Monthly archive

November 2016

November 2016 SDR – Voice for the Defense Vol. 45, No. 9

Voice for the Defense Volume 45, No. 9 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

Johnson v. United States, 135 S. Ct. 2551 (2015), which held that the residual clause of the Armed Career Criminal Act was void for vagueness, was a substantive decision that applied retroactively to D’s case. Welch v. United States, 136 S. Ct. 1257 (2016).

        “Federal law makes the possession of a firearm by a felon a crime punishable by a prison term of up to 10 years, 18 U. S. C. §§ 922(g), 924(a)(2), but the Armed Career Criminal Act of 1984 increases that sentence to a mandatory 15 years to life if the offender has three or more prior convictions for a ‘serious drug offense’ or a ‘violent felony,’ § 924(e)(1). The definition of ‘violent felony’ includes the so-called residual clause, covering any felony that ‘otherwise involves conduct that presents a serious potential risk of physical injury to another.’ § 924(e)(2)(B)(ii). In Johnson . . . this Court held that clause unconstitutional under the void-for-vagueness doctrine. . . . Welch was sentenced under the Armed Career Criminal Act before Johnson was decided. On direct review, the Eleventh Circuit affirmed his sentence, holding that Welch’s prior Florida conviction for robbery qualified as a ‘violent felony’ under the residual clause. After his conviction became final, Welch sought collateral relief under 28 U. S. C. § 2255, which the District Court denied. The Eleventh Circuit then denied Welch a certificate of appealability. Three weeks later, this Court decided Johnson. Welch now seeks the retroactive application of Johnson[.]”

        The Johnson rule regarding what constitutes a violent offense for ACCA sentencing applies retroactively; the rule was a substantive rule of criminal procedure because it altered “the range of conduct or class of persons that the law punishes.” Unlike procedural rules that alter the permissible methods for determining whether conduct is punishable, substantive rules affect the reach of the statute itself rather than how it is applied. While procedural rules are generally not retroactive, substantive rules are. Teague v. Lane, 489 U. S. 288 (1989). Therefore, imposing an increased sentence under ACCA’s residual clause violated due process. The Supreme Court vacated the court of appeals’ judgment and remanded.

        “It may well be that the Court of Appeals on remand will determine on other grounds that the District Court was correct to deny Welch’s motion to amend his sentence. For instance, the parties continue to dispute whether Welch’s strong-arm robbery conviction qualifies as a violent felony under the elements clause of the Act, which would make Welch eligible for a 15-year sentence regardless of Johnson. On the present record, however, and in light of today’s holding that Johnson is retroactive in cases on collateral review, reasonable jurists at least could debate whether Welch is entitled to relief.”

When a defendant is sentenced under an incorrect Guidelines range, whether or not the ultimate sentence falls within the correct range, the error most often will suffice to show a reasonable probability of a different outcome absent it; that probability is all that is needed to establish an effect on substantial rights for purposes of obtaining relief. Molina-Martinez v. United States, 136 S. Ct. 1338 (2016).

        D pleaded guilty to being in the United States illegally following deportation proceedings that stemmed from his felony convictions. The district court sentenced D to 77 months in prison, pursuant to the sentencing range established in the U.S. Sentencing Guidelines for his criminal history category. Under the Guidelines, prior sentences are counted as a single sentence if they were imposed on the same day unless the offenses in ques­tion were separated by an intervening arrest. D’s prior of­fenses were not separated by an intervening arrest, so when his probation officer calculated his criminal history points and placed him in category VI, he erred; D should have been placed in category V, which carries a lower sentencing range of 70–87 months. D appealed his sentence on the grounds that the district court erred in sentencing him based on the incorrect criminal history category. The Fifth Circuit held that despite the error in calculation, D failed to show that the error affected his substantial rights. The Supreme Court unanimously reversed.

        If a defendant shows that the court mistakenly applied a higher sentencing range to his sentence, his substantial rights are affected. When appellate courts review errors in the application of the Sentencing Guidelines, the defendant is not re­quired to identify “additional evidence” to show that he re­ceived an incorrect sentence. Nothing in the Guidelines, prec­edent, or the Federal Rules of Criminal Procedure gov­ern­ing appellate review of such an error (Fed. R. Crim. P. 52(b)) required that a defendant make a showing of prejudice beyond the fact that the erroneous, higher Guidelines range set the wrong framework for the sentencing proceedings. By requiring more from the defendant, the Fifth Circuit failed to properly account for the central role the Guidelines play in the sentencing process and the dynamics of sentencing, which often leaves the defendant without any of the evidence the Fifth Circuit would require.

Fifth Circuit

The magazine of an AK-47 is a component of the AK-47 for purposes of laws prohibiting the unlicensed export of firearms and certain related items, regardless of whether it is loaded with cartridges when shipped. United States v. Gonzalez, 792 F.3d 534 (5th Cir. 2015).

        The Fifth Circuit pretermitted whether this determination was normally one for the jury, because D forfeited that issue by treating the determination as a question of law for the court to decide on his motion to dismiss the indictment.

In sentencing D convicted, on her guilty plea, for a conspiracy to defraud Medicare and Medicaid, the district court committed reversible plain error with respect to the restitution order; that error affected D’s substantial rights because it was excessive in the amount of $80,533. United States v. Lozano, 791 F.3d 535 (5th Cir. 2015).

        Particularly, the Fifth Circuit held it was plain error to base restitution on losses outside the proper temporal scope. The temporal scope of the offense of conviction was from April 30, 2005, through January 10, 2006, but the district court ordered restitution for losses commencing September 20, 2001. The Fifth Circuit said it would exercise its discretion to correct the error even on plain-error review; the Fifth Circuit vacated the restitution order and remanded to the district court for a recalculation of the amount.

In trial of BP engineer for obstruction of justice (based on deleting text messages with his boss respecting the amount of oil spilling from the Macondo well in the Deepwater Horizon accident), district court did not abuse its discretion in granting D a new trial based on extrinsic influence on the jury. United States v. Mix, 791 F.3d 603 (5th Cir. 2015).

        The district court granted D a new trial based on extrinsic influence on the jury (namely, one juror’s overhearing that other BP employees were going to be prosecuted and her telling other jurors that she had overheard something that gave her comfort in pleading guilty). To be entitled to a new trial based on an extrinsic influence on the jury, a defendant must first show that the extrinsic influence likely caused prejudice; the government then bears the burden of proving the lack of prejudice. D met his initial burden of showing that prejudice was likely; the government did not meet its burden of showing a lack of prejudice. Accordingly, the Fifth Circuit affirmed the new trial order.

