Monthly archive

June 2016

June 2016 SDR – Voice for the Defense Vol. 45, No. 5

Voice for the Defense Volume 45, No. 5 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

The U.S. Supreme Court has jurisdiction to decide that a state collateral review court improperly refused to give retroactive effect to the Supreme Court’s 2012 Miller v. Alabama, prohibiting mandatory sentences of life without parole for juveniles. Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

        D was 17 years old in 1963 when he killed a Louisiana sheriff. The jury returned a verdict of “guilty without capital punishment,” which carried an automatic sentence of life without the possibility of parole. Nearly 50 years later, the Supreme Court decided that mandatory life without pa­role for juvenile homicide offenders violated the U.S. Const. amend. XVIII prohibition on “cruel and unusual punishments.” Miller v. Alabama, 132 S. Ct. 2455 (2012). D sought state collateral relief, arguing that Miller rendered his mandatory life-without-parole sentence illegal. The trial court denied his motion, and his application for a supervisory writ was denied by the Louisiana Supreme Court, which had previously held that Miller does not have retroactive effect in cases on state collateral review. The Court here reversed and remanded.

        When a new substantive rule of constitutional law controlled the outcome of a case, the Constitution required state collateral review courts to give retroactive effect to that rule. The Court therefore had jurisdiction to review the Louisiana courts’ decision that the Miller rule did not apply retroactively. Miller’s holding that mandatory life imprisonment without parole for juvenile homicide offenders violated the Eighth Amendment announced a new substantive rule that, under the Constitution, was retroactive in cases on collateral review. Giving Miller retroactive effect did not require states to relitigate sentences in every case. Instead, states could remedy Miller violations by permitting juvenile homicide offenders to be considered for parole.

The law-of-the-case doctrine did not require the sufficiency of the evidence be measured against the elements described in the jury instructions where those instructions, without objection, required the Government to prove additional or more stringent elements than the statute and indictment. Musacchio v. United States, 136 S. Ct. 709 (2016).

        D resigned as Exel Transportation Services (ETS) president in 2004 but accessed ETS’s computer system until 2006 without ETS’s authorization. In 2010, D was indicted under 18 U.S.C. § 1030(a)(2)(C), which makes it a crime to intentionally access a computer without authorization or exceed authorized access and thereby obtain information from any protected computer. D was charged with conspiring to commit unauthorized access and making unauthorized access. He did not argue in trial court that his prosecution violated the 5-year statute of limitations. 18 U.S.C. § 3282(a). At trial, the Government did not object when the court instructed the jury that § 1030(a)(2)(C) “makes it a crime . . . to intentionally access a computer without authorization and exceed authorized access,” even though the conjunction “and” added an additional element. The jury found D guilty of conspiring to commit unauthorized access. On appeal, D challenged the sufficiency of the evidence supporting his conspiracy conviction and argued, for the first time, that his prosecution was barred by § 3282(a)’s statute of limitations. In affirming his conviction, the Fifth Circuit assessed D’s sufficiency challenge against the charged elements of the conspiracy count rather than the heightened jury instruction and concluded that he waived his statute-of-limitations defense by failing to raise it at trial. The Court unanimously affirmed the Fifth Circuit.

        A sufficiency challenge should be assessed against the ele­ments of the charged crime, not the elements in an erroneous jury instruction. Sufficiency review essentially addresses whether the Government’s case was strong enough to reach the jury. A reviewing court conducts a limited inquiry tailored to ensuring that a defendant receives the minimum required by due process. It does this by considering only the “legal” question “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307 (1979). The Government’s failure to introduce evidence of an additional element does not implicate these principles, and its failure to object to a heightened jury instruction does not affect sufficiency review. Because D did not dispute that he was properly charged with conspiracy to obtain unauthorized access, or that the evidence was sufficient to convict him of the charged crime, the Fifth Cir­cuit correctly rejected his sufficiency challenge.

        Secondly, D could not successfully raise the statute of lim­itations bar under § 3282(a) for the first time on appeal. Because § 3282(a) does not impose a jurisdictional limit, the fail­ure to raise the defense at or before trial is reviewable on ap­peal—if at all—only for plain error. A district court’s failure to enforce an unraised limitations defense under § 3282(a) cannot be a plain error, however, because if a defendant fails to press the defense, it does not become part of the case; thus, there is no error for an appellate court to correct.

Fifth Circuit

A USSG § 3B1.1 sentencing adjustment may be based on either control over people or management of assets; because the district court could plausibly determine that D exercised management responsibility over the property, assets, or activities of a criminal organization, that court did not clearly err in applying a § 3B1.1 enhancement. United States v. Ochoa-Gomez, 777 F.3d 278 (5th Cir. 2015).

        Although USSG § 3B1.1 and its commentary provide that a defendant may not receive an aggravating-role adjustment where he does not exercise control over a person (as opposed to property), the Fifth Circuit has held, in United States v. Delgado, 672 F.3d 320 (5th Cir. 2012), that the adjustment may be applied even where the defendant did not exercise control over another participant if he exercised management responsibility over the property, assets, or activities of a criminal organization.

In sentencing D convicted of alien harboring, district court did not err in applying, pursuant to USSG § 2L1.1(b)(5)(B), a four-level enhancement for “brandishing” a deadly weapon. United States v. Reyna-
Esparza,
777 F.3d 291 (5th Cir. 2015).

        Given the circumstances of the case, the district court did not clearly err in finding that D displayed the weapon to the harbored aliens with intent to intimidate.

Ds adequately preserved their objection that the Government improperly withheld a motion for a third-level reduction under USSG § 3E1.1(b) on the basis of Ds’ refusal to waive their right to appeal. United States v. Torres-Perez, 777 F.3d 764 (5th Cir. 2015).

        This was improper under United States v. Villegas Palacios, 756 F.3d 325 (5th Cir. 2014). Moreover, the error was not harmless because there was insufficient evidence that that the sentencing court would have imposed the same sentence even in the absence of the error. The Fifth Circuit remanded for resentencing.

D, ultimately convicted of possession and distribution of child pornography, was not “in custody” for Miranda purposes when, while numerous officers were executing a search warrant on D’s residence, D went into a police vehicle and was questioned for an hour by two officers; D was told he was not under arrest and was free to leave. United States v. Wright, 777 F.3d 769 (5th Cir. 2015).

        (2) Even if the Government violated Doyle v. Ohio, 426 U.S. 610 (1976), by commenting, during closing argument, on D’s refusal to answer certain questions during his interrogation, any error was harmless beyond a reasonable doubt under the circumstances of this case.

        (3) District court did not violate D’s right, under Fed. R. Crim. P. 32(i)(4)(A)(i), to have his attorney speak on his behalf. Although the district court did not permit defense counsel to respond to the Government’s oral presentation, defense counsel was given a full opportunity to speak before the prosecutor spoke, and the matters the prosecution referenced were in the presentence report and hence were not new.

In sentencing D convicted of failing to register as a sex offender, district court did not plainly err in imposing a special condition of supervised release prohibiting D from “residing or going to places where a minor or minors are known to frequent without prior approval of the probation officer,” especially given D’s repeated failure to comply with registration requirements and the fact that the probation officer could authorize D to go such places in appropriate instances. United States v. Fields, 777 F.3d 799 (5th Cir. 2015).

District court committed reversible plain error in applying a 16-level “drug trafficking offense” enhancement to illegal-reentry D under USSG § 2L1.2(b)(1)(A)(i); the statute of D’s prior conviction (Fla. Stat. § 893.135(1)(f)), although referred to as “trafficking” in Florida law, included simple possession of a controlled substance, which is not a “drug trafficking offense” under § 2L1.2. United States v. Sarabia-Martinez, 779 F.3d 274 (5th Cir. 2015).

        Moreover, no documents allowed the offense of conviction to be narrowed under the modified categorical approach; the district court erred in relying on facts in the presentence report to determine D had been convicted of drug distribution rather than mere possession. The error affected D’s rights, and the Fifth Circuit exercised its discretion to correct the error by vacating the sentence and remanding for resentencing.

District court reversibly erred in applying a 16-level “crime of violence” enhancement under USSG § 2L1.2(b)(1)(A)(ii) based on D’s Florida manslaughter conviction, Fla. Stat. § 782.07; Florida manslaughter does not have as an element the use, attempted use, or threatened use of physical force. United States v. Garcia-Perez, 779 F.3d 278 (5th Cir. 2015).

        Nor is Florida manslaughter equivalent to generic manslaughter because the Florida offense can be committed with a mens rea less than recklessness; although the Fifth Circuit had previously held to the contrary in an unpublished decision, that decision did not have the benefit of a later, clarifying decision of the Florida Supreme Court. Because the Government did not meet its burden of proving the error was harmless, the Fifth Circuit remanded for resentencing.

District court did not err in applying a 12-level “crime of violence” enhancement to illegal-reentry D because the record adequately narrowed his prior Texas conviction to one that qualified as the enumerated “crime of violence” of aggravated assault. United States v. Sanchez-Sanchez, 779 F.3d 300 (5th Cir. 2015).

        The record showed D was indicted for, and pleaded guilty to, a violation of Tex. Penal Code § 22.02(a)(4) (1989)—aggravated assault with a deadly weapon—which meets the generic, contemporary definition of “aggravated assault.” The fact that the Texas judgment did not contain an affirmative deadly-weapon finding did not cast doubt on the fact of his conviction under § 22.02(a)(4) because, in Texas, a defendant could stand convicted of aggravated assault with a deadly weapon even if the trial court did not enter a separate and affirmative deadly-weapon finding.

After Amendment 775 (effective Nov. 1, 2013) to USSG § 3E1.1 and its commentary, the Government may withhold a § 3E1.1(b) motion (for an additional one-level reduction for acceptance of responsibility) based on an interest identified in subsection (a) or (b) of § 3E1.1; however, if a defendant has a good-faith dispute as to the findings in the presentence report, it is impermissible for the Government to refuse to move for a § 3E1.1(b) reduction simply because the defendant requests a hearing to litigate the dispute. United States v. Castillo, 779 F.3d 318 (5th Cir. 2015).

        Accordingly, the Fifth Circuit vacated D’s sentence and remanded to allow the district court to determine whether her challenge to the amount of funds stolen (on which a Guideline “loss” enhancement turned) was made in good faith.

District court did not err in granting qualified immunity and dismissing Texas state prisoner’s 42 U.S.C. § 1983 suit against various prison officials; prisoner alleged his due-process rights were violated by being classified as a sex offender. Toney v. Owens, 779 F.3d 330 (5th Cir. 2014).

        The Fifth Circuit concluded that neither the prisoner’s classification as a sex offender nor the consequences flowing from that classification implicated the prisoner’s liberty interests under the U.S. Const. amend. XIV Due Process Clause where prisoner was never mandated to undergo sex-offender treatment or subjected to sex-offender conditions of parole.

