Monthly archive

January 2017

January/February 2017 SDR – Voice for the Defense Vol. 46, No. 1

Voice for the Defense Volume 46, No. 1 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

The Sixth Amendment speedy trial guarantee did not apply to the 14-month delay between D’s conviction and sentencing. Betterman v. Montana, 136 S. Ct. 1609 (2016).

        D pleaded guilty to bail jumping after failing to appear in court on domestic assault charges. He was then jailed for over 14 months awaiting sentence, in large part due to institutional delay. He was eventually sentenced. D appealed, arguing that the 14-month gap between conviction and sentencing violated his speedy trial right. The Montana Supreme Court affirmed the conviction and sentence, ruling that the U.S. Const. Amend. VI Speedy Trial Clause does not apply to post-conviction, presentencing delay. The Supreme Court affirmed.

         The speedy trial guarantee protects an accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty. The Speedy Trial Clause implements the presumption of innocence and therefore loses force upon conviction. Although a due process right to liberty, while diminished, remains after conviction, D did not advance a due process claim.

The federal Immigration and Nationality Act, which includes “aggravated felony” as a reason for deporting a non-citizen, includes a state offense if all the elements of the federal crime are met with the exception of being related to interstate or foreign commerce; D acknowledged that New York arson law only differed from 18 U.S.C. §  844(i) in that it lacked an interstate commerce element. Luna Torres v. Lynch, 136 S. Ct. 1619 (2016).

        D, a lawful permanent resident, pleaded guilty in New York to attempted third-degree arson. A U.S. alien convicted of an “aggravated felony” is deportable, ineligible for several forms of discretionary relief, and subject to expedited removal, 8 U.S.C. § 1227(a). An “aggravated felony” is defined as any of numerous offenses listed in § 1101(a)(43), which includes 18 U.S.C. § 844 relating to arson and explosives. Section 1101(a)(43)’s penultimate sentence states that each enumerated crime is an aggravated felony irrespective of whether it violates federal, state, or foreign law. An immigration judge determined D’s arson conviction was an aggravated felony. The Board of Immigration Appeals affirmed. The Second Circuit denied review. The Supreme Court affirmed.

        A state offense counts as a Section 1101(a)(43) “aggravated felony” when it has every element of a listed federal crime except an element requiring a connection to interstate or foreign commerce; state crimes do not need a “jurisdictional hook.” U.S. Congress meant the term “aggravated felony” to capture serious crimes regardless of whether they are made illegal by the federal government, a state, or a foreign country. It is implausible that Congress viewed the presence of an interstate commerce element as separating serious from non-serious conduct.

Fifth Circuit

District court did not abuse its discretion in admitting Facebook and text messages against D; those messages were adequately authenticated under Fed. R. Evid. 901. United States v. Barnes, 803 F.3d 209 (5th Cir. 2015).

        Conclusive proof of authenticity is not required for the admission of disputed evidence. The jury holds the ultimate responsibility for evaluating the reliability of the evidence; regardless, any error in admitting the messages was harmless.

        (2) The district court did not abuse its discretion in permitting a person to testify who admitted to using methamphetamine on the morning of his testimony; persons are presumed to be competent to be a witness if they have personal knowledge of a matter and agree to speak truthfully. Nothing in the record cast doubt on the court’s threshold finding of competency; because the witness met the minimum threshold for competency to testify, any remaining issues with the credibility of his testimony were properly left to the jury.

        (3) For purposes of 21 U.S.C. § 856—maintaining a “place” for use in drug-related activities—the district court did not err in defining “place” to include not only a house but also the “yard area” to that house.

In alien-transporting case, district court did not err in applying a six-level enhancement under USSG § 2L1.1(b)(6) for intentionally creating a substantial risk of death or bodily injury; D knew the alien—who ultimately died of complications from diabetes—was sick, dehydrated, diabetic, and needed insulin, yet she did not seek medical attention and abandoned him at a rest stop. United States v. Muñiz, 803 F.3d 709 (5th Cir. 2015).

        Likewise, the district court did not clearly err in applying a 10-level enhancement under USSG § 2L1.1(b)(7) because D’s conduct was a but-for cause of the alien’s death.

In drug prosecution where case agent was permitted to offer both expert testimony and lay opinion tes­ti­mony respecting drug jargon, the district court inadequately differentiated between the agent’s lay and expert testimony; this error was harmless. United States v. Haines, 803 F.3d 713 (5th Cir. 2015).

        The district court also erred in permitting the agent to give lay opinion testimony about common words and language that were well within the province of the jury to interpret. Nevertheless, these errors were harmless.

        (2) In a drug-conspiracy case, the statutory minimum sentence for a given defendant is determined on the basis of the relevant quantity of drugs attributable to that individual defendant, not the quantity of drugs attributable to the conspiracy as a whole.

Texas death-sentenced D’s claim of cumulative error rendering his trial fundamentally unfair—made for the first time on federal habeas review—was unexhausted and also procedurally barred. Nickleson v. Stephens, 803 F.3d 748 (5th Cir. 2015).

        Raising individual claims does not also raise a claim of cumulative error based on the accumulation of those claims. Rather, this is a standalone claim that is subject to conventional exhaustion and procedural-default principles.

Court of Criminal Appeals

The oral term of the plea agreement was limited to unfiled cases that arose from the same facts as the cases to which D pled; the prosecution of a murder case unrelated to those cases was not barred by the oral term of the agreement. Williams v. State, No. PD-1124-15 (Tex.Crim.App. Sept 14, 2016, pet. ref’d).

        D pled guilty to two felony offenses. In addition to the written plea agreement, the parties orally agreed to a statement made by defense counsel. This statement, occurring at the plea hearing after defense counsel acknowledged the written terms of the agreement “in each case,” was: “And the State . . . is going to refuse prosecution of any other case in which the State has notice . . . unfiled cases.” D appealed that this oral part of the agreement was unambiguous and barred prosecution of an un­related murder case because the State had notice of it at the time. The State contended that this oral part was ambiguous and that affidavits from the attorneys involved showed that the plea agreement was not intended to encompass the murder case. COA agreed with the State and affirmed D’s murder conviction. CCA affirmed.

        “Defense counsel’s references to the ‘State’ and to ‘any other case’ appear to be imprecise language that, in context, was merely shorthand for the ‘McLennan County District Attorney’s Office’ and ‘any other case involving the defendant.’ But there is another way in which the phrase ‘any other case’ may be shorthand. It may be a reference to other cases that arise from the same facts as the cases that were pled. That is, the current cases involve certain offenses—an aggravated robbery and an aggravated assault. But future cases could involve other offenses that arose from the same transactions, unless the parties agree that the State will not prosecute such cases. . . . Moreover, the reference to ‘any other cases’ could have meant any cases involving offenses that occurred at about the same time. . . . There is no indication in the record of the plea proceeding that defense counsel sought to carefully parse an oral term of the plea agreement. . . . We do not hold that the above circumstances conclusively establish that the refusal-of-unfiled-cases term was case-specific (limited to offenses that arose from the same facts as the offenses to which appellant pled). We do, however, find the circumstances sufficient to establish ambiguity. . . . [O]nce we conclude that the oral term of the plea agreement was ambiguous, we must inexorably conclude that the more limited construction of the term is appropriate. The defense counsel in the prior cases, who was appellant’s agent, was the one responsible for the language used, and so the language must be construed against appellant. But even if that rule of construction did not work against appellant, defense counsel for those cases unequivocally stated that the murder case was not included in the plea agreement—thereby indicating that he did not intend the broad meaning to his words to which appellant now ascribes. The prosecutor likewise stated that the murder case was not included in the agreement. And there were offenses arising from the facts of the offenses pled that could have been later prosecuted absent the oral term of the plea agreement.”

Tex. Pen. Code § 21.12(a) prohibits a school employee from engaging in sexual contact with a student at the school; D was wrongly convicted because the record lacked evidence that D worked for complainant’s school and not only the school district. State v. Sutton, 499 S.W.3d 434 (Tex.Crim.App. 2016).

        D was charged with having an improper relationship between educator and student. The indictment alleged D was an employee of Caney Creek High School (CCHS) when he engaged in sexual contact or deviant sexual intercourse with G.T., a person enrolled at CCHS. D was convicted on all five counts. COA reversed, holding the record did not contain legally sufficient evidence for the jury to conclude that D worked at CCHS. CCA affirmed COA.

