November 2016

Texas criminal defense lawyers who have received physical evidence incriminating their clients are in an ethical no-man’s-land and vulnerable to prosecution. There is currently no clear ethical rule to guide the defense lawyer and no real protection from being used as a law enforcement tool against your own client. This article explores some of the dimensions of counsel’s dilemma and ultimately recommends that TCDLA undertake a determined effort to amend the Texas Disciplinary Rules of Professional Conduct (and get a new Code provision) with a specific rule that informs defense counsel about what course of action he or she should take. I also recommend putting the “Special Rule” regarding the attorney-client privilege back into the Code of Criminal Procedure and a new rule giving lawyers due process and protection to discourage targeting defense lawyers and their law offices.

Cold Comfort

The Texas criminal defense lawyer who possesses evidence that incriminates his client may find comfort regarding the crime of tampering with physical evidence. Section 37.09 of the Penal Code provides that a person commits an offense when “knowing that an investigation or official proceeding is pending or in progress, he . . . alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding[.]” Unless your client has appeared in your office with no “pending” investigation, your receipt of incriminating physical evidence can subject you to prosecution. However, none of these criminal provisions apply under Section 37.09’s subsection (b) “if the record, document, or thing concealed is privileged or is the work product of the parties to the investigation or official proceeding.” In light of statutory law, how well-protected are you under Texas law against prosecution, even as a sort of academic exercise?

If Subsection (b) is read as an exception, the prosecution will have to allege and then prove beyond a reasonable doubt that the “record, document, or thing” is not privileged and not work product.¹ Assuming this is an exception, the question then becomes what exactly is being excepted, and at least as im­portantly, how hard it will be for the prosecution to meet its presumably formidable burden.

Ordinarily, the attorney-client privilege applies only to con­fidential communications under Rule 503 of the Rules of Evidence, which would take the receipt of physical evidence out of its protective purview. But there is a “special rule” within the Rule literally called “Special Rule in a Criminal Case”² that renders confidential “any other fact that came to the knowledge of the lawyer” by reason of the attorney-client relationship. Assuming that you can be said to be “concealing” the pen and meth at your office, the existence and location of the evidence are “facts” which came to you in the context of your representation. Your failure or refusal to disclose these facts would therefore ap­pear to be privileged, and thus you should not be said to be committing the offense of concealing evidence.

But the Court of Criminal Appeals still requires the privilege to be “strictly construed,”³ which means it will be read against you and your client. With strict construction in mind, the special rule only applies to facts discovered by reason of the attorney-client relationship. But that relationship only arises when the client and lawyer have engaged in confidential communications for the purpose of rendering “professional legal services.” A prosecutor could easily argue that Greta simply used the attorney to stash her meth and conceal evidence, and thus her email and the items were outside a legitimate attorney-client relationship.

More straightforwardly, the prosecutor could cite the exception to the privilege. There is no privilege if the lawyer’s services were sought or obtained to help or enable anyone to commit a crime. You are in possession of contraband and you are helping Greta conceal evidence. Under this rationale, the privilege would arguably not apply and you can be prosecuted for concealing evidence (and for possession of the meth as well).

Before there was Section 37.09 of the Penal Code, the Court of Criminal Appeals decided the attorney could not use the privilege as a shield for criminal conduct in this memorable recorded conversation as reflected in the infamous case cited below:

Client: Hello, Jimmy, I went to the extremes.
Defense Attorney: What did you do?
Client: I just went to the extremes.
Defense Attorney: You got to tell me what you did before I can help.
Client: Well, I killed her.
Defense Attorney: Who did you kill—the driver?
Client: No, I killed her.
Defense Attorney: Did you get rid of the weapon?
Client: No, I still got the weapon.
Defense Attorney: Get rid of the weapon and sit tight and don’t talk to anyone, and I will fly down in the morning.

The Court decided the attorney-client privilege did not apply because it was “not within the realm of legitimate professional counsel and employment,” but rather advice “on how he can safely commit a crime.” Clark v. State, 261 S.W.2d 339 (Tex.Crim.App. 1953).

Section 37.09(b) also includes “work product” as a shield against prosecution. But it refers to the work product of the “parties.” When you received the meth and the pen, you were not a party. Once that indictment is filed, your client is a party (the defendant) and the State of Texas is a party, but the lawyers, state and defense, are not. Presumably, this reference in Section 37.09(b) is to you, the accused lawyer, the defendant in your prosecution for concealing evidence.

Work product is either absolutely protected “core” product (the lawyer’s own mental processes) or “other” product.⁴ This “other” product—i.e., documents and materials gathered in the course of the preparation of the defense—gets only qualified immunity. This state of affairs leaves the defense lawyer’s work product as either a sanctuary or a safari park. But under this pretrial scenario, this case falls outside either category of the lawyer’s work product immunity, leaving you no protection from disclosure.

The exception in 37.09 is not an impervious legal cocoon into which the defense lawyer can slip himself, confident that he is safe from prosecution. Even at this theoretical level, it appears on closer examination to be a professional coffin instead. Reading the exception most favorably to the hapless defense lawyer, it vanishes like a mirage when exposed to the real world.

The Search of Your Office and Your Subsequent Prosecutions

Assume the police execute a search warrant on your law office (Bud went to the police). The police find the meth and you get arrested for possession of it. A hard-working homicide detective, aware that you are defending Greta, assists in the search. He notices the pen on your desk and matches it to various photographs of it (the victim loved his pen).

You are forced to appear at Greta’s murder trial and, over your strenuous objection, testify about everything you know about that pen. The pen is introduced as evidence over equally vigorous objection. Greta, of course, is convicted, and yes, she feels betrayed: That supposedly protected “special” relationship is irrevocably over, if it can ever have existed in the first place.

But you were also charged for concealing the pen. The prosecution relies heavily on jurors’ belief that criminal defense lawyers will do anything for their clients, most especially hide evidence. And now, the prosecution argues:

Lawyers cling to privileges they only give themselves. As a prosecutor, I believe in rules that govern us as a civil society. Above all else, I care about the rules meant to find truth so that justice may be served.

He may have a bar card, but people, he is nothing more than an accomplice. A bar card is not a license to commit crimes. The fact that Greta—his beloved client—committed murder with the pen obviously meant nothing to him. It is a reasonable inference that the pen remained on his desk long enough for this lawyer to fully understand what it was. Perhaps he rolled it around in his fingers. Perhaps he simply laid the pen openly for his amusement and pleasure. It was a trophy.

You weren’t just concealing a murder weapon. You were using your power as a lawyer to help a killer escape jus­tice. Maybe she will. But you won’t.

Don’t let this lawyer hide behind his privilege. Send a message to all criminal defense lawyers that you care more about truth and justice than technicalities. If you do, then maybe the next time a killer hides his knife or gun or bomb-making supplies with his lawyer, law enforcement can act far more quickly and we can all be safer, lessen crime and achieve justice—even to self-appointed members of the privileged class.

You are convicted and your sentence is partially probated. You appeal. How will you fare?

You may not fare well. Under Henderson v. State,⁵ the Court of Criminal Appeals has cast the privilege as pliable as a plastic mold. It bends according to the facts of the case. If the attorney-client privilege is said to be a shield against disclosure, it is a paper shield.

The Henderson Case

Cathy Lynn Henderson was the babysitter for an infant. When the parents returned, she and the baby were missing. Less than two weeks later, the FBI found Ms. Henderson in another state, but without the child. She eventually said that she accidentally killed the baby and buried the child in a wooded area near Waco.

Henderson then invoked her right to counsel. At this point, all law enforcement knew was that the dead infant was somewhere “near” Waco, a description of little help in locating the grave, or to be stated more precisely and legalistically, the site of crucial evidence to support a prosecution for capital murder.

Having invoked her Sixth Amendment right, her federal public defender entered the picture. The police testified he (the PD) revealed to them that his client had drawn a detailed map revealing the location of the child. The public defender denied ever making this disclosure. When asked about a map, he told them that “all materials” would be forwarded to Henderson’s Austin lawyer.

