Monthly archive

August 2018

September 2018 SDR – Voice for the Defense Vol. 47, No. 7

Voice for the Defense Volume 47, 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

Editor’s note: The SCOTUS is on summer break until the end of September.

United States Court of Appeals for the Fifth Circuit

United States v. Anchundia-Espinoza, No. 17-40584, 2018 U.S. App. LEXIS 20921 (5th Cir. July 27, 2018) (designated for publication) [§ 3553(f) safety valve and minor-participant adjustment]

        A district court’s legal interpretation of a statutory provision is reviewed de novo, and factual findings are reviewed for clear error, and if the district court’s account of the evidence is plausible considering the entire record, the court may not reverse even if had it been sitting as trier of fact, it might have weighed the evidence differently

        Per the safety valve provision of U.S.S.G. § 5C1.2, a court may sentence a defendant below the statutory minimum sentence if he meets the criteria under 18 U.S.C. § 3553(f): (1) the defendant does not have more than 1 criminal history point; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) concerning the offense; (3) the offense did not result in any death or serious bodily injury; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense and was not engaged in a continuing criminal enterprise; and (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information does not preclude a determination by the court that the defendant has complied with this requirement.

        Under U.S.S.G. § 5C1.2(a), the § 3553(f) safety valve applies only to offenses under 21 U.S.C. § 841, § 844, § 846, § 960, or § 963, and the court will not deviate from this list.

        The defendant bears the burden of proving by a preponderance of the evidence that a requested adjustment to the total offense level is warranted.

        Whether a defendant was a minor or minimal participant is a factual determination that is reviewed for clear error.

        A minor-participant adjustment is not appropriate simply because a defendant does less than other participants. To qualify as a minor-participant, a defendant must have been peripheral to the advancement of the illicit activity. Determining minor-participation is a sophisticated factual determination made by the sentencing judge.

        Under U.S.S.G. §5C1.2(a), the §3553(f) safety valve applies only to offenses

Editor’s Note: U.S.S.G. § 5C1.2 is sometimes not much of a safety valve.

United States v. Brown, No. 17-40740, 2018 U.S. App. LEXIS 21713 (5th Cir. Aug. 6, 2018) (designated for publication) [Venue for a false-statement crime under 18 U.S.C. § 1001]

        Under 18 U.S.C. § 1001, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the U.S. government knowingly and willfully: (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry, commits a crime punishable by up to 5 years in prison. Making a false statement to a federal credit institution can be tried under § 1001.

        Under 18 U.S.C. § 3237, any offense begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed. Any offense involving the use of the mails, transportation in interstate or foreign commerce, or the importation of an object or person into the United States is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be prosecuted in any district from, through, or into which such commerce, mail, or imported object or person moves.

        Venue for a crime committed under 18 U.S.C. § 1001 can be the district where the false statement was made or originated or where the false statement was received by the U.S. government.

Erickson v. Davis, No. 16-20651, 2018 U.S. App. LEXIS 18840 (5th Cir. July 11, 2018) (designated for publication) [SOL and tolling under 28 U.S.C. § 2244 for petitions filed under 28 U.S.C. § 2254]

        Under 28 U.S.C. § 2244(d)(1)(A), a prisoner in state custody must file a federal petition under 28 U.S.C. § 2254 within one year from the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. Under 28 U.S.C. § 2244(d)(2), this SOL is tolled during the pendency of a properly filed application for State postconviction or other collateral review.

        A conviction becomes “final” 30 days after the final ruling of a Texas court of appeals when a petitioner does not file a PDR or 90 days after the final ruling of the TCCA when a petitioner does not file a petition for writ of certiorari.

        A decision becomes “final” by the conclusion of direct review or the expiration of the time for seeking such review. Because “direct review” includes a petition for certiorari to the SCOTUS, the conclusion of “direct review” is when the SCOTUS either rejects the petition for certiorari or rules on its merits. Under Jimenez v. Quarterman, 555 U.S. 113 (2009), a conviction is not “final” if it is still capable of modification through direct appeal to the SCOTUS on certiorari review. If the conviction does not become final by the conclusion of direct review, it becomes final by the expiration of the time for seeking such review.

United States v. Halverson, No. 17-40661, 2018 U.S. App. LEXIS 21065 (5th Cir. July 30, 2018) (designated for publication) [5-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B) for distributing child porn and restitution]

        Sentencing decisions are reviewed by: (1) determining whether the district court committed a significant procedural error by reviewing the district court’s application of the sentencing guidelines de novo and factual findings for clear error; if there was a procedural error, remand is required unless the government can establish that the error was harmless (the harmless-error doctrine applies only if the proponent of the sentence convincingly demonstrates that the district court would have imposed the same sentence: (i) had it not made the error, and (ii) for the same reasons it gave at sentencing. The government must point to evidence showing that the district court had a certain sentence in mind and would have imposed it notwithstanding the error); and (2) if there is no procedural error or the error was harmless, the Court reviews the substantive reasonableness of the sentence under an abuse-of-discretion standard.

        Defendants who knowingly use peer-to-peer file sharing software engage in the kind of distribution contemplated by U.S.S.G. § 2G2.2(b)(3)(B): “distributed in exchange for any valuable consideration” means the defendant agreed to an exchange with another person under which the defendant knowingly distributed for the specific purpose of obtaining something of valuable consideration from that other person such as child pornographic material, preferential access to child pornographic material, or access to a child.

        The test for applying the 5-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B) for distributing child porn to others requires a court to find by a preponderance of the evidence: (1) the defendant agreed to an exchange with another person, (2) the defendant knowingly distributed child pornography to that person (3) for obtaining something of valuable consideration, and (4) the valuable consideration came from that person.

        Under 18 U.S.C. § 2259, restitution is mandatory and a defendant must pay the victim “the full amount of the victim’s losses” that includes: (A) medical services for physical, psychiatric, or psychological care; (B) physical and occupational therapy or rehabilitation; (C) necessary transportation, temporary housing, and child care expenses; (D) lost income; (E) attorneys’ fees and other costs incurred; and (F) other losses suffered by the victim as a proximate result of the offense.

        Under Paroline v. United States, 134 S.Ct. 1710 (2014), restitution payments are limited to the extent the offense proximately caused losses. A district court must assess from available evidence the significance of the defendant’s conduct considering the broader causal process that produced the victim’s losses. This determination cannot be a precise mathematical inquiry but instead involves the use of discretion and sound judgment.