        Two parts of § 21.12(a)(1) implicated D’s sufficiency claim: whether D was “an employee of” and “work[ed] at” a public or private primary or secondary school where G.T. was enrolled. The evidence at trial showed D was employed by Conroe Independent School District (CISD) Police Department, not CCHS. Several other witnesses at trial, including G.T., supported D’s contention that he did not work for, or at, CCHS. D was not assigned to CCHS or to the feeder system in which CCHS was located. D officed at the CISD Police Department, not at CCHS. CCA said that while employees of a school are generally also considered to be employees of the school district overseeing that school, the inverse may or may not be true. Had D been assigned to CCHS or its feeder system, his status as an employee of the school would have been a closer call. There was evidence that CISD officers generally have “overlapping responsibilities” to respond to all the feeder systems in the school district, that D was assigned to be the mentor for the ser­geant of the Caney Creek feeder, that D supervised school district programs made available to students such as G.T., and that D would occasionally pick G.T. up after school when he was off duty. However, this evidence would not support a reasonable inference that D worked at CCHS. The State argued that the Texas Legislature intended § 21.12(a)(1) to apply to a broad class of school employees that included D. CCA said this argument ignored § 21.12(a)(2), which incorporates a specific list of school district employees to which the statute applies. Police officers are not included on that list. It is a general rule of statutory construction that the express mention of one thing is tantamount to an exclusion of others.

Tex. Health & Safety Code § 841.085(a) creates a single offense for violating a civil-commitment order, not a separate offense for each alleged way a violation occurred; thus, two of D’s three convictions violated dou­ble jeopardy. Stevenson v. State, 499 S.W.3d 842 (Tex.Crim.App. 2016).

        A jury convicted D of three counts of violating a sexually violent predator civil-commitment order. On appeal, D argued that (1) the trial court lacked jurisdiction; (2) the judge erred in denying his motion to quash, motion for directed verdict, and requests to admit certain evidence; and (3) double jeopardy barred his multiple convictions. COA upheld all three convictions and denied his remaining claims. CCA agreed, except for COA’s resolution of D’s double-jeopardy claim, and affirmed and vacated in part.

        U.S. Const. Amend. V “prohibits a second trial after the accused has already been convicted or acquitted of that crime and forbids multiple punishments for the same offense in a single prosecution. In a multiple-punishments case, like the one here, the double-jeopardy analysis hinges on whether the Legislature intended multiple punishments. . . . Double jeopardy is not violated if the Legislature intended the offenses to constitute ‘separate allowable units of prosecution.’. . . To determine the allowable units of prosecution, we first look to the gravamen of the offense. The gravamen of the offense can be the result of conduct, the nature of conduct, or the circum­stances surrounding the conduct. . . . In a circumstances-surrounding-the-conduct crime, different types of conduct may establish alternate methods of proving a single crime, as opposed to separate crimes, as long as the circumstances surrounding that conduct are the same. . . . [A] civil-commitment order violation is a circumstances-surrounding-the-conduct crime. . . . It is the very circumstance that the person has been adjudicated a sexually violent predator resulting in a civil-commitment order that renders otherwise innocent conduct criminal. . . . We next look at the evidence presented at trial to determine how many units have been shown and whether the evidence would actually support conviction and punishment under each theory of the offense. Having determined above that the evidence sufficiently supported Stevenson’s guilty verdict because the State demonstrated Stevenson was adjudicated a sexually violent predator, was subject to a civil-commitment order, and then violated that order, we conclude that the entry of three judgments violated Stevenson’s double-jeopardy right against multiple punishments. Therefore, Stevenson’s two additional judgments should be vacated because the statute creates a single offense for violating § 841.082’s requirements, not a separate, punishable offense for each alleged way that a violation occurred.”

Police were justified in patting down D for weapons, and finding heroin, because a reasonably prudent per­son considering all the circumstances would have been warranted in believing that his safety or that of others was in danger. Furr v. State, 499 S.W.3d 872 (Tex.Crim.App. 2016).

        D was charged with possession of a controlled substance after police found heroin on him while patting him down for weapons. He filed a motion to suppress, arguing the stop and frisk violated the U.S. Const. Amend. IV prohibition on unreasonable searches and seizures. The trial court denied the motion. D pled guilty and was sentenced to two years’ imprisonment. He appealed the denial of the motion to suppress. COA affirmed the trial court. CCA affirmed.

        Police had reasonable suspicion to detain and frisk D based on an anonymous tip, his presence at a location known for drug activity, and his nervous behavior. The officer’s observation that D appeared to be under the influence of a drug corroborated the tip sufficiently to support a brief investigative detention, and his failure to promptly respond to officer’s question about whether he was armed supported the protective frisk. “[T]he State argues that we should adopt a rule that it is per se objectively reasonable for the police to pat down a suspect for weapons if they are accused of possessing drugs. While it is true that we have held ‘it is objectively reasonable for a police officer to believe that persons involved in the drug business are armed and dangerous,’ we made that comment in the context of sellers of narcotics, not mere drug use. . . . And we decline the State’s invitation to extend that reasoning[.]”

A jury could have reasonably inferred that the syringe in an open compartment in D’s car was there when he was removed from the car and not put there later by one of the passengers. Tate v. State, 500 S.W.3d 410 (Tex.Crim.App. 2016).

        D was convicted of possession of a controlled substance under Tex. Health & Safety Code § 481.115. COA reversed, holding there was insufficient evidence to prove he intentionally or knowingly possessed the substance. CCA reversed COA and affirmed the trial court.

        The evidence was sufficient to prove D intentionally or knowingly possessed a syringe of methamphetamine found in the car he was driving because the compartment in which it was found was directly to the right of the driver’s seat and a detective’s testimony supported an inference that the passengers did not put the syringe in the compartment. COA improperly analyzed each circumstance of guilt in isolation without considering the cumulative force of all the evidence and focused on D’s innocent explanation that one of the passengers framed him. D’s statement that he owned the car was viewed in the light most favorable to the verdict, he was the owner of the vehicle, and it would be reasonable to infer that the owner-driver would be aware of items in his vehicle in plain view.

Court of Appeals

D’s aggravated kidnapping jury charge was egregiously harmful because it included only the deadly-force abduction method and omitted secreting or holding, allowing conviction on an unauthorized legal theory as the indictment alleged only secreting or holding, and the application paragraph did not require a finding of the elements of abduction as well as an aggravating intent. Uddin v. State, No. 14-15-00083-CR (Tex.App.—Houston [14th Dist] Nov. 10, 2016).

        “Although there is evidence in the record that supports each of the elements of aggravated kidnapping, the charge given the jury was not just incomplete—it was affirmatively misleading. The abstract portion of the jury charge authorized an aggravated kidnapping conviction based on an unalleged method of abduction. Moreover, the application paragraph charged a distinct, lesser offense: kidnapping. This was not an incidental omission or mistake, but went to the very basis of the case and exposed appellant to conviction of a specific offense without requiring the jury to reach a verdict on the essential elements of that offense as charged in the indictment. Nothing in the record alleviated this harm, and the State’s closing argument further misled the jury. . . . Having sustained this issue, we do not reach appellant’s additional complaints on appeal. Accordingly, we reverse the trial court’s judgment and remand the case for a new trial.”

Forensic Science in Criminal Courts: The PCAST Report

In 2015 President Obama tasked his Council of Advisors on Science and Technology (PCAST with the job of reviewing the forensic sciences, and determining if there were areas that could be improved. In October of this year they released their report—which has surprisingly generated little press. If you’re a criminal defense lawyer who tries cases, you need to read it.

The background for this report was the groundbreaking report issued by the National Academy of Sciences in 2009, which strongly criticized the use of forensics in criminal cases. The report—which was titled Strengthening Forensic Science—the Path Forward—pointed out that much of the testimony typically used in court had very little—if any—research backing it up. Despite the lack of research, experts routinely testified about the validity and reliability of their particular areas. For example, fingerprint examiners typically testified to almost 100% certainty (and in some cases they were that certain) that a fingerprint could have come from no one else. They made those claims even though there was no study that ever confirmed that.

The NAS report called for increased research and validation, and one of the reasons for the most recent report was to determine how well that was done. While the PCAST committee noted some improvement, there is still a lot to be desired.

The PCAST report focused on what they called “Forensic Feature-Comparison Methods.” They addressed two separate concepts. The first was “foundational validity,” which presents the following issues:

1.   Foundational validity requires that a method has been subjected to empirical testing by multiple groups, under conditions appropriate to its intended use. The studies must (a) demonstrate that the method is repeatable and reproducible, and (b) provide valid estimates of the method’s accuracy (that is, how often the method reaches an incorrect conclusion) that indicate the method is appropriate to the intended application.

