December 2017

The Michael Morton Act was passed after its namesake was released from jail after serving nearly 25 years for a crime he did not commit. “[T]he Legislature passed the Michael Morton Act to ensure that defendants would receive discovery of the evidence the State had in its possession so that they could prepare a defense against it.” Ex parte Pruett, 458 S.W.3d 537, 542 (Tex. Crim. App. 2015) (Alcala, J., dissenting from denial of writ of habeas corpus).

1)   Best Practices for Obtaining Michael Morton Act Compliance

The State’s disclosure requirements under the Michael Morton Act are triggered by a request for production by defense counsel. As an advocate and zealous defender of the citizen accused, you must make filing your production request a high-level priority in every case. This article details the scope of the Act and may assist with arguments in favor of disclosure of evidence under the Act.

Practice pointers:

a.   Draft a template request for each subcategory of evidence listed in the Michael Morton Act. If you file a single request that is too specific, you may accidentally limit the scope of your request. If you file a request specifically designating “39.14(a),” then the trial court, or court of appeals, may rule that your filing failed to trigger the State’s duty under any of the other subdivisions of the Act.

b.   The request should be specific to each subdivision of the Act, and should include a clear and definite statement of what you are requesting and from whom.

Example I: Defendant requests the State provide an itemized list of all evidence that the State has withheld from production, along with a justification for withholding the same. See Tex. CCP 39.14(c). Note: Upon request, the court should hold a hearing to determine whether any withheld evidence is subject to disclosure.

Example II: Defendant requests disclosure of the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence. See Tex. CCP 39.14(b). Note: The from whom piece is of particular import when you are requesting evidence that may be in the care/custody/control of the State but not the prosecutor (e.g.. police department records).

c.   The request does not need to be in motion and order format. The Act is triggered by a request and not by court order. By phrasing the request in motion/order form, you may give the State leeway to argue they need not produce anything until the court orders them to do so. See Espinosa v. State, 853 S.W.2d 36, 38 (Tex. Crim. App. 1993) (proper Rule 404(b) request for notice does not require court order).

d.   File the individual demands for Article 39.14 disclosure early in your case. The longer you have for investigating your defensive theories, the better your advocacy will be for the citizen you represent.

e.   File Michael Morton Act requests separate from your 37.07, 404(b), and 609(f) requests. If you treat them as separate, independent, unique obligations of the State, you are more likely to get the Court to treat them as separate, independent, unique obligations of the State.

2)   Forthcoming Issues with the Application of the Michael Morton Act

As enacted, the Michael Morton Act provides the following:

Subject to the restrictions provided by Section 264.408, Family Code, and Article 39.15 of this code, as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state. The state may provide to the defendant electronic duplicates of any documents or other information described by this article. The rights granted to the defendant under this article do not extend to written communications between the state and an agent, representative, or employee of the state. This article does not authorize the removal of the documents, items, or information from the possession of the state, and any inspection shall be in the presence of a representative of the state.

Tex. Code Crim. Proc. Art. 39.14.

Many questions relating to the scope and interpretation of the Michael Morton Act remain unanswered. First, the savings clause in SB 1611 applied the Michael Morton Act without retroactivity. This means the Act only applied to criminal cases that occurred on or after January 1, 2014. Given the nature of the criminal justice system, the large number of cases reaching plea bargains, and the small percentage of cases going to trial, there have been few opportunities to raise questions relating to the Michael Morton Act. And to make the number of possible cases interpreting the Act even smaller, consider that the State must not only withhold the evidence, they must be caught withholding it during the course of the trial.

A) To What Evidence Does the Michael Morton Act Apply?

The items and information produceable under the Michael Morton Act are far more varied than the disclosure required under Brady v. Maryland. Article: “The Truth Might Set You Free: How the Michael Morton Act Could Fundamentally Change Texas Criminal Discovery, Or Not,” 48 Tex. Tech L. Rev. 893, 903 (hereafter “Fundamentally Change”).

Subsection (a) of article 39.14, which creates the request and disclosure doctrine, extends to documents, papers, statements, and objects “that are in the possession, custody, or control of the state or any person under contract with the state.” Tex. Code Crim. Proc. Ann. art. 39.14(k). Given that “the state” is not defined within the Act, and that prior versions of article 39.14 did not overlap with Brady v. Maryland, the reach of the prosecutorial duty to find and disclose non-Brady material remains somewhat unclear, but the requirement of disclosure of Brady material in subsection (h) certainly suggests that adherence to the constitutional understanding of “possession” should control in some cases. Tex. Code Crim. Proc. Ann. art. 39.14(h); see e.g. Tex. R. Evid. 615.

“Fundamentally Change,” 48 Tex. Tech L. Rev. 893, 910.

Here, the Act outlines its applicability in the first sentence, providing “the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.” Tex. Code Crim. Proc. Ann art. 39.14(a).

While the goal of the Michael Morton Act is admirable, the statutory language leaves much to be desired. For instance, in the first sentence—where the dispute over the scope of the Act arises—the language is particularly problematic. It contains 146 words, including the word “or” 10 times, the word “and” 7 times, and 18 commas. Further, the Act as a whole contains but 4 sentences containing 264 words, 23 commas, and 22 conjunctions. And lest we forget, when engaging in statutory construction, we generally presume that “the entire statute is intended to be effective.” Ex parte Forward, 258 S.W.3d 151, 154 (Tex. Crim. App. 2008); see also Tex. Gov’t Code § 311.021.

B)    What Does “as Soon as Practicable After Receiving a Timely Request” Mean?

Does the Michael Morton Act apply pre-indictment? The answer turns on the interpretation of the phrase “as soon as practicable after receiving a timely request.” Illustrative is Justice Alcala’s concurring opinion denying mandamus relief in In re Carrillo, No. WR-83,345-01 (Tex. Crim. App. Jun. 24, 2015) (not designated for publication). There, the trial court refused to order discovery be produced pre-indictment. Alcala’s concurring opinion stated: “I observe that, as an individual who has been charged by a formal criminal complaint by the district attorney’s office, relator plainly falls within the provisions of Article 39.14 that require that discovery be provided ‘as soon as practicable.’” Id. at 4. “[B]y delaying a defendant’s access to discovery until after grand-jury proceedings and indictment, the district attorney has effectively read an additional provision into the statute that changes the ‘as soon as practicable’ language into ‘as soon as practicable after return of indictment by the grand jury.’ The statute does not impose any such condition on the State’s discovery obligations.” Id. at 4–5. In re Carrillo was decided on the same date as In re Lewis, WR83,367-01, 2015 WL 4775939 (reaching the same conclusion without Alcala’s concurring opinion).