United States v. Ponce, No. 17-20329, 2018 U.S. App. LEXIS 20409 (5th Cir. July 23, 2018) (designated for publication) [Illegal reentry under 8 U.S.C. § 1326]

        Arguments raised for the first time in a reply brief are forfeited.

        An offense under 8 U.S.C. § 1326 (illegal reentry after deportation) begins at the time the defendant illegally reenters the country and does not become complete unless or until the defendant is found by [immigration authorities] in the United States.

United States v. Robles-Avalos & Guevara-Lopez, Nos. 17-50633 & 17-51037 (5th Cir. July 12, 2018) (designated for publication) [Roving patrols at the border and Fourth Amendment]

        For reasonable suspicion to stop a vehicle while on roving patrol, an agent must be aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicle’s occupant is engaged in criminal activity

        Under United States v. Olivares-Pacheco, 633 F.3d 399, 402 (5th Cir. 2011), and United States v. Brignoni-Ponce, 422 U.S. 873, 884–885 (1975), to determine whether reasonable suspicion existed for a stop near the border by a roving patrol, a court must consider: (1) the area’s proximity to the border; (2) the characteristics of the area; (3) usual traffic patterns; (4) the experience of the agents in detecting illegal activity; (5) the driver’s behavior; (6) the aspects or characteristics of the vehicle; (7) information about recent illegal trafficking of aliens or narcotics in the area; and (8) the number of passengers and their appearance and behavior. Based on these factors, a court considers the totality of the circumstances to see whether the agent had a particularized and objective basis for his suspicion. The agent may draw on his experience and specialized training to make inferences from and deductions about the cumulative information available to him that might elude an untrained person.

United States v. Smith, No. 17-30065, 2018 U.S. App. LEXIS 19283 (5th Cir. July 13, 2018) (designated for publication) [Faretta and post-waiver right to counsel]

        Under the Sixth Amendment, in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel. A defendant may waive this right and proceed pro se. Once he does so, ordinarily the waiver can be withdrawn and the right to counsel can be reasserted.

        The postwaiver right to counsel is not unqualified. A defendant is not entitled to choreograph special appearances by counsel, repeatedly alternate his position on counsel to delay his trial, or otherwise obstruct the orderly administration of justice. However, a trial court must have some basis for concluding that a defendant is attempting to delay or obstruct the proceedings and determine whether appointing counsel will require delay. Even where a defendant is vigorously attempting to delay the start of trial, a district court cannot deny his motion to be represented by counsel without reason to think that the representation would impede the orderly administration of justice. If no delay is required for a defendant to exercise his right to counsel, the defendant shall have the option to be represented by counsel to the extent that he can do so without interrupting the orderly processes of the court.

Editor’s note: Under Faretta v. California, 422 U.S. 806 (1975), if: (1) a defendant clearly and unequivocally declares to a trial judge that he wants to represent himself and does not want counsel, (2) the record affirmatively shows that a defendant is literate, competent, and understanding and that he is voluntarily exercising his informed free will, and (3) the trial judge warns the defendant that he thinks it is “a mistake not to accept the assistance of counsel” and that the defendant will “be required to follow all the ‘ground rules’ of trial procedure,” the right of self-representation cannot be denied.

United States v. Spalding, No. 16-10289, 2018 U.S. App. LEXIS 17422 (5th Cir. June 26, 2018) (designated for publication) [Wire & mail fraud, false statement during bankruptcy proceeding, sufficiency of the evidence, no Fifth Amendment right against uncompelled testimony, and summary charts]

        Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), when reviewing the sufficiency of the evidence, a court view all evidence, whether circumstantial or direct, in the light most favorable to the government, with all reasonable inferences and credibility choices to be made in support of the jury’s verdict. The jury retains the sole authority to weigh any conflicting evidence and to evaluate the credibility of witnesses. Evidence is sufficient to support a conviction if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The inquiry is limited to whether the jury’s verdict was reasonable, not whether the reviewing court believes it to be correct.

        Under 18 U.S.C. § 1343, wire fraud requires: (1) a scheme to defraud; (2) the use of, or causing the use of, wire communications to execute the scheme; and (3) a specific intent to defraud. Under 18 U.S.C. § 1341, mail fraud is the same as wire fraud ex­cept the second element involves “use of the mails” (not wires) to execute the scheme. Showing a “scheme to defraud” requires proof that a defendant made a false or fraudulent material misrepresentation.

        Under 18 U.S.C. § 152(2), a person gives false testimony during a bankruptcy proceeding if: (1) there is a bankruptcy proceeding; (2) a statement was made under penalty of perjury in a bankruptcy proceeding; (3) the statement concerned a material fact; (4) the statement was false; and (5) the defendant made it knowingly and fraudulently.

        Review of suppression motions on appeal requires: (1) the merits (factual findings get clear-error deference and legal conclusions de novo), and (2) injury (whether the violation was harmless beyond a reasonable doubt).

        Under Roberts v. United States, 445 U.S. 552, 559 (1980), the Fifth-Amendment privilege is not “self-executing.” If a defendant desires the protection of the privilege, he must claim it, or his statements will not be considered “compelled” under the Fifth Amendment.

        Admission of evidence is reviewed for abuse of discretion. If there is error, it is excused unless it had a substantial and injurious effect or influence in determining the jury’s verdict.

        Under Fed. Rule Evid. 1006, a party may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. Rule 1006 applies to summary charts based on evidence previously admitted but which is so voluminous that in-court review by the jury would be inconvenient. Such charts are admissible when: (1) they are based on competent evidence already before the jury, (2) the primary evidence used to construct the charts is available to the other side for comparison so that the correctness of the summary may be tested, (3) the chart preparer is available for cross-examination, and (4) the jury is properly instructed concerning use of the charts. Because a chart admitted under Rule 1006 is substantive evidence, jurors may bring it to the deliberation room. Because summaries are elevated under Rule 1006 to the position of evidence, care must be taken to omit argumentative matter in their preparation unless the jury believes that such matter is itself evidence of the assertion it makes. Courts must be scrupulous in assuring that the summary accurately portrays the contents of the underlying material and guard against summaries that contain argument.

