Monthly archive

August 2017

September 2017 SDR – Voice for the Defense Vol. 46, No. 7

Voice for the Defense Volume 46, No. 7 Edition

Editor: Michael Mowla

From editor Michael Mowla:

        1. I summarize each opinion in a manner that allows readers to generally use this SDR instead of reading every opinion.

        2. If you determine that a summarized opinion is relevant to one of your cases, I urge you to read the opinion and not rely solely upon these summaries.

        3. The summaries reflect the facts and relevant holdings and do not reflect my opinion of whether the cases correctly: (1) recite the facts presented at trial; or (2) apply the law. My opinions (if any) are preceded by “Editor’s Note.”

        4. This SDR is for you. Send me suggestions on how I may improve it.

Supreme Court of the United States

No significant decisions have been handed down by the SCOTUS since July 4, 2017. The Court is on summer recess.

United States Court of Appeals for the Fifth Circuit

United States v. All Funds on Deposit at Sun Secured Advantage Account Number *3748, Held at the Bank of NT Butterfield & Son Limited in Bermuda, 16-41164, 2017 U.S. App. LEXIS 13032 (5th Cir. July 19, 2017) (designated for publication)

        (1) Under 28 U.S.C. § 2466(a), a person charged with a crime is disallowed from using the resources of the courts in furtherance of a claim in any related civil forfeiture action if the district court finds that the person: (1) after notice or knowledge of the fact that a warrant or process has been issued for his apprehension, in order to avoid criminal prosecution (A) purposely leaves the jurisdiction of the United States; (B) declines to enter or reenter the United States to submit to its jurisdiction; or (C) otherwise evades the jurisdiction of the court in which a criminal case is pending against the person; and (2) is not confined in another jurisdiction for commission of criminal conduct in that jurisdiction.

        (2) Under the principles of international comity and the act of state doctrine, United States courts ordinarily refuse to review acts of foreign governments and defer to proceedings taking place in foreign countries. For the act of state doctrine to apply, a foreign authority must have decided the issues after hearing evidence.

United States v. Arrieta, 16-40539, (5th Cir. July 7, 2017) (designated for publication)

        (1) Under 18 U.S.C. § 922(g)(5)(A), it is unlawful for an alien who is illegally or unlawfully in the United States to possess a firearm or ammunition. “Illegally or unlawfully in the United States” means a person whose presence here is forbidden or not authorized by law.

        (2) Deferred Action for Childhood Arrivals (DACA) “is a form of prosecutorial discretion by which the Secretary deprioritizes an individual’s case for humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission.” It is “legally available so long as it is granted on a case-by-case basis” and “it may be terminated at any time at the agency’s discretion.”

        (3) To qualify for DACA, an individual must: (1) have arrived in the United States under the age of 16; (2) have continuously resided in the United States for at least 5 years prior to the issuance of the first DACA memorandum and have been present in the United States on the date of issuance; (3) be currently in school, have graduated from high school, have obtained a general education development certificate, or be an honorably discharged veteran of the Coast Guard or Armed Forces; (4) not have been convicted of a felony, a significant misdemeanor, multiple misdemeanors, or otherwise pose a threat to national security or public safety; (5) not be older than 30.

        (4) DACA “does not confer or alter any immigration status,” and “confers no substantive right, immigration status or pathway to citizenship” because “only Congress, acting through its legislative authority, can confer these rights.” Recipients of DACA relief are permitted to apply for work authorization.

        (5) Because DACA relief neither confers nor alters any immigration status, a DACA applicant may be convicted under 18 U.S.C. § 922(g)(5)(A) for mere possession of a firearm or ammunition that is otherwise legal to possess.

Editor’s Note: It is patently absurd that a DACA applicant may serve in our military (and in fact doing so is a qualifying fact for DACA relief), is entrusted with weapons capable of destroying buildings and causing mass casualties on the battlefield, and can win medals for valor, but when on leave or after honorary discharge, the applicant cannot possess a pistol or ammunition that would otherwise be legal to possess. This kid was not in the military, but he came here legally with his parents when he was two and was otherwise doing nothing wrong when stopped while in possession of a pistol and ammunition.

United States v. Fidse, 16-50250, 2017 U.S. App. LEXIS 12216 (5th Cir. July 7, 2017) (designated for publication)

        (1) The U.S.S.G. § 3A1.4 terrorism enhancement applies if the offense is a felony that involved, or was intended to promote, a federal crime of terrorism. Under 18 U.S.C. § 2332b(g)(5), a crime is a “federal crime of terrorism” if: (1) the crime of conviction is itself a federal crime of terrorism, and (2) the act is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government con­duct (intended to promote a federal crime of terrorism). Its application equals an automatic increase to an offense level of 32 and the maximum criminal history category of VI.

        (2) The U.S.S.G. § 3A1.4 terrorism enhancement does not hinge upon a defendant’s ability to carry out terrorist crimes or the degree of separation from their implementation, but it if the defendant’s purpose is to promote a terrorist crime, the enhancement is triggered.

        (3) An obstruction offense may support the U.S.S.G. § 3A1.4 terrorism enhancement under the “intended to promote” prong because although the relevant offense of conviction, conspiracy to make false statements, is not a crime of terrorism, when combined with other relevant conduct, it could qualify for the enhancement if it was intended to promote a federal crime of terrorism.

        (4) Where a defendant was not convicted of a federal crime of terrorism or the defendant’s relevant conduct did not include such a crime, for the U.S.S.G. § 3A1.4 terrorism enhancement to apply, a district court must: (1) identify which federal crime of terrorism the defendant intended to promote; (2) satisfy the elements of § 2332b(g)(5)(A), which requires that the offense be “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct”; and (3) “support its conclusions by a preponderance of the evidence with facts from the record.”

United States v. Jimenez-Elvirez, 16-40560, 2017 U.S. App. LEXIS 12331 (5th Cir. July 10, 2017) (designated for publication)

        (1) Under Jackson v. Virginia, 443 U.S. 307, 318–319 (1979), the jury’s verdict will be affirmed if a reasonable trier of fact could conclude from the evidence that the elements of the offense were established beyond a reasonable doubt, viewing the evidence in the light most favorable to the verdict and drawing all reasonable inferences from the evidence to support the verdict.

        (2) Under 8 U.S.C. § 1324(a)(1)(A)(v)(I), to convict for conspiracy to transport an undocumented alien, the Government must prove that the defendant: (1) agreed with one or more persons (2) to transport an undocumented alien inside the United States (3) in furtherance of his unlawful presence (4) knowingly or in reckless disregard of the fact that the alien’s presence in the United States was unlawful.

        (3) To prove conspiracy, the Government must prove that each conspirator knew of, intended to join, and voluntarily participated in the conspiracy. Elements of conspiracy may be established solely by circumstantial evidence, including the presence, association, and concerted action of the defendant with others. Mere presence at the scene of the crime or close association with a co-conspirator alone will not support an inference of participation in a conspiracy, but it is a significant factor to be considered within the context of the circumstances under which it occurs.

        (4) To prove aiding and abetting under 18 U.S.C. § 2, the evidence must show that the defendant “associated with the criminal venture, participated in it, and sought by his actions to make the venture succeed.” The evidence supporting a conspiracy conviction is generally sufficient to support an aiding and abetting conviction.

        (5) Intrinsic evidence is generally admissible, and its admission is not subject to Fed. Rule Evid. 404(b). Evidence is intrinsic when the evidence of the other act and the evidence of the crime charged are “inextricably intertwined” or both acts are part of a “single criminal episode” or the other acts were necessary preliminaries to the crime charged.

        (6) Under Fed. Rule Evid. 404(b)(1), evidence of prior crimes, wrongs, or other acts is not admissible to prove the defendant’s character to show that the defendant acted in conformity with that character on the occasion at issue. Under Fed. Rule Evid. 404(b)(2), such evidence may be admissible for proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

        (7) To determine admissibility under Fed. Rule Evid. 404(b)(2), the Beechum test [see United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc)] provides that the court must determine whether the evidence: (1) is relevant to an issue other than the defendant’s character (similarity of extrinsic act to the offense charged and amount of time that separates the extrinsic and charged offenses); and (2) possesses probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of Fed. Rule Evid. 403 (the more closely the extrinsic offense resembles the charged offense, the greater the prejudice to the defendant, but the probative value of extrinsic evidence of similar crimes is great when the defendant based his defense on a claim that he was merely in the wrong place at the wrong time.).

        (8) If a defendant pleads not guilty in a conspiracy case, the first prong of the Beechum test is satisfied because the entry of the plea raises the issue of intent to justify the admissibility of ex­trinsic offense evidence.

United States v. Reyes-Ochoa, 15-41270, 2017 U.S. App. LEXIS 11706 (5th Cir. June 30, 2017) (designated for publication)

        (1) To reverse on plain-error because the issue was not preserved before the district court, the reviewing court must find: (1) a legal error that has not been intentionally relinquished or abandoned; (2) the error must be clear or obvious; (3) the error must have affected the appellant’s substantial rights; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

        (2) To determine whether a conviction qualifies as a crime of violence, courts use the “categorical” and “modified categorical” approaches. Under the categorical approach, the court lines up the elements of the prior offense with the elements of the generic [enumerated] offense to see if they match. If the elements of the prior offense cover conduct beyond what the generic offense covers, then it is not a qualifying offense. The categorical approach does not consider the conduct of the defendant in committing the offense, but is limited to the conviction and the statutory definition of the offense.

        (3) If a statute is “indivisible,” it enumerates various factual means of committing a single element, and the categorical approach is used.

        (4) Under Mathis, 136 S.Ct. at 2251–2254, a statute is divisible (and subject to the modified categorical approach) only if it creates multiple offenses by listing one or more alternative elements (as opposed to merely listing alternative means of satisfying an element). The difference is that a trier of fact must agree on one of multiple elements that a statute lists versus not agreeing on the same alternative means so long as the trier of fact concludes that the defendant engaged in one of the possible means of committing a crime.

        (5) If a statute is “divisible,” meaning it sets out one or more elements of the offense in the alternative, the court applies the modified categorical approach to narrow an offense that otherwise would not be a categorical match with an enumerated offense. Descamps, 133 S. Ct. 2276, 2281 (2013).

        (6) Under the modified categorical approach, a court looks at “Shepard documents”: indictment or information, terms of a plea agreement, or transcript of the plea hearing in which the factual basis for the plea was confirmed by the defendant. This occurs if state law fails to provide a clear answer to the means or elements question, and the “Shepard documents” are reviewed only to determine whether the listed items are elements of the offense. If the Shepard documents reiterate all the terms of the law, then each alternative is only a possible means of commission, not an element that must be proved.

Panetti v. Davis, 14-70037, 2017 U.S. App. LEXIS 12390 (5th Cir. July 11, 2017)

        (1) Under 18 U.S.C. § 3599(a)(2), in any post-conviction proceeding under 28 U.S.C. § 2254 or 2255 seeking to vacate a death sentence, a defendant who is financially unable to obtain adequate representation or investigation, expert, or other necessary services shall be entitled to the appointment of one or more attorneys because congress contemplated that the prisoner on death row would have the assistance of paid counsel to prepare a federal habeas petition. This entitlement to paid counsel is absolute unless potential procedural bars would “indisputably” foreclose habeas relief.

        (2) Under 28 U.S.C. § 2254(b)(1)(A), a state prisoner must exhaust all state remedies to be entitled to habeas review. But under 28 U.S.C. § 2254(b)(1)(B)(ii), where “circumstances exist that render the state process ineffective to protect the rights of the applicant,” a federal court may address the claims absent ex­haustion.

        (3) Under 18 U.S.C. § 3599(f), the court may authorize the defendant’s attorneys to obtain such services on behalf of the defendant upon a finding that investigative, expert, or other ser­vices are reasonably necessary for the representation of the de­fendant. A district court may deny an inmate’s request for funds to pursue federal habeas relief when a petitioner has: (1) failed to supplement his funding request with a viable constitutional claim that is not procedurally barred, or (2) when the sought-after assistance would only support a meritless claim, or (3) when the sought-after assistance would only supplement prior evidence.

Editor’s Note: This is the best opinion I have read in a long time. With these comments, Judge Higginbotham again shows why he is the best judge on the Fifth Circuit:

        (1) Process matters, and gives rise to the aged observation that, in the law, the shortest distance between two points is seldom a straight line. Truncated hearings and exacting strictures can squeeze the life from due process, while perversely creating years of delay, all for a refusal to give a few days of time—this most seriously so when the issue is not whether a defendant is mentally ill, but the more subtle reaches of his disability. There is no justification for executing the insane, and no reasoned support for it, as only a glance at the brief of amici—filed by able and fervent citizens spanning the spectrum of political views—will confirm.

        (2) Panetti’s counsel, Greg Wiercioch, has, in our best traditions, served his client for years with limited resources and time. To refuse to give him the time and resources critical to review Panetti’s present condition is error, borne of understandable but nevertheless error-producing frustration over the delay baked into our death penalty jurisprudence—with its twists and turns between two sovereigns.

        (3) Delivery of due process protects the prisoner, and in doing so, protects us all.

Texas Court of Criminal Appeals

Ash v. State, PD-0244-16, 2017 Tex. Crim. App. LEXIS 579 (Tex. Crim. App. June 28, 2017) (designated for publication)

        (1) If the record contains evidence that a witness may have been an accomplice, the issue should be submitted to the jury to decide whether the witness was an accomplice as-a-matter-of-fact.

