunciated in Strickland . . . that (1) trial counsel’s performance was deficient in that it fell below the prevailing professional norms, and (2) the deficiency prejudiced the defendant. . . . [C]ounsel provided Appellant incorrect legal advice concerning the range of punishment ap­pli­cable to the offense charged. Counsel’s incorrect legal advice was reinforced and compounded by the acquiescence of both the prosecutor and the trial judge. Not knowing the law applicable to the offense charged is competence below the professional norm. Accordingly, because obtaining a guilty plea in exchange for a recommendation that was not legally available deprives the accused of the opportunity of making an intelligent choice among legally available courses of action, we find the record clearly establishes that the performance of Appellant’s trial counsel was deficient. . . . [W]e need look no further than the negotiated plea bargain itself to find prejudice. . . . Defense counsel’s mistaken belief that Appellant was eligible for deferred adjudication community supervision, compounded by the misguided consensus of the prosecutor and the trial court, resulted in an erroneous understanding of the law applicable to his case, which reasonably induced Appellant into entering a plea of guilty[.]”

There was insufficient evidence to support the finding that a valid suspension period related to the suspension of D’s driver’s license was in effect on November 6, 2012, because the State introduced neither competent evidence of convictions of D for driving without proof of financial responsibility nor evidence that the Texas Department of Public Safety had automatically suspended his license as of November 6, 2012. White v. State, No. 06-13-00110-CR (Tex.App.—Texarkana Feb 18, 2015).

            D was convicted by a jury of driving while license invalid with a previous conviction for driving while license invalid, and he was sentenced to 90 days in jail with a $1,000 fine. D appealed that there was insufficient evidence for his conviction because there was no evidence that a valid suspension period was in effect at the time he was operating his vehicle. COA found that there is insufficient evidence that any suspension of his driver’s license was in effect at that time. COA reversed the trial court and rendered an acquittal.

‘If DNA, Then Guilty’: Strategies for Overcoming Juror Assumptions About DNA Evidence in Criminal Trials

Introduction

Through media and popular culture sources, prospective trial jurors gain some information about forensic evidence.1 To use an adage, they are obtaining just enough information to be dangerous. As is constantly bemoaned in legal articles and war stories from the trenches, these pop-culture sources are actually making the job of attorneys all the more difficult.2 Clients hire defense attorneys and have expectations about next-day trials, courtroom theatrics, and the use of high-tech gadgets to uncover that single “gotcha” piece of evidence that proves their innocence beyond a reasonable doubt.

Jurors, on the other hand, are a whole other can of worms. Jurors enter the courtroom with the same skewed expectations, but they are not necessarily willing to listen to a defense attorney’s pleas to take forensic evidence with a grain of salt and resist the urge to jump to a conclusion of guilt the moment they hear those three letters: D-N-A. It is reasonable to opine that a majority of jurors enter a courtroom familiar with DNA evidence and possessing preconceived notions of the role this evidence plays in the criminal justice system.3

It is also reasonable to say that jurors are likely to truncate the logical progression between the presence of DNA evidence and a finding of guilt. In other words, jurors may be tempted to follow “if DNA, then guilty” reasoning—if there is DNA evidence, then the defendant must be guilty of the crime. The prosecution typically presents forensic evidence in broad strokes with the use of clear, concise, and conclusory statements: “The defendant’s DNA was found at the scene of the crime. Therefore, the defendant must have committed that crime.” When the evidence is presented in this manner, it is tempting to trust and accept that storyline; it makes sense and it is congruous with the way DNA evidence is presented in television shows and movies. Still, many jurors possess the analytic skills necessary to critically evaluate the evidence.

It is the job of defense attorneys to understand the “if DNA, then guilty” paradigm. The analytic journey from DNA evidence to a guilty verdict is grounded in several assumptions:

(1) The DNA evidence itself is reliable and accurate;
(2) The DNA evidence identifies the defendant, complainant, or other party necessary to prove guilt;
(3) This identification means that the individual was present at the scene where the DNA evidence was recovered;
(4) The identified individual had the opportunity to commit the alleged action;
(5) The DNA evidence proves that the identified individual engaged in the specific acts alleged; and
(6) The proof that the identified individual was present, had an opportunity, and did actually commit the act demonstrates guilt.

By revealing the analytic steps and their assumptions, the defense provides jurors an opportunity to consider, evaluate, and question the probative value of the proffered DNA evidence. Instead of focusing solely on battling the “DNA” step (i.e., challenge the scientific validity of the DNA evidence itself), the defense team should challenge the logical, inferential connections between the DNA evidence and a finding of guilt. Following this path, the defense is not faced with the daunting task of challenging the science and breaking it down in a way that a lay juror can understand.

This is not to suggest that a defense attorney should forgo attacking DNA evidence on the basis of the underlying science, raw data, or process. On the contrary, a defense attorney has a duty to ensure that the prosecution’s DNA evidence is accurate and reliable. An attorney’s decision not to attack the underlying science behind the DNA evidence can only be made after a diligent and thorough scientific review of the evidence. Unless the facts of the case support an alternate strategy—e.g., there is no basis whatsoever for the client to challenge the fact that his or her DNA was found at the scene—a lawyer cannot forgo making a scientific challenge without first completing a competent investigation and evaluation of the proffered DNA evidence.

Rather, this article suggests an additional/alternate method for rebutting DNA evidence that is separate and distinct from a strategy that focuses exclusively on challenging the science behind the evidence. The defense should challenge the science in tandem with other logic-driven strategies that are more approachable for the trier of fact. In doing so, a defense team can effectively identify and present a plausible alternative explanation for the DNA evidence and then use that evidence to support the alternate hypothesis while simultaneously challenging the jury’s assumptions about guilt. This article illustrates this strategy with an example from a multi-count Texas criminal sexual conduct trial that took place in 2013.

Case Facts and Background

The complainant, an eight-year-old female and the defendant’s former step-daughter, alleged that the defendant had brought her into her bedroom and forced her to perform oral sex on him. The complainant also alleged that after the defendant ejaculated into her mouth, she spat the ejaculate onto the floor near her bed. The Texas attorney general was in the midst of a hotly contested campaign for governor of Texas and he wanted to demonstrate that he was “smart on crime.” He took the case away from the local county prosecutor, assigned an assistant attorney general (who literally wrote the book on prosecuting sex crimes in Texas), and assembled a large team of investigators, litigators, forensic laboratory personnel, and Children’s Advocacy Center interviewers, trainers, and therapists. The state’s team obtained warrants, used sophisticated lighting technology to locate stains on the carpet in the child’s room, and discovered the defendant’s extensive rental history of movies featuring a young-girl-oral-sex theme.

The defendant was charged with two counts of Aggravated Sexual Assault of a Child (First Degree Felony, Tex. Pen. Code § 22.021) and one count of Indecency with a Child by Sexual Contact (Second Degree Felony, Tex. Pen. Code § 21.11). He was facing many decades in prison, and the Texas crime lab gave the prosecution a tremendous amount of DNA evidence to help put the defendant away.