Unsurprisingly, the local police sought the map from the Austin attorney. When the lawyer refused, prosecutors obtained a grand jury subpoena duces tecum. The lawyer refused to appear. The local sheriff then obtained an arrest warrant for the lawyer and a search warrant for her car and office. They found no maps.

The attorney, meanwhile, was represented by a large swarm of other Austin lawyers. They very clearly asserted the attorney-client privilege. The prosecution, in turn, filed a motion to compel production of the map.

The matter was now squarely joined before the trial court. Was the map Henderson drew protected from disclosure under the attorney-client privilege, the oldest privilege in Anglo-American law? If so, what would a local judge do, facing a barrage of intense public attention and the desperation of grieving parents?

The trial court compelled Henderson’s attorney to turn over the map under the fiction that it was intended to be disclosed to law enforcement and “not made for the purpose of facilitating the rendition of professional legal services.” The police found the body and a jury sentenced Henderson to death.

The Court of Criminal Appeals, per (not yet Presiding) Judge Keller, affirmed the death sentence and removed the map’s protection from the attorney-client privilege.⁶ The State had argued that the privilege did not apply; that if it did, the exceptions applied; and if there were no exceptions, the exclusionary rule would not apply.

The Court agreed the privilege applied. It rejected the State’s argument that the illegally obtained map fell within any crime-fraud exception to the privilege. The Court also agreed that the exclusionary rule applied. Under the law at the time, then, the fruits of the map should have been suppressed and Henderson’s conviction reversed.

Instead, the Court decided to create a new balancing test against the privilege and held that “the privilege must yield” . . . “to the extent necessary to satisfy the policy interest in question,” such as to prevent a death or serious bodily injury. In such a case, the attorney “must disclose” the evidence to law enforcement. The Court praised its new law because it “gives effect to the privilege while taking into account strong policy interests in favor of disclosure. In many ways this reasoning is similar to cases in other states that require an attorney to release physical evidence in his possession to the authorities but prevent the government from disclosing to a trier of fact that the evidence came from the defendant’s attorney.” The similarity noted by the Court morphed just a few paragraphs later into Texas law.⁷

Where Henderson Leaves the Criminal Defense Lawyer (and Greta)

The Post-Henderson Conversation

Client: Hey, Darla, thanks for taking my call.
Defense Attorney: What’s up?
Client: I need some advice.
Defense Attorney: Sure.
Client: I kidnapped this kid from middle school.
Defense Attorney: Oh, no. That is very bad.
Client: Here’s the situation—
Defense Attorney: Stop. I need to warn you. Whatever you’re going to say, I have to go and tell the police.
Client: You’ve represented me before. I thought you were on my side. I need and want you to be my lawyer.
Defense Attorney: I am. That’s why I’m telling you to not tell me anything. It’s the only way I can guarantee my undivided loyalty to you as your lawyer.
Client: Well, I’m concerned about the kid because—
Defense Attorney: I’m sorry, you tell me, I tell the police.
Client: (Long Pause) This seems f****d up.
Defense Attorney: You’re telling me.

Implicit in the Court’s reasoning is that the defense attorney will feel no obligation to tell his client that if he gives him certain information, he—his own lawyer—will be transformed into the government’s most important informant. The Henderson judges assumed the defense lawyer would keep this secret so that he might gather the very information that could lead to his client’s execution. Were Henderson the law at the time the federal public defender met with his client, he would most certainly have told her not to draw a map and not to tell him where the child’s body was located.

The present rule spares the lawyer for his betrayal while employing his assistance to convict and punish, even win a verdict of death against, his own client. From the client’s point of view, this solution seems a bit tailor-made for members of the criminal justice system. How might Greta react when, as that pen is offered into evidence, the source of the evidence—her own lawyer—is scrupulously hidden from the jurors? So much for full disclosure, she might wryly observe. And so much for confidence in your own lawyer’s loyalty.

What might the lawyer herself think? Perhaps she reflects about how, as the Supreme Court has trumpeted, “a defense lawyer best serves the public, not acting on behalf of the state or in concert with it, but rather by advancing ‘the undivided interests of his client.’”⁸ Or maybe she laments ever having taken the case in the first place.

Six months later, in Swidler & Berlin v. United States,⁹ the Supreme Court of the United States considered whether the attorney-client privilege should be balanced against the sort of strong feelings the judges of the Court of Criminal Appeals experienced in Henderson. Specifically, the District of Columbia Court of Appeals invented a test to determine whether the privilege should yield to other interests after the client dies. The Supreme Court decided in favor of the privilege.

Unlike the Court of Criminal Appeals, the Supreme Court recognized that “the loss of evidence admittedly caused by the privilege is justified in part by the fact that without the privilege, the client may not have made such communications in the first place.” Most importantly, the Supreme Court rejected the balancing test created by the Court of Criminal Appeals:

[A] client may not know at the time he discloses information to his attorney whether it will later be relevant to a civil or a criminal matter, let alone whether it will be of substantial importance. Balancing ex post the importance of the information against client interests, even limited to criminal cases, introduces substantial uncertainty into the privilege’s application. For just that reason, we have rejected use of a balancing test in defining the contours of the privilege.¹⁰

The Texas defense lawyer remains in the crossfire of Henderson and Swidler & Berlin. Where the defense lawyer most needs clarity, the current state of the law leaves an intolerable level of uncertainty. Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct relies on the meaning of the privilege in the state and federal rules of evidence. Consequently, the lawyer’s license is just as jeopardized as the lawyer himself.

I lack full confidence that the lawyer can depend upon the courage of the courts. The attorney’s crisis will not occur in a case involving an invalid license or shoplifting. The contro­versy will arise in the notorious case. It will involve a crime en­veloped by political considerations and an emotionality so strong it can influence judges to bend the privilege or “balance” it on a rigged scale. As the Henderson case demonstrates, the courts surrendered the privilege at the very moment it most needed vindication. We need to replace the paper protection with something more cast-iron.¹¹

The Value of the Attorney-Client Privilege and Its Fulfillment

I have concluded that criminal defense lawyers have no choice but to offer to the State Bar and to the Legislature language that is robust and clear enough to fulfill the very important other in­terests the privilege evolved to undertake. In an era in which obtaining “truth,” i.e., factual material, is a virtue eclipsing all others, the value of contrary interests needs reminding.

The attorney-client privilege fosters an environment conducive to full disclosure by the client. The more the attorney learns of the case, the better he can fulfill his Sixth Amendment role.¹² Unlike any other area of the law, honesty from the client is most fleeting in criminal cases. The shoplifter doesn’t want to talk about the reality of the camera. The guilty capital client doesn’t wag his tongue about the crime or about the usual horrors leading to it. The driver who sped assumes he exceeded the speed limit. These are the facts vital to the ultimate aspirations of truth and justice because while they seem incriminating, they may—under the law—be exculpatory.

Maybe the confessed shoplifter actually didn’t commit a crime, but he thought he had. Perhaps the execution-centered and fully guilty client is in fact not eligible for the death penalty. The driver was fast, but what did the instruments read? It is the defense lawyer under the benefit of the attorney-client privilege who can more reliably make those determinations.

The seasoned defense lawyer has experienced falsities from clients, but truth as well. Law must give us space. With the space that the privilege provides, we can separate the innocent far more quickly and justly than anyone else.

The law must enforce the privilege not as an accommodation in criminal cases, but as a special and emphatic necessity. Lawmakers and judges both must value the privilege because it fulfills the ultimate aspirations we have as a civil society.

The attorney-client privilege is more than just a vehicle for ensuring the competing interests of the criminal justice system. Like any privilege, it constitutes a private zone of individual autonomy which the government cannot reach. Privileges do more than serve narrow legal interests. They are zones of privacy and autonomy. Without them, there would be no counterweight for the individual’s rights when they collide against the government’s powers. They are more than rules of evidence; they are in practice vital to a liberal democracy.