        The presence of an inference in a summary chart is not per se prejudicial. There is no harm if the exhibit does not suggest any conclusions unsupported by the evidence, the district court properly instructs the jury, and the defendant conducts a “full cross-examination” of the chart’s author

United States v. Swenson, No. 17-20131, 2018 U.S. App. LEXIS 18184 (5th Cir. July 3, 2018) (designated for publication) [Discovery sanctions and dismissal with prejudice]

        Under Brady v. Maryland, 373 U.S. 83 (1963), and Youngblood v. West Virginia, 547 U.S. 867, 869 (2006), the government violates a defendant’s due process rights if it withholds evidence that is favorable and material irrespective of the good faith or bad faith of the prosecution. To prevail on a Brady claim, a defendant must show: (1) the evidence at issue was fa­vor­able to the accused, either because it was exculpatory or impeaching; (2) the evidence was suppressed by the prosecution; and (3) the evidence was material. Brady extends to impeachment evidence as well as exculpatory evidence.

        Evidence that is turned over to the defense before or dur­ing trial is not considered suppressed. When a defendant challenges the late production of impeachment evidence, the analysis turns on whether the defendant was prejudiced by the tardy disclosure. If the defendant received the material in time to put it to effective use at trial, his conviction should not be reversed because it was not disclosed as early as it might have and, indeed, should have been. Mere speculation that a trial might have gone differently is insufficient to show the requisite prejudice from a tardy disclosure.

        A district court has broad discretion when deciding whether to impose sanctions for discovery violations. Before em­ploying sanctions, it must consider: (1) the reasons why disclosure was not made; (2) the amount of prejudice to the opposing party; (3) the feasibility of curing such prejudice with a continuance of the trial; and (4) any other relevant circumstances. If the district court decides to sanction a party, it should impose the least severe sanction that will accomplish the desired result, which is prompt and full compliance with the court’s discovery orders.

        Even in the case of the most egregious prosecutorial misconduct, an indictment may be dismissed only upon a showing of actual prejudice to the accused. Mere error or oversight is neither gross negligence nor intentional misconduct. Whether the court is acting under its supervisory authority or its duty to protect the constitutional rights of defendants, an indictment may be dismissed only where the case has been unfairly prejudiced.

United States v. Villafranco-Elizondo, No. 17-30530, 2018 U.S. App. LEXIS 20938 (5th Cir. July 27, 2018) (designated for publication) [Reasonable suspicion to prolong a traffic stop and drug-dog’s failure to alert]

        Under Terry v. Ohio, 392 U.S. 1 (1968), the legality of a traffic stop is considered by asking whether the: (1) initial stop was valid; and (2) officer’s subsequent actions were reasonably related to the circumstances that justified the stop, or to dispelling his reasonable suspicion developed during the stop.

        A lawful traffic stop must be based on an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred or is about to occur. District courts must consider the facts and circumstances of each case, giving due regard to the experience and training of the law enforcement officers, to determine whether the actions taken by the officers, including the length of the detention, were reasonable under the circumstances. Subjective motivations of police are irrelevant so long as their conduct does not exceed what they are objectively authorized to do.

        A traffic stop may only last so long as is reasonably necessary to effectuate the purpose of the stop. Once the purpose justifying the stop has been served, the detained person must be free to leave. But, officers have some latitude when speaking to a suspect during a routine traffic stop. A police officer may examine the driver’s license and registration and run a computer check to investigate whether the driver has outstanding warrants and if the vehicle is stolen. An officer may also ask about the purpose and itinerary of his trip. However, the permissible duration of the stop is limited to the time reasonably necessary to complete a brief investigation within the scope of the stop. An officer may ask questions outside the scope but only so long as such questions do not extend the duration of the stop. It is the length of the detention, not the questions asked, that makes a stop unreasonable.

        In a traffic stop, once all relevant computer checks have come back clean, there is no more reasonable suspicion and continued questioning unconstitutionally prolongs the detention. Where the officer develops reasonable suspicion of another crime during the traffic stop, he may prolong the detention until he has dispelled that newly-formed suspicion

        Failure of a drug dog to alert does not deprive officers of existing probable cause.

United States v. Winchel, No. 16-11208, 2018 U.S. App. LEXIS 19511 (5th Cir. July 17, 2018) (designated for publication) [Restitution under Paroline and 18 U.S.C. § 2259]

        Under Paroline v. United States, 134 S.Ct. 1710 (2014), though it need not be exact, a district court’s restitution order should represent an application of law, “not a decisionmaker’s caprice.”

        Under 18 U.S.C. § 2259, a district court “shall order restitution” for certain offenses, including those listed in § 2251. The order of restitution must cover “the full amount of the victim’s losses as determined by the court,” and “victim” includes a minor’s guardians. Losses include costs incurred for psychiatric and psychological care, rehabilitation, necessary transportation, lost income, attorneys’ fees, and any other losses suffered by the victim as a proximate result of the offense. The government bears the burden of proving the amount of the loss sustained by the victim.

        An order of restitution that exceeds the victim’s actual losses or damages is an illegal sentence.

Texas Court of Criminal Appeals

Editor’s note: The TCCA is on summer break.

Texas Courts of Appeals

DPS v. L.V., No. 03-17-00809-CV, 2018 Tex. App. LEXIS 6152 (Tex. App. Austin August 7, 2018) (designated for publication) [Restricted appeals; record required during expunction hearing]

        Under Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014), to prevail on a restricted appeal, DPS must establish that: (1) it filed notice of the restricted appeal within six months after judgment was signed; (2) it was a party to the un­derlying lawsuit; (3) it did not participate in the hearing that resulted in the complained-of judgment and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. The “face of the record” is all papers on file in the appeal that were before the trial court including the reporter’s record.

        Under Tex. Code Crim. Proc. Art. 55.01(a)(2), a petitioner seeking expunction must prove: (1) he has been released; (2) the charge, if any, has not resulted in final conviction; (3) the charge, if any, is no longer pending; and (4) there was no court-ordered community supervision under Chapter 42A.

        An evidentiary hearing on a petition for expunction is required unless the trial court has at its disposal all the information it needs to resolve the issues in the petition for expunction; for example, through pleadings, summary judgment proof, or by judicially noticed court records. Without a reporter’s record from the hearing, however, an appellate court cannot know what evidence, if any, was introduced. The appellate court cannot determine whether the evidence was sufficient to support the order of expunction. Nor can it evaluate whether the expunction decision was based on a misinterpretation of the expunction statute or on the evidence before it.

