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May 2017 - Page 2

Ethics and the Law: Hide & Seek


Joseph Connors has submitted this issue for discussion with the Ethics Committee. The issue is a recurring problem—prosecutors not disclosing evidence to the defense. The following is the question and responses from Keith Hampton, Larry McDougal, and Joseph Connors. Lawyer Connors has also provided motions that he files.

Sexual Assault Team ADA does not trust particular criminal defense attorney X (who has got­ten a dismissal or not guilty in 5 of 7 serious sexual assault indicted cases after 2013), so ADA fails in Defendant A’s case to provide Defendant A’s defense attorney X with information that the current case’s child victim “out cried” to same ADA of a new felony accusation against Defendant A, since ADA does not “trust” defense attorney X—after CPS officials ruled out that same accusation when ADA referred that accusation to CPS for investigation. ADA was on stand and testified, “We do not trust [defense attorney X], so I did not disclose any information about that ruled-out accusation against Defendant A.” Since the ruled-out accusation can be classified as a “false accusation,” did ADA violate any ethical rules or Brady v. Maryland and its progeny, given that certain false accusation testimony is admissible in Texas?

Above occurred in the last 30 days. DA’s team sees no problem here. What say thou?

– Joe Connors III

I understand that the same child accuser made an accusation subsequent to the current accusation that CPS “ruled out.” You want to know if the subsequent accusation and the fact that CPS ruled it out is Brady. Yes, it is. It was also a violation of Rule 3.09(d).

– Keith Hampton

Same child accuser made accusation for which Defendant A was indicted. Later, same child accuser is interviewed by ADA in preparing for trial. During that one-on-one interview (with no one else present), child made an additional sexual assault accusation against Defendant A regarding different date, time, and place than made the subject of the indicted offense and ADA’s file e-tendered Defendant A’s counsel under current Article 39.14, C.C.P.

Since CPS “ruled out” that subsequent accusation, ADA intentionally failed to inform counsel for Defendant A, since DA’s team does not trust that defense counsel, even after CPS “ruled out” and ADA no longer personally believes the most recent above additional sexual assault accusation is “true,” and since the child needs to be protected on “ruled-out” incident during cross-examination by Defendant A’s counsel.

Your writing about this “often occurring” issue will educate defense bar and district judge who read the Voice.

Remember other reasons that ADAs claim that the State need not disclose such above information is either because it is immaterial to case’s issues and is thus inadmissible under Tex. Evid. Rules 401 and 402, or because that ADA does not personally believe that new Rule 404(b) incident information is credible to that ADA.

What remedies does competent ethical defense attorney have?

Let presiding judge know?
Let elected DA know?
Let State Bar Grievance Committee know?

Then when the DA’s office starts to retaliate against that same defense lawyer, what options does that defense lawyer have when DA’s office threatens that defense attorney in another case (in the future after above child abuse case is disposed) with criminal prosecution for the slightest error in another case, starts giving terribly unfair plea bargain offers, refuses to make any plea bargains, clearly treating that same defense attorney differently than the treatment given other criminal defense attorneys practicing in that same county?

DA’s motto to remember: “What goes around comes around.” “If you stick my nose in the dirt, expect your nose to be stuck in the dirt first chance I get.”

– Joe Connors III

I was on the Bar Committee when 39.14 came out. The CDC takes Brady violations very serious. There is nothing in any rule or statute that has a “I do not trust the defense attorney” exception to Brady. My view is this is clearly covered under 39.14 under what must be produced. My recommendation is for Attorney X to file a grievance on the ADA.

– Larry P. McDougal

Motion from Larry McDougal can be found here.

Courts have held that if a complainant has made a prior false allegation of sexual assault, in some situations these statements may be admissible even though specific acts of misconduct are generally inadmissible. See Lopez v. State, 18 S.W.3d 220, 225–26 (Tex. Crim. App. 1991); Hughes v. State, 850 S.W.2d 260, 262–63 (Tex. App.—Fort Worth 1993, pet. ref’d); Rushton v. State, 695 S.W.2d 591, 594 (Tex. App.—Corpus Christi 1985, no pet.).

