Monthly archive

April 2016

April 2016 SDR – Voice for the Defense Vol. 45, No. 3

Voice for the Defense Volume 45, No. 3 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

Florida’s death-sentencing scheme, which did not require a jury to determine whether a capital defendant was mentally retarded or unanimously sentence a defendant to death, violated the Sixth Amendment’s jury trial guarantee. Hurst v. Florida, 136 S. Ct. 616 (2016).

        A jury convicted D of first-degree murder for killing a co-worker and recommended the death penalty. Under Florida law, the jury rendered an “advisory sentence.” Notwithstanding that recommendation, the court had to independently find and weigh the aggravating and mitigating circumstances before entering a sentence of life or death. The court sentenced D to death. On appeal, D was granted a new sentencing trial because the Supreme Court of Florida found that his counsel should have investigated and presented evidence of his mental capacity. At his new sentencing trial, D was prevented from presenting mental retardation evidence as an absolute bar to the imposition of the death penalty, though he was allowed to present it as mitigating evidence. At resentencing, the jury again recommended death, and the judge again found the facts necessary to sentence D to death. The Florida Supreme Court affirmed. The U.S. Supreme Court reversed.

        Florida’s death-sentencing scheme violated U.S. Const. amend. VI in light of Ring v. Arizona, 536 U.S. 584 (2002), which deemed unconstitutional a capital-sentencing scheme that permitted a judge rather than a jury to find the facts necessary to sentence a defendant to death. The Ring Court held that the Sixth Amendment required that the jury determine the presence of aggravating factors, which Arizona’s death-sentencing scheme viewed as essentially elements of a larger offense. The Supreme Court of Florida had previously held Ring did not apply to Florida’s death penalty sentencing scheme generally and specifically did not require that a jury’s recommendation of the death penalty be unanimous or that a jury determine the factual issue of a defendant’s potential mental retardation. But the Sixth Amendment requires a jury, not a judge, to find each element necessary to impose the death sentence. Although the Florida sentencing scheme required that the jury recommend a death sentence in order to impose the death penalty, the judge was only required to take the jury rec­om­men­da­tion under consideration. Because the Court held in Ring that the Sixth Amendment required that a jury make all the critical findings necessary to impose the death penalty, the Florida sentencing scheme violated the Sixth Amendment in the same way Arizona did in Ring.

Fifth Circuit

Although illegal-reentry D’s prior conviction under S.C. Code § 44-53-370(a)(1) was not categorically a “drug trafficking offense” for USSG § 2L1.2 purposes, application of the modified categorical approach to the record of conviction in that prior case—particularly, a document called the “sentencing sheet”—made clear that D was convicted of a drug trafficking offense. United States v. Rodriguez-Negrete, 772 F.3d 221 (5th Cir. 2014).

Where D had his supervised release revoked on three counts of conviction and received six months of custody on each count (consecutive to one another) to be followed by 24 months of reimposed supervised release on each count (concurrent to one another), the district court did not run afoul of the 18 U.S.C. § 3583(h) limits on reimposition of supervised release. United States v. Oswalt, 771 F.3d 849 (5th Cir. 2014).

        Contrary to D’s argument, the court was not required to subtract the full 18 months of imprisonment from the maximum 36-month supervised-release term originally available on each count of conviction. The formula in § 3583(h) is count-specific and does not contemplate subtracting the post-revocation terms of imprisonment imposed on all counts; because D could have received up to 30 months’ reimposed supervised release on each count (the original 36-month maximum less the six months’ imprisonment imposed for that count), the 24-month reimposed supervised-release term did not exceed the statutory maximum.

Although a Cal. Health & Safety Code § 11378 violation is not categorically a “drug trafficking offense” for USSG § 2L1.2, the district court did not plainly err in categorizing D’s § 11378 conviction as such given the lack of indication that D might have been convicted in any way other than that in the complaint (which charged possession of meth for sale, a qualifying offense). United States v. Castellon-Aragon, 772 F.3d 1023 (5th Cir. 2014).

Where a defendant who pleaded guilty signs a statement indicating that he wishes to appeal only his sentence and the defendant’s appellate counsel, in reliance on that statement, files an Anders brief addressing only issues related to sentencing, the defendant may not raise issues related to his guilty plea and conviction in his pro se response to the brief. United States v. Polanco-Ozorto, 772 F.3d 1053 (5th Cir. 2014).

        Where a defendant provides sufficient indication (consistent with United States v. Garcia, 483 F.3d 289 (5th Cir. 2007)) that he intends to challenge only his sentence, the defendant may not revoke that decision after counsel has filed an Anders brief pretermitting any discussion of D’s guilty plea. The Fifth Circuit dismissed D’s appeal.

In sentencing D for a drug offense, district court did not violate due process or Fed. R. Crim. P. 32(i)(3)(B) in its ruling on D’s objection to a two-level enhancement under USSG § 2D1.1(b)(1) for possession of a firearm; a district court may fulfill the obligation to rule on an objection by adopting the presentence report. United States v. King, 773 F.3d 48 (5th Cir. 2014).

        The district court said it was overruling the objection for the reasons stated in the addendum to the presentence report. On the merits, the district court did not clearly err (the applicable standard, United States v. Zapata-Lara, 615 F.3d 388 (5th Cir. 2010), notwithstanding) in applying the § 2D1.1(b)(1) enhancement; it was plausible in light of the record that the government proved by a preponderance of the evidence that a spatial relationship existed between the handgun, D, and the offense of conspiracy with intent to distribute heroin. It was also plausible that D failed to show that it was “clearly improbable” that the firearm was connected to his offense of conviction.

        (2) Joining four other circuits, the Fifth Circuit held that there is no constitutional error under Alleyne v. United States, 133 S. Ct. 2151 (2013), in permitting a judge to find the facts that render the “safety valve” exception to mandatory-minimum sentences inapplicable. See 18 U.S.C. § 3553(f). The “safety valve” does not increase the mandatory minimum; it removes it.

D waived his arguments that he was prosecuted outside the applicable statute of limitations by failing to raise his statute-of-limitations defense until a post-conviction motion for judgment of acquittal. United States v. Lewis, 774 F.3d 837 (5th Cir. 2014).

        A statute-of-limitations defense is an affirmative defense that must be affirmatively asserted at trial in order to preserve it for appeal. By requiring a defendant to raise and develop his statute-of-limitations defense at trial, the prosecution will have a chance to rebut the defendant’s arguments with evidence of its own.

District court did not abuse its discretion in denying tax-evasion D Criminal Justice Act funding under 18 U.S.C. § 3006A(e) for a neuropsychological exam to determine whether D suffered from a mental impairment that contributed to a good-faith belief that the tax returns he filed were truthful and lawful. United States v. Boyd, 773 F.3d 637 (5th Cir. 2014).

        There was no evidence of any concerns about D’s cognitive abilities during the time period in question.

18 U.S.C. § 641 authorizes a felony penalty for the first theft committed when it involves less than $1,000 and would, on its own, result only in a misdemeanor penalty but the total involved exceeds $1,000 aggregated with one or more subsequent theft(s). United States v. Lagrone, 773 F.3d 673 (5th Cir. 2014).

        The Fifth Circuit panel reversed course from an earlier opinion in this case and held that § 641 plainly declares that all thefts are already felonies, contrary to D’s contention that allowing felony penalties on all counts of theft when an initial theft does not exceed $1,000 makes the initial theft retroactively more serious. The defendant may receive the benefit of § 641’s lenity provision and be sentenced under a misdemeanor penalty scheme only if the aggregate value of the thefts does not exceed $1,000.

Court of Criminal Appeals

CCA vacated the order granting Chapter 64 testing; CCA found no reason to revisit its previous holdings denying testing because the record did not contain changes in law, facts, or circumstances. State v. Swearingen, 478 S.W.3d 716 (Tex.Crim.App. 2015).

        The trial judge granted D’s request for post-conviction DNA testing of several pieces of evidence under Tex. Code Crim. Proc. art. 64. The judge also conditionally granted D’s motion to release certain evidence for preliminary testing to determine whether the evidence contained biological material. CCA reversed and remanded, and dismissed the State’s appeal challenging the order conditionally granting the release of evidence. The State could not contest the conditional order’s validity by way of appeal, as it rested on grounds outside the bounds of Chapter 64.

        “Most recently, in 2014, we unanimously reversed this judge’s granting Swearingen’s prior Chapter 64 motion. . . . Swearingen was not entitled to DNA testing of the fingernail scrapings because we were ‘not persuaded that results showing the presence of another DNA donor in the fingernail scrapings would overcome the “mountain of evidence” of [D’s] guilt.’ And in our 2010 unanimous opinion, we noted that the evidence of Swearingen’s guilt was ‘overwhelming’ and that ‘even if we were to grant [his] request to test all of the items proffered and those results were exculpatory, [he] cannot show by a preponderance of the evidence, or that there is a 51% chance, that he would not have been convicted.’ We noted that the trial judge made ‘supported-by-the-record findings of fact that again, underscore the substantial evidence of guilt.’ Because we find that the record does not contain any change in the law, facts, or circumstances since our 2014 opinion and the granting of Swearingen’s latest Chapter 64 motion, we see no reason to revisit our previous holdings on the matter. We hold that the judge erred in granting the DNA testing[.]. . . The judge, however, found our 2010 holdings inapplicable in that ‘Swearingen’s current request includes additional probative evidence such as the rape kit, hair evidence and cigarette butts.’ Including cigarette butts as a distinguishing factor is clearly wrong. Swearingen sought testing of the cigarette butts in 2010 and 2014. To the extent the rape kit and hair evidence present entirely new requests, they do not prove that this current request should be resolved any differently than in our 2010 and 2014 conclusions. Swearingen is still unable to establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. . . . We faulted Swearingen in 2014 for attempting to rely on the ramifications of hypothetical matches from evidence that eviscerate Chapter 64’s requirements. And it is even more attenuated to assume hypothetical confessions and false denials of contact stemming from hypothetical DNA matches.”

When Tex. Penal Code § 33.021(b) was declared unconstitutional, Ds were not entitled to habeas relief on an actual innocence theory because they alleged no new evidence to show they did not commit the crimes and did not contest having engaged in the conduct for which they were convicted; Ds were entitled to relief because the criminal sanctions affixed to their conduct had been removed. Ex parte Fournier, 473 S.W.3d 789 (Tex.Crim.App. 2015).