The Prosecution’s Use of DNA Evidence

During the investigation, the police used an alternative light source in the child’s room, found multiple fluorescing stains, and recovered a large piece of carpet from the bedroom floor. The crime lab then tested and retested numerous stains from the carpet. The crime lab’s forensic biologists used a method called “differential DNA extraction” on the carpet stain samples. This technique attempts to purify a sperm cell DNA fraction—separating it from a second DNA fraction derived from non-sperm types (which can originate from various sources such as saliva, skin, or sweat). Although the DNA derived from the sperm fraction should be almost entirely comprised of male DNA, analysts are often unable to achieve a pristine purification of the sperm cell DNA.4 In other words, it is possible that DNA derived from a number of non-sperm cell types could potentially end up in the sperm fraction. Keeping that in mind, if any differential extraction is performed on a mixture containing semen and saliva (presuming the accuracy of the complainant’s allegations), the non-sperm cell fraction should logically include a substantial DNA component originating from salivary epithelial cells.5

To determine the origins of the DNA recovered from each of the two fractions from each carpet stain, the forensic lab initially gathered DNA samples from the defendant and the complainant for comparison purposes. The lab then compared the DNA profiles of the defendant and complainant to the DNA recovered from the carpet stains. In their first report, the forensic lab established that two of these stains, labeled “Stain A” and “Stain G,” did indeed contain a mixture of sperm and non-sperm cell DNA. They also reported that the majority of the sperm cell fraction from “Stain A” matched the defendant’s DNA profile. As for the non-sperm cell fraction in “Stain A,” the lab reported a DNA mixture that was consistent with DNA profiles from the defendant, the complainant, and one unknown individual. In addition, the lab concluded that the sperm cell fraction from “Stain G” contained a mixture of DNA that matched the defendant, the complainant, and an unknown male. The non-sperm cell fraction in “Stain G” contained a mixture of DNA matching the complainant, an unknown male, and another individual.

Six months after the initial report, the state decided to collect and test a sample from the complainant’s mother in order to compare her DNA profile with the mixtures reported from “Stain A” and “Stain G.” Remember, individuals obtain half of their unique DNA from their mothers and half from their fathers. In the end, the crime lab had to acknowledge that the complainant’s mother could have been a contributor to the non-sperm cell DNA component observed within the “Stain A” and “Stain G” DNA mixtures.

Also, a kinship analysis was done to determine the identity of the “unknown male.” The lab concluded that the DNA most likely came from an individual who was either the biological father or a male child of the defendant. The prosecution, however, did not pursue either the defendant’s father or son as potential suspects.

Because the many tests and analyses could easily overwhelm the jury, the prosecution’s presentation was simple and straightforward. The police found two stains in the complainant’s bedroom containing a mixture of sperm cell and non-sperm cell (that could have been salivary epithelial cells) DNA. In other words, it was entirely possible that the complainant’s story about spitting ejaculate onto the carpet in her bedroom was true given that there were stains containing the defendant’s sperm cell DNA mixed with non-sperm cell DNA that may have come from the complainant’s saliva. It would be difficult for a jury to not be swayed by this straightforward and obvious reasoning. Instead of plowing through the complexities of science, DNA testing, and probabilities, the prosecution was able to present this evidence in a way that was clear-cut and trustworthy.

The Defense’s Counter to the Prosecution’s DNA Evidence

The defense recognized from the outset that the state’s forensic biology methods were overwhelmingly complex, to say the least. Effectively reviewing and understanding articles about the science associated with extracting DNA evidence and the statistical analysis of match probability was challenging as well. For that reason, the defense team determined early in its preparation that it would be too taxing and time-consuming to educate jurors on how to decipher various results from the state’s many tests, stains, and assays. The defense resolved to treat the DNA like any other evidence—pull it from the realm of science and demystify it as much as possible. As opposed to approaching the DNA results as a set of numbers, graphs, and probabilities, the defense treated the DNA results as a set of facts that could be rationally described in an alternate context.

The defense had an alternate hypothesis of the DNA evidence: The defendant had broken his ankle and needed to sleep in a room with a bed that was low to the ground. The complainant spent much of her time at her biological father’s house (i.e., not the defendant’s home) and, therefore, her bedroom was often unoccupied. As a result, the defendant slept in the complainant’s room when she was staying with her father, given his injury and inability to safely get in and out of the bed in his room. Additionally, when the complainant was visiting her father, the defendant engaged in normal marital relations with his wife (the complainant’s mother). According to the defense’s theory of the case, it was reasonable that any semen from the defendant—as well as the corresponding sperm cell DNA fraction—was present as a logical consequence of his sexual encounters with his wife, not the complainant.

In order to make this alternate hypothesis plausible and bend the prosecution’s DNA evidence to support the theory, the defense team worked closely with another DNA expert witness who could explain the evidence in a way that a lay person could understand. This was essential. From there, the defense went through the assumptions listed earlier, figuring out what conclusions were necessary for a jury to get from the DNA to a finding of guilt. And finally, where possible, the defense launched an attack on the most susceptible assumptions.

Who Was Actually Present According to the DNA Evidence?

The defense team first attacked the assumption that the DNA evidence, having identified the defendant and placed him in the complainant’s bedroom at some point in time, also proved that the defendant committed the alleged acts. In order to rebut this assumption, the defense team set out to show that the DNA evidence equally supported the defendant’s alternate hypothesis (i.e., that his semen was present as a result of sexual encounters with the complainant’s mother). The DNA evidence could be put in this context by showing that the non-sperm cells mixed with the defendant’s sperm cells most likely came from the complainant’s mother, rather than the complainant.

Table 1 is a portion of data taken from an “STR Worksheet” (called short tandem repeats in lab vernacular6) produced by the state’s forensic lab in the case.7

Without context or explanation, these numbers are nonsensical and somewhat intimidating. This is the reason the data should not be presented to jurors in this unapproachable format without clear and detailed explanations. To that end, the defense team developed a way of using the numbers in Table 1 to support the conclusion that the DNA mixture only contained sperm cells from the defendant and non-sperm cells from the complainant’s mother. How was this done?

The column on the far left of the STR Worksheet (Table 1) lists the identification/source of the DNA (a sample from the defendant, a sample from the complainant, a sample from the complainant’s mother, the sperm fraction of Stain A, the non-sperm fraction of Stain A, the sperm fraction of Stain G, and the non-sperm fraction of Stain G). The top row contains a list of loci. Loci are areas along a strand of DNA that contain specific genes (i.e., alleles). To establish consistency between a known set of alleles (i.e., from a defendant) to an unknown set of alleles (i.e., in a stain or sample), the lab looks at the corresponding loci of the two DNA strands and determines whether or not there is such a consistency among the alleles.8 The numbers listed within the chart represent the identified STR alleles (i.e., the number of short tandem repeats of a particular DNA sequence) at the specific locus. For example, one of the loci tested was “D8S1179.” At that locus, the defendant’s alleles are 14, 14 while the complainant’s alleles are 11, 11 and the mother’s are 11, 15.9 To use the STR Worksheet table, a lab technician need only play a matching game—observe a person’s specific STR alleles from the various loci and note the inventory of matching alleles at the same set of loci with regard to the DNA results from each carpet stain. In analyzing a degraded or mixture sample10 (i.e., one containing DNA from multiple contributors as in the defendant’s case), if numerous matching alleles are observed from an individual, then this person most likely contributed DNA to the evidence sample.11 The struggle for the defense was to present this information in a way that made sense, especially when the defense depended on explaining the allelic results in its favor.

Defense counsel explained the significance of the results in laymen’s terms. It was the burden of the state’s forensic biologist to demonstrate consistency between the defendant’s alleles from each locus column to the alleles found in the evidentiary samples. With each consistent allele, the analyst could testify to an increased likelihood of a genuine profile match between the individual’s DNA and the DNA reported from the carpet stain. However, to be truly certain that the defendant, the complainant, or another individual contributed DNA to each mystery stain, it was important to determine each individual’s unique alleles (i.e., those numeric designations that only one individual from the group of potential contributors carries at a specific locus). The three-person universe in this case was defined as follows: the defendant, the complainant, and the complainant’s mother. To compile an inventory of unique alleles, the defense compared the allele pairs of the defendant, the complainant, and the complainant’s mother. After this was accomplished, the defense team blacked out any numbers that overlapped or matched. The remaining numbers were that individual’s unique alleles (see Table 2).