2.   For objective methods, the foundational validity of the method can be established by studying measuring the ac­cu­racy, reproducibility, and consistency of each of its in­di­vidual steps.

3.   For subjective feature-comparison methods, because the individual steps are not objectively specified, the method must be evaluated as if it were a “black box” in the examiner’s head. Evaluations of validity and reliability must therefore be based on “black box studies,” in which many examiners render decisions about independent tests (typically involving “questioned” samples and one or more “known” samples) and the error rates are determined.

4.   Without appropriate estimates of accuracy, an examiner’s statement that two samples are similar—or even indistinguishable—is scientifically meaningless: it has no probative value and considerable potential for prejudicial impact.

The language alone should give you some ammunition for cross-examination. The report also states that “statements claiming or implying greater certainty than demonstrated by empirical evidence are scientifically invalid.” Chew on that for a while.

The other concept addressed was “validity as applied,” which involves two tests:

1.   The forensic examiner must have been shown to be capable of reliably applying the method and must actually have done so. Demonstrating that an expert is capable of reliably applying the method is crucial—especially for subjective meth­ods, in which human judgment plays a central role. From a scientific standpoint, the ability to apply a method reliably can be demonstrated only through empirical testing that measures how often the expert reaches the correct answer. Determining whether an expert has actually applied the method requires that the procedure actually have been used in the case, the results obtained, and the laboratory notes be made available for scientific review by others.

2.   The practitioner’s assertions about the probative value of proposed identifications must be scientifically valid. The expert should report the overall false-positive rate and sensitivity for the method established in the studies of foundational validity and should demonstrate that the samples used in the foundational studies are relevant to the facts of the case. Where applicable, the expert should report the probative value of the observed match based on the specific features observed in the case. And the expert should not make claims or implications that go beyond the empirical evidence and the applications of valid statistical principles to that evidence.

Here, they are talking about much more than the forensic test­ing used by most agencies. Testing must mimic real world conditions and be done in a way that the examiner does not know he is being tested.

The following is a summary of the disciplines that were addressed along with the recommendations and findings. This summary, of course, is no substitute for obtaining and reading the whole PCAST report. It is a relatively short read and available to download for free at https://www.whitehouse.gov/sites/default/files/microsites/ostp/PCAST/pcast_forensic_science_report_final.pdf.

DNA Analysis of Complex Mixture Samples

This is a complex issue, and if you have a case where the report involves a mixture, you need to consider getting an expert assist with the DNA portion of the case. Despite what most people think, this is not simply reading the results and reporting them. When more than one sample is involved, there are several decisions that must be made, and many of them are subjective. Basically, there are decisions that must be made by the analyst him/herself. Among those decisions include what markers to consider, and how to interpret them, as well as how many possible sources exist. The committee found that “subjective analysis of complex DNA mixtures has not been established to be foundationally valid, and is not a reliable methodology.”

If you have a case where DNA is an important part of the case and the results are reported as a mixture, you need to get an expert to review them.

Bitemark Analysis

The problems with bitemarks have already been pointed out by the Texas Forensic Science Commission (FSC). The FSC issued a report last year recommending that bitemarks not be used in court without further validation. Attempts to validate bitemarks have produced results showing that experts cannot even agree on the fundamental question of what is or is not a bitemark. The committee found that “bitemark analysis is far from meeting the scientific standards for foundational validity.” Hopefully, we have seen the end of this testimony. Again, if you have a case where a bitemark is central evidence, an expert is necessary to combat this testimony.

Latent Fingerprint Analysis

The committee found that fingerprint analysis is a “foundationally valid subjective methodology”—albeit with a false positive rate that is substantial and is likely higher than expected by many jurors, based on longstanding claims about the infallibility of fingerprint analysis.

Fingerprint examiners are fond of saying things like “no two people have ever been found to have the same fingerprint,” or “I’ve never made a mistake.” The implication is that fingerprint comparisons are extremely accurate. Like many other areas, those statements have never been validated. Until recently, there had been almost no effort to determine the accuracy of fingerprint comparisons. The few studies that have been done reveal an error rate far higher than most people expect. According to the PCAST report, the false positive could be as high as 1 error in 306 cases, based on an FBI study, and 1 error in 18 cases based on another study.

The committee made three recommendations to improve accuracy:

1)   Require examiners to complete and document their analysis before looking at any known fingerprints, and separately document any additional data used during their comparison and evaluation;

2)   Ensure that examiners are not exposed to any irrelevant information about the facts of the case before conducting their examination;

3)   Implement rigorous proficiency testing, and report those results for evaluation by the scientific community.

The committee also recommended additional studies to de­ter­mine the error rate for latent prints of varying qualities and completeness. In other words, the error rates for comparing poor quality prints as well as the error rates for comparing better quality prints.

This is an area where we need to do better at challenging experts. The depth of their knowledge—or lack thereof—about these studies should be explored, as well as the information they had when making their comparisons. We also need to ensure that juries are informed about error rates—which is most likely going to contradict common assumptions about the accuracy of fingerprint testing.

Firearms Analysis

The committee found “the current evidence falls short of the scientific criteria for foundational validity.” This is another area where there has been almost no legitimate effort to validate the accuracy of comparisons. The committee notes that an independent study funded by the Department of Defense established the error rate was most likely 1 in 66, and could be as high as 1 in 46. Unfortunately, the study was not published, and there are no studies that have been published in a peer-reviewed scientific journal. The committee recommended that such research be done; without it, there is no scientific support for the foundational validity of firearms comparisons. Studies are also needed to determine the reliability of such comparisons.

Hair Analysis

The committee noted the need for scientific studies to establish the reliability and validity of such comparisons. The FBI has admitted problems with hair comparison done by its examiners. The Texas Forensic Science Commission has also undertaken a review of cases where testimony about hair comparisons have been made. To date, the FSC has noted problems in the language used by examiners; instead of testifying that two hairs are “similar,” examiners have used language that suggests the two hairs are “identical” or come from the same source.

This is one of many disciplines that has been called into question by DNA testing. The committee noted that in 2002 the FBI used mitochondrial DNA analysis to look at 170 cases where microscopic comparison had been done. They found that in 11% of the cases, the examiners had reached the wrong result.

Conclusion

These findings may be surprising to most lay people, and probably even most lawyers. Most areas of forensics—e.g., fingerprints and DNA—have long been considered almost infallible. For years experts have been able to get away with claims that had no scientific support. Thankfully that is starting to come to an end.

As you might expect, the PCAST report has not been well received by prosecutors. The Justice Department has criticized many of the recommendations, and indicated it does not intend to follow them. With a new administration taking over, it is unknown how these issues will be addressed. However, the fact remains that the concerns pointed out by the committee, as well as the NAS, are valid. There has been little effort to validate these disciplines in a scientifically appropriate manner. That failure is not surprising, since a consensus could drastically change the use of forensics in criminal cases.

Law often lags science. It is up to us to ensure that “good” science is used in court. We can only do that by educating the prosecutors and judges. We can only do that by challenging the science, the experts, and their conclusions, and when the evidence is admitted, making sure jurors understand the error rates. If we continue doing our job, perhaps convictions based on “junk science” will become a relic of the past.

A Thorn in the Side of Forensic DNA: Complex Mixtures

The consultants are discussing your case. They are vigorously proclaiming how the case falls short, and you are feeling like a sure win is in the bag. Then you ask them how should we go at them in trial. It’s then that you hear things in a deflated tone like, “Well, what they did isn’t wrong, just not how I would have done it.” What happened to the fervor?

In forensic DNA, there are many ways of analyzing a case, and due to the variability from case to case, the guidelines are very flexible. Complex DNA mixtures is one area that can be subjective, resulting in differing outcomes. How confident are you the alleles in the profile are real and not artifacts like allele drop-in or drop-out? How confident are you in the number of contributors? How sure are you the alleles being attributed to people are theirs and not someone else’s? How do you know the person you’re putting together allele by allele is a suspect, and not an innocent bystander or not a person at all? There are many questions to consider when interpreting a complex DNA mixture profile. As such, this will always be a need for better resolution of the profile, better confidence in the testing results, and, especially with the increased sensitivity of DNA technology, a better understanding of what the results mean. As a result of the flexible guidelines, the consultant might have concluded differently, but the original analyst did nothing wrong. The subjectivity allowed in the interpretation is needed due to the differences between cases, but makes it more difficult to stand up and declare “You are wrong!”