Ultimately, Justice Alcala denied mandamus relief. She reasoned that “language appears to afford the State some discretion in determining a practicable time frame for turning over discovery.” Id. at 5. She further noted that “Relator may seek to challenge the State’s failure to comply with Article 39.14 in the trial court by filing a motion to exclude evidence at the appropriate time. Furthermore, if relator is convicted of the charges of which he is accused, he may challenge the State’s failure to comply with discovery requirements during the course of his direct appeal.” Id. at 6. Ouch! Justice Alcala’s opinion, while unpublished, likely sounded the death knell for mandamus relief for violating the Act. She implied that compliance was not a ministerial duty and the Defendant would have an adequate appellate remedy. The good news, though, was Justice Alcala’s interpretation of the “as soon as practicable” language. By refusing to hold that a pre-indictment request for discovery was untimely, Justice Alcala left opened the door to pre-indictment discovery under the Act. Practitioners should take advantage of this opportunity, especially in cases where an immediate fact investigation is paramount.

Further complicating the analysis is the 11th Court of Appeals conclusion that the trial court lacks jurisdiction to consider a discovery challenge prior to indictment. See In re State ex rel. Munk, 494 S.W.3d 370, 376 (Tex. App.—Eastland 2015, no pet.).

C)    Does the Michael Morton Act Apply to Extraneous Offenses?

The Act probably applies to extraneous offenses, but we don’t know for sure. The key inquiry is whether the extraneous offense information sought via discovery “contain[s] evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.” See Tex. Code Crim. Proc. Ann. art. 39.14(a). Note this is not a Brady style “exculpatory evidence” requirement, but only a materiality requirement. Brady evidence is specifically covered in Tex. Code Crim. Proc. Ann. art. 39.14(h). Id. The legislature’s choice of the words “any matter involved” in the action probably meant that extraneous offense information was included since extraneous offenses are relevant to punishment proceedings in the event of a conviction. Further, if the State intends to use the evidence, it’s probably within the broad scope of “any matter involved in the action.” This is all the more true when one considers the requirement of Tex. Code Crim. Proc. Art. 37.07 that extraneous offense must be proven beyond a reasonable doubt.

However, one caveat regarding this argument is that subject to application of the last antecedent rule of construction with regard to categories of evidence to which the possession language in the Act applies, the extraneous offense evidence must be in the possession of the State. What constitutes in the “possession of the State” has been well litigated within the scope of Tex. R. Evid. 615 and will likely appear as a key piece of the appellate court analysis on this question. In Jenkins v. State, 912 S.W.2d 793, 819 (Tex. Crim. App. 1995) (op. on reh’g) the Court of Criminal Appeals held that Rule 615 only required a prosecutor to produce witness statements that were “in the prosecutor’s possession” or in the possession of the “prosecutorial arm of the government.”

When interpreting Rule 615 in the past, we have stated that a party possesses a statement “if it is within [the party’s] control or readily accessible” [Brooks v. State, 901 S.W.2d 742, 746 (Tex. App.—Fort Worth 1995, pet. ref’d & pet. dism’d)] or in the party’s “actual or constructive possession.” Williams v. State, 940 S.W.2d 802, 805 (Tex. App.—Fort Worth 1997, pet. ref’d); Jordan v. State, 897 S.W.2d 909, 918 (Tex. App.—Fort Worth 1995, no pet.).

Exclusion of extraneous offense discovery may be possible to the extent it is not in the possession of the “State.” However, to exclude offense reports or witness statements of law enforcement officers—also expressly discoverable—would defeat much of the purpose of the Act and would violate the general principle of statutory construction regarding the primacy of the specific provision over the general. See “Fundamentally Change,” 48 Tex. Tech L. Rev. 893, 910, citing Tex. Gov’t Code Ann. § 311.026. It will be interesting to watch the development of this area as creative defense counsel will have an argument under 39.14(c) that the State has an obligation to disclose anything they are withholding.

D) Does the Michael Morton Act Apply to Punishment Evidence?

The legislature’s choice to use the word “any” as frequently as it did when enacting this statute would suggest this is a simple question. The answer should be simple, but the question is also one of first impression. Punishment for a crime is, without a doubt, a “matter involved in the action” as contemplated by the legislature’s choice of that phrase in Article 39.14(a). But again, the inquiry will become “is the evidence in the possession of the State?”

It is difficult to imagine a scenario in which the State is using punishment evidence that is not in their possession. The argument for including punishment evidence within the scope of the Michael Morton Act is similar to the argument that extraneous offense information is within its scope: (1) it’s relevant to the proceeding, and (2) it’s in the State’s possession. It stretches the bounds of credibility to believe a prosecutor would attempt to use punishment evidence that is not “in the prosecutor’s possession” or in the possession of the “prosecutorial arm of the government.” This is especially true where possession is understood to occur “if [the evidence] is within [the party’s] control or readily accessible.” Brooks v. State, 901 S.W.2d 742, 746 (Tex. App.—Fort Worth 1995, pet. ref’d & pet. dism’d).

E) Is Tex. Code Crim. Proc., Art. 37.07 Disclosure Sufficient to Satisfy the State’s Burden Under the Michael Morton Act?

Disclosure pursuant to Article 37.07 would provide notice, but not inspection or the ability to duplicate the evidence. Article 37.07 sec. 3(g) provides:

On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence. If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act. The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.

Tex. Code Crim. Proc., Art. 37.07

Consequently, without the opportunity to duplicate, compliance with Article 37.07 is not compliance with Article 39.14.

F) Does the State Satisfy Its Production Obligation Under the Michael Morton Act by Providing Notice of Extraneous Offenses Pursuant to Tex. Code Crim. Proc. Art. 37.07?

To the extent these provisions are not in conflict with the spirit or the text of the Act, it’s unlikely that “notice” is the functional equivalent of “production” required under the Act. Simply providing a list of extraneous acts to defense counsel would not comply with the production mandate of the Michael Morton Act. Moreover, allowing notice to supplant disclosure would violate the fundamental cannon of statutory construction to not render any statutory language meaningless. See Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008) (court must not interpret a statute in a manner that renders any part of the statute meaningless or superfluous). In other words, holding that the Michael Morton Act applied only to the State’s case-in-chief would render the legislature’s choice of the words “any offense report” entirely superfluous. This would “defeat[] the very purpose of the legislature’s carefully chosen words.” Ritchie v. Rupe, 443 S.W.3d 856, 898 (Tex. 2014).