Looking at the resultant chart, the defense indicated to the jury the following assertions:

The defendant had the following unique alleles at each locus: (a) 14 and 14 at D8S1179; (b) 29 and 29 at D21S11; (c) 10 at D7S820; (d) 12 and 12 at CSF1PO; (e) 6 at TH01; (e) 12 at D13S317; (f) 13 at D16S539; (g) 11 and 13 at D19S433; (h) 14 and 19 at vWA; (i) Y at AMEL; (j) 13 at D5S818; and (k) 20 and 24 at FGA.

The complainant had the following unique alleles at each locus: (a) 10 at D13S317; (b) 19 at D2S1338; (c) 15 at D19S433; (d) 15 at D18S51; and (e) 19 at FGA.

The complainant’s mother had the following unique alleles at each locus: (a) 15 at D8S1179; (b) 11 at D7S820; (c) 24 at D2S1338; (d) 18 at vWA; and (e) 26.2 at FGA.

Based on these data, the defense agreed that the DNA evidence meant that the defendant was, in fact, present in the complainant’s bedroom. His unique alleles could be found in the sperm and non-sperm fractions of each stain.

The same could not be said for the complainant. While the prosecution categorically stated that the complainant’s non-sperm cells (most likely salivary epithelial cells) were those mixed with the defendant’s sperm cells, her unique alleles were not present in any of the evidentiary samples. This was the opening the defense sought to exploit. The only way the state’s assertion could be proven true was if the STR Worksheet showed that the stains contained the complainant’s unique alleles in the stain mixtures. The state had to admit on cross-examination that the complainant and the complainant’s mother shared many alleles at each locus. As a result, they had far fewer unique alleles than the defendant. It would be impossible to conclude whether the complainant or her mother had contributed an allele to the stain mixture because it could plausibly have come from either individual.

Moreover, in comparing the unique, non-blacked-out alleles in the chart to the alleles in each stain, Table 3 shows that there were unique alleles from the defendant (bolded) and the complainant’s mother (underlined), but none from the complainant herself (italicized).

The task was to present this evidence in a clear and concise manner. Essentially, the defense team’s DNA expert testified that he could not agree with the lab’s conclusion that the complainant’s DNA was in the stain mixtures. His opinion was based on the fact that the alleles unique to the complainant, which would have demonstrated with a greater certainty that the complainant’s DNA was present, were nowhere to be found in the carpet stain mixtures. Instead, the defendant’s story that he had engaged in sexual intercourse with the complainant’s mother was far more likely given that some of the mother’s unique alleles were clearly present in the stain mixtures. This testimony undercut the jury’s assumption that the mixture of DNA meant that the defendant had engaged in forced oral sex with the complainant.

Did the DNA Evidence Prove That the Complainant’s Story Was True?

The defense also challenged the jury’s assumptions by demonstrating that there was not enough DNA from any of the individuals listed to prove that the complainant’s story was true. This was a two-pronged attack.

First, the defense used the electropherograms (e-grams) to compare the amount of DNA from each individual found in each of the stain mixtures. Table 4 is an example of a portion of one of the e-grams (from the non-sperm fraction of Stain A on the carpet).

Obviously, these charts can be more harmful than helpful without context. The defense team used its DNA expert to explain that this chart represents three specific loci that the lab examined to compare the alleles between the unknown stain DNA and each individual’s DNA. The peaks (depicted in a way that is similar to the heartbeat-like signals on an EKG chart) represent the amount of each allele found at each locus. The higher the peak, the greater the quantity of DNA representing that allele.12 The defense used the e-grams to show that the alleles unique to the defendant comprised the vast majority of genetic material in the stains. The much larger peaks on this e-gram (all corresponding to the defendant’s alleles) were highlighted in blue. This was then compared with the much smaller peaks (alleles that certainly could not have been contributed by the defendant)—which were highlighted in pink to signify a presumed female contribution (given that these alleles could have come from either the complainant or the complainant’s mother). Again, this color-coded depiction illustrated the presence of profoundly more DNA from the male defendant in comparison to DNA from any presumed female contributors detected in each of the stains.

Slowly, and in step-by-step fashion, the defense demonstrated that the complainant’s story was highly implausible. Saliva is a very rich source of DNA material. In the event that the complainant had actually deposited a saliva/semen mixture onto the carpet, positive saliva tests could have been readily obtained. The lab, however, had never analyzed the carpet stains for the presence of saliva, even though tests for saliva detection are widely available and in common usage in labs across the country.13 Furthermore, the e-grams would have revealed much more than the diminutive pink signals by comparison to the observed larger blue peaks. Essentially, the e-grams showed that there was very little DNA from any female contributor—certainly not enough to prove the presence of DNA-rich saliva—which undermined the complainant’s story about spitting onto the floor. The data simply did not support the state’s conclusion given the comparative amounts of DNA from the three individuals tested.

Second, the defense also focused on the lab’s finding with regard to the overall amount of sperm cell DNA recovered from the carpet stain mixtures. After the complainant’s direct examination at trial, which included grisly stories of repeated abuse, and after the state’s experts described test after test and stain after stain, the prosecution’s version of the story made it sound as if the stains contained massive amounts of ejaculate from the defendant. The defense surmised that this overreach impacted the jurors’ imaginations as to how much semen was present on the bedroom carpet. In order to combat this assumption and the assumption that the presence of the defendant’s semen supported the veracity of the complainant’s story, the defense had to make clear exactly how much semen was present.

The state’s experts testified that their DNA extractions from the carpet stains produced approximately 325 nanograms of sperm cell fraction DNA on the carpet that was mostly attributable to the defendant. That number, without any additional explanation, suggested to the jury that a substantial amount of the defendant’s semen was found all over the complainant’s bedroom. The defense attacked this assumption as well. The defense’s DNA expert testified that there are well over 15,000 nanograms of DNA in a single drop of semen. To offer a more conservative estimate to the jury, the defense presumed that the crime lab forensic biologist could have extracted as much as 3,000 nanograms of sperm cell DNA from the stains tested (rather than the modest 325 nanograms actually recovered). The defense then sought to offer a means to visualize the collective total volume of semen (based on the conservative estimate of 3,000 nanograms) present in the carpet stains. From stain after stain, cutting after cutting, test after test, there was less than one-fifth of one drop of semen confirmed within the stains. At trial, the defense attorney made sure the impact of this statement was not lost on the jury. He placed a single drop of water on an overhead projector and proceeded to wipe away all but an estimated one-fifth of that drop. The jury could not possibly conclude that the defendant had ejaculated into the complainant’s mouth given the insignificant amount of semen-derived DNA that was reported.

Both of these arguments (concerning the lack of DNA from the complainant and the insignificant amount of semen) were necessary to show the jury that the state’s conclusions were faulty. The jury was not allowed to assume that the presence of DNA meant that the defendant was guilty. On the contrary, once the DNA evidence was put into context, there was no way the jury could reach a finding of guilty solely based on that evidence.

Could the Results Actually Be Trusted?

Finally, the defense challenged the overall reliability of the DNA results themselves; however, it was not necessary to attack the actual science behind the results. The state’s data were put together and interpreted by people. People are fallible. Maybe their numbers were correct, but all the circumstances had to be examined. Thus, the defense chose to look at the human side of the process and, with the help of its DNA expert, examined the paperwork and the story that surrounded the lab’s final results.