With these sentiments in mind, I looked at the two competing approaches to the problem of the receipt of incriminating physical evidence. One approach is what I call the deliver-it-to-the-cops solution. The other is what I call the give-it-back rule. The first is favored by some states. The latter is the rule expressed by the ABA Criminal Justice Standard 4-4.6. What I’ve written is largely a sort of rearrangement of the ABA’s standard.

Lawyer Duties upon Receipt of Criminal Evidence

(a) A lawyer who receives a physical item under circumstances implicating a client in criminal conduct shall disclose the location of or shall deliver that item to law enforcement au­thorities, including prosecutors, only if:

(1) such is required by specific court order or required as an express duty under law or;
(2) the item received is plainly contraband or;
(3) in the lawyer’s professional judgment the lawyer cannot retain the item in a way that does not pose an unreasonable risk of physical harm to anyone.

(b) Unless required to disclose under subsection (a), the law­yer shall return the item to the source from whom the law­yer receives it, except as provided in paragraph (c).

(c) A lawyer may receive the item for a period of time during which the lawyer: (1) intends to return it to the owner; (2) reasonably fears that return of the item to the source will result in destruction of the item; (3) reasonably fears that return of the item to the source will result in physical harm to anyone; (4) intends to test, examine, inspect, or use the item in any way as part of the lawyer’s representation of the client; or (5) cannot return it to the source. If the lawyer retains the item, the lawyer shall do so in a man­ner that does not impede the lawful ability of law en­force­ment to obtain the item. The lawyer shall retain the item in the lawyer’s law office and, other than locations for testing, inspection or use, no other place except under (a)(3).

(d) After testing or examining physical evidence pursuant to paragraph (c)(4), defense counsel should return it to the person from whom it was obtained, unless there is reason to believe that the evidence might be destroyed or used to harm another.

Under this rule, the defense lawyer can either have Greta come get her pen, or keep it safely at the attorney’s law office. Either decision is ethically defensible. The lawyer’s choice would be heavily dependent on the peculiar facts and circumstances of the case.

The lawyer has to get the meth to law enforcement. The rule does not explain how to accomplish that task. It seems in­advisable to stroll into the police station and plop it down. One solution is for the lawyer to deliver the meth to another location, then have someone else alert the authorities, perhaps an anonymous tip. Greta may be unhappy, but you’ll have to explain that you are bound by the ethical code and keeping her meth is not an option.

In light of the current judicial hostility toward the attorney-client privilege, I also think we need to put back into the Code the language that had been there since 1856. It was repealed when the Court of Criminal Appeals was enabled to write the rules of evidence in 1986. Then the Court tried to wipe out the rule in 2008. In the meantime, the Court had decided Henderson, leaving the privilege subject to the unobstructed winds of judicial whim. Reenacting that language does not advance the concerns expressed herein. But it does remove the argument that the attorney-client privilege is an evidentiary toy that can be moved and removed as easily as it currently can be.

Art. 38.09. Attorney-Client Privilege. An attorney at law shall not disclose a communication made to him by his client during the existence of that relationship, nor disclose any other fact which comes to the knowledge of such attorney by reason of such relationship.

But perhaps we need an additional statute:

Art. (New). No subpoena, warrant or order may issue for items or documents in the office of an attorney in a criminal case pursuant to the attorney-client relationship unless (1) the attorney is given notice before the subpoena issues and (2) the State proves at a hearing by clear and convincing evidence that:

(a) the items or documents were obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;
(b) the attorney has an express duty under law to deliver the item or document to law enforcement;
(c) the item received is plainly contraband;
(d) the retention of the item or document is conducted in a manner that will impede the lawful ability of law enforcement to obtain the item; or
(e) the retention of the item or document is in violation of the rules regarding receipt of incriminating evidence.

This language is meant only as a draft that I hope instigates thoughtful discussion and vetting before TCDLA interfaces with lawmakers and/or the State Bar, if it decides to do so. I do not recommend that we wait for the next crisis to hit. In the meantime, maybe publication will help the defense lawyer thoughtfully wondering what to do with her own “Greta.”

If you have a “Greta experience” or anything similar, call both the Ethics Committee (Robert Pelton, chair), at 512-646-2734, and the Strike Force (Nicole DeBorde, at 713-536-6300, or Reagan Wynn, at 817-336-5600).

Notes

1. Section 2.02 of the Texas Penal Code

2. Eight years ago, the Court of Criminal Appeals sought to abolish the rule, led by Judge Cathy Cochran and law professor Steven Goode. Craig Jett, Tim Evans, and myself (and others) opposed the suggested abolition. Richard Anderson wrote a persuasive letter in opposition. After a spirited public debate on the blog Grits for Breakfast, we won retention of this provision.

3. Strong v. State, 773 S.W.2d 543 (Tex.Crim.App. 1989).

4. Pope v. State, 207 S.W.3d 352, 357–58 (Tex.Crim.App. 2006).

5. Henderson v. State, 962 S.W.2d 544, 556–558 (Tex.Crim.App. 1997).

6. I was the attorney on direct appeal.

7. Henderson, 962 S.W.2d at 556–558.

8. Polk County v. Dodson, 454 U.S. 312, 318–19 (1981)(quoting Ferri v. Ackerman, 444 U.S. 193, 204 (1979).

9. 524 U.S. 399 (1998).

10. Swidler & Berlin v. United States, 524 U.S. at 409. See Note 2.

11. It also does not inspire confidence that the Court of Criminal Appeals a decade later sought the abolition of the very “Special Rule” which was Henderson’s only and ultimately failed line of defense.

12. “As a practical matter, if the client knows that damaging information could more readily be obtained from the attorney following disclosure than from himself in the absence of disclosure, the client would be reluctant to confide in his lawyer and it would be difficult to obtain fully informed legal advice.” Fisher v. United States, 425 U.S. 391, 403 (1976).

In the early 1990s, when I was a law student, I worked on an appeal from the re-sentencing trial of a Travis County capital murder case, that of David Lee Powell. That case had previously gone to the United States Supreme Court twice, before being reversed, as the Texas and federal courts grappled with questions of the admissibility of psychiatric predictions of “future dangerousness” in death penalty cases.¹ Some of the predictions of violence in Powell’s case had been made by Austin psychiatrist Dr. Richard Coons. Coons testified at Powell’s 1991 re-sentencing, just as he had done at Powell’s original 1978 trial, that Powell would commit criminal acts of violence in the future.

Reading the record of both trials, I was repeatedly struck by the fact that Coons seemed to have no real basis for his opinions other than, well, his own opinion. It also dawned on me that even though I personally thought that Coons’ opinion was ridiculous, given Powell’s many years of exemplary behavior on death row, I had absolutely no idea how one could effectively challenge such questionable expert testimony. That awareness of my own ignorance sparked my long-standing interest in issues concerning the integrity and admissibility of expert testimony. Alas, it was only many years later—and after Powell’s execution—that I finally succeeded in making an effective challenge to Dr. Coons’ testimony—in Coble v. State, 330 S.W.3d 253 (Tex. Crim. App. 2010). Coble was represented on appeal by Walter M. Reaves Jr., but I contributed the appellate briefing on the specific issue of whether Dr. Coons’ testimony had been properly admitted under Tex. R. Evid. 702. The Court of Criminal Appeals agreed, finding that no scientific basis had been demonstrated to support Dr. Coons’ predictions of future dangerousness.²

Judging by the number of queries about hiring, funding, and challenging experts that are posted on the TCDLA listserve, it seems that the current generation of new attorneys are emerging from law school, as I did, with little training in how to challenge the State’s experts—or how to hire and use their own. I hope this lightning tour of some of the relevant areas and rules will help new colleagues to gain traction in this area faster than I did, as well as being useful to more seasoned members:

I. Selecting Your Expert and Investigating Their Expert

Choosing the right expert is something that will depend on the facts of each individual case. There is no single way to find an expert. It takes diligence, effort, and persistence often times. You can find an expert by reading relevant cases, asking for recommendations from the TCDLA listserve and colleagues, and researching the scientific literature using Google Scholar. Bear in mind that your expert must be able to address the “very matter” raised in the case in question, since the burden will be on you to prove that they are qualified under Tex. R. Evid. 104(a). See Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). Do enough background reading, and question your potential expert(s), to be certain that you are hiring someone with precisely the right expertise—a psychologist is not much good to you if you need a pharmacologist, for example.