So, with the complex DNA mixtures being such a thorn, why isn’t anybody working on it? The truth is they are and have been for quite some time. This past September the 2016 PCAST (President’s Council of Advisors on Science and Technology) went into critical detail on the subjective nature of interpretation issues regarding complex forensic DNA mixtures, and the overall need for more research to standardize the interpretation and statistical analysis. However, they are not the first to point out the issues (e.g., 2009 National Research Council), and in fact the industry has been working on these issues for some time, as can be seen in any Google search. As an example, in 2009 the Journal of Forensic Science published an article titled “Mixture Interpretation: Defining the relevant features for guidelines for the assessment of mixed DNA profiles in forensic casework,” one of many great papers discussing these same issues. The questions or doubts seem never ending because the same questions come back around with each advancement. For example, the industry has been developing probabilistic genotyping software. This is a great next step that could remove some subjectivity and help standardize profile interpretation. In time, though, as its use increases, errors will be discovered and issues will need to be resolved through research.

With continued research and continued growth, a whole new set of questions arises. As pointed out by the PCAST report, change can have significant implications. When, in 2015, the FBI made corrections to the population database, nobody suspected the changes would significantly alter the fate of cases. But some cases in Texas were found to have major changes, and thus the DNA Mixture Notification Subcommittee was formed. The committee found part of the problem was the subjectivity of concluding on a complex mixture; also contributing was a change in the statistics.

The forensic DNA analysis being done now is vastly different from what it was ten years ago, and ten years from now it will again be vastly different. While this is an easy concept to understand, the implications are a hard pill to swallow. Juries tend to believe forensic DNA is infallible, according to William Thompson’s paper, “The potential for error in forensic DNA testing,” published in 2008 for the Council for Responsible Genetics. Should cases be periodically re-examined? It has been shown that a shift in philosophy can have a significant impact on a case. If periodical re-examination is performed, how often or under what circumstances? Maybe a separate lab should be created for re-examinations so as not to disrupt or add more burden to labs working current cases? How significant of a change constitutes a new trial? How do you compensate someone who was legitimately convicted based on accepted and up-to-date science then, but now the science has changed and shed new light? Perhaps the answer is to view forensic results as a tool and not an answer. They offer a lead for investigators to follow up on, or validation of a story. Finding someone’s DNA profile on a piece of evidence does nothing to tell you when it was deposited or how it was deposited. Certainly, there are situations where someone’s DNA just shouldn’t be present, but a complete look at the case and scenario will always be needed when considering any evidentiary results.

As the forensic sciences evolve, these questions, doubts, and concerns will persist. Perhaps they should. When confronting them, the industry takes the next step towards perfection.

Lawyers Look Out: Judge May Not Pay for Your Work

If you take court-appointed cases, you know how to turn in a voucher requesting funds for your work. How often do you feel the pay you receive is adequate compensation for your work?

The Texas Indigent Defense Commission, in its report on attorney caseloads, issued an opinion about reasonably effective hours for indigent cases, and even broke it down by offense level.2 For example, on a Class B misdemeanor, they recommend anywhere from 8.6 to 11.7 hours required for “reasonably effective counsel.” If you are not turning in vouchers for Class B misdemeanors at an average of 8.6–11.7 hours, you are either failing to track your hours, or providing ineffective assistance of counsel. This rate applies to clients in custody, too, of course.

Track Your Hours, For Real!

The first step in this “How To” is a strong urge to adequately track your hours. Civil defense attorneys track every minute of every day they work. Criminal indigent defense attorneys should be, too. It’s a required task that comes with the career we chose. And it’s as simple as starting an Excel file to track it. When you forget to document hours worked, we all suffer. Judges across the state have no idea how long it takes to effectively defend criminal indigent cases, and they try to demand we do it quicker and quicker. When judges push to pay less for indigent defense, we are urged to cut hours on our vouchers, meaning either work for free or give our clients ineffective work. Every hour missed or not adequately reported by the defense attorney further allows the entire indigent defense system to be degraded. As defense attorneys, we must give effective counsel, and we must effectively track the hours spent on that counsel.

Why would anyone underreport hours? Sometimes, we live and die by staying in a judge’s grace to receive appointments. If you report too many hours, the judge will slash them and cut your pay, and may avoid giving you future appointments. It is often advised for attorneys to find that balance between doing good work and not asking for too much money. But, in our current state of a degraded indigent defense system, the judges continue to squeeze us to balance their budgets. The result: our clients’ lives and our bottom lines suffer.

Every next step in this article depends on the comprehensive and adequate tracking of the hours we spend on indigent cases. So, one more suggestion to this point: As you track your hours, your private descriptions for tasks do not have to match what you turn into the judge. As you work and track an hour, make a complete note about what you did, who you talked to, and why you did it. Then, when you turn in your voucher to the judge, you can edit your descriptions to preserve confidentialities. If you are later required to further justify the hours spent, you’ve got more than adequate documentation.

When the Trial Judge Denies or Cuts Your Requested Fees

A unique appeal process exists when your fee requests are denied in part or whole. In October of this year, an interesting case high­lighted this process, and the concurring opinion outlines the requirements.3 To start, a trial judge has 60 days after you turn in your voucher/request for fees to act on it.4 If s/he does not act, you treat it as if the judge denied all your funds, and move forward with the appeal process.

In the In re Perkins concurrence, three Court of Criminal Appeals judges suggest defense attorneys are required to obtain written findings about the denial of funds.5 The law states that the trial judge shall make these findings, but if they do not follow the law, the Court of Criminal Appeals apparently believes that defense attorneys are required to ensure the judge follows the law. Otherwise, the defense attorney will lose his appeal. The rational conclusion of this requirement is that it encourages judges to not follow the law. If they want to deny funds, they can simply fail to make written findings, giving the defense at­tor­ney whose funds are being denied yet another hurdle to overcome before being adequately compensated (another hurdle that must be overcome without compensation for that spent time, of course).

To ensure the judge makes written findings, the concurrence states a defense attorney must file “a written request that the required written findings be made. If, after such a request, the written findings still are not made, the judge is subject to a writ of mandamus that orders that written findings be made.”6 That writ is to be filed with the “presiding judge of the administrative judicial region, or by higher authority if the presiding judge fails to act.”7

Once—and if—the defense attorney successfully obtains the written findings, s/he must follow the statutorily created appeal process for the denial of funds. To appeal any denial or failure to act, you must first prepare a motion and file it with the trial court.8 You must obtain a certified copy of that motion and file it with the presiding judge of your administrative judicial region. That judge should have rules and procedures for this motion and how to file it with them.9

Once that motion has been filed, the trial judge is given an opportunity to modify the approved amount. If the trial judge does not modify, the presiding judge will issue a determination on whether your requested funds are to be paid. If the trial judge modifies and only approves partial payment of your request, the presiding judge will not make a decision on your motion unless you submit notice that you still desire to contest the remaining unpaid fees. You may request a hearing, and the presiding judge may conduct one. However, be warned, no basis for compensation for the hours worked to seek funds currently exists. So, preparation of this motion and any potential hearing are all expected to be done without compensation.10 In your Motion to Appeal Trial Court’s Disapproval of Requested Court Appointed Attorney’s Fee, it is advised to request written findings of fact from the presiding judge. It is not required they do so, and if not requested, you will likely not get any reason if the presiding judge denies your funds, even if the trial court failed to give reasons for denying your funds. Again, at this juncture, it is imperative you have and submit the most detailed documentation of your hours as possible, without compromising confidentialities and including detailed descriptions of the work performed.

If the presiding judge denies your compensation at this point, you can file a writ of mandamus with your court of appeals.11 If the court of appeals denies your funds, you can appeal the writ to the Court of Criminal Appeals.

Get Your Indigent Defense Fees in Ten “Easy” Steps!

Step 1: Adequately track your hours.
Step 2: Turn in vouchers/fee requests.
*Step 3: If denied or ignored, obtain written findings from the trial judge for reasons through a written request.
*Step 4: If denied or ignored, file a writ of mandamus to the presiding judge of your administrative judicial region asking the written findings be made.
*Step 5: If denied or ignored, appeal the writ to “higher authority.”
Step 6: Prepare a Motion to Appeal Trial Court’s Disapproval of Requested Court Appointed Attorney’s Fee (include required attachments from your Administrative Judicial Region’s rules).
Step 7: File the motion with the trial court and obtain a certified copy.
Step 8: File the certified copy with the presiding judge of your administrative judicial region.
Step 8.5: If the trial judge approves partial payment, you must provide the presiding judge notice that the partial payment did not resolve the issue, and you still wish to seek the full amount of requested fees.
Step 9: If funds are still denied, file a writ of mandamus to the court of appeals.
Step 10: If the writ is denied, appeal it to the CCA.