In this case, the defense found several notes from the lab indicating that the prosecution was heavily involved in the DNA extraction and testing processes. Notes indicated that assistant attorneys general had visited the lab, urged the lab to retest additional stains, and even made suggestions concerning the presence of bleach. Cross-examination with these notes cast doubt on whether the lab was independent and had reported the results accurately and fairly. By suggesting to the jury that the prosecution had exercised undue influence on the lab, the defense was able to cast additional doubt on the efficacy of the DNA evidence without having to attack the actual scientific pro­cess. The jury could readily understand, and even may have taken greater interest in, the kind of human scandal being presented. Again, this was an alternate way to challenge the DNA evidence without the risk of confusing or overwhelming the jury with potential scientific errors or procedural anomalies.

As indicated by the jury’s verdict, the defense’s strategy was ultimately successful. The jury was not permitted to engage in “if DNA, then guilty” reasoning unchecked. Instead, the defense challenged the DNA evidence in a way that was clearer and more trustworthy than the prosecution’s presentation. Rather than becoming overwhelmed or intimidated by forensic biology, charts, and numbers, the defense presented the DNA evidence just as it would any other piece of evidence.

Conclusions and Caveats

There are always caveats to such success stories. First and foremost, DNA evidence was only a piece of the puzzle—the defense team also needed to effectively cross-examine the complaining witness and rebut many behavioral sciences experts who did their best to implicate the defendant. Second, this approach will not work in every case. This case was unique—rather than trying to refute the identification aspect of the DNA evidence, the defense instead attacked the significance of that identification. While the defendant’s semen was present at the scene, it did not get there because the prosecution’s story was true. That distinction was available due to the facts of the case. Conversely, when a defendant’s innocence depends on demonstrating that he or she was never present at the scene, other strategies will likely be necessary. The defense team was lucky to have the expert support and factual basis to effectively rebut the prosecution’s DNA evidence, but that doesn’t mean the defense didn’t need to be creative and vigilant in turning the evidence back in the defendant’s favor and challenging the jurors’ preconceived notions. This will always be a battle, regardless of a case’s unique facts.

Notes

1. Kimberly Cogdell Boies, Misuse of DNA Evidence Is Not Always a “Harmless Error”: DNA Evidence, Prosecutorial Misconduct, and Wrongful Conviction, 17 Tex. Wesleyan l. Rev. 403, 416–17 (2011) (describing the “CSI Effect” whereby popular television shows such as CSI indoctrinate jurors with preconceived expectations about DNA evidence but fail to provide any additional understanding of how such evidence is used at trial).

2. Id.

3. Joel D. Lieberman et al., Gold versus Platinum: Do Jurors Recognize the Superiority and Limitations of DNA Evidence Compared to Other Types of Forensic Evidence? 14 Psychol. Pub. Pol’y & L. 27, 52–53 (2008) (concluding that jurors give greater weight to DNA evidence presented at trial than other types of evidence—jurors found DNA evidence to be 95 percent accurate and 94 percent persuasive).

4. The Forensic Laboratory Handbook: Procedures and Practice 15 (Ashraf Mozayani & Carla Noziglia eds., 2006).

5. The State could have argued that the samples did not contain saliva because many other factors could have accounted for the lack of orally derived epithelial cells, such as how the evidence was sampled, how long it had been on the carpet, and whether the sample was properly collected and stored. Nevertheless, this counterargument was not presented by the State at trial and, therefore, is not directly addressed in this article. However, a defense team should consider these alternate explanations and caveats in preparing its case in order to better rebut the prosecution’s DNA evidence and supporting expert testimony.

6. A helpful glossary of commonly used terms that will help readers understand many of the scientific terms used in this article can be found at http://www.cstl.nist.gov/strbase/glossary.htm (last visited Dec. 31, 2014).

7. The numerical data and locus labels included within the table were copied faithfully and directly from the STR Worksheet produced by the prosecution during the discovery stage of the defendant’s case. In order to protect the identities of the defendant, the complainant, and the complainant’s mother, the names have been altered. No other changes have been made to the substantive information set forth in the table.

8. Nat’l Inst. of Just., DNA Evidence: Basics of Analyzing, http://nij.gov/topics/forensics/evidence/dna/basics/pages/analyzing.aspx (Aug. 9, 2012).

9. The defendant appears to have inherited the same allele, 14, from both of his parents, thus rendering his profile as 14, 14 (homozygous). The same is true of the complainant, whose homozygous allele profile is 11, 11. The complainant’s mother, on the other hand, appears to have inherited different alleles from each of her parents, rendering her profile as 11, 15 (heterozygous).

10. It should be noted that analyzing degraded or mixture samples may be further complicated by other factors that are beyond the scope of this article.

11. Id.

12. Patricia Nolan Bertino, DNA STR Profiles: How to Read Electropherograms; http://www.bertinoforensics.com/teacher_resources.html (last visited Nov. 23, 2014).

13. See, e.g., IFI DNA Testing and Technologies, RSID—Saliva, http://www.ifi-test.com/rsidtm-saliva/ (last visited Dec. 3, 2014)

Copyright © 2015 National Association of Criminal Defense Lawyers

Win Through Emotion, Not Facts!

One day a lady came to me with a DWI charge. She had already visited with several other lawyers, all of whom had said her case was hopeless—but they could get her a “good deal.” She was 45 and close to retirement as a jailer for TDCJ. If she received a conviction, she would lose her job and her retirement. As a single, that job was her life support, and she wanted to fight the case.

The Facts

Motorists are calling DPS about an obvious drunk driver on I-20 in Smith County. The trooper locates and videos her a good distance before stopping her. Video already looks really bad. Her car smells like a distillery, and she admits to being at a Shreveport casino all day. There is an empty 24-ounce beer can on the front floorboard, and her driver’s seat is really wet! She admits to urinating in her car.

Outside, she shows six clues on the HGN (of course). Trooper has to stop her from slanting off into traffic on the WAT, and she did not do well on the OLS. Although she had a college education and made five attempts, she could not recite the alphabet completely.

As she is being strapped in the front passenger seat of the trooper’s car, she looks up at him and says, “I gotta go again!”

The trooper scrambles for his raincoat, and as he brings it to her, she says, “You’re too late!”

On the way to the jail, the video shows her practicing her alphabet and then says, “I gotta go again!”

Trooper glumly says, “Go ahead.” No breath or blood test.

This case is given to the new prosecutor to ensure a “win” for his very first case. Client testifies how embarrassed she was to have urinated once in her car and twice in trooper’s. She testifies how mortified she was to have to tell the story to the court and six jurors. The jury (all white, she is African-American) returns their verdict in 15 minutes. Not Guilty!

Why? How?

In the 1980s, the University of Chicago conducted a study regarding jurors’ decisions, concluding that 80 percent of jurors have decided their verdict by the end of opening statements! Eighty . . . wait for it . . . per . . . wait for it . . . cent! Knowing this, I used my strikes and requested “strikes for cause” in an effort to eliminate as many young jurors as possible.

In closing, I asked the five older women and one older man just how they would feel if this happened to them. I told them you can find her guilty of being incontinent. You can find her guilty of having a small bladder. But, please, do not find her guilty of driving while intoxicated! They did not.

Analysis

We lawyers often  focus  on the facts and how to try and neutralize the bad and sugarcoat the good. We are worried about something bad in the case. Through cross-examination, we want to explain the facts. In just about every criminally charged case, the facts are against the accused. There is even an instant-replay video showing the naked truth in DWI cases.

Well, I have said for a long time to the citizens who put their faith and trust in me that I probably cannot win the case on the basic facts, but I can tweak the facts and pull on the emotions and feelings of those who make the ultimate decision.

Everything we do in front of the decision makers (jury) must be calculated to pull at their emotions and feelings. They need to be entertained, interested, and involved on a personal level in their viewing of this specter we call a trial. In the courtroom, we must not be schooled, professional-looking lawyers. Instead, we must consider ourselves actors. The courtroom is the stage. The jury is the audience. The prosecution is Snidely Whiplash. Our client is Nell, tied to the railroad tracks, and we are Dudley Do-Right coming to the rescue.