If you are not familiar with the process of hiring and using experts, be warned that it is a slow process. Finding the right person, obtaining the funds with which to hire them, briefing them, allowing them to do their work, and consulting with them and preparing them to testify always takes far longer than seems reasonable. If you think your case calls for expert input, you are well-advised to start the process early in the life of the case.

Be sure to investigate your own experts as well as the State’s potential experts. Some experts have top-flight credentials and unimpeachable private lives. Some don’t. Google them, check their listings on professional licensing authority websites for disciplinary problems, consider running the same record checks on them that you would for the state’s lay witnesses. Ask them if they have ever not been permitted to give expert testimony. Ask about prior courtroom experience, and for the names of the attorneys involved. Then ask those attorneys for transcripts. Question your potential experts about any facts you uncover that give you pause. If they have published journal articles, look at those articles and run them through your “common-sense-o-meter.” Ask them what they are generally cross-examined about. While some experts are doing truly cutting-edge work in their field, others are simply oddballs. Even if an expert swears that their unique theory will help your client, consider whether really marginal scientific evidence will even be admissible.

Consider whether an expert who aggressively markets him or herself as an expert is someone you actually want to use. One such character has popped up from time to time on different lists, promoting himself as a “medical-legal consultant.” A little “googling” shows him to have a record of drug convictions, licensure problems, allegations of domestic violence, and other “baggage” in his background. See In re. Application of Elliot B. Oppenheim, 159 P.3d 245 (N.M. 2007).

Deconstructing State’s experts’ resumes can be enlightening. In In the Matter of West Virginia State Police Crime Lab, 438 S.E.2d 501 (W.Va. 1993), “expert” serologist Fred Zain, who later worked in Texas, had claimed to have a minor in chemistry that was not reflected on his academic transcript, and had only 10 hours of chemistry courses in which he received a grade of “C” or above. Similarly, when I was preparing to cross-examine Dr. Coons in a capital case, Public Information Act requests revealed that although Dr. Coons claimed in his C.V. to have provided “consultation” services for various state agencies such as the Medical Board, those agencies could provide no documents to support most of those assertions. Also, look carefully at any professional organizations of which the expert claims to be a member—do they actually even exist? Can anyone buy their way in?

There have been cases where the experts have not even been experts. In a Harris County capital murder case, a witness falsely claimed to be a psychologist—Ex parte Matthews, 933 S.W.2d 134 (Tex. Crim. App. 1996)—but subsequently turned out only to have a degree in music.³ In Drake v. Portuondo, 553 F.3d 230 (2nd Cir. 2009), the prosecution “psychologist” had hugely exaggerated his qualifications and previous experience, and testified concerning a fictional syndrome of sexual dysfunction, dubbed “picquerism,” in which the perpetrator realizes sexual satisfaction from penetrating a victim by sniper activity or by stab or bite wounds. In that case, the prosecution’s belated notice to the defense prevented counsel from investigating evidence that turned out to be nonsense. Id. at 245.

When selecting a forensic expert, beware of hiring someone whose testimony will not be admissible because of Tex. Code Crim. Proc. Art. 38.35, which governs the admissibility of evidence of forensic analysis of evidence—meaning “a medical, chemical, toxicologic, ballistic, or other expert examination or test performed on physical evidence, including DNA evidence, for the purpose of determining the connection of the evidence to a criminal action.” The term includes an examination or test requested by a “law enforcement agency, prosecutor, criminal suspect or defendant, or court,” but there are some exceptions, including latent print examinations, tests of a specimen of breath, digital evidence, presumptive tests performed as part of community supervision or parole, or an “expert examination or test conducted principally for the purpose of scientific research, medical practice, civil or administrative litigation, or other purpose unrelated to determining the connection of physical evidence to a criminal action.”

The testing or analysis covered by Art. 38.35 is only admissible if it is performed by a crime laboratory which, at the time of the analysis, was accredited by the Texas Forensic Science Com­mission or was eligible for accreditation and subsequently became accredited. Considering the sweep of Art. 38.35, there is remarkably little case law concerning its use, although in one gratifying case—at least from the defense point of view—a revocation of community supervision was reversed because the defendant’s urine sample had been tested by an unaccredited lab. Hargett v. State, 472 S.W.3d 931 (Tex. App.—Texarkana 2015, no pet. h.).

A further consideration when hiring an expert is licensure. Out-of-state experts are not automatically licensed to perform their professional function in-state. For each licensed profession, it is necessary to check what the requirements are for the out-of-state individual to get a temporary Texas license, if required by law. The rules governing each profession may differ: In preparing for a recent case, I was informed that the Texas Board of Examiners of Psychologists requires a temporary Texas li­cense if an out-of-state expert is testifying, whereas the Texas Medical Board apparently only requires a psychiatrist to have a temporary license for the actual examination of the patient, but not for testifying. Bear in mind that practicing a profession without a license can be a criminal offense. Tedious and time-consuming as it is to sort out such details, it’s better than handing the State a great impeachment tool.

II. Paying Your Expert

An attorney who fails to know the relevant law concerning the hiring and use of experts is likely to render ineffective assistance of counsel. With luck, few of us will manage as spectacular a failure as the attorney in Hinton v. Alabama, 134 S. Ct. 1081 (2014), who neglected to read the up-to-date Alabama fund­ing statute and operated under the mistaken belief that he could pay an expert no more than $1,000. The attorney hired a firearms expert who had graduated more than half a century previously—in civil engineering—and had to be helped by the state’s expert in operating a microscope at the state laboratory. That may have been unsurprising given the following fact that came out on cross-examination:

Prosecutor: Mr. [Expert], do you have some problem with your vision?
Expert: Why, yes.
Prosecutor: How many eyes do you have?
Expert: One.

Counsel was held to have been ineffective and the case was reversed. Hinton was subsequently released, after three decades on death row, when the prosecution dropped all charges against him. Abby Phillip, “Alabama inmate free after three decades on death row. How the case against him unraveled,” Washington Post, April 3, 2015.

Fortunately, the law concern funding for experts and investigators in a criminal case is not complicated. An indigent client is entitled to necessary expert assistance under Ake v. Oklahoma, 470 U.S. 68 (1985)(failure to provide indigent petitioner with psy­chiatric assistance to prepare his insanity defense and to assist in sentencing was a violation of due process). It is worth quot­ing the language of Ake to all judges every time, since Ake restates the “elementary principle” that every criminal defendant, indigent or otherwise, must have “a fair opportunity to present his defense.” Ake, 470 U.S. at 76. The Court spoke in terms of the “basic tools of an adequate defense” and the “raw materials integral to the building of an effective defense” in concluding that a defense expert may be such an element. The Court also emphasized that the accuracy of the jury’s determination, a substantial interest common to both parties, may be “dramatically enhanced” with the appointment of an expert. 470 U.S. at 83.

The right to assistance is not limited to mental health experts, but extends to any type of expert. Rey v. State, 897 S.W.2d 333, 338–39 (Tex. Crim. App. 1995). Rey reversed a capital murder conviction where the trial court had denied a defense request for a pathologist expert, holding that “the necessity for the appointment under Ake will depend upon whether the defendant has made a sufficient threshold showing of need for the expertise of [the specific type of expert] in that particular case.” Id. at 339. It is therefore necessary to ensure that your motion states what type of expert you are seeking to engage, how they will be useful in challenging the State’s case or putting forward a defense or mitigation evidence, and why their evidence will be important in the context of the case.