Dunham v. State, No. 14-17-00098-CR, 2018 Tex. App. LEXIS 5149 (Tex. App. Houston [14th Dist.] July 10, 2018) (designated for publication) [Tex. Penal Code § 32.42 is a circumstances-of-conduct offense that does not require unanimity on the criminal act committed and focuses on what the defendant did “during the course of business.”]

        Under Tex. Penal Code § 32.42(b)(7) & (9) & (12), a person commits an offense if during the course of business he intentionally, knowingly, recklessly, or with criminal negligence commits one or more of the following deceptive business practices: (7) representing that a commodity or service is of a certain style, grade, or model if it is of another; (9) representing the price of property or service falsely or in a way tending to mislead; or (12) making a materially false or misleading statement: (A) in an advertisement for the purchase or sale of property or service; or (B) otherwise in connection with the purchase or sale of property or service. “Business” includes trade and commerce and advertising, selling, and buying service or property.

        Tex. Penal Code § 32.42 criminalizes conduct both leading up to and during the completion of a business transaction. It can be committed in all aspects of the transaction and is not excused merely by a signature on a contract stating appropriate terms. The relevant inquiry is not what the complainant knew at the time she signed the contract but focuses on what the defendant did (what he represented) “during the course of business.”

        Under Young v. State, 341 S.W.3d 417, 423 (Tex. Crim. App. 2011), there are three categories of criminal offenses: result of conduct, nature of conduct, and circumstances of conduct.

        Under O’Brien v. State, 544 S.W.3d 376, 382 (Tex. Crim. App. 2018), a jury must reach a unanimous verdict. Jurors must agree that the defendant committed one specific crime, but not that the defendant committed the crime in one specific way or even with one specific act. Jurors must agree on each essential element of the crime. Unanimity is not violated when the jury charge presents the jury with the option of choosing among various alternative manner and means of committing the same statutorily defined offense. A court determines what the jury must be unanimous about by conducting a statutory analysis that ascertains the focus or gravamen of the offense. If the gravamen of the crime is the nature of the conduct, the jury must be unanimous about the specific criminal act committed. If the gravamen of the crime is a circumstance surrounding the conduct, unanimity is required about the existence of the circumstance of the offense.

        Under O’Brien, 544 S.W.3d at 384, determining the gravamen of an offense is a question of the Legislature’s intent. To determine the intent, a court looks to the text: If the plain language is clear and unambiguous, the analysis ends because the Legislature must be understood to mean what it expressed. Every word, phrase, and clause should be given effect if reasonably possible.

        Under Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007), a court examines a statute to determine whether the Legislature created (1) multiple, separate offenses, or (2) a single offense with different methods or means of commission.

        Under O’Brien, 544 S.W.3d at 386, the eighth-grade-grammar test focuses on the statutory verb and its direct object. The elements include the subject (defendant); the main verb; the direct object if the main verb requires a direct object (the offense is a result-oriented crime); and the specific occasion (the date phrase within the indictment narrowed to one specific incident regardless of the date alleged). Adverbial phrases introduced by the preposition “by” describe the manner and means of committing the offense and are not the gravamen nor elements on which the jury must be unanimous. Nature-of-conduct offenses use different verbs in different subsections to indicate that the Legislature intended to punish distinct types of conduct.

        Tex. Penal Code § 32.42 is a circumstances-of-conduct offense that does not require unanimity on the criminal act committed.

Green v. State, No. 14-17-00112-CR, 2018 Tex. App. LEXIS 5221 (Tex. App. Houston [14th Dist.] July 12, 2018) (designated for publication) [No prejudice under Strickland if a defendant instructs trial counsel not to offer mitigating evidence]

        A trial court’s ruling on an MNT is reviewed for an abuse of discretion. A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. When deciding whether the trial court abused its discretion, the reviewing court considers the evidence in the light most favorable to the trial court’s ruling and defers to its credibility determinations. The reviewing court presumes that the trial court implicitly made all reasonable factual findings that could have been made in support of its ruling and will conclude that the trial court abused its discretion only if no reasonable view of the record could support its ruling.

        Under Strickland v. Washington, 466 U.S. 668, 687 (1984), and Harrington v. Richter, 562 U.S. 86, 112 (2011), to show ineffective counsel, a defendant must prove by a preponderance of the evidence that trial counsel’s performance was deficient and so prejudicial that it deprived him of a fair trial. To establish prejudice, the defendant must show a reasonable probability that, but for trial counsel’s deficient performance, the result of the proceeding would have been different. The likelihood of a different result must be substantial, not just conceivable.

        Under Schriro v. Landrigan, 550 U.S. 465, 475 (2007), as a matter of law, a defendant cannot show that he was prejudiced when he instructs trial counsel not to offer mitigating evidence.

Hinojosa v. State, No. 01-16-00516-CR, 2018 Tex. App. LEXIS 4822 (Tex. App. Houston [1st Dist.] June 28, 2018) (designated for publication) [Waiver of jury trial, venue and location of underlying acts for Continuous Sexual Abuse under Tex. Penal Code § 21.02(b)]

        Under Hobbs v. State, 298 S.W.3d 193, 197 (Tex. Crim. App. 2009), and Tex. Code Crim. Proc. Art. 1.13(a), a defendant facing felony charges may waive his right to a jury trial. The record must reflect that he made an express, knowing, and in­telligent waiver in person, in writing, and in open court. Because neither the Texas nor federal constitution require that this waiver be written, a violation of this aspect of Art. 1.13(a) constitutes a statutory rather than a constitutional error. When there is no written jury waiver, a defendant is not harmed by the violation if the record otherwise reflects that he knew about his right to a jury trial and he waived this right.

        Under Tex. Rule App. Proc. 44.2(b), the standard of review for nonconstitutional errors requires a reviewing court to disregard the error unless it affected the appellant’s substantial rights.

        Where a judgment states that the defendant waived his right to a jury trial, and the defendant does not present evidence to the contrary, a court presumes that the defendant knew of his right to a jury trial and waived it.

        Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), and Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010), to determine whether evidence is legally sufficient, a reviewing court determines whether, after viewing the evidence in the light most favorable to the verdict, the trier of fact was rationally justified in finding the essential elements of the crime beyond a reasonable doubt. The reviewing court considers events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and common design to do the prohibited act. It is not required that each fact “point directly and independently to the guilt of the appellant” if the cumulative force of all the incriminating circumstances is sufficient to support the conviction.

        Under Schmutz v. State, 440 S.W.3d 29, 34 (Tex. Crim. App. 2014), venue is not a “criminative fact” and therefore is not an element of an offense for purposes of evaluating legal sufficiency.

        Under Tex. Penal Code § 21.02(b), a person is guilty of continuous sexual abuse of a child if: (1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and (2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age, regardless of whether the actor knows the age of the victim at the time of the offense. An “act of sexual abuse” includes aggravated kidnapping, indecency with a child, sexual assault, aggravated sexual assault, burglary (if the actor intended to commit one of the four previously listed offenses), sexual performance of a child, trafficking for sexual purposes, and compelling prostitution. Tex. Penal Code § 21.02(c).

        Under Price v. State, 434 S.W.3d 601, 605–606 (Tex. Crim. App. 2014), the State may seek one conviction under Tex. Penal Code § 21.02 for multiple acts of sexual abuse over an extended time. The location of the sexual acts is not an element of the offense, so the statute does not require all elements of the offense to be committed in one county.

In re The State of Texas, No. 08-18-00070-CR, 2018 Tex. App. LEXIS 5444 (Tex. App. El Paso July 18, 2018) (designated for publication) [Mandamus, defense right to evidence under Tex. Code Crim. Proc. Arts. 39.15 & 38.45]

        Under In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex.Crim.App. 2013), to be entitled to mandamus relief, the relator must show that: (1) he has no adequate remedy at law; and (2) what he seeks to compel is a ministerial act. The ministerial act requirement is satisfied if the relator can show a clear right to the relief sought. A clear right to relief is shown when the facts and circumstances dictate but one rational decision under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly controlling legal principles.

        The State has no remedy by appeal because under Tex. Code Crim. Proc. Art. 44.01, the State’s right to appeal does not include the type of order entered by the court during the trial of this case. Mandamus relief is appropriate if the State establishes it has a clear right to the relief sought.

        Under Tex. Code Crim. Proc. Art. 39.15, a court shall deny any request by a defendant to copy, photograph, duplicate, or otherwise reproduce material (depicting child pornography or a CAC interview) provided that the state makes the property or material reasonably available to the defendant. Such material is “reasonably available” if at a facility under the control of the state the state provides ample opportunity for the inspection, viewing, and examination of the property or material by the defendant, defendant’s attorney, and an expert.

        Under Tex. Code Crim. Proc. Art. 38.45, during a criminal proceeding, the court may not make available or allow to be made available for copying or dissemination to the public material (depicting child pornography or a CAC interview) The court shall place such material under seal on conclusion of the proceeding. The State, the defendant, or expert shall be provided access to this material. The court may issue an order lifting the seal if it finds that doing so is in the best interest of the public.

        By its plain language, Art. 38.45 prohibits a trial court from allowing property or materials that constitute child pornography to be copied during a criminal proceeding.

        Under Tex. Rule Evid. 611 and Dang v. State, 154 S.W.3d 616, 619 (Tex. Crim. App. 2005), trial courts have broad discretion in managing the course of a trial generally by exercising reasonable control over the mode and order of examining witnesses and presenting evidence to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment. The trial court has the power and obligation to control the courtroom for ascertaining the truth, promoting judicial economy, and protecting witnesses. Rule 611 does not authorize a court to dictate the form a party’s evidence must take unless the order accomplishes one of the goals described in Rule 611.

West v. State, No. 14-17-00094-CR & 14-17-00095-CR, 2018 Tex. App. LEXIS 5215 (Tex. App. Houston [14th Dist.] July 12, 2018) (designated for publication) [Admission of prior convictions under Tex. Code Crim. Proc. Art. 38.37 § 2(b)]

        Under Tex. Code Crim. Proc. Art. 38.37 § 2(b), notwithstanding Tex. Rule Evid. 404 and 405, and subject to Tex. Code Crim. Proc. Art. 38.37 § 2-a, evidence that a defendant has com­mitted certain offenses against a child may be admitted in the trial of a defendant for indecency with a child for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.

        Under Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007), review of a trial court’s decision to admit evidence is for abuse of discretion.

        When evidence is admitted under Tex. Code Crim. Proc. Art. 38.37 § 2(b), the trial court still must conduct a Rule 403 balancing test upon proper objection or request, which au­tho­rizes a court to exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. In overruling a Rule 403 objection, a trial court is presumed to have performed the balancing test and determined that the evidence was admissible. It is the defendant’s burden to demonstrate that the danger of unfair prejudice substantially outweighs the probative value.

        In reviewing the trial court’s balancing determination under Rule 403, a court reverses rarely and only after a clear abuse of discretion.

        Under Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006), in determining whether the trial court abused its discretion in admitting the evidence over a 403 objection, the court balances the inherent probative force of the proffered item of evidence along with the proponent’s need for that evidence against (1) any tendency of the evidence to suggest decision on an improper basis; (2) any tendency of the evidence to confuse or distract the jury from the main issues; (3) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence; and (4) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.

        Remoteness can lessen significantly the probative value of extraneous-offense evidence. Remoteness alone does not require the trial court to exclude evidence of an extraneous offense under Rule 403 but is one aspect of an offense’s probativeness the trial court is to consider along with the other factors.

Something Is Wrong with the Sex Offender Registry, and Deregistration Is the Only Tool We Have to Fix It

“When the information changes, I change my mind. What do you do?”

—John Maynard Keynes

Something is wrong with the sex offender registry. It is not working the way it was intended to work. Worse, the registry is causing innocent people to be harmed. Yet none of these innocent people harmed by the registry are convicted sex offenders.

Before diving into a discussion regarding the public sex offender registry, it is important to note that this article is not a critique of those who created and implemented the registry. Nor is this article a critique of those who keep the registry functioning. Rather, this article provides empirically based information about the utility of the registry and how deregistration might improve the registry.