If Article 37.07 notice were sufficient, its sufficiency would have been incorporated into the Michael Morton Act via a clause specifically stating the Michael Morton Act was supplemental to Article 37.07. In the absence of such a clause, a court should not assume Article 37.07 notice shields the State’s non-disclosure of evidence. Article 37.07 notice requires only the date on which, and county in which, the bad act occurred and the name of the victim. That would be a woefully incomplete offense report and should not satisfy the “inspection and duplication” provision of the Act.

G) Is Tex. R. Evid. 404(b) Notice Sufficient to Satisfy the State’s Burden of Production Under the Act?

For the same reasons that Article 37.07 notice is likely insufficient, compliance with Rule 404(b) is likely insufficient to satisfy the production mandate of the Michael Morton Act. Rule 404(b) provides:

[Crimes, wrongs, or other acts] evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On timely request by a defendant in a criminal case, the prosecutor must provide reasonable notice before trial that the prosecution intends to introduce such evidence—other than that arising in the same transaction—in its case-in-chief.

Tex. R. Evid. 404(b)(2)

As with Article 37.07, Rule 404(b) creates a notice obligation triggered by the timely request of defense counsel. Importantly, notice is not production. And where there is no conflict between the Michael Morton Act and Rule 404(b), a court is mandated by canons of statutory construction to give full effect to both.

H) Does the Distinction Between Punishment Evidence and Extraneous Offense Evidence Matter?

The difference between punishment evidence and extraneous offense evidence should not matter. But it could be given significance depending upon whether the evidence is in the possession (whether actual or constructive) of the State. Ultimately, the distinction is one of form over substance. If the State intended to use extraneous offense evidence, it would likely be at the punishment stage of trial. The common-sense exceptions are offenses, like DWI 3rd or DWLI with priors, where the extraneous offense is a jurisdictional element. In that case, the argument that the Michael Morton Act applied becomes even stronger as that evidence related directly to a jurisdictional element of the offense.

I) If I Suspect a Michael Morton Act Violation, What Should I Do?

During trial, if you suspect the State may have violated the Michael Morton Act, the most important actions are: (1) object and delineate with specificity the evidence the State withheld, (2) move for a continuance to adequately investigate and prepare against the evidence, (3) articulate harm on the record, and (4) obtain adverse rulings. Because the Michael Morton Act’s purpose was to avoid trial by surprise, the court of appeals would likely interpret untimely disclosure in a way similar to a Rule 404(b) or an Article 37.07 violation. If the court admits the evidence and denies your motion for continuance, continue to object pursuant to the applicable rules and statutes. Consider requesting a running objection to the court’s denial of your continuance and to admission of the evidence. Lastly, work hard to develop the trial court record showing how the non-disclosure of evidence resulted in harm to your client.

We, as defense attorneys, are quickly becoming inundated with data. The purpose of this article is to proffer some form of potential solution to the problem created by an increase in material we, presumably, are obligated to personally review.

When I first started practicing as a defense attorney, cell phones were virtually nonexistent in the landscape of information that the prosecutor would have. Don’t get me wrong: They did exist, but not in the form they are today. Previously, all a cell phone was capable of was making and accepting phone calls. There were no cell phones with the ability to text, take or modify photographs, take or modify videos, interface with Facebook/Twitter/Snapchat, etc.—not to mention text messages, emails, and GPS information. In today’s world, police officers routinely seek out affidavits to both acquire the accused’s cell phone and perform searches within it. Luckily, the United States Supreme Court has helped a little in this regard.¹ Most surprisingly, our very own Court of Criminal Appeals, shortly prior to the United States Supreme Court, also held that a warrant was required to search the contents of a cell phone.² The problem now has become that it is commonplace for the police to obtain those warrants only then to obtain the entire contents of the phone.

This is only the tip of the problem. Not only have cell phones changed the landscape; so has the digitization of almost every other type of media. Previously, we had videotapes, audio tapes, and actual photographs. Now we have digital video, digital audio, and digital photographs, and the list keeps increasing depending on what is dreamed up next. The only limit on the number and size of these files seems to be the space available on the storage device. In addition, this digitization process includes all sources the prosecutors seek information from—e.g., hospitals, emergency services, phone providers, and more. We now have, in addition to in-car video (both front facing and client facing), body camera video. We have video from inside the sally ports, video from the book in process, video from the intox room, etc. Lately, jails have taken to recording every phone call made and making those recorded calls available to the prosecutor. Here in Denton, the county jail is also providing video visitation, which is being recorded. This only represents the available information from the prosecution. This is important as, pursuant to the Morton Act³ and Schultz v. Comm’n for Lawyer Discipline, SBOT Case No. D0121247202, December 17, 2015,⁴ it is incumbent on the prosecution to turn all this information over to the defense attorney.

The problem that all of this digitized evidence creates is two-fold: how to properly store such mass quantities of digital evidence and finding the time to personally review each and every piece provided. I’m not going to deal with the time issue at this point as it seems to me to be a huge gray area. The purpose of this article is to propose that each of us find a way to store these files pursuant to the obligations imposed on us.

Let’s begin with what our collective obligations are in storing our clients’ files. Pursuant to Rule 1.14(a) of the Texas Disciplinary Rules of Professional Conduct, we are to maintain our clients’ files for five years after the representation ends. Of course, that is just a rule of thumb. I presume that the safer course of action would be to maintain each file until five years after the sentence has been completed, whether that sentence results in some form of probation or incarceration. For purposes of this article, I am presuming the above storage time period is being used.

Many lawyers are utilizing cloud storage of some sort. There are various opinions floating around the states indicating that use of such storage is satisfactory, provided proper safeguards are in place. If you wish to utilize such a method, please review the necessary privacy policies, encryption policies, and file ownership policies. Also, you will need to have something in place should your cloud storage provider cease operating. The last thing you want to happen is for your client files/data to be locked away outside your ability to retrieve them and have your client show up wanting a copy of something. Of course, it is incumbent on us to make sure we house those files until the appropriate time period expires.

For those not using cloud storage, I will walk you through my recent efforts to find a way to resolve this storage issue. I have stacks of DVDs from when the local prosecution used to burn copies of the in-car digital video pertaining to my client. That’s not the medium to transfer discovery any longer. As a result of the increase in digital information, the local prosecution is now requesting flash drives rather than DVDs, which are limited to approximately 4.7 GB—unless, of course, they are double layer. I recently delivered a 2-terabyte portable hard drive for purposes of copying the requested data. As this started increasing, I went online and purchased numerous flash drives in multiple sizes. Once I did so, the thought that was the genesis of this article hit me: “Where can I keep all of this data?” Keeping up with something as small as a flash drive is problematic. I have devised a way to physically store them within each file, but that won’t solve two problems: physical file destruction and technology advancements.