If you have time and are working with a cooperative expert, it can be very helpful to obtain an affidavit from the expert stating his/her background and qualifications, initial understanding of the case, and explaining what he/she would do, if hired. At a minimum, obtain an up-to-date copy of the expert’s C.V. and attach it to your motion, along with any other relevant materials such as police reports or medical records that help demonstrate why an expert is needed. If it is reasonably expected that the state will rely on expert testimony or opinions, then state as much in your motion for funding. Remind the judge that you are a lawyer, not a doctor, psychologist, pathologist, etc. As such, we, as lawyers, are not required to possess the expertise of any other profession and cannot be expected to do so. Upon an adequate showing of need, you are entitled to the assistance of your own defense expert, and should not be required to rely on the work of a “neutral” expert, let alone the State’s expert’s work. De Freece v. State, 848 S.W.2d 150 (Tex. Crim. App. 1993)(appellant was entitled to appointment of his own psychiatrist in order to assist in preparing and presenting insanity defense).

Even if you have been retained by your client—or their family members—it is possible to obtain funding for a necessary expert if the client has insufficient funds remaining to pay for a necessary expert. In fact, counsel may render ineffective assistance if they fail to move for expert assistance in such circumstances. See Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005)(reversing conviction where counsel had made economic decision, unsupported by strategic purpose, not to investigate or seek expert assistance, and failed to move for funding).

Expert and investigator funding requests are governed by Tex. Code Crim. Proc. Art. 26.05(d):

A counsel in a noncapital case, other than an attorney with a public defender’s office, appointed to represent a defendant under this code shall be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts. Expenses incurred with prior court approval shall be reimbursed in the same manner provided for capital cases by Articles 26.052(f) and (g), and expenses incurred without prior court approval shall be reimbursed in the manner provided for capital cases by Article 26.052(h).

Tex. Code Crim. Proc. Art. 26.052 (f)–(h) reads:

(f) Appointed counsel may file with the trial court a pretrial ex parte confidential request for advance payment of expenses to investigate potential defenses. The request for expenses must state:

(1) the type of investigation to be conducted;
(2) specific facts that suggest the investigation will re­sult in admissible evidence; and
(3) an itemized list of anticipated expenses for each investigation.⁴

(g) The court shall grant the request for advance payment of expenses in whole or in part if the request is reasonable. If the court denies in whole or in part the request for expenses, the court shall:

(1) state the reasons for the denial in writing;
(2) attach the denial to the confidential request; and
(3) submit the request and denial as a sealed exhibit to the record.

(h) Counsel may incur expenses without prior approval of the court. On presentation of a claim for reimbursement, the court shall order reimbursement of counsel for the expenses, if the expenses are reasonably necessary and reasonably incurred.

Thus, the law provides that your application for funding is confidential. Both your requests, and the trial court’s responses, should therefore be made ex parte under seal. This provides a rare opportunity—which must of course be within the boundaries of what is ethical—to give the trial court a sympathetic preview of your client’s case without the State having input or distracting the judge.

III. What They Don’t Teach You at Law School: Filing under Seal

Documents filed under seal in the court record are not available to the general public or your opposing counsel. No Texas statute or court rule that I have ever discovered explains the mechanics of filing under seal, and judging by some of the appellate records I have seen, many court clerks and trial attorneys do not grasp how to do it:

1) Make sure that every motion or proposed order that you file under seal bears language to the effect of: “Ex Parte Motion [Or Order] to Be Filed and Kept under Seal and Disclosed Only to the Trial Court and Counsel for Defendant. Disclosure to the Public or to the State of Texas is Prohibited.”
2) If filing under seal in a jurisdiction that still accepts pa-­ per filing, provide your motion and proposed order to the clerk, and make sure that you get a file stamped copy of what you file so that you have a full record of your own requests—not all clerks understand the process, and I have more than once had a case where ex parte filings were not recorded on the docket sheet, in accordance with Tex. Code Crim. Proc. Art. 33.07.
3) It is wise to write a cover letter to the clerk and file it in the public record indicating that you are filing something under seal that should be provided to your judge and no one else.
4) It is also a wise practice to provide the clerk with large envelopes to use when placing the sealed document in the case file, with a cover sheet securely taped to the front indicating the style of the case, the court, and that the contents are a document filed under seal (using the language above). I provide two envelopes—one for the Motion and one for the Order—and hole punch the tops to go into the court file, so that the clerk can file the doc­u­ments under seal with minimal effort.
5) In an electronic filing jurisdiction, check with the rele­vant clerk about the local procedure—the State’s electronic filing system does not seem to be set up to accommodate ex parte/sealed pleadings or orders. The usual methodology seems to be to “e-file” a cover sheet to in­di­cate that the filing is being made, and then to email the relevant documents to the clerk, or send them by U.S. mail or Fedex.⁵

IV. Working with Your Expert

When working with an expert, it is good practice to send them a detailed retainer letter, covering the following:

1) The purpose for which they have been hired, and what exactly their role is intended to be;⁶
2) The agreed/authorized fee, and what it does and does not cover (I had to admire the nerve of the expert who claimed that a public defender office I was working for should be liable for paying the taxes on his fee . . . !);
3) Make it clear that the expert must inform you if they appear likely to run over the agreed fee amount, and that you are not automatically agreeing to pay excess fees;
4) Explain if the expert is expected to testify or not, or whether you will need to move for additional hours of funding to cover that function;
5) Give clear deadlines for their work—e.g., date by which you need a report or when testimony is expected to be needed;
6) Even if the expert is experienced, explain the scope of the attorney-client privilege, and remind them that they are bound by it—i.e., no discussion of the case outside the defense team, or in locations which are not private, and no provision of documents to another expert, or anyone else, except with prior approval from the defense;
7) Explain, and list in an index, what materials you are pro­viding to them, and ask them not to destroy those materials, ever, without checking with the client’s legal representatives at that time. The purpose of the index—which should be supplemented if you provide additional materials—is to make sure that questions on cross-ex­am­ination about what materials were provided can be answered clearly and correctly, as well as to ensure you have a clear picture of what the expert has received;⁷ and
8) Explain whether you want a written report to be prepared. Even if you think you do, ask the expert to discuss their findings before they are committed to paper.

One of the most common things I have heard from experts—and which comes up time and again in ineffective assistance cases—is the failure of counsel to provide the expert with sufficient information to enable them to really do the best they can for the client. For example, if asking an expert to work on a case involving mental health issues, the expert cannot be expected to form a complete picture and make an accurate diagnosis without copious background material such as medical records and input from people who have known the client for a long time and can give accurate information about him/her, even if s/he cannot her/himself. Do not assume that an expert will ask you for additional material: They may similarly assume that you know what they need and have provided whatever you can.

Even if the subject matter that the expert has been hired to review seems esoteric, and one is tempted to just hand over to the expert and abdicate responsibility, it’s essential to acquire some familiarity with what the expert is doing in order to be able to make informed decisions. That need was demonstrated in Richey v. Bradshaw, 498 F.3d 344 (6th Cir. 2007), where trial counsel retained an arson expert late in the case and simply deferred to his conclusion, which agreed with the State’s experts without ques­tion. In reversing Richey’s conviction, which had kept him on death row for 21 years, because of counsel’s mishandling of the scientific evidence, the Court said:

[I]t is inconceivable that a reasonably competent attorney would have failed to know what his expert was doing to test the State arson conclusion, would have failed to work with the expert to understand the basics of the science involved, at least for purposes of cross-examining the State’s experts, and would have failed to inquire about why his expert agreed with the State. A lawyer cannot be deemed effective where he hires an expert consultant and then either willfully or negligently keeps himself in the dark about what that expert is doing, and what the basis for the expert’s opinion is. . . . The point is not that [counsel] had a duty to shop around for another expert who would refute the conclusions of [the defense expert] and the State’s experts. The point is that [counsel] had a duty to know enough to make a reasoned determination about whether he should abandon a possible defense based on his expert’s opinion. . .

Thus, one should aim for an informed dialog with the expert about the strengths and weaknesses on both sides of the case. That can include picking the expert’s brain about the state’s experts, discussion of the most effective ways to present their evidence, anticipation of difficult prosecution questions or potential for jury confusion.