        (2) A witness is an accomplice as-a-matter-of-law in the following situations: (1) the witness has been charged with the same offense as the defendant or a lesser-included offense; (2) the State charges a witness with the same offense as the defendant or a lesser-included of that offense, but dismisses the charges in exchange for the witness’ testimony against the defendant; and (3) the evidence is uncontradicted or so one-sided that no reasonable juror could conclude that the witness was not an accomplice (court uses phrases like could have been charged, susceptible to prosecution, the evidence clearly shows, or there is no doubt).

Ex parte Bowman, PD-0208-16, 2017 Tex. Crim. App. LEXIS 582 (Tex. Crim. App. June 28, 2017) (designated for publication)

        (1) Under Strickland v. Washington, 466 U.S. 668, 687 (1984), to prove IATC, an applicant must show by a preponderance of the evidence that: (1) trial counsel’s performance was deficient by showing he failed to satisfy an objective standard of reasonableness under prevailing professional norms, with reasonableness assessed under the circumstances of the case viewed as of the time of counsel’s conduct and under the totality of the representation; and (2) he was prejudiced by the deficient performance.

        (2) An IATC claim must identify with particularity the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.

        (3) A trial counsel’s strategic decisions must be informed by a reasonable preliminary investigation. A decision not to investigate an issue must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments. Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.

Ex parte Ingram, PD-0578-16, 2017 Tex. Crim. App. LEXIS 588 (Tex. Crim. App. June 28, 2017) (designated for publication)

        (1) Pretrial habeas, followed by an interlocutory appeal, is an extraordinary remedy. This remedy is reserved for situations in which the protection of the applicant’s substantive rights or the conservation of judicial resources would be better served by interlocutory review. Except when double jeopardy is involved, pretrial habeas is not available when the question presented, even if resolved in the defendant’s favor, would not result in immediate release. And, pretrial habeas is generally unavailable when the resolution of a claim may be aided by the development of a record at trial. The only recognized exception to the general prohibition against record development on pretrial habeas is when the constitutional right at issue includes a right to avoid trial, such as the constitutional protection against double jeopardy.

        (2) Ordinarily, a facial challenge to the statute defining the offense can be brought on pretrial habeas, such as an overbreadth challenge. However, anti-defensive issues (an issue that benefits the State’s position in the case but is not something the indictment required the State to prove from the outset, such as voluntary intoxication) may not be brought on pretrial habeas corpus because it is not law applicable to the case.

        (3) Overbreadth is a First Amendment doctrine that allows a facial challenge to a statute even though the statute might have some legitimate applications. The overbreadth of a statute must be substantial, not only in an absolute sense, but also relative to the statute’s plainly legitimate sweep. To be overbroad, a statute must prohibit a substantial amount of protected expression, and the danger that the statute will be applied in an unconstitutional manner “must be realistic and not based on fanciful hypotheticals. The person challenging the statute must demonstrate from its text and from fact that a substantial number of instances exist in which the statute cannot be applied constitutionally.

        (4) In an overbreadth analysis, a court must construe the statute with the plain meaning of its text unless the language is ambiguous or the plain meaning leads to absurd results that the legislature could not have possibly intended. In determining plain meaning, a court may consult dictionary definitions and read words in context applying rules of grammar and giving effect to every word in the text if reasonably possible. Text in a statute is ambiguous if it may be understood by reasonably well-informed persons in two or more different senses. If the text is ambiguous or the plain meaning leads to absurd results, a court may consider extratextual factors including the object sought to be attained, the legislative history, and the consequences of a construction. If possible, a court must employ a reasonable narrowing construction to avoid a constitutional violation.

        (5) Tex. Penal Code § 33.021(c) is not facially unconstitutional because it is designed to protect children from sexual exploitation, not merely “speech.” It proscribes only those communications that are intended to cause certain types of individuals to engage in sexual activity, who are those whom the actor believes to be under age 17 and those who represent themselves be under age 17, when the actor is more than three years older than the believed or represented age. When a person represents herself to be under age 17, the actor who solicits such a person will ordinarily be aware of a substantial risk that the person is underage.

Long v. State, PD-0984-15, 2017 Tex. Crim. App. LEXIS 589 (Tex. Crim. App. June 28, 2017) (designated for publication)

        (1) In reviewing the legal sufficiency of the evidence to support a conviction, a reviewing court considers whether any rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt by viewing the evidence in a light most favorable to the prosecution by resolving any factual disputes in favor of the verdict and deferring to the fact-finder regarding the weighing of evidence and the inferences drawn from basic facts. In some cases, a legal-sufficiency issue turns upon the meaning of the statute under which the defendant is being prosecuted: Does certain conduct constitute an offense under the statute.

        (2) Under Tex. Penal Code § 16.02(b)(1), a person commits a crime if she “intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept a wire, oral, or electronic communication.” Under Tex. Penal Code § 16.02(b)(2), a person commits a crime if she “intentionally discloses or endeavors to disclose to another person the contents of a wire, oral, or electronic communication if the person knows or has reason to know the information was obtained through the interception of a wire, oral, or electronic communication in violation” of Tex. Penal Code § 16.02(b).

        (3) Tex. Penal Code § 16.02 incorporates definitions in Tex. Code Crim. Proc. Art. Section 18.20: “Oral communication” means “an oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation. “Intercept” means “the aural or other acquisition of the contents of a wire, oral, or electronic communication using an electronic, mechanical, or other device.” “Contents” when used with respect to a wire, oral, or electronic communication, “includes any information concerning the substance, purport, or meaning of that communication.”

        (4) Affirmative defenses to Tex. Penal Code § 16.02 are: if a party to the communication recorded it, and someone who intercepts an oral communication has an affirmative defense if one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing an unlawful act, and a parent may vicariously consent on behalf of his or her child to a recording of the child’s conversations so long as the parent has an objectively reasonable, good-faith basis for believing that recording the conversations is in the child’s best interest.

        (5) A person has an expectation of privacy in a place if: (1) the person, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” meaning that he seeks to preserve [something] as private; and (2) the person’s subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable,’” meaning whether when viewed objectively, the expectation of privacy is “justifiable” under the circumstances.

        (6) Courts look to a variety of factors when deciding whether a person has a reasonable expectation of privacy in a place or object searched, such as whether: (1) the person had a proprietary or possessory interest in the place searched; (2) the person’s presence in or on the place searched was legitimate; (3) the person had a right to exclude others from the place; (4) the person took normal precautions, prior to the search, which are customarily taken to protect privacy in the place; (5) the place searched was put to a private use; and (6) the person’s claim of privacy is consistent with historical notion of privacy.

        (7) A locker room is not a classroom. Unlike a department-store dressing room, where there is no legitimate expectation of privacy if there is a sign informing the patron that the dressing room was under surveillance, in a school locker room, a person has a subjective expectation of privacy that society is prepared to regard as objectively reasonable.

Editor’s Note: I understand the TCCA’s real concern here, which is that we do not want people making video recordings in locker rooms where children may be. What if C.L.’s phone recorded the girls changing, and this recording was disseminated? On the other hand, I understand that a parent may want to know what is going on with their kids, including in the locker rooms. If a parent suspects that her child is being abused or bullied in the locker room, do we prosecute that parent for making a recording to turn into the police as evidence? Perhaps the legislature should amend Tex. Penal Code § 16.02 to exclude situations where the intent of the person making the recording is to capture evidence of a crime or other misfeasance.

Prichard v. State, PD-0712-16, 2017 Tex. Crim. App. LEXIS 586 (Tex. Crim. App. June 28, 2017) (designated for publication)

        (1) Deadly-weapon findings apply only where the “victim” is a human.

        (2) In a review of the legal sufficiency of the evidence to sup­port a deadly-weapon finding, a court examines the statutory requirements necessary to uphold the conviction or finding by determining the meaning of statutes de novo. A court interprets statutes by effectuating the collective intent or purpose of the legislators who enacted the legislation by focusing on the literal text of the statute and attempts to discern the fair, objective meaning of the text at the time of its enactment. The court applies the plain meaning of a term if the statute is clear and unambiguous, and reads words and phrases in context and construe them according to the rules of grammar and common usage. But when a statute is ambiguous or its plain language would lead to absurd results not possibly intended by the legislature, a court may consult extratextual factors, including legislative history.

        (3) Extratextual factors of determining a statute’s intent are the: (1) legislative history, (2) objective of the statute, and (3) consequences of a construction.

Editor’s Note: Although I agree that deadly-weapon findings should be reserved for acts of misfeasance against other humans, as the owner of three dogs (German Shepherd, Rottweiler, and Pit Bull mix), I believe it takes a “special” kind of person to hit a dog on her head with a shovel and drown her under the pretense of “disciplining” her. I am curious to see how brave this person would be with the shovel if he tried to “discipline” this handsome 160-lb Presa Canario. I would not interfere in the exchange.

Texas Courts of Appeals

Alberty v. State, 06-16-00204-CR, 2017 Tex. App. LEXIS 6348 (Tex. App. Texarkana July 11, 2017) (designated for publication)

        When an exhibit contains both admissible and inadmissible evidence, the burden is on the objecting party to specifically point out which portion of the evidence is inadmissible. Otherwise, error is waived.

        Sufficient evidence linked appellant to the previous convictions.

Social Media Evidence

I. Introduction

On October 17, 2009, at 11:49 a.m., Rodney Bradford posted “ON THE PHONE WITH THIS FAT CHICK . . . WHERER MY IHOP” on Facebook.2 At the same time, a few miles away, an armed robbery was happening. Bradford’s post, intended for his pregnant girlfriend, ended up saving him when it proved his whereabouts at the time of the robbery.3

Social media evidence is coming to a courtroom near you. A study done by the Pew Research Center (PRC) revealed that 85% of adults are internet users and 67% are smartphone users.4 Of those, 72% of online adults use Facebook, representing 62% of all American adults.5 And just when you thought social media could not possibly get any more popular, PRC reports, “the proportion of Instagram, Pinterest, and LinkedIn users who use each respective site daily has increased significantly since September 2014.”6 Consequently, we as criminal lawyers must know how to capture, admit, and challenge social media evidence in our cases.

II. How to Obtain Social Media Evidence

A. The Stored Communications Act

The biggest obstacle for litigants trying to obtain social media evidence is the Stored Communications Act (SCA) of 1986.7 The SCA prohibits:

1. “electronic communication service[s]”—like Facebook, MySpace, Twitter, and Snapchat8— from
2. knowingly divulging
3. “the contents of a communication”
4. “to any person or entity.”9

As an issue of first impression, a California federal district court held private messages, comments, and wall postings were protected by the SCA.10 Consistent with this holding, Facebook says the “contents of a communication” includes “messages, timeline posts, comments, photos, and videos.”11 So Facebook refuses to provide them except when required.

Due to its age, courts have complained about the inapplicability of the SCA.12 Because it was written prior to the arrival of the internet and the World Wide Web, courts have struggled to analyze problems involving modern technology like Facebook, Instagram, and Snapchat.

This may soon change. In February 2017, the House of Representatives passed the Email Privacy Act.13 It would amend 18 U.S.C. 2702, 2703, 2705 to eliminate unnecessary distinctions between companies that transmit electronic communications versus companies that only store it. More importantly, however, it would require a finding of probable cause before a warrant or court order could issue for a subscriber’s content.14 Until the Senate and president approve the amendments, we are stuck with the SCA in its current form. As explained below, this current form allows law enforcement to obtain content without a warrant or probable cause.15

1. SCA Exceptions for Non-Governmental Entities

In a typical criminal case, only when a subscriber consents will a non-governmental litigant be entitled to the subscriber’s communication content. Courts have gone as far as compelling parties to give consent in order to provide litigants access to their private Facebook content.16

But Facebook no longer provides user content, even with user consent. In 2009, Facebook published a guide explaining that it would provide user content with “the voluntary consent of the user,” consistent with the provisions of § 2702.17 But now, even with subscriber consent, Facebook may still refuse to comply. The current version of Facebook’s Information for Law Enforcement Authorities explains its operational guidelines for law enforcement officials seeking records.18 Facebook will disclose account records solely in accordance with their terms of service and applicable law, including the SCA and 18 U.S.C. 2701–2712. However, the “User Consent” section states: “[T]he user should be directed to obtain that information on their own from their account. For account content, such as messages, photos, videos, and timeline posts, users can access Facebook’s ‘Download Your Information’ feature from their account settings.”19

In short, the best way to obtain content of communications is to bypass the provider altogether and go directly to the subscriber.

2. SCA Exceptions for Law Enforcement

The SCA provides two avenues for law enforcement to obtain easier access to the content of communications—required disclosure pursuant to a valid warrant or a court order.

The SCA requires a social media provider to disclose the contents of a communication (A) without notice to the subscriber if the request is pursuant to a valid state or federal search warrant, or (B) with notice if the request is pursuant to a valid administrative, grand jury, or trial subpoena.20 But often law enforcement seeks delayed notice under 18 U.S.C. § 2705.