*New requirements, as suggested by In re Perkins concurrence.

Problems with the Current System

As one can see, this system is long, drawn-out, and complicated. Attorneys were involved, so that should be expected. However, more serious concerns with this system as it stands exist, and a few are worth mentioning anytime this system is discussed.

First, indigent defense compensation rates are inadequate from the start and discourage effective defense counsel. In Harris County, the fee schedule states a misdemeanor appointment pays $50–$90 an hour for court appearances. To be effective, de­fense attorneys must put in significant hours outside of court. Adequate investigation, consultation, and motion preparation all require time outside the courtroom to be prepared for each court setting. Often, this work is discouraged by adopted payment schedules. In Harris County, the misdemeanor out-of-court hourly rate is $25.00 an hour. Many rural counties in Texas have approved fee schedules that set out even lower rates. These rates are the plans that judges are supposed to follow. Unfortunately, when judges apply conceived discretion, as in the Perkins case, defense hours are often slashed and we are not even paid the low amounts the plans set out.

Second, courts often slash rates based on nothing. As we saw in Perkins, the trial judge, even throughout the appeals process, gave no rationale for her denial of fees, except that it was her opinion the fees were excessive. No basis for that opinion has ever been given. Judges control the budgets of their court. When money gets tight, as it often does, judges must look for places to squeeze. Unfortunately, an easy place to look is indigent de­fense funding. If judges can pressure a defense attorney into claim­ing fewer hours, working fewer hours, or just not appealing a partial denial of funds, their budget suddenly looks much better. Remember, these judges also control which defense attorneys receive appointments. It is all too easy to pressure an attorney to forego an appeal for funds, if they can feel more likely to receive appointments by staying in good favor with the judge. When a focus on budget brings that pressure to indigent defense, people’s lives are hurt and ineffective counsel is encouraged. Both the de­cision on compensation and the decision for which attorney to appoint should be removed from the judge’s table. Until that conflict of interest is resolved, injustice will continue, and the underpayment and non-payment of fees are just one example of that injustice.

Third, as briefly mentioned before, when a judge does deny a fee request, the time to remedy the situation is extremely lengthy and complicated. A defense attorney must spend many hours preparing the motions, filing, following up, etc. And now, Perkins suggests all onus of ensuring judges follow the law falls on the defense attorney! The defense attorney will not be paid for a single minute of that work. That takes more time away from other productive actions for often a solo practitioner. The true costs of this process get lost among all the different attorneys re­ceiv­ing appointments. But make no mistake, that cost is real and ultimately costs true justice.

Fourth, the decision in Perkins encourages trial judges to not follow the law. When they decide to cut an attorney’s hours, by law, they must give written findings for doing so. However, now, if a judge does not follow that law, the defense attorney is more likely to lose any appeal for his requested funds. That money will now more likely stay with the county, and help the judge with his budget. Court decisions should not encourage Texas judges to become ostriches with their heads in the ground, as much as some judges would like to play ignorant.

Fifth, and maybe most important, is the message this case sends about how Texas values indigent defense. Indigent defendants are usually the individuals in our society who struggle the most with mental health issues, unemployment, and addiction. They are the least, forgotten, and most vulnerable in our society. The appointed attorneys who represent these men and women are too often the last—or only—sign of hope in their lives. Each decision affecting this system makes a statement about how Texas should respond to this group of people. Unfortunately, per­petuating this system of conflicted judges, pay rates that discourage effective counsel, and nonpayment of fees to attorneys only pushes to keep our most vulnerable locked away forever.

When problems are pointed out, solutions should be sought. In this situation, the solution is very simple: Pay indigent defense attorneys for the hours they work!

Notes

1. In re Perkins, No. WR-85,009-01 (Tex. Crim. App. 2016)(J. Alcala dissenting). In the case highlighted in this article, Mr. Perkins was defending a capital case in which the state sought the death penalty. They didn’t get it.

2. Texas Indigent Defense Commission Guidelines for Indigent Defense Caseloads, January 2015: pages 1, 15–28.

3. In re Perkins, No. WR-85,009-01 (Tex. Crim. App. 2016).

4. Tex. Code Crim. Proc. Art. 26.05(c).

5. While this requirement does come from a concurrence, and was not pub­lished, Mr. Perkins in fact lost his appeal and this was the only reason offered by the court. Therefore, this author feels that if this step is not satisfied, you will lose opportunity for appellate review, making it, in fact, a true requirement now to be followed in all appeals of denial of funds.

6. In Re Perkins, No. WR-85,009-01 (Tex. Crim. App. 2016) (J. Johnson con­curring).

7. Id.

8. Tex. Code Crim. Proc. Art. 26.05(c).

9. Your Administrative Judicial Region judge may be found at http://www.txcourts.gov/organizations/policy-funding/administrative-judicial-regions/ (last visited on November 27, 2016).

10. Given judges’ growing hubris in denying funds, rising budget concerns in Texas counties, the need for independence in this process, and the current un­der­utilization of this increasingly complicated appeal process, attorneys could begin handling these appeals on a contingency basis on behalf of indigent defense attorneys.

11. However, the Thirteenth District Court of Appeals decision suggests that writ relief is not proper because a separate appeals process is in place, and the trial judge’s award of attorney’s fees is discretionary and not ministerial. In re Perkins, No. 13-16-00001-CR (Tex. App.—Corpus Christi 2016). It is not clear whether appellate courts would view this differently when a defense attorney compelled the trial judge to make written findings. A direct appeal of the presiding judge’s decision may be a remedy worth exploring.

Who Killed These Girls? Cold Case: The Yogurt Shop Murders

Who Killed These Girls? is a true story about Austin criminal defense lawyers fighting to save three defendants—Robert Springsteen Jr., Michael Scott, and Maurice Pierce—from death sentences resulting from false confessions. It is about determined police detectives and prosecutors who felt pressured by the public to arrest someone and send them to the death chamber, and the media who daily headlined every detail of the progress of the case. It is about the families of the girls who died, and how the decade-long ordeal affected their lives. It is also about arrogance and egos and awards and commendations. It is a case study in the navigation of a legally and factually difficult high-profile case.

Austin author Beverly Lowry, who had previously published six novels and three nonfiction works, takes the reader inside the meeting rooms and into the thinking of the actors, from the first detective on the scene to the judge who banged the final gavel, but first she takes us back in time to the town of Austin in 1991.

At 11:30 pm on Friday, December 6, four young women, ages 13 to 17, were closing the I Can’t Believe It’s Yogurt Shop in North Austin. Before midnight, before the girls could finish cleaning the tables, unknown persons entered the shop, raped the girls, shot them in the heads, set fire to the store, and disappeared into the night, never to be identified.

Lowry digs deep into the case to expose the investigative errors made by the police and prosecutors, critiques the various defendants’ attorneys for their missteps, and recounts Judge Mike Lynch’s decisions that resulted in the cases being reversed and eventually dismissed. She dedicates separate chapters to each victim, to each defendant, to each defense lawyer, to the judge, and to the stages of the police investigation. Lowry’s approach is more journalistic than literary, and she is unapologetically objective.

Lowry begins the account with Austin homicide detective John Jones, who launched an investigation the night of the murders that continued for five years and eventually included federal and state agents. It was an earnest but futile effort.

In 1996 the Cold Case unit, led by Detective Paul Johnson, took over the investigation. Lowry aptly names this investigation “The Paul Johnson Show,” which is what the Yogurt Shop Murder investigation became from that point on. Johnson was joined in his efforts by Detective Hector Palanco, who was later fired by APD for obtaining false confessions in other cases.

It wasn’t until 1999 that arrests were made of the three defendants and Forrest Wellborn, who was never charged. They were all in their early twenties by then. Although there was no physical evidence connecting any of them to the crime scene, two of them gave false confessions.

Lowry carefully analyzes the actions of the police and prosecutors during the Paul Johnson Show and attributes the blame for the investigative errors to Johnson’s “disease of certainty,” which was often based on unsubstantiated speculation.