Where Louisiana death-row inmates sued, claiming the heat they endured in the summer violated the Eighth Amendment because of their pre-existing medical problems, the Fifth Circuit affirmed the district court’s conclusion that housing them in very hot cells without access to heat-relief measures, while knowing that each inmate’s condition renders him extremely vulnerable to serious heat-related injury, violated the Eighth Amendment. Ball v. LeBlanc, 792 F.3d 584 (5th Cir. 2015).

        However, the scope of the injunctive relief (effectively ordering air-conditioning installation throughout death row) exceeded the Fifth Circuit’s prior precedent. First, the district court erred in failing to consider other acceptable remedies short of facility-wide air conditioning; second, the district court erred in awarding relief facility wide, instead of limiting such relief to the plaintiffs; finally, the relief was not limited to only the months in which the plaintiffs faced heat risk. The Fifth Circuit vacated the district court’s injunction and remanded for reconsideration.

D’s 18 U.S.C. § 1519 conviction for obstructing a federal investigation could not stand in light of an intervening Supreme Court decision that construed “tangible object” in § 1519. United States v. McRae, 795 F.3d 471 (5th Cir. 2015).

        On his second appeal following a remand for resentencing (United States v. McRae, 702 F.3d 806 (5th Cir. 2012)), D contended that his conviction under 18 U.S.C. § 1519 could not stand in light of Yates v. United States, 135 S. Ct. 1074 (2015). D was a former New Orleans police officer charged with offenses arising out of a police cover-up in the aftermath of Hurricane Katrina, including burning a body in a car. Yates, which discussed the meaning of a “tangible object” under § 1519, required that the conviction be vacated. Under that decision, neither a car nor a corpse were “used to record or preserve information” or were “similar to records or documents.” The Fifth Circuit vacated D’s conviction on that count and remanded for resentencing on the remaining counts.

        (2) D was not entitled to a new trial based upon his post-trial diagnosis of post-traumatic stress disorder at the time of the offenses. Likewise, he was not entitled to a new trial based on evidence that persons in the Department of Justice, not directly involved in his trial, made anonymous postings about his proceedings in the comments sections of articles.

A sentence reduction under 18 U.S.C. § 3582(c)(2) does not result in a new judgment, but only in the modi­fi­ca­tion of an existing one, and a defendant may not thereby avoid the requirements for filing second or suc­cessive motions under 28 U.S.C. § 2255. United States v. Jones, 796 F.3d 483 (5th Cir. 2015).

        Because D’s current § 2255 motion raised a claim that he could have raised in a prior application, and because no “new judgment” had intervened between the filing of his current § 2255 motion and the filing of his previous ones, his current § 2255 motion was successive to his previous ones. Accordingly, the Fifth Circuit affirmed the district court’s order transferring D’s case to the Fifth Circuit and ordered D to file a motion for authorization of a successive § 2255 motion pursuant to 28 U.S.C. § 2244(b)(3)(A) within 30 days of notification by the clerk; D was advised that failure to do so would result in an order denying authorization.

Where D’s notice of appeal was not filed within the 14-day period prescribed by Fed. R. App. P. 4(b)(1)(A)(i), nor the 30-day extension period set out in Fed. R. App. P. 4(b)(4)(B), the Fifth Circuit granted the Government’s motion to dismiss the appeal for untimeliness. United States v. Hernandez-Gomez, 795 F.3d 510 (5th Cir. 2015).

        Although the time limits of Fed. R. App. P. 4(b) are not jurisdictional, and thus may be waived, the Government did not waive its right to invoke those limits here. The Fifth Circuit held that a motion to dismiss for untimeliness filed with or before the Government’s first substantive filing (usually its first brief) is timely.

In trial of D charged with violating 18 U.S.C. § 2423(a) by transporting persons under age 18 across state lines with the intent that they engage in criminal sexual activity, the district court did not plainly err in admitting evidence of uncharged sexual assaults by D. United States v. Lewis, 796 F.3d 543 (5th Cir. 2015).

Court of Criminal Appeals

An original writ of habeas corpus in the Court of Criminal Appeals is not the proper avenue for seeking an out-of-time petition for discretionary review from a judgment imposing community supervision. Ex parte Valdez, 489 S.W.3d 462 (Tex.Crim.App. 2016).

        “We filed and set this application for an original writ of habeas corpus to consider whether an original writ of habeas corpus in this Court is the proper avenue for seeking an out-of-time petition for discretionary review (PDR) from a judgment imposing community supervision. . . . Applicant has sought relief in this Court by virtue of a ‘Constitutional writ’ rather than invoking our appellate jurisdiction via PDR from a writ application filed with the trial court and taken through the usual appellate process. Because this is not the type of circumstance calling for this Court’s exercise of its original habeas corpus jurisdiction, we dismiss the application. . . .
[T]his Court will accept a ‘Constitutional writ’ application as an original matter only in extraordinary circumstances.”

Under Tex. Code Crim. Proc. art. 38.43, the trial court has, in the absence of agreement by the State and defendant, the discretion to determine when all necessary biological evidence has been tested; the trial court did not abuse that discretion when it ruled further testing of collected biological material was unnecessary and ordered the case move forward to trial. In re Solis-Gonzalez, 489 S.W.3d 459 (Tex.Crim.App. 2016).

        In 2012, a grand jury indicted D for capital murder. Pursuant to Tex. Code Crim. Proc. art. 38.43, the State moved for DNA testing of biological material collected in the case. The trial court granted that testing. Because of the large number of pieces of biological material, the Texas Department of Public Safety forensics laboratory advised the trial court that it would be unable to complete testing on all pieces until June 2015. The trial court advised the parties of its intent to have a pretrial hearing to determine the applicability of Article 38.43. In a 2014 letter to the defense, the trial court directed the defense to identify any necessary piece of material that it believed the State had failed to submit for testing and provide justification for testing that material. At the hearing, the State asserted it had submitted all of the collected material—more than 200 samples—but argued that testing every sample was unnecessary, and that the testing that had been performed was sufficient. The defense asserted that Article 38.43 created an “absolute right to have all the evidence tested.” The trial court ruled that further testing was unnecessary and that the case would move forward to a May 2015 trial.

        D here filed a motion for leave to file an emergency mandamus application that would require all the biological material be tested. CCA denied relief. “The state submitted all biological material in its possession for forensic analysis. After testing had been performed on a large part, but not all, of the submitted material, the trial court instructed the defendant to identify what untested material was necessary to his defense and to specify, by a date certain, why such testing was so necessary as to delay trial. The trial court found that the defense response did not legally support further delay.”

D argued that charging him witness fees after trial violated his Sixth Amendment right of confrontation and compulsory process; this argument could be raised for the first time on direct appeal because he had no opportunity to raise it in trial court. London v. State, 490 S.W.3d 503 (Tex.Crim.App. 2016).