Alternatively, a state or federal court may order release of the content of communications when “the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”21 This is something more than reasonable suspicion but less than probable cause.22

To accommodate, each of the major social media providers has compiled a law enforcement guide on how to obtain the content of communications:

• Facebook: https://www.facebook.com/safety/groups/law/guidelines/
• Twitter: https://support.twitter.com/articles/41949
• Instagram: https://help.instagram.com/494561080557017/
• Snapchat: https://storage.googleapis.com/snap-inc/privacy/lawenforcement.pdf

B. Other Ways to Obtain Content

Subpoena the Social Media Provider

As explained above, the SCA hamstrings the ability of a non-governmental entity to obtain social media communication content. If you attempt to subpoena a social media provider, you will receive a letter from the provider detailing objections to your subpoena.23

Nevertheless, you may attempt to subpoena a social media provider using the steps below.24 Because the main social media providers are all located in California, you must comply with both Texas and California subpoena laws to “domesticate” your subpoena in California completing this checklist Michael Mowla put together:

1. Create a valid Texas subpoena duces tecum for the requested information
2. Complete Form SUBP-030, Application for a Discovery Subpoena for an Action25
3. Attach your Texas subpoena duces tecum to Form SUBP-030
4. Complete Form SUBP-035, Subpoena for Production of Business Records in Action Pending Outside California26
5. Prepare and enclose payment for the fee. Under Cal. Gov. Code § 70626(b)(5), the fee for Form SUBP-030 is $30
6. File the documents in the appropriate California superior court:

• Facebook: San Mateo County
• Instagram: San Mateo County
• Twitter: San Francisco County
• Snapchat: Los Angeles County

7. Once you receive the documents from the Santa Clara Superior Court, send to the appropriate social media provider:27

Facebook: 1601 Willow Road, Menlo Park, CA 94025, or by email to:
Instagram: Mail: Attn: Law Enforcement Response Team, 1601 Willow Road, Menlo Park, CA 94025, or by email to:
Twitter: Twitter, Inc., c/o Trust & Safety—Legal Policy, 1355 Market Street, Suite 900, San Francisco, CA 94103, or by fax: 1-415-222-9958 (attn: Trust & Safety—Legal Policy)
Snapchat: Custodian of Records Snapchat, Inc. 63 Market Street Venice, CA 90291, or by email to .

If you are seeking content (messages, comments, likes, postings, and tweets), the social media provider will most likely object in writing and disregard your subpoena. If your subpoena seeks “non-content information” about the account holder, the social media provider will most likely comply, assuming you properly domesticated your subpoena. But no one really cares that much about the non-content information. The best way—and the method preferred by providers—to obtain content is to subpoena the subscriber directly.

1. Issue a Subpoena Duces Tecum to the Subscriber

Most providers prefer non-governmental litigants seeking communication content to subpoena the subscriber directly. Even when law enforcement has obtained consent from a user, social media providers prefer law enforcement use that consent to direct the user to download and provide the content sought rather than requesting it from the provider itself:

Facebook: “If a law enforcement official is seeking information about a Facebook user who has provided consent . . . , the user should be directed to obtain that information on their own from their account.”28
Instagram: “If law enforcement seeks information about an Instagram user who has provided consent for the official to access or obtain the user’s account information, the user should be directed to obtain that information on their own from their account.”29
Twitter: “Registered Twitter users can obtain a download of Tweets posted to his or her Twitter account.”30

Each provider’s law enforcement guide provides steps on how to direct a user to download their own content.31 Because this download contains your profile information, you should keep it secure and be careful when storing, sending, or uploading it to any other services.

But if you are looking for likes, comments, and searches, that information may only be available by compelling the person to download their “Activity Log.” This is apparently only accessible by the actual user while signed into the account.32

2. Take Screenshots

By far the easiest way to capture social media evidence is to take a screenshot. Known by different names, “[a] screenshot, screen capture, screen cap, cap, screen dump, or screengrab is an image taken by a person to record the visible items displayed on the monitor, television, or other visual output device in use.”33 By taking a screenshot, you can see exactly what was posted, by whom, and typically when it was posted. You can then print the screenshot, take it to court, and mark it with an exhibit sticker. All that’s left is to overcome hearsay issues and authenticate the evidence, which is explained in Part VIII.B.

C. Identifying Information Required and What to Request From Social Media Provider

Each social media provider varies in the type of information available. Facebook, for example, collects all kinds of data. By contrast, Snapchat really does not save the data (“snaps”) transmitted over its airwaves. The most Snapchat can provide is a log of previous snaps that have been sent and received by a user. Conveniently, each provider delineates between what content is protected by the SCA and what data may be obtained by a proper subpoena. Below are examples of what to request from each provider and what information the provider will need from you to find the specific subscriber’s account content.34

1. Facebook

Information Required: The email address, user ID number (e.g., www.facebook.com/profile.php?id=1000000XXXXXXXX) or username (e.g., www.facebook.com/username) of the Facebook profile.35

What to Request: Basic Account Information—may be obtained through a valid subpoena or court order:

Name,
Length of service,
Credit card information,
Email address(es), and
Login/logout IP address(es).36

Non-content Account Information—may be obtained through “court order issued under 18 U.S.C. Section 2703(d)[:]”

Message Headers and
All login/logout IP address(es).37

Stored Account Content (Communications)—may only be ob­tained through a “search warrant issued under the procedures described in the Federal Rules of Criminal Procedure or equiva­lent state warrant procedures upon a showing of proba­ble cause[:]”

Messages,
Photos,
Videos,
Timeline posts,
Likes,
Comments, and
Location information.38

2. Twitter

Information Required: The @username and URL of the subject Twitter account in question (e.g., @safety and https://twitter.com/safety).39

What to Request: Basic Account Information—“A Twitter account profile contains a profile photo, header photo, background image, and status updates, called Tweets. In addition, the account holder has the option to fill out a location (e.g., San Francisco), a URL (e.g., twitter.com), and a short ‘bio’ section about the account for display on their public profile.”40

Non-content Private Account Information—“Non-public information about Twitter users will not be released to law enforcement except in response to appropriate legal process such as a subpoena, court order, or other valid legal process – or in response to a valid emergency request[:]”

Payment Information,
Log Data,
Location Information, and
Commerce Services.41

Stored Account Content— “Requests for the contents of communications . . . require a valid search warrant or equivalent from an agency with proper jurisdiction over Twitter[:]”

Tweets,
Direct Messages, and
Photos.42

3. Instagram

Information Required: “The username of the Instagram account in question on the date you viewed the account and details regarding specific information requested and its relationship to your investigation. Usernames are not static and we are unable to process requests that do not include the date viewed combined with the username. If you have access to an image’s short URL, you can go to the link and find the username at the top right next to the image. If you have access to the Instagram app, you can locate the username at the top of the account’s profile.”43

What to Request: Basic Subscriber Information—may be obtained through “a valid subpoena issued in connection with an official criminal investigation[:]”

“subscriber name,
account creation date,
email address, and
a signup IP address, if available.”44

Non-content Account Information—may be obtained through a valid state or federal warrant, or a proper court order:

photographs,
photo captions, and
other electronic communication information.45

Stored Content of Account— may only be obtained through a valid state or federal warrant issued upon probable cause:

Messages,
Photos,
Comments, and
Location information.46

4. Snapchat

Information Required: “Before sending a legal request to Snapchat, you must first identify the username of the account. If you are unable to locate a username, Snapchat can try—with varying degrees of success—to locate the account with a phone number or email address.”47

What to Request: Basic Subscriber Information—may be obtained through subpoena (including administrative or grand jury), civil investigative demand, court order, or federal or state search warrant:

Snapchat username,
Email address,
Phone number,
Snapchat account creation date, and
Timestamp and IP address of account logins and logouts.48

Log of Previous Snaps—may be obtained by court order or federal or state search warrant. Snapchat only retains logs of previous messages sent and received (does not include content, i.e., the actual picture or message sent).49

Message Content—only provided pursuant to federal or state search warrant. Most likely, Snapchat will not be able to provide actual “snaps” because “Snapchat deletes each Snap . . . once all recipients have viewed it. And even when a Snap remains unopened, it will be deleted 30 days after it was first sent.”50

D. Requests Must Be Narrowly Tailored

Discovery requests for content from a social media site must still comply with applicable discovery rules.51 In Mailhoit v. Home Depot, the defendant moved the court to compel the plaintiffs to produce a laundry list of social media evidence, including profiles, postings, messages, status updates, wall comments, causes joined, groups joined, and pictures posted or tagged with the defendant. The Mailhoit court concluded that nearly all of the requests failed the “reasonable particularity” requirement and therefore were not “reasonably calculated to lead to the discovery of admissible evidence,” as required by Fed. R. Civ. P. 34.52

No Texas criminal cases have touched on discovery of social media evidence. As explained above, this fight will most likely occur when a social media user is subpoenaed by a party to bring his or her entire social media identity in response to a sub­poena. Under Tex. Code Crim. P. art. 24.02, a witness can be required by a subpoena duces tecum to bring certain items to a scheduled trial or hearing. If either party files a motion to quash, the non-moving party must show that the testimony and documents or items subpoenaed are material, meaning “the testimony[, documents, and items] would be admissible and logically relevant to some matter at issue in the proceeding.”53

E. Do Not Advise Clients or Witnesses to Delete Data

Whatever you do, do not advise a potential witness to “clean up” their social media accounts before turning over properly requested discovery. In Allied Concrete Co. v. Lester, a Virginia personal injury case following a truck wreck that injured a husband and killed his wife, the husband’s lawyer, through his paralegal, advised his client to delete 16 pictures from his Facebook page before responding to discovery requests from the defense.54 One of the deleted photos depicted the grieving husband “holding a beer can while wearing a T-shirt emblazoned with “I ª hot moms.”55 The paralegal emailed the husband multiple times, saying things like, “We do NOT want blow-ups of other pics at trial so please, please clean up your facebook and myspace!” After a sizeable verdict—and the trial court ordered, at the defendant’s request, sanctions of $542,000 against the lawyer and $180,000 against the husband for attorney’s fees in discovering and proving the misconduct—the trial court further ordered remittitur of $4,127,000 of the husband’s $6,227,000 wrongful-death award.56

Although the remittitur was reversed on appeal, this case serves as a cautionary tale for all lawyers advising clients about requested social media evidence.57

For his part, Lester’s lawyer, Matthew B. Murray, resigned from the Allen, Allen, Allen & Allen law firm, and the Virginia Bar suspended his law license for five years.58

III. How to Admit Social Media Evidence

A. Must Be Relevant & Authentic

The initial question of whether the proponent of the evidence “has supplied facts that are sufficient to support a reasonable jury determination that the evidence he proffered is authentic,” is answered by the trial court.59 But the trial court itself “need not be persuaded that the proffered evidence is authentic.”60 Rather, after the trial court makes an initial determination that the proponent “has supplied facts that are sufficient to support a reasonable jury determination that the [proffered evidence] is authentic,” the jury (in a jury trial) answers the “ultimate question [of] whether an item of evidence is what its proponent claims” it to be.61

B. Ways to Authenticate Social Media Evidence

Texas’ leading case on authentication of social media evidence is Tienda v. State.62 The Court recognized “there is no single approach to authentication that will work in all instances.”63 So what will work?

Social media evidence is most commonly authenticated in three different ways:

1. By direct testimony from a witness with personal knowledge of the account and account holder;
2. By comparison with other authenticated evidence; or
3. By circumstantial evidence.64

Importantly, however, “the fact that an electronic communication on its face purports to originate from a certain person’s social networking account is generally insufficient, standing alone, to authenticate that person as the author of the communication.”65 The concern is two-fold: (1) Anyone can create a fake profile, and anyone viewing that profile would have “no way of knowing whether the profile is legitimate[;]” and (2) A person’s account can be accessed by anyone who obtains the user’s name and password.66

Because of the various types of social media evidence, the “best or most appropriate method of authenticating electronic evidence will often depend upon the nature of the evidence and the circumstances of the particular case.”67

C. Must Have More Than Just the Post

In Dering v. State, the trial court refused to admit Facebook posts offered by Dering on the grounds that the posts were not authenticated.68 Dering was charged with sexual assault of an el­derly person in Jones County, Texas.69 He moved to transfer venue due to negative publicity, including numerous inflammatory remarks from community members about Dering and his case on Facebook. The posts in questions were neither made by Dering nor posted to his account and were sponsored by Dering’s friend, who was neither the author nor recipient of the posts.70 The original post was created by a third party and commented on by other third parties, none of whom testified during any of the proceedings.71 The witness who sponsored the posts did recognize the original author and some of the subsequent commenters.72 The only evidence offered to authenticate the posts was the names and photos of the posters as shown on their accounts.73

The court held that the circumstantial evidence was insufficient to authenticate the Facebook posts, noting that this case is distinguished from the previous line of cases in that the party offering the evidence was neither the author nor recipient of the post.74 “The fact that an electronic communication on its face purports to originate from a certain person’s social networking account is generally insufficient, standing alone, to authenticate that person as the author of the communication.”75

There are at least two ways to fix the Dering problem. First, the original posts are usually by some news/media outlet. You could subpoena the news reporter who posted the information on the news site’s social media account. Today, news stations keep track of what is trending and can likely comment on whether or not this was a “hot” story in the particular jurisdiction. Second, you could subpoena each of the named users. If you’re not sure who they are or only have a username, you could subpoena their non-content information—i.e., name, email address, credit card information, and login IP address(es) with a properly domesticated Texas subpoena to the provider.76 Using the information you receive, you or an investigator can likely track down good contact information for the subscriber. Then, subpoena them to testify and ask them enough questions to establish whether they are responsible for the particular post. This should satisfy Tienda and overcome Dering.

IV. Challenges to the SCA & Social Media Evidence

If the SCA seems one-sided in favor of the government, it is. It only allows governmental entities to obtain user content by warrant or probable-cause court order.77 The Federal Rules of Criminal Procedure specifically allow only the government to seek a warrant.78 The Texas rules are silent, but it is unlikely a judge would issue a warrant requested by the defense. This leaves defendants needing subscriber content to prove a defensive theory in a tough place. There are a few challenges that can, and need to be, made to the SCA in its current form.