        Both defendants had pled guilty to online solicitation of a minor under Texas Penal Code § 33.021(b) (2012). They filed these habeas applications after Ex parte Lo, 424 S.W.3d 10 (Tex.Crim.App. 2013), established that § 33.021(b) was unconstitutionally broad; although the State had a compelling interest in protecting children from sexual predators, § 33.021(b) was not narrowly drawn “because there are narrower means of achiev­ing the State interests advanced here, at least some of which are already covered by other statutes.” Ds sought relief under Lo and under the theory that because the statute was unconstitutional, they were “actually innocent.”

        There was no disagreement among the parties that Applicants were entitled to have their judgments set aside under Lo. CCA agreed, while deciding the previously undecided issue of whether Lo entitled Applicants to relief under an “actual innocence” theory. CCA concluded Ds did not present true actual innocence claims; however, consistent with precedents granting relief under an unconstitutional statute theory, CCA set aside Ds’ judgments.

There was insufficient evidence regarding the crime D’s boyfriend was charged with for it to serve as the felony underlying D’s hindering apprehension conviction; there was no evidence that the boyfriend or D found out about the felony indictment prior to the boyfriend’s ar­rest or that the officers stated what they were arresting him for. Nowlin v. State, 473 S.W.3d 312 (Tex.Crim.App. 2015).

        D was convicted of hindering apprehension after encouraging her boyfriend to run from U.S. Marshals who were arresting him. Because the State alleged D knew her boyfriend was charged with a felony, her offense was elevated to a third-degree felony. COA affirmed. CCA granted D’s petition to determine whether the evidence was legally sufficient to prove she knew her boyfriend was charged with a felony.

        CCA reformed D’s conviction. The boyfriend could not have known he was under indictment for felon in possession of a firearm; it was impossible for him to have told D about the indictment or what offense it charged him with. “The evidence in this case was insufficient to support Appellant’s felony conviction. However, the State is correct in asserting that the element of knowledge that [her boyfriend] was being arrested for a felony offense is an aggravating factor and, therefore, the trial court necessarily found the essential elements of misdemeanor hindering apprehension. Therefore, we reform the judgment to reflect a conviction of misdemeanor hindering apprehension and remand the case to the trial court to conduct a new punishment hearing.”

COA did not view the evidence in the light most favorable to D’s forgery conviction; the evidence was suf­fi­cient for the jury to reasonably infer D passed the check with intent to defraud or harm another. Ramsey v. State, 473 S.W.3d 805 (Tex.Crim.App. 2015).

        D was found guilty of forgery. COA reversed, holding that the evidence was insufficient because there was no proof D had the intent to defraud or harm another. The State filed a petition for review, which CCA granted, arguing that COA did not ex­am­ine the totality of the evidence or reasonable inferences there­from. CCA agreed and reinstated D’s conviction.

        Although D argued there was insufficient evidence for the jury to conclude that neither owner signed the check or that D had sufficient access to steal the check based on conflicting evidence, the appellate court had to determine if any rational trier of fact could have found each element of the offense beyond a reasonable doubt. The jury could have resolved the conflicting evidence against D and reasonably inferred, based on the evidence, that he stole the check, forged it, and passed it at the liquor store with the intent to defraud and harm the owner. “The court of appeals reached the wrong result because it incorrectly applied the [Jackson v. Virginia, 443 U.S. 307 (1979)] legal sufficiency standard, which requires that the combined and cumulative force of all the evidence be viewed in the light most favorable to the conviction. After properly applying the Jackson standard, we find the evidence sufficient[.]”

COA erred in reversing D’s conviction and remanding for a new trial; the proper remedy would have been to abate the appeal and remand to the trial court, but CCA ultimately held that any error in the competency proceedings was harmless. Owens v. State, 473 S.W.3d 812 (Tex.Crim.App. 2015).

        D was charged with felony murder after he led police on a high-speed chase in which he hit two vehicles and killed one driver. He filed a pretrial motion arguing that he was incompetent to stand trial because, due to traumatic brain injury caused by the crash, he suffered from amnesia and was unable to remember anything about the wreck. After a mental-health assessment, the defense expert concluded that, even if D did suffer from amnesia (which the expert could not rule out), such condition did not render him incompetent to stand trial. At the competency hearing, D called the expert to the stand to testify about his conclusions; but, before the expert could testify regarding the substance of his report, D objected to his own witness and argued that the expert was not qualified to be appointed or testify as a competency expert. D’s complaint was founded on the belief that the witness did not meet a necessary continuing-education requirement. The judge allowed D to argue that the expert was not statutorily allowed to be appointed but otherwise overruled his objection and allowed the expert to testify. D was found competent and later convicted of felony murder. COA reversed and remanded for a new trial, holding that the court erred because the expert did not meet the statutory qualifications for a competency expert and that Appellant was harmed by the error. CCA reversed COA and remanded.

        COA would not have known whether D’s felony-murder trial would have been rendered invalid because it did not first abate the appeal and remand the case for a retrospective competency hearing. Regardless, D’s argument that he should not have been charged with murder, but a lesser charge, was compelling evidence that he understood the seriousness of the charge he was facing; therefore, he had a rational and factual understanding of the proceedings. Although D claimed not to remember the facts of the offense, he could have nevertheless relied on the circumstances of the offense to develop a mens rea defense. “The court of appeals erred when it reversed Appellant’s conviction and remanded the case for a new trial due to a perceived fatal flaw in the competency proceedings. Further, we hold that any error in allowing Allen to testify because he was not qualified as a competency expert under Chapter 46B of the Code of Criminal Procedure was harmless. We reverse the judgment of the court of appeals and remand this cause to that court to address Appellant’s third point of error.”

D was not entitled to relief; the trial court was called upon to make a judicial decision on the scope of the Fifth Amendment right against self-incrimination when it allowed the State to call D to testify at the evidentiary hearing on his habeas application, as the law was unsettled as to whether D faced risk of further criminal liability given his claim of ineffective assistance, and the court placed strong limits on the scope of questioning and granted immunity that prevented the State from using any information gained from the hearing in a subsequent proceeding. In re Medina, 475 S.W.3d 291 (Tex.Crim.App. 2015).

        “Under the plain text of the Fifth Amendment to the United States Constitution, a defendant has a clear right to prevent the State from forcing him to testify at his trial or at sentencing. . . . Is the State, in a post-conviction evidentiary hearing on a writ of habeas corpus, clearly prohibited from calling the writ applicant to testify—under a grant of both use and derivative-use immunity—about whether he was aware of and agreed to trial counsel’s strategy at the punishment stage of his capital-murder trial? If this Court were considering the question in the first instance, the answer might very well be ‘no.’ But because this case comes before us as a writ of prohibition, we are not asked to decide the precise scope of the Fifth Amendment. . . . [W]e are asked to decide whether the trial court made a judicial decision or a ministerial one. More specifically, we must determine whether the law on this issue is so clear that the trial court had no choice but to prohibit the State from calling relator to the stand. Examining the relevant case law regarding the scope of the Fifth Amendment from the United States Supreme Court and this Court reveals arguments to support the positions of both relator and the State. Consequently, we cannot say that the trial court had a ministerial duty to prohibit the State from calling relator to testify. . . . [I]n the context of the specific facts presented here, relator is not clearly entitled to the relief he seeks. . . . [A]pplicability of the Fifth Amendment turns less upon the type of proceeding and more upon the potential for exposure to criminal liability.”

Although CCA inferred that the laboratory report in D’s case was falsified, it found its falsity was not material to his decision to plead guilty because he was facing three additional drug cases. Ex parte Barnaby, 475 S.W.3d 316 (Tex.Crim.App. 2015).

        D plead guilty in a package deal to four separate offenses of possession of a controlled substance with intent to deliver and was sentenced to four concurrent 50-year sentences. In his habeas application, D challenged only the voluntariness of his plea to one of the offenses; in that case, the forensic technician assigned to analyze the seized substance was known to have fal­si­fied test results. CCA remanded to the trial court so the par­ties could present argument on what standard of review is appropriate for examining materiality.

        CCA denied relief and held that materiality of false evidence in the context of a guilty plea should be examined under the standard used to assess materiality of counsel’s deficient performance in the context of a guilty plea: if applicant had known that the evidence was false (i.e., “but for” the false evidence), he would not have plead guilty but would have insisted on going to trial. Although CCA inferred that the laboratory report in D’s case was falsified, CCA found its falsity was not material to his decision to plead guilty. D faced consecutive sentences had he been convicted at trial, and as part of the plea bargain the State waived the drug-free-zone finding on the other three cases, which markedly affected D’s parole eligibility.

Without any showing that the injured child was often underfoot of D or that D knew the child would likely be under his feet, the evidence was insufficient to support D’s conviction for negligently causing injury to a child. McKay v. State, 474 S.W.3d 266 (Tex.Crim.App. 2015).

        D was convicted of injury to a child with the culpable mental state of criminal negligence after spilling hot water on a two-year-old’s back. D appealed, arguing there was insufficient evidence. COA affirmed the trial court. CCA reversed and vacated Appellant’s conviction. There was insufficient evidence of criminal negligence to support D’s conviction under Tex. Penal Code § 22.04(a)(3) after he spilled hot water on the two-year-old child while he was in the kitchen, because there was no evidence that D failed to perceive a substantial and un­justifiable risk to the child.

When habeas applicant advanced multiple issues that would entitle him to relief, the trial court could limit its grant of relief to only one of the issues, as long as the court did not neglect an issue that would result in greater relief than the one addressed. Ex parte Reyes, 474 S.W.3d 677 (Tex.Crim.App. 2015).

        D raised five grounds in a habeas application attacking a judgment that imposed community supervision. Evidence supporting all these grounds was submitted in either affidavit form or through witnesses at a live hearing. The trial court granted relief on the first ground and did not address the remaining grounds. Holding that the trial court erred in granting relief on the first ground, COA reversed and rendered judgment reinstating the guilty plea. CCA concluded that COA should have remanded to the trial court to resolve D’s remaining claims; CCA reversed COA and remanded to the trial court.

        D did not forfeit his claims by failing to pursue them when COA abated the case on the State’s motion, and the trial court did not err by failing to address claims that were outside the State’s motion. “Because the trial court did not resolve all of appellee’s claims, and those claims were not waived, the court of appeals erred in rendering judgment. The appellate court should have remanded the case to the trial court for further proceedings. Whether those further proceedings involve merely additional fact findings or also involve further development of the record is a determination to be made by the trial court, at least in the first instance.”

As all parties agreed, counsel deficiently misadvised D’s plea; CCA set aside D’s conviction and remanded. Ex parte Sanchez, 475 S.W.3d 287 (Tex.Crim.App. 2015).