Everybody is scared! Nell is scared for her life. Dudley is scared for Nell. Snidely is scared that he will be foiled again. The only person who is not scared is the viewer . . . the audience. Why? Because we all know the good guy wins and saves the girl. It is always the plot. The Theme. But, who is going to be the good guy?

How does that apply to a criminal case? Consider this. What is the good in a criminal case? What do jurors want to see happen? They want what is right! Screw the facts . . . even screw the letter of the law. They want what is right. They want the good to win. So, what is good?

It is what would be good for them if they were the accused!

It is also vitally important to address any fears in the case: blood/breath test, bad driving, questionable performance on SFSTs, racial issues, origin issues, etc. If any fear is neglected, what is the jury going to focus on? Well, they will focus on that bad issue that is not discussed, and they will think it is because Nell is guilty. Addressing any fear is a vital part of the emotional pull on the jury. Bringing the fear to the front shows strength and confidence on the part of Dudley to deal with it, and also causes the audience to pull for Dudley and Nell.

When we express our fear to the jury members—who are to be our helpers—we are expressing our emotion to them. Consider this: When someone comes to you personally for your help, what is your reaction? Well, depending on your status you are going to try to help that person, within your ability. It is only natural. It is in our DNA!

So, we need to personalize our client to each juror and explain all the legal stuff—presumption of innocence, burden of proof, and especially our greatest legal friend, acquittal upon the failure of the prosecution to prove the case. That legal jewel alone gives jurors the escape they need to cut our client loose from the facts and the letter of the law. The law actually cuts our client loose to go home, not the juror. The jurors only decide that the prosecution did not meet their legal burden of proof! That way, Mr. Juror can go home and tell his family the prosecutor failed. Not, “I let a drunk driver walk today.”

To personalize our client, we need to find a way during the entire trial process for Mr. Straight to identify with Mr. Tattoo. During the trial, Mr. Tattoo will transform to Nell. It starts with jury selection. Nell is neither a client nor a defendant. She is a living, caring person just like each of the jurors. Jurors have feelings. So does Nell. Jurors have fears. So does Nell. Jurors have had a problem before. So does Nell. All questions in jury selection should reflect these emotions.

During cross questions to the prosecutor’s witnesses, the humanity and emotions of Nell, not the officer’s or lab/breath technician’s, must be reflected. Issues must be framed to answer the juror’s questions, not ours.

Our client’s testimony will be the deciding factor! Upon interviewing jurors after each trial, I have heard jurors, when my client did not testify, say, “We really would have liked to hear from your client,” or, “We wondered why your client did not tell his/her side of the case.”

Our client needs to be personalized and neutralized to any criticism by the jurors. Even most prior convictions can be explained and neutralized. I have found that most prior convictions resulted from some kind of plea, not a jury trial. Then, it was easy for client to plead guilty because he was guilty—but really learned a lesson. Now, he is fighting the case because he knows in this situation he is not guilty. Further, Mr./Ms. Client needs to explain the situation, and that, as far as he/she felt (feelings), he/she was normal. Ideally, jurors should see themselves in our client’s position. Accordingly, they will want to release our client from this situation since that is what they would want, personally.

Summary

Facts got our client in this situation. Facts are what the prosecution wants the jury to focus on. Facts will usually bring a conviction.

Pull the emotions from the jurors. Put the juror in the client’s chair. Express your fear. Ask for help. Be the emotional actor on stage and beg the audience to help Dudley rescue Nell.

Empathy wins over sympathy—every time!!!

And they rode off into the sunset . . . free . . . happily ever after!

April 2015 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
23 | ‘If DNA, Then Guilty’: Strategies for Overcoming Juror Assumptions About DNA Evidence in Criminal Trials – By Christina T. Kline, Demosthenes Lorandos & Michael Spence
31 | Win Through Emotion, Not Facts! – By John J. Eastland
34 | Jury Trial of Dzhokhar “Johar” Tsarnaev—Day 27 – Judy Clarke opening statement

Columns
7 | President’s Message
9 | Executive Director’s Perspective
11 | Ethics and the Law
14 | Off the Back
17 | Federal Corner
20 | Said & Done

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

President’s Message: Our Lives, Our Fortunes, and Our Sacred Honor – By Emmett Harris

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Had you been standing around at the State House in Philadelphia on July 8, 1776, you would have been among the first to hear those words from our nation’s birth certificate read aloud in public. You would have heard loud shouts, huzzas, firing of muskets and bells (including the “liberty bell”) ringing all day throughout the city. Thus began our tradition of Fourth of July celebrations.

This 4th of July our members will read these words from courthouse steps all over the State of Texas. Last year we were in 74 counties. This year we want to be in at least 100. Why are we doing this? Why is this important? One needs only to watch televised on-street interviews to see the absence of knowledge about current civic events or history. One survey found that more people knew the names of judges on “American Idol” than knew of the phrase “government of the people, by the people, and for the people,” or that it came from Lincoln’s Gettysburg address. So I say that we need to do what we can to remind people whence we/they came.

The signers of the Declaration were not being melodramatic when they pledged to support their declaration with their lives, fortunes, and sacred honor. They meant it, and they made good on their pledges. Some of them lost their lives in the war. Some of them who survived lost their homes and lands. Some of them died as paupers. But none of them ever lost their honor. We should do nothing less than remember their sacrifices with public readings of their words. Because of this declaration we, to this day, continue to be free and independent and to enjoy the unalienable rights of life, liberty, and the pursuit of happiness.

The nation that was born through this declaration was young and, it can be argued, far from perfect. Some of the signers owned slaves. Women were far short of suffrage. Native Americans were referred to in the declaration as “merciless Indian Savages.” We had a long way to go, but the nation created by this declaration has become our nation today, now dedicated more than ever to the proposition that all are created equal. Ours is a nation that enjoys freedoms the likes of which have never before been seen. Our nation was indeed conceived in liberty and should never be allowed to perish from the earth.

President Lincoln spoke of a “great civil war, testing whether that nation, or any nation so conceived, and so dedicated, can long endure.” The Declaration of Independence marked our conception, and we have long endured. May God continue to bless the United States of America.

So please do not miss the opportunity and privilege of remembering and honoring our nation’s birth certificate. Organize a public reading in your home county. You’ll be glad you did.

Executive Director’s Perspective: Board Meeting – By Joseph A. Martinez

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The TCDLA board of directors met in Houston on March 7, 2015. The following motions were made:*

MOTION: to adopt the minutes from the TCDLA Board Meeting on December 6, 2014, in Dallas made by Stan Schneider, seconded by Jim Darnell—motion carries.

MOTION: to follow procedure as outlined by executive committee, filing of Amicus, and authorizing up to $2,000 for expenses made by John Convery, seconded by David Ryan—motion unanimously approved.

MOTION: to approve the TCDLA audit report made by Mark Snodgrass, seconded by Sam Bassett—motion passes unanimously.

MOTION: to increase dues for new members to $100 for the first year, $100 for second year, then third-year renewal regular-member rates, $180, motion made by Sarah Roland, seconded by Susan Anderson—1 opposed—motion carries.

MOTION: to take funds out of technology line for transcript project on website made by John Convery, seconded by Mark Thiessen—motion carries.