First, object that the SCA violates your client’s procedural and substantive due process rights. By allowing the government unilateral access to content evidence, this seems to violate the Fifth and Fourteenth amendments—especially if the content of the communications contain evidence of your client’s innocence.79

Second, object that your client is being denied the effective assistance of counsel. The Sixth Amendment imposes a duty on counsel to investigate and, when necessary, present defensive evidence.80 The federal statutory restriction on the defense’s access to the evidence prohibits defense counsel from fulfilling this constitutional duty.

Third, object that the SCA violates your client’s right to confrontation and compulsory process.81

Finally, object that the SCA violates the separation of powers provisions of the Federal Constitution.82 Courts have the inherent power to issue orders necessary to affect their jurisdiction.83 The legislature is not permitted to interfere with a court’s exercise of its jurisdiction.84

Fortunately but infrequently, courts started recognizing the sweeping nature of the scope of warrants and court orders for user data.85 Commonly, if the state or federal government obtained evidence from your client’s social media, they did it pursuant to an “any and all” warrant or court order.86 Undoubtedly this data contains all types of private communication, most of which will not be relevant to whatever law enforcement was initially after.

Watch out for “any and all” social media evidence warrants. You must object that the warrant or court order was overbroad and did not limit its request to the particular data it sought. For example, the government should limit message content to messages between specific users and times it has probable cause of evidence of wrongdoing.87 Social media providers already segregate data, so limiting requests is not difficult.

Interestingly, providers are starting to fight back. All providers post “transparency” reports for their users to show how many requests they receive, for what types of data.88 They all boast about how many government requests they refuse or narrow before fulfilling.89 Big corporations are banding together to assert the privacy rights of their users, hopefully reinvigorating the Fourth Amendment in the increasingly digital world.90

V. Conclusion

As long as social media continues to saturate our everyday lives, it will continue to play a huge role in our courtrooms. When a Rodney Bradford walks into your office, you must know how to obtain and authenticate social media evidence.91 The best ways to obtain social media content are to get a search warrant, subpoena the user directly, or have someone screenshot the particular post, tweet, message, or snap you want to use as evidence. By presenting sufficient evidence for a reasonable jury to link the accountholder to the account, and the particular social media, you have satisfied Tienda’s authentication test. On the other hand, constitutional challenges need to be made to the SCA in its current form. If the prosecution has social media evidence in its discovery, you must scrutinize the authorizing affidavit, specifically looking for overbroad requests lacking particularity.

Endnotes

1. Special thanks to Rudy Moisiuc, a third-year law student at Texas Tech University School of Law, for his help writing and editing this article.

2. Vanessa Juarez, Facebook Status Update Provides Alibi, CNN (Nov. 13, 2009), https://www.cnn.com/2009/CRIME/11/12/facebook.alibi/index.html?eref=rss_us.

3. Id.

4. Maev Duggan, Mobile Messaging and Social Media, Pew Research Center (Aug. 19, 2015), https://www.pewinternet.org/2015/08/19/mobile-messaging-and-social-media-2015/. An update of the study found Facebook continues to be America’s most popular social networking platform by a substantial margin: Nearly eight in ten online Americans (79%) now use Facebook, more than double the share that uses Twitter (24%), Pinterest (31%), Instagram (32%), or LinkedIn (29%). Shannon Greenwood, Andrew Perrin, & Maeve Duggan, Social Media Update 2016, Pew Research Center (Nov. 11, 2016), https://www.pewinternet.org/2016/11/11/social-media-update-2016/.

5. Id.

6. Id.

7. 18 U.S.C. §§ 2701–12

8. “The SCA defines an ECS [Electronic Communication Service] provider as ‘any service which provides to users thereof the ability to send or receive wire or electronic communications.’” Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 972 (C.D. Cal. 2010) (quoting 18 U.S.C. § 2510(15)). The Crispin court also drew a distinction between whether entities qualified as ECSs or Remote Computing Services (RCS), concluding that an entity providing messaging services is an ECS for messages that were unopened and unread by the recipient, but the same entity transforms to an RCS after the messages were opened, read, and retained by the recipient. Id. at 987. The opinion has been widely criticized as “applying outdated law to new technology.” Rick E. Kubler & Holly A. Miller, Recent Developments in Discovery of Social Media Content, at 7, available at https://goo.gl/jGEZkb (last visited Feb. 24, 2017) (citing Joshua Briones and Ana Tagvoryan, Social Media as Evidence 40 (2013)).

9. 18 U.S.C. § 2702(a)(1) (emphasis added). Separately, the SCA also prohibits: 1. electronic communications services from 2. knowingly divulging, 3. “a record or other information pertaining to a subscriber to or customer of such service,” 4. “to any governmental entity.” Id. § 2702(a)(3) (emphasis added).

10. Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 991 (C.D. Cal. 2010).

11. Letter from Facebook Security to author (Oct. 9, 2013) (on file with author) [hereinafter Facebook Objections].

12. See, e.g., Konop v. Hawaiian Airlines, 302 F.3d 868 (9th Cir. 2002).

13. Email Privacy Act, H.R. 387 115th Cong. (2017), available at https://www.congress.gov/bill/115th-congress/house-bill/387/text. The bill has not yet been voted on by the Senate.

14. Id.

15. See Part II.A.2 infra.

16. See, e.g., Romano v. Steelcase, 907 N.Y.S.2d 650, 654 (N.Y. Sup. Ct. 2010); Kubler & Miller, Recent Developments in Discovery of Social Media Content, at *8.

17. Facebook Law Enforcement Guidelines, Facebook (2009), available at https://www.eff.org/files/filenode/social_network/facebook2009_sn_leg-doj.pdf (last visited Apr. 17, 2017).

18. Information for Law Enforcement Authorities, Facebook, https://www.facebook.com/safety/groups/law/guidelines/ (last visited Apr. 17, 2017).

19. See https://www.facebook.com/help/131112897028467. Users can also view recent IP addresses in their Account Settings under Security Settings/Active Sessions. Id. Users do not have access to historical IP information without legal process. Id.

20. 18 U.S.C. § 2703(b).

21. Id. § 2703(d).

22. The phrase “reasonable belief” first appeared in Payton v. New York, 445 U.S. 573, 576 (1980) (discussing police entry into home to make a warrantless arrest). Since Payton, legal scholars have debated its meaning but, at bottom, it is at least the amount of proof required for a detention under Terry v. Ohio, and “may require something more than an investigative stop based on reasonable suspicion.” Duran v. Indiana, 930 N.E.2d 10, 16 (Ind. 2010).

23. See Facebook Objections, supra note 14.

24. Special thanks to Michael Mowla of Cedar Hill for researching and compiling this list of steps to domesticate a Texas subpoena in California.

25. https://www.courts.ca.gov/documents/subp030.pdf.

26. https://www.courts.ca.gov/documents/subp035.pdf.

27. Each of the providers listed includes a caveat on their guides that they will accept service for “convenience,” but that they do not waive objections to jurisdiction or proper service.

28. Information for Law Enforcement Authorities, Facebook, https://www.facebook.com/safety/groups/law/guidelines/ (last visited Apr. 17, 2017).

29. Information for Law Enforcement, Instagram, https://help.instagram.com/494561080557017/ (last visited Apr. 17, 2017).

30. Twitter, however, “does not currently offer users a self-serve method to obtain other, non-public information (e.g., IP logs) about their Twitter accounts. If a Twitter user requires his or her non-public account information, please direct the user to send a request to Twitter via our privacy form. We will respond with further instructions.” Guidelines for Law Enforcement, Twitter, https://support.twitter.com/articles/41949#8 (last visited Apr. 17, 2017).

31. EInformation for Law Enforcement Authorities, Facebook, https://www.facebook.com/safety/groups/law/guidelines/ (last visited Apr. 17, 2017).

32. Accessing Your Facebook Data, Facebook, https://www.facebook.com/help/405183566203254?helpref=faq_content (last visited April 17, 2017). For more information about how to download data, and what is included, see Id.

33. Screenshot, Wikipedia, https://en.wikipedia.org/wiki/Screenshot (last visited April 17, 2017).

34. To find out what is actually collected, however, you should take a look at the privacy policies of the specific social media service for the information you seek.

35. Information for Law Enforcement Authorities, Facebook, https://www.facebook.com/safety/groups/law/guidelines/ (last visited April 17, 2017).

36. Id.

37. Id.

38. Id.

39. Guidelines for Law Enforcement, Twitter, https://support.twitter.com/articles/41949 (last visited April 17, 2017).

40. Id.

41. Id.

42. Id. For other information to request, see Twitter Privacy Policy, Twitter https://twitter.com/privacy?lang=en.

43. Information for Law Enforcement, Instagram, https://help.instagram.com/494561080557017 (last visited April 17, 2017).

44. Id.

45. Id.

46. Id.

47. Snapchat Law Enforcement Guide at 5, Snapchat, https://www.snapchat.com/static_files/lawenforcement.pdf?version=20150604 (last visited April 17, 2017).

48. Id.

49. Id. at 6.

50. Id.

51. Mailhoit v. Home Depot, 285 F.R.D. 566 (C.D. Cal. 2012).

52. Id.

53. George E. Dix & John M. Schmolesky, 43 Tex. Prac., Criminal Practice & Procedure § 32:26 (3d ed.) (citing various cases on materiality).

54. Allied Concrete Co. v. Lester, 736 S.E.2d 699, 702 (Va. 2013).

55. Id. at 703.

56. Id.

57. Id. at 708–09.

58. Agreed Disposition Memorandum Order, In the Matter of Matthew B. Murray, No. 11-070-088405 and 11-070-088422 (Va. State Bar Disciplinary Board filed July, 2013), available at www.vsb.org/docs/Murray-092513.pdf.

59. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012) (discussing Tex.R. Evid. 401, 402, 901).

60. Id.

61. Id.

62. Id. at 633. In Tienda v. State, three MySpace pages, their accompanying subscriber reports, and affidavits subpoenaed from MySpace were offered as evidence against a defendant who was a suspect in a drive-by shooting. Id. at 635. The court looked at four specific sets of facts involving the account in determining whether a rational jury could find that the MySpace page was created and posted to by the defendant: (1) that the accounts had pictures posted to them displaying the defendant’s unique tattoos, eyeglasses, and earring; (2) that at least one account referenced music played at a victim’s funeral; (3) that the accounts made references to the defendant’s associated gang; and (4) messages sent from the account referring to (a) specific shootings involved, (b) a party the defendant believed was a ‘‘snitch’’, and (c) the ankle monitor defendant had been wearing for the past year, all of which were sent from accounts of users with defendant’s name or nickname, and sent from an email address of defendant’s name. Id. at 645. The court held that there was “ample circumstantial evidence . . . to support a finding that the MySpace pages belonged to the appellant and that he created and maintained them.” Id. See also United States v. Barnes, 803 F.3d 209, 215 (5th Cir. 2015).

63. Tienda, 358 S.W.2d at 640 (citation omitted).

64. Id. at 638.

65. Dering v. State, 465 S.W.3d 668, 671 (Tex. App.—Eastland 2015, no pet.) (citing Tienda, 358 S.W.3d at 642).

66. Id.

67. Tienda, 358 S.W.3d at 639.

68. Dering v. State, 465 S.W.3d 668, 670 (Tex. App.—Eastland 2015, no pet.).

69. Id.

70. Id.

71. Id.

72. Id.

73. Id. at 673.

74. Id.

75. Id.

76. See supra, Part II.B.1.

77. 18 U.S.C. §§ 2703 Required Disclosure of Customer Communications or Records.

78. Fed. R. Crim. P. 41(b).

79. Cf. Brady v. Maryland, 373 U.S. 83, 87 (1963).

80. Strickland v. Washington, 466 U.S. 668, 680 (1984).

81. Cf. Davis v. Alaska, 415 U.S. 308, 320, 94 S. Ct. 1105, 1112, 39 L. Ed. 2d 347 (1974) (“The State could have protected Green from exposure of his juvenile adjudication in these circumstances by refraining from using him to make out its case; the State cannot, consistent with the right of confrontation, require the petitioner to bear the full burden of vindicating the State’s interest in the secrecy of juvenile criminal records.”); Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 1923, 18 L. Ed. 2d 1019 (1967) (“Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.”).

82. Stern v. Marshall, 131 S. Ct. 2594, 2620 (2011) (“A statute may no more lawfully chip away at the authority of the Judicial Branch than it may eliminate it entirely.”).

83. See Heckers v. Fowler, 69 U.S. 123, 128, 17 L.Ed. 759 (1864) (explaining that federal courts have authority to make all necessary rules for orderly conduct of their business provided such rules are not repugnant to the laws of the United States); see also Degen v. United States, 517 U.S. 820, 827, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996) (“A federal court has at its disposal an array of means to enforce its orders, including dismissal in appropriate case; its powers include those furnished by federal rule, and by inherent authority”); see, e.g., Fed. R. Civ. Proc. 37, 41(b); Tex. Gov’t Code § 21.00l(a).

84. Id.; cf. Williams v. State, 707 S.W.2d 40, 45–46 (Tex. Crim. App. 1986) (citing Tex. Const. art. V) (“[T]he Legislature may not interfere with the functions and powers of the judicial branch so as to usurp those functions and powers.”).

85. United State v. Comprehensive Drug Inc., 621 F.3d 1162, 1176 (9th Cir. 2010) (“This pressing need of law enforcement for broad authorization to examine electronic records, so persuasively demonstrated in the introduction to the original warrant in this case [] creates a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant.”).