The Intended and Unintended Effects of the Sex Offender Registry

Public registration of sex offenders was prompted by good intentions and fueled by a laudable goal. But public registration was implemented before it could be researched. In fact, there was no way to research public registration without implementing it. Now, public registration has been researched, and there is scientific proof that public registration does not produce the intended effect of reduced sex offender recidivism.

The vast majority of studies aimed at measuring the impact of the registry on sexual re-offense rates have found no effect of registration and community notification on preventing sexual re-offense (Adkins, Huff, & Stageberg, 2000; Letourneau, Levenson, Bandyopadhyay, Armstrong, & Sinha, 2010; Prescott & Rockoff, 2008; Sandler, Freeman, & Socia, 2008; Schram & Miloy, 1995; Tewksbury, Jennings, & Zgoba, 2012; Zevitz, 2006). A handful of studies have demonstrated the potential for registration laws to actually increase recidivism risk by hindering the registrant’s reintegration into society (Letourneau & Armstrong, 2008; Prescott, 2012; Wakefield, 2006; Zevitz, 2006). Further, registration may also translate to increased recidivism, as a byproduct of its negative impact on the registrant’s financial, social, and psychological standing (Levenson & Cotter, 2005a; Prescott, 2012).

While discovering and describing how the public registry did not have its intended effect, researchers discovered a disheartening unintended effect of the public registry. The public registry victimizes individuals who have never been convicted of a crime—that is, the family and friends of registrants.

Family members of registered offenders have reported significant financial hardship due to the registrant being unable to secure employment (Levenson & Tewksbury, 2009). Sometimes this means families are forced to move to a less desirable neighborhood due to their loved one’s status on the registry. Surprisingly and most regrettably, family members have reported being harassed and threatened and have had their property damaged. Those who merely cohabitate with registrants have also reported being threatened, harassed, assaulted, injured, or suffered property damage because someone found out that they lived with a registrant (Levenson & Tewksbury, 2009).

Children of registrants frequently experience collateral consequences if the registry status of their parent becomes known (Levenson & Tewksbury, 2009). Children may be stigmatized by adults such as teachers, neighbors, and friends’ parents, due to their parent’s status on the registry. Children of registrants have been shown to be excluded from playing at friends’ houses (56%) or having friends come over to their house (70%: Levenson & Tewksbury, 2009). As a result, children of registrants have been shown to experience anger, depression, anxiety, fear, isolation, and suicidality. These negative emotional consequences translate to spouses, siblings, and parents of registrants as well. Worse, the anger and resentment felt by family members of registrants may even have the potential to perpetuate violence and crime across subsequent generations (Levenson & Tewksbury, 2009).

There is ample research that shows that family support is associated with reduced recidivism among sex offenders (Farkas & Miller, 2007, Levenson & Cotter, 2005b). Placing undue stress on spouses, parents, siblings, and children of registrants appears to increase risk for re-offense of the offender by stripping away a layer of support that would normally serve as a buffer of protection between community and offender (Levenson & Tewks­bury, 2009). The public registry thus erodes family support and, consequently, is associated with an increased risk for re-offense (Farkas & Miller, 2007; Tewksbury & Levenson, 2009).

In addition to the negative impact on family members and friends, much of the research to date indicates that collateral consequences of registration and community notification—that is, unintended negative impact on housing, employment, mental health, and relationships—increase the sex offender’s risk for recidivism (Lees & Tewksbury, 2006; Levenson & Cotter, 2005a, Levenson & D’Amora, 2007; Levenson, D’Amora, & Hern, 2007; Zevitz, 2006). Removing low- and moderate-risk individuals from the registry would likely alleviate some of the collateral consequences associated with registration, promote social integration and an investment in society, and thus reduce chances of a new sexual offense (Levenson et al., 2007; Robbers, 2009).

False Assumptions that Undermine the Efficacy of the Registry

In 1974, two psychologists documented shortcuts that we all take when making decisions under uncertain conditions (Tversky, & Kahneman, 1974). Two mental shortcuts identified by these psychologists likely played a role in the creation of a sex offender registry that cannot work. These two mental shortcuts are known as the Availability Heuristic and the Similarity Heuristic.

The Availability Heuristic states that if an example comes to mind easily, we conclude there is a high probability of that particular event. Newspapers and television news channels follow a simple maxim to gain readers and viewers: “if it bleeds, it leads.” In other words, news programs gain viewers if the news is about the most gruesome, the nastiest, and the bloodiest. In a world driven by selling advertisements and commercials, reporting on the sex offender who victimizes strangers is the most valuable. But that type of sex offender is rare. In fact, the majority of sex offenders know their victims (Finn, 1997; Truman, 2011).

The Similarity Heuristic states that if you have a prototypical view of a person, place, or thing, you assume that all members of that category behave in the same way. In other words, if you get your information about sex offenders from the media, you will assume that all sex offenders victimize strangers, kill their victims, and will always reoffend.

These heuristics produced many false assumptions, which led to the creation of the registry. These false assumptions also provide support, albeit erroneous support, to maintain the registry as is. Let’s take a closer look at some of the more salient false assumptions at the foundation of the registry.

False Assumption 1: Most Sex Offenders Sexually Re­offend. There is an assumption that most, if not all, sex offenders will inevitably go on to sexually reoffend. To evaluate this assumption, let’s start by looking at the empirical studies that exam sexual recidivism of sex offenders.

The U.S. Department of Justice conducted a study of recidivism rates among sex offenders and non-sexual offenders who were released from state prisons (Langan, Schmitt, & Durose, 2003). Parolees from 15 states were studied, including parolees from the state of Texas. Did the Department of Justice study support the media’s portrayal of sex offenders as high-risk offenders who will inevitably recidivate? No.

Langan et al (2003) found that sex offender rates of recidivism are extremely low compared to other types of offenders. In this study, 5.3% of sex offenders released from state prisons were re-arrested for a new sex offense after three years. On the other hand, 68% of non-sex offenders released from state prisons were arrested for a new non-sexual offense during the same follow-up period. Recidivism rates for drug offenders and property offenders were as high as 66.7% and 73.8% after three years, respectively (Langan & Levin, 2002).

At this point, your Availability and Similarity Heuristics have been activated as you are presented with information that contradicts what you thought you knew about sexual recidivism. You might be thinking: “These numbers can’t be right. Sex offenders can’t have lower recidivism rates than non-sexual offenders. There must be something wrong with the government study.”