Lowry puts the reader in the courtrooms to see Springsteen sentenced to death in 2001 and to follow Michael Scott’s trial, the longest-running criminal trial in Austin’s history.

Lowry’s writing is thorough if confusing at times. For instance, when mentioning dates she often gives only the month and day but not the year, which in a case that lasted over a decade can be confusing. In the chapter on Eliza Thomas, she doesn’t give the girl’s age (17) but informs us that she had “deep brown eyes and a wide, lush mouth . . .”

Still, the book is easily readable and holds one’s interest as it follows the investigative tactics and legal maneuvers that were necessary to extract confessions from innocent men and bring them to trial. At the end, Lowry allows the informed speculation of defense attorneys Carlos Garcia and Amber Farrelly about what really happened inside the Yogurt Shop that evening.

The question still left to be answered is, Who Killed These Girls?

The 10,000-Year Capital Case

I met the late Clarence Williams in 1972, when we were both involved as court-appointed lawyers for a defendant who was charged with the murder of a police officer.

The experience of working together in the case could not be described as particularly pleasurable, not only because of the nature of the charge, but also because the defendant was a little hard to work with, to say the least. He apparently believed his lawyers were in cahoots with the State, and we were showered with contumely by him (as Everett Dirksen might have said) as often as were the judge and the prosecutors.

A window to the judge’s office was broken as a result of a struggle between the accused and the bailiffs. For a time, the defendant was gagged. At the end of the trial, after the jury convicted the client, the judge, upset that the Texas capital punishment scheme had just been thrown out by the United States Supreme Court, sentenced the defendant to 10,000 years (an event that made Ripley’s “Believe it or Not”).

The judge later thought better of the sentence and reduced it to a more lenient 1,000 years. Some wags said the defendant got 100 years for what he had done and 900 years for breaking the judge’s window; either way, the final sentence was a full millennium.

All of which simply explains how I got involved in the defense of Arnold Madison.

One night in July 1975, an attractive young nurse named Bridget Ann Kelly, called Meg by her friends, was abducted from the parking lot of the Audie Murphy Veterans Hospital as she left after completing a shift about midnight.

There were bloodstains on the parking lot, and an old Buick was spotted driving away from that location in the parking lot. Two hospital employees, a lab technician, and a security guard said they got a good look at the driver of that car, and later identified Arnold Madison, a custodian at a local neighborhood center, as being that person. They also noted the license plate on the car, so that police were able to trace the ownership to Arnold Madison’s stepfather, whom they awakened before 3:00 a.m. He explained that he had sold the car to his stepson, and led the police to where Arnold Madison lived.

There at Arnold Madison’s house was the described Buick, and there were bloodstains in the rear seat area. After the police gained entry into the house, moreover, they found a pair of bloody pants soaking in a pail in the bathtub. A pair of men’s shoes from inside the house were shown to have human blood on them. Most damning of all were the wallet and its contents, which were in a garbage can just outside the door, partially burned and still smoldering but bearing numerous cards and the driver’s license belonging to Meg Kelly.

Of Miss Kelly, however, there was no sign.

Arnold Madison was taken to the San Antonio police station, where he told officers he had loaned his car and a pair of pants to another young man that evening, a guy named Edwin Taylor, or something like Taylor, whom he knew as “Smokey.” He said that Smokey had returned the car a couple of hours earlier, along with the pants, which he said he had thrown up on. Smokey had put the pants in the bucket in the bathtub at his request, Madison said.

Madison denied all knowledge of Miss Kelly’s disappearance, though the lieutenant in charge of homicide would later testify that he did tell him “You’ll never find the body.” (Curiously, though, that remark was not repeated by the lieutenant to his homicide officers or his superiors, and it did not appear in any report.) Neither the police nor either of two juries who heard Madison’s story believed it, but he was absolutely consistent from the first time he told it to the last.

As we all eventually learned to our horror, Miss Kelly had been stabbed several times and left, naked and in shock, to lie in the hot South Texas sun for four days before she was found. When found, however, to the immense relief and joy of the entire community, she was alive.

What is more, she was sufficiently lucid to be able to choose to be taken to the Methodist Hospital, rather than to the Bexar County Hospital, where trauma victims were normally taken, because she had several friends working at the county hospital she didn’t want to see her in her condition.

Every day of the four days Miss Kelly lay in the field (which, incidentally, was within a mile of the Veterans Hospital where she’d been abducted), citizens’ search parties were out combing the brush.

In the beginning, just a few were searching, but by the time she was found hundreds of people were looking for her. The entire community was caught up in her disappearance, and thus it was that everyone went to bed that night feeling a little better about the world because she had been found.

The next morning, however, the joy was replaced with a profound sense of loss, when we discovered that the combined effects of injuries, exposure, and shock had resulted in the death of Miss Kelly while we slept overnight.

Up to that point, I was simply another citizen, first concerned about the missing nurse, then elated when she was found, and finally saddened when her death was reported. My friend Clarence Williams, however, had become involved very early on, when the family of Arnold Madison asked him to go to the jail and talk to Arnold Madison, to find out whether he knew where the young woman was and, if so, to see if he would say where she could be found.

During the next several days, Arnold Madison was placed in a series of lineups, viewed by several women who had been the victims of sexual assault. Judge Jim Barlow had been contacted by the police, and had directed Clarence to be present at those lineups, to safeguard the defendant’s rights (and thereby make any identification made a proper and legally admissible identification at any ensuing trial). Clarence explained to Judge Barlow that he had not been retained to represent Madison, but by the family, merely to talk to him. Further, it was perfectly obvious that Madison was in a great deal of trouble, and neither he nor his family had the wherewithal to retain Clarence (or any other lawyer) in a case of this magnitude.

Judge Barlow’s view was that at least Clarence knew Madison and could talk with him, and thereupon appointed Clarence to represent the young man. Clarence spent the next several days running back and forth between his office and the police station lineup room.

Clarence was a good lawyer, but he was a general practice lawyer, and he knew Arnold Madison needed a criminal lawyer associated with the defense. Remembering our common experience three years earlier, he thought of me.

He secured Judge Barlow’s agreement to appoint another lawyer and came to see me. He was very straightforward about it; he was willing to remain on the case and to do everything he could to be of assistance, but he wanted me to take the lead.

I was, of course, flattered, but not excited at the prospect of handling a case that looked so open and shut for the prosecution. I liked Clarence, though, and greatly respected Judge Barlow, before whom I had appeared on a number of occasions. (He later became a very good friend.) I agreed to become involved.

We tried the case on a change of venue in Corpus Christi. Once the case was transferred there, one of Texas’ finest criminal defense lawyers, Doug Tinker, joined the defense team.

Trying the case with Doug was a learning experience, because he was one of the quickest and most inventive lawyers I have come to know. His skills and whatever Clarence and I brought to the case were not enough, however, and the jury both found Arnold Madison guilty and assessed the death penalty.

The death penalty procedures enacted by the Texas Legislature in 1973 are still largely intact. When the Madison case was tried in the spring of 1976, though, there were a lot of unanswered questions about it.

In particular, the statutes regarding the selection of jurors in capital cases raised a number of questions—which took several years to be ironed out on a case-by-case basis by the Texas Court of Criminal Appeals.

Due to error in the jury selection process and the error of a prosecutor in improperly commenting on Madison’s pretrial silence, the first trial was reversed.

A change of venue was likewise had for the second trial, this time to Houston. A Houston judge sat, and Clarence and I were alone for the defense. A conviction was again had and the death penalty again assessed.

Under the procedures in effect in Texas until September 1, 1981, the complete record of the trial was prepared for an ap­peal and then filed with the trial judge, who had an opportunity to grant a new trial rather than send the case forward to the Court of Criminal Appeals, if convinced that reversible error had occurred.

I went on the bench in November 1980, and David Chapman wrote the brief that resulted in the trial judge from the second trial granting a new trial, without forwarding the record to the Court of Criminal Appeals, on August 31, 1981, the last day Texas law permitted him to do so.

A third trial was held in Brownsville. The only participant in that trial who had been in the first trial was Bill Harris, an assistant district attorney who had been fourth “chair” (i.e., fourth from the lead prosecutor) in the first trial and second chair in the second trial, and who was lead prosecutor for the third and final trial.

This time the case stood up on appeal, including an appeal to the United States Supreme Court. In 1988, 13 years after the death of Meg Kelly, Arnold Madison was executed.