        “Rather than challenge the constitutionality of the trial court’s imposition of court costs through a hearing . . . or a sep­arate civil lawsuit, Appellant sought to raise, on direct appeal, an as-applied challenge to two provisions in [Tex. Code Crim. Proc. art. 102.011] that impose mandatory court costs upon conviction. The court of appeals . . . held that Appellant failed to preserve error on this claim. We granted review to determine whether Appellant could raise his as-applied challenge for the first time on appeal, and whether a formal bill of exceptions was necessary to provide a sufficient record for the court of appeals. . . . Without considering the merits of the underlying claim, we hold that Appellant was not required to raise his as-applied challenge in the trial court because his first opportunity to do so was on direct appeal. We also hold that Appellant’s as-applied challenge can be evaluated upon the record presented. Consequently, we reverse and remand for the court of appeals to consider the merits of Appellant’s as-applied challenge.”

        Although D could have filed a bill of exceptions under Tex. R. App. P. 33.2, no bill of exceptions was required in this case to provide COA with a sufficient record to evaluate the chal­lenge. Furthermore, D was not required to use the Tex. Code Crim. Proc. art. 103.008 procedure to correct error in the imposition of court costs. It was immaterial which party had summoned each witness because Article 102.011 did not condition the imposition of fees upon which party summoned the witnesses.

During D’s trial on charges of aggravated sexual assault of a child, the trial court abused its discretion by not permitting D to cross-examine the complainant regarding complainant’s sexual abuse of complainant’s sister because such evidence supported D’s theory that complainant had a motive to falsely accuse D of molestation. Johnson v. State, 490 S.W.3d 895 (Tex.Crim.App. 2016).

        D was convicted of two counts of aggravated sexual assault of a child. On appeal, D claimed the trial court erred in excluding evidence of the complainant’s past sexual behavior. D argued that this evidence was relevant to his defense of fabrication, that excluding this evidence violated his right of confrontation, and that it was admissible under the Texas Rules of Evidence. COA held that the trial court did not abuse its discretion in excluding the evidence and affirmed D’s conviction. CCA reversed COA and remanded to that court for a harm analysis under Tex. R. App. P. Rule 44.2(a).

        The proffered cross-examination by D’s counsel should have been permitted. The evidence was admissible under Tex. R. Evid. 412; it was required to be admitted under the Confrontation Clause; and the probative value of the evidence outweighed the danger of unfair prejudice.

Exigent circumstances justified D’s warrantless blood draw; officers reasonably believed D’s intoxication was responsible for the traffic accident, and obtaining a warrant was impractical and would have significantly undermined the efficacy of searching D’s blood. Cole v. State, 490 S.W.3d 918 (Tex.Crim.App. 2016).

        At D’s intoxication-manslaughter trial, the judge overruled D’s motion to suppress evidence obtained by a warrantless blood draw; D was convicted. Holding that the record did not establish exigent circumstances, COA reversed the trial court. CCA reversed and remanded to COA.

        A warrantless search was justified under the exigency ex­ception to U.S. Const. amend. IV’s warrant requirement. Both the time required to complete the accident investigation and the lack of available law enforcement personnel further hin­dered pursuing the warrant process. The record did not establish that there was a readily available officer who could have gotten a warrant while the investigator continued his investigation and another officer kept defendant in custody at the hospital; officers were confronted with the logistical and practical constraints posed by a severe accident involving a death and the attendant duties this accident demanded. Furthermore, without a known elimination rate of methamphetamine, law enforcement faced inevitable evidence destruction without the ability to know how much evidence it was losing as time passed. Only after the investigator measured, calculated, and assessed the vehicles’ damage was he able to form probable cause to believe that D was responsible for the accident and the victim’s death.

The State failed to justify the warrantless taking of D’s blood by failing to demonstrate that practical problems existed in obtaining a warrant within a timeframe that still preserved the opportunity to obtain reliable evidence. Weems v. State, No. PD-0635-14 (Tex.Crim.App. May 25, 2016).

        At his felony driving-while-intoxicated trial, D moved to suppress the results of a warrantless blood draw. The judge denied his request. COA reversed, holding, among other things, that the State failed to establish that D’s warrantless blood draw was justified by exigent circumstances. CCA affirmed COA.

        The State failed to meet its burden and establish that exigent circumstances satisfied the U.S. Const. amend. IV reasonableness standard. While evading law enforcement by fleeing the accident scene and hiding, D’s blood alcohol concentration potentially diminished along with possible evidence to prove or disprove his level of intoxication at the time of driving; aside from D’s own self-imposed delay and the 40 minutes’ worth of alcohol dissipation, little else in the record lent support to finding exigency. The deputy’s testimony suggested that substantial delay in obtaining D’s blood was at least foreseeable. Another officer’s presence at the hospital militated against find­ing that practical problems prevented the State from obtaining a warrant within a timeframe that preserved the opportunity to obtain reliable evidence.

The defense theory raised in voir dire and opening statements opened the door to the extraneous-offense evidence presented by the State, and the State was not required under Tex. R. Evid. 404(b) to provide notice of such rebuttal evidence. Dabney v. State, 492 S.W.3d 309 (Tex.Crim.App. 2016).

        A jury found D guilty of manufacturing methamphetamine, and he was sentenced to 30 years in prison. He appealed, arguing that the trial court erred in admitting evidence of a prior unadjudicated offense of manufacturing meth because the State failed to give proper notice under Tex. R. Evid. 404(b). COA held that the evidence was inadmissable and reversed the trial court. CCA reversed COA.

        COA erred in adding a notice requirement for rebuttal evidence to Rule 404(b) and in failing to defer to the trial court’s decision. COA improperly substituted its judgment for the trial judge’s in concluding that the prosecutor was engaging in gamesmanship instead of legitimately rebutting a defensive theory. There was no evidence that the State’s presentation of this extraneous-offense evidence as rebuttal was an attempt to circumvent the pretrial discovery order.

D failed to object, on three occasions, to the testimony about his DWI blood test; because D failed to obtain a ruling on this Fourth Amendment complaint, he failed to preserve error. Smith v. State, No. PD-1615-14 (Tex.Crim.App. June 8, 2016).

        D was convicted of driving while intoxicated. His conviction was based in part on evidence obtained in a warrantless mandatory blood draw conducted pursuant to Tex. Trans. Code § 724.012(b). COA reversed D’s conviction on the basis that drawing D’s blood without a warrant violated U.S. Const. amend. IV. In its petition for review, the State contended that D failed to preserve error with respect to this complaint. CCA agreed, reversed COA, and remanded for COA to consider D’s remaining points of error.