I have been scanning and digitizing the contents of my physical files for years. Upon the resolution of a client’s case, I gather all the digital information and place it in an archive. My digital files are an exact duplicate of the physical ones. I maintain physical files during the active portion of the client’s case in order to have the information readily accessible.⁵ Once the case is concluded—not immediately, but on a routine basis—I have my staff purge the physical files. This is, of course, after the archive process has taken place. Should a client come and request something from their file, it is a simple matter to print it for them.

Due to the increase in data, my archive files began to overwhelm my backup system.⁶ After hitting that new issue, I was forced to find a separate solution for these enormous files—one that would accommodate the file retention requirements. Archiving PDF files, unless something absolutely huge is present, is a relatively minor issue, and that has become the predominant file type and size in the client’s file itself. Those continue to migrate to my regular archiving and backup systems, as do the photographs and other smaller files. When it comes to the video files or larger data driven files, those are now housed on my NAS (Network Attached Storage). That has become my solution to the storage problem. I created a networked desktop running an operating system dedicated to such a solution. There are presently four 4 TB drives in a RAID (redundant array of independent disks) configuration available for housing all of this data. I haven’t looked lately, but I believe, due to the RAID configuration, there is approximately 13 TB realistically available. I chose the RAID configuration in order to ensure that the data was properly protected from hardware failures. Now, when I receive these large data files, I go through a process that uploads those files to my storage unit, and I also copy them to a portable hard drive for day-to-day use. The NAS is truly there to ensure that I will have access to the files no matter what. By use of this system, in addition to the archiving process set forth above, I have found that I can readily reproduce a client’s file in its entirety upon request.

The other issue, technology advancement, is something that each of us need to keep in mind. By example, not too long ago I happened to have a matter in—at that time—the very new Tarrant County civil courthouse. The courtrooms are equipped with all manner of digital devices and interfaces. As I was waiting, I was chatting with the bailiff about the system and its use. I jokingly said that technology would quickly cause them problems, and he informed me that as new as that building was, it already had. Apparently, Apple, in redesigning the iPad with a different port, had already caused an interface problem. I’m not sure that any of us can completely stop this type of situation from happening. Cassette tapes, 8 tracks, and videotapes, if they exist in a case, will be hard to access at this point as there are few if any machines available to play them. The same, eventually, will be true of DVDs, CDs, and flash drives.

Storing your files in the cloud may insulate you, to some degree, from this issue. That will depend upon how future-proof your cloud access presently is. As I don’t utilize, in a third-party way, those services, my need for preservation of access to the files themselves had to be considered. I recently had a hard drive fail. If you keep them in operation long enough, each of you will have this problem. I use systems that aren’t necessarily mainstream, so I had to pick some manner that would withstand some of these changes. Local Area Networks (LANs) have been around for quite some time. The advances in the way they operate (not the wireless type) are not as rapid and earth-changing as other hardware. Since I view the hardware as relatively stable, the choice to utilize it in ensuring file access was easy. Essentially, my systems can all speak to that storage device, and I utilize long-running applications⁷ to both upload and download files.

Each of you will need to formulate your policies with regard to the manner in which you comply with the rules. This was so much easier when the most we had was a videotape from a stop or pictures from an assault. Now, even the simplest of misdemeanor prosecutions provides an exponential increase in the digital size of our files. As an example, I have a simple burglary of a vehicle case where there are two audio interviews, five video interviews, eight homeowner security videos, and eleven photographs provided. That is just the digital portion. I also have 25 PDF files from the prosecutor’s office. The property alleged to have been taken from the vehicle is a small flashlight and a knife.

I also have a Class B possession of marijuana charge that I was provided four very large video files: two body cam videos (one from the patrol officer and one from the bicycle officer) and two in-car videos. While the volume of information seems disproportionate to the charge itself, this is a regular occurrence. This is the very reason I believe each of us needs to consider our obligations and the methods we use to comply. This problem will likely never get smaller or stagnate, and we, as defense attorneys, need to prepare for this rapid increase in digitization of our files. I hope this helps you in your future efforts to keep your files in order.

Endnotes

1. Riley v. California, 573 U.S. ___, 134 S.Ct. 2473 (2014).

2. State v. Granville, 423 S.W.3d 399 (Tex. Crim. App. 2014)

3. Tex. Code Crim. Proc. Ann. art. 39.14.

4. http://www.txboda.org/sites/default/files/Schultz55649 Opinion.pdf.

5. Yes, I am aware of services such as Dropbox, that would allow me electronic access, but I am simply not as comfortable with that as I am with actual paper documents. I am sure that many of you are utilizing those products. I am just an old dog.

6. I regularly back up both active and archived files to a portable encrypted hard drive and take those off site as most IT professionals recommend.

7. File Transfer Protocol (FTP) is what I use most easily but the reality is that I could just drag and drop as with most present day operating systems.

According to Black’s Law Dictionary, alibi is “a defense based on the physical impossibility of a defendant’s guilt by placing the defendant in a location other than the scene of the crime at the relevant time” and “the quality, state, or condition of having been elsewhere when an offense was committed.” Black’s Law Dictionary (10th ed. 2014). While not being present is a defense available in both State and Federal Court, the execution of such a defense is dramatically different in the two arenas.

State Court

In State Court, it is a myth that the defense must disclose information surrounding the use of an Alibi defense to the Prosecution. A cursory search of both the Penal Code and Code of Criminal Procedure demonstrates that the word “alibi” rarely comes up. Alibi is neither enumerated as a Defense, Tex. Penal Code § 2.03, nor as an Affirmative Defense, Tex. Penal Code § 2.04. The Code of Criminal Procedure reveals that while § 39.14 requires the defense to disclose expert witnesses and § 46C.051 requires that the defense provide notice of their intent to raise the Insanity Defense, there is no such provision assigning any affirmative defensive duty to provide notice of alibi to the State.