The police never believed Arnold Madison’s story about loaning his car and his trousers to ‘Smokey” that night, and neither did the jury in either of his first two trials. His lawyers in the third trial decided not to put him on the witness stand.

During jury selection for the first trial, a nurse at the University of Texas Health Science Center in San Antonio was abducted, dragged to a cellar-like area under the hospital, stabbed, raped, and left tied up, presumably to die. She was discovered within hours, however, and though severely traumatized, lived to identify her attacker.

His name was Edwin Tyler, and he worked at the Health Science Center as a custodian.

The Health Science Center is just up the street from the Audie Murphy Hospital. We subpoenaed Tyler to the first Madison trial, and though he was not called to testify (both sides being afraid of what his testimony might be), Tyler indicated he had never been known as Smokey and did not know Arnold Madison.

Arnold Madison, on the other hand, identified him as the self-same man to whom he had loaned his pants on the night of Miss Kelly’s abduction.

Look Here: 4th Amendment Musings

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Our ever-growing digital society has made non-reliance on technology almost impossible. There is an application that applies to every facet of life. With one swipe, a person can access millions of photos, bank information, years of dialogue, and so much more.

With the increase of digital usage, there are growing legal issues that arise. However, despite the number of upgrades in technology, the foundation of all search and seizure issues is the Fourth Amendment. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath and affirmation and particularly describing the place to be searched and the person and things to be seized.

A warrantless search is reasonable only if it falls within a specific exception to the Fourth Amendment’s warrant requirement. Before Riley, officers relied on the exception of a search incident to a lawful arrest to search cell phones and their contents. There were cases that led to the ruling in Riley v. California. The first was Chimel v. California, which allowed for a search incident to arrest limited to the area in the immediate control of the arrestee, where it is was justified by the interest in officer safety and preventing evidence destruction. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L.Ed. 2d 685.

The holding in Chimel was furthered with the holding in Robinson. Robinson was pulled over for a traffic violation, arrested, and then searched. During the search of a closed cigarette pack police found heroin. In Robinson the Court applied the holding in Chimel to the search of the cigarette pack on Robinson. The court in Robinson extended the holding in Chimel, in stating that the risks identified in Chimel are present in all arrests. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L. Ed.2d 427.

Despite the holding in Chimel and Robinson, the Riley court declined to extend their holdings. Rather, the justices found that the search of digital information on a cell phone does not further the government interest identified in Chimel, and implicates a substantially greater individual privacy interest than a brief physical search. Riley v. California, 134 S.Ct. 2473 (2014).

In the Riley case, two cases were consolidated for appeal to discuss whether the warrantless search of a cell phone incident to arrest was a violation of the Fourth Amendment. Police officers stopped Riley for driving with expired tags. Ultimately, officers discovered that Riley’s driver’s license was suspended. He was arrested, and the officers conducted an inventory search of his vehicle. During the search, officers found two handguns. Officers searched Riley, incident to the arrest, and seized Riley’s cell phone. Riley’s phone was a smartphone. On the phone, officers found evidence of gang affiliation and photos of Riley that allegedly connected him with a recent shooting. Based on the evidence found during the warrantless search of Riley’s phone, Riley was charged with firing at an occupied vehicle, assault with a semiautomatic, and attempted murder.

Riley was convicted on all three counts and received an enhanced sentence of 15 years to life in prison. The California Court of Appeals affirmed No. D059840 (Cal. App. Feb. 8, 2013), App. to Pet. for Cert. in No. 13-132, pp. 1a–23a. The court relied on the California Supreme court’s decision in People v. Diaz, 51 Cal. 4th 84, 119 Cal. Rptr.3d. 105, 244 P.3d 501 (2011), which held the Fourth Amendment permits a warrantless search of cell phone data incident to an arrest, so long as the cell phone was immediately associated with the arrestee person.

The second case that was combined within the Riley v. California appeal was regarding a defendant named Brima Wurie. In the Wurie case, a police officer conducting surveillance observed Wurie in a drug transaction. Wurie was arrested for his alleged conduct and taken into custody. Once Wurie made it to the police station, the officers seized his cell phone. Unlike Riley, Wurie did not have a smartphone. Wurie had a flip phone. While the police were in possession of Wurie’s phone, numerous calls were coming in. The log on Wurie’s phone identified the caller as “my house” on the phone. The officers also found photos of a woman and a child. The officers used the information obtained from Wurie’s phone to get a search warrant. When the search warrant was executed, 215 grams of crack cocaine, marijuana, drug paraphernalia, a firearm and ammunition, and cash were found. Wurie was subsequently charged with distributing crack cocaine, possessing crack cocaine with intent to distribute, and being a felon in possession of a firearm and ammunition.

Wurie moved to suppress the evidence obtained from the search warrant based on the evidence obtained being fruits of an unconstitutional search of his cell phone. The district court denied his motion and sentenced him to 262 months in prison. The First Circuit reversed the denial of the motion to suppress and vacated the relevant convictions. The First Circuit held that the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.

Digital data within a cell phone or stored on a computer does not present the same concerns as other evidence. In a majority of circumstances, a phone cannot be used as a weapon. More so, most digital devices have backups, which ease the concern regarding evidence destruction. The Court in Riley deciphered information on a cell phone from other evidence usually found on a person due to its personal nature. The court in Riley held that a warrant is generally required before a cell phone search. The warrant requirement is an important component of the Fourth Amendment.

Riley v. California requires officers—absent exigent circumstances—to obtain a search warrant, a huge victory and confirmation of the Fourth Amendment in a digital age. However, the issue that Riley does not address is the extent of the scope of the search. When officers obtain a search warrant for computer or cell phone files, they are primarily sent to peruse through the digital files of an accused looking for a needle in a haystack. The officers, in searching for responsive items to a search warrant, also have access to unresponsive documents that are private to the accused. The Fourth Amendment does not only prohibit unreasonable searches; it also prohibits general searches. The core historical role of the Fourth Amendment was to prohibit general warrants, which is a warrant that does not state in particularity where the warrant can be executed and what items the agents can search for or seize. Stanford v. Texas, 379 U.S. 476, 480-86 (1965).

In a digital age, the defense is faced with the need to protect our clients from unreasonable searches and seizure and the over seizure of information based on general search warrants.

January/February 2017 Complete Issue – PDF Download

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Features
27 | Forensic Science in Criminal Courts: The PCAST Report – By Walter Reaves
31 | A Thorn in the Side of Forensic DNA: Complex Mixtures – By Lydia McCoy
33 | Lawyers Look Out: Judge May Not Pay for Your Work – By Drew Willey
36 | Who Killed These Girls? Cold Case: The Yogurt Shop Murders – Book Review by Louis L. Akin
38 | The 10,000-Year Capital Case – By Judge Pat Priest
41 | Search & Seizure in the Digital Age – By Monique Sparks

Columns
6 | President’s Message
8 | Executive Director’s Perspective
10 | Editor’s Comment
12 | Off the Back
14 | Ethics and the Law
17 | Federal Corner
21 | Shout Outs

Departments
5 | CLE Seminars and Events
43 | Significant Decisions Report

President’s Message: Número Siete: Happy New Year! – By John A. Convery

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Well, it is official! The legislative session began on January 10, and there is already a flurry of activity in the Capitol as hundreds of bills have already been filed. As you know, TCDLA invests significant time, energy, and staff in legislative efforts. TCDLA pursues reform to criminal justice issues to ensure that our clients are protected from efforts to diminish their constitutional and statutory rights. We do that by proposing and advocating for changes to procedural and substantive issues, tracking and monitoring all of the bills that might impact our membership and our clients, and opposing any and all efforts to curtail our clients’ rights.

This is intense and detailed work. Often, as the session progresses and bills move in committees, we find ourselves mired in the specifics of the language proposed. Details like should the language be an “and” or an “or,” a “shall” or a “may”? We can even spend hours negotiating with prosecutors or lawmakers on the placement of a comma. We become so immersed in the picayune that we sometimes forget some of our core beliefs—the things that make us do this work and keep us committed and enthusiastic.

Lately, I have been thinking about some of those fundamental issues we care about deeply. We have already seen some bills filed this session that tear at those basic principles of fair play and threaten the values we hold dear—bills to criminalize using someone else’s idea of the “wrong” bathroom and those to increase the punishment on crimes solely on the basis of a person’s lawful residence. I was reminded of one of these fundamental principles when recently responding to an inquiry from a reporter. It made me want to refresh our collective memory about how we treat juveniles in Texas. Perhaps there is no aspect of promoting justice and the common good that is more significant than protecting those who make up the next generations—the children.