        D never obtained a ruling on this complaint; D never asked for a ruling on the issue, nor did he object to the judge’s failure to rule. After finding D guilty, the judge reiterated that the Fourth Amendment issue had not been resolved. Even if D had obtained a ruling on his objection to the blood vial itself, the test results were already in evidence. It is well settled that the erroneous admission of testimony is not cause for reversal if the same fact is proven by other testimony not objected to.

Court of Appeals

Trial court did not err in denying D’s motion to suppress because the issue of her unlawful detention was an element of the charged offense, failure to identify, and thus improperly raised in a pretrial motion. Gonzalez v. State, No. 13-16-00092-CR (Tex.App.—Corpus Christi Sept 1, 2016).

        D was charged with two counts of failure to identify, Tex. Penal Code § 38.02. D filed a motion to suppress, challenging the unlawful nature of her detention as a vehicle passenger. D argued that her rights under U.S. Const. amend. IV; Tex. Const. art. 1, § 9; and Tex. Code Crim. Proc. art. 38.23 were vio­lated because the officers had no reasonable suspicion to detain her.D requested the suppression of all evidence seized as a result of the warrantless search, which included all evidence obtained from D, all statements provided by D, and all testimony of officers working at the scene concerning D’s con­duct after officers detained her. The trial court denied D’s mo­tion. Subsequently, D pleaded guilty to failure to identify. D appealed, challenging the denial of the motion to suppress. COA affirmed.

        The trial court did not err in denying D’s motion to suppress because, by asking the trial judge to suppress her arrest and the details of failing to provide her name to the officer as the product of an unlawful detention, D was in effect asking the judge to rule on whether the State had proof of an element of the charged offense of failure to identify, i.e., lawful detention under § 38.02(2). She was asking the judge to address the merits of the case itself, not to address issues that can be determined before a trial on general issues of the case. D, in essence, tried to argue in her motion and on appeal that the State could not prove one of the elements of the crime—that the State could not prove the detention for which she provided a false or fictitious name was lawful because it was unreasonable. If the trial judge granted D’s motion to suppress her misidentification and ensuing detention, the State could no longer prosecute D for failure to identify. A suppression hearing is for the limited purpose of addressing preliminary matters, not the merits of the case itself, and it may not be used to decide the sufficiency of the evidence to support an element of the offense.

Receipt of Incriminating Evidence and the Need for Protection

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;
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).


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).

Avoiding the One-Eyed Expert and Handling the Others

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).


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 (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).

The Long Hot Summer—Dilley Style

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.”

November 2016 Complete Issue – PDF Download



21 | Receipt of Incriminating Evidence and the Need for Protection – By Keith Hampton
28 | Avoiding the One-Eyed Expert and Handling the Others – By Hilary Sheard
36 | The Long Hot Summer—Dilley Style – By Judge Pat Priest

6 | President’s Message
8 | Executive Director’s Perspective
10 | Ethics & The Law
14 | Off the Back
16 | Federal Corner
20 | Shout Outs

5 | CLE Seminars and Events
41 | Significant Decisions Report

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


Although the temperatures belie it now, fall is upon us. With it, we will see the end of an intense and unpredictable summer of politics and the start of the holiday season. A holiday season in an even-numbered year, means that a legislative session is right around the corner! The 85th Session of the Texas Legislature will start in January, and again, legislators will embark on the near-impossible task of addressing all critical legislative needs in a 140-day period—and the TCDLA Legislative team will work diligently to protect our clients and improve the quality of justice in Texas. The legislative team has been preparing initiatives on a number of issues designed to ensure that our clients are treated fairly, and among them is the subject of pretrial release.

For the first time in recent memory, the Texas Legislature seems poised and committed to seriously address the jail overcrowding crisis created by housing tens of thousands of individuals as they await trial. According to the Texas Judicial Council (hereinafter “TJC”), currently more than 41,000 defendants are sitting in Texas jails waiting for trial, and the annual cost to local government for housing inmates pretrial nears a shocking $1 billion.

TCDLA has long advocated for reform to bond and bail practices that have resulted in over-incarceration in general, as well as the unconscionable incarceration of the poor simply because they are unable to pay. We all know the stories of people who lose jobs and housing because they are unable to post bond even in minor, nonviolent cases. Cases like that of Sandra Bland, who committed suicide in jail after being unable to post a $500 bond on a non-violent charge, make national headlines. We have seen firsthand the devastating impact on our clients of being held in custody for even 24–48 hours. And we know clients held in custody are more likely to plead guilty to charges, more likely to serve sentences of incarceration, and more likely to reoffend after release. The negative consequences of pretrial incarceration—particularly in nonviolent offense—have reached crisis proportion, both in terms of costs to taxpayers and to society in general.

In 2015, the Texas Judicial Council created a Criminal Justice Committee that has, for more than a year, with the input of stakeholders, studied the problem, existing research and studies, and solutions adopted in jurisdictions across the country. After a thorough analysis, TJC made a number of findings and passed a series of resolutions embodying legislative recommendations for reform.

After much review and analysis, the TCDLA Legislative team and leadership believe that some of the recommendations for reform coming via the TJC resolutions are smart and strategic and will have our endorsement and support. Of course, as with most complicated legislative proposals, the devil is in the details, and your legislative team will carefully monitor and actively par­ticipate in the development of these specific provisions. There are, however, provisions in the TJC resolutions that we believe are complicated and potentially unwise.

TJC is advocating for several key provisions. First, while asking for increased state funding and recognizing that all existing forms of bond and bail should remain in effect, TJC is recommending an amendment to the Texas Constitution that would create a presumption that all persons charged with a crime in Texas are entitled to pretrial release through personal bond. TJC seeks to require that all Texas counties adopt and implement a validated risk-assessment tool that would be given to all defendants arrested for jailable misdemeanors and felonies, prior to magistration. The results of such an assessment would be used to place defendants along a risk scale and as a factor in determining appropriate bond conditions and supervision.

One such validated risk assessment tool has been promulgated by the Laura and John Arnold Foundation in Houston Texas ( This is a non-interview-based tool that utilizes objective information designed to assess if an individual is likely to present a risk of flight or of danger to the community. This particular assessment tool has some important features. It is structured so that impermissible factors—like racial bias—are not part of the bond-setting decision, and it ana­lyzes risk based on prior convictions, as opposed to arrests.

TJC is also proposing to amend the Texas Constitution to provide that defendants posing a high risk of flight and/or danger to community safety may be held in jail without bail pending trial after certain findings are made and a detention hearing held. While the expressed goal of TJC regarding this provision is to prevent the flight or community safety threat by those with affluent means, expanding the class of individuals who can be held without bond pretrial beyond those charged with capital murder is, understandably, concerning to us and leg­islators as well.

This set of recommendations will just be some of those considered by the Legislature. A number of other provisions have been talked about both outside of and within TCDLA. Of course, TCDLA will be monitoring the hundreds of bills related to criminal justice that are filed every session. We will be both advocating for positive reforms and battling against efforts to dilute constitutional and statutory protections afforded our clients to protect against wrongful convictions and fundamental injustice.