The question arises how to approach jury instructions for alibi. Case law indicates that the defense is not entitled to an instruction. Giesberg v. State, 984 S.W.2d 245 (Tex.Crim.App. 1998). “The defensive issue of alibi involves nothing more than the presentation of evidence and argument that a defendant was not present at the scene of the crime to commit the crime.” Id. at 250. Giesberg eliminates any right to such an instruction because “a defense which is not recognized by the Legislature as either a defense or as an affirmative defense does not warrant a separate instruction.” Id. In his dissent, Justice Baird points out that the CCA has seized discretion from the trial court by outright eliminating any right to an alibi instruction. Id. at 252. Giesberg provides a disquieting history lesson: The Court’s interpretation of the lack of legislation defining specific defenses further eroded potential instructions associated with defenses that had been previously available.

Federal Court

The approach to an alibi defense is completely different in the federal system. Rule 12.1 lays out a mandatory framework by which the defense is required to timely provide information to the Government. F.R. Crim. P. 12.1. The requirements include written notice of any intended alibi defense that includes “each specific place where the defendant claims to have been at the time of the alleged offense” and “the name, address, and telephone number of each alibi witness on whom the defendant intends to rely.” F.R. Crim. P. 12.1(a).

While Rule 12.1 requires that the defense notice the Government of the alibi defense, along with requiring the defense to provide witnesses, there is a duty on the Government, once the defense has provided an alibi disclosure, to provide in writing the names and contact information for witnesses that “the government intends to rely on to establish that the defendant was present at the scene of the alleged offense” and “each government rebuttal witness to the defendant’s alibi defense.” F.R. Crim. P. 12.1(b)(1)(A)(i)-(ii).

There is a continued duty to disclose this information as the case moves forward. F.R. Crim. P. 12.1(c). Interestingly enough, as far as alibi disclosures are concerned, the defense can “unring” the bell. In the event that the defense discloses an alibi defense, and subsequently withdraws that notice, “evidence of an intention to rely on an alibi defense” is inadmissible. F.R. Crim. P. 12.1(f).

While alibi is available in both federal and state criminal litigation, lying behind the log with an alibi is only viable in State Court, as disclosure of such a defense is mandatory in Federal Criminal litigation.

Your Honors, this case was tried before the Honorable James N. Browning, Judge of the 47th Judicial District, but that is not the only reason it should be reversed.

—Prairie Dog Lawyer Tom Turner, circa 1900
Argument before the Amarillo Court of Appeals

The Lubbock Criminal Defense Lawyers Association’s upcoming 37th annual seminar—set January 5–6 at the Texas Tech University School of Law—has been an important and popular continuing legal education event for decades. About ten years ago, a new name was adopted for the course: “The Prairie Dog Lawyers Advanced Criminal Defense Seminar.”

Most folks naturally assume the name is an innocuous reference to Lubbock’s semi-famous Prairie Dog Town, a third-rate tourist attraction teeming with the semi-cute little furry creatures. Instead, the title carries quite a bit more weight. The Prairie Dog Lawyers were a celebrated generation of pioneer attorneys and judges who brought a measure of justice to 19th century West Texas, generating many inspiring and humorous narratives.

The most famous Prairie Dog Lawyer was Temple Lea Houston, youngest son of the iconic Texas hero Sam Houston. The younger Houston’s adventures as a Panhandle trial lawyer in the 1890s inspired several books and an NBC television series starring Jeffrey Hunter, “Temple Houston” (1963–1964).

I’m not entirely sure how it was decided to name our annual seminar the “Prairie Dog,” but I believe it evolved from a conversation I had in about 2006 with Austin lawyer Keith Hampton, a fellow legal historian. We were comparing notes on an old book, The Prairie Dog Lawyer, by Charles E. Coombes, published in 1945. The manuscript is a treasure-trove of stories about law practice on the Texas South Plains and the Panhandle from the 1880s through the turn of the last century.

The foreword, written by Amon Carter—founder of the Fort Worth Star-Telegram—includes a transcript of a delightful speech delivered by the noted humorist, 7th Court of Appeals Judge R. W. Hall, at the 1929 Texas Bar Association meeting at Amarillo. Though filled with archaic language and sometimes offensive humor (which has been deleted here), the text is essential Texas legal lore:

The Prairie Dog Lawyer
By Judge R. W. Hall

        I have been requested to respond to the usual toast “The Prairie Dog Lawyer,” one of whom I am and proud of it. As applied to those of our profession who came to the wide-open spaces of Northwest Texas when they were peopled with prairie dogs, coyotes, jackrabbits, bad men, and worse women, the phrase “Prairie Dog Lawyer” was not intended in any sense to be laudatory or eulogistic. As then used and intended, it was a nickname, and worse, for it was often applied as an epithet. While it originated in a spirit of ridicule, many of those who were so classified made it famous and respected, just as others in the past who have been called in derision Quakers, Methodists, Crusaders, Rebels, Yanks, Cowpunchers, Clodhoppers, and Sky Pilots have made such names honorable and have baptized and christened them in martyrs’ blood and glorified them by deeds of heroism and sacrifice. This is emphatically true of most of those original old pioneer Prairie Dog Lawyers who lived and died in the years that are gone and whose cases have been appealed to the bar of the Judge of all the Earth. Because I knew and loved them I approach my subject with bowed head and my hat in hand.

        Prominent among such heroes were Judge Frank Willis, Governor Jim Browning, Senator Bill Plemmons, Judge Will Boyce, Senator John Veale, Sam Madden, Lorenzo Dow Miller, Dave Hill, Temple Houston, Gip Brown, B. M. Baker, S. P. Huff, H. H. Wallace, Woodman, and others whom I might mention and who have gone over the Great Divide. When measured and weighed by the Decalogue and the Sermon on the Mount they were not all perfect, but they were strong, rugged characters, true to their clients and their profession; their sterling qualities, their loyalty to each other and the eternal principles of justice, is a rich heritage, of which those of the tribe who are still here are justly proud. While they came here from other sections of Texas and from other States, they were always true to the best interests of the Panhandle. In the stormy days of the “Land Jumpers,” and “Fence Cutters,” and “Cattle Rustlers,” they stood in solid phalanx battling for the law and its supremacy. They were like the Irishman who said, “Every man should be loyal to his native country whether he was born there or not.”

        To paraphrase what someone has said of Texas—it is impossible to tell a lie on the Prairie Dog Lawyer. Whatever you say, be it good or bad, it is true of some of them, sometime, somewhere, somehow, and to some extent.

        With few exceptions, the typical Prairie Dog Lawyer never saw even the outside of a law school, and in his estimation a diploma would have been a woeful waste of good shoestring material. The State Examining Board is trying to change all that. The only sheepskins in his possession covered his “Sayles’ Justice’s Guide” and “White & Wilson’s,” four omniscient, omnipresent, and omnipotent volumes, all which legal Pentateuch he could find good law on either side of any question. The ubiquitous law-book man with his decennial revisions and annual supplements is changing that.