It is also advisable to place your testifying experts under subpoena. That way, if they fail to show up at court for some reason, you are in a stronger position to argue that you have been diligent in trying to obtain their presence if you have to file a motion for a continuance, Tex. Code Crim. Proc. Art. 29.06. You can also argue that your client has been denied the right to compulsory process and a fair trial if the court will not issue an attachment and allow enough time for your expert to get to court.

V. Discovery

Under Tex. Code Crim. Proc. Art. 39.14 (b), if the State has made a request 30 days in advance of jury selection or the presentation of evidence in a non-jury trial, you must notify them of the name and address of any expert you intend to call. You should similarly make an early request for the state’s expert’s contact information. The notification to the other side of expert witnesses is a critical step, not only because failure to timely designate the experts called to testify may result in the exclusion of their testimony—see Osbourn v. State, 59 S.W.3d 809, 815 (Tex. App. – Austin 2001, aff’d after review on other grounds, 92 S.W.3d 531 (Tex. Crim. App. 2002)—but because “once a party designates a particular person as an expert that he may use as a witness at trial, that person is no longer a ‘consulting’ expert, he is a ‘testifying’ expert, and the opposing party, whether the State or the defendant, may seek further information from or about him for use at trial.” Pope v. State, 207 S.W.3d 352, 360 (Tex. Crim. App. 2006). The critical distinction between a “consulting” and a “testifying” expert is that a consulting expert assists the defense in developing strategies and theories, and “is protected by the work-product doctrine when that material reflects the expert’s thoughts regarding the strength and weaknesses of a defense theory.” Thus, the consulting expert’s mental impressions and opinions are not discoverable until and unless they are designated to testify, and unhelpful expert opinions can legitimately be withheld from the State.

VI. Admissibility of Expert Testimony

I’m going to leave the question of how best to present testimony from your expert, and how to cross-examine the State’s experts, for one of my trial-attorney colleagues to discuss some other time. However, before the jury gets to hear expert testimony, the trial court has to address the question of admissibility. The trial court is supposed to perform a “gatekeeper” role, and indeed must do so if requested. Daubert v. Merrell Dow Pharms., 509 U.S. 579, 596–97 (1993)(emphasizing that scientific evidence must be reliable and that trial court has responsibility to screen proposed evidence for reliability); Jordan v. State, 928 S.W.2d 550 (Tex. Crim. App. 1996)(trial court, in gatekeeper role, can weed out “junk science”). The trial court cannot be expected to act spontaneously, however, and normally one of the parties must start the ball rolling if they are to challenge their opponent’s evidence. In addition to preparing to challenge the state’s experts, defense counsel needs to be ready to meet the state’s challenges to defense witnesses. There are four separate rules of evidence that need to be considered, covering the expert’s qualifications, the reliability of their proposed evidence, the facts and data underpinning the expert’s opinion(s), and whether the evidence is relevant.

1) Qualification

As mentioned above, the proponent of the evidence bears the burden of proving that a witness is qualified pursuant to Tex. R. Evid. 104(a): “The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.” Consider asking the court to conduct any hearing on witness qualification outside the presence of the jury, Tex. R. Evid. 104(c), and to allow enough time for that hearing, perhaps by allowing the jury to arrive at court later in the morning, by scheduling hearings on witness qualification and admissibility of evidence for earlier in the day or on day earlier than trial.

Qualifying a witness necessitates proving that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the court that would qualify the expert to give an opinion on that particular subject. For example, in Vela, the defense wanted to use a sexual assault nurse examiner who, drawing on her general nursing experience, opined that no sexual assault had occurred. Her testimony was excluded, and the Court of Criminal Appeals subsequently affirmed, pointing out that the intermediate court of appeals had “made no meaningful inquiry into [the witness] qualifications in that specific area of expertise,” namely the physical indicia of rape. Id. at 133. The Court emphasized that “possessing knowledge and skill not possessed by people generally . . . does not in and of itself mean that such expertise will assist the trier of fact regarding the issue before the court.” Vela, 209 S.W.3d at 131 n. 12, quoting Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996).

So, be prepared to articulate precisely to the court, if your expert is challenged, why she or he satisfies the Rule 104(a) standard. Likewise, consider challenging a prosecution expert who appears not to have sufficiently specific knowledge to give the proposed testimony.

2) Relevance

As with all evidence, the proponent must be able to prove that proposed expert testimony tends “to make a fact more or less probable than it would be without the evidence,” and that the fact in question is “is of consequence in determining the action.” Tex. R. Evid. 401. Very general background testimony that does not contribute to the jury’s understanding of the specific facts of the case is therefore ripe for challenge.

3) Adequate Support for the Expert’s Opinion

One of the least-appreciated gifts given to defense attorneys is Tex. R. Evid. 705. Tex. R. Evid. 705(b) gives the right to a voir dire examination directed to the “underlying facts or data” upon which the expert’s opinion is based. Rule 705(c) further provides for the exclusion of the expert’s opinion if the underlying facts or data do not provide a sufficient basis for the expert’s opinion to be admissible under Tex. R. Evid. 702.

Affording a defendant the chance to voir dire the State’s expert witnesses gives defense counsel the opportunity to determine the foundation of the expert’s opinion without fear of eliciting damaging hearsay or other inadmissible evidence in the jury’s presence. Goss v. State, 826 S.W.2d 162, 168 (Tex. Crim. App. 1992). A Rule 705(b) hearing may also supply defense counsel “with sufficient ammunition to make a timely objection to the expert’s testimony on the ground that it lacks a sufficient basis for admissibility. Because Rule 705(b) is mandatory, a trial judge’s denial of a timely and proper motion for such hearing would constitute error.” Alba v. State, 905 S.W.2d 581, 588 (Tex. Crim. App. 1995).

Thus, if mounting a serious challenge to a state expert’s testimony, consider issuing a subpoena duces tecum to the state’s expert for production of the material they are relying on as a basis for their opinion. If they are likely to rely on past training, department manuals, statistical data, and so on, ask to receive those within sufficient time for you to review them and, ideally, consult with your own expert in order to establish reasons why the material does not support the expert’s opinion.⁸ Then demand the hearing, which is yours as of right under the rule, but please note that this is an area where it is necessary to be prepared to “drill down” and really engage with what the expert is saying in order to be able to explain to the trial court why the expert’s opinion is not sufficiently supported. All too often, appellate records reveal expert witnesses being questioned about the facts they are relying on and simply responding with conclusory answers—e.g., “I learned about that in my post-graduate training”—without being asked to explain further about the training in question, texts relied on, countervailing theories, and so on.

Additionally, if you are preparing to call an expert witness, it is necessary to be ready to meet a challenge by the State to your witness’ facts and data. Failure to do so can result in the testimony being excluded, as well as creating the risk of allegations of ineffective assistance of counsel. See, e.g., Ex parte Ard, No. AP-75,704, 2009 Tex. Crim. App. Unpub. LEXIS 181 (Tex. Crim. App. 2009), where trial counsel in a child sexual abuse case failed to elicit sufficient information from an expert on scientific theories concerning the implantation of false memories by repetition and suggestion, and “neither questioned [the expert] in front of the jury about the research supporting his tes­timony, nor offered any exhibits into evidence, despite the fact that [the expert] had brought to trial most of the articles and studies offered into evidence at the writ hearing.”

4) Reliability

The reliability of expert testimony is governed by Tex. R. Evid. 702, which states: “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s sci­entific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”

Discussing the requirement of “helpfulness” in Rule 702, the Court of Criminal Appeals, in Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), adopted three criteria for assessing the need for reliability of scientific evidence admitted under the rule: “(a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question.” Kelly then set out a further non-exclusive list of factors that could affect a trial court’s determination of reliability: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the experts testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question. Kelly, 824 S.W.2d at 573.

Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), later modified the Kelly criteria for assessing the reliability of expert testimony in cases involving “soft” sciences such as psychology—as opposed to, e.g., physics or chemistry: (1) whether the field of expertise is a legitimate one; (2) whether the subject matter of the expert’s testimony is within the scope of that field; and (3) whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field.