Executive Director’s Perspective: Fall Seminars – By Joseph A. Martinez


Special thanks to our course directors, Jason Cassel and Audrey Moorehead, for the TCDLA Cross-Examination seminar and to course directors Kerri Anderson-Donica, Heather Barbieri, and Mark Bennett for the Voir Dire CLE held in Dallas in September. Thanks to their help we had 50 attendees for Cross-Examination and 63 attendees for Voir Dire.

Special thanks to our course directors, Danny Easterling (Houston) and Grant Scheiner (Houston), for the Top Gun DWI CLE held in Houston. This is the 14th year Danny and Grant have put together an outstanding lineup speakers on relevant DWI topics. Thanks to their effort we had 150 attendees.

Special thanks to Heather Barbieri and Clay Steadman, course directors for the Beating the Drum for Justice CLE held in Fredericksburg in September. Thanks to their efforts we had 39 attendees.

Special thanks to John Hunter Smith, Lisa Greenberg, and Philip Goff, course directors for the Beating the Drum for Justice CLE held in Corpus Christi in September. Thanks to their efforts we had 42 attendees.

Thanks to course directors Tony Vitz (McKinney), John Ackerman (Sunset Beach), and Greg Westfall (Fort Worth) for a four-day Round Top VI Advanced Trial Skills Training—Discover the Story, held in Round Top. Thanks to them and our faculty we had 64 attendees.

Thanks to our course directors, Michael Ware (Fort Worth) and Allison Clayton (Lubbock), for our Innocence Clinic for Students, held in Houston in October. Thanks to their efforts we had 43 attendees.

Thanks to course directors Rick Wardroup (Lubbock), Philip Wischkaemper (Lubbock), E. X. Martin (Dallas), Larry Renner (Santa Fe, NM), and Nicolas Hughes (Houston) for our 14th Annual Forensics seminar held in Houston in October. Thanks to their efforts we had 111 attendees. We want to give credit to Mike Charleton and Philip Wischkaemper, who came up with the idea for a forensics seminar 14 years ago.

Weren’t able to attend this year’s 29th Annual 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 your area? Would you like to re-energize or jump-start your organization? Are you interested in forming a local criminal defense bar? Need help getting organized? Please contact Susan Anderson (Dallas), , Laurie Key (Lubbock), , or Carmen Roe (Houston), , co-chairs of the TCDLA Affiliate Committee.

Good verdicts to all.

Ethics and the Law: Slim to None


Regardless of where a lawyer practices, one thing will always remain the same—time is money. Abraham Lincoln said it best when stating, “a lawyer’s time and advice is his stock and trade.” When a client seeks out an attorney to represent him or her, the client is essentially paying for two things—the lawyer’s time and knowledge. More importantly, as most lawyers unfortunately know, when the case is over and the client has not fully paid, you have two chances of being paid—SLIM TO NONE—regardless of how much time and knowledge you put into it.

A lawyer’s “inventory” is considered his time. He essentially has nothing else to sell. Unfortunately, there is only so much time in a day, and unlike a products manufacturer, all the money in the world couldn’t buy us an endless amount of time. Thus, if you don’t manage your inventory carefully, you will have wasted your time and lost your money. This is why case selection and payment collection is very important.

Once it makes economical sense to take on a particular case, it’s essential to ensure that the client has some “skin in the game” as well. So long as clients have something on the line, they will almost always try to maintain communication and payment. The second clients receive what they want, they no longer are invested nor do they have an incentive to contact you or pay you.

In a perfect world, all lawyers would be paid upfront and in full. However, in reality we are left with either the occasional upfront payment or betting on the client’s word that they will comply with the signed written contract. This forces lawyers to be in between a rock and a hard spot. We take an oath and are duty bound to zealously represent the client and the client’s interests no matter what. This becomes virtually impossible when you are not paid for your time and efforts. Money opens doors and keeps the lights on, which is the only way to enable us to maintain our practice.

Collecting payment from a client is difficult at best. This raises several ethical issues: 1) who is running the show, the client or the source of the funding (e.g., Bubba’s mommy); 2) legal ramifications of accepting questionable funds (e.g., dope money in the briefcase); and 3) failure to collect essentially steals the lawyer’s time away from the “paid-in-full” client, which in turn gives us a bad rap of being “all about the money.” In reality we are simply looking to be compensated for services rendered, just like any other business. Because our services come in the form of advice and knowledge and it is not tangible or something concrete for the client to see and touch, the client believes that they have paid “all this money” and have “nothing to show for it.”

This is frustrating for both the attorney and client because the attorney has legitimately spent his or her time and efforts to gain the best possible outcome for the client, and the client is frustrated because not only did they not get the exact outcome they wanted—which was most likely unattainable anyway—but they are also out thousands of dollars to pay the lawyer. This creates the perfect storm.


We are duty bound to communicate effectively with our client. When clients text, email, or call—even if you’re in line at Kroger, or at your grandson’s baseball game, or at the nail salon—they expect you to respond. In the client’s mind, it’s just “a simple text or email, which couldn’t have taken much of the lawyer’s time.” The client needs to realize from the get-go that time is a valuable commodity, and that communicating in this new world of technology can be extremely risky. The client doesn’t consider the consequences of the text or email reaching an unintended recipient, which breaks attorney-client privilege,and as Eric Devlin well demonstrated in his seminar talk on September 29, 2016, once a text or email is transmitted, it is always subject to retrieval. Both the client and attorney must remember that the actual defense of a case is a balancing game, and as long as both parties remain professional and communicative, they can generally come to a realistic compromise.

Another piece of the time and money puzzle conundrum involves form of payment. Fortunately, unlike most service providers, a lawyer does not always have to obtain payment in cash. Instead, a lawyer can choose to collect his fees through different forms of collateral. On several occasions, I have heard of lawyers receiving a baseball card collection, several cars, guns, real estate, and other items taken in lieu of a fee. It is amazing what turns up if you do research before meeting with the client—find out addresses, schooling/education, family history, employer information, former employers/employees, etc.

Recently I had a case where a client was on probation and unfortunately picked up another case just two months before his probation ended. He came in to discuss his new case, and when I told him my retainer fee, he claimed to have no more money. I then agreed to try to find him a lawyer who would charge less; however, what was ironic is that when he left, I walked outside and saw him drive off in a new Mercedes-Benz. My new rule became “Run ’em before you talk to ’em.