        The Prairie Dog Lawyer was a powerful advocate. He was sorter weak on the law occasionally, but strong and long and awfully loud on the facts, so he didn’t need much written law in his business, though he frequently had to appeal to the unwritten law in behalf of his client.

        On one occasion Lorenzo Dow Miller and Hoover had a case in a remote county before an alleged justice of the peace. His Honor ran a saloon on the lower flood and had what was denominated a hotel in the second story. Court was held in the back end of the saloon. When the testimony was all in, Hoover vehemently insisted that the law was one way. Then Miller went into eruption and with more vehe­mence, insisted that the law was the other way. His Honor, who was both judge and jury, drummed on the poker table with his fingers while he listened to the flow of legal lava. Finally Miller pulled out his fee in the case, which happened to be a $10.00 gold piece, threw it on the table in front of the judge and said, “Here’s $10.00 to back up what I say is the law. Now, Hoover, put up or shut up.” There wasn’t a law book within 60 miles. Hoover only had $2.00 in his pocket. But, assuming all the dignity of the King of Clubs (which Hoover can do if necessary) he told the judge that such a proceeding was an insult to the intelligence of the court and that was no way to decide a question of law. His Honor drummed on the table for a few minutes and then said: “Well, Mr. Hoover, money talks. You must ante or drop out of the game. If you ain’t willing to back your judgment on what the law is, she goes again’ you.” And Hoover lost his cause.

. . .

        Few Prairie Dog Lawyers could tell you the difference between an executory devise and a contingent remainder, but they all knew the difference between two pairs and a bobtail flush. Right here I pause long enough to beg you not to be too severe in your judgment. This was long ago when there was no radio, no yo-yo, automobile, country club, moving picture show, Sunday baseball, or cow-pasture pool, and the boys had to play something. The eternal triangle with its glaring headlines didn’t monopolize the front page, because there wasn’t any front page. Wives had not organized the Mutual Aid Societies for semiweekly pistol practice, because women had not commenced to wear children’s clothes in those good ole days. Speer on Marital Rights had not been written, and they didn’t know they had any rights. So, all things considered, while a friendly game of draw with a nickel ante and a two-bit limit was neither strictly legal nor ethical, it was far better than organizing oil-less oil companies, hot air gas trusts, and promoting blue sky corporations to fleece an unwary public.

        In those days horse stealing and cattle rustlin’ were the two unpardonable sins in this country. If a fellow stole a horse, and the evidence was sufficient to convict (to use modern judicial nomenclature), his case was not justiciable. Why waste time and money trying a thief? If the evidence was weak and there was danger of an acquittal, the culprit was hanged to the first cottonwood limb and there was no case to try. If a man was suspected of using his branding irons in the dark of the moon, and a calf with his brand on it was found sucking another man’s cow, the calf’s testimony against him was conclusive and indisputable. The case was not considered judiciable and the county was saved the expense of a trial. To state it in the judicial phraseology and nomenclature of today, the “Basic Data” shown by the partiality of the cow for her mal-branded offspring and the super-imposed inferences to be drawn from the calf’s drawing upon his differently branded source of supply was a postulate marked by unequivocation and provided a concept which negated the implication of innocence or mistake in handling a branding iron. “In other words” the “collaboration” of the cow and calf “intersee” left an “evidentiary margin” for the presumption of innocence, but ex vi necessitate was proof, ex Cathedra as it were, “justifying a decretal presently enforceable” and “resultant”—and they hung the thief forthwith.

        As I have indicated, there was no such thing as a law library in all this broad expanse of country and what few we knew were not rigidly enforced. But, we could advise our clients what the law was today, with reasonable assurance that it would be the same next Wednesday.

        As in the time Israel’s greatest apostasy, those were the days in which “every man did that which was right in his own eyes,” and most men settled their legal and equitable difference by an appeal to the stern arbitrament of a Colt’s fourth-some-odd, which hung conveniently in its holster on his hip.

. . .

        In his rounds, the district judge, as a matter of form, carried the revised statutes of ’79 with him. On one occasion, in going from one county seat to the other, it was necessary for Judge Willis and the lawyers to wade the Canadian River. The stream was badly swollen, but not navigable, at which time the quick sands were extremely treacherous. Woodman, who was more than six feet tall, was leading the procession, holding the statute above his head in both hands to keep it dry. In fact, the code was the only dry thing in the procession . . . Judge Willis, who was short and stumpy complected (he was undressed in one-piece-bathing-revue-costume), was wading immediately behind Woodman. Willis stepped into the quick sands and commenced to sink. He called to Woodman for help. Woodman insisted that with the precious statute in his custody, he could not help the Court. The Court said: “Woodman, drop the statutes. Let the law go to Hell and save the Court.”

        This is still the slogan in many localities. When it becomes necessary to save the Court, the law is secondary consideration and must be thrown overboard, always.

        They tried cases under high pressure. They fought like gladiators and contested every inch of the ground. They practiced law because they loved it and not for revenue only. The profession had not then been commercialized and a lawyer’s ability was not measured by the size of his fees and his balance in the bank.

        To them the jury was the court of last resort, and its verdict was generally final. There were few appeals. They had no court stenographer and the district was 200 miles wide and 400 miles long. An appeal took lots of time and labor. A new lawyer drifted into the district who knew how to appeal. He was at once frowned upon and ostracized because, as Amos Fires expressed it, “That fellow is going to work us all to death with his fool appeals.” Although they were fighters to a finish the verdict was usually the finish, and as soon as the smoke of battle had cleared away and the dust had settled in the arena, all parties (including the Court) repaired to that popular corner where the cowpuncher made his headquarters when in town; and together the one drowned his disappointment and the other celebrated his victory, with their feet on the same rail. The most genial spirit of fraternity prevailed and no one harbored malice or ill-will because of what happened during a trial.

        Tom Turner appealed one case, and when he went to argue it in the Appellate Court, he said: “May it please Your Honors, this case was tried before the Honorable James N. Browning, Judge of the 47th Judicial District, but that is not the only reason it should be reversed. There are twenty-seven others in the record.” Someone told old big-hearted, lovable Jim what Tom had said, and it took Jim nearly all day to get in a good humor again.