Court of Criminal Appeals

Where D plead guilty to possession of a controlled substance (Count I) and no contest to possession of certain chemicals with intent to manufacture a controlled substance (Count II) in exchange for the State’s agreement to a sentencing cap on Count II, his successful challenge to his conviction for Count II negated the entire plea bargain. Ex parte Cox, 482 S.W.3d 112 (Tex.Crim.App. 2016).

        D plead guilty to one count of possession of a controlled substance (Count I) in violation of Tex. Health & Safety Code § 481.115(a), (b) and no contest to one count of possession of cer­tain chemicals with intent to manufacture a controlled sub­stance (Count II). The trial court sentenced him to 20 years’ imprisonment on Count I and 35 years on Count II, to run concurrently. D appealed his conviction on Count II, arguing that it failed to sufficiently allege an offense. The State argued that COA should dismiss D’s appeal because he had entered his pleas and waived appeal as part of the plea bargain, and COA agreed. D filed this habeas application. CCA granted relief and remanded.

        “After review, we find that, because the plea bargain was a package deal and part of this plea bargain cannot be fulfilled, the entire plea bargain is unenforceable, thus the parties must be returned to their original positions. We remand this case to the trial court for re-sentencing.” The plea agreement was a package deal because the consideration was D’s waiver of a constitutional right in one count for the reduction of sentence on a different count. Because Count II did not state an offense, the terms of the plea bargain were unenforceable; the parties had to be returned to their original positions.

CCA affirmed without analysis that the warrantless, non­consensual blood draw of D suspected of DWI, con­ducted pursuant to the implied-consent and mandatory-blood-draw provisions in the Texas Transportation Code, violated U.S. Const. amend. IV. Reeder v. State, 480 S.W.3d 544 (Tex.Crim.App. 2016).

        “[Appellant] skidded off the road and hit a tree. During the ensuing investigation, police began to suspect that Appellant was intoxicated while operating his vehicle, and they took a blood specimen (over Appellant’s objections) pursuant to Section 724.012(b)(3)(B) of the Texas Transportation Code. Because the police concluded that Appellant was driving while intoxicated and had twice before been convicted of DWI, he was charged with felony DWI. Appellant filed a motion to suppress, which the trial court denied. He then pled guilty. . . .

        “On appeal, Appellant argued that his conviction should be reversed in light of . . . Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013). On January 8, 2014, the court of appeals issued an opinion affirming the judgment of the trial court and concluding that McNeely did not render Section 724.012(b)(3)(B) of the Texas Transportation Code unconstitutional. However, on February 4, 2014, [COA] granted the State’s motion for rehearing and substituted its opinion with a new one granting relief and finding Section 724.012(b) unconstitutional as applied to Appellant. . . . The State Prosecuting Attorney subsequently filed a timely petition . . . arguing that the mandatory blood-draw provision in this case did not violate the Fourth Amendment despite the Supreme Court’s ruling in McNeely.

        “Before we could resolve the petition filed by the SPA, we issued an opinion in another case, State v. Villarreal, [475 S.W.3d 784 (Tex.Crim.App. 2014)], in which we resolved the same issue against the State. Although we subsequently granted rehearing in Villarreal, we later concluded that the State’s motion was improvidently granted and denied the State’s motion for rehearing. Therefore, in light of our decision in Villarreal and the reasoning therein, we overrule the State’s single ground for review and affirm [COA].”

Due to a lack of scientific evidence, CCA upheld habeas relief for murder-convicted D. Ex parte Robbins, 478 S.W.3d 678 (Tex.Crim.App. 2016).

        CCA’s entire opinion stated: “Having granted the State’s motion for rehearing in this case, and having considered its merits, we now conclude that the State’s motion for rehearing was improvidently granted. We deny the State’s motion for rehearing. No further motions will be entertained.”

        Alcala concurred: “This concurring opinion marks the third time in less than five years that I must document my po­si­tion in favor of granting post-conviction relief to applicant, who is incarcerated for capital murder in a case in which there is no competent evidence that a murder even occurred. . . . This is the correct result. But it is five years too late and it comes at the high cost of diminishing this Court’s credibility. Today’s decision should give no one any comfort about the actual viability of the current version of Article 11.073 of the Texas Code of Criminal Procedure, the new-science statute in Texas.”

CCA upheld D’s capital sentence; the punishment evidence was sufficient, and jury selection and the voir dire of an expert witness were proper. Daniel v. State, No. AP-77,034 (Tex.Crim.App. Feb 10, 2016).

        “[A] jury convicted appellant of the capital murder of peace officer Jaime Padron. Tex. Penal Code § 19.03(a)(1). Pur­suant to the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure article 37.071, sections 2(b) and 2(e), the trial judge sentenced appellant to death. Tex. Code Crim. Proc. art. 37.071, § 2(g). Direct appeal to this Court is automatic. Art. 37.071, § 2(h). Appellant raises three points of error. After reviewing appellant’s points of error, we find them to be without merit.”

        The evidence was sufficient to support the jury’s affir­ma­tive answer to the future-dangerousness special issue. It showed D went to the store intending to shoplift; he brought a loaded gun because he foresaw that police officers would pre­vent him from leaving the store; he had demonstrated an es­ca­lating pattern of disrespect for the law prior to the commission of the crime; he displayed a lack of remorse after the crime; and an expert did not think D’s brain was damaged to the extent that he could not control his behavior or impulses. Furthermore, D could not demonstrate harm from the trial court’s refusal to grant his challenge for cause against a prospective juror where he did not request additional strikes or identify an objectionable juror who sat on the jury.

Habeas applicant showed specific enough facts for CCA to conclude his claim alleged that—and alleged only that—his judgment was incorrect; therefore, CCA dismissed the claim because applicant’s proper remedy was to seek a nunc pro tunc judgment or a mandamus writ. Ex parte Molina, 483 S.W.3d 24 (Tex.Crim.App. 2016).

        “This is a post-conviction application for writ of habeas corpus. Tex. Code. Crim Proc. art. 11.07. Applicant brings eight claims for relief, including one claim alleging that the judgment in his case did not adequately reflect credit for the time he served in county jail before his sentence was pronounced. Applicant, however, does not claim to have exhausted all his administrative remedies to this alleged error. . . . [A]n applicant must exhaust all administrative remedies before he may bring a claim in an 11.07 writ application that he is not being properly credited with time served on his sentence. Tex. Gov. Code § 501.0081. This writ application involves the persistent issue of whether applicants must exhaust their administrative remedies under Section 501.0081 of the Texas Government Code before they may bring a post-conviction application for writ of habeas corpus alleging that the judgment is incorrect for failing to credit them for time that they served in jail before their sentence was imposed. We conclude that such claims are not subject to the Section 501.0081 exhaustion requirement.” CCA denied D’s claims.

        “[I]f the only claim that an applicant raises in a post-conviction application for writ of habeas corpus is one that attacks the accuracy of the judgment with respect to presentence jail-time credit, but he does not claim to have exhausted his ad­ministrative remedies, then we will not dismiss it under Section 501.0081, since that provision does not apply. . . . Applicant alleges that he was ‘magistrated for this charge in Fort Bend County on December 7th, 2011,’ and that ‘The Honorable Judge is the one that shall give defendant credit on his sentence for time that defendant has spent in jail on “said cause” from time of his arrest and confinement until his sentence[.]’ The claim that Applicant was arraigned on December 7, 2011, conflicts with the portion of the judgment reflecting that Applicant should receive time served starting from October 31, 2012—almost a year later than December 7, 2011—and running until January 14, 2014. This apparent discrepancy, coupled with Applicant’s argument that a judge shall give a defendant credit for time spent in jail starting from his confinement until his sen­tence, provides sufficient context to justify the determination that his only time-credit claim is that the judgment is incorrect. . . . Therefore, we dismiss this claim, not under Section 501.0081 of the Texas Government Code, but under [our prior case law]. Applicant’s proper remedy is to seek a nunc pro tunc judgment or, failing that endeavor, an application for writ of mandamus.”

The evidence was sufficient to support D’s conviction for first-degree aggravated assault of a family member under Tex. Penal Code § 22.02(b)(1) where the jury could have rationally inferred that his girlfriend’s injuries caused her a substantial risk of death and constituted serious bodily injury under Tex. Penal Code § 1.07(a)(46). Blea v. State, 483 S.W.3d 29 (Tex.Crim.App. 2016).

        The State’s sole ground for review contended that COA erred by reversing D’s conviction for first-degree aggravated assault of a family member against his then-girlfriend. The State challenged COA’s determination that the evidence was legally insufficient to establish the element of “serious bodily injury.” Tex. Penal Code § 22.02(b)(1). The State asserted that in deciding whether D caused serious bodily injury, COA should have examined the injuries as they were inflicted by D rather than assessing the injuries in their improved or ameliorated condition after medical treatment.

        CCA agreed. In light of the evidence that D’s actions lacerated the girlfriend’s liver and collapsed her lung; she was taken to the hospital due to her trouble breathing; she was hospitalized for four days; her lung injury required a tube to permit breathing; and in light of testimony describing her risk of death from the type of injuries she sustained, the jury could have rationally inferred that her injuries caused her a substantial risk of death. Concluding the evidence was legally sufficient, CCA reversed COA and reinstated the trial court’s judgment.

D made an adequate showing of deficient performance because counsel failed to advise him regarding the man­da­tory deportation consequence of his guilty plea; however, D’s prejudice claim failed because he did not demonstrate that but for counsel’s errors, he would have rejected the plea bargain. Ex parte Torres, 483 S.W.3d 35 (Tex.Crim.App. 2016).

        The trial court denied D the habeas relief he requested pur­suant to Padilla v. Kentucky, 559 U.S. 356 (2010). See U.S. Const. amends. VI, XIV. COA reversed.

        Under Strickland v. Washington, 466 U.S. 668 (1984), CCA determined trial counsel performed deficiently by failing to adequately advise D regarding the presumptively mandatory deportation consequences of his guilty plea. CCA also determined the record supported the trial court’s conclusion that D was not prejudiced as a result of counsel’s error in view of the lack of any evidence from D as to how he was prejudiced and in the absence of any credible facts in the record showing that but for counsel’s erroneous advice, D would have rationally decided to reject the plea bargain and pursue a trial. The record supported a conclusion that D did not place any special emphasis on avoiding deportation consequences as a result of his plea because his concern at the time was getting out of jail, and he disregarded counsel’s advice to seek counsel from an immigration attorney as to how his residency status would be impacted by his plea. Accordingly, CCA overruled the State’s third ground for review that contended trial counsel did not render deficient performance, and CCA sustained the first two grounds asserting that COA erred by determining D was prejudiced. CCA reversed COA and reinstated the judgment denying relief.

Court of Appeals

D’s convictions for aggravated assault with a deadly weapon against a public servant were proper because the jury was free to disbelieve D’s testimony and infer that he knew the men in the bedroom were officers serving a search warrant and intentionally or knowingly pointed a gun at the officer. Parker v. State, No. 06-15-00144-CR (Tex.App.—Texarkana May 4, 2016).