In Ex parte Miles, 359 S.W.3d 647, 669 n.22 (Tex. Crim. App. 2012), the court granted an 11.07 petition for writ of habeas corpus based on State’s violation of Brady v. Maryland, after saying:

We note that the undisclosed reports could have also led to other admissible evidence favorable to Applicant. While the State usually does not have a duty to turn over inadmissible evidence, the analysis might not end there. The Fifth Circuit has held that, if inadmissible evidence would give rise [**58] to the discovery of other admissible evidence or witnesses, the State does have a duty to disclose that evidence. United States v. Brown, 650 F.3d 581, 588 (5th Cir. 2011); United States v. Sipe, 388 F.3d 471, 485 (5th Cir. 2004); Sellers v. Estelle, 651 F.2d 1074, 1077 n.6 (5th Cir. 1981).

– Joe Connors III

Federal Corner: Cell Phones, Computers, Fingerprints, Decryption Orders, and Civil Contempt – By F. R. Buck Files Jr.


Last Spring, I came across an article from the Los Angeles Times written by Matt Hamilton and Richard Winton entitled “A New Frontier in Battle Over Digital Security.” 2016 WLNR 13156357 (April 30, 2016). Because I had been interested in whether individuals can be required to unlock their iPhones and iPads by having their fingerprints involuntarily placed on these devices, I kept the article for another day—which is today. The article reads, in part, as follows:

As the world watched the FBI spar with Apple this winter in an attempt to hack into a San Bernardino shooter’s iPhone, federal officials were quietly waging a different encryption battle in a Los Angeles courtroom.

        There, authorities obtained a search warrant compelling the girlfriend of an alleged Armenian gang member to press her finger against an iPhone that had been seized from a Glendale home. The phone contained Apple’s fingerprint identification system for unlocking, and prosecutors wanted access to the data inside it.

        It marked a rare time that prosecutors have demanded a person provide a fingerprint to open a computer, but experts expect such cases to become more common as cracking digital security becomes a larger part of law enforcement work. The Glendale case and others like it are forcing courts to address a basic question: How far can the government go to obtain biometric markers such as fingerprints and hair [emphasis added]?

* * *

        In the Glendale case, the FBI wanted the fingerprint of Paytsar Bkhchadzhyan, a 29-year-old woman from L.A. with a string of criminal convictions who pleaded no contest to a felony count of identity theft.

        She was sentenced in that case on Feb. 25 in a Van Nuys courtroom. Jail records and court documents show that about 45 minutes after Bkhchadzhyan was taken into custody, U.S. Magistrate Judge Alicia Rosenberg—sitting in a federal courtroom 17 miles away—signed off on the warrant for the defendant to press her finger on the phone. By 1 p.m., an FBI agent specializing in cybercrimes took her print, according to court papers.

        Why authorities wanted Bkhchadzhyan to unlock the phone is unclear. The phone was seized from a Glendale residence linked to Sevak Mesrobian, who according to a probation report was Bkhchadzhyan’s boyfriend and a member of the Armenian Power gang with the moniker of “40.” Asst. U.S. Atty. Vicki Chou said the search was part of an ongoing probe. She declined to comment further.

* * *

        George Mgdesyan, an attorney who has previously represented both Bkhchadzhyan and Mesrobian, said he was unsure why authorities were trying to unlock her phone. He said he was not representing Bkhchadzhyan in any federal criminal matter and believed the probe included hacking and possibly “other issues.”

I was reminded of that article when I read In re Application for a Search Warrant, ___F.Supp.3d___, 2017 WL 758218 (N.D. Ill. Feb. 16, 2017) [Opinion by United States Magistrate Judge M. David Weisman]. This case presents an attempted extension of what we saw in the LA Times article. Judge Weisman’s opinion reads, in part, as follows:

[An Overview of the Case]

The government has presented an application for a search and seizure warrant to seize various items presumed to be located at a particularly identified location (hereinafter “subject premises”). The warrant further requests the authority to seize various items (identified in Attachment B of the warrant application), including various forms of electronic storage media and computer equipment (hereinafter collectively “electronic storage media”).