     Prior to January 31st of each year, the President-Elect shall appoint a Nominations Committee consisting of one member from each of the Association’s membership areas and all officers. Each member shall be an attorney who is a current member of TCDLA and has a minimum of five years of practice in criminal law. Past-presidents may be appointed to the committee but shall be non-voting members. The chair of the Nominations Committee shall be designated by the President. The Nominations Committee shall meet, and the members present shall select its nominee(s) for those positions in the Association which are open for election or reelection. The chair of the Nominations Committee shall report in writing on or before 90 days prior to the next annual meeting all said nominee(s) for each such position to the President, the Board of Directors, the Executive Director, and the editor of the Voice for the Defense magazine. Association members shall be given notice in writing of the nominee(s) for each such elective position on or before 75 days prior to the next annual meeting. Such notice may be by publication in Voice for the Defense and shall also advise the membership that any qualified member in good standing may seek election for the position as an officer, other than President, director, or associate director of the Association by following requisites of Article IX Section 3(b) of the Bylaws. Any disputed questions regarding an election shall be resolved by those members in good standing who are present and voting at the annual meeting.

     Motion made by Susan Anderson, seconded by Sam Bassett—motion carries.

MOTION: Sec. 2. Nominations Committee. If you challenge the officer chain you would start as secretary not President or President-elect. Any qualified member in good standing may seek election for the position as an officer, other than President Secretary, director, or associate director of the Association by following requisites of Article IX Section 3(b) of the Bylaws.

     Motion made by Adam Kobs, seconded by Jim Darnell—motion withdrawn.

MOTION: to keep and allow the last three years’ TCDLA Past Presidents to hold board positions and vote made by Roberto Balli—motion withdrawn.

MOTION: to add to September agenda for further study regarding Past President voting privileges made by Roberto Balli, seconded by William Harris—motion carries.

MOTION: to adjourn at 12:44 pm made by John Convery, seconded by Sarah Roland—motion carries.

Special thanks to our Deans of the 39th Annual Texas Criminal Trial College held in Huntsville in March—Lydia Clay-Jackson (Conroe), Dean of Students, and Tim Evans (Fort Worth), Dean of Faculty. We also had 39 faculty members from all around Texas. This year we had 80 lawyers being trained in trial skills. All in all, it was a very successful college. We thank Philip Lyons, Interim Dean of Sam Houston State University, for his support of the college and Ms. Ann Broussard, administrative assistant, who provides extraordinary support throughout the college. We thank A. K. Khan, general manager of the University Hotel, who ensures the best accommodations for everyone. We also thank Katie Stefaniak, theater manager of the Sam Houston University drama department, who provides the actors to enhance the real-life courtroom experience for the lawyers. Finally, we thank the board of Texas Criminal Defense Lawyers Educational Institute for providing the Hostility (Hospitality) Room snacks and refreshments over the five evenings of the college. The college was funded by our CDLP grant from the Texas Court of Criminal Appeals.

Special thanks to Kameron Johnson (Austin), Juvenile Public Defender, for our Michael Morton Act for Public Defenders seminar held in Austin in February. Thanks to his efforts we had 13 attendees.

Special thanks to course directors Lynn Richardson (Dallas) and Rick Wardroup (Lubbock) for the Indigent Defense seminar held at the Dedman School of Law at Southern Methodist University. This seminar was co-sponsored with the Criminal Justice Legal Clinic in Dallas. We also thank Stephanie Gonzales for all of her help and support. Thanks to everyone’s efforts we had 90 attendees.

Special thanks to course directors Emily Detoto (Houston), Tyrone Moncriffe (Houston), and JoAnne Musick (Houston) for the Taste of Voire Dire CLE held in Houston. Thanks to their efforts we had 114 attendees.

Please join us for a very special seminar, the 2nd Annual DWI Blood seminar to be held in Arlington on May 1, 2015. Our course directors are Larry Boyd (Dallas), Deandra Grant (Dallas), and Abe Factor (Fort Worth). If you do DWI defense or are considering doing DWI defense, you should attend this seminar.

A very special thanks to Stephen Jones, Dean of the National College for DUI Defense (NCDD) for supporting TCDLA in a joint co-sponsorship of the 22nd Annual Mastering Scientific Evidence (MSE) seminar held in New Orleans in March. Special thanks to Mimi Coffey (Fort Worth), Doug Murphy (Houston), Troy McKinney (Houston), and Gary Trichter (Bandera), course directors for the seminar. This is the 10th year of TCDLA co-sponsoring this seminar with NCDD.

The TCDLA Board of Directors invites you to attend the 44th Annual TCDLA Members Meeting on Saturday, June 20, 2015, 15 minutes after adjournment of the 28th Annual Rusty Duncan Advanced Criminal Law Course, held June 18–20 in San Antonio. This should be approximately at 11:30 am in Ballroom B of the Henry B. Gonzalez Convention Center. Please make plans to attend. There are scholarships available, and the CCA has approved funds for judicial travel stipends for this one event. Please call our Home Office for more information. Please make your hotel reservations as soon as possible. Room blocks at the Hyatt Regency, Menger, and La Quinta close on May 9 or until the room block is filled. This year’s Rusty Duncan theme is “United We Stand.”

If you are coming to Rusty Duncan, please join us for the annual Pachanga (Party) at the Goldsteins (Kristi and Gerry). The Goldstein Pachanga is a cultural icon, when 500+ people gather in the Goldsteins’ backyard around their pool and feast on food, beverages, and great company.

The TCDLA Membership Party will be a Casino Night and is a masquerade theme. It will be a fundraiser for TCDLEI to provide scholarships to 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 guide Gerry Goldstein. We will also have 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 our area? Would like to re-energize and 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.


*The minutes with these motions have not been approved by the Board.

Ethics and the Law: Know When to Hold ’Em and When to Fold ’Em

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Several lawyers have contacted the hotline for advice on ending their relationship with a client. A simple motion to withdraw may not be as simple as some people think. After talking with several smart lawyers I have found the following scenarios:

1.   Lawyer takes case knowing there will be problems, but takes the case anyways because he needs the money;
2.   Lawyer takes the case because it is a high-profile client and believes it will enhance his reputation as a top, smart lawyer;
3.   Lawyer takes case because the family member or former client puts pressure on him telling him, “You are the only one who can help,” and “You are the best lawyer around.” Yes, lawyers like to have their ego stroked.
4.   Lawyer takes case because client has had problems with other lawyers and he wants to prove he is the one who can handle it.

Be wary on scenario #4. When a client comes to you after having several other lawyers, it is like getting involved with a man or woman who has been married five times. You may think in your mind, this is the one, and he or she is just misunderstood, but you have not heard Mickey Gilley’s song “Don’t the Girls All Get Prettier at Closing Time.” Like a friend of mine, a San Antonio lawyer, who wakes up with strange women in his bed and asks, “Who are you?” She says, “ I don’t know who I am this morning, but last night I was the YELLOW ROSE of Texas.”

The Texas Disciplinary Rules of Professional Conduct provide limits on when an attorney can terminate representation of a client:

Mandatory Termination

  • When other disciplinary rules would be violated. Tex. Disciplinary R. Prof’l Conduct 1.15(a) (2005), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (State Bar Rules art. X, § 9).
  • When the attorney has become materially (physically or mentally) impaired. Id.
  • If the lawyer is discharged by the client. Id.
  • If ordered to by a tribunal. Tex. Disciplinary R. Prof’l Conduct x.xx 1.15(c).

Termination Prohibited Unless:

1)   withdrawal can be accomplished without material adverse effect on the interests of the client;
2)   the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes may be criminal or fraudulent;
3)   the client has used the lawyer’s services to perpetrate a crime or fraud;
4)   a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent or with which the lawyer has fundamental disagreement;
5)   the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services, including an obligation to pay the lawyer’s fee as agreed, and has been given rea­sonable warning that the lawyer will withdraw unless the obligation is fulfilled;
6)   the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client;
7)   other good cause for withdrawal exists (Tex. Disciplinary R. Prof’l Conduct 1.15(b));
8)   In civil cases, good cause is shown and a written motion filed. Tex. R. Civ. P. 10.