One way lawyers can ensure receiving payment is if the client has property that was seized when arrested. The lawyer can file a motion to return property and get the property released to his or her firm. Have the client sign a document releasing the property (see the below example and also see attached motion and referral to TCDLA about returning evidence). The article can be found in The Prosecutor, Jan.–Feb. 2009, Volume 39, No. 1—

Simple Memo for Client to Sign

The fee paid by __________[client] to ___________ [attorney] is not proceeds of any criminal act.

The [front-end loader, motorcycle, etc.] [collateral] given to me for my fee is not stolen and belongs to me. I additionally warrant that I am the sole owner of this property and no other person(s) or entity has any legal ownership interest in the property.

____________________[client signature]

Ed Mallett and Michael Mowla have both also provided me with ideas on this subject, such as referral fees. They say when you first get hired by an accused citizen, get a contract signed as soon as possible that includes the mandates found in TDRCP 1.04(f). You will find an example provided by Ed Mallett in the Voice for the Defense, October 2012 issue, found at Additionally, the article here provided by Lawyer Mallett shows what happened to a lawyer in South Carolina regarding this issue. Lawyer Mowla is also an expert on many things—including fees—and he has provided the rule about referrals. He states:

        The answer is in TDRPC 1.04(f). First, there must be a proportional division of legal services provided or join responsibility [see (f)(1)]. Second, there must be client consent [see (f)(2)]. Both factors must be present, and there are no exceptions. The referring attorney who is receiving a fee must do SOME work on the case—although this rule is bent quite a bit.

        When I refer a client to another attorney, unless I plan to stay on as counsel in some capacity, I wash my hands clean of the case. If the other attorney gets hired and collects a handsome fee, good for the other attorney. I consider the referral a “gift” to the other attorney for which I expect nothing in return (nor will I accept anything in return), and I make the referral based only upon my confidence in that attorney’s abilities.

TDRPC Rule 1.04(f) Fees (Effective March 1, 2005) reads as follows:

(f)    A division or arrangement for division of a fee between lawyers who are not in the same firm may be made only if:

(1)  the division is:

(i)   in proportion to the professional services performed by each lawyer; or
(ii)  made between lawyers who assume joint responsibility for the representation; and

(2)  the client consents in writing to the terms of the arrangement prior to the time of the association or referral proposed, including

(i)   the identity of all lawyers or law firms who will participate in the fee-sharing arrangement, and
(ii)  whether fees will be divided based on the proportion of services performed or by lawyers agreeing to assume joint responsibility for the representation, and
(iii) the share of the fee that each lawyer or law firm will receive or, if the division is based on the proportion of services performed, the basis on which the division will be made; and

(3)   the aggregate fee does not violate paragraph (a).

The bottom line is that each case you take on as a lawyer should be carefully analyzed. Your time is precious and should not be wasted. As Benjamin Franklin stated, “THEN DO NOT SQUANDER TIME, FOR THAT IS THE STUFF LIFE IS MADE OF.”

You may have done a great job for your client and saved him or her from being locked up or convicted, but sad to say it is still SLIM TO NONE on your chances of getting paid no matter how much time you spent on it.

A special thanks to Monica Ishak, Robyn Harlin, Michael Mowla, and Ed Mallett for their advice and guidance with this article. Robert can be reached at .

Off the Back: Using Metrology to Understand Forensic Measurements – By Stephen Gustitis


Metrology is the science of measurement. The State often relies upon measurements to prove allegations against our clients. For example, the determination of breath and blood alcohol concentrations in a DWI trial involve measurement. The weight of a controlled substance, and its identity, involves measurement. Other examples may include DNA and radar speed detection. Essentially, a forensic science implicating physics, chemistry, toxicology, engineering, psychology, or medicine may also implicate the science of measurement. When we encounter these measurements in the courtroom, we must be prepared to confront them. Consequently, a special understanding of metrology may help us deconstruct a measurement relied upon by the prosecutor. Our ability to discredit a given measurement could be the key to creating reasonable doubt.

Defense lawyers encountering forensic measurements in the courtroom are too often overwhelmed by their attempt to develop a separate expertise in several distinct measurement disciplines. Even the most dedicated defense attorney could be dumbfounded by trying to learn varied technologies spanning diverse fields. But our most grievous mistake would be to acquiescence without a fight. So what can we learn from metrology to help us critically evaluate any forensic measurement? That is, regardless of the discipline, how can we analyze a measurement to determine whether the evidence presented is scientifically sound? There are three metrological components that should be considered any time we evaluate a forensic measurement. These pertain to traceability, calibration, and uncertainty.

Traceability involves the property of a measurement where the result is linked to a known reference via a documented and unbroken chain of comparisons. This anchors the quantitative result to the known reference. Without traceability we cannot be confident in the correctness of the quantitative result reported. In other words, proper traceability helps us determine the measured result is what it purports to be. For example, an alcohol breath test result could not be considered reliable if the traceability of the reference solution was not established. In the United States, national standards for weights and measures are maintained by the National Institute of Standards and Technology (NIST). Once a lawyer understands the traceable components of a given measurement, they can prepare to challenge whether the proof offered is traceable to a known reference. Again, this is accomplished through a documented and unbroken chain of comparisons with the NIST standard.

Calibration is the comparison of measured values created by a device with those values of a calibration standard of known accuracy. The calibration standard is normally traceable to a national standard held by NIST. This process determines how our measuring system responds to quantities with different values so responses generated during later measurements can be charted into correct quantitative values. For example, by determining how a gas chromatograph responds to known and varying alcohol concentrations, the machine’s response to an unknown blood concentration can be confidently mapped to the true concentration. Without proper calibration we cannot be confident the values obtained by a measuring device correspond to those values that could reasonably be attributed to the measuring system. To this end, every measuring device must be calibrated prior to use. It must also be calibrated over the intended range of measurement and be re-calibrated on a regular basis.

Lastly, measurement uncertainty relates to the range of values attributed to a single measured quantity. Uncertainty is inherent in every scientific process. It’s important because no measurement can ever tell us what a quantity’s true value is. In the best case, the measuring system provides a range of values that has a known probability of containing the quantity’s value. For example, the current Austin Crime Laboratory policy for re­porting blood alcohol concentrations is with a 99.7% confidence level. The BAC is reported ±9.4%. In other words, crime laboratory chemists reporting a 0.291 result with a 99.7% confidence level would testify they were 99.7% sure the true BAC value lay between 0.263 and 0.319. Without stating measurement uncertainty, any conclusion based upon a measured result is speculation since there’s no way to understand what the result actually represents.

With a basic understanding of metrology, criminal defense lawyers can conduct a critical analysis of forensic measurements regardless of the discipline. Without developing an expertise in varied technologies spanning diverse fields, they can better understand evidence from forensic measurements, they can better prepare and present cases involving such evidence, and they can better recognized poor measurement practices.