Given the close relationship between the subject matter of Rules 702 and 705, you should have little trouble persuading the trial court that it makes sense for you to have a hearing on the admissibility of the State’s expert testimony under both rules outside the presence of the jury, even though that hearing is mandatory only for Rule 705 inquiries.

When preparing to litigate the admissibility of expert testimony, decide which of the two approaches—Kelly or Nenno—applies in your case, and examine which of the three relevant criteria need to be attacked (if you are dealing with a State expert) or proved. An overly broad challenge that fails to home in on specific areas is unlikely to succeed. See, e.g., Coble v. State, 330 S.W.3d 253, 274, 279 (Tex. Crim. App. 2010)(only third prong of Nenno inquiry, whether Dr. Richard Coons’ methodology properly relied upon the accepted principles of forensic psychiatry, was at issue, and Court concluded “the prosecution did not satisfy its burden of showing the scientific reliability of Dr. Coon’s methodology for predicting future dangerousness”); compare Brewer v. State, No. AP 76,378; 2011 Tex. Crim. App. Unpub. LEXIS 888 *24 (Tex. Crim. App. 2011)(broad-based attack on all psychiatric and psychological testimony on future dangerousness did not preserve a contention that a particular methodology was unreliable).

If you can come up with some additional factor, beyond those articulated in Kelly, for the court to consider in deciding admissibility, you should feel free to do so. If your judge is reluctant to allow a challenge, or to rule evidence to be inadmissible because the expert is a “regular” in that court, bear in mind that as Coble confirmed, id. at 275 n. 56, expert testimony cannot be “grandfathered” in simply because courts have admitted testimony by the same witness in the past. See also Hernandez v. State, 116 S.W.3d 26, 30 (Tex. Crim. App. 2003).

Coble confirmed that it is the proponent of the evidence in question who has the burden of establishing its admissibility in every case, id. at 275–76, citing Hernandez v. State, 116 S.W.3d 26, 30 (Tex. Crim. App. 2003), and that burden is only satisfied by clear and convincing evidence that the testimony is sufficiently relevant and reliable to assist the jury. Id. at 279; Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). Remind the court of this heightened evidentiary standard, which should be used to exclude marginal expert testimony.

Don’t forget that the State can challenge the admissibility of your expert’s testimony, and that you and your expert need to be prepared to meet such a challenge. Get any experts that you are proposing to call to review the criteria they are likely to have to meet, and have them explain in detail and to your satisfaction how their testimony fulfills each of those criteria.

Finally, after conducting a Rule 702 or Rule 705 hearing, do not forget to make a full objection to the State’s expert’s reliability and testimony. Even if you filed a motion in order to obtain the hearing, and explained why the hearing was sought, error still needs to be preserved for appellate purposes. Brewer v. State, No. AP 76,378; 2011 Tex. Crim. App. Unpub. LEXIS 888 *24 (Tex. Crim. App. 2011); Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim. App. 2008).

Notes

1. Powell v. Texas, 492 U.S. 680 (1989); Powell v. Texas, 487 U.S. 1230 (1988).

2. To my knowledge, since the 2010 Coble opinion, Dr. Coons has never been called to testify in a capital case, and is now in retirement. He had testified in over 40 capital murder cases, and at least 14 of those defendants have been executed.

3. See also Edward Lazarus, Closed Chambers, Times Books 1998, pp. 49–73, for an account of the same case. It turned out that the “psychologist” only had a degree in music.

4. You may wish to include the fact that a trial court’s improper denial of funding for experts is a structural error which cannot be evaluated for harm and therefore requires reversal on appeal. Rey, 897 S.W.2d at 245.

5. The funding provisions in federal court are somewhat similar to those in state court. For those unfamiliar with the process in federal court, the Criminal Justice Act (CJA) Guidelines are invaluable, see http://www.uscourts.gov/rules-policies/judiciary-policies/criminal-justice-act-cja-guidelines (last accessed September 5, 2016), and the local CJA representative can also provide guidance. In federal court, 18 U.S.C.§ 3599 covers fees for expert and investigators for capital cases, and 18 U.S.C. § 3006(A) controls such matters in non-capital cases. And, as with state court, every federal court seems to have a slightly different regimen for filing sealed or ex parte documents using the PACER/ECF system, the details of which should be checked in advance.

6. Unless you are 100% sure that they are familiar with the law, send the expert a copy of any statute or relevant cases governing the relevant legal standards that their testimony is designed to meet—their testimony must, after all, be relevant to a question that the finder of fact has to answer.

7. I find it convenient to keep an “identical twin” of the file of material provided to the expert.

8. It should also be kept in mind that Crawford v. Washington, 541 U.S. 36, 68 (2004), forbids the State from introducing testimonial hearsay at trial unless the declarant testifies or the Confrontation Clause of the Sixth Amendment is otherwise sufficiently honored. Crawford therefore allows challenges to be made to expert testimony which relies on the substance of a non-testifying witnesses’ testimonial statements. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).

Careful observers of the criminal justice scene in my part of the world note that Federal prosecutors file and pursue a lot more conspiracy prosecutions than do their State court counterparts. Many assume, I believe, that this is because conspiracy prosecutions require special investigative talents found only in the Justice Department and the various Federal investigative agencies.

“It ain’t so.”

A Texas prosecutor cannot convict anyone on the uncorroborated testimony of an accomplice; Federal prosecutors can. That’s the difference.

The rule followed in Federal Court allows a jury to convict solely on the testimony of a person who was himself a part of the criminal enterprise—if the jury believes the testimony. The jury is instructed that they should weigh such testimony very carefully, but they may believe it and base their verdict on the accomplice testimony alone. In a Texas court, on the other hand, the jury is instructed that it may not convict on the testimony of an accomplice, standing alone. They must find that there is other, additional evidence independent of the testimony of any accomplice that tends to connect the defendant to the commission of the offense.

The Federal court rule assumes that the jury will be able to sort it out, while the State rule emphasizes the fact that a good liar could not only shift his own blame to his associates, but could also involve entirely innocent persons for reasons of his own.

The Federal rule better enables the prosecutor to ferret out crime, while the State rule better protects innocent citizens from criminals who would implicate them in order to gain some advantage for themselves.

In another story published in the Voice for the Defense, a situation in which a murderer and the man who hired him to commit the murder were able to obtain substantial benefits to themselves by offering testimony implicating jail guards in the killing is described in detail. That case exemplifies what is wrong with the Federal rule, in my opinion.

The occasional case in which only an accomplice knows of a criminal’s complicity in a serious crime illustrates what’s wrong with the State rule.

The State rule ends up requiring better police work than the Federal one. The State law enforcement officer who wants to prosecute a criminal conspiracy must penetrate the circle of criminal confidants with a non-criminal witness who will not require corroboration. A DEA agent who can turn one member of a drug cartel, or an FBI agent who can turn one member of a computer fraud conspiracy or an interstate auto theft ring, can obtain indictments, and the U.S. Attorney can obtain convictions, on the testimony of that one witness. Moreover, once the prosecutor is able to prove that any overt act was committed in furtherance of the alleged conspiracy, all statements in furtherance of the conspiracy alleged to have been made by any member of the conspiracy become admissible against all other alleged conspirators, as an exception to the hearsay rule. (The overt act can be as simple as making a phone call, and need not in itself involve illegality.)

The State prosecutor—who must get past the threshold requirement of showing that there was a conspiracy and the defendant was part of it in order to take advantage of this rule—must do so with non-accomplice testimony.

I have dilated a bit on the subject of corroboration of accomplices so that you can more readily understand why a Texas peace officer would have done what my client did in the case I’m about to describe.

Without further ado, then, the story of Will Flowers.

Milt Musgrave spent some of the ’50s, virtually all of the ’60s, and a good portion of the ’70s in California prisons. I lost track of him after the trial I’m about to describe and can’t tell you how he spent his time since (though both of us could guess with a high degree of probable accuracy). He drifted into Dilley, Texas, a dusty little Texas town just south of San Antonio, one day in the late ’70s. He was headed to Mexico, but came up about 100 miles short because he ran out of bus fare.