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payments of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law if such retention will not prejudice the client in the subject matter of the representation. Tex. Disciplinary R. Prof’l Conduct 1.15(d).

The Harris County criminal district courts have a local rule on withdrawal of counsel:

Rule 6.15. Withdrawal or Substitution of Counsel

        If, prior to the disposition of a case, an appointed or retained attorney wishes to withdraw pursuant to DR 2-110, Code of Professional Responsibility, Vernon’s Ann. Civ. Stat., Title 14 App., Art. 12, Sec. 8, or for any other reason, the attorney must file a written motion to that effect with the Court. Such motion must be filed at least 15 days prior to a trial setting. If an attorney is retained to replace existing counsel, the attorney must file a motion to substitute counsel, naming both himself and the attorney to be relieved.

        A retained attorney of record at the time of trial will be considered the attorney of record in the event of an appeal unless the attorney files a written motion to withdraw when notice of appeal is given.

Do not forget that when you and your client part ways be­fore the end of a matter, you should make sure that the client is informed of any future settings. It is also not a good idea to withhold a client’s file if he does not pay you, pursuant to Disciplinary Rule 1.15(d). Texas Ethics Opinion 411 states:

        Although this ethical limitation removes much of the “clout” of a retaining file —since the greater the client’s need for his file, the greater the leverage the attorney retaining it will possess—an attorney who has once been retained to represent a client’s rights may not later precipitate actual harm to those rights merely to collect a fee.

In at least one case, a Texas attorney has been disciplined for retaining client papers. See Smith v. State, 490 S.W.2d 902 (Tex. Civ. App.—Corpus Christi 1973), on appeal after remand, 523 S.W.2d 1(Tex. Civ. App.—Corpus Christi 1975, writ ref’d n.r.e.).1

In the next issue, I will have examples from the Ethics Committee of their personal experiences about knowing when to hold ’em and knowing when to fold ’em.

The motion should state the following:

Off the Back: The Perfect Cross-Examination – By Stephen Gustitis

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The perfect cross-examination is there. Somewhere to be discovered, perhaps? Better yet—waiting to be built. We recognize its appearance, though. It is crisp and it’s clean. Short questions compelling but one-word answers from the witness. Its logic is simple yet compelling. The perfect cross demands the jury’s attention. Through it we demonstrate our mastery of the facts and tell our story. It provides us meticulous witness control. It is smooth and powerful. Its timing is flawless. Moreover, the cross-examiner is the star. The witness punctuates our story with simple answers of yes and no. Their wiggle-room is gone. Their escape hatches are shut.

How do we go about creating this masterpiece of trial lawyering? And I know what you’re thinking. Not another commentary about the criminal defense attorney’s most indispensable weapon. Not another article about cross-examination… please! But I trust this account is unique since it’s about the perfect cross, one that is quintessential. Cross-examination is fine art and onerous to master. But we can distill the perfect cross down to three principle disciplines. The will to win, preparation, and execution.

At the heart of the perfect cross-examination is our will to win. Not a hunger for self-aggrandizement. Nor the desire to embarrass a witness. But the thirst to leave the courtroom battlefield victorious especially in the face of menacing odds. For without a deep commitment to win we’ll lack the determination and motivation to undertake what is required. Namely, to exhaustively prepare and to impeccably execute the perfect cross-examination. Our will to win, therefore, fuels the engine of our aspirations for victory. It is at the heart of the perfect cross.

While describing the demands of a solo criminal practice, a young undergraduate once asked me if defense lawyers had time for golf. I laughed. “While you’re playing golf,” I said, “your dedicated opponent is devising a trial strategy to defeat you.” That thought always unnerved me. Consequently, early in my career I would invest in hours of cross-examination preparation. Sometimes an hour of planning for every minute of cross-examination. The goal was never to be outworked, absolutely never. My cross-examinations may have failed but not for a lack of effort. And fortunately, preparation time has been cumulative. The more experience invested in a subject area the more preparation hours carry over to the next cross.

Preparation involves approaching cross-examination from the witness’ point of view. Put another way, we crawl into their skin to understand their worldview. This is especially true when preparing for the professional witness (but equally the case for lay testifiers). Regarding the professional, though, prepare by examining the theory, process, and technique underlying the subject of their testimony. The cross-examiner must understand each facet. How were they trained? By whom? In what? What books and treatises would they consider authoritative? Read them. What must they admit on cross? How might they attempt escape when cornered? How do we shut off that escape beforehand? What do they fear? Over what part of the process and technique did they have no control? What did they assume? What were their biases? Are they truly skilled or just button pushers? Yes, preparation demands much time. Time enough to ruin a good golf game. But necessary if we endeavor to understand our witness’ worldview and effectively cross-examine them.

Executing the perfect cross involves impeccable planning. Tireless effort to develop short questions demanding but one-word answers. The best teaching I heard on cross-examination was by Terence MacCarthy during his lecture called the “One-Word Cross.” Terry taught us the length of the question usually determined the length of the answer. Long questions limited our control and provided the witness opportunity to escape. Long questions simply sounded legalistic and even stupid. Wanting the witness to be short and under control, we needed to be short and controlled, as well. Furthermore, short questions minimized the opportunity for the witness to hurt us. Short questions sounded better and gave us better control of our story. We were less likely to look bad using well-crafted, short questions. Thomas Jefferson said it best: “The most valuable of all talents is that of never using two words when one will do.”

I don’t believe the perfect cross-examination requires anymore than this three-pronged approach. Our deep-seated will to win, exhaustive preparation and planning, all executed with short questions enables us to tell our story with simple yet compelling logic. Never be outworked, and learn how your witness understands the world. Even if your cross fails be proud of your effort. You are developing a reputation for excellence. The best of luck creating a masterpiece of trial lawyering…  the perfect cross-examination.

Federal Corner: Raynor-the-Rapist Should Have Worn a Long-Sleeve Shirt – By F. R. Buck Files Jr.

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On March 2, 2015, the Supreme Court handed down its opinion in Raynor v. Maryland __S.Ct.__, 2015 WL275603 (2015): “Petition for writ of certiorari to the Court of Appeals of Maryland denied.”

I am always curious about the facts in those cases that the Justices of the Supreme Court choose not to hear. Sometimes, I look at the earlier opinions in these cases and one of them—as today—becomes the subject of this column.

Raynor-the-Rapist had avoided capture for some two years. Then, he became a person of interest and was invited to come to the police station in Bel Air, Maryland, to be interviewed. While at the station, he refused to consent to the officers’ request that he give them a DNA sample. Fortunately for the officers, Raynor had chosen to wear a short-sleeve shirt to the interview and had been observed rubbing his bare arms against the armrests of the chair in which he had been seated. The officers took swabs of these armrests, and the DNA extracted from the swabs matched DNA samples that had been collected from the scene of the rape.

Raynor was indicted for the offense of first-degree rape and related offenses. His attorney filed a pretrial motion seeking suppression of the DNA evidence and all evidence derived therefrom. This motion was denied and Raynor was convicted in the Circuit Court of Harford County. He appealed his conviction. The Court of Special Appeals, affirmed his conviction. 201 Md.App. 209 (2011). Raynor then petitioned for a writ of certiorari to the Court of Appeals of Maryland, which granted the petition and, thereafter, affirmed his conviction. 440 Md. 71 (2012). Raynor’s case was argued before Chief Judge Harrell and Judges Barbera (who authored the opinion), Battaglia, Greene, Adkins, McDonald, and McAuliffe. Judge Barbera’s opinion reads, in part, as follows:

[In The Trial Court]

Petitioner . . . argu[ed] that the warrantless collection and testing of cellular material that he shed during his interview at the police station violated his right under the Fourth Amendment to be free from unreasonable searches and seizures.