TCDLA strongly supports legislation that would keep teenage offenders in the juvenile justice system until the age of 18. Texas, as one of only 7 states that automatically sends 17-year-olds to adult court—and therefore to adult jails and prisons—is out of step with the majority of the rest of the country. We are increasingly in the minority as several states have increased the age to 18 recently.

We all know that many of young people facing criminal charges today represent a subset of our community that has been all too often marginalized and vulnerable. We see children coming from poverty, broken homes, or trauma. Children who have experienced or witnessed profound or persistent violence, had access to substandard education, or are experiencing undiagnosed or untreated mental health issues. In scores of these cases, the only difference between a chance at a productive life and a path of repeated criminal activity for these teenagers is the juvenile justice system and the services it provides.

It is widely known and accepted that those teenagers who stay in juvenile court are less likely to re-offend than those who are processed in the adult system. Due to services tailored to those young people—including mental health services, counseling and treatment related to substance abuse issues, access to services aimed at keeping teenagers in school, job skills, and training programs—the juvenile system is rightly focused on rehabilitation, as opposed to punishment. We also know via research and anecdote that the majority of offenses committed by this population are minor and nonviolent in nature. Data gathered by the Texas House of Representatives, released in October 2016, showed that the majority of the offenses committed by 17-year-olds in 2015 were low-level crimes. Nearly 44% of these offenses were for things like marijuana possession, theft, and liquor law violations.

In our view, there are only benefits to such a change in Texas. TCDLA believes that raising the age to 18 would dramatically increase the chances that this subset of teenagers will be rehabilitated and not recidivate. They would be in a system that is set up to address their treatment and educational needs while protecting them from older, more mature offenders who could model the type of behavior the juvenile system is dedicated to preventing.

While TCDLA will certainly continue to wordsmith every line in a proposed bill, each comma, semicolon, and period. We will focus on all the little details that could make a difference in how a statute is interpreted in courtrooms across the state. But while we do so, we—as a membership—can also reflect on some of the big issues, especially those policies that are just wrong. Like treating children as adults.

It is time for the Texas Legislature to recognize this reality and move on from a “one size fits all” method for dispensing criminal consequences. Raising the age is long overdue.

Executive Director’s Perspective: A Full Lineup – By Joseph A. Martinez

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The 85th Texas Legislature has started. Our legislative team is monitoring, testifying, and advocating for TCDLA members at the Capital. If you are a member, you are automatically enrolled in our Legislative Listserve. The legislative team: Andrea Keilen, Allen Place, David Gonzalez, Shea Place, Bill Harris, Mark Daniel, Susan Kelly, and Bobby Mims will be posting periodically to keep you informed of TCDLA’s position and activities. The listserve is for informational purposes only and cannot receive responses. If you have any questions or concerns regarding this session, contact Andrea Keilen, TCDLA General Counsel and Lobbyist, at or (512)646-2730.

Special thanks to our course directors, Bobby Barrera (San Antonio), Michael Gross (San Antonio), and Adam Kobs (San Antonio), for our 12th Annual Stuart Kinard Memorial Advanced DWI seminar held in San Antonio in November. Thanks to them and our outstanding lineup of speakers we had 96 attendees. Attend five TCDLA DWI seminars within two years and receive a DWI Warrior Certificate and order a DWI desk statue to highlight your training in specific DWI areas. TCDLA has five DWI seminars; don’t be confused with any other DWI seminar. Register for one of TCDLA’s today!

  • TCDLA/NCDD Mastering Scientific Evidence in DWI/DUI—March 23–24, 2017, New Orleans
  • TCDLA DWI Defense Project—May 5, 2017, Grapevine
  • TCDLA Top Gun DWI—August 18, 2017, Houston
  • TCDLA Stuart Kinard Memorial Advanced DWI—November 2–3, 2017, San Antonio
  • TCDLA Lone Star DWI—2018, Austin

Special thanks to our course directors, Heather Barbieri (Plano) and Mark Stevens (San Antonio), for our Sexual Offenses seminar held in San Antonio in December. Thanks to them and our great lineup of speakers we had 146 attendees.

Special thanks to our course directors, Nicolas Hughes (Houston), E. X. Martin (Dallas), Larry Renner (New Mexico), Rick Wardroup (Lubbock), and Philip Wischkaemper (Lubbock), for our CDLP 14th Annual Forensics seminar held in Houston in October. This seminar was initiated by Philip Wischkaemper (Lubbock) and Michael Charlton (Oregon) in 2002. They saw a need for training criminal defense lawyers in the science of forensics. Thanks to them, our course directors, and the forensics speakers, we had 111 attendees.

Special thanks to course director Mike Ware (Fort Worth) for the Innocence for Students seminar held in conjunction with our CDLP 14th Annual Forensics seminar. This is the 10th year we have held this training for the innocence clinics in Texas. For this edition we had 43 attendees.

Special thanks to our course directors, John Hunter Smith (Sherman) and Jaime Gonzalez (McAllen), for the Beating the Drum for Justice seminar held in McAllen in November. Thanks to them and our lineup of speakers we had 53 attendees.

The Beating the Drum for Justice seminar will be held in the following cities in the coming seven months. Every day our brother and sister lawyers throughout the State of Texas walk through those courthouse doors to obtain justice for their clients. This is a must-attend seminar for every lawyer who defends those accused of crimes in the State of Texas. This seminar offers a little bit of everything for both the new and experienced lawyer—from defending various criminal offenses, evidence, jury selection, open/closing statements, cross/direct examination, using technology in the courtroom, and ethics. Please join us as we beat the drum for justice and work towards obtaining that Not Guilty verdict—and a day of friendship and outstanding training. Register online or call (512)478-2514.

  • Waco: 4/7/2017, Heather Barbieri and Stan Schwieger
  • Tyler: 4/21/2017, Heather Barbieri and Kelly Pace
  • Wichita Falls: 4/28/2017, John Hunter Smith and Dustin Nimz
  • South Padre Island: 7/13–14/2017, Heather Barbieri, John Hunter Smith, and Bobby Lerma

Special thanks to our course directors, Rick Wardroup (Lubbock) and Ed Stapleton (Brownsville), for our Capital Trial/Mental Health seminar held in South Padre Island in November. Thanks to them and our speakers we had 79 attendees.

Special thanks to President Michael McCrum (San Antonio) of the San Antonio Criminal Defense Lawyers Association (SACDLA) for allowing CDLP to co-sponsor their Nuts and Bolts seminar held in San Antonio in November. Thanks to them and the great lineup of speakers we had 110 attendees.

Special thanks to our course directors, Patty Tress (Denton) and Chris Abel (Flower Mound), for the 9th Annual Jolly Roger seminar held in Lewisville in December. Thanks to them and the fabulous lineup of speakers, we had 86 attendees.

Special thanks to our course directors, Mark Griffith (Waxahachie), Michael Mowla (Cedar Hill), and Sarah Roland (Denton), for our 1st Annual Attacking Junk Science Seminar held in Austin in January. Thanks to them and the outstanding lineup of speakers we had 82 attendees.

Special thanks to Taly Jacobs, president of the Lubbock Criminal Defense Lawyers Association (LCDLA), for allowing CDLP to co-sponsor the 36th Annual Prairie Dog seminar held at the Texas Tech Law School in Lubbock. LCDLA and CDLP also put on a Nuts ’n’ Bolts seminar the day before Prairie Dog at the law school. LCDLA also put on a banquet on campus at the Alumni Center. Music for the event was provided by My Brother’s Uncle. They had over 200 attendees. TCDLA congratulates Ms. Jacobs and LCDLA for a very successful week of events. Keep up the good work.

TCDLA and LCDLA thank Dean Darby Dickerson of the law school for allowing us to use the facilities. This is the 10th year these events have been held at the law school. We hope this is a model for how TCDLA and local bars can work with law schools across Texas.

Does your local criminal bar need a speaker for your lunch or dinner CLE? Please call Melissa Schank at the home office (512)478-5214. CDLP has funds to provide a speaker, CLE, and snacks up to $500 while promoting your local bar. Rural Committee Co-Chairs Clay Steadman and David Ryan are also available to assist in your area.

Do you need CLE credit and can’t attend our seminar training? Please call the home office for a list of the DVDs and accompanying CLE credit. Online we have over 75 one-hour programs available to purchase and watch immediately.

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 or becoming an affiliate bar of TCDLA?  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.