86. See generally, Adam M. Gershowitz, The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches, 69 Vand. L. Rev. 585 (2016).

87. See Id. at 633, “If there is probable cause for incriminating text messages, but not for photos, videos, or any other data on the phone, then magistrates should limit the search warrant to the text messaging application, rather than the whole phone.”

88. E.g., United States Law Enforcement Requests for Data, Facebook, https://govtrequests.facebook.com/country/United%20States/2016-H1/.

89. E.g., 2016 Transparency Report: January to June 2016, Dropbox, https://www.dropbox.com/transparency.

90. See Microsoft Corp. v. United States, 829 F.3d 197 (2d Cir. 2016); see also Brief of Amici Curiae Amazon.com, Box, Cisco Systems, Dropbox, Evernote, Facebook, Google, Microsoft, Mozilla, Nest, Pinterest, Slack, Snapchat, Whatsapp, and Yahoo in Support of Apple, Inc. In the Matter of the Search of an Apple iPhone, No. CM 16-10 (SP) (C.D. Cal. 2016), available at http://images.apple.com/pr/pdf/Amazon_Cisco_Dropbox_Evernote_Facebook_Google_Microsoft_Mozilla_Nest_Pinterest_Slack_Snapchat_WhatsApp_and_Yahoo.pdf.

91. Juarez, Facebook Status Update Provides Alibi, supra note 5.

Packingham v. North Carolina: Will the U.S. Supreme Court’s Decision Impact a “Sex Offender” Law in Texas?

In 2002, a 21-year-old college student in North Carolina named Lester Gerard Packingham had consensual sex with a 13-year-old girl. He was thereafter convicted, after pleading guilty, of “taking indecent liberties with a child.” As the result of his conviction Packingham was required, potentially for the next 30 years, to register as a sex offender under North Carolina law. Approximately 8 years later, in April 2010, he obtained the dismissal of a traffic citation in municipal court. Exhilarated by his unexpected victory, and using the handle “J. R. Gerard,” Packingham posted a comment on his Facebook page stating, in part: “No fine, no court costs, no nothing spent . . . Praise be to GOD, WOW! Thanks JESUS!” (We’ve all had that feeling, right?)

Upon discovering Packingham’s post on Facebook, and apparently unamused by this miscarriage of justice and heresy, a local law enforcement officer set out to investigate and ascertain the identity of “J. R. Gerard.” After examining the docket of the municipal court and comparing the Facebook profile photo of J. R. Gerard with a photo of Packingham on North Carolina’s sex offender registry, the officer confirmed that J. R. Gerard was actually Packingham, a registered sex offender. The officer then secured a warrant to search Packingham’s home and thereby obtained evidence leading to Packingham’s indictment for violation of a North Carolina statute.

The statute in question made it a felony offense for registered sex offenders to access online “social media” sites. Following denial of his motion to dismiss the indictment on the ground that the statute violated the Free Speech Clause of the First Amendment, Packingham was convicted after a trial by jury in Durham County Superior Court. This conviction was reversed by the North Carolina Court of Appeals, which sustained Packingham’s constitutional challenge.1 However, on further appeal by the state of North Carolina, Packingham’s conviction was reinstated by the Supreme Court of North Carolina, which ruled the statute “constitutional in all respects.”2

The U.S. Supreme Court granted review, and on June 19, 2017, in Packingham v. North Carolina, the Court invalidated the statute under the Free Speech Clause of the First Amendment.3 Characterizing the case as “one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet,”4 the Court assumed arguendo that the statute was “content-neutral” and therefore subject to “intermediate scrutiny” (a more deferential form of First Amendment scrutiny that examines whether a statute is “narrowly tailored to serve a significant governmental interest”).5 The Court readily acknowledged that a “significant governmental interest” was presented by the state, as the Court understandably found “sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people.”6 On the other hand, the Court removed all doubt about whether a social media site, even when privately hosted, qualifies as a “public forum” entitled to core First Amendment protection against governmental interference. Thus, in terms not easily rescinded, the Court heralded the internet as “the modern public square” wherein one with an internet connection is enabled to “become a town crier with a voice that resonates farther than it could from any soapbox.”7 Ultimately, after observing that “a valid governmental interest cannot, in every context, be insulated from all constitutional protections,”8 and after accurately identifying the statute as an outright ban (as to registrants) that sought to “suppress lawful speech as the means to suppress unlawful speech,”9 the Court declared the statute overbroad and unconstitutional.

Two comments by the Court, albeit stated in dicta, warrant further mention. First, the Court noted that it found “troubling” the fact that the statute imposed “severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system.”10 Second, the Court stated that it “presumed” the First Amendment “permits a state to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.”11

The Potential Impact of Packingham on Texas Criminal Law

North Carolina is one of a very few states to have enacted a statute that outright banned registered sex offenders (who are “no longer subject to the supervision of the criminal justice system”) from accessing online social media sites.12 The vast majority of states seeking to regulate registrants’ access to the internet, including Texas, apparently recognized that such a bold move would result in relatively certain constitutional condemnation. Instead, Texas and these other states, with encouragement from federal authorities (as described below), elected to ignore the ancient legal maxim expressed by Edward Coke: quando aliquid prohibetur fieri ex directo et per obliquum.13 Literally, this phrase means “any time anything is prohibited to be done directly it is also prohibited to be done indirectly.”14 In other words, what Texas and other states have attempted to accomplish “indirectly,” which the state of North Carolina unwisely ventured to do “directly” to Mr. Packingham (and many others in North Carolina), is to totally banish sex offender registrants from accessing online social media sites. The statutory vehicle to obtain this objective indirectly can be found in “Online Identifier” reporting requirements that are usually made a component of sex offender registration. In Texas, the Online Identifier requirement appears in Article 62.0551 of the Texas Code of Criminal Procedure; and for reasons discussed hereinafter, the decision in Packingham may prove an important first step towards constitutional invalidation of Article 62.0551 under the First Amendment.15

The Origin of Texas’ Online Identifier Requirement

The federal Sex Offender Registration and Notification Act (SORNA), which was enacted as part of the Adam Walsh Child Protection and Safety Act of 2006, gave the states powerful financial incentives to maintain a sex offender registry. Title 42 United States Code Section 16912 provided that each state shall maintain a jurisdiction-wide sex offender registry, and Section 16925(a) provided that a nonconforming state would not receive 10 percent of the funds that would otherwise be allocated for that fiscal year to the state under the federal Omnibus Crime Control and Safe Streets Act of 1968. As originally enacted, Section 16914(a) required states to include in their sex offender registries information such as a registrant’s name and address, as well as “[a]ny other information required by the Attorney General of the United States.” On July 2, 2008, in accordance with the authority conferred by Section 16914(a), U.S. Attorney General Michael Mukasey (while serving under President George W. Bush) issued guidelines requiring states to collect sex offenders’ “internet identifiers” or “internet addresses.”16

In compliance with the foregoing federal mandate issued by the U.S. Attorney General on July 2, 2008, states began enacting statutory provisions requiring sex offenders to provide their “online identifiers” as part of their sex offender registration requirement. Texas swiftly followed suit and enacted Article 62.0551 in 2009.17

The Texas Statutory Scheme

Article 62.0551, which carries with it the threat of felony punishment for noncompliance, provides:

If a person required to register . . . changes any online identifier included on the person’s registration form or establishes any new online identifier not already included on the person’s registration form, the person, not later than the later of the seventh day after the change or establishment . . . shall report the change or establishment to the person’s primary registration authority in the manner prescribed by the authority.

Although definitions vary from state to state, Texas’ definition of the term “online identifier” appears in Article 62.001 (12) and provides:

[An] “[o]nline identifier” means electronic mail address information or a name used by a person when sending or receiving an instant message, social networking communication, or similar Internet communication or when participating in an Internet chat. The term includes an assumed name, nickname, pseudonym, moniker, or user name established by a person for use in connection with an electronic mail address, chat or instant chat room platform, commercial social networking site, or online picture-sharing service.

Finally, and most significantly for purposes of constitutional analysis, Article 62.0061(a) provides:

“On request by a commercial social networking site, the [Texas Department of Public Safety] may provide to [a] commercial social networking site . . . all public information that is contained in the database maintained under [the general registration statute]” as well as “any online identifier established or used by a person who uses the site, is seeking to use the site, or is precluded from using the site.”

Apparently to further clarify legislative purpose, Article 62.0061(c) provides that a “commercial social networking site” is expressly authorized to access and use online identifier information maintained by the Texas Department of Public Safety to “prescreen” persons seeking to access their social media sites, and use that information to “preclude” registrants from accessing their social media sites.

In accordance with Article 62.0061(b), the Texas Department of Public Safety has adopted rules governing the manner by which “commercial social networking sites” may obtain a registrant’s online identifiers.18 Under Department regulations, conditioned upon a social media site qualifying as a commercial social networking site as defined by statute,19 and provided it is approved as such by the Department, social media sites “will be assigned a user account and furnished instructions to access . . . online identifiers maintained by the [D]epartment.”20

Will the Texas Online Identifier Scheme Survive First Amendment Scrutiny After Packingham?

Now that the U.S. Supreme Court has invalidated on First Amendment free-speech grounds North Carolina’s ban prohibiting access to social media sites by registered sex offenders (who are not on parole or community supervision), a constitutional question arises whether the state of Texas may indirectly accomplish the same objective by simply: 1) requiring registrants, under threat of felony punishment, to disclose their online pseudonyms to the Department of Public Safety; and by 2) directing the Department of Public Safety to disclose this otherwise unavailable information to social media sites so they can ban registrants from expressing their ideas and communicating with others on those sites. Settled First Amendment law strongly suggests Texas cannot do so.

As previously mentioned, although the issue was once somewhat unsettled, the Supreme Court in Packingham has now made clear that social media sites, even when privately hosted, qualify as “public forums” entitled to core First Amendment protection against governmental interference.21 Assuming that a First Amendment challenge to Texas’ online identifier scheme were subjected to “intermediate scrutiny” (to determine whether it is “narrowly tailored to serve a significant governmental interest”),22 the outcome of such a challenge would depend on the nature of the free-speech interests held by registrants—and how narrowly Texas’ regulation is tailored in relation to those interests.

The constitutionality of online identifier statutes is a question presently being litigated in state and federal courts across the nation. The most promising legal theory for registrants challenging these statutes has been the claim that online identifier statutes violate a registrant’s First Amendment right to “anonymous” speech. More than two decades ago the U.S. Supreme Court ruled that the First Amendment protects a person’s right to exercise freedom of speech “anonymously.” In this connection, the Court noted:

[A]n author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of publication, is an aspect of the freedom of speech protected by the First Amendment.23

And as the Court further explained:

Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society.24

In Packingham the Court provided clues concerning the line of demarcation between what it would and would not perceive to be a narrowly tailored statute in this context. It acknowledged the First Amendment would likely “permi[t] a state to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.”25 Conversely, it ruled that a statute cannot “suppress lawful speech as the means to suppress unlawful speech.”26 Within these guideposts, however, a defense of Texas’ online identifier statute resting on the argument that the statute is narrowly tailored to “prohibit a sex offender from engaging in conduct that often presages a sexual crime” would not likely be persuasive. As observed by the Texas Court of Criminal Appeals when addressing the constitutionality of another of Texas’ online “sex offender” statutes, Article 62.0551 cannot be deemed to advance this purpose because, under such an interpretation, it is aimed at speech that is “either already prohibited by other statutes (such as obscenity, distributing harmful material to minors, solicitation of a minor, or child pornography) or is constitutionally protected.”27

One “significant governmental interest” assignable to Article 62.0551, and perhaps the only one, is that it operates to advance the state’s interest in investigating “completed” crimes. As discussed below, however, Article 62.0551, as written, is unlikely to be viewed as narrowly tailored to accomplish that objective.

Online Identifier Statutes in Other States

Examination of online identifier statutes enacted by other states reveals there is no consensus concerning what, if any, “online identity” information reported to a governmental registering authority, by a registrant, may be disclosed to others. These “others” might include law enforcement authorities not responsible for receiving registration information or so-called “social media” entities in the private sector. Depending on the state, online identifier statutes differ on whether such disclosures must be confined to the purpose of investigating, with “reasonable sus­picion” or perhaps “probable cause,” the commission of a criminal offense. Some statutes are silent, or ambiguous, on this ques­tion. However, it appears that every court that has reviewed the constitutionality of an “online identifier” statute has ruled that “investigation of new sex offenses,” or “apprehension of sex offenders suspected of new crimes,” constitutes “a substantial governmental interest.” Thus, the outcome of most challenges depends upon whether, in view of the First Amendment right to “anonymous speech,” a particular online identifier statute “burdens substantially more speech than is necessary to further the government’s legitimate interests.”28 The two decisions below, from Utah and California, illustrate the constitutional analysis that would likely apply to any challenge to Texas’ Article 62.0551 in this context.

Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010):

In this case Utah’s statute provided that online identifier information could be disclosed to third parties “to assist in investigating kidnapping and sex-related crimes, and in apprehending offenders.” However, the statute also authorized, more ambiguously, disclosure of online identifier information to third-party private entities if “use of the record . . . produces a public benefit that is greater than or equal to the individual privacy right that protects the record.”29 In Doe v. Shurtleff, after considering the broader statutory scheme surrounding Utah’s online identifier statute, the Court “narrowly” interpreted Utah’s reporting statute as intended only to authorize disclosure of online identifiers for “law enforcement purposes” confined to “aiding the police in solving crimes.”30 By this means the statute was rescued from invalidation and was ruled not to violate the constitutional right to anonymous speech.31

Doe v. Harris, 772 F.3d 563 (9th Cir. 2014):

Prior to being invalidated by the U.S. Court of Appeals for the Ninth Circuit, California’s online identifier statute provided in relevant part:

Notwithstanding any other provision of law . . . any designated law enforcement entity may provide information to the public about a person required to register as a sex of­fender pursuant to Section 290, by whatever means the entity deems appropriate, when necessary to ensure the public safety based upon information available to the entity concerning that specific person.32

To avoid constitutional invalidation the Attorney General of California sought to persuade the Ninth Circuit that the statute was susceptible to a narrowing construction. Thus, notwithstanding the literal terms of the statute, she argued the statute required “specific and articulable facts causing the officer to suspect that some activity relating to crime has taken place or is occurring or about to occur” before online identifier information could lawfully be disclosed to third-parties.33 The Ninth Circuit was unpersuaded. Rather, as one ground for declaring the California’s statute unconstitutional, the Court in Doe v. Harris ruled that the statute, by the plain meaning of its terms, unconstitutionally “chilled” anonymous speech “because it too freely allow[ed] law enforcement to disclose sex offenders’ Internet identifying information to the public.”34 In the Court’s view, the statute too vaguely permitted law enforcement to “provide information to the public about a person required to register as a sex offender,” including a registrant’s online identifiers, whenever law enforcement deemed such a disclosure to the public “necessary to ensure the public safety.35

By way of legislative response, the California Assembly amended its former online identifier statute to now provide:

[A] designated law enforcement entity shall only use an Internet identifier, or release that Internet identifier to another law enforcement entity, for the purpose of investigating a sex-related crime, a kidnapping, or human trafficking;” and,

A designated law enforcement entity shall not disclose . . . an Internet identifier . . . to the public or other persons, except as required by court order.36

Conclusion

Notwithstanding a “horizontal” split among several courts of last resort across the nation, shortly before its summer recess the U.S. Supreme Court denied certiorari in a case raising precisely the issue discussed in this paper. See People v. Minnis, 67 N.E.3d 272 (Ill., 2016), cert. denied, __U.S.__, No. 16-8052 (June 26, 2017).37 However, given Justice Frankfurter’s oft-cited observation that the Supreme Court “has rigorously insisted that such a denial carries with it no implication whatever regarding the Court’s views on the merits of a case which it has declined to review,”38 I do not view the denial in Minnis dispositive.

Although there does not appear to be any judicial decisions addressing the constitutionality of Texas’ online identifier statute, comparison of the Texas statute to the decisions discussed above reveals it is seriously vulnerable to constitutional challenge, at least as to persons who are no longer on community supervision or parole.39 First, Texas’ statute allows disclosure of a registrant’s online identifier information to private third parties for reasons wholly unrelated to investigating a completed crime, or a future crime for which there is individualized reasonable suspicion. This was largely the defect that persuaded the Ninth Circuit Court of Appeals in Doe v. Harris to invalidate, and the ground upon which the Tenth Circuit Court of Appeals in Doe v. Shurtleff sustained against First Amendment challenge, the online identifier statutes those courts considered. Furthermore, Texas’ statute does not lend itself to a “narrowing” construction that would authorize disclosure of a registrant’s online identifiers only for “law enforcement purposes” confined to “aiding the police in solving crimes,” which was what saved Utah’s statute from constitutional invalidation in Doe v. Shurtleff.

Rather, Texas’ broad disclosure provision, set out above, is manifestly an indirect mechanism designed to cause the “outright” elimination of a registrant’s ability to engage in public communications on the internet. The legislative assumption (and a likely correct assumption at that) appears to be that a third-party website, such as Facebook, upon discovering a person is a registrant as the result of the state’s disclosure, will itself ban the person from its public forum.40 Thus, Texas’ statutory scheme accomplishes indirectly what the statute in Packingham unconstitutionally accomplished directly: an “outright ban” on First Amendment speech. The Texas statute, like the North Carolina statute found unconstitutional in Packingham, should encounter the same fate. Quando aliquid prohibetur fieri ex directo et per obliquum.

Endnotes

1. State v. Packingham, 748 S.E.2d 146 (N.C. App. 2013).

2. State v. Packingham, 777 S.E.2d 738, 741 (N.C. 2015).

3. Packingham v. North Carolina, No. 15-1194, __U.S.__, 137 S.Ct. 1730 (June 19, 2017).

4. Packingham v. North Carolina, supra, 137 S.Ct. at 1736.

5. Id., 137 S.Ct. at 1736.

6. Id., 137 S.Ct. at 1736.

7. Id., 137 S.Ct. at 1737.

8. Id., 137 S.Ct. at 1736.

9. Id., 137 S.Ct. at 1738.

10. Id., 137 S.Ct. at 1737. This comment by Justice Kennedy, the author of the Court’s opinion in Packingham, will likely been seen by many “sex offenders,” their family members, and supporters as an attempt by Justice Kennedy to ameliorate the extremely “severe” harm caused by a demonstrably false factual statement he twice published in past opinions regarding sex offenders. In his plurality opinion in McKume v. Lile, 636 U.S. 24, 33 (2002), and again a year later when writing for the majority in Smith v. Doe, 538 U.S. 84, 103 (2003), Justice Kennedy, wholly without scientific or other evidentiary support, declared ipse dixit that sex offenders have a “frightening and high” rate of recidivism. As subsequently chronicled by two scholars, the origin of this still-enduring but false myth is traceable in part to a political speech given by Texas’ very own Florence Shapiro, a former state senator and mayor of Plano, Texas. See Ellman & Ellman, “Frightening and High”: The Supreme Court’s Crucial Mistake About Sex Crime Statistics, 30 Const. Comm. 495, 500 n. 19 (2015), and accompanying text.

11. Id., 137 S.Ct. at 1737.

12. An Indiana statute similar to the “ban” presented in Packingham was ruled unconstitutional by an intermediate appellate court in Harris v. State, 985 N.E.2d 767 (Ind.App. 2013). The Court of Appeals in Harris v. State deployed virtually the same First Amendment reasoning later applied by the U.S. Supreme Court in Packingham.

13. 2 Edward Coke, The First Part of the Institutes of the Laws of England, *223b (circa 1628)(1st American ed., 1853)(a/k/a “Coke on Littleton”).

14. This maxim, in slightly different form, has been invoked from the earliest days of the U.S. Supreme Court. See, e.g., Smith v. Turner, 48 U.S. 283, 458 (1849)(Grier, J., concurring)(“It is a just and well-settled doctrine established by this court, that a state cannot do that indirectly which she is forbidden by the Constitution to do directly”).

15. All references hereinafter to “Articles” in this paper are intended to refer to Articles contained in the Texas Code of Criminal Procedure.

16. See Doe v. Harris, 772 F.3d 563, 569 n. 1 (9th Cir. 2014), citing National Guidelines for Sex Offender Registration, 73 Fed.Reg. 38030, 38055 (July 2, 2008); see also 42 U.S.C. Section 16915a(a)(requiring states to obtain registrants’ internet identifiers “of any type that the Attorney General determines to be Appropriate”).

17. Acts 2009, 81st Leg., R.S., Ch. 755 (S.B. 689), Sec. 4, eff. September 1, 2009.

18. See 37 Tex.Admin. Code, Pt. 1, ch. 37, Rule 37.2.

19. Article 62.0061(f).

20. Article 62.0061(e).

21. Id., 137 S.Ct. at 1737 (characterizing the internet as “the modern public square” wherein one with an internet connection is enabled to “become a town crier with a voice that resonates farther than it could from any soapbox”). The First Amendment has been interpreted to provide greater or lesser protection depending on whether the speech at issue is expressed in a “public” or in a “private” forum, respectively. Prior to Packingham, the Supreme Court had implied that when accessed from one’s home the internet constitutes a “public forum” for purposes of First Amendment analysis. Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997). However, the Court had also ruled that when the internet is accessed from a public library, the “public forum” doctrine does not apply. United States v. American Library Assoc., 539 U.S. 194, 205–207 (2003)(plurality opinion per Rehnquist, C. J., joined by O’Connor, Scalia, and Thomas, JJ.); accord, id., 539 U.S. at 215 (Breyer, J., concurring in judgment). Some lower courts had already ruled that an internet website remains a “public forum” even when operated by a private entity that retains discretion to “restrict, edit, delete or prohibit posts.” Piping Rock Partners v. David Lerner Associates, 946 F.Supp.2d 957, 975 (N.D.Cal. 2013)(listing appellate court decisions).

22. Id., 137 S.Ct. at 1736; see also Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637 (1980)(ruling that under “intermediate scrutiny” a “content-neutral” statute will be upheld against First Amendment challenge if it: 1) “serves a substantial governmental interest”; and 2) is “narrowly drawn” to serve the identified governmental interest “without unnecessarily interfering with First Amendment freedoms”).

23. McIntyre v. Ohio Elections Commission, 514 U.S. 334, 342 (1995).

24. McIntyre v. Ohio Elections Commission, supra, 514 U.S. at 357.

25. Id., 137 S.Ct. at 1737.

26. Id., 137 S.Ct. at 1738.

27. Ex Parte Lo, 424 S.W.3d 10, 19–20 (Tex.Crim.App. 2013)(invalidating Texas’ former online solicitation statute).

28. Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989).

29. Utah Code Ann., Sections 77-41-103(C), and 63G-2-206(6)(b).

30. Doe v. Shurtleff, 628 F.2d at 1223–1224.

31. Id., 628 F.3d at 1224–1225. It may be worthy to note that newly appointed Justice Neil Gorsuch, who did not participate in the consideration or de­cision of Packingham, served as a Judge on the panel of the Tenth Circuit that delivered the opinion in Doe v. Shurtleff.

32. Cal. Penal Code, Section 290.45(a)(1)(emphasis added).

33. Doe v. Harris, 772 F.3d at 581.

34. Id., 772 F.3d at 579–580.

35. Id., 772 F.3d at 580 (emphasis added)(“The problem is that [the statute] contains no standards for judging what is ‘necessary to ensure the public safety’”).

36. California Stats. 2016, Ch. 772, Sec. 8, eff. January 1, 2017).

37. The Question Presented by the Petitioner on certiorari in Minnis was: “Whether a statute violates the First Amendment on its face where it requires a class of people to regularly inform the government of where and under what name they have uttered any speech on the internet, on threat of criminal punishment, and that information is then freely shared with the public.”

38. Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 919 (1950)(Frankfurter, J., respecting denial of certiorari.)

39. There is a consensus among courts that persons who are on probation or parole have diminished rights under the First Amendment. However, when confronting the tendency to treat all registrants as having diminished First Amendment rights after conviction (which the Supreme Court found “troubling” in Packingham), the Ninth Circuit ruled in Doe v. Harris that registrants who are no longer on probation or parole “enjoy the full protection of the First Amendment.” Id., 772 F.3d at 572.

40. Current Facebook policy published within its online “Help Center” states that “[c]onvicted sex offenders aren’t allowed to use Facebook. . . . Once we’re able to confirm someone’s status as a sex offender we immediately disable their account” (last visited July 4, 2017).

Psycho . . . What?

I practice law in Lubbock, Texas, where I hung out my shingle immediately after finishing law school in 2008. I was very fortunate to have a group of dedicated mentors who helped me get my firm off the ground. The majority of my practice consists of criminal defense work, although I also handle personal injury, family, small business, and traffic ticket cases. I have worked hard to build a brand for my firm and have achieved a level of success that I am proud of at this point in my career. However, eight years of running a small law firm has taken its toll on me.

I recently spoke with a colleague about our careers, and the conversation was similar to one I have had many times with fellow attorneys, all along the spectrum of work experience. Some of us question whether law was the correct career choice, and discuss what else we might do with our lives. These questions seem more poignant when more experienced colleagues warn me to get out of the profession while I still have the opportunity.

I often feel overwhelmed by a load of work that never wanes. When I close one case, there are still multiple pending cases to analyze and handle. While I often feel like my workload is too heavy, I struggle turning away new cases for fear of losing out on income. I continuously think to myself that I just need a short break in life, a reboot period, a breath of fresh air. Still, my caseload grows. My desire is to build my firm, and each year I promise myself that I only need one more year of working to reduce the caseload. However, that cycle has continued year after year. I also struggle with the age-old question attorneys face: “Did I do the best job I could on each case, or am I just going through the motions?”

In addition to the struggles I face running a law office, and managing the business overhead, I worry about how it all affects my personal life. My student loan debt lingers, making me wonder monthly whether law school was worth the cost. I married in January and we paid for the wedding ourselves, which added to the growing weight of debt on my shoulders. And while finances are always on my mind, I wonder if I give enough time to my family and friends. Far too often, I bring work home with me, adding a level of stress to my personal life. I feel that I care more about answering or returning phone calls and responding to emails after hours than cherishing the small moments with my loved ones. It seems as though I put my clients’ lives before everyone else, including myself. The scariest part is that I recognize it, and I still put my clients first. The vast majority of my clients could not care less about me as long as I get them what they want, so why do I make them such a priority in my life? 

As you read my story, did my professional and personal problems matter to you? Did you connect with them emotionally, maybe having encountered the same ones in your own professional career? Did you experience your own past, present, or future in my story? That is how psychodrama can be used in the court cases. It enables the advocate to tell a story that helps the judge or jury connect with the client. Our profession is centered on zealous advocacy for our clients. If you are interested in learning how to discover and effectively communicate your clients’ stories to others, I recommend attending a psychodrama-based seminar.