Federal Corner: Child Pornography; The Playpen; The Onion Router (“Tor”); Network Investigative Technique (“NIT”) Warrants; Suppression; and, Confusion in the Courts – By F. R. Buck Files Jr.


Like the Roadrunner and Wile E. Coyote, those who would watch child pornography and those who would prosecute them for doing so continue to try to outwit each other. In the real world, though, it is Mr. Coyote (the Government) who often prevails. Recently, I learned about the child pornographers’ use of The onion router (“Tor”) and the Government’s use of a Network Investigative Technique (“NIT”). United States v. Croghan, ___F.Supp.3d___, 2016 WL 4992105 (S.D. Iowa Sept. 19, 2016), and United States v. Werdene, ___F.Supp.3d___, 2016 WL 3002376 (E.D. Pa. May 18, 2016). These are two—and only two—of the many cases in which United States District Judges have been presented with the same basic facts and have come to different legal conclusions.

All of these cases were set in motion as a result of a search warrant issued by United States Magistrate Judge Theresa Carroll Buchanan of the Eastern District of Virginia. The most recent of these cases is Croghan, in which the defendant’s motion to suppress evidence was granted by United States District Judge Robert W. Pratt of the Southern District of Iowa. His order reads, in part, as follows:

[The Tor Network; the Network Investigative Technique; and the Issuance of a Warrant]

In approximately September 2014, the Federal Bureau of Investigation (“FBI”) began investigating a child pornography website known as “Playpen.” Playpen existed as a “hidden service” on the “Tor” network, which is designed to protect user anonymity by obscuring identifying information such as the user’s IP address. Because “hidden services” are not publically indexed or searchable, a user must both connect to Tor and know the specific Tor-based web address of a particular site to gain access.

        During the course of its investigation, the FBI connected to the Playpen website and discovered that it appeared to be dedicated to advertising and distributing child pornography. In December 2014, a foreign law enforcement agency advised the FBI that it had discovered the actual IP address of the Playpen server, and that such server was located in Lenoir, North Carolina. In January 2015, the FBI obtained and executed a search warrant whereby it seized the Playpen website server. Hoping to locate and identify visitors to the site, the FBI placed a complete copy of the Playpen website, including all of the child pornography on the website, on a government-controlled server located in Newington, Virginia. On February 19, 2015, the FBI arrested the suspected administrator of the Playpen website and “assumed administrative control” of it.

        On February 20, 2015, the FBI submitted an application for and affidavit in support of a search warrant to Eastern District of Virginia Magistrate Judge Theresa Carroll Buchanan. The affidavit provided that the FBI intended to continue operating the Playpen website from its own server for a period of time not to exceed 30 days in an attempt to identify users of the site. Because the site utilized the Tor network to mask user identify information, the FBI requested that Magistrate Judge Buchanan authorize use of a “Network Investigative Technique” (“NIT”) whereby the FBI would insert computer software into the Playpen website that would assist it in “locat[ing] and apprehend[ing] the target subjects who are engaging in the continuing sexual abuse and exploitation of children” by accessing the Playpen website. Once installed on the Playpen website on the government-controlled server, the NIT would be deployed to the computer of any user who visited the Playpen website and entered a user name and password. (noting that the NIT would be deployed to “‘any user’ who logged into the site with a username and password, regardless of their physical location, whether or not they were using the site’s chat features, or viewing child pornography”). The NIT would then force the “activating” computer to transmit information back to the FBI, including: the IP address of the activating computer; the date and time the NIT determined the IP address; a unique identifier generated by the NIT to distinguish data from different activating computers; the type of operating system running on the activating computer, including type, version, and architecture; information on whether the NIT had already been delivered to the activating computer; the “host name” of the activating computer; the operating system used by the activating computer; and the Media Access Control (“MAC”) address of the activating computer. Magistrate Judge Buchanan approved the warrant and authorized the FBI to deploy the NIT for 30 days. She further granted a request by the Government to delay notice of the search “until 30 days after any individual accessing the [Playpen site] has been identified to a sufficient degree as to provide notice” under 18 U.S.C. § 3103(a)(b) and Federal Rule of Criminal Procedure 41(f)(3). The Government began deploying the NIT on February 20, 2015, and continued to do so until March 4, 2015, at which time it took the Playpen website offline.

* * *

[The Search of Croghan’s Residence in Iowa and the Evidence Seized at that Residence]

On July 17, 2015, law enforcement obtained a search warrant for Beau Croghan’s residence in Council Bluffs, Iowa. Law enforcement obtained a search warrant for Steven Horton’s residence in Glenwood, Iowa, on August 5, 2015. The affidavits submitted in support of each of the Iowa Warrants relied primarily on information collected from the NIT. In particular, each affidavit described the Playpen website, its existence on the Tor network, and the authorization for the NIT from the Eastern District of Virginia. The affidavits recounted that the NIT had yielded specific user names and IP addresses, and that subsequent investigation using public records and administrative subpoenas to Internet Service Providers (“ISPs”) had associated the identified IP addresses with Croghan, Horton, and their specific residences. While executing the warrants, law enforcement seized evidence from each Defendant’s home, eventually culminating in both men being indicted for accessing or attempting to access child pornography in violation of 18 U.S.C. § 2252(a)(5)(B).

[A Review of Other Tor Cases]

The Court notes that the NIT Warrant at issue in this case has resulted in a great deal of litigation across the country. The numerous district courts to consider motions similar to the present Motions to Suppress have reached varying conclusions on the legal issues at play. At least two courts have concluded that the NIT Warrant was unlawfully issued and suppressed all fruits of it. See, e.g., United States v. Levin, No. 15–10271, __ F.Supp.3d __, 2016 WL 2596010 (D.Mass. May 5, 2016); United States v. Arterbury, No. 15-cr-182, Clerk’s No. 42 (N.D. Okla. Apr. 25, 2016). Several others have found that while the NIT Warrant may have been issued unlawfully, suppression was not warranted, either under the exclusionary rule in general or pursuant to the Leon good faith exception. See United States v. Torres, No. 5:16–cr–285, 2016 WL 4821223 (W.D.Tex. Sept. 9, 2016); United States v. Henderson, No. 15–cr–565, 2016 WL 4549108 (N.D.Cal. Sept. 1, 2016); United States v. Adams, No. 6:16–cr–11, 2016 WL 4212079 (M.D.Fla. Aug. 10, 2016); United States v. Acevedo–Lemus, No. 15–00137, 2016 WL 4208436 (C.D.Cal. Aug. 8, 2016); United States v. Werdene, No. 15–434, __ F.Supp.3d __, 2016 WL 3002376 (E.D.Pa. May 18, 2016); United States v. Epich, No. 15–cr–163–PP, 2016 WL 953269 (E.D.Wis. Mar. 14, 2016); United States v. Michaud, No 3:15–cr–05351–RJB, 2016 WL 337263 (W.D.Wash. Jan. 28, 2016). And, at least four decisions, three from the Eastern District of Virginia and one from the Western District of Arkansas, have concluded that the magistrate judge possessed adequate authority to issue the NIT Warrant under Rule 41 such that there was no legal violation that would require suppression. See, e.g., United States v. Jean, No. 5:15–cr–50087, 2016 WL 4771096 (W.D.Ark. Sept. 13, 2016); United States v. Eure, No 2:16cr43, 2016 WL 4059663 (E.D.Va. July 28, 2016); United States v. Matish, No. 4:16cr16, __ F.Supp.3d __ 2016 WL 3545776 (E.D.Va. June 23, 2016); United States v. Darby, No. 2:16cr36, –––F.Supp.3d ––––, 2016 WL 3189703 (E.D.Va. June 3, 2016).