        D plead “no contest” to aggravated assault and was sentenced to ten years’ imprisonment. He did not appeal. In this habeas application, D contended, among other things, that his trial counsel rendered ineffective assistance because counsel erroneously advised D that he could receive community su­per­vision from the court if he pleaded “no contest” to this of­fense. D alleged that the trial court and prosecutor also believed D was eligible for community supervision from the trial court. D alleged that had he known he could not receive community supervision from the court for this offense because of the deadly weapon allegation, he would not have pleaded “no contest” but would have taken the case to trial by jury, where he would have been eligible for community supervision.

        D’s trial counsel filed an affidavit, in which he conceded he incorrectly advised D that he would be eligible for community supervision if he pleaded “no contest.” Counsel also stated that he did not advise D regarding the availability of de­ferred adjudication and did not file a motion requesting deferred adjudication community supervision. The trial court determined that counsel’s performance was deficient in that counsel advised D incorrectly that he would be eligible for com­munity supervision, and that such deficient performance prejudiced D. The trial court also found that the prosecutor and the trial court were under the mistaken impression that D was eligible for community supervision from the court, and that D was never advised that he was ineligible for community supervision because of the nature of the offense. The trial court concluded that D’s plea was not knowingly and voluntarily entered.

        CCA granted relief and set aside the judgment, and D was remanded to the sheriff’s custody to answer the charges in the indictment; the trial court was to issue any necessary bench warrant.

Court of Appeals

It could not be concluded that counsel performed deficiently at the punishment hearing in failing to object to the State’s closing argument referencing a letter D wrote to the trial court; the reviewing court could conceive potential reasonable trial strategies counsel could have been pursuing, given that D had been able to present his argument without subjecting himself to the perils of cross-examination by asking the trial court to read the letter. Ayers v. State, No. 06-15-00156-CR (Tex.App.—Texarkana Jan 14, 2016).

        D plead guilty to indecency with a child by sexual contact. Under D’s plea agreement, the trial court deferred a finding of guilt to consider the possibility of community supervision. During a subsequent hearing in which the court considered whether to place D on deferred adjudication community su­per­vi­sion, D and the State each requested the trial court review a letter D had written to the trial court and which had been filed with the clerk. The trial court complied with this request and, after the hearing on punishment, D was convicted of indecency with a child by sexual contact and was sentenced to 18 years’ imprisonment.

        D appealed here that because the letter was not formally admitted into evidence at the punishment hearing, the State argued outside of the evidence in referencing the letter during closing argument. D also argued that his counsel rendered in­effective assistance in failing to object to the State’s closing argument. COA found that D failed to preserve his first issue on appeal. COA further found that D “cannot demonstrate that his counsel rendered ineffective assistance.” COA affirmed the trial court.

The amendment to the Sexually Violent Predator statute applied to those previously convicted for failing to complete sex offender treatment, even those convictions not yet final, pardoning these individuals; therefore, the amendment was ineffective because it usurped the gov­ernor’s clemency power granted by Tex. Const. art. IV, § 11(b), in violation of separation of powers, Tex. Const. art. II, § 1. VanDyke v. State, No. 09-14-00137-CR (Tex.App.—Beaumont Feb 10, 2016).

        D plead guilty to violating the terms of his civil commitment, and the trial court sentenced him to 25 years in prison. D filed an appellate brief presenting 13 issues challenging the constitutionality of the Sexually Violent Predator statute. After D filed his brief, the Texas Legislature amended Tex. Health & Safety Code § 841.085 of the SVP statute; D filed a supplemental brief, in which he contended the Legislature decriminalized the conduct for which he was convicted. COA affirmed the trial court.

        “In this case, the 2015 amendment to section 841.085 applies to those previously convicted of violating their civil commitment requirements by failing to complete sex offender treatment, even though those convictions are pending appeal and not yet final. . . . The Legislature has essentially pardoned these individuals by applying the amendment to pending convictions. Thus, we conclude that the Legislature has usurped the Governor’s clemency power by applying amended section 841.085 to pending criminal proceedings. . . . Our holding does not impact the remainder of amended section 841.085. . . . Because the application of amended section 841.085 to pending convictions is unconstitutional, we overrule VanDyke’s supplemental issue.”

        Furthermore, the trial court was entitled to customize its civil commitment order, and its use of “exactingly” did not in­crease D’s risk of prosecution. The commitment order required D to “exactingly participate in and comply with the specific course of treatment provided by the Council and [to] comply with all written requirements of the Council and case manager[.]” Under the version of the statute applicable to D, the trial court could impose a condition requiring D’s “participation in and compliance with a specific course of treatment provided by the office and compliance with all written re­quirements imposed by the case manager or otherwise by the office[.]” According to D, the addition of the word “exactingly” amplified the risk that he would be unfairly charged based on the subjective feelings of employees of the Office of Violent Sex Offender Management. The Texas Supreme Court has held that the SVP statute “gives the trial court leeway to fashion restrictions tailored to the particular SVP facing commitment.”

Between a Reversal at the Court of Appeals and Discretionary Review: What Are Appointed Counsel’s Duties?

Even now one feels pity for the indigent appellant whose appointed counsel achieved a reversal in the court of appeals and proudly retired from the appellate affray with his victory, leaving his erstwhile client to fend for himself when the State seeks discretionary review from this Court . . . trouble [is] in store for the appellant who is converted into a respondent on the State’s filing its petition for discretionary review.1

Under two US Supreme Court rulings,2 where a state provides for appellate review of criminal convictions, an indigent appellant enjoys a constitutional right to appointment of counsel for an initial appeal of right, but not for filing a petition for discretionary review. And under the applicable statute, unless discretionary review is granted, counsel need not be paid for anything beyond a motion for rehearing. Sounds straightforward, doesn’t it? But it isn’t.

Some 20 years ago the Court of Criminal Appeals handed down three successive decisions addressing the extent of appointed counsel’s duties after a court of appeals issues a ruling. None, though, requires the lawyer to do more than send the cli­ent a letter and a copy of the opinion. In the first, Ex parte Jarrett in 1994, the Court held that once the court of appeals hands down its decision, appellate counsel bears the duty both to advise the client on the possibility of discretionary review and to express to the client counsel’s “professional judgment as to possible grounds for review and their merit, and delineating the advantages and disadvantages of any further review.”3 Jarrett noted that the rules of appellate procedure presume an appellant “has a right to prepare and file a petition for discretionary review.”4 A year later in Peterson v. Jones,5 a mandamus case, a defense attorney who had filed PDRs for two indigent defendants was deemed not entitled to compensation.6

Two years after that, in Ex parte Wilson in 1997, the Court backed away from Jarrett, holding that because no right exists to counsel on discretionary review, after a court of appeals issues its opinion appellate counsel need no longer give professional advice on potential issues or on the benefits and disadvantages of filing a PDR.7 Instead counsel need only send the client the opinion and inform the client of “the availability of discretionary review.”8 An “appellate attorney has no duty to inform a defendant of details pertinent to further review,” says Wilson, because “a defendant has no right to counsel for purposes of discretionary review.”9 And although under the statute counsel must also continue to “represent the defendant until . . . appeals are exhausted” unless allowed or ordered to withdraw,10 the phrase “appeals are exhausted” has been construed to exclude the process of petitioning for discretionary review.11 Wilson still stands as controlling law.

And the glaring deficiency in these cases and statutes is that they contemplate only affirmance at the court of appeals. They nowhere address counsel’s duties where the appeal has resulted in a victory for the client. Where a state PDR is granted, then at that point appointment of counsel to represent the defendant-appellee at the Court of Criminal Appeals is statutorily required.12 But between the court of appeals’ ruling in the client’s favor and the grant or refusal of discretionary review, counsel’s guiding hand is evidently not required. And under Wilson counsel need not even inform the client of the possibility that the state can file a PDR—merely that discretionary review is available.13 Even further, under Wilson, counsel need not even forward the state PDR to the now unrepresented defendant-respondent.

Yet the defendant-respondent has a possible means of attacking a state PDR. Just as Jarrett noted that the Texas Rules of Appellate Procedure presume an appellant has a right to prepare and file a PDR, in at least four places the rules also note a defendant-respondent’s right to file a response or reply—the terms are evidently synonymous in this context—to a state PDR.14 And while filing a response might be assumed trivial, such an assumption is misplaced.15

Even further, a concurring opinion in Valcarel v. State notes that some matters are most appropriately raised in a reply to a PDR:

Now, for the first time, in its brief on the merits the State asserts that the ground for review “should be dismissed as improvidently granted because appellant’s contention was not advanced in the court of appeals.” State’s Brief, at 6.

A more timely and orderly medium for raising questions of that nature is the reply to petition for discretionary review; it will alert the judge responsible for making an initial review to a putative problem, so that he may inform himself and, in making his report on the petition to the Court, direct its attention to the matter at the threshold of its determination of whether to grant or refuse the petition.16

Without counsel the right to file such a response is lost. Most likely the client never even realizes the right.

The main argument for requiring appointed counsel to advise or prepare a response is that of equal protection. At first glance such a claim wouldn’t work; contentions that counsel should be appointed for defendants’ PDRs have been repeatedly denied, not only by Wilson and Peterson but originally by the U.S. Supreme Court in Ross v. Moffitt in 1974.17 At that time the question of discretionary review didn’t exist in Texas—before 1981 the courts of appeal had only civil jurisdiction. In Ross the Supreme Court denied the North Carolina defendants’ equal protection argument for appointed counsel for a defendant’s PDR, holding that counsel is unnecessary at that stage since the defendant-appellant “will have, at the very least, a transcript or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases” the court of appeals’ ruling, which “would appear to provide the Supreme Court of North Carolina with an adequate basis for its decision to grant or deny review.”18

But the question of a reply to a state PDR aside, applying Ross to the denial of counsel for a defendant’s PDR is immediately suspect in Texas, since unless counsel files an Anders brief, Wilson does not require that the client be sent a copy of the trial records, which Ross assumes the client will have to write a pro se PDR. And most records today are provided only in electronic form, and the average prisoner has no access to a computer in order to view digital files even if his appellate law­yer is willing to send him the records in that form. Only the most conscientious attorneys are likely to agree to print the records without compensation; this could be cost-prohibitive, particularly where the client had a full jury trial. And whether a county would reimburse counsel for printing and mailing it to the client—particularly under Wilson—is doubtful at best.

And in any event, a defendant’s PDR and a response to a state PDR are very different things. Where a state PDR is filed—by well-versed attorneys, as is discussed below—the document may raise concepts not mentioned in any document the client may possess. Even if given timely knowledge of the state PDR’s existence, the defendant-respondent must try to navigate what is likely to be a bewildering document with no one even to explain its argument and vocabulary. And a state PDR may cite to the trial record, but the defendant-respondent, who likely does not have a copy of the trial record, is unable to intelligently rebut the state’s interpretation of evidence and testimony. The “Cowboy Codes of the West” implore readers to “never shoot an unarmed man,”19 but the defendant-respondent may not even comprehend the shot before it hits him and puts in jeopardy any appellate ruling in his favor.