Psychodrama is a tool implemented at different stages of trial preparation. The trial lawyer employs storytelling as a device for organizing, understanding, and retaining facts and ideas. Psychodrama assists lawyers in developing their clients’ stories in a manner with which the jury may connect both logically and emotionally.

Psychodrama is not a new concept. Many criminal defense attorneys naturally incorporate psychodramatic techniques into their trials. Similarly, the Reptile Theory was introduced to personal injury cases several years ago. Day in and day out, prosecutors use the concepts of the Reptile Theory on jurors without knowledge of the theory. Prosecutors appeal to a jury’s anger or fear by getting them mad at, or scared of, our clients.

Psychodrama, however, is not a miraculous concept assuring you win your case. John Ackerman once explained that psychodrama has its limitations. Although the process helps you connect with yourself, your clients, and your juries, psychodrama simply enables us to develop and communicate the story. Just as a baker has a special recipe, a criminal defense attorney should have his or her recipe for success. Learning psychodramatic techniques provides a lawyer with an efficient and systematic approach to defending criminal cases. It is another tool for the tool belt, not an all-in-one solution. Nevertheless, we can show every client we care by discovering their story and sharing it.

Judges and juries must see themselves in our client’s stories, regardless of how good or bad our client appears in the facts presented. Without that connection, we are simply trial attorneys presenting arguments on the facts. As defense attorneys, we have the unique opportunity to make a difference in the lives of our clients. Through psychodrama, we have the competitive edge to differentiate ourselves from other advocates. I hope this article makes you question whether you can better discover and communicate your client’s story. If so, please join us at the next TCDLA trial seminar in Round Top, Texas.

The Ballad of Baldo Cortez and ‘Lefty’

Lawyers realize the kind of personal physical courage required to see a good cop through a night-watch shift in a crime-infested neighborhood where few sympathize with the job he must do. Even more, they fully appreciate the kind of moral fiber required to keep a cop straight despite the lack of public support and the many pressures to “cut corners.” Most lawyers suspect they don’t have the moxie it takes to be a good cop—the truth is that few people do.

Policemen, for their part, soon learn which lawyers are so closely allied with their clients’ activities as to become criminals themselves, and which are the professionals they ought to be. They appreciate the distinction better than most, and respect a lawyer who plays it straight down the middle, representing his clients zealously but with integrity. Many cops admire the way a lawyer makes his way with his wits and secretly wish they’d pursued their education a little further, so they could wear the suits and ask the questions in court.

Acknowledging the foregoing, it is particularly challenging for a lawyer who undertakes the defense of a person charged with killing, or attempting to kill, a police officer. I participated in three such cases as a defense lawyer. In two of the cases, the officer was killed; in the third, he was merely wounded. In all three cases, the officer involved was a good cop, courageously doing his duty. In that case, the defendant was deservedly acquitted.

Benito Mata had been called to a west side bar to see if he could do something with his brother, Baldemar, who had gotten very drunk and was waving a pistol around and generally terrorizing the place.

Baldemar had always been more than a little different, and was notorious for his behavior when in his cups. He dreamed of himself as some sort of modern Gregorio Cortez. Cortez had led a huge posse of Gonzales County deputies and Texas Rangers on an extended chase all over South Texas and Northern Mexico after killing the sheriff in Gonzales County. The circumstances under which the killing occurred, during an apparently unjustified assault upon the Cortez home (coupled with Gregorio’s success in eluding the posse), had made Cortez a Mexican-American folk hero.

That had all occurred in the ’30s, when the relationships between the Rangers (called Los Rinches in Spanish) and the Mexican-American people could hardly have been worse. Though those relationships are better now, and had improved even by the ’70s, memories were long, and the “Ballad of Gregorio Cortez” could still be found on the jukebox in many a South Texas cantina.

Baldemar (Baldo to those who knew him) quite simply—when drunk—dreamed of dying in a hail of bullets in a shootout with the police—and of the cantinas of San Antonio and South Texas reverberating in 3/4 time with the strains of the “Ballad of Baldemar Mata.” Strangely, considering Baldo’s bizarre obsession with this idea, when drunk, he never presented any particular problem to the police when he was sober. On this occasion, however, he was very, very drunk and armed with a .32 revolver. That’s why the bartender called Benito and unfortunately the police.

When Benito got to the bar, he found Baldo sitting at a table in a back corner nursing a beer. The .32 was on the table in front of him. He caught sight of Benito walking toward the table, knew Benito was going to try to stop him, and didn’t want to be stopped. He picked up the .32, pointed it at his brother, and ordered him to get out of his way. The cops were going to be coming, he said, and Benito was blocking the light.

Que haces, Baldo?” Benito said, “What are you doing?”

No sabes que ellos se van a matarle? Don’t you know that they are going to kill you if you keep this up?”

About that time, Baldo saw an officer approaching the bar. He hoisted himself to his feet and began to stagger forward. He brushed the smaller Benito aside and stumbled toward the door, pistol in hand. He got to the door before the officer did, and having the advantage of the cover of near darkness, squeezed off a round before the officer ever saw him.

He hit the officer in the thigh, knocking him to the ground. The officer began to pull himself back to cover behind his patrol car, and Baldo came out of the bar to follow him. Benito came out of the bar and grabbed Baldo, trying to drag him away. Baldo kept trying to brush him aside, so that he could get to the wounded officer to shoot him again. Just about at that moment, a cover officer arrived. Seeing his brother officer down and bleeding and Baldo stalking him with his arm outstretched holding a .32, he drew his service revolver, aimed, and fired. The bullet caught Baldo right between the eyes, killing him instantly.

When Benito ran towards his already-dead brother, his actions were misinterpreted; the officers thought he was going for Baldo’s gun to continue the exchange. The gun was kicked out of the way and Benito was tackled and quickly handcuffed. Benito’s earlier action, in trying to drag Baldo away, was also understandably misinterpreted as an attempt to help Baldo escape.

All of this led to Benito’s arrest, indictment for attempted capital murder for what the police believed to be his efforts to help his brother assault the officer, and eventual trial. At the trial, witnesses from inside the bar testified to Benito’s efforts to disarm Baldo and take him home before the police arrived. Benito testified that he was trying to drag Baldo away to keep him from shooting the officer again.

The jury found him not guilty.

I have never had trouble understanding the police not wanting to hear Benito’s protestations of his innocence—particularly when they were interspersed with tears for his dead brother. I don’t think Benito did, either.

If the Ballad of Baldo Cortez has been written, I’ve never heard it.

September 2017 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
23 | Social Media Evidence – By Frank Sellers
31 | Packingham v. North Carolina: Will the U.S. Supreme Court’s Decision Impact a “Sex Offender” Law in Texas? – By Richard Gladden
37 | Psycho …What? – By Justin Kiechler
39 | The Ballad of Baldo Cortez & ‘Lefty’ – By Judge Pat Priest

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

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

President’s Message: What Would You Have Done? – By David E. Moore

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In January of 1933, Adolf Hitler was sworn in as Chancellor of Germany. Convincing the German masses that he alone was their hope for the restoration and preservation of Germany, he quickly began to consolidate his power and implement his programs.

In February, the Reichstag building that housed the German Parliament was burned. Many historians believe the fire was started by Nazis; others attribute the fire to the hand of a lone-wolf socialist. Whatever the truth, the Nazis immediately seized the propaganda opportunity and proclaimed it to be the result of a Communist Party conspiracy (which nearly all historians agree it was not).

In addition to arresting and charging several Communists, including their party leader, Hitler and the Nazis used the event as an opportunity to round up and detain their political and ideological opponents under the guise of national security. The day following the fire, at Hitler’s urging, Germany suspended many rights of its residents—including freedom of the press, freedom of assembly, rights related to privacy, and warrant requirements.

The Nazis enacted a rule of “protective detention” or “protective custody” that had nothing to do with protecting the poor soul who was detained. Without judicial review, the police could now arrest and detain opponents of the Nazis. The police alone would now decide whether or not a person posed some threat to the regime, and if so, they could arrest them without a warrant. What began as a way to stifle political opposition soon morphed into a tool to be wielded against racial enemies: the Jews, the Poles, the Gypsies and others. The doctrine of preventive detention was later expanded to include societal enemies—the criminals, the homeless, people with disabilities, homosexuals, and anyone else who fell beneath the standards of the Third Reich.

In March 1933, Germany passed the Enabling Act, essentially giving Hitler dictatorial powers. A month later, Jewish lawyers and judges, with some limited exceptions, were excluded from practicing law. A boycott of Jewish businesses was begun by the Nazis.

After the death of Hindenburg, in 1934 Hitler assumed total control of Germany, becoming Fuhrer and Chancellor and eliminating the presidency.

Then, in September 1935, the Nuremberg Laws were enacted by the Nazis, furthering Hitler’s assault against the Jewish community. The Nuremberg Laws revoked German citizenship for Jews and prohibited marriage and sexual relations between Jews and other Germans. Jews were defined as those who had three or more Jewish grandparents, regardless of their religious affiliation. For the moment, those with lesser degrees of Jewish ancestry retained their rights as Germans, but those of mixed blood would see their rights continue to diminish in the future. While the Nuremberg Laws originally mentioned only Jews, in November the laws were extended to include other “inferior” races, including Gypsies and Blacks.

Where were the lawyers and judges of Germany during Hitler’s march to fascism and the coming atrocities of genocide? After all, in 1933, Hitler had promised that he would safeguard judicial independence in his government. That turned out to be a hollow assurance. For very soon after rising to power, Hitler began a process to remove judges who failed in his words “to recognize the requirements of the hour.”

Dissatisfied with the results of the Reichstag arson trial in which all but one of the defendants were acquitted of arson by the court, Hitler began to create a system of “special courts,” courts who would all too willingly adopt and enforce the Nazi designs. Judges were instructed to no longer be shackled by the old written laws, but instead they were to be guided in their decisions by a concept of gesundes Volksempfinden, which translates into “healthy folk sentiment.” Essentially, judges were challenged to figure out what the Fuhrer would want as a result in the case before them, and then they were given a green light to apply whatever rules necessary to get them there. Most judges got the message. Apparently, the German Supreme Court certainly did since they reportedly never decided a single appeal of the race laws in favor of a defendant.

In 1942, Hitler ratcheted his grip on the legal system with two appointments: Otto Thierack as Reich Minister of Justice and Roland Freisler as President of the People’s Court in Berlin. The People’s Court was designed to speed up the process of purging Germany of her internal enemies. Under Freisler, the People’s Court conducted sham trials where Freisler would praise the Reich, berate the defendants, and convict them without fail. Today, you can watch recordings of this mockery of justice online. Freisler obviously took a perverse pleasure in screaming at the poor souls standing in front of him as he sentenced them to death.

Back to Otto Thierack. As Reich Minister of Justice, he regularly wrote letters to Third Reich judges and prosecutors, training them to be even more radical in their treatment of de­fendants, instructing them to interpret all cases with the ultimate goals of the Fuhrer as their guide. He constantly urged judges and prosecutors to impose more death sentences on the enemies of the Reich.

Thierack even wrote letters of guidance to the defense bar. He warned defense attorneys that they should never criticize the Nazi judicial system. He urged them to put forward less than their best efforts in defending those accused of political and race crimes.

Thierack once penned, “We must free the German Nation of Poles, Russians, Jews and Gypsies.” In another letter, he proclaimed, “In criminal proceedings against Jews, the decisive factor is their Jewishness, rather than their culpability.”

And later, when the rubber-stamp convictions and death sentences of the Nazi judicial machine did not meet the demands of the Fuhrer’s time schedule, Thierack simply removed Jews, Poles, Gypsies, and others from the jurisdiction of the courts and signed them over to the SS, where their fates could be determined in a more expeditious manner. Thierack wrote, “In so doing, I base myself on the principle that the administration of justice can only make a small contribution to the extermination of these people.”

So, where were the members of the German Bar during this atrocious process? Obviously, there were some who were true believers and supported Hitler’s sick views. But the others, how could they stand by and let this happen? Did they fail to recognize the warning signs in the beginning, only to feel powerless later in the process? Were they paralyzed by fear, by thoughts of self-preservation? Why did the majority of them fail so miserably to do anything?

In Germany, there were certainly pockets of resistance to the Nazis. Early on, the resistance mostly came from the left through political opponents like the Social Democratic Party, the Communist Party, or worker’s unions. There were other dissenters such as the student-led White Rose resistance group. What is stunning to me is that according to most historians, there was so little defiance from the legal profession.

To be sure, there were some who stood up.

Among those was Hans Litten, who dared to take Hitler on during the future Fuhrer’s ascension. In 1931, Litten represented two workers who had been stabbed by members of the SA, also known as Brownshirts or Storm Troopers, the paramilitary organization whose brutal intimidation and thuggery played an integral role in Hitler’s rise to power. During the trial, Litten actually subpoenaed Hitler and had him on the stand for three hours. Litten’s goal in the process was to expose Hitler, who at that point was trying to pass himself off as a “politician of the people,” as the instigator in chief of the SA violence. During his examination, he skillfully and logically tried to show how Hitler had encouraged the SA to violently attack opponents of the Nazi Party. Hitler attempted to deny the accusations. Apparently, as Litten scored points with his questioning, Hitler would lose control on the stand and shout at Litten. Unfortunately, at critical junctions of the testimony, in an attempt to control the damage being inflicted, the judge actually interceded on Hitler’s behalf and limited Litten’s questions.