        During a police raid of his residence, D allegedly pointed a shotgun at two police officers. By two separate indictments, D was charged with aggravated assault with a deadly weapon against a public servant. After a jury trial, he was found guilty on both counts. Here, D contended that the evidence supporting his convictions was legally insufficient. COA affirmed the trial court.

        D’s convictions for aggravated assault with a deadly weapon against a public servant under Tex. Penal Code §§ 22.01(a)(2), and 22.02(a)(2) and (b)(2)(B), were proper because the jury was free to disbelieve D’s testimony that he was hiding in a closet and did not see the officers, and to infer that he knew that the men were sheriff’s officers serving a search war­rant and he intentionally or knowingly pointed the shotgun at each officer, thereby threatening him with imminent bodily injury. As such inferences were more than reasonable under the facts and circumstances of the case, the jury’s verdict was supported by legally sufficient evidence.

Expediting Production of DWI Audio/Video Recordings Even Where Charges Have Not Been Filed

We have all been there. Your new DWI client gets arrested in a county where the prosecutor steadfastly declines to provide any discovery, including audio/video electronic recordings, until formal charges are filed. The prosecutor cites the recent decision in In re the State of Texas ex rel. Michael Munk, __ S.W.3d ___, 2015 WL 6121390 (Tex.App.—Eastland 2015)(not yet released for publication)(standing for the limited proposition that district courts lack jurisdiction to compel discovery production until the case has been indicted). Of course, that filing process can take months, but you would like to get ready now because you are that kind of lawyer. You have also requested an ALR and would like to get ready for that, too. Regrettably, you know that ALR hearing will likely happen before formal charges are filed by the criminal prosecutor, and as such, you will not have the benefit of preparing your cross-examination by reviewing the arresting officer’s audio/video electronic recording. Feeling frustrated and defeated that the criminal prosecutor is not going to do the right thing and allow you access to the electronic recording, you feel boxed in and accept the fact. Accordingly, you accept that you are not going to have the benefit of the video to get ready to defend either the ALR or DWI until formal charges are filed and temporarily close your file.

Do you know that it doesn’t have to be that way? For good lawyers who think out of the box, it doesn’t have to be that way at all! In fact, for the good lawyers, the video is there for the asking, and it doesn’t matter whether it is before or after formal criminal charges have been filed. In fact, it doesn’t matter even if your client was not arrested. All that does matter is that the client was stopped and an electronic recording was made. What follows is what you need to know.

II.  DISCOVERY METHODS

A. MICHAEL MORTON ACT (“MMA”)

The Michael Morton Act (MMA), Art. 39.14(a), Texas Code of Criminal Procedure, requires the State to produce discovery “as soon as practicable after receiving a timely request from the defendant.” Because Article 39.14(a) provides the directory language “the State shall produce,” its production duty is not discretionary nor can it be limited by any prosecutor “policy.” Applying the Code Construction Act, Tex.Gov’t.Code, we know that “[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage.” Tex.Gov’t.Code Sec. 311.011(a). We also know that when words or phrases have a technical meaning, whether by the legislature or otherwise, those words shall be “construed accordingly.” Tex.Gov’t.Code. Sec. 311.011(b). Finally, we know that “unless a different construction is expressly provided by statute . . . ‘shall’ imposes a duty.” Tex.Gov’t.Code 311.016(2).

Recently, one appellate court took a unique approach to the MMA when it issued the controversial opinion In re the State of Texas ex rel. Michael Munk, __ S.W.3d ___, 2015 WL 6121390 (Tex.App.—Eastland 2015)(not yet released for publication). Simply put, this is a horrible decision based on a limited reading of the MMA that runs completely contrary to the spirit of that act and shows a failure to read and properly interpret the Code Construction Act.

Munk was a murder case where the trial judge granted the defendant’s MMA motion to compel discovery. The State filed a writ of mandamus, where it asserted that the trial court did not have jurisdiction to issue an order compelling the pre-indictment production of discovery.1 The Eastland Court of Appeals agreed with the state, and said “[i]n the absence of express language in Article 39.14(a) authorizing the trial court to issue an order compelling the State to produce discovery prior to indictment, we conclude that the statute does not alter the well-settled requirement that an indictment is essential to the district court’s jurisdiction in a criminal case.” The court went on to note that the judge, therefore, did not have jurisdiction to compel the state to comply with 39.14. Interestingly and curiously, the opinion never even addresses the MMA language stating “as soon as practicable after receiving a timely request from the defendant that state shall produce . . .” Tex. Code Crim. P. Art. 39.14(a). This failure to discuss MMA’s “as soon as practicable” makes the opinion appear as if it were result oriented.2

So, does Munk control? We think not, and here is why. There are several distinguishing factors in Munk. First, the Munk Eastland Court of Appeals opinion is not published, and as such, has no precedent value and is not binding. It also has no weight or force outside that district. Second, the Munk Court did not rule that the discovery could not be compelled. Rather, it simply said that the district court lacked pre-indictment jurisdiction to compel the State to produce the discovery. Its theory was that the district court was merely acting in its capacity as a magistrate until there was an indictment, and that the magistrate could not compel the discovery. Clearly such a holding violates both the spirit of the MMA and legislative intent.3 If the State cannot be compelled to produce discovery, then the MMA has no teeth, making its promise to promote justice hollow. Here, it is beyond peradventure that this was not the legislative intent that went into drafting one of the most widely praised criminal discovery bills in history. Third, nothing in the opinion addresses misdemeanor cases involving county courts or misdemeanor cases where the case will proceed to trial without indictment.

B. APPLICATION OF THE CODE CONSTRUCTION ACT TO THE MMA

When the MMA is read under the microscope of the Code Construction Act (“CCA”), codified under Section 311 of the Texas Government Code, focusing on “as soon as practicable, after receiving a timely request” and applying the CCA’s directives, it is not debatable that the State has a pre-indictment duty to produce discovery to the defendant. Looking back, the facts that gave rise to the MMA’s passage, are instructive that MMA discovery is amazingly broad and includes DWI audio/video electronic recordings.

C. TEXAS CODE OF CRIMINAL PROCEDURE ART 2.139

What could be better for discovery than the MMA? For DWI defendants, the answer is, like icing on the MMA cake, Article 2.139 Tex.Crim.Pro., which became effective September 1, 2015. It provides that:

a person stopped or arrested on suspicion of an offense under Section 49.04 (Driving While Intoxicated), 49.045 (Driving While Intoxicated with a Child Passenger), 49.07 (Intoxication Assault), or 49.08 (Intoxication Manslaughter), Penal Code, is entitled to [an electronic video recording if the person was stopped and a recoding was made].

Interestingly, Article 2.139’s 2015 legislative history is instructive that audio/video electronic recordings must be produced even before the filing of formal charges, and that the duty to produce is not dependent on the filing of criminal charges.4 In crafting the production duty, the legislature recognized a previous production problem, and noted that “persons arrested for certain intoxication offenses under the Penal Code [were] not en­titled to a copy of all video recordings of the arrest.” House Committee Report, HB 3791(HB), Engrossed. Recognizing the problem and wanting to remedy it, the legislature asserted “that a person [stopped or] arrested for certain intoxication offenses should be entitled to a copy of all video recordings made during the arrest.” House Committee Report, HB 3791 [emphasis added].

Tex.Code Crim. P. Art. 2.139 [emphasis added] now provides:

A person stopped or arrested on suspicion of an offense under Section 49.04, 49.045, 49.07,or 49.08, Penal Code, is entitled to receive from a law enforcement agency employing the peace officer who made the stop or arrest a copy of any video made by or at the direction of the officer that con­tains footage of:
(1) the stop;
(2) the arrest;
(3) the conduct of the person stopped during any interaction with the officer, including during the administration of a field sobriety test; or
(4) a procedure in which a specimen of the person’s breath or blood is taken.

To understand the mandatory production nature and broad­ness of 2.139, the reader must focus on the phrase “is entitled,” as defined by Tex.Gov’t.Code Sec. 311.016(4). It leaves no doubt in the language: “Is entitled to” creates or recognizes a right. Thus, the plain meaning of Art. 2.139 is that a person who is arrested or stopped for Driving While Intoxicated, Driving While Intoxicated Child Passenger, Intoxication Assault, or Intoxication Manslaughter has a right to any video recording of the stop, the arrest, conduct of the person during any interaction with the officer (including but not limited to the administration of the standardized field sobriety tests) and any procedure in which a specimen of that person’s blood or breath is taken. Clearly, since the statute provides the alternative “or stopped,” it was designed to mandate production upon request even for individuals who were not arrested but only stopped.5

To yet further illustrate the mandatory nature of this production requirement, we need only to look at the Texas Attorney General’s 2016 Public Information Handbook. There, it is clearly stated that its transparency purpose is to “promote an open and inclusive system of government in Texas that benefits all of our citizens.” The Handbook provides detailed analysis regarding information that the government must disclose, may disclose, and must not disclose. Importantly, Art. 2.139 is specifically referenced in the handbook, and its language reprinted there in its entirety. This section of the Handbook has little commentary on Art. 2.139 other than noting the statute’s effective date and noting that there is no current case law or formal opinions regarding the statute. Of even greater import there is the fact that there is no commentary suggesting that under any circumstances, these video records not be produced. This is to be contrasted with other sections in the Handbook where the Attorney General has offered clear commentary on items that the government does not have to produce. Such commentary was not offered on Art. 2.139 because the answer is clear—a copy of any video relating to a stop or arrest for an intoxication offense must be given to the person who was the subject of that stop or arrest. Again, there is no condition precedent that formal charges are filed in order for the State’s mandatory production duty to arise.

Where a police agency refuses to provide a copy of the rele­vant video recordings upon request, or where it attempts to create undue delay by requesting an attorney general decision on the issue, the Texas Public Information Act (“TPIA”) provides a remedy to compel immediate production. Specifically, TPIA provides for a suit under a Writ of Mandamus to compel the wrongfully resistant governmental agency to release the requested information. Tex. Gov’t. Code Sec. 552.321; Thomas v. Cornyn, 71 S.W.3d 473, 483 (Tex.App.—Austin 2002, no pet.)(“A requestor may bring a mandamus action regardless of whether an attorney general’s opinion has been requested or despite the issuance of an adverse attorney general’s opinion that favors the withholding of the information.”) This mandamus action is statutorily created, and is different from the “traditional” mandamus that applies to decisions made by trial courts. A mandamus under the TPIA is filed in a district court of the county in which the main offices of the governmental body (in this situation, the police agency) are located. Further, in certain situations in which a suit for a writ of mandamus is needed to compel the agency to comply with the law, the TPIA allows for recovery of attorney’s fees by the party who brought the action. See Tex. Gov’t. Code sec. 552.323.