* * *

[I]n its warrant application, the government also seeks the authority to compel any individual who is present at the subject premises at the time of the search to provide his fingerprints and/or thumbprints “onto the Touch ID sensor of any Apple iPhone, iPad, or other Apple brand device in order to gain access to the contents of any such device.” For the reasons set forth below, this aspect of the search warrant application is denied [emphasis added].

* * *

[The Issues Presented]

The issues presented in this warrant application are at the cross section of protections provided by the Fourth and Fifth Amendments. Essentially, the government seeks an order from this Court that would allow agents executing this warrant to force “persons at the Subject Premises” to apply their thumbprints and fingerprints to any Apple electronic device recovered at the premises. The request is neither limited to a particular person nor a particular device. And, as noted below, the request is made without any specific facts as to who is involved in the criminal conduct linked to the subject premises, or specific facts as to what particular Apple-branded encrypted device is being employed (if any).

[The Probable Cause Issue]

First, the Court finds that the warrant does not establish sufficient probable cause to compel any person who happens to be at the subject premises at the time of the search to give his fingerprint to unlock an unspecified Apple electronic device.

* * *

[The Self-Incrimination Issue]

Second, and in addition to the Fourth Amendment concerns articulated above, the Court believes that the government’s warrant application raises concerns under the Fifth Amendment’s protection prohibiting compelled self-incrimination. In its submission, the government argues that “[b]ecause depressing a fingerprint to a device results in no ‘testimonial communication’ it does not implicate the Fifth Amendment rights of the user of device . . . Here the finger is like the key to a strongbox, it is not a communication at all, let alone a testimonial one.” (Gvt. Mem. at 2) (citing Commonwealth v. Baust, 89 Va. Cir. 267 (Va.Cir.Ct. 2014)).

        The government is generally correct that the production of physical characteristics generally do not raise Fifth Amendment concerns.

* * *

However, courts have raised Fifth Amendment concerns where the production of information is compelled, and the production itself is deemed incriminating.

* * *

This concern of compelled production often arises in the context of grand jury subpoenas, where the production of requested information may have incriminatory value.

* * *

[Producing the Contents of the Phone]

In the instant case, the government argues that the presentation of a fingerprint is not testimonial because under Doe v. United States, 487 U.S. 201, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988), “[t]o be testimonial, an act must involve communication and ‘an accused communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.’” (Gvt. Mem. at 2.) Yet, the connection of the fingerprint to the electronic source that may hold contraband (in this case, suspected child pornography) does “explicitly or implicitly relate a factual assertion or disclose information.” Doe, 670 F.3d at 1342. The connection between the fingerprint and Apple’s biometric security system, shows a connection with the suspected contraband. By using a finger to unlock a phone’s contents, a suspect is producing the contents on the phone. With a touch of a finger, a suspect is testifying that he or she has accessed the phone before, at a minimum, to set up the fingerprint pass­word capabilities, and that he or she currently has some level of control over or relatively significant connection to the phone and its contents.

* * *

[The Uniqueness of the Cell Phone]

In fact, the Supreme Court has said “[t]he term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or news­pa­pers.” Riley v. California, ___U.S. ___, 134 S.Ct. 2473, 2489, 189 L.Ed.2d 430 (2014).

[The Fourth and Fifth Amendment Concerns]

The societal concerns of privacy raised in Riley provide an important backdrop to the issue presented in the instant case. The Riley court recognized that the modern-day cell phone, based in part on the personal and intimate information regularly stored on such devices, is subject to higher Fourth Amendment protections than other items that might be found on a person. The considerations informing the Court’s Fourth Amendment analysis of a cell phone’s role in modern-day life, we believe raise Fifth Amendment con­cerns as well. We do not believe that a simple analogy that equates the limited protection afforded a fingerprint used for identification purposes to forced fingerprinting to unlock an Apple electronic device that potentially contains some of the most intimate details of an individual’s life (and potentially provides direct access to contraband) is supported by Fifth Amendment jurisprudence.