        Many of them, like the saddle-bag lawyer of East Texas did years ago, went around the immense district with the Court, but they traveled in buckboards and in hacks. Their lodging place was wherever the shadows of night overtook them and with a Parker to sleep on and a Suggins for a cover, they dreamed under the star-spangled canopy of heaven to the music of the coyote’s chilling serenade.

            But my time is limited. In conclusion let me say that when the Epic of the Panhandle has been written by some genius who has dipped his pen in inspiration and has faithfully portrayed in flowing words the thrilling scenes of those old days that are gone never to return, the Prairie Dog Lawyer will be the central figure in that grand picture.

When one reads about public defender offices, topics tend to center around the problems that public defenders face. There are articles dedicated to the lack of appropriate funding, the often times unmanageable caseloads, and being short staffed. There are even pieces on public defender offices being disciplined for neglecting clients. As I browsed the World Wide Web, digging through public defender association websites, newspapers, and blogs, I came to the realization that there is very little on the advantages of being a public defender and the few I did find could be summed simply: we get trials, we argue a lot, we have resources, and poorer lawyers are happier.

I am here to tell you that there is so, so much more to it than that.¹

Public defenders are in the perfect position to attack systemic issues of injustice such as transport fees, attorney’s fees, and other court costs. We are able to observe and attack bad law enforcement practices, and can go even further than that—we know which law enforcement officer is a bad apple and which one does his best to do his job correctly. We can tell by the name alone on the search warrant affidavit if we are going to have to fight the warrant, and which officer has a habit of making bad stops and bad arrests.

That being said, despite a few bad-apple officers, over time a sort of mutual respect has been built up between our office and law enforcement. Law enforcement understands why we are here—that we have a job to do just like they do—and being on good terms has proven to be beneficial. Some law enforcement investigators are more willing to speak with us about a case that we are prepping for trial, to explain their notes in more detail, and we are able to get reports and videos from the police department directly if need be. We are still adversarial in court when we need to be, but many officers have come to learn that sitting through a rough cross is meant to educate them, not attack them personally.

Our relationship with law enforcement also allows us to monitor the jail population. Our investigators get a jail log every day, which helps them keep up with 15-, 30-, and 90-day relief. If someone is at their 90 days and they are not our client, we have no shame in nudging either the attorney assigned/hired or the court to make sure that they receive relief as well. And speaking of investigators, we have them. They are built into our office. We do not have to ask the court for money to hire an investigator, and we also do not have to ask the court for money to hire an expert. We have a small budget that keeps us from needing to convince a judge for funds to properly do our jobs.

Another advantage is that we are a part of the community. We have built relationships not only with law enforcement, but with our clients, judges, and prosecutors. Yes, I said prosecutors. This may come as a surprise to some, but many of the prosecutors in our small jurisdictions are agreeable. That is not to say that tiffs do not occur, but unlike in big cities, we see the same prosecutors day in and day out. Burning a bridge for one client could mean burnt bridges for the rest (a con, but that is an article for another day). In a way, it is like a game of chess, ensuring that our relationship with a prosecutor is not tarnished all while zealously advocating for our clients. Despite this game, however, there is a trust between the prosecutors and our office, and I do not think that one person I work would say that’s a disadvantage.

So, while there are still major issues that need to be addressed in public defender offices across the country, there are also many advantageous reasons, some of which didn’t make the cut for this article, to working in a public defender office. And hopefully one day, I will come across something on the internet that highlights these advantages and more—and showcases that public defenders are more than just numbers and struggles.

Although Sam had been taken into custody well before noon_, it was after six o’clock by the time his wife, Muriel, arrived at my office with Sam’s dad.

It had been after three o’clock before he completed the booking process and was allowed a phone call. He hadn’t wanted to worry Muriel and had tried to call his dad, but wasn’t able to reach him. By the time he convinced the guard to allow him another phone call it was nearly four.

He’d told Muriel not to worry, that it was all a big mistake, but of course she was very upset to hear that Sam was in jail. By the time she got to my office, her face was red and tear-stained.

She hadn’t known what to do, and it had taken her nearly an hour to find Sam’s father, Ben Minor; then he’d called the only lawyer he knew, a family lawyer who referred him to me. It was nearly 5:30 by the time the lawyer called me, asking me to wait for Ben and Muriel to come to my office. All they knew when they got there was that Sam had been charged with some sort of theft from the United States mail, and was in the County Jail. They were sure there was some mistake, because Sam just wasn’t the kind of man to do a thing like that.

There was nothing new about this scenario, of course. The families of most young men who find themselves afoul of the law begin by believing there has been some sort of mistake.

Unfortunately, however, it usually turns out that the mistake has been made by the one who finds himself in jail. By calling the booking desk at the jail, I was able to verify that he was, indeed, charged with mail theft, and bail had been set by the Federal magistrate at $200,000. Due to the hour_, I was not able to learn anything more from official sources, all of whom had shut down for the day. I explained what little I could under the circumstances to Ben and Muriel, and promised to call them as soon as I’d had a chance to talk with Sam.

I went straight from the office to the jail. They brought Sam down from the Federal floor to the attorney conference room. I introduced myself, told him about his wife and father coming to see me and explained that I was there to do what I could to be of help.

He told me straight off that he had no idea why he was in jail, and that, like his wife and father, he was sure there had been some mistake made.

He was employed as an airline freight handler. He met all the flights for his airline, and picked up all the air freight and mail cargo. He would deliver the mail to the post office en route to the airline freight terminal from the flight line.

He’d met all the flights that morning, from the time his shift began at 5:00 a.m. until he’d been called into the boss’ office about ten o’clock.

He could sense that something was wrong when the boss walked out of the office as he walked in, leaving him alone with two men in suits.

They asked if he was Sam Minor and, when he said that he was, introduced themselves as agents of the Federal Bureau of Investigation. They told him that they were investigating a theft from the United States mail.

He was about to tell them he’d be happy to help in any way he could when one of them cut him short, advising him that he was a suspect in the matter.

Sam had reacted incredulously, and the degree of his disbelief multiplied when the man began reading him his Miranda warnings: “You have the right to remain silent,” etc.

They then told him that a shipment consisting of two bread loaf–size wooden boxes containing solid gold jewelry had arrived via air mail that morning, but that only one of the two boxes had reached the post office.

They knew that only he had had access to the gold, knew from his boss that he had been at work all morning, and demanded to know where he had stashed the stolen gold.

Sam had insisted that he knew nothing about the missing gold. He remembered the two wooden boxes, he said, precisely because they were wooden; wooden boxes were unusual if for no other reason than that they added so much to the weight and thus the added cost of air mail postage. He’d had no idea they contained gold, he said, but was sure he had delivered both to the post office.