III.  PUTTING IT ALL TOGETHER: DEMAND LETTER TO THE ARRESTING AGENCY AND MOTION TO COMPEL PRODUCTION AND REQUEST FOR SANCTIONS

A. THE DEMAND

So now we know the law, and here is how we suggest defense practitioners use it. First, a demand letter should be sent to the head of the law enforcement agency responsible for the stop or arrest of your client, and it should be done in a way that shows timely receipt of it. A fax receipt, hand delivery, or registered mail with a return receipt are appropriate and can be used as future evidence of timely receipt. A suggested demand letter follows:

[CHIEF OF POLICE ] [POLICE DEPARTMENT ADDRESS]

RE:  Video Recording of Arrest for Intoxication Offense: [CLIENT]

Dear Chief [   ]:
        I have been retained to represent [CLIENT] as a result of an arrest for an Intoxication Offense, as that term is used in Texas Code of Criminal Procedure 2.139. As you are likely aware, the Eighty-fourth Legislature passed House Bill 3791, which became effective on September 1, 2015, amends Article 2.139 of the Code of Criminal Procedure and provides as follows:

        A person stopped or arrested on suspicion of an offense under Section 49.04, 49.045, 49.07, or 49.08, Penal Code, is entitled to receive from a law enforcement agency employing the peace officer who made the stop or arrest a copy of any video made by or at the direction of the officer that contains footage of:

(1) the stop;
(2) the arrest;
(3) he conduct of the person stopped during any interaction with the officer, including during the administration of a field sobriety test; or
(4) a procedure in which a specimen of the person’s breath or blood is taken.

This letter is specifically referencing the second Art. 2.139. As per this second article 2.139, this is an invocation of the entitled right noted therein for all electronic digital video/audio recordings by the officers in regard to the stop, arrest, and all interactions with the officers with [CLIENT]. Note, this demand also includes, any video/audio electronic recording of the procedure by which [CLIENT’S BREATH/BLOOD] was taken as per 2.139. In addition, I have attached to the original of this letter a blank DVD and a self-addressed stamped envelope so that DVD could be returned to me at no cost to your agency. Importantly, you are noticed that the Texas Attorney General has already spoken on this issue in its 2016 Texas Public Information Handbook, where it clearly approvingly stated that the transparent purpose of the act is to “promote an open and inclusive system of government in Texas that benefits all of our citizens”.

        In closing, please note that as per Article 2.139, this re­quest establishes an absolute right by [CLIENT] to have this electronic recording at this time. The statute does not allow a law enforcement agency to treat this invocation of an entitled right as discretionary production. Rather, the statute makes it a mandatory production. Please be aware that if this electronic recording is not produced, we will have no choice but to bring law suit pursuant to Tex. Gov’t. Code sec. 552.321, and that this would allow our client to recover attorney’s fees from your agency. That said, I thank you in advance for your professionalism and courtesy in promptly addressing invocation, and for following the law

                                               Sincerely,

B. SO WHAT HAPPENS IF THE LAW ENFORCEMENT AGENCY REFUSES?

In the event that the stopping/arresting agency fails to produce the electronic recording, the next step is to file a Motion to Compel Production and Request for Sanctions with the court where the DWI will or might be pending. In jurisdictions where a court is not yet assigned, then a Writ of Mandamus can be filed in a district court. See Tex. Gov’t. Code sec. 552.321. Our suggested motion to compel is as follows:

IV.  GO GET ’EM!

So now your liberty arsenal just got stronger! Constitutionally speaking, there is no question that our constitutional calling requires we defenders to do our absolute best in any case we have. The answers to some cases come easy while others come with great difficulty. Good lawyers don’t take “no” from the government; rather, they push to get things done. Great lawyers don’t just push, but take! Moreover, because you are great lawyers and think out of the box, what we have for you here is absolutely out of the box. We provide these tools to you both as aids to help you better protect your client’s rights and as food for thought to be a true champion of liberty. And so, we invite you to take these suggestions, run with them, improve them, and most importantly ask that you share your suggestions, improvements and experiences with all of us so that we might also benefit from them. Happy viewing!

Notes

1. It is worth noting that the State’s theory presented in Munk is not shared by all district attorney’s offices in the State. The Harris County District Attorney’s Office, for example, takes the position that “as soon as practicable” does not mean post indictment. Indeed, their routine practice is to provide a copy of the offense report and video once they receive it. Likewise, the Tarrant County District Attorney’s Office makes items available to defense counsel through their “tech share” system as soon as they receive it. While the production of discovery in these counties may still be unduly delayed, it is not because of this renegade interpretation of the MMA. In fact, the Texas District and County Attorney’s Association recently published an article entitled “Just Disclose It,” where it discusses the ethical implications of not producing discovery to the defense, and it concludes that “if there is any conceivable way in which information or evidence could be considered favorable to the defense for exculpation, impeachment, or mitigation purposes, don’t stop to wonder whether the evidence is material and admissible. Just disclose it.” http://www.tdcaa.com/print/13384. Further, you may want to remind the prosecutor of the opinion in Schultz v. The Board of Disciplinary Appeals, No. 55649 (Tex. Dec. 17, 2015), http://www.txboda.org/sites/default/files/Schultz55649%20Opinion.pdf, where failure to produce mitigating discovery was held to be a violation of Texas Disciplinary Rules of Professional Conduct 3.09(d) and 3.04(a), which is broader that the prosecutor’s legal, constitutional duty of disclosure imposed by Brady v. Maryland.

2. The “as soon as practicable” language was recently addressed by Justice Alcala in a concurring opinion of the Texas Court of Criminal Appeals in In re Castillo, 2015 WL 4776080 (not designated for publication)(Tex.Crim.App. 2015). This was a murder case where the prosecutors refused to comply with the MMA until after indictment, and the defendant filed petition for writ of mandamus to force the state to provide the discovery as required by the MMA. Justice Alcala wrote that “the Legislature’s broad use of the phrase ‘any matter involved in the action’ cannot reasonably be interpreted as applying only to those actions for which a formal indictment has been filed because that phrase plainly contains no such limitation.” Id. at 2 [emphasis added]. Justice Alcala went on to say that “by delaying a defendant’s access to discovery until after grand-jury proceedings and indictment, the district attorney has effectively read an additional provision into the statute that changes the ‘as soon as practicable’ language into ‘as soon as practicable after return of indictment by the grand jury.’” Id. Ultimately, the Texas Court of Criminal Appeals denied the Defendant’s petition for a writ of mandamus because of the limited reason that the Defendant failed to show that “he lacks any adequate remedy at law.” Id. at 3. In discussing other potential remedies, Justice Alcala suggests that the Defendant “may seek to challenge the State’s failure to comply with Article 39.14 in the trial court by filing a motion to exclude evidence at the appropriate time,” and that the Defendant “may challenge the State’s failure to comply with discovery requirements during the course of his direct appeal.” Id. Based on Justice Alcala’s opinion, we suggest that you ask the court to exclude any evidence derived from material that was not timely produced pursuant to the MMA.

3. Indeed, such a reading likely also violates the Texas Rules of Professional Conduct. The Professional Ethics Committee of the State Bar of Texas has said that the MMA requires an “open file policy,” and that “prosecutors would violate [Texas Rule of Professional Conduct] 8.04(a)(12) if they attempted to impose conditions not found in [the MMA] before making the required disclosures.” Tex.Comm. on Prof’l Ethics, Op. 646 (2014).

4. Of import here, on a Motion to Compel Production, is that a failure to timely produce, as measured by the “as soon as practicable” standard, will result in the prosecutor being a volunteer witness to be cross-examined as to why it was not practicable to produce the requested discovery.

5. Texas Code of Criminal Procedure 2.139 already existed before this Bill was passed. Due to an oversight, the duplicate Article number was not corrected, so there are two Articles 2.139 until this error is corrected in the next legislative session. Note that even though there are two Articles 2.139, because these Articles are not irreconcilable, both articles have full effect of law. See Tex.Gov’t.Code Sec. 311.025.

WE Are UNLESS

All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.

—Tex. Pen. Code 2.01

The presumption of innocence is commonly understood to be a legal term of art. If that be the case, then, the question becomes whether art really does imitate life in this business.

In theory, the presumption of innocence is indeed a term of art in the sense that it has a specific meaning within the legal field and amongst its practitioners. The presumption is more than just a phrase connoting a specified meaning, though. It is the foundation upon which our niche in this profession has been built. It is the keystone principle that maintains the integrity of our system of justice. It is the fiber in the connective tissue that binds us all to whatever construct we perceive of as our social contract.

In reality, the presumption of innocence is the Alpha and the Omega. Without it there is no justice. Without it, no trust. Without it there is no reason to honor the terms of any social contract, real or imagined.

But the juxtaposition of the presumption of innocence with other legal terms of art brings a sad reality into focus. The “State” is a good and telling example. The truth is there is no “State.” It has no address. No postal zip code. There are no pearly gates that separate the “State’s” lushly manicured grounds and towering white spires from the citizen and his shanty town. There is no lone figurehead reminiscent of Reagan or Stalin or Margaret Thatcher or Thor. It only exists insofar as society allows it to exist. The “State” is a legal term of art, just like the presumption of innocence.

Except, it is nothing like the presumption of innocence. The State is an illusory fable penned by our Founding Fathers and passed from one generation of white-hatted do-gooders to the next. It is drafter and signatory to the social contract to which each of us is bound. It is the aggrieved party and the enforcer whose job it is to redress perceived contractual transgressions. The “State” implies more than it says. The State has a long and ranging arm. The State wields a big and often wretched stick. The State, by and through its agents, has within it the power to chuckle at Oppenheimer’s quip: “Now I am become Death, the Destroyer of Worlds.” In short, the State has within its dominion the propensity for a self-righteous and trembling gravitas.

By way of contrast, there is the presumption of innocence. There can be little doubt the presumption of innocence has been turned on its head. It has been eulogized as a dead letter, its demise feted in the halls of the State. It has been heckled and jeered and burned in effigy. In truth, the presumption of innocence is at odds with its maker and, because of that, no longer exists.

Our citizens accused are more likely to enjoy unicorns and leprechauns and purple rhinos than they are the presumption of innocence. It has been reduced to a sad and consensual hallucination, the artifice of sophistries. But what is profoundly more disheartening than its demise is the reality that we—the defense bar—have helped to kill it.

Not affirmatively, of course. We haven’t exercised the audacity the State so often has when it, for example, hides exculpatory evidence. We haven’t plotted—with maniacal attention to detail—the murder of the presumption of innocence, intentionally or knowingly, or with malice aforethought. Not even death by a thousand pricks is to blame for its demise, at least insofar as those pricks are we.

Instead, we have sharpened the guillotine of the State with our neglect. Ironically, all we have neglected is but a single word. But, as Mark Twain once remarked, “The difference between a word and the right word is like the difference between lightning and a lightning bug.”