Ultimately the Equal Protection Clause compels appointed counsel for a response to a state PDR. Ross noted that the Four­teenth Amendment “does not require absolute equality or precisely equal advantages,” but does mandate that a “state appellate system be ‘free of unreasoned distinctions,’” and that “the question is not one of absolutes, but one of degrees.”20 State appellate systems must give indigents “an adequate opportunity to present their claims fairly within the adversary system,”21 and in any event, the Sixth Amendment’s guarantee of assistance of counsel “encompasses counsel’s assistance whenever necessary to assure a meaningful ‘defence.’”22

In Texas the degree of “unreasoned distinction” regarding the response to a PDR is enormous. To file state PDRs and to reply to defendants’ PDRs, the state funds not only local appellate prosecutors but the Office of the State Prosecuting Attorney as well, whose highly qualified and experienced appellate lawyers examine courts of appeals’ decisions and use discretionary review to attack rulings the state doesn’t like. In short, in ad­di­tion to the district attorneys and county attorneys who can them­selves file PDRs, the state pays the highly experienced State Prosecuting Attorney and her assistants in part to do a job that the Supreme Court in Ross and the Court of Criminal Appeals in Wilson say can be done by uneducated prisoners.

And no office like the State Prosecuting Attorney exists to represent defendants before the Court of Criminal Appeals. TDCJ’s State Counsel for Offenders is no substitute: Its attorneys have no duty to represent any particular prisoner except those accused of crimes on prison units and inmates facing sex offender commitment proceedings. Where State Counsel didn’t do the initial appeal, the legal advice it offers regarding a PDR is likely to be a desultory and vague form letter, and in any event is often not sent through the post. Instead the prison transportation system (“truck mail”) may be used, which might take two weeks to convey a letter to the defendant-respondent. Counting the time for the prisoner’s letter to arrive and be routed to and processed by a State Counsel lawyer, whatever advice is offered may not reach the defendant-respondent until the time for filing a response to a state PDR has expired. As opposed to the local prosecutors and the State Prosecuting Attorney, indigent defendant-respondents unquestionably suffer from an “unreasoned distinction” in Texas’ appellate system, denying them equal protection.23

I recently brought this matter to the Court of Criminal Appeals’ attention via an amicus brief when the state filed a PDR in Grado v. State.24 The court of appeals had awarded my client a new sentencing hearing. After the state PDR was granted, I repeated the argument in my brief on my client’s behalf. The Court of Criminal Appeals affirmed the reversal for resentencing, which was gratifying, but didn’t mention the need for counsel to reply to the state PDR.25

Several potential means exist to remedy the discrepancy. First, Wilson could be modified to require appellate attorneys, when prevailing at the courts of appeals, to continue to represent their clients through the PDR stage. Or alternatively, the applicable statute, article 26.05(a)(3-4) of the Code of Criminal Procedure, could be amended to revive counsel’s appointment when the state files a PDR. But this raises a further question: What would appellate counsel’s duties be if the court of appeals reverses only part of the judgment below? For example, if a client wants to seek discretionary review to challenge the affirmance of the conviction while a state PDR challenges a grant of resentencing, a suggestion that counsel should be compensated only for responding to the state PDR seems odd at best. And appellate pros­e­cu­tors are always willing to argue that a defendant is not en­ti­tled to “dual representation,” and that courts should ignore pro se filings where the defendant is represented by counsel. Thus providing appointed counsel for a defendant-respondent but not for a defendant-petitioner, while quick and easy, would be problematic.

Or, of course, a “State Defending Attorney” could be appointed to fulfill much the same function as the State Prosecuting Attorney in representing defendants before the Court of Criminal Appeals. If the Legislature wished, it need not set up a new office; instead it could simply require that State Counsel create a department to take on this duty in the same manner as that office represents inmates facing new charges and civil com­mitment proceedings. But this still leaves open the question of whether the attorneys so designated will have the power or funds to represent prisoners as petitioners as well as respondents. If not, the “dual representation” conundrum again appears.

In any event, the current system is insufficient. Having an office or department assume the same function for defendants as the State Prosecuting Attorney does for the state—including filing PDRs and responding to state PDRs—seems the most appropriate solution. The current Legislature has passed laws to ensure that its citizens may carry firearms to defend themselves, even on college campuses. Whether the Legislature will also have the same sense of fair play to go on paying for PDRs to attack defendants’ appellate victories—while leaving little-educated, uncounseled, and possibly uninformed defendant-respondents without the means to understand or answer those attacks—is in some doubt.

Notes

1. Ayala v. State, 633 S.W.2d 526, 528–9 (Tex. Crim. App. 1982) (Clinton, J., concurring).

2. Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).

3. 891 S.W.2d 935, 939–40 (Tex. Crim. App. 1994).

4. Id.

5. Peterson v. Jones, 894 S.W.2d 370 (Tex. Crim. App. 1995).

6. Id. at 373.

7. 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).

8. Id.

9. Id.

10. Tex. Code Crim. Pro. Ann. Art. 26.04(j)(2) (Vernon supp. 2015).

11. Peterson, 894 S.W.2d at 375–6.

12. Tex. Code Crim. Pro. Ann. Art. 1.051(d)(2) (Vernon supp. 2014).

13. Ex parte Wilson, 956 S.W.2d 25, 27.

14. Tex. R. App. P. 9.4(i)(2)(D) (A “petition for discretionary review and response in the Court of Criminal Appeals” is limited to 4,500 words or 15 pages); Tex. R. App. P. 68.2 (the Court of Criminal Appeals may also “extend the time to file a response” to a PDR); Tex. R. App. P. 68.9 (the “opposing party has 15 days after the timely filing of the petition in the Court of Criminal Appeals to file a reply to the petition with the clerk of the Court of Criminal Appeals”); Tex. R. App. P. 68.10–68.11 (and a reply to a PDR must be served on the State Prosecuting Attorney and “may be amended or supplemented at any time justice requires”).

15. See, e.g., Goldberg v. State, Reply to PDR #0041-03, 2003 WL 25759829, regarding 95 S.W.3d 345 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

16. Valcarel v. State, 765 S.W.2d 412, 419 (Tex. Crim. App. 1985) (Clinton, J., concurring).

17. 417 U.S. 600.

18. Ross, 417 U.S. at 615.

19. http://www.thewildwest.org/cowboys/wildwestcowboyfacts/218-cowboy-codesofthewest.

20. Ross, 417 U.S. at 612.

21. Id.

22. United States v. Wade, 388 U.S. 218, 225, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

23. Ross, 417 U.S. at 612.

24. 445 S.W.3d 736 (Tex. Crim. App. 2014).

25. Id.

Successfully Suppressing a Search Warrant in Federal Court

The Facts

My court-appointed client, Jermaine Jones (JJ), a career offender, had been indicted in the U.S. District Court for the Western Dis­trict of Texas, Waco Division, for possessing just shy of 46 grams of crack cocaine and a loaded .45 handgun. Four Deputy U.S. marshalls (DUSMs) and three Texas Department of Public Safety Criminal Investigation (DPS CID) agents arrested JJ on local state warrants for felony possession of a controlled substance and money laundering. The agents found the drugs, gun, and a wad of cash in his apartment while conducting a protective sweep for dangerous persons after his arrest. Okay, he’s done, you might say. Let’s pull out the sentencing guidelines and do the math. He’s looking at a lot of time.

Stay with me. It gets interesting.

Prior to executing the warrants, the DUSMs and DPS CID agents conducted surveillance of the apartment where JJ and his girlfriend, Marcy, were known to reside. Marcy was named on the lease but JJ wasn’t. JJ’s silver Mitsubishi car was parked out front, and the license plate came back to JJ’s mom, who owned it. While conducting surveillance, the agent in charge called his confidential informant (CI). The CI told him if the Mitsubishi is there, then JJ’s inside. Agents did not observe any drug trafficking activity; no one was going to and from the apartment.

After a while, agents saw Marcy leave the apartment, drive to Popeye’s, pick up two meals and two drinks, then return to the apartment. Agents did not speak to her, did not detain her, and let her re-enter the apartment. A few minutes later, Marcy left the apartment again, got in the car and started to drive off. One marshall and one agent got into their respective cars and blocked her exit. The agent in charge then interviewed Marcy. Marcy didn’t have any warrants. She told the agent that JJ was in the apartment, gave the front door key to the agent and permission to use it to enter the apartment. Marcy was detained outside the apartment.

With guns drawn, the agents and marshalls approached the apartment door and opened it with the key. JJ was not in the front room. The agent called JJ by name to come to the door. It took a minute for JJ to respond. No doubt he was rather surprised and needed a second or two to think it through. He wasn’t a novice nor a fool, so he slowly emerged unarmed from the back bedroom, shirtless and carrying a pair of shorts with his hands in the air. He cooperated and complied with their orders. He was arrested at the front door. The agent searched JJ and found a small amount of marijuana in the pocket of his shorts. They did not find any drugs or weapons on his person or within his immediate reach, nor in plain view in the front room. They did not ask JJ for permission to search the apartment.

The agents and marshalls then conducted a “protective sweep” of the entire apartment for “dangerous persons.” The agents looked underneath the bed in the back bedroom, where they observed the drugs and cash. Then the agents asked Marcy for permission to search the apartment. Marcy refused. The agent in charge prepared an affidavit for a search warrant, which was granted by the local district judge. The agent returned to the apartment with the search warrant and confiscated the drugs, gun, and money from under the bed.

The search warrant affidavit stated: The agents went to the apartment to execute the state warrants, conducted surveillance, saw JJ’s Mitsubishi, watched Marcy leave the apartment, drive to Popeye’s, return with “two meals and two drinks,” and enter the apartment. She was later detained when she exited the apartment again and returned to the vehicle. The agent questioned her, and Marcy confirmed that JJ was in the apartment and provided her apartment key. Agents detected the odor of marijuana inside her vehicle. Agents used her key to enter the apartment, JJ emerged from the back right bedroom, “was taken into custody near the door,” agents searched the shorts in JJ’s hand and found a useable amount of marijuana in the pocket. Officers entered the residence, “conducted a protective sweep for other persons,” looked under the bed in the back right bedroom, observed a ziplock bag containing cash and a quantity of suspected crack cocaine, and observed marijuana residue on the nightstand.