[At Least the Government Was Candid]

In closing, upon presentation of the warrant application to this Court, the government identified for this Court that the warrant application was seeking the forced fingerprinting discussed herein.

* * *

[The Court Is Not Saying, “Never”]

This opinion should not be understood to mean that the government’s request for forced fingerprinting will always be problematic. In circumstances where the existence and nature of the electronic information sought is a “foregone conclusion,” Fifth Amendment jurisprudence tells us that the concerns noted above may be obviated. Similarly, under Fourth Amendment jurisprudence where there is an individualized showing more firmly establishing a connection between an individual and criminal conduct, the Fourth Amendment concerns raised herein may fall to the wayside. Indeed, after the execution of this warrant, the government may garner additional evidence that addresses both of these concerns such that the government can promptly apply for additional search warrants. We simply are not there yet [emphasis added].

My Thoughts

  • After I read the LA Times article, I called the lawyer in George Mgdesyan’s firm who had represented Bkhchadzhyan in the state case that resulted in his confinement. No Fourth or Fifth Amendment issue was ever raised on his behalf because no additional cases were filed against him.
  • Near the end of his opinion in In re Application for a Search Warrant, Magistrate Judge Weisman uses the term “foregone conclusion.” The “foregone conclusion rule” was enunciated in Fisher v. United States, 425 U.S. 391, 411 (1976), and recently cited in a Sixth Circuit case:

    Under this rule, the Fifth Amendment does not protect an act of production when any potentially testimonial component of the act of production—such as the existence, custody, and authenticity of evidence—is a “foregone conclusion” that “adds little or nothing to the sum total of the Government’s information.” For the rule to apply, the Government must be able to “describe with reasonable particularity” the documents or evidence it seeks to compel. United States v. Apple MacPro Computer, 851 F.3d 238 (3d Cir. 2017).

  • In Apple MacPro Computer, a panel of the United States Court of Appeals [Circuit Judges Jordan, Vanaskie, and Nygaard] affirmed the order of United States District Judge L. Felipe Restrepo of the United States District Court for the Eastern District of Pennsylvania holding John Doe in civil contempt for his failure to comply with an order of a Magistrate Judge (unnamed in the opinion) “requiring Doe to produce his iPhone 6 Plus, his MacPro computer, and his two attached external hard drives in a fully unencrypted state” [emphasis added].

    After federal agents, pursuant to a search warrant, had seized these devices, Doe voluntarily gave them the password for the iPhone; however, he refused to provide the passwords to decrypt the Apple MacPro computer or the external hard drives. The Magistrate Judge found that he had sufficient facts presented to him to conclude that “for the purposes of the Fifth Amendment, any testimonial component of the production of decrypted devices added little or nothing to the information already obtained by the Government. The Magistrate Judge determined that any testimonial component would be a foregone conclusion.” He entered his Decryption Order, and when Doe refused to comply, the Government filed a motion requesting that Judge Restrepo order Doe to show cause why he should not be held in civil contempt. After a hearing, he found Doe to be in civil contempt and ordered that he be held in custody until he complies with the Decryption Order.

  • So, now we have to worry whether federal agents can compel our clients to use their fingerprints to open their devices and about judges holding our clients in civil contempt for failure to provide these same devices in an unencrypted state. Wow! And we thought that we had interesting search issues before the era of cell phones and computers.

Shout Outs


A big Shout Out to Deandra Grant and Sandra Reynolds, who recently gave a 20-year-old mentally ill client back his life after a three-year ordeal. D, who’s being treated for obsessive compulsive disorder (OCD), ADHD, severe anxiety disorder, and panic attacks with twice-daily (6 a.m. and 2 p.m.) doses of Adderall and a small amount of Klonopin, was pulled over at 1:30 a.m. by an officer who claimed he was “weaving.” He was made to perform SFSTs despite no alcohol smell (SFSTs are only validated for alcohol intoxication). D’s balance was problematic and he was arrested for DWI—despite scoring 0 clues on the HGN. He told the officer he took his medicine that day as prescribed, and tried to explain that his car alignment suffered from an accident earlier in the day (showing him pictures of it on his phone). A blood test showed no ethanol, a small amount of amphetamine ,and a very small amount of clonazepam.