As codified, the presumption of innocence, that useless ramble, suggests: “All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.”1

Close your eyes and say it aloud. Now, imagine yourself standing tall before the venire, sweating and preaching and rambling for the 15 minutes the court has conferred upon you like a soiled gift. Look down at your imaginary outline to where the presumption of innocence necessarily precedes the burden of proof. Ask a pretend person to re-state the presumption of innocence in the shorthand we all so often hear.

“Innocent [fill in the blank] proven guilty.”

If your febrile imagination inserted the word until between the brackets, then you, like so many of us, have the blood of the presumption of innocence on your hands, too.

Resist the temptation to roll your eyes and consider the following: The word until is a conjunction that is used to refer to the time that took place or passed before an event or incident. It means “up to the time” or “till the time.” It is also used to show one’s aim of finishing a job or task even if there are things that make accomplishing it difficult.

The word unless, on the other hand, is a conjunction that is used to refer to a condition which makes the event or incident that precedes it impossible. It has the same connotation as the words if and except.2

The words unless and until are not tautological. They do not mean the same thing. They should only be used together when the situation calls for both a context of time and a precondition.3 Using the word until suggests the result is an eventuality. Using the word unless suggests there is some condition precedent that must be satisfied before that result may occur.

Imagine you’re watching an old black-and-white docu­series memorializing the great Clarence Darrow and one of his magnificent rites of defense. Imagine further he is engaged in a heated exchange with a corrupt prosecutor regarding the rights of the accused. Imagine Darrow’s impassioned plea in support of a vigorous and competent defense:

“He is presumed to be innocent UNLESS proven guilty,” Darrow might shout.

Until, Mr. Darrow. Until he’s proven guilty.”

Now tell me you don’t feel the difference. In the example, the prosecutor says a lot without saying much. An economy of words does not necessarily imply an economy of meaning. And, it should not be difficult to divine which of these incarnations ought to be championed by those whose job it is to ensure that justice is done according to the law of the land, as it is written, and as it was intended.

It is also important to highlight the obvious. This business we have chosen is an adversarial one. We are competitors, in fact and in theory. We work with the same facts in an attempt to deliver different products. Woe befall the lawyer who fails to appreciate the reality that an aspect of what we do includes the idea of a sales pitch. Even worse is the thought that some lawyer mistakenly assume his or her pitch is limited by what they believe the facts have or have not proven. We incorporate the pitch in the way we dress and the way we dress our clients. We incorporate the pitch in the way we address the courts and the way we address its juries. We organize and pander to the right­ful pageantry of the presumption of innocence, forgetting somehow that the devil is almost always in the details. The end result is that we are allowing the “State” to capitalize on our neglect. We are conceding the sale before either side utters so much as a single word.

WE are UNLESS and THEY are UNTIL.

The challenge of the defense is to convince the venire that the determination of guilt has yet to be made. In other words, we want them to understand and believe that the accused is presumed to be innocent unless the facts prove otherwise. The challenge of the State is to convince those same people that they wouldn’t be wasting their time if the guilt of the accused were not already assured. In other words, they want them to believe that all that is required of them is that they wait until the end of the State’s presentation before properly returning a verdict of guilt.

Our challenge is consonant with the spirit of the law. Theirs reflects the aim of those engaged in adversarial competition where the results are almost always zero sum. Whether the conflation is the result of intentional complicity or mutual negligence is irrelevant. The point is it is happening. It is diminishing the State’s burden of proof (another term of art). It is poisoning our juries. It is dooming the prospects of our citizens accused. Make no mistake, with a single word we have allowed the “State” to stack the deck against us.

In marketing circles, the term is referred to as “presupposition.” Presupposition is often utilized by using words and language that indicate your assumption that your offer has already been accepted. It is a technique that is used both consciously and subconsciously.4 In the context of the legal field, it is, quite simply, tradecraft. And, what is truly disturbing is that we’re not just allowing this to happen. We are perpetuating its dissemination and widespread acceptance. We act like it’s no big deal.

The impact of word choice is not limited by the ability of the audience to consciously discern subtle differences, either. Re­searchers have long known that expectations influence cognitions and behaviors.5 When we expect a particular outcome, we automatically set in motion a chain of cognitions and behaviors to produce that outcome—and misattribute its cause.6 Although expectancies can develop in many ways, they are often the product of suggestion. Suggestions can come from other people or from the environment; they can be cultivated in the present or drawn from the past; and they can be deliberate or not deliberate.7 Suggestion can influence implicit learning and lead to the enhancement or impairment of memory.8 Further, suggestion can also influence evaluations of a product above and beyond its intrinsic features.9 Suggestions, particularly those that people do not realize they are communicating, can transmit expectations to others and thereby influence their thoughts and behaviors.10

Clearly, the “State” has not taken a chainsaw to our beloved presumption of innocence. Rather, it appears the instrument used was more likely a scalpel. Its aim was specific and its incision precise. The product is a facelift that has altered the fundamental character of the presumption of innocence. A single word has undermined its promise. Now, there is a presumption of guilt, and that presumption is a self-fulfilling prophecy.

What the literature suggests is that when the inaccurate beliefs of different perceivers about a given idea are similar, their individual self-fulfilling effects can accumulate such that their combined self-fulfilling influences may be more powerful than any of their individual self-fulfilling influences. That is, the similar and inaccurate beliefs held by multiple perceivers may potentiate one another’s self-fulfilling effects, a process referred to as synergistic accumulation.11 So, if even one of your potential jurors internalizes the conflation to encourage a presumption of guilt, the die may have already been cast.

Fortunately, the literature also suggests that members of stereotyped groups may be shielded from confirming negative stereotypes if they are also exposed to positive beliefs. In this example, the “stereotyped group” is the citizen accused. The negative stereotype is that a citizen wouldn’t be accused unless he was guilty. The positive belief is the assertion that there is a more redeeming and legally correct definition of the presumption of innocence. To paraphrase Miracle Max, what this ultimately means is that the presumption of innocence is only mostly dead. There’s a difference between mostly dead and all dead. Mostly dead is slightly alive. With all dead . . . well, with all dead, there’s usually only one thing you can do.12

What we can do—what we must do—is right the ship. The presumption of innocence is the ballast that brings balance to the system. For some time now, the ship has been taking on water. As its designated stewards, we must all start bailing that water.

The remedy is simple: object. Object on the basis that the conflation of unless with until with respect to the presumption of innocence is a misstatement of the law. It is. Object on the basis that use of the word until is a comment on the weight of the evidence. It is. Object on the basis that use of the word until effectively reduces (if not eliminates) the “State’s” burden of proof. It does.

Currently, it appears we are unwittingly content to go down with the ship. A simple natural language search for the phrase “innocent until proven guilty” returned only 99 Texas cases. A non-exhaustive review of those cases revealed almost nothing directly on-point. One of them was, and its analysis was telling. In Randolph v. State, the appellant complained that the trial judge violated his due process rights when it suggested to the venire that he was “innocent until proven guilty.”13 The COA noted that “[t]he Texas Court of Criminal Appeals . . . has not drawn a distinction” between unless and until when those terms are used in connection with the presumption of in­no­cence.14 Then, the COA basically shrugged its collective shoulders and, in effect, said, “Look, we all do it all the time; what’s the big deal!?”15 After all, trial counsel did not object to it when he had the chance.16 And the COA observed that “nothing in the record indicates that the venire meaningfully distinguished ‘unless’ from ‘until’ in the context in which the trial court used it during voir dire such that the use of ‘until’ negatively affected [appellant’s] presumption of innocence.”17 Nothing in the record, huh? No kidding.

The issue is not what is being put on the record while the venire is attentively seated. The issue is what the venire is bringing with them—subconsciously or otherwise—as they file in to the room. When we allow the law to be misquoted in the manner it currently is, we effectively endorse a subliminal message that is broadcast to the entire world. The message we send is that trials are but a mere formality. The message we send is that trials are not a search for the truth. The message we send is that trial is simply the final wait to be endured before the accused can be rent asunder. The message we send is that convictions are an ultimate imperative. In an adversarial system such as ours, it is hard to fathom how we can expect to prevail over the “State” when we allow them to start the race at the finish line. That is the difference between unless and until.

We are the purveyors of the presumption of innocence. We are its stewards. We have to do better.

We are unless . . . until we’re not.

Notes

1. Tex. Code Crim. Proc. art. 38.03; Tex. Pen. Code § 2.01.

2. M., Emelda (2011). Difference Between Until and Unless. Retrieved from http://www.differencebetween.net/language/grammar-language/difference-between-until-and-unless/.

3. Unless vs. Until. Retrieved from http://www.diffen.com/difference/Unless_vs_Until.

4 .The Rule of Expectations—The Impact of Suggestion. Retrieved from http://westsidetoastmasters.com/resources/laws_persuasion/chap10.html.

5. Michael, R. B., Garry, M., Kirsch, I. (2012). Suggestion, Cognition, and Behavior. Current Directions in Psychological Science, 21(3) 151-156.

6. Id. (citing Kirsch, I. (1997)). Response expectancy theory and application: A decennial review. Applied & Preventive Psychology, 6, 69–79. Doi: 10.1016/S0962-1849(05)80012-5; Kirsch, I. (2004). Conditioning, expectancy, and the placebo effect: Comment on Stewart-Williams and Podd (2004). Psychological Bulletin, 130, 341–343. Doi: 10.1037/0033-2909.130.2.341).

7. Id. (citing Stewart-Williams, S., & Podd, J. (2004). The placebo effect: Dissolving the expectancy versus conditioning debate. Psychological Bulletin, 130, 324–340. Doi: 10.1037/0033-2909.130.2.341).

8. Id.

9. Id.

10. Id.

11. Madon, S., Guyll, M., Spoth, R., Willard, J. (2004). Self-Fulfilling Prophecies: the Synergistic Accumulative Effect of Parents’ Beliefs on Children’s Drinking Behavior. Psychological Science, Vol. 15, No. 12, 837–845.

12. “The Princess Bride.” Dir. Rob Reiner. Twentieth Century Fox Film Corporation, et al., 1987. Film.

13. Randolph v. State, 2008 Tex. App. LEXIS 9192, No. 01-08-00266-CR, *1 (Tex. App.—Houston [1st Dist.] 2008, unpub.).

14. Id. at *8.

15. Walters v. State, 247 S.W.3d 204, 210 (Tex.Crim.App. 2007); Giesberg v. State, 984 S.W.2d 245, 250 (Tex.Crim.App. 1998); Hill v. State, 955 S.W.2d 96, 100 (Tex.Crim.App. 1997); Mays v. State, 726 S.W.2d 937, 951 (Tex.Crim.App. 1986); Wiseman v. State, 223 S.W.3d 45, 50 (Tex.App.—Houston [1st Dist.] 2006, pet ref’d); Deck v. Missouri, 544 U.S. 622, 630, 125 S. Ct. 2007, 2013, 161 L. Ed. 2d 953 (2005); Wynn v. State, 219 S.W.3d 54, 59 (Tex.App.—Houston [1st Dist.] 2006, no pet.).