As I read the search warrant affidavit and looked at the apartment photos taken by the agents, my instincts told me that the protective sweep didn’t pass the smell test. So I called Marcy’s retained lawyer. He told me that the protective sweep was allowed and would survive my challenge. I wasn’t so sure, so I called my friend, Stan Schwieger, an appellate lawyer who’s way smarter than I am. Did I have a viable motion to suppress the sweep, the search warrant, and the contraband? Stan wasn’t sure either, but he believed it was worth pursuing. Stan and I spent several hours sorting through the facts and identifying legal issues. Stan re-acquainted me with Wayne LaFave. As you may recall from your law school days, LaFave literally wrote the book on search and seizure.

I don’t know any trial lawyer who enjoys researching and writing a brief in support of a motion to suppress, including me. So I knuckled down to the painful task, thinking it an exercise in futility, but you gotta do what you gotta do. After all, my client was a career offender.

Stan’s assistance was invaluable. He edited my motion and brief for logic, substance, style, and form. He’s my Yoda. If you don’t have a friend or mentor like Stan, find one real quick.

The Brief

A. Protective Sweep of Persons

A protective sweep for dangerous persons incident to arrest may be a permissible exception to the Fourth Amendment’s prohibition against unreasonable search and seizure, depending on totality of circumstances—including the scope and duration of the sweep. The Supreme Court has placed limits on the circumstances, scope, and duration of the sweep. First, law enforcement must have entered legally and for a legitimate law enforcement purpose. Second, officers must have a reasonable, articulable suspicion that the area to be swept contains (a) a person, and (b) that person poses a danger to those on the scene. Third, the protective sweep must be limited to a cursory inspection of only those places where a person may hide, not a full search of the premises. Finally, officers must conclude the sweep once they have dispelled their reasonable suspicion of danger, and they may not continue the sweep after they are no longer justified in remaining on the premises. Maryland v. Buie, 494 U.S. 325, 334 (1990); United States v. Mata, 517 F. 3d 279, 285 (5th Cir. 2008).

1. The facts in this case do not justify a “protective sweep for persons” in Defendant’s residence.

A “protective sweep” made in connection with an arrest will be upheld in circumstances such as the following: The location is a major narcotics distribution or manufacturing point, or police believe that others within may be engaging in more serious conduct at that location, or the arrestee is unlikely to be a solo participant, or that others are seen or heard running into other parts of the premises, or it is located in a violent or dan­gerous neighborhood. Mata, 517 F. 3d at 287, 288; United States v. Charles, 469 F.3d 402 (5th Cir. 2006).

Here, surveillance did not disclose any articulable facts that could give rise to the reasonable belief that any other individuals, besides Marcy and JJ, were residing in the apartment or that criminal activity was being conducted in the apartment either before or during the arrest. The officers were there to arrest JJ for Hill County warrants, where the criminal conduct was alleged to have occurred. JJ resided in McLennan County. The dep­uty U.S. marshall observed Marcy exit the apartment alone and return alone with only two meals. Marcy cooperated with the lead agent and disclosed that JJ was in the apartment alone. She gave her front door key to the lead agent and permission to enter. JJ surrendered to officers at the door and was arrested at the front door. There was no suggestion that the apartment was in a dangerous or violent neighborhood. The agent offered no articulable or specific facts particular to JJ in the search affidavit to justify the protective sweep for persons. The agent did not articulate facts giving rise to exigent circumstances that would require or permit law enforcement to conduct the prior protective sweep.

2. While a search of the place adjoining the arrest is per­mitted, the search of Defendant’s entire residence, and spe­cifically the back bedroom, exceeded the place from which an attack could be launched against officers.

The Supreme Court held that police may “as a precautionary matter and without probable cause or reasonable suspicion look in closets or other spaces immediately adjoining the place of ar­rest from which an attack could be launched.” Buie, 494 U.S. at 334. In this case, the agent and other officers arrested JJ at the front door. Officers then traveled down a hallway to a back bedroom and looked under a bed, which did not immediately adjoin the place of arrest. It is difficult to imagine how an attack could be launched against officers by an individual presumably hiding under a bed in a back bedroom.

3. While officers may search Defendant’s person and the area within his immediate control for a weapon or contra­band, the protective sweep exceeded the area within the Defendant’s con­trol.

Courts have held officers may conduct a search incident to arrest to prevent the arrestee from accessing a weapon or destroying evidence. But the search is limited to the arrestee’s per­son and to the area within his immediate control. United States v. Green, 324 F.3d 375, 378 (5th Cir. 2003)(citing Chimel v. California, 395 U.S. 752, 763, (1969). In this case, the deputy U.S. marshall searched JJ’s person then took him outside the apartment. The space under the bed in the back bedroom was not under the JJ’s immediate control. The protective sweep for persons in the apartment and the area under the bed was a pretext to search for contraband. It was only after the baggie was found under the bed that officers asked Marcy for consent to search, and when that was refused, they sought a search warrant.

B. Sufficiency of the Search Warrant Affidavit

1. If the Court finds the “protective sweep for persons” in this case violated the Defendant’s Fourth Amendment’s rights, then the untainted information remaining in the affidavit would be insufficient to show probable cause to search the Defendant’s residence.

If it is shown that some of the information in the search affidavit presented to the magistrate was acquired in a prior illegal search, the warrant is nonetheless valid if it could have been issued upon the untainted information in the affidavit. United States v. Hearn, 563 F.3d 95, 103 (5th Cir.2009) (stating that it is sufficient that probable cause is shown by affidavit after the illegally obtained information was purged); United States v. Veillette, 778 F.2d 899, 904 (1st Cir.1985)(holding that the police should not be put in a worse position than they would have been in had they not violated the law).

In this case, the search affidavit stated: “Affiant and other officers entered the residence and conducted a protective sweep for other persons. The deputy U.S. marshall looked for persons under the bed in the right back bedroom and observed a ziplock bag containing U.S. currency an (sic) unknown quantity of crack cocaine,” and observed “marijuana residue” on the bedroom night stand.

The only other information cited in the affidavit was a “useable amount of marijuana” found in the right front pocket of JJ’s denim shorts, “which he carried in his hand” when he was searched incident to arrest at the front door. That information alone would not have been sufficient to show probable cause to search the residence. If the tainted information is removed, the court must decide whether the magistrate would have issued a warrant given only the lawfully obtained information.

“This is not a case where the tainted information which is included in an affidavit along with untainted information is trivial or insignificant or merely cumulative. It is a case where the tainted information is of such major importance that its absence creates grave doubt that the warrant would have issued without it. If we are to uphold the fundamental purposes of the Fourth Amendment and the exclusionary rule by which it is implemented, it is my belief that the practice indulged in by the officers in this case must be condemned and the tainted evidence upon which appellants were convicted suppressed.” United States v. Nelson, 459 F.2d 884, 895 (6th Cir. 1972).

2. Information gained during the illegal, warrantless pro­tective sweep for persons prompted the officers to seek a search war­rant.

The Fifth Circuit has noted: “[U]nlike the objective test of whether the expurgated affidavit constitutes probable cause to issue the warrant, the core judicial inquiry before the district court on remand is a subjective one: whether information gained in the illegal search prompted the officers to seek a warrant to search. In the best of all possible worlds, of course, there will be statements or other evidence directly probative of motivation or effect. But in the usual case, in which direct evidence of subjective intent is absent, a court must infer motivation from the totality of facts and circumstances.” United States v. Restrepo, 966 F.2d 964, 972 (5th Cir. 1992).

The protective sweep for persons under the bed was a pretext to search for contraband. It was only after the baggie was found under the bed that officers asked Marcy for consent to search, and when that was refused, they sought a search warrant. In this case, the information obtained in the illegal search did motivate the officers to seek the warrant.

3. The magistrate did not consider the affidavit purged of tainted evidence.

The Fifth Circuit Court went on to find “we seriously doubt that it is appropriate to apply the deferential, substantial basis standard of review to the issuing magistrate judge’s decision when the magistrate judge never considered the warrant affidavit purged of tainted information.” Restrepo, 966 F.2d at 969.

4. Independent Source Doctrine

When announcing the “fruit of the poisonous tree” doctrine, the Supreme Court limited the exclusionary rule to evidence the police could not trace to some independent and lawful source. Wong Sun v. United States, 371 US 471, 488 (1963). The burden of proof is on the prosecution to establish an independent source. United States v. Leveringston, 397 F.3d 1112, 1115 (8th Cir.2005)(“When the government seeks to rely on the independent source doctrine in a case involving a later-obtained warrant, it should present specific evidence that officers were not prompted by allegedly unlawful activity to obtain the warrant, and should seek a finding on that point”—not done here).

My brief did not address “inevitable discovery” because the facts did not support it. The agents did not obtain consent to search after the protective sweep. Neither JJ nor Marcy made incriminating res gestae statements after the search was performed and the drugs were found—isn’t that amazing?

The Hearing

On cross, I asked the agent in charge (to the best of my recollection—this is not a transcript):

ME: Prior to entering the apartment, did you ask Marcy if there was anyone else in the apartment besides JJ?
AGENT: No.
ME: But you asked her if my client was in there?
AGENT: Yes.
ME: You testified that you’ve been doing this for 16 years, correct?
AGENT: Yes.
ME: Marcy had just left the apartment, so wouldn’t you normally ask that question before you enter the apart­ment?
AGENT: Yes.
ME: For officer safety?
AGENT: Yes.
ME: After all, she was cooperating and gave you her key and permission to enter, right?
AGENT: Yes.
ME: So odds are, she would tell you the truth if you asked her who else was in the apartment, right?
AGENT: Yes.
ME: But you didn’t ask?
AGENT: I guess I forgot.

Let me say that the Judge did not appear to be favorably impressed by his answers.

ME: You previously testified—when asked by the prosecutor—that you arrested my client at the door, didn’t you?
AGENT: It was inside the apartment.
ME: It wasn’t at the door?
AGENT: No, it wasn’t at the door. It was near the door but not at the door.
ME: How far from the door?
AGENT: Maybe 30 feet.

The Judge interrupted my cross and challenged the agent. The Judge told the agent that he had previously testified—when an­swer­ing the prosecutor’s question—that he arrested the defendant at the door.

AGENT [to the Judge]: No, I don’t think I said that, Judge. I don’t think so. It was inside the apartment.

The Judge challenged the agent again: “No that’s not what you said on your earlier testimony. You said you arrested him at the door.”

I asked a few more questions. Then Judge interrupted me to tell me he was granting my motion to suppress. Nice.