Hitler never forgot Litten. As Hitler’s political fortunes rose, Litten’s friends and family begged him to leave Germany. He refused. Two years after the dramatic courtroom spectacle, in the immediate aftermath of the Reichstag fire, Litten was taken into protective custody. Litten was moved to a series of concentration camps, where he was regularly singled out for particularly gruesome torture due to his previous treatment of the Fuhrer. During some of the torture sessions, his captors would try to extract information about Litten’s friends and former clients. After years of enduring such treatment, and unable to take any more, Litten took his own life by hanging himself.

Rudolf Olden, like Litten an early critic of Hitler, was a lawyer and author. He was one of the first to speak out on Hitler’s mistreatment of the Jews. After the Reichstag fire, the Nazis searched a court for Olden in an effort to locate him and take him into protective custody. They were looking in the wrong court, and Olden, warned by friends, was able to escape. The next day, Olden, on wooden skis, was able to cross the border into Czechoslovakia.

In exile, Olden continued his attack on the Nazis and Hitler through numerous publications, including Hitler the Conqueror, Debunking of a Myth. Olden eventually wound up in England, where he continued to rail against the Nazi regime. In 1940, along with his wife, he boarded a ship to America for a speaking engagement at a New York university. En route, his ship was torpedoed by a German U-boat, and he and his wife both perished.

Another example is Dr. Michael Siegel, who was practicing law in Munich. On March 10, 1933, he walked into a police station to attempt to ascertain why his client, a prominent Jewish department store owner, had been taken into protective custody. Siegel was taken into a room and savagely attacked by members of the SA. With teeth knocked out, an eardrum perforated, and his trousers shorn off, Siegel was paraded shoeless through the streets of Munich by the SA. As shown in the photo above, around his neck hung a sign proclaiming “I will never again complain to the police.” After the SA threatened to shoot him, Siegel made a break for it and managed to get away. He ultimately fled Germany and immigrated to Peru, where he died in 1979.

These three men are a sample of those lawyers who did have the courage to resist. As I think about those who did not, I am reminded of the poem written by German Lutheran pastor Martin Niemöller.

Niemöller, a nationalistic conservative, initially supported Hitler. Later, however, he became an outspoken opponent of the Nazis and their attempted control of German churches and the clergy.

As a result of his new stance, in 1937 he was taken into protective custody. He was moved to various camps before ultimately being imprisoned at Dachau. As the Allies closed in, Niemöller and 140 or so other prisoners who were deemed by the Nazis as having some potential value as hostages were moved to a different location. Although their guards had orders to shoot the group if capture was imminent, they did not and Niemöller was liberated.

He later wrote:

First they came for the Communists,
and I did not speak out—
Because I was not a Communist.

Then they came for the Trade
Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews,
and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to
speak for me.

What would you have done? What would I have done? I hope I would have had the prescience to recognize what was happening and the ability to trust my moral compass. I hope I would have had the courage to take a stand. I pray I will.

Executive Director’s Perspective: A TCDLA Summer – By Joseph A. Martinez

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Please join me in thanking Robb Fickman (Houston) and Chuck Lanehart (Lubbock), our TCDLA 2017 Readings statewide project coordinators. Thanks to their outstanding efforts this year, there were Readings of the Declaration of Independence in over 120 counties across Texas. In addition, the 11 members of “F Troop,” the local coordinators, contributed to the overall success of the project. Robb brought the project to TCDLA from its inception in Houston, and we thank him for having the vision and foresight to do so.

This was my fifth year participating in the readings at the Blackwell Thurman Courthouse in Austin. I firmly believe this is one of the most honored privileges I have has as Executive Director of TCDLA. To stand in front of the public before the halls of justice and speak with a loud voice the words of freedom authored by our founding fathers is beyond description. I strongly recommend you plan on attending and participating in the 2018 Readings Project in your city.

The Texas Special Session is over. TCDLA was represented by Allen and Shea Place.

We want to thank our course directors, Heather Barbieri and John Hunter Smith, for our CDLP Training the Trainers CLE on South Padre Island in July. We require any potential speakers for our CDLP and TCDLA CLE seminars to attend this training. We had 54 attendees.

We want to thank our course directors, Heather Barbieri, Bobby Lerma, John Hunter Smithm and Sheldon Weisfeld, for our Beating the Drum CLE held on South Padre Island in July. Thanks to them and our speakers we had 97 attendees. We also want to thank Bill Trantham (Denton) and Bobby Lerma (Brownsville), past president of TCDLA, for their cooking up the 10th Annual Beach Bar-B-Q. We had over 100 participants.

We held a board orientation for TCDLA/CDLP/TCDLEI board members at South Padre Island. We had 40 participants.

Do you need CLE credit and can’t attend our seminar training? Please call the Home Office (512-478-2514) for a list of the DVDs and CLE credit, or visit the website, at www.tcdla.com, for a listing of online CLE.

Does your local criminal bar need a speaker for your lunch meetings? Please call Melissa Schank (512-478-2514) at the Home Office. CDLP has funds to provide a free legislative update for your local bar.

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

Good verdicts to all.

Editor’s Comment: A Call to Action – By Sarah Roland

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It finally happened. Kind of. In what appeared to be a very impromptu statement on August 10th, our president declared the opioid epidemic a national emergency. What that will do is free up necessary disaster funding to help address the crisis.*

No reasonable person disputes the enormity of the opioid crisis. It has been reported that the opioid crisis kills more than 100 Americans daily. Daily. The Presidential Commission that urged the president to formally designate the crisis a national emergency to help miti­gate the damage compared the loss of life to the September 11th terrorist attacks. That is staggering but sadly, not surprising.

As a society, we have treated addiction as a taboo choice for too long. Let’s call it what it is: Addiction is a disease. Some people have it and some don’t. Maybe people are born with it or maybe it’s acquired. Maybe it’s a combination of genetic predisposition and exposure. The chicken/egg debate of addiction’s genesis doesn’t address the issue, though. Once a person has the disease of addiction, it must be treated, and the origin matters not.

But many, despite clear evidence to the contrary, still believe that addiction is all a matter of self-will (or lack thereof) and choice. Much of the criminal justice system still takes a putative approach to addiction. It is disturbing to read appellate records and hear prosecutors argue that use is all a matter of choice and will power in clear cases of addiction. It is more than a little disheartening to have a young client who is an addict accept a deferred offer on a possession charge, knowing the odds are stacked so high that a motion to adjudicate and eventual sentence of incarceration and criminal record are sure to follow. It is frustrating to be a part of this process.

As the societal debate about what to do about the opioid crisis rages on, I am reminded of something my dad wrote to me a (now) long time ago, before I ever became a lawyer much less the editor of the Voice: “Lawyers are in the best position—by virtue of their education, talent, and positions of influence—to positively address the challenges that our society faces.” So, the question is what can we, as criminal defense lawyers, do to positively address this challenge?

We should be doing everything we can do to be better advocates for our clients. Sometimes being a better advocate means being able to inhabit the perspective of our client and of the other players in the criminal justice system to achieve the best possible result for the client. That often involves stepping beyond our own comfort zone. It means asking better questions and having a deeper discussion. To be addicted should not be taboo. Having lung cancer or diabetes is not taboo. As a society, we don’t place moral blame on the latter class of individuals—and we treat those individuals. What if our criminal justice system did the same for addicts? What would happen if the criminal justice system began seeing addicts as more than their addiction? What would happen if the criminal justice system treated addicts like people deserving of treatment and help rather than discarded wastes of life? Do you think addicts might actually start seeing themselves as worthy of treatment and help rather than discarded wastes of life forever entangled in the “system”? I can tell you from personal experience, the seminar in Roundtop teaches this theory of advocacy and is worth attending.

Sometimes being a better advocate means knowing the law and taking advantage of what the law has to offer. For instance, did you know Chapter Section 462.081 of the Health and Safety Code allows treatment in lieu of jail time for certain misdemeanor offenses without regard to prior criminal history?

(a)   The judge of a court with jurisdiction of misdemeanor cases may remand the defendant to a treatment facility approved by the department to accept court commitments for care and treatment for not more than 90 days, instead of incarceration or fine, if:

(1) the court or a jury has found the defendant guilty of an offense classified as a Class A or B misdemeanor;
(2) the court finds that the offense resulted from or was related to the defendant’s chemical dependency;
(3) a treatment facility approved by the department is available to treat the defendant; and
(4) the treatment facility agrees in writing to admit the defendant under this section.

This is not brand-new legislation either. What would treatment mean for the repeat client with a record who happens to be an addict? Have the discussion with clients, prosecutors, and the court about alternative sentencing options.

Inform clients and their families about the new law insulating from liability “a family member, friend, or other person in a position to assist a person at risk of experiencing an opioid-related drug overdose” who administers an opioid antagonist. See Tex. Health & Safety Code § 483.101, et. seq. Now, there is no legitimate reason for the family, friend, or roommate of an addict to not have an opioid antagonist on hand for overdoses, just like an EpiPen for anaphylactic shock. Many police departments already regularly carry opioid antagonists on patrol, too.

TCDLA should continue to back legislation like that discussed above and continue to be a prominent voice for criminal justice reform in the face of the opioid epidemic. As members of this organization we should all actively offer whatever support we can to our legislative team.

Being a better advocate also means utilizing diversionary programs whenever possible. Diversionary drug court treatment programs are becoming more prominent, but they must be used. We should become involved in the diversionary court process to give voice to the concerns of defense bar and our clients.

Also, what if, instead of accepting at face value a recommendation of incarceration from the probation department on a revocation case, we have frank discussions with the probation officer about what is in the best interest of our client? The worst that can happen is that the probation department sticks by the recommendation of incarceration, and we are no worse off. The best is that the probation department tries something different, and we have a credible witness for a revocation hearing.

The president has finally said he is ready to declare the opioid crisis a national emergency. As criminal defense lawyers both collectively and individually, will we positively address this challenge society currently faces or will we remain silent?

* As of the writing of this article, the paperwork still needs to be drawn up, though.

Off the Back: Will H.B. 3016 Change the Way We Defend DWI Cases? – By Stephen Gustitis

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Deciding to litigate a DWI first offense has historically been a no-brainer. Unless the prosecutor was willing to reduce charges and offer deferred adjudication on obstructing a highway, for instance, teeing-up a jury trial was almost automatic. What did the client have to lose when the best offer was a DWI conviction? Expunging or sealing the records of a conviction was impossible, anyway. But if deferred adjudication for obstructing was on the table, the calculus was much different. Upon successful completion of the deferred the client could apply for a non-disclosure order following the applicable waiting period. Here in Brazos County, neither prosecutors, nor DPS, would object to sealing both the successfully completed deferred and the related DWI arrest records. But the law has now changed regarding the non-disclosure of convictions for certain nonviolent misdemeanors and DWIs. As a result, will the new non-disclosure law that permits the sealing of a DWI first conviction, passed in H.B. 3016 and codified in Chapter 411 of the Texas Government Code, change the calculus about trying DWI first cases? I think the answer is negligibly. First, though, let’s look at some details about the new Government Code provisions.

The Texas Government Code has not provided for the non-disclosure of DWI offenses under any scenario. However, on June 15, 2017, the Governor signed H.B. 3016, becoming effective, retroactively, on September 1, 2017. H.B. 3016 authorized a person convicted of a first-time DWI offense, with a BAC less than 0.15, to petition the court for an order of non-disclosure of criminal history related to that offense. The criteria the petitioner must meet are as follows: (1) they never were convicted or placed on deferred for another offense, except traffic offenses punishable by fine only; (2) they successfully completed any community supervision imposed and any term of confinement; (3) they paid all their fines, costs, and restitution and; (4) the appropriate waiting period has elapsed. The new law does not apply to 2nd or 3rd DWI offenses. Nor does it apply to boating or flying while intoxicated or a DWI involving an accident involving another person (including the passenger of the defendant). Certainly, H.B. 3016 made it easier for a person with a low-level nonviolent offense, like a DWI first, to obtain employment and become a productive member of society. Under these new circumstances, then, should we be accepting more pleas for DWI and trying fewer jury trials? Put another way, does the client risk losing a non-disclosure opportunity because they decided to litigate their guilt? Again, I think the answer is no. In fact, the new rules may even encourage more jury trials.

H.B. 3016 provided for non-disclosure after either successfully completing a term of community supervision (Tex. Gov’t Code Sec. 411.0731) or after completing a sentence, including any term of confinement imposed (Tex. Gov’t Code Sec. 411.0736). The waiting period following a successful probation was 2 years or 5 years, depending upon whether interlock was ordered as part of the sentence. The waiting period following a completed term of confinement was 3 years or 5 years, again depending upon whether interlock was ordered as a condition of the sentence. So it seems, if a client decided to try their DWI first offense, the worst consequence may be a variation in the waiting period after completion of their sentence, if any. What if conviction looks inevitable and the client’s goal is to seal their arrest records as quickly as possible? Then a plea bargain for probation with at least 6 months of interlock would help achieve that goal. On the other hand, if the goal was to roll the dice on a jury trial, and even shoot for a light jail sentence if convicted, then what does the client lose on a non-disclosure? Not much, it appears. Certainly, not enough to compel them to buckle under to a plea bargain for a DWI conviction.

So, even with the advent of non-disclosure for DWI first convictions, criminal defense lawyers can still push forward and encourage their clients to litigate a DWI first without fear of eliminating non-disclosure opportunity. Regardless of the punishment outcome, a client would eventually become eligible to seal their arrest records, everything else being equal. The bottom line, then, is to not deter a client from saying no to a plea bargain, even if it means getting their arrest records sealed later, rather than sooner.