16. See Randolph, 2008 Tex. App. at *6.

17. Id. at *8.

Tribal Wars & Jail House Suicide

What Apache Medellin originally wanted was Necho Solis’ left eye. He wanted to make a ring out of it. It took some time to for his fellow gang members to convince him that it was going to be very hard to sell Necho’s death as a suicide if his left eye was missing.

Necho was in the Bexar County Jail at the time, along with Gato Mendares and some other friends of Apache. The difference was that Gato and the others were mostly awaiting trial for drug offenses, while Necho was awaiting trial for the murder of Apache’s sister. She had been murdered by a single shot through her left eye.

The Fernandez gang was probably the largest in operation in the area at the time, in the mid 1970s. Fred Carrasco had been sent to the pen and subsequently died of gunshot wounds received in an attempted breakout. Mando Fernandez was in the pen, and Apache was in charge in Mando’s absence.

Apache was, of course, well known to the police department, and everybody knew that Necho was accused of murdering his sister. That’s why Necho’s death had to look like a suicide, and why, presumably, Apache was willing to forego the original ocular jewelry he had at first sought. The scheme they finally hit upon—to strangle Necho and then hang him from a steel rod in the shower room, so the guards would take it for a suicide—was doomed from the start.

The jail guards might very well have been fooled, but the characteristic fracture of the hyoid bone, which is the inevitable result of manual strangulation, would be a dead giveaway to any competent pathologist.

And so it was accomplished, one dark afternoon. While four other inmates each held an arm or a leg, Gato Mendares strangled him until he was dead. In case you’re wondering, and for my own purposes even if you are not, that is an event which takes several minutes. There is as much of a struggle as the circumstances permit, lasting perhaps as long as a minute before unconsciousness occurs.

Unconsciousness is no indicator of death, however, and if the strangulation stops at that point the victim will almost certainly survive. No, the pressure must be maintained well after unconsciousness occurs. After perhaps another minute, the victim’s body will begin to convulse violently, and quite involuntarily—this is the result of spasms occurring within the dying brain, as a result of oxygen deprivation. If pressure is maintained through the end of the convulsions, it’s probably long enough, but to be absolutely sure it is best to continue for another minute or so, to be sure that you produce a corpse and not merely a brain-dead vegetable.

I have been as graphic as this because I don’t want the point to be missed that Necho Solis was brutally murdered by Gato Mendares, at the request of Apache Medellin. The reason I don’t want this point to be missed is because, at the subsequent trial of Sgt. Ramon Alarcan and Captain James O’Brien of the Sheriff’s Department for violating Necho Solis’ civil rights, the government’s star witnesses—both by then in the Federal Witness Protection Program—were the self-same Apache Medellin and Gato Mendares.

It was my privilege to represent Ramon Alarcan in those proceedings. Let me begin by saying that a jury of his peers found him not guilty of violating Necho Solis’ civil rights, not guilty of conspiring to do so, and not guilty of obstruction of justice.

In fact, the only defendant convicted in the case was one who was shown to have been holding down one of Necho’s legs while Gato Mendares choked the life out of him.

The Justice Department in the 1970s was aggressively pursuing complaints against state and local police authorities for violating the civil rights of citizens. We were not completely removed at that time from the era of the white sheet and burning cross (indeed, traces continue to this day), and I believe that aggressively pursuing such complaints was and is entirely appropriate policy. However, any time a prosecutor sets out to aggressively pursue any sort of unlawful conduct, rather than simply proceed on matters brought to him by law enforcement agencies, there is a danger of an excess of zeal and a loss of sight of the forest while examining the trees under a microscope.

From the undeniable facts that Necho Solis was murdered by fellow inmates in the Bexar County Jail and that, at that particular time even more than usually, a lot of drugs seemed to be getting into the jail—particularly to friends of Medellin and Mendares—the thesis was born that this could only be so with the complicity of one or more jail guards. While this thesis certainly merited inquiry, it was the building of the government’s case upon the wholly noncredible Mr. Medellin and Mr. Mendares and very little else which I believe betrayed an excess of zeal.

Certain women known to be friendly to both Medellin and Mendares were suspected of having acted as drug couriers, delivering drugs—heroin, mostly—to Mendares and others in the jail when they came to visit inmates.

After the death of Necho Solis, it came to be suspected that the drug deliveries and the murder were interconnected. That particular suspicion proved to be true; Mendares testified Medellin sent him drugs via women couriers, as well as giving assurances Mendares’ family would be taken care of while he was “away,” in exchange for Mendares killing Necho Solis.

An investigation was begun at the jail, and guards and inmates were interviewed.

Jail guards, at the low end of the law enforcement prestige scale in terms of education, pay, and benefits, and even level of intelligence required, are scared to death of FBI agents, who are at the other end of the scale on all counts. They had heard about other local law enforcement people who had been prosecuted for civil rights violations, and had heard it was better not to talk to the FBI. On the other hand, they sure weren’t comfortable about seeming to “take the fifth” when they hadn’t done anything.

Ramon Alarcan was the shift sergeant on the evening shift, when most of the visitation took place—and hence when most of the drugs were smuggled into the jail. Most of the young men and women jail guards looked to Ramon for advice—on a lot of things, and in particular on how they should handle themselves when questioned by the FBI. Ramon counseled them to tell the truth, but to volunteer nothing and to say no more than they had to.

While most of the young guards took that as advice given for their benefit, to keep them from getting involved in something that was over their heads, two interpreted the remarks as being instructions to keep their mouths shut. It was this perception by these two (of 30 or 40) that resulted in Ramon—and only Ramon—being named in a third count of the indictment, alleging obstruction of justice. The investigation took months, during which all of the jail employees involved in prisoner visitation or who worked under Sgt. Alarcan or Captain O’Brien were interviewed. Then many of the same jail employees were called before the Federal Grand Jury.

The case didn’t really get off the ground, though, until deals were made with Medellin and Mendares. After their deals were struck, indictment swiftly followed.

Indictment resulted in suspension, of course, without pay. Enter Felipe Alarcan, Richard’s brother, who is better known as “P.L.” P.L. had been married, but was not married at this time, and the most important people in the world to P. L. were Ramon, his wife, and kids. P.L. helped Ramon get set up in the taxicab business, driving his own cab, while the case was pending trial; I don’t know what they’d have done without him.

The case was prosecuted by lawyers from the Civil Rights Enforcement Division in Washington. The office of the local United States Attorney offered assistance, but everything except for logistical help was declined. That, in my opinion, was a serious mistake, since the Washington lawyers simply didn’t know how to talk to a San Antonio jury—even if they’d had a case.

Although those who had assisted Mendares in strangling Necho Solis were indicted, along with a couple of women who were alleged to have carried heroin into the jails, the real targets were Sgt. Alarcan and Captain O’Brien.

As a matter of fact, a civil rights prosecution of this sort could not be brought against private citizens without alleging that they were in cahoots with one or more law enforcement officials, as the civil rights violation occurs only if what is done is done by persons acting ‘under color of State law”—i.e., exercising some dominion and control arising out of their employment as state or local peace officers.

Only one of the alleged drug couriers, one of the stranglers, and the two deputy sheriffs went to trial together. The other stranglers, who had already been convicted in State court for the murder of Necho Solis, plead guilty to violating his civil rights.

I won’t recite the details of the trial, but I’ve got to mention the testimony of Medellin and Mendares as to why they had become government witnesses. It had nothing to do, of course, with their having been placed in the witness protection program and given new identities, rather than spending the rest of their lives in the penitentiary, as each so richly deserved. No, Medellin was testifying for the government, he said, because he had “found God” and “had to get things straight with the man upstairs.” Mendares was doing so for the same reason he had killed Solis in the first place—out of a deep and consuming concern for the welfare of his family!

As I said earlier, the jury acquitted Capt. O’Brien on both counts and Sgt. Alarcan on all three counts. Anybody who was in the courtroom to watch the amazement on their faces as Medellin and Mendares testified first about what they had done and then about how and why they had done it and, finally, about their motivation for testifying, was in no way surprised by the verdicts.

I’ve heard a lot of prosecutors over the years arguing the necessity of “making deals” to obtain critical testimony, and there is no question but that it is necessary. Since the Devil is not found in Heaven, a deal to get the Devil has to be “made in Hell,” no doubt about it.

The problem was that in this case, the government had made deals with the devils themselves in order to try to convict decent, honest Ramon Alarcan and James O’Brien, against each of whom there was virtually no other evidence. Ramon Alarcan never went back to the sheriff’s office. He had always loved being a peace officer, and was a darned good one. The loss was ours.

June 2016 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
27 | Expediting Production of DWI Audio/Video Recordings Even Where Charges Have Not Been Filed – By Gary Trichter & Ed McClees
33 | WE Are UNLESS – By Rick Oliver
37 | Tribal Wars and Jail House Suicide – By Judge Wayne Patrick Priest

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

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

President’s Message: Numero Uno – By John A. Convery

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I am excited and humbled to take the reins of leadership as President of TCDLA—thanks to Sam Bassett for a great year! We are the statewide criminal defense lawyers’ professional association in the State of Texas. We are 3,100 members strong. We are the voice for the defense in both word and deed. I thank each and every one of you for your membership, and for your support for our TCDLA.

Thanks to Rob Fickman and his F Troop team, our project to have criminal defense lawyers read the Declaration of Independence on or about the 4th of July in every county in Texas will happen. I’m going to participate, and hope you will too. I have been watching and marginally participating in the tremendous effort and energy Mr. Fickman and company have expended to make this event happen.

After we are done fussing at King George again, I’d like this effort to read the Declaration of Independence in every county to become a springboard for a TCDLA membership drive—in every county throughout the state. Every member, sign up at least one new member this year. Start now. Sign up as many new members of TCDLA as possible. Volunteer to help with the membership drive!

If you are financially able, buy a TCDLA membership for a new criminal defense lawyer. TCDLA membership is a great gift to give a young lawyer. Membership gives a criminal defense lawyer the support of our organization, access to substantive law and practical articles in our Voice for the Defense magazine, Strike Force support, the incredibly useful TCDLA smartphone app, and discounts from our participating merchants.

TCDLA membership benefits also include and support our top-notch group of lobbyists. The Legislature will be in session this year! Our TCDLA Legislative Committee Chair Bill Harris, Chief Lobbyist Alan Place, and new General Counsel Andrea Keilen have been meeting with TCDLA leadership and other criminal justice groups to plan our offense and de­fense strategies to protect the Constitution, individual rights, and due process of law. We need the attention, support, and effort of every TCDLA member in the legislative process. Step up—volunteer to help in any way you can. If you are able to donate funds to support our legislative efforts, please do so now.

TCDLA has a hard-working lean staff at our home office led by Executive Director Joseph Martinez, Assistant Executive Director Melissa Schank, and Controller Mari Flores. Over the course of next year our TCDLA staff will travel throughout the state putting on some 48 continuing legal education and training seminars, some for TCDLA and others through our grant from the Texas Court of Criminal Appeals to provide training for defense lawyers in Texas engaged in defense of indigent clients. In addition to this Herculean effort, our TCDLA staff undertakes all the many administrative tasks necessary to manage our association. I thank them for their commitment to TCDLA, and hope you will thank them too!