The Court’s Opinion

The Judge granted my motion to suppress and found:

After entering a residence to execute an arrest warrant, of­fi­cers may conduct a limited search for their own protection. United States v. Blevins, 755 F.3d 312, 325 (5th Cir. 2014); United States v. Jackson, 596 F.3d 236. (5th Cir.), cert. denied, __ U.S. __, 131 S.Ct.90, 178L.Ed.2d247 (2010). This “protective sweep” doctrine allows government agents, without a warrant, to conduct a quick and limited search of premises for the safety of agents and others present at the scene. U.S. v. Albarado, 555 Fed.Appx. 353, 357 (5th Cir. 2014), cert. filed No. 14-8787 (Aug. 6, 2014). Evidence found in plain view while conducting the security sweep is admissible, but evidence recovered beyond the scope of the protective sweep is not. Id.; United States v. Virgil, 444 F.3d 447, 451 (5th Cir.), cert. denied, 549 U.S. 879, 127 S.Ct. 365, 166 L.Ed.2d 138 (2006). A protective sweep may occur even after a suspect is arrested. Id.

        To be constitutionally valid, (1) “the police must not have entered (or remained in) the home illegally and their pres­ence within it must be for a legitimate law enforcement purpose”; (2) “the protective sweep must be supported by a reasonable, articulable suspicion . . . that the area to be swept harbors an individual posing a danger to those on the scene”; (3) “the legitimate protective sweep may not be a full search but may be no more than a cursory inspection of those spaces where a person may be found”; and (4) the protective sweep “may last . . . no longer than is necessary to dispel the reasonable suspicion of danger, and . . . no longer than the police are justified in remaining on the premises.” U.S. v. Roberts, 612 F.3d 306, 311 (5th Cir.), cert. denied sub nom., Booth v. U.S., __ U.S. __, 131 S.Ct. 839, 178 L.Ed.2d 570 (2010)(quoting United States v. Gould, 364 F.3d 578, 587 (5th Cir. 2004)(en banc), abrogated in part on other grounds by Kentucky v. King, ___ U.S. ___, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011)). In the present case, the officers possessed no reasonable, articulable suspicion that the apartment harbored any other individuals who would pose a danger to those on the scene.

        Accordingly, Defendant’s Motion to Suppress is GRANTED as to the evidence obtained from the apartment.

The Disposition

The U.S. Attorney dismissed the case against my client.

The Star Expert in the Pre-Columbian Artifacts Affair

The Pre-Columbian Artifacts case had already been tried and appealed once before I ever became involved in it. The Defendants had all been convicted, both of transporting the artifacts in international and interstate commerce and of conspiring to do so. The Fifth Circuit had sent the case back to Judge John H. Wood of the United States District Court for the Western District of Texas for retrial, because of an error in his instructions to the jury on the Mexican law concerning “National Monuments” in the first trial.

My client, a young man from Tennessee who was the beneficiary of a trust fund that had been exhausted by the time of the retrial, was unable to afford counsel to represent him this second time around. Judge Wood appointed me to represent him. With two exceptions, all the others were represented by the attorney who represented them in the first trial and appeal. One of those had not been arrested at the time of the first trial, and the other had decided to represent himself the second time around. As it turned out, the defendant who was not involved in the first trial was also not involved in the second, as he was found to be incompetent to stand trial. Before that determination was made, though, his (also court-appointed) attorney, Tom Sharp, was of invaluable assistance to those defendants and their attorneys who did go to trial, because of his devotion to duty and attention to detail.

Tom (since, tragically, dead in his early fifties of a brain tumor), with his outstanding preparation on the law and the facts and, in particular, his work in locating an expert on Mexican law to assist defense counsel and testify at the trial, convinced me forever that a good trial lawyer, properly motivated by a sense of responsibility to the client and the court, can handle whatever case comes his way.

The defendants in the case were all very normal people—with no prior involvement with the law—who steadfastly maintained their innocence of any wrongdoing. The government’s evidence began with the fact that it had been brought to the attention of the FBI that a group of people had a quantity of terra cotta pre-Columbian artifacts on display at a motel in San Antonio. An employee of the Mexican government working at the San Antonio branch of the Universidad Nacional Autonomico de Mexico (UNAM) had been to the motel and seen the display and contacted the FBI immediately thereafter, concerned as to how such an extensive display could be in private hands, given the then current state of the Mexican Law.

It was the position of the Republic of Mexico, as fully expounded by government lawyers associated with the Instituto Nacional de Antropologia e Historia (INA) in Mexico City, that Mexico had over 40 years earlier declared national ownership of all pre-Cortesian artifacts not already in private ownership and possession. (Mexico dates such artifacts with reference to the arrival of Hernan Cortes in 1512, and not Columbus’ arrival in the New World in 1492. Given the virtual irrelevance of Columbus to Mexican history and the central position occupied by Cortes, the approach seems more than reasonable.)

By other enactments, the Mexican government representatives testified, the exportation of such items from Mexico without the express permission of the Mexican Government was outlawed—and permission had never been granted to anyone other than museums and universities to export them. The law was designed, they made very clear, to preserve the national patrimony of Mexico, and to prevent the looting of ancient ruins and burial grounds.

The American government, for its part, took the position that transporting these items across the USA–Mexico border, in view of the status of Mexican law, constituted theft. Thus, said the Justice Department, transporting the items in international or interstate commerce constituted a violation of the National Stolen Property Act, which prohibits so transporting stolen property.

To avoid clogging the Federal Courts with small cases, Congress set a minimum value of $5,000 on stolen property before the case could be heard in Federal Court. To prove the property was worth at least that much, the prosecution had lined up an internationally recognized archaeological expert on pre-Columbian artifacts, who assured that the value of these artifacts far exceeded that minimum value, and in fact exceeded $100,000.

The artifacts had been brought to San Antonio by an aging California widower, who had no luck in selling any significant amount of the items before he had to return to California. By the time he left, he had struck up a relationship with a San Antonio salesman, and the salesman had convinced him that he’d have a better chance of selling them if he left the artifacts in San Antonio, where, the salesman assured him, he’d be able to find buyers.

The artifacts were left in San Antonio, and the salesman in turn got a Houston woman (who had once lived in Central America and knew something about artifacts), the young man from Tennessee (who had a few dollars to spend in flying himself and the salesman around the country with samples, trying to interest buyers), and the salesman’s own wife (who answered their home phone when calls were made by the FBI) involved with the artifacts. All were subsequently indicted.

When the FBI was called by the employee of UNAM, a phone call was made to the salesman in San Antonio, under the pretext of an interest in purchasing all the artifacts and any additional artifacts that he might be able to come up with. The salesman, not wanting to lose a “live one,” gave assurances, not only of the quality of the goods on hand, but of his ability to deliver all the caller might require in the future.

It was agreed that a display of the artifacts would be arranged in a different San Antonio motel, where salesman and caller would meet several days later. At this point it was necessary for the Houston and Tennessee defendants to become involved, for their knowledge of artifacts and ability to finance the showing, respectively. They came to San Antonio, rented a suite of rooms, and set up a display of the artifacts.

When the meeting came about, there were again discussions of the ability of the sellers to deliver additional quantities to buyers, who by this time were representing themselves to be with “The Syndicate,” interested in cornering the American and European markets for pre-Columbian objects. Undaunted, salesman assured buyers that there were “Indians digging up graves” even as they spoke, and sellers could meet any future demands for further artifacts.

It was and is the position of all the defendants in the case that there were in fact no Indians and no possibility of further artifacts becoming available, that the salesman was simply engaging in “puff talk.”

As we were preparing for the second trial, it seemed clear that we were going to have to defend with technical defenses, as the defendants had tried unsuccessfully to convince the jury, in the first trial, that all the talk with the undercover FBI agents was just talk, and had rather obviously not been believed.

Therefore, we began to view the case from the point of view of defending based on a differing interpretation of Mexican law—as well as from the point of view of contesting the authenticity and the alleged Mexican provenience of the artifacts.

If Mexico had not declared na­tional ownership of the artifacts so clearly as was being asserted, then importation of Mexican artifacts would not necessarily constitute a theft under Mexican law. Moreover, if the artifacts could not be proved to have come from Mexico, then Mexican law would be irrelevant; pre-Cortesian artifacts of a nature somewhat similar to the majority of the artifacts in our case could be found in Honduras, Belize, and Guatemala, if not elsewhere in Central America.

Of course, if the items were not pre-Cortesian the entire prosecution would fail.

It was in the area of finding us an expert on the Mexican law of “monuments,” as ruins and grave sites are called in Mexican law, that Tom Sharp did such yeoman service. He found us a bright and energetic Mexico City lawyer who had studied both in Mexico and the United States, held advanced degrees in international law, and had served for a time as a law professor in a California law school. He confirmed our impression of the Mexican law of monuments, namely that the laws were contradictory and somewhat convoluted, and that one simply could not engage in the dogmatic assertion that a clear declaration of national ownership of such property had been made.

My attempts to deal with the other issues (the authenticity of the artifacts and their Mexican provenance) I will now set forth in some detail.

During the several years that passed from the time the defendants in this case were first charged until the denial of their writs of certiorari to the United States Supreme Court after the second appeal, dealers and collectors of pre-Columbian artifacts and museums all over the country maintained a very active interest in the case. The opinion was widely (though not universally) held by such people that the defendants in the case were scapegoats.

 Accordingly, curators and dealers were usu­ally not merely willing but eager to talk with counsel about the case—so long as it was off the record. Nobody wanted to be identified by the government as being friendly to the defense, lest too close a look be taken at collections in which they had an interest.

All the lawyers tried to find us an expert, but none succeeded, and we went to trial without one.

I had been surprised when I learned that the government expert’s opinion was based entirely on his experience and his having “eyeballed” the artifacts. That kind of evidence certainly had been deemed insufficient in other types of cases (imagine a drug case without a chemical analysis of the substance involved, or a police officer’s testimony that a red stain was blood without serological work), and I thought the jury would like to have something more concrete.

I had done some reading on the subject (I took a back seat to no one, when originally appointed to this case, in my thorough ignorance of pre-Columbian artifacts and the law concerning the same) and learned a little bit about where these objects may be found. As I learned at the public library, carbon dating techniques do not work with terra cotta objects, as they contain no organic material. There were, however, two scientific techniques that had been used in this area; one was the technique, already known to me in other types of cases, of neutron activation analysis. There were, so far as I could determine, only two labs in the country capable of neutron activation analysis at that time—but one of those labs was that of the Federal Bureau of Investigation! The other technique, much less expensive and somewhat more readily available, was called thermoluminescent dosimetry.

The FBI had used neither technique, and the government was asking their peers to find these defendants guilty. I was prepared to argue to the jury, without having subjected the material to either of two scientific tests, either of which could have established the age of the articles beyond cavil, leaving only the provenience at issue.