To help assuage the cognitive dissonance caused by your use of heuristics, don’t consider one study about sex offender recidivism. Consider all the studies about sex offender recidivism. Consider a meta-analytic study.

A meta-analytic study is a study that combines data presented in all available articles on a specific topic and comes up with a pooled outcome, or result. Dr. Karl Hanson conducted various meta-analytic studies on sex offender recidivism (Hanson et al., 2002; Hanson, Bourgon, Helmus, & Hodgson, 2009; Hanson & Bussiere, 1998; Hanson & Morton-Bourgon, 2005). The results of Dr. Hanson’s meta-analytic studies confirmed that sex offenders have much lower recidivism rates than what our Availability and Similarity Heuristics would suggest.

Hanson and Bussiere’s (1998) study examined decades of data documented in 61 published articles about the re-offense rate of 23,393 sex offenders. These studies followed sex offenders in the community for an average of 5½ years, with a range from 6 months to 23 years. Results indicated that sex offenders reoffend with a new sexual offense at a rate of 13.4%.

In the second study, Hanson and Morton-Bourgon (2005) retained some of the research articles from the 1998 study, eliminated other articles, and added some new articles. The result was a meta-analysis published in 2005 that examined 82 peer-reviewed research articles involving 19,267 sex offenders. These studies followed sex offenders in the community for an average of 6.33 years, with a range from 1 year to 27.5 years. Results indicated that sex offenders reoffend with a new sexual offense at a rate of 13.7%.

Neither the government study nor Dr. Hanson’s meta-analytic studies support the media portrayal of sex offenders as inevitably reoffending. To the contrary, the facts contradict the hype.

Let’s look at the registry from another perspective. Let’s look at the registry and identify the percentage of registrants who are high-risk. A study by Ackerman, Harris, Levenson, and Zgoba (2011) examined 445,127 registrants from 49 states. They concluded that a minority of registrants, 13%, are defined as sexually violent predators. From these data, it would make sense that the lion’s share of the monitoring would be reserved for these high-risk cases. Unfortunately, as it stands, states are devoting relatively equal resources to high-risk registrants and all other registrants.

How does the low rate of sexual recidivism of registrants and the low rate of high-risk registrants impact the registry? Simple. The registry is watching a group of individuals, who for the most part have a low risk of a new offense. In other words, the registry forces us to watch people who are unlikely to do what we think they are going to do.

The registry might work if we were able to eliminate from the registry low- and moderate-risk registrants such that only high-risk registrants remained on the registry. This may sound reasonable; however, it is little more than a testable hypothesis worth studying.

False Assumption 2: The Registry Is Designed to Catch the Typical Sex Offender. The notorious sexual crimes that led to the creation of sex offender registries, such as the Jacob Wetterling and Adam Walsh cases, involved predators who were strangers to their victims. The public outcry against these heinous crimes created a perception among policy-makers that sexual offenders should be tracked through a registration system to prevent further sexual violence. It was assumed that by identifying, monitoring, and tracking the whereabouts of offenders, sex offenders would be less likely to reoffend.

Research has consistently shown, however, that the majority of sexual offenses are perpetrated by individuals who are known to the victim (Harrell, 2012; Snyder, 2000; Truman, 2011). Most sexual offenses take place within the home (82.2%) rather than in public settings (6.9%: Colombino, Mercado, & Jeglic, 2009). Putting the sex offender on the public registry does nothing to alert the families of potential victims. Similarly, family members and friends are rarely unaware when their loved one is convicted of a sexual offense.

Since sexual offenses are most likely to occur within the family—as opposed to any other single setting—it is important to consider the impact the registry has upon family members of registrants. Registration can reduce the willingness of family and friends to report intrafamilial abuse (Prescott & Rockoff, 2011). Due to the problems family members incur as a result of registry, family members may be at increased risk for denying the registrant’s guilt. This could lead to increased opportunities within the family for the registrant to reoffend.

False Assumption 3: The Registry Will Stop the Majority of New Sexual Offenses. It was assumed that the registry would result in increased apprehension of those individuals committing new sexual offenses. This is a false assumption for two reasons.

First, known sex offenders produce fewer sex crimes than first-time offenders (Langan et al., 2003; Sandler et al., 2008; Vásquez, Maddan, & Walker, 2008). In other words, sex offenders on the public registry commit fewer sex crimes than individuals who are not on the registry.

Let’s return to the government study that followed parolees released from 15 state prisons, including in Texas (Langan et al., 2003). In this study 517 sex offenders were arrested for a new sex offense and 3,328 non-sexual offenders were arrested for a new sex offense. Specifically, 3,325 parolees who never before were convicted of a sex offense were arrested for a new sex offense. This means that 92% of arrests for new sex offenses involved criminals with no prior sexual offense history. Only 8% of new sex offenses are caused by individuals who would likely be on the public registry.

It is assumed that we are putting individuals on the registry who are most likely to cause new sexual offenses. The government research shows that if our goal is to stop the majority of new sexual offenses from occurring, we need to put non-sexual offenders on the registry, not sex offenders. Of course, that will never, and should never, happen but it does highlight the futility of the registry.

The second reason that the registry does not lead to increased apprehension is the ever-increasing number of registrants. As the number of registrants increases, the number of full-time law enforcement officers needed to register and track offenders increases. Unfortunately, law enforcement registration offices tend to be under-funded and understaffed. As a result, the information on sex offender registries is often incomplete or inaccurate (Jones, 2008; Wagner, 2011; Wang, 2014). Over half of registrants surveyed in Florida reported their information listed on the state registry website to be inaccurate (Levenson & Cotter, 2005a), and nearly half were not living at their registered address or were incarcerated or deceased (Payne, 2005). In Kentucky, nearly 25% of registrants’ listed addresses were incorrect (Tewksbury, 2002). Worse, in California in 2003, registry officials lost information on 33,000 registrants (Tewksbury & Lees, 2007).

Researchers have concluded that enough information was either missing or erroneous that the registry could not be considered an effective tool in protecting the safety of the public (Tewksbury, 2002; Tewksbury & Lees, 2007). Likewise, the ability for state registry officials to update and maintain accurate databases and properly inform the public of the whereabouts of local sexual offenders has been frequently called into question (Jones, 2008; Levenson et al., 2007; Wagner, 2011). Current policies requiring all new sex offenders to register will result in an ever increasingly unwieldy and ineffective registry.