[Federal Rule of Criminal Procedure 41(b)]

The Federal Magistrates Act provides that “[e]ach United States magistrate judge serving under [the Act] shall have within the district in which sessions are held by the court that appointed the magistrate judge, at other places where that court may function, and elsewhere as authorized by law” certain duties, including among other things “all powers and duties conferred or imposed . . . by the Rules of Criminal Procedure for the United States District Courts.” 28 U.S.C. § 636(a)(1). Federal Rule of Criminal Procedure 41(b) provides in relevant part:

Venue for a Warrant Application. At the request of a federal law enforcement officer or an attorney for the government:

(1) a magistrate judge with authority in the district . . . has authority to issue a warrant to search for and seize a person or property located within the district;

(2) a magistrate judge with authority in the district has authority to issue a warrant for a person or property outside the district if the person or property is located within the district when the warrant is issued but might move or be moved outside the district before the warrant is executed; . . .

(4) a magistrate judge with authority in the district has authority to issue a warrant to install within the district a tracking device; the warrant may authorize use of the device to track the movement of a person or property located within the district, outside the district, or both. . . .

[Magistrate Judge Buchanan Erred in Issuing the NIT Warrant]

The Court finds, and the Government seemingly concedes, that neither Rule 41(b)(1) nor Rule 41(b)(2) authorized an Eastern District of Virginia magistrate judge to issue the NIT Warrant.

* * *

[Judge Pratt Finds that Suppression Is the Appropriate Remedy]

It is clear in this case that neither the search pursuant to the NIT Warrant nor the searches pursuant to the Iowa Warrants would have occurred without the violation of Rule 41(b). Had Rule 41 been complied with, law enforcement would not have obtained Defendants’ IP addresses, would not have been able to link those IP addresses to De­fendants through subsequent investigation and the use of administrative subpoenas, and would not have had sufficient probable cause to obtain the Iowa Warrants. Thus, Defendants have satisfied their burden to prove that they were prejudiced by the Rule 41(b) violation. Suppression is an appropriate means to deter law enforcement from seeking warrants from judges lacking jurisdiction to issue them, and this deterrence function outweighs the societal costs associated with suppression. Moreover, the Court finds that law enforcement was sufficiently experienced, and that there existed adequate case law casting doubt on magisterial authority to issue precisely this type of NIT Warrant, that the good faith exception is inapplicable. See Levin, __ F.Supp.3d at __ 2016 WL 2596010 (finding that the good faith exception would be inapplicable even if the Rule 41(b) violation was not constitutional because the “conduct at issue here can be described as ‘systemic error or reckless disregard of constitutional requirements’” and because “it was not objectively reasonable for law enforcement—particularly ‘a veteran FBI agent with 19 years of federal law enforcement experience’—to believe the NIT Warrant was properly issued considering the plain mandate of Rule 41(b)” (citing Glover, 736 F.3d at 516 (“[I]t is quite a stretch to label the government’s actions in seeking a warrant so clearly in violation of Rule 41 as motivated by ‘good faith.’”)); Croghan Br. at 20–21 (citing case law supporting a conclusion that law enforcement should have been aware that Rule 41(b) had jurisdictional limits that would prevent issuance of the NIT Warrant).


For the reasons stated herein, Defendants’ Motions to Suppress are granted. All evidence flowing from and obtained as a result of the improperly issued NIT Warrant is hereby suppressed [emphasis added].

In Werdene, another case that began with Magistrate Judge Buchanan’s order, United States District Judge Gerald J. Pappert of the Eastern District of Pennsylvania came to a different conclusion. Because of space constraints, I have included only a small portion of his Memorandum which reads, in part, as follows:

[Tor and NIT]

Playpen’s patrons accessed the website through software called “Tor,” an acronym for “The onion router.” Tor conceals the IP addresses of people who visit certain websites, in Werdene’s case a website purveying child pornography. Otherwise stated, Tor enables people to use websites like Playpen to view, upload, and share child pornography without being identified by traditional law enforcement investigative methods. To circumvent Tor, the FBI used a Network Investigative Technique (“NIT”). The NIT caused software to be activated whenever a Playpen user logged into the website with his username and password. The software caused the Playpen user’s computer to reveal its IP address to the FBI. The search warrant issued by the Virginia magistrate authorized the NIT.

[A (Very) Brief Summary of the Opinion]

Werdene moves to suppress the evidence seized from his home, arguing primarily that the magistrate judge in Virginia lacked jurisdiction under Federal Rule of Criminal Procedure 41 to authorize the NIT. Werdene contends that this violation of a procedural rule warrants suppression. While Rule 41 did not authorize the issuance of the warrant in Virginia, suppression is not the appropriate remedy. The magistrate judge’s failure to comply with Rule 41 did not violate Werdene’s Fourth Amendment rights because Werdene had no expectation of privacy in his IP address, and certainly not one that society would recognize as reasonable. Even if Werdene’s constitutional rights were violated, the good faith exception to the exclusionary rule precludes suppression. Finally, any nonconstitutional violation of Rule 41 did not prejudice Werdene, as that term has been defined by the Third Circuit Court of Appeals in the Rule 41 context. The Court denies the motion [emphasis added].

My Thoughts

  • Magistrate Judge Buchanan could not have conceived of the confusion that her order has precipitated. It is impossible to know how many more of these cases are out there—and whether any are in the process of being considered by one of the United States Courts of Appeal. What a mess!
  • One of the difficult tasks that a criminal defense lawyer faces is trying to explain to a client that it is often difficult—if not impossible—to predict what ruling a judge will make when confronted with a suppression issue. These cases certainly illustrate that problem.
  • What should be of interest to us all is what we have learned about Tor and NIT. If the Government was successful in obtaining an NIT warrant from a magistrate in the Eastern District of Virginia, have they done so in other districts?
  • What, we all wonder, will be the next skirmish between the Roadrunner and Mr. Coyote?