By the time the case came to trial, Tom Sharp’s client had been declared incompetent to stand trial, so we didn’t have Tom with us at the trial. We did have the Mexican legal expert Tom had lined up, however, and he testified very straightforwardly and, I thought, advantageously to the defense.

Early in the trial we made some good points, I thought. The FBI had used a Houston mortgage-loan man who apparently just liked to play cops and robbers as the contact point with the defendants. It was he that told the salesman he was with “The Syndicate” and was out to control the American and European markets in pre-Columbian art.

He had done a great deal of this sort of “play acting” in earlier cases with the FBI, to the extent that he had acquired something of a reputation in the Houston area for being a bit flaky. Just for grins, as they say, I asked him on cross-examination if he was familiar with his own reputation for truth and veracity; when he said that he was, I asked whether the reputation was good or bad. He said “about fifty-fifty”!

Further, while sticking to his guns that his eyeball identification was as reliable as any identification that could be made on the authenticity of the objects, the government’s artifacts expert did admit that both of the scientific methods could have been employed and would have given scientific evidence on the issue.

About the second night we were in trial, I returned to the office and discovered a telephone message. The caller identified himself as an archaeologist from an eastern university, on sabbatical and teaching at the Defense Language School at Lackland Air Force Base in San Antonio. He felt that my client and the other defendants were being made scapegoats, and wanted to know if he could be of help. He left a San Antonio phone number. This sounded, of course, like the expert witness we had been looking for, the deus ex machina who was going to deliver us from the hands of the Philistines.

I called at once, and reached him. After verifying that my secretary had gotten it right—that he was incensed at what was being done to my client and the others and wanted to help—I began trying to set up a time and place to meet with him.

We met at the appointed hour, and I began to size him up. He was an ordinary-looking sort of fellow, apparently in his late thirties or early forties, and began immediately to ask questions—like whether the artifacts had been analyzed with thermoluminescence or neutron activation. Warming to him, I enthusiastically explained that such testing had not in fact been done. He was shocked, and allowed as how he would never venture to offer the opinion that a particular artifact was authentic unless such testing was done.

Talking further, he explained that his interest in anthropology had caused him to go on after obtaining his bachelor’s degree to obtain two master’s degrees (one in Spanish but the other in linguistics, a branch of anthropology) and his PhD in archaeology, the last from the University of Nebraska.

Enthralled, I told him that I was court-appointed in the case, as were all other defense counsel for this second trial, and I was unsure how much of an expert witness fee would be payable, as these things were usually settled via motion prior to trial. He assured me that money was not his motivation, and I assured him that I would try to get him paid what the government’s expert was being paid.

We agreed that he would appear at the Federal Courthouse the following morning, when I would announce to the Court his entry into the case as the defense artifacts expert and make arrangements for him to inspect the artifacts, in the courthouse vault while the trial continued.

I had explained to our newfound archaeologist that I understood he would much prefer scientific testing, but that at this late date we were going to have to rely on his eyeball opinion. The next morning he appeared at the courthouse as agreed, where he was introduced to the Court and arrangements were made to let him inspect the artifacts. He spent the entire day doing so.

That night, I met with him for a preliminary report to determine whether he was going to be able to help us. I couldn’t have been happier with what I heard. Many pieces, he said, were of doubtful authenticity and certainly could not be said beyond a reasonable doubt to be pre-Columbian. A number of pieces appeared to be authentic, but were the sorts of pieces that could be found in various parts of Mesoamerica, and certainly could not be said beyond a reasonable doubt to be of Mexican provenience. Finally, those pieces that were clearly authentic and clearly Mexican were undistinguished pieces of limited value, and clearly were not worth the $5,000 necessary to support this National Stolen Property Act prosecution.

The next morning, I advised the Court and the prosecutors that the defense at last had its long-sought artifacts expert, and that, in due course, he would be testifying.

In due course, he did, and in response to my questions he supported the defense position manfully, on every issue. I took him step by step through his testimony, refuting the evidence of the government’s expert point by point. “Please explain the technique known as thermoluminescent dosimetry, doctor” and “Why isn’t it possible to know the exact provenance, doctor” were the order of the day.

At the close of my direct examination of him, a very pleased and self-satisfied lawyer took his seat to await eagerly the prosecutor’s best efforts at shaking the witness’ testimony.

The cross-examination began on what seemed a particularly weak note.

“Now, let’s see, doctor. Just exactly how many hours of archaeology were involved in your studies for the bachelor’s degree?”

“Oh, not many, I guess. In fact, as I think about it, I probably took just one three-hour introductory anthropology course.” (Big deal, I thought—who cares how many hours he took towards his bachelor’s. I mean, after all, the man has his PhD.)

“And then, doctor,” the prosecutor continued, “one of your master’s degrees was in Spanish, was it not? A modern language, not in any way connected with linguistics or any other branch of anthropology, much less archaeology?”

“Yes, that’s true,” the witness replied. (Another big deal, I thought—let’s get on with the relevant portions of his education.)

“But you then went on to obtain your master’s in linguistics, didn’t you doctor, and that is legitimately part of the field of anthropology, though not specifically archaeology, isn’t it?”

“Yes,” he replied, smiling condescendingly. “I did, and it is.”

“Now, you’ve said you obtained your PhD in archaeology at the University of Nebraska, isn’t that correct?”

“Yes, that’s right.”

“And what year was that, doctor?”

“1975.”

“Now, then, doctor, can you explain to me why the registrar of the graduate school at the University of Nebraska has no rec­ord of the Doctor of Philosophy degree having been awarded to anyone by your name, in 1975 or any other year?”

(Long pause by the witness. Collective inward groan by all defendants and their counsel.)

“Well, actually, it’s an ABD.”

“An ABD,” the prosecutor inquired. “Perhaps you can explain to the members of the jury what an ABD is?”

“All but dissertation,” the witness muttered. (You sorry son of a bitch, I thought. May you be struck by lightning where you sit.)

“Well then, I guess it’s not doctor; it’s mister, isn’t it?”

“Yes,” said the witness. (No, thought defense counsel, it’s mud.)

“Well then, mister, let me move along to something else.”

With that, the prosecutor pulled from his briefcase a textbook. I don’t remember the correct name of either the book or its author, but the colloquy with the witness went something like this:

“Are you familiar with the name of Joaquin Tall?” (we’ll say, for my lack of memory of a better name).

“Yes, I am,” mister witness replied.

“And could you tell the ladies and gentlemen of the jury who Joaquin Tall is?” the prosecutor asked, ever so gently.

“Why, he is one of the best known authorities on the pre-Columbian artifacts of Mesoamerica in the entire world,” the now ever-so-helpful witness replied.

“And are you familiar with his book Diggin’ Up Bones ’n’ Stuff in Mesoamerica [again, I don’t remember the proper name]?” the prosecutor queried.

“Why, yes I am. It’s one of the most authoritative works in print on the subject,” said Mr. ABD.

“I’d like to read a brief passage from the preface, if I may. Please listen as I do so, as I’ll have some questions about it after I’ve read it.”

The prosecutor then read perhaps a page from the preface, which was directed to professionals in archaeology and art history. After making a basic point, the author moved on to a specific example.

It seems he had, on one occasion, gone to an archaeological site with the director of Mexico’s INA. They came across a scene where a “rough quadrilateral” had been marked off by four sticks stuck into the ground, presumably marking a dig.

There, within the quadrilateral, were an “archaeologist” (the prosecutor indicated the quote marks by raising both hands with the first two fingers of each hand extended) and two Indians. One Indian was holding a paper sack, and the other had a large shovel. The Indian with the shovel would periodically, on command of the “archaeologist” (hands aloft, two fingers extended again), stick the shovel into the ground and come up with a shovelful of earth.

The “archaeologist” (yes, fingers up) would rake through the shovel full of earth “with the same sort of trowel that one might find in the hand of any English lady gardener on a balmy summer afternoon” and, if he found anything, place it in the sack held by the other Indian.

With that, the prosecutor stopped reading and raised his head. “Mister witness,” he said. “Can you tell us who that ‘archaeologist’ [the damned fingers are now wagging like semaphores at the end of each hand] might have been?”

“Me,” he replied.

Not “no, I can’t,” not “I don’t know,” not even “it was me, but I have an explanation.” Just two little letters, one little word: “Me.”

Now, of course, the jury didn’t want to hear about non-Mexican provenience; they were totally unconcerned about thermoluminescent dosimetry. What they wanted to know was where did the defense get this witness? Did they know he was a fraud? Can we believe anything that comes from the defense table?

All I could think of to do on redirect examination was to ask him if he had told me he had the PhD degree (“Yes”), and would he please step down.

I thus hold what I believe to be the North American record for having an “expert” witness crammed down one’s throat. A lawyer doesn’t get to set a lot of records, so I guess I’ll take some solace in that.

The irony of the situation is that the testimony did make sense and would have been admissible even without the claim of a PhD. Of course, swallowing the reference in Joaquin Tall’s preface would have been a little tough, but there is simply no surviving an irrefutable demonstration that a witness has lied.

The defendants were again convicted. I really believe that had I obeyed the age-old admonition to “beware of Greeks bearing gifts” and never put the witness on the stand, it might have been otherwise.

The Fifth Circuit reversed the substantive count, holding that the Mexican law of national monuments was such an “arcane thicket” that convicting any American of transporting artifacts would violate the United States Constitution’s guarantee of due process to those accused of criminal conduct.

However, based on the salesman’s “puff talk,” they further held that there was evidence upon which the jury could permissibly conclude that the group was prepared to break the Mexican law—whatever it might be—and thus the conspiracy conviction was upheld.

I’ll bet the salesman still thinks he could have sold the jury if only that lawyer hadn’t put that phony “expert” on the stand.

The hell of it is—and this hurts to admit—he might be right.

April 2016 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
21 | The 40th Annual Texas Criminal Trial College
25 | Between a Reversal at the Court of Appeals and Discretionary Review: What Are Appointed Counsel’s Duties? – By John Bennett
29 | Successfully Suppressing a Search Warrant in Federal Court – By Mary Beth Harrell
35 | The Star Expert in the Pre-Columbian Artifacts Affair – By Judge Wayne Patrick Priest

Columns
7 | President’s Message
9 | Executive Director’s Perspective
11 | Editor’s Comment
12 | Ethics and the Law
14 | Off the Back
16 | Federal Corner
19 | Said & Done

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

President’s Message: The Civil Invasion of Criminal Matters – By Samuel E. Bassett

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The world of defending a criminal case used to be simpler. As I look around my office at lawyers who have practiced in excess of 50 years, I realize how much the landscape has changed in just a generation or two. Nowhere is this more apparent than in the increasing number of civil proceedings that accompany even a misdemeanor criminal case today. What is relatively new as well is the new landscape on college campuses of Title IX requirements in cases where sexual misconduct is alleged.