Our CLE presentations and the committee work of TCDLA, the long-term and short-fuse projects of our standing and ad hoc committees, all depend on member volunteers. These efforts present TCDLA and its members with the opportunity to be leaders in criminal defense, to be the voice of the criminal defense community in Texas. Join us in these efforts. Volunteer to serve on a TCDLA committee.

Let’s have another great year!

Executive Director’s Perspective: Upcoming Events – By Joseph A. Martinez

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Special thank to Deandra Grant (Dallas), Larry Boyd (Dallas), and Abe Factor (Fort Worth), our course directors for our 9th Annual DWI Defense Project held in Arlington in May. Thanks to them and our speakers, we had an outstanding line of presentations on DWI defense. We encourage our members to attend our DWI CLE.

We have a great line up of DWI CLE in the coming months. Please join us for these quality DWI seminars:

July 223rd Annual Lone Star DWI: Blood, Breath & Spit (Austin)
Deandra Grant & Mark Thiessen
September 1614th Annual Top Gun DWI: Making a Drunk (Houston)
Danny Easterling & Grant Scheiner
November 3–412th Annual Stuart Kinard Memorial Advanced DWI Seminar (San Antonio)
Adam Kobs, Michael Gross & Bobby Barrera

Please join us for the fun filled activities in South Padre Island this Summer. Bring the family.

July 13Training the Trainers (for those who want to speak at a TCDLA/CDLP CLE)
July 14–15Upholding Justice One Client at a Time CLE
July 14TCDLA Beach Barbecue
July 15Louie’s Famous Seafood Buffet and Fireworks
July 16TCDLA/CDLP Orientation
July 16Fiesta with the Converys

TCDLA currently has 3,106 members. It is the largest criminal defense lawyers association in the country. We ask our members to encourage other lawyers who practice criminal defense to join TCDLA.

Weren’t able to attend this 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 (512-478-2514) for a list of the DVDs and accompanying CLE credit.

Don’t have a local criminal defense bar in our area? Would like to re-energize and jump-start your organization? Are you interested in forming a local criminal defense bar? Need help getting organized? Please contact Susan Anderson (Dallas), , Laurie Key Lubbock), , or Carmen Roe (Houston), , co-chairs of the TCDLA Affiliate Committee.

Good verdicts to all.

Editor’s Comment: Nice to Be Needed – By Sarah Roland

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It’s nice to be needed. And given the overall changes in the world around us, criminal defense lawyers are needed more than ever. We provide balance to an often seemingly imbalanced system—and hope, reassurance, and when it goes best, rescue to those whom we serve. We are the ones who consistently challenge the status quo. We are the ones who are unafraid to be in the minority.

Granted, people don’t necessarily think they need us until they or a family member gets in trouble, and they may not always be appreciative or show their appreciation for us. But when they need us—whether they ever express it or not—they are glad to have us fighting in their corner. After all, we may be the only person who has ever stood in that corner with them. We are needed.

It is no coincidence then that the theme of Rusty this year is “Lawyers, Guns & Money.” If you don’t know, and you should, the same title is a song by Warren Zevon that was released in 1978 on the Excitable Boy album. The melody is instantly recognizable and catchy.

I went home with a waitress
The way I always do
How was I to know
She was with the Russians, too?

I was gambling in Havana
I took a little risk
Send lawyers, guns, and money
Dad, get me out of this

 An innocent bystander
Somehow I got stuck
Between the rock and the hard place
And I’m down on my luck
Yes, I’m down on my luck
Well, I’m down on my luck

Now I’m hiding in Honduras
I’m a desperate man
Send lawyers, guns, and money
The shit has hit the fan

Maybe he really was an innocent bystander and maybe not. Regardless, Zevon is clearly not talking about prosecutors, family lawyers, civil lawyers, or any of the like. He’s talking about us. Send the criminal defense lawyers. Send the ones who can help. Send us. We are the problem-solvers. We are the rescuers. We are the ones who are needed—every day, in every state in the nation, and in every county in every state.

That should be reason enough to get involved in one of the Fourth of July Declaration of Independence readings this year in one of the 254 counties around our great state. Be proud of this country. Be proud of our history. Be proud of our system. Be proud you are a criminal defense lawyer . . . because we are needed.

Off the Back: How to Find the One Best Case for Your Client – By Stephen Gustitis

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You reviewed the probable cause and interviewed your new client after receiving the court-appointment order. Prior to meeting the client, perhaps, you received a call from his mother, who shared some facts and issues related to her son’s case. As you return from the county jail, your head is now muddled with facts, arguments, theories, and things to do. The client’s case is your responsibility now. From the jumble of information collected during intake, how do you set about finding the most powerful case for your new client? That is, finding the case that best appeals to the values of a judge, jury, or even prosecutor. How do you select the one best case from all the possible cases of which you could conceive?

We were schooled in legal analysis. We were taught to obtain discovery, to investigate the facts, and file motions to suppress when appropriate. We were encouraged to create a story. We’re taught to develop a case theory and support it with appropriate themes. We create trial notebooks and other devices to keep organized. We know how to give an opening statement and a closing argument. Nevertheless, where do we find the best, the most persuasive, case for our new client? How do we build a story which is internally consistent? How do we construct a theory integrating all the facts the fact-finder will believe, a theory uniting the entire case into the most plausible and persuasive explanation of the facts as pos­si­ble? In short, we must learn to think deeply and creatively.

Trial practice is largely a battle of ideas. The more ideas we generate the better chance we have of discovering the winner, the idea that strikes a responsive chord with judge or jury. Consequently, we need a system to generate ideas—a system of creative thinking. This is brainstorming. Brainstorming is a form of creative thinking with two very important components. First, the goal of brainstorming is to develop as many hypotheses, theories, interpretations, inferences, and explanations as possible. In other words, the defense lawyer strives to develop the maximum number of ideas explaining how the litigated event occurred. Second, the evaluation of those ideas must be postponed. Otherwise, the lawyer’s evaluation may hinder the free thinking necessary for maximizing the number of ideas. Generate ideas first, evaluate ideas later.

A thorough and complete factual investigation precedes the creative idea generating process of brainstorming. Before brainstorming, we should understand every possible fact related to the event by reading every report, listening to every audio, watching every video, visiting the scene, obtaining relevant documents, consulting experts and writings on the subject matter, and obtaining information and standards like training manuals and the like. Before finding an integrated theory explaining all the facts, we must know all the facts. Factual material can be gathered from all sources within the economic limits of the case.

Brainstorming, then, generates the maximum number of ideas from which we later choose the most powerful and persuasive. We also need a reliable system to immediately record these thoughts. The failure to record them may cause ideas to be lost or forgotten. Writing down ideas can also help generate deeper thinking about our case. A spiral notebook with dividers is an old-school method of recording ideas. Computer applications designed for this purpose may work well, too. In fact, any device providing the lawyer with a place to immediately record ideas helps organize the creative process. And this creative process is the foundation for every phase of a trial, from voir dire through closing argument. But again, the essential point concerns when to evaluate. Evaluation interferes with crea­tivity. When we evaluate ideas too early, we hinder the free thinking necessary to generate the maximum number of ideas. My wife calls it “X-ing her wow.” Consequently, postpone idea evaluation! Only after reaching the evaluation stage should you begin to narrow the case into the most plausible and the most powerful one possible.

Once we understand the facts, we can then think creatively about legal theories that provide a framework for the case. Brainstorm things to-do. Brainstorm what you believe will be the contested facts and issues. Generate ideas for follow-up investigation and research. How can you attack the opposing case? What are potential trial strategies, juror perspectives, and possible stories. Other topics include probable arguments, impeachment, feeling, emotion, and rhetorical devices. Finally, generate as many ideas possible regarding voir dire, opening statement, cross-examination, defense witnesses, cross-examination, closing argument, and even preserving error. Brainstorming is also an attitude. Approach it with optimism and the determination to find every useful idea possible. You’ve got to believe the process will work to produce the maximum number of ideas from which you later choose the most powerful and persuasive.

After accumulating your ideas, but before the story is finalized, the emphasis shifts to a rigorous evaluation, analysis, and narrowing of the case into the most plausible and powerful. Since facts may be subject to various interpretations, or may be contested, analysis is necessary. The State’s case should be analyzed to determine which issues are agreed upon and which issues are truly in controversy. The result is a list of contested issues that become the principle focus of the persuasive case. Theories, facts, interpretations, and arguments should be rigorously studied to determine their validity and strength. Theories must account for all the facts the jury will believe, or the theory will lack credibility. Discard weak interpretations and arguments. Out of the remaining material, alternatives should be compared, and a selection made, of the most plausible and powerful. These are then integrated around a single theory of the case in a way appealing to the values of the judge, jury, or even prosecutor.

Finding the one best case for the client, from all the possible cases, is the job of a criminal defense attorney. Creative thinking is an essential tool toward this end. Brainstorming is a learned skill for many professionals, especially those who accumulate large quantities of information, which must be organized into a unified combination of ideas with an eye toward achieving some objective, whether it be courtroom persuasion or marketing a new product. Brainstorming is approached with determination to find every useful idea, regardless of its value. It’s really hard work, but also very satisfying. The brainstormer remains optimistic and believes the process will indeed produce useful ideas. Only then can they find and select the one best case. Have fun with your creativity.

Federal Corner: The Fifth Amendment and Sexual History Polygraphs – By F. R. Buck Files Jr.

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On May 10, 2016, a panel of the United States Court of Appeals for the Tenth Circuit held that a defendant faced some danger of self-incrimination if he was required to answer mandatory questions during a sex offender history polygraph; and, the government’s threat to seek revocation of the defendant’s supervised release constituted an unconstitutional compulsion to submit to such a polygraph under the Fifth Amendment. [The panel: Circuit Judges Briscoe, Seymour, and Lucero (opinion by Seymour)] United States v. Von Behren, ___F.3d___, 2016 WL 2641270 (10th Cir. 2016).

A Synopsis of the Facts of the Case

I thought I heard you say, “Hold still little catfish—all I want to do is gut ya!” That could have been the reaction of Bureau of Prisons inmate Brian Von Behren when he learned that the government had requested several new conditions of supervised release, and that one of them would require him to participate and successfully complete a sex offender treatment program. At the time that he received this news, Von Behren was close to completing a 121-month sentence for the receipt and distribution of child pornography and faced a term of three years supervised release.

After returning to the free world, Von Behren learned that he was to be assigned to Redirecting Sexual Aggression (RSA), a certified treatment provider mandated by the Colorado Sex Offender Management Board (SOMB). One of the SOMB Guidelines mandated that Von Behren sign a non-negotiable treatment agreement requiring him to complete a non-deceptive sexual history polygraph. A failure to complete this requirement would cause him to be removed from the program. And then there was the cherry on the sundae of the SOMB Guidelines: Von Behren would be required to sign this agreement concerning any crimes committed by him.