 At trial the State called two analysts from DPS Austin, the first testifying she reported the amphetamine in the low therapeutic range, matching up to D’s story about what meds he took and when, but she could not testify that the amount in his blood would have impaired him. The second analyst, who has a bachelors in biochemistry, did the analysis for clonazepam, which showed in the low therapeutic range. Deandra says that State attempted to have this highly unqualified individual with no formal training in pharmacology make some sort of argument that there was a synergistic effect when you take a CNS depressant and a stimulant. “His lack of knowledge about these two specific drugs was easy to impeach,” she says, “as well as his lack of preparation for trial. He had done no research on Adderall and Klonopin and had not even bothered to watch the video.”
 D’s diagnosing psychologist testified about his conditions. He had watched the video and went step by step through it, pointing out behavior that is consistent with individuals suffering from his issues. Defense further argued that D’s behavior was based on his medications wearing off as opposed to impairing him. The jury agreed and returned the big NG in 12 minutes. That’s showing how it’s done, counselors!

Kudos to TCDLA Director Jani Maselli Wood for what might be termed a little big win in the case of Salinas v. State. After 5 years of litigation and 14 briefs, along with 2 trips to the CCA, Jani was victorious in a case involving court charges to every defendant. In the decision, two of the court costs charged to defendants were found to be facially unconstitutional because the money was not used for court costs or even criminal justice purposes—one, in fact, actually deposited money into Texas’ general revenue fund. The CCA agreed that it violated the separation of powers. The ruling didn’t mean a big refund to her client in the case, but will ultimately result in millions of dollars saved for all Texas defendants, as these charges are assessed all defendants.

Member Rick Flores of Austin heard the two-word verdict in the kind of case you don’t see every day. D was charged with making a Terroristic Threat after a run-in at a restaurant with his former apartment complex manager, who had evicted him days earlier. The State alleged that after berating her and her co-worker with misogynistic and homophobic insults, D said “I’m going to kill you” and left the restaurant. Rick argued that his client was guilty of being an a**hole, but that he was not guilty of the offense because there was no intent to place anyone in fear of imminent injury. The jury deliberated for 35 minutes before agreeing. Jurors told him afterwards that reasonable doubt hinged on “intent” and “imminence,” noting complainant didn’t call police from the restaurant, but instead finished her meal, left the restaurant, and called the police to report that she was “terrified” two hours later. Congrats, Rick on the quick win.

Shout Out to Jason Luong of Houston on a recent victory in the First Court of Appeals in Lopez v. State, reversing a conviction on an Assault-Family Member charge. Jason, who acknowledged the able assistance of Renee Nguyen and Stephen Aslett, argued that the trial court erred in admitting into evidence the complainant’s out-of-court statements made in a 911 recording, in violation of D’s right to confrontation, and in complainant’s statements to a police officer, inadmissible as hearsay. The Court ruled that because complainant’s 911 statements weren’t testimonial, the trial court didn’t err in admitting them. But the Court agreed with Rick about complainant’s statements to the police officer, noting that she did not testify in the trial: “[W]e find no evidence in the record—nor does the State direct us to any—showing that the State made a good-faith effort to obtain Anderson’s presence at trial.” Because of the weight the State had attached to the statements of the police office, the Court sustained Rick’s second point. Congratulations on a job well done, guys.

A happy Shout Out to Houston attorney Pat McCann from Jani Maselli Wood upon the verdict in the game-changing case Moore v. Texas. In its decision, the Court held that the Briseno test employed by Texas courts was insufficient and often misused in diagnosing mental disability. As Jani notes, although Pat didn’t argue the case at the Supreme Court, he did the hearing that got it there. Jani represented Moore in the original 1980 case. Big win, y’all. Congratulations all around.