I recently lunched with a parent of a college student. She told me a story about how her son, a college freshman, had engaged in a consensual sexual encounter with a young lady. Both parties were students at the same university. It is reported that the Feds have implemented new policies under the Obama administration that seek to curtail the number of sexual assaults on college campuses. The simple version is that many, if not most, college campuses receiving Title IX funding have requirements regarding sexual conduct for students, which can include getting verbal consent and permission for each and every sexual act as a situation progresses (i.e., kissing, touching, etc.). What has accompanied the new policies is an increase in staffing at most universities, usually in the form of additional assistant deans of students and staff to investigate claims of sexual misconduct by a student.

Students who are accused are often asked to come in and give a statement to a hearings officer within hours of the initial allegation. Many are blindsided by the quick process and have no idea what the impact might be on their future. A finding of sexual misconduct will stay on the student’s academic record forever. Statements in the academic setting are also useful to law enforcement in the event of a criminal investigation. Yes, a student can appeal the findings and sanctions. What is the nature of this appeal? Typically, the student is allowed to present evidence but is not allowed to have any meaningful legal assistance at the disciplinary appeal hearing. A lawyer can attend with the student but essentially must sit like a potted plant—with the exception that the lawyer and student may pass notes to one another.

It is difficult to believe that this is a process adopted by thinking individuals who ostensibly should be modeling fairness and due process. There are civil lawsuits being filed to attempt to change this imbalanced process, and there are high-profile horror stories. The attempt to curtail sexual misconduct on campuses is a noble goal and should be pursued. However, given the short track record of recent cases on campuses involving the new initiative, you have to wonder if basic principles of fairness have taken a back seat to a well-intentioned political agenda.

We’ve seen this play before in the context of other types of cases. Civil judges often have hearings early in a process following an arrest over whether to grant a protective order in a family violence case. The criminal defense attorney should never ignore this and the pitfalls as well as the opportunities it presents. In child abuse cases, there is often concurrent family law litigation moving much more quickly than the criminal case, and it can have huge consequences on the outcome of the case. I have three criminal cases right now in which the alleged victim has filed a concurrent civil suit for monetary damages. As discussed above, statements made by students at their “initial meeting” with a dean of students representative can greatly impact the outcome of a future sexual assault case in district court.

It is not my role to advise anyone about policy matters on how we handle the serious issues of sexual assault, family violence, or child abuse. However, it is at the heart of all TCDLA members, judges, and prosecutors to consider how an individual accused is treated when well-intentioned policies are implemented that lack fundamental fairness. If you have such a case, get involved early and fight for your client. The fight can be long, difficult and take more time than you ever expected. However, it is your duty to engage rather than turning a blind eye to concurrent civil and administrative proceedings that can shape the outcome and your client’s future.

Executive Director’s Perspective: Welcome Aboard – By Joseph A. Martinez

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Please join me in welcoming Andrea Keilen, our new General Counsel for TCDLA. Andrea will also be our Lobbyist, working with our lobby team in the upcoming Texas Legislative session. Andrea brings a wealth of experience to TCDLA. We are very fortunate to have her on board. She can be reached at the home office, 512-478-2514.

Special thanks to course director Rick Wardroup for our Capital/Mental Health seminar held in Houston in February. Thanks to him and our speakers we had 108 attendees.

Special thanks to Gerry Morris (Austin), current president of NACDL, for allowing TCDLA/CDLP to help co-sponsor the 2016 Midwinter Meeting & Seminar held in Austin in February. CDLP provided 48 scholarships to the seminar. We thank the CCA, in particular Judge Barbara Hervey, for their support of the scholarships. Special thanks to Norman Reimer, Executive Director of NACDL, and Gerald Lippert, Associate Executive Director for Programs, Business Services, and Technology of NACDL, for all of their help and support. TCDLA sponsored a Texas Night at Austin Saengerrunde Hall for the NACDL seminar participants and board members. A good Texas time was had by all.

Very special thanks to Lydia Clay-Jackson (Conroe) and Tim Evans (Fort Worth), our Dean of Students and Dean of Faculty, respectively, of our 40th Annual Texas Criminal Trial College, held in Huntsville. For the last 40 years TCDLA/CDLP has provided a week-long college focused on improving the trial skills of lawyers. Lydia and Tim for at least the last 20+ years have been the bedrock of the college. We thank them for their contributions to justice. We thank the 47 faculty who participated this year. We had 74 students attend the college.

The 29th Annual Rusty Duncan Advanced Criminal Law Course is being held June 16–18, 2016, in San Antonio. Please start making 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. This year’s Rusty theme is “Lawyers, Guns, and Money.”

Join us in San Antonio for the 24th Annual Pachanga Party at the home of the Goldsteins (Kristi and Gerry). The Goldstein Pachanga is a cultural icon, 600+ people gathering in the Goldsteins’ backyard around their pool and feasting on food, beverages, and great company.

The TCDLA membership party this year will be an ’80s-theme Casino Night, featuring music from The Spazmatics. It will be a fundraiser for TCDLEI to provide scholarships to lawyers, so you can enjoy the evening and know you are making a contribution to a worthy cause.

We will have a bike ride with our guide Gerry Goldstein (San Antonio). We will also have a fun run one morning down the unique and picturesque San Antonio River. See you in San Antonio.

Weren’t able to attend last year’s Rusty Duncan event? You can order the DVD and get CLE credit. Please go to our website for more information and to order.

Do you need CLE credit and can’t attend our seminar training? Please call the home office (512-468-2514) for a list of the DVDs and accompanying CLE credit.

Don’t have a local criminal defense bar in your 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.

Editor’s Comment: Legacies – By Sarah Roland

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As I write this column, my husband and I are preparing to bring our second child—a boy—into this world. We have decided to name him Samuel George Smith. (Yes, I am one of those women who didn’t change my last name.) George, after my late dad, George Roland. My dad was a fierce defender of the Constitution—the best. I now know and appreciate the blood, sweat, and tears that he invested in his work and its meaning. The soon-to-be birth of my son has me thinking a lot about legacies—the ones we leave behind, the ones we create, the ones we pass on.

As criminal defense lawyers, we all want people to remember that we were fierce defenders of our Constitution, formidable opponents of the State, and made a lasting difference. That’s a given—ingrained in each of us. What else though?

I attended Texas Bluebonnet Girls’ State the summer before my senior year of high school and incidentally the last summer I had with my dad. The camp was a whole 10 days long. I had never been away from home that long before, and I did not know another soul attending. My parents knew I was nervous, and they sent me mail throughout the week. I have 3 letters from my dad written on legal paper in his trademark black marker, no doubt while he was waiting during court (we are all familiar with the “hurry up and wait” reality that plagues our profession). I have carried these letters with me both literally and figuratively ever since:

As long as it’s right don’t be afraid to do it. As long as it’s right and necessary don’t be afraid to strike as hard as you can—always hard but never foul or unethically—nor when it’s not necessary. Win, but win fairly.

Lawyers are in the best position—by virtue of their education, talent, and positions of influence—to positively address the challenges that our society faces. Perhaps it is our debt to those who came before us and our gift to those who will follow—

When I re-read these letters now, I read my dad’s words with Ellie and Sam in mind. My prayer, above all, is that they are happy and healthy, and that I am a good example for them and a good mom to them.

I talked to Jamie Carrillo several days ago, and Buck Files recently wrote about his scary health experience. There is no question—life is precious. Every single day counts. All too often our profession is thankless and lonely; in turn it’s easy to become that way. Let’s not. Let’s be positive and purposeful. Let’s be honest and empathetic. Let’s help others. Let’s build each other up and share the credit. After all, we are all in this together. Let’s not pass on a moment to tell the people we love and appreciate how we feel. Let’s leave the world a better place for our children.

Ethics and the Law: Midnight Special

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Midnight Special is a traditional folk song thought to have originated among prisoners in the American South. The title comes from the passenger train “Midnight Special” and is performed from the viewpoint of the prisoners. Lyrics first appeared in print in 1905.

You get up in the mornin’
You hear the ding dong ring
Now you look upon the table
You see the same darn thing
You find no food upon the table
No pork up in the pan
But if you say a thing about it
You’ll be in trouble with the man

Ah, let the Midnight Special
shine her light on me
Oh, let the Midnight Special
shine it’s ever lovin’ light on me

(“Midnight Special,” lyrics by Johnny Rivers)

This song was recorded in an Angola prison and related to a 1923 Houston jail break. John and Henry Lomax, in their book “Best Loved American Folk Songs,” told a story that identified the Midnight Special as a train from Houston shining its light into a cell in the Sugar Land prison. The light of the train is seen as the light of salvation, the train that would take them away from the prison walls. Carl Sandburg believed the subject of the song would rather be run over by a train than spend more time in jail. Several versions of the song place the location of the song near Houston.

Many things have changed in the past 100 years since prisoners were singing this song. Many things have not changed. Desperate men and women are still locked up. Many are there because their lawyers did not follow the oath they took. The hotline has been getting many calls from lawyers and families of defendants. The families are complaining because the lawyer either has been hired or appointed and does not communicate with the client or the family. Some are desperate people as were the prisoners in the “Midnight Special” song.

Several lawyers got mad because the family got another lawyer to go see the defendant in jail. It is completely ethical to do this. See Rule 4.02 of the Texas Disciplinary Rules of Professional Conduct, specifically 4.02(d)(2):

Rule 4.02 Communication with One Represented by Counsel

(a)   in representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

(b)   In representing a client a lawyer shall not communicate or cause another to communicate about the subject of representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

(c)   For the purpose of this rule, “organization or entity of government” includes: (1) those persons presently having a managerial responsibility with an organization or entity of government that relates to the subject of the representation, or (2) those persons presently employed by such organization or entity and whose act or omission in connection with the subject of rep­resentation may make the organization or entity of government vicariously liable for such act or omission.

(d)   When a person, organization, or entity of government that is represented by a lawyer in a matter seeks advice regarding that matter from another lawyer, the second lawyer is not prohibited by paragraph (a) from giving such advice without notifying or seeking consent of the first lawyer.

Comment 2 thereto discusses several exceptions to 4.02(a)’s general prohibition, including:

Finally, it does not prohibit a lawyer from furnishing a second opinion in a matter to one requesting such opinion, nor from discussing employment in the matter if requested to do so.

Most of the grievances are for failure to communicate. Don’t put yourself in that spot. It is no fun.