They simply were not buying that story, though, and a short time later advised Sam that he was under arrest (I later learned that another agent had by that time secured a warrant for Sam’s arrest). He’d been taken to jail, where the things I’ve already described had taken place.

Sam seemed particularly worried about Muriel, and how she was taking his arrest. He explained that she was 3½ months pregnant and had been having a difficult time of it. He was really worried that his arrest was going to cause her additional problems.

I didn’t know what to believe. I was just meeting Sam, knew nothing about him, and had no idea just what the government “had” on him.

He had just given me a motive, however. He had a pretty young pregnant wife who was having a troubled (translate “expensive”) pregnancy and was working in a relatively low-paying job with rather limited future prospects. Many a man has stolen for less cause.

I explained that I would get in touch with the United States Attorney’s office the next day to see what I could learn about the case. He said he’d be all right overnight, just tell Muriel and his dad not to be worried about him. I then realized just how little he understood of the situation he was in.

“You’re likely to be here a good deal longer than overnight,” I told him. Making a $200,000 bond would cost about $20,000, perhaps more, and neither he nor his father could afford any such sum.

Getting the bail reduced was going to require a hearing before the Federal Magistrate, and local rules entitled the U.S. Attorney to five working days’ notice before any such hearing could be held.

I was hopeful that we could arrange a more reasonable bail at such a hearing, but pointed out that five working days was a full week, and he was likely to be in jail at least that long.

It was at that point—when the only one he’d talked to all day who was trying to help him told him that he was about to spend at least a week in jail—that the enormity of the situation really completely sank in.

Tears welled up in his eyes as he protested: “But Mr. Priest, I swear to you, I’m not guilty. I don’t know nothing about that gold.”

I promised to come back the next day, after talking to the U.S. Attorney, and tell him what I’d learned.

I went home, called Muriel, and gave her and Ben a report, explained that I’d see the prosecutor the next day, and promised to get back with them after doing so.

The next morning I called the U.S. Attorney’s office and was advised that the case had been assigned to Ray Jahn, an experienced AUSA (Assistant United States Attorney) with whom I had previously dealt on a number of occasions. Ray was a good prosecutor—tough but fair. Unfortunately, on that particular morning he was out of the office—he’d gone to Austin on something or the other.

I left word for Ray that I would be representing Sam, and asked that he call me as soon as he got back in town. He in fact got back with me later that morning from Austin.

“Pat,” he said, “I understand that you represent that kid, Sam Minor.”

I acknowledged that I did, and thanked him for calling. “I’ll tell you what,” he said. “I’m feeling like Santa Claus. Just tell him that if he’ll give the gold back I’ll let him have pretrial diversion.”

That was very good news. Ray was giving the young man a chance to walk away from this entire matter—without a prosecution, not merely without a conviction. All he had to do was tell where the gold was and he’d be “on the ground” by nightfall, with no other obligation than to attend three or four lectures on the general subject of Thou Shalt Not Steal.

“Thanks, Ray. I’ll go talk with him right away,” I said, “but I’ve gotta tell you, so far he’s telling me he knows nothing about it.”

“Right,” said Ray, “knows nothing about it. Well, just tell him this offer’s only good for 24 hours.”

I wasn’t able to get back to the jail to see Sam until after 5:00 that day (Perry Mason is absolutely the only lawyer there is who handles only one case at a time). I must’ve had a big smile on my face there in the conference room, though, as I could see Sam’s face light up when he saw mine, clearly sensing that I had good news.

“Sam,” I said, “you are a lucky devil! The prosecutor’s willing to let you off with pretrial diversion if you’ll just return the gold.”

He didn’t understand what I was talking about, he said, and would I explain what I meant?

I explained what pretrial diversion meant, that he’d just have to go to three or four counseling classes and the entire matter would be dropped. All we had to do was tell the FBI where the gold was.

Sam sat there for a good long while with his head bowed, obviously letting what I had told him sink in and giving it thought.

At last, his head came up and his eyes met mine. Once again, I could see that his eyes were brimming with tears, and his voice was choked as he spoke.

“Let me see if I understand what you’re telling me. If I stole the gold and would tell where it was, I could get out of jail today, is that right?”

I acknowledged that it was.

“But,” he continued, “if I didn’t steal the gold and don’t know where it is, I’ll be in here for at least another week, may not get out then if you can’t get the bail reduced enough, and I’ll have to pay you a bunch of money to prove I’m not guilty. Is that right?”

It didn’t seem like the time to explain that the prosecutor had the burden of proving his guilt, so I just agreed that he was pretty close to right.

“Mr. Priest, I swear to God—I don’t know nothing about that gold! I didn’t steal it!”

I left him sitting there, head down, choking back the tears. I went on home and called Muriel and explained the day’s developments. She cried a little on the phone, but thanked me for calling. I promised to keep her advised.

The next day I called Ray Jahn and advised him of developments. He said it was too bad we couldn’t work it out and he’d see me at the bond hearing. I had a conference with Muriel and Ben a couple of days later explaining what we’d need to prove at the bond hearing, which had been set for the next week. I also went by the jail to see Sam again to explain to him what would be involved.

Otherwise, I spent most of the time until the day of the hearing working on other cases for other clients. On the day of the hearing, Ben and Muriel met me at my office and we walked over to the Federal Courthouse. At the entrance, we submitted to the humiliating but mandatory search of Muriel’s purse and my briefcase, walked through the metal detectors, and took the elevator to the magistrate’s floor.

As we got off the elevator, an FBI agent, who had obviously been waiting for us, walked rapidly over to where we were. “Mr. Priest?” he asked. “May I speak with you in private, sir?”

I agreed, of course, anticipating that he wanted to convey some further offer the government was prepared to extend to Sam.

After we had walked a few feet down the hall, he stopped, turned to me, and said: “Mr. Priest, I’m afraid there has been a serious mistake made. An employee of the post office confessed this morning that it was he who took the gold shipment. All charges against Mr. Minor are being dropped. Please extend our sincere apologies to him and to his family.”

I was flabbergasted, and more than a little embarrassed, for as he spoke those words I realized that I had no more given my client the presumption of innocence than had the FBI, and that I was as surprised as they that someone else had confessed.

I try to remind myself of Sam’s case from time to time. I’ve been a judge for most of the time since I represented Sam, and this case has helped me remember the presumption of innocence and its important role in keeping our system fair. Let’s hope none of us ever forgets.