***

The suppression court denied the motion, reasoning in pertinent part:

***

I don’t think DNA is any different in terms of leaving it anywhere than a fingerprint [or] than if he walks out of the [police station] and somebody takes his photograph. He is sitting in there and [the police] ask can we take a picture of you . . . to have other people look at it. He says no. . . . So [he] walks outside the [station], is standing on the sidewalk, and they take his picture. He is in a public place. When he goes in there, does he have any expectation that anything he leaves that he is going to continue to have a privacy right in it? I don’t think so. And because I don’t think so, because I don’t think the Fourth Amendment applies at all, because I don’t think he had any reasonable expectation [of privacy] . . . that society is prepared to recognize as reasonable, then the same logic applies because the use of [the DNA evidence] to obtain the search warrants also is perfectly legitimate.

***

[The Issue Before the Court of Appeals of Maryland]

[T]he precise question for decision is whether law enforcement’s testing of the identifying loci within that DNA material for the purpose of determining whether those loci match that of DNA left at a crime scene constitutes a search under the Fourth Amendment.

[The Fourth Amendment & DNA Testing]

Recently, in Maryland v. King, ___ U.S. ___, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013), the Supreme Court held “that using a buccal swab on the inner tissues of a person’s cheek in order to obtain DNA samples is a search” for purposes of the Fourth Amendment, reasoning that “[v]irtually any intrusio[n] into the human body . . . will work an invasion of cherished personal security that is subject to constitutional scrutiny.” Id. at 1968–69 (quotations and citations omitted). The Court did not decide explicitly whether the testing of the 13 identifying loci the police later extracted from King’s DNA sample required a separate Fourth Amendment analysis, and how, if at all, the analysis would have differed had the police obtained King’s DNA absent a physical intrusion into his body [emphasis added].

[The Issues Not Answered in King]

The case at bar implicates those questions left unanswered in King. For reasons we shall explain, we hold that law enforcement’s analysis of the 13 identifying loci within Petitioner’s DNA left behind on the chair at the police station, in order to determine a match with the DNA the police collected from the scene of the rape, was not a search, as that term is employed in Fourth Amendment parlance.

[The Katz Test]

It is bedrock constitutional law “that the rights accorded by the Fourth Amendment ‘are implicated only if the conduct of the [government] officials at issue . . . infringed an expectation of privacy that society is prepared to consider reasonable.’ . . . The test for ascertaining whether a particular form of conduct is a search for purposes of the Fourth Amendment is often referred to as the Katz test, so named for Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) . . . (“[A] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.”).

The Katz test consists of two parts, “each of which must be satisfied in order for the Fourth Amendment to apply: (1) a defendant must ‘demonstrate an actual, subjective expectation of privacy in the item or place searched’ and (2) ‘prove that the expectation is one that society is prepared to recognize as reasonable.’ ”

***

[The Defendant’s Argument]

Petitioner relies upon the Katz test to argue that the analysis of the identifying loci within his DNA implicated the protections of the Fourth Amendment. He first claims that he demonstrated a subjective expectation of privacy in his DNA when, during the course of his interview with Trooper Wenger and Sergeant DeCourcey, he declined to consent to the taking of a DNA sample, thereby asserting a belief that “his genetic markers would not be inspected.” The State accepts as much, and so do we.

        Petitioner further claims, as he must for his argument to prevail, that his expectation of privacy in his DNA, under these circumstances, was objectively reasonable. In making that argument, he urges us to “focus . . . squarely on the ‘treasure map’ . . . of information capable of being culled from” one’s DNA. He claims that . . . contrary to the conclusion of the Court of Special Appeals individuals have a “much greater” expectation of privacy in their DNA than their fingerprints because DNA contains “a massive amount of deeply personal information,” including “medical history, family history, disorders, behavioral characteristics, and . . . propensity to . . . commit certain behaviors in the future.”

[The State’s Response]

The State counters that Petitioner did not possess an objectively reasonable expectation of privacy in the information the police analyzed because they tested only 13 junk loci, which, unlike other regions of the DNA strand, do not disclose the intimate genetic information about which Petitioner expresses concern. Instead, those loci reveal only information related to a person’s identity. In this regard, the State argues, law enforcement’s testing of the DNA evidence in this case is indistinguishable from its testing of fingerprints left unknowingly upon surfaces in public places, which does not implicate the protections of the Fourth Amendment.

[The Court Agrees With the State]

We agree with the State. The Supreme Court has made clear that one’s identifying physical characteristics are generally outside the protection of the Fourth Amendment.

***

[DNA Testing]

With the advent of DNA testing technology, law enforcement has a highly effective means of identifying an individual as “unique” in the general population and thereby identifying, or excluding, a criminal suspect as the actor in the commission of a crime. King, 133 S.Ct. at 1966 . . . Although highly useful for identification purposes, junk DNA “does not show more far-reaching and complex characteristics like genetic traits.” Id.; accord Williamson, 413 Md. at 543, 993 A.2d 626 (noting that the 13 junk loci consist of stretches of DNA that “do not presently recognize traits” and “are not associated with any known physical or medical characteristics”)

        Moreover, as noted by the Supreme Court in King, there exists no incentive for the police to unveil more intimate information contained in a suspect’s DNA, even if the police had access to the technology to do so.

[DNA & Fingerprints]

Petitioner does not cite, nor has our research revealed, a case holding that law enforcement’s analysis of fingerprints left behind by a potential suspect implicates the protections of the Fourth Amendment. In fact, the Supreme Court has given, albeit impliedly, the constitutional “go ahead” for such police practices.

***

Petitioner contends that DNA differs from fingerprints because it has the potential to provide more information about a person. Petitioner relies, in part, upon Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989).

***

Skinner is of little assistance to Petitioner because here, unlike in Skinner, the targeted analysis of the 13 identifying loci did not reveal “physiological data” about Petitioner, but rather, revealed only identifying information.

***

Petitioner does not allege that the police in the present case tested any portion of his DNA other than the 13 junk loci, nor does he claim that law enforcement, at present, has the technological capabilities to do so. In short, Petitioner attempts to “evoke images of an oppressive ‘Big Brother’ cataloguing our most intimate traits,” but the reality here is “far less troubling.”

***

[The Court’s Holding]

In the end, we hold that DNA testing of the 13 identifying junk loci within genetic material, not obtained by means of a physical intrusion into the person’s body, is no more a search for purposes of the Fourth Amendment, than is the testing of fingerprints, or the observation of any other identifying feature revealed to the public—visage, apparent age, body type, skin color. That Petitioner’s DNA could have disclosed more intimate information is of no moment in the present case because there is no allegation that the police tested his DNA sample for that purpose. Because the testing of Petitioner’s DNA did not constitute a search for the purposes of the Fourth Amendment, he was not entitled to suppression of the DNA evidence or any fruits derived therefrom. The Court of Special Appeals came to the same conclusion. We therefore affirm the judgment of that Court.

My Thoughts

  • If you enter the query TO(110) & “DNA” in WestLaw’s Texas database, you will find 1,131 cases, dating back to 1989. For those of us who were admitted to practice well before that year, we can recall those first cases in which DNA evidence helped the State convict our clients.
  • It is not surprising that the Supreme Court denied certiorari in Raynor. His lawyer, though, should be commended on the legal theory that he raised that had not been addressed by the Supreme Court in Maryland v. King.
  • With tongue in cheek, I would note that we always visit with our clients about the importance of being properly attired when they go to the courthouse. If Raynor had worn a long-sleeved shirt to the police station, he might have avoided prosecution. Bad luck for Raynor-the-Rapist.