He hung around Dilley looking for some sort of work. He made no bones about having just been paroled, and told everybody he just wanted to pick up a little money and get back on the bus as soon as possible.

Now, Dilley didn’t have any other parolees in residence, much less ones from California, so Milt became a focal point of every local conversation within two or three hours. Dilley had a three-man police force, and the Frio County Sheriff was up the road a piece in Pearsall, so the constable, Will Flowers, and his brother-in-law, the highway patrolman, played no small part in the maintenance of law and order in and around Dilley. Musgrave came to Will Flowers’ attention within an hour of his arrival.

A constable’s jurisdiction covers the same geographical area as a justice of the peace (usually no more than one quarter of a county), and his primary function is serving papers for proceedings in the justice court. He is a peace officer, however, and in areas like Dilley, where the policeman’s authority ends at the city limits and the deputy sheriff may be 30 minutes or more away, the constable plays a significant role in maintaining the peace.

Will Flowers had an abiding interest in law enforcement. Not only had he obtained a two-year degree in law enforcement studies at Uvalde Junior College; he now taught a course in that same curriculum. He took being a lawman very seriously. When he heard about Musgrave, he decided he’d better go have a talk with him, just to feel him out and see what he was up to. It couldn’t hurt.

Will didn’t wear a uniform, and his boots and Stetson wouldn’t have told Musgrave anything, since every other man in town was dressed pretty much the same way. It’s not hard to guess that his eyes must have been drawn to the six-pointed star Will displayed prominently on his shirt pocket. The two men looked each over carefully, mentally circling and sniffing like two dogs on first meeting.

Finally, Will spoke: “What brings you to Dilley? Anything I can do for you?”

Musgrave told him how he’d run out of bus fare and was just looking for temporary work to earn enough to catch the first available bus on to Mexico.

“I don’t mean to stay, officer. I’ll be on my way just as soon as I can find a few hours work and earn the money to keep traveling.”

What Will Flowers should have done was to buy Milt Musgrave a $2.00 hamburger and a $6.00 bus ticket to Piedras Negras, across the river from Eagle Pass. What he actually did was to help him find a two-bit job for the next day and a four-bit room for the night and then take him home for some home cooking.

At supper that night, Will’s Martha was a little peeved at him and more than a little afraid of Milt Musgrave, particularly when his entire conversation consisted of recounting his prison experiences over the last 20 years and more. She was shocked to learn that her “guest” had spent 21 of the previous 23 years as a guest of the California state prison system.

Will, for his part, was absolutely fascinated by Musgrave. That’s why he’d brought him home. He’d studied about guys like Milt Musgrave, of course, but he’d never had a chance to get to know one up close like this.

Musgrave was a magical storyteller, and kept both his hosts on the edge of their seats as he recounted his prison experiences all evening, until well past midnight.

By the time Will drove him into town (Will and Martha lived in a mobile home on a little acreage outside town), Milt and Will were talking about how wasted Milt’s life to that point had been, and how he’d really like to find a little place like Dilley to settle down and live a normal life.

The job Will found him lasted for several days, and on each of those days he picked up Musgrave and took him home to supper. Martha came not to mind, as Musgrave had a never-ending supply of stories, and both she and her husband had become interested in helping him turn his life around and become a productive citizen.

One evening while Martha was washing the dishes and the two men were alone, Musgrave (whose favorite pastime was saying things for the shock value) told Will that the local bank was just a little crackerbox, and that he, or any other experienced robber, could knock it over and get away clean. Will didn’t like even discussing the subject, and worried, fleetingly, that Musgrave might be considering doing just that. He just laughed it off, though, and changed the subject.

However, the subject came up again and again in their conversation over the next few days, and it became plain to Flowers that Musgrave actually wanted to rob the local bank. Musgrave mentioned knowing “some boys in Chicago” who could help rob that two-bit bank and be gone before sleepy little Dilley knew what hit her.

Musgrave would later testify in Federal Court that he began to believe that Will Flowers wanted to rob his hometown bank with the help of Musgrave, and that he found it scandalous (I’m not making this up) because the constable had a lovely wife and everything going for him.

To teach Will a lesson, he said, he contacted the FBI in San Antonio at that point. He explained the situation as he saw it, and it was agreed that he would tell the constable that his Chicago connection would be calling and they could talk about knocking over the bank.

Pursuant to that scheme, an FBI officer called Will Flowers on the phone, pretending to be “Chicago,” to see if he could get the young officer to make any incriminating statements on the telephone.

A simple code was devised and relayed through Musgrave, whereby language common to the local oil-and-gas industry could be used to discuss robbing the bank while ostensibly discussing drilling a well.

Two taped telephone conversations ensued, in each of which the young constable could be heard quite clearly discussing (via the prearranged code words) robbing the Dilley bank. The constable’s assigned duty was to start a brush fire south and west of town that would divert not only all law enforcement but virtually all able-bodied men in the area away from town during the robbery.

Chicago would go in and com­mit the actual robbery, while Musgrave manned the getaway car. They would drive north and east out of Dilley and meet up with Flowers on a dirt road and give him his share of the take.

In order to assure synchronization of efforts, the conspirators were to meet at a restaurant/motel outside Pearsall on the way to San Antonio. Flowers was instructed to bring a roll of electrical tape, which the robber would use to tie up the employees in the bank before making his getaway.

At the appointed hour on the selected day, something on the order of a dozen or so FBI agents and Captain John Wood of the Texas Rangers were hiding in vans outside the restaurant when Flowers drove up. Will parked in the agreed place and, trying to be nonchalant, waited for Musgrave and Chicago.

On a prearranged signal, Captain Wood, located in a van on Flowers’ blind side, lifted his lanky frame out of the van and quickly approached the driver’s side of Will’s car, drawing his .357 magnum just before reaching the driver’s door.

“You’re under arrest,” said Captain Wood. “Keep your hands in sight and step out of that car.”

“Wait a minute,”  said Constable Will Flowers. “This is my bust!”

There was a trial in Federal Court in San Antonio. He testified, and several local law enforcement officers confirmed his testimony that local officers just don’t think in terms of conspiracy prosecutions.

Will was going to follow Musgrave and Chicago to town and arrest them when Chicago entered the bank. The jury, thankfully, believed his testimony.

Several other things were almost as interesting as the trial itself. Captain Wood of the Rangers told us, for example, that in his entire career (which was a long and distinguished one), this was the only case in which he was involved that went to trial and resulted in a not guilty verdict. That says more than a little about the quality of his investigative work.

Immediately after the trial, an FBI agent who had been very much involved in putting the case together for the government and had personally taken custody of Will Flower’s service revolver when he was arrested, demonstrated a great deal of class when he walked up to Will outside the Federal courthouse, handed him his sidearm and holster, and said: “Here, officer. This belongs to you.”

The single most interesting moments came in cross-examination of Musgrave at the trial.

Will Flowers had originally approached Nick Rothe, a damned good criminal defense lawyer and my good friend, about representing him. Because Nick did not practice in Federal court at that time, he referred the client to me.

As a result, Musgrave knew his name, but not mine. He began calling Nick every time he was in his cups (Musgrave, not Nick, but that’s another story) to talk about the case. Nick, of course, taped the conversations.

We thus went to trial armed not only with the seven best words ever spoken by a defendant who had just been arrested, but with transcripts of a couple of hours of taped conversations with Milt Musgrave.

In those tapes, Musgrave claimed to have killed two men in the California penitentiary and beaten both raps by claiming to be a victim of psychomotor epilepsy and hence not responsible for his actions. He said he’d represented himself in court and was so quick a study that he had been called “brilliant in the courtroom.”

The tapes were entertaining, and demonstrated Musgrave at his most gregarious. Most entertaining from my perspective was the opportunity the transcripts gave me to ask 42 straight questions concerning devastatingly damaging admissions made by the witness—to which the witness’ unwavering response was “I have no present recollection.”