I hereby instruct RSA, Inc. to report to any appropriate authority or authorities any occurrence or potential occurrence of any sexual offense on my part regardless of how RSA, Inc. gains knowledge of such occurrence or potential occurrence. “Appropriate authority or authorities” as used in this and subsequent revisions may include, but is not limited to, County Human Services Departments, law enforcement agencies, probation or parole personnel, victims or potential victims, parents, spouses, school personnel, and employers.

Having had a dose of the federal criminal justice system, Von Behren immediately hired a lawyer to challenge his new conditions of supervised release. United States District Judge Robert E. Blackburn of the District of Colorado reviewed the RSA contract and held that the successful completion of a sex offender treatment program would be a condition of Von Behren’s supervised release; however, he sustained Von Behren’s Fifth Amendment objection to any requirement that he admit to any criminal offense other than his offense of conviction.

In spite of Judge Blackburn’s order, RSA informed Von Behren that he would either submit to a sexual history polygraph or leave the program. He was advised that the polygraph examination would include four mandatory questions:

  • After the age of 18, did you engage in sexual activity with any­one under the age of 15?
  • Have you had sexual contact with a family member or relative?
  • Have you ever physically forced or threatened anyone to engage in sexual contact with you?
  • Have you ever had sexual contact with someone who was physically asleep or unconscious?

Von Behren was also told that a “yes” answer to any one of the questions would cause the examiner to ask a mandatory follow-up question: How many times have you done this? There was, though, a tiny bit of good news. Von Behren could choose any one of the four questions and refuse to answer that question, only.

Von Behren’s lawyer believed that RSA was violating Judge Blackburn’s order and filed an emergency motion on December 23, 2014, to block the polygraph examination. On January 27, 2015, after reviewing the four questions that would be asked, Judge Blackburn reconsidered his earlier ruling, denied Von Behren’s request for relief and ordered him to complete the sexual history polygraph. In his order, Judge Blackburn did not address the Fifth Amendment issue of compulsion, but only noted that Von Behren’s answers would not “specify the time, the place, the identity of any victim, or other people involved.”

Von Behren’s lawyer filed an immediate notice of appeal and requested Judge Blackburn to stay his ruling. RSA scheduled a polygraph for Von Behren for February 11, 2015. On February 4, 2015, in response to Von Behren’s motion for a stay, the government advised Judge Blackburn that RSA would remove Von Behren from the treatment program if he failed to take the scheduled polygraph examination. The government also advised Judge Blackburn that it would seek an order remanding Von Behren to prison if he did not successfully complete the sex offender treatment program.

Judge Blackburn issued his order denying Von Behren’s motion for a stay on the afternoon of February 10, 2015. Shortly before midnight, Von Behren’s lawyer filed a second motion for a stay with the Tenth Circuit, pending a direct appeal. On the following morning, Von Behren was in the polygraph examiner’s parking lot when he learned that his emergency stay had been granted.

Judge Seymour’s opinion reads, in part, as follows:

The Fifth Amendment Privilege Against Self-Incrimination

Mr. Von Behren contends the district court erred when it held that one of his conditions of supervised release, a sexual polygraph examination with four mandatory questions, did not violate the Fifth Amendment’s privilege against self-incrimination.

* * *

The Fifth Amendment to the United States Constitution states that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. The Fifth Amendment’s privilege against self-incrimination applies not only to persons who refuse to testify against themselves at a criminal trial in which they are the defendant, “but also privileges [them] not to answer of­fi­cial questions put to [them] in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate [them] in future criminal proceedings.” . . . Significantly, “[a] defendant does not lose this protection by reason of his conviction of a crime[.]”

        “To qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled.” . . . There is no doubt that answering questions during a polygraph examination involves a communicative act which is testimonial.

* * *

But the elements of incrimination and compulsion are less certain and, accordingly, are the focus of this case. We address each in turn.

A. Incrimination

To assure an individual is not compelled to produce evidence that may later be used against him in a criminal ac­tion, the Supreme Court has always broadly construed the protection afforded by the Fifth Amendment privilege against self-incrimination. . . . Accordingly, “[t]he protection does not merely encompass evidence which may lead to criminal conviction, but includes information which would furnish a link in the chain of evidence that could lead to prosecution, as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution.”

        The Fifth Amendment privilege is only properly invoked when the danger of self-incrimination is “real and appreciable,” as opposed to “imaginary and unsubstantial,” . . . and “this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer.” . . . But we have explained that “[n]ot much is required . . . to show an individual faces some authentic danger of self-incrimination, [ ] as the privilege ‘extends to admissions that may only tend to incriminate.’” . . . Accordingly, “we will uphold an individual’s invocation of the privilege against self-incrimination unless it is ‘perfectly clear, from a careful consideration of all the circumstances in the case,’ that the witness ‘is mistaken’ and his answers could not ‘possibly have’ a ‘tendency to incriminate.’” . . . Determining whether an individual has properly invoked the privilege “is a question of law, which we review de novo.”

        In this case, the district court held that the mandatory questions, along with each of their follow-up questions, do not present a real and appreciable risk of incrimination. It was convinced that the questions would only produce gen­eral answers and would not require Mr. Von Behren to specify the time or location of any incident, the identity of any victims, or the names of other people involved, concluding that the four “questions present at worst, ‘an extraordinary and barely possible contingency’ of incrimination and prosecution.” Rec., vol. 1 at 181 (quoting Brown, 161 U.S. at 599). We disagree.

        We start with the questions. Three of RSA’s mandatory questions ask for the admission of a felony: (1) “After the age of 18, did you engage in sexual activity with anyone under the age of 15?”; (2) “Have you ever physically forced or threatened anyone to engage in sexual contact with you?”; and (3) “Have you ever had sexual contact with someone who was physically asleep or unconscious?” The fourth mandatory question asks about sexual contact with a family member, which acts to limit the possible pool of victims. Given his reluctance to submit to the polygraph, we infer that Mr. Von Behren’s answers to these questions would reveal past sex crimes.

        An affirmative answer to any one of these questions could not support a conviction on its own, but that is not the test. The Fifth Amendment is triggered when a statement would provide a “lead” or “a link in the chain of evidence needed to prosecute the” speaker, . . . and affirmative answers to these questions would do just that. If there were presently an investigation looking into the commission of a sex crime, and if Mr. Von Behren were a suspect, an affirmative answer to these questions would allow the police to focus the investigation on him. Moreover, investigators would certainly look at Mr. Von Behren differently if they were made aware that he had physically forced someone to engage in sexual relations with him.

* * *

Furthermore, an affirmative answer could potentially be used against Mr. Von Behren if he were ever charged with a sex crime. For instance, if Mr. Von Behren were to answer yes to the underage sex question or the physical force question, those answers could be used against him to show he has a propensity to commit such bad acts. . . . And while the government argues that a trial court could exclude such evidence under Fed.R.Evid. 403, the evidentiary rule that commands trial courts to exclude relevant evidence if its probative value is substantially outweighed by its prejudicial effect, we do not think the Fifth Amendment privilege should be submitted to an evidentiary balancing test.

* * *

Notably, there is a provision in Mr. Von Behren’s contract with RSA that instructs RSA “to report to any appropriate authority or authorities any occurrence or potential occurrence of any sexual offense.” Rec., vol. 1 at 174. This provision, which specifically authorizes his examiner to report his admissions to the police, undoubtedly adds to Mr. Von Behren’s apprehension in regard to answering the four questions. Because the answers to the four mandatory questions could focus an investigation—otherwise ignorant of his past sex crimes—on Mr. Von Behren, and also because his confession to these past crimes could potentially be used against him at trial under Fed.R.Evid. 413 and 414, we conclude that Mr. Von Behren faces at least some authentic danger of self-incrimination by answering three of the four mandatory questions in the RSA’s sexual history polygraph.

B. Compulsion

After concluding in its final order that RSA’s sexual polygraph questions do not pose a real and appreciable risk of incrimination to Mr. Von Behren, the district court saw no need to consider whether there was compulsion. Having dis­agreed with the district court on the incrimination issue, we turn to the issue of compulsion.

        “[T]he touchstone of the Fifth Amendment is compulsion. . . .” The privilege’s prohibition against compulsion prevents the state from threatening to impose “substantial penalties because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself.” . . . This is so because “the privilege against compelled self-incrimination could not abide any ‘attempt, regardless of its ultimate effectiveness, to coerce a waiver of the immunity it confers.’” . . . the district court determined in its initial order finding a risk of incrimination, that the penalty of potential “revocation of supervised release and concomitant incarceration . . . is sufficiently severe to constitute compulsion.” Rec., vol. 1 at 114. We agree with that conclusion.

* * *

As the Supreme Court made clear in Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), “[t]hough the State properly subjects [a parolee] to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison.” The Court in Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), has spoken directly on the issue of Fifth Amendment compulsion in the analogous probation context. The Court’s decision in Murphy, and the prior penalty cases it relies on, leads us to conclude that the government’s threat to revoke Mr. Von Behren’s supervised release for his failure to answer potentially incriminating questions rises to the level of unconstitutional compulsion.

* * *

Murphy makes this case an easy one. It recognizes that a threat to revoke one’s probation for properly invoking his Fifth Amendment privilege is the type of compulsion the state may not constitutionally impose. 465 U.S. at 426. The government asserted here that it would seek Mr. Von Behren’s remand to prison if he refused to answer incriminating sexual polygraph questions because that refusal would (and did) ultimately result in his termination from the sex offender treatment program. The government’s threat constituted unconstitutional compulsion within the meaning of the Fifth Amendment. See United States v. York, 357 F.3d 14, 24–25 (1st Cir.2004)(recognizing it “would be constitutionally problematic” if supervised release provision requiring sex offender treatment “require[d] York to submit to polygraph testing . . . so that York’s refusal to answer any questions—even on valid Fifth Amendment grounds—could constitute a basis for revocation”). The solution to this problem was suggested in Murphy over thirty years ago: “[A] state may validly insist on answers to even incriminating questions and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding and thus eliminates the threat of incrimination.” Id. at 435 n. 7; see also Turley, 414 U.S. at 84–85 (state may compel waiver of Fifth Amendment privilege only by grant of immunity from prosecution).

* * *

In sum, we hold that the government compelled Mr. Von Behren to be a witness against himself. For the reasons set forth above, we reverse.

My Thoughts

  • Von Behren causes me significant angst. Over the years, I have had defendants in both federal and state cases who were required to submit to sex offender history polygraphs. Although I have had at least a theoretical concern about what these polygraphs could lead to, I have been lulled into a state of complacency because none of these polygraphs ever resulted in an additional problem for my clients.
  • Now, I realize that I should have—and will in the future—consider filing what I shall refer to as a Von Behren motion in such cases.