False Assumption 4: The Public Will Use the Registry to Protect Their Children. It was assumed that once equipped with information about sex offenders in the neighborhood the public would be motivated to protect themselves and their families in order to avoid becoming victims. Research has demonstrated, however, that registration has a limited impact on protective behaviors (Sample, Evans, & Anderson, 2011).

Protective behaviors have been defined as action taken to reduce the likelihood of criminal victimization of oneself (Bandy, 2011). In general, there are two types of protective behaviors: self-avoidant behaviors (e.g., avoiding unsafe areas) and self-defensive behaviors (e.g., carrying a weapon). Recent studies have shown there to be no significant relationship between receiving notification about a local sexual offender and the adoption of self-protective behaviors (Anderson & Sample, 2008; Bandy, 2011; Beck, Clingermayer, Ramsey, & Travis, 2004). Further, any protective efforts may be misguided as parents may emphasize stranger perpetrators rather than training children to recognize the more common scenario of abuse within the home (Truman, 2011).

False Assumption 5: The Registry Is a Good Way to Punish a Sex Offender, and Sex Offenders Should Be Punished Forever: There are those in the criminal justice system and the public who think that sex offending is such a horrific crime that sex offenders need to be punished forever, and the registry is a good way of punishing sex offenders. Closely related to this assumption is the assumption that the lifelong punishment of the registry provides victims of the registrants with some additional measure of justice. Let’s consider the various ways in which these assumptions are wrong.

First, use of the registry as punishment is illegal, and the U.S. Supreme Court has said so (Smith v. Doe, 538 U.S. 84, 2003). The U.S. Supreme Court has said that the only reason for the registry is to protect the safety of the public. The U.S. Supreme Court has said that if the reason of the registry was to punish, the registry would be illegal. There are no provisions in the law for additional punishment of sex offenders or nonsexual offenders beyond that handed down at sentencing.

Second, the registry can re-victimize victims. For example, using information readily available on the public registry website—such as the age of the victim and the disposition date—it is easy to figure out if the registrant’s victim could be a family mem­ber. This could lead to victims being the subject of gossip. Worse, it could lead to someone directly questioning a victim, e.g.: “I see your father was convicted of a sexual offense against a 10-year-old girl, in 2002. Weren’t you about 10 years old in 2002?

Third, not all victims of registrants want the registrant on the public registry, especially if the registrant is a family member (Craun & Simmons, 2012). The victim may see how other family members are suffering because of the registry. These victims may even blame themselves for their family’s suffering. This is yet another way that the registry re-victimizes victims.

Fourth, while trying to advocate for the registrant’s victim, advocates of the registry risk creating new victims. Recall the research that was cited earlier in this article that shows registration is not associated with reducing re-offense but it has the potential to promote reoffending. Creating many new victims while advocating for one known victim, who already has justice through our court system, is not safe or reasonable.

The registry is not having its intended effect, and it is creating many harmful unintended consequences. Can anything be done to fix the registry? It is possible that deregistration is one way to begin fixing the registry. Other suggested avenues of registry reform are offered in the conclusion of this article.

Deregistration

In Texas, deregistration is defined as removing a registrant from the public sex offender registry. In 2005, during the 79th Regular Session of the Texas Legislature, House Bill 867 was passed, and it added Subchapter I, Articles 62.401 to 62.408 to the Texas Code of Criminal Procedure. This created the potential for the deregistration of some registrants from the public registry (CSOT, 2010).

If this is the first time you have heard of deregistration, it is first helpful to identify what deregistration is not. If an individual is removed from the registry:

  • It does not remove the individual from nonpublic law enforcement registries.
  • It does not remove DNA from law enforcement registries.
  • Deregistration does not affect probation or parole status. Even if a registrant is allowed to deregister while still on su­per­vision, the registrant must complete his or her term of supervision.
  • Deregistration cannot be used to appeal or expunge a sex offense.
  • The sex offense that caused the person to register will still be part of the individual’s criminal record, so the sex offense shows up when he or she applies for jobs.
  • Deregistered individuals will continue to be ineligible for jobs with children.
  • Deregistration is not publicly funded. If a registrant wants to deregister, the individual must pay for his or her own deregistration.
  • Any registrant can file an application for deregistration, but the court that sentenced the registrant makes the final ruling on whether to approve or deny deregistration.

The sole function of deregistration is the removal of the individual’s information from the public registry. The registrant benefits by obtaining relief from the registry, which could be associated with a greater chance of creating a prosocial life, thus reducing risk for re-offense. The public similarly benefits by having a registry that consists of only high-risk registrants, which may be a more worthwhile endeavor in protecting public safety. Until we subject this hypothesis to empirical study through systematic deregistration, the supposed effects remain conjecture.

There are three steps to the deregistration process (CSOT, 2017). Below is an overview of the three steps. There is no way to document all nuances of the deregistration process, but for those who want to keep their bearings as they go through a sometimes-befuddling deregistration process, this overview may help you keep on course.

STEP ONE: Submit an Application to the Council on Sex Offender Treatment. To begin the deregistration process, a registrant must submit an application to the Council on Sex Offender Treatment (CSOT). The application can be found on the deregistration page of the CSOT website (CSOT, 2017).

The registrant can download the two-page application form from the CSOT website (CSOT, 2017). There is talk about simplifying this form, but at this time the two-page application form remains. The first page is a fill-in-the-blank form, which requires the registrant to provide demographic information, offense information, and attorney of record. The second page is a list of supporting documentation that the registrant must submit:

1.   Order of Conviction/Deferred Adjudication Order;

2.   If the reportable conviction or adjudication involved a minor, the applicant must provide a copy of one of the following documents, which indicates the age of the victim at the time of the offense: (a) Indictment; (b) Offense Report; or, (c) Probable Cause Affidavit;

3.   Current Criminal History Background Checks. The registrant must provide two criminal background checks: (a) Texas Department of Public Safety Criminal History; and, (b) Federal Bureau of Investigation Criminal History;

4.   Cashier’s Check or Money Order in the amount of $50, made payable to the Council on Sex Offender Treatment.

CSOT also allows the registrant to include, if he or she wishes, two non-mandatory supporting documents: (a) proof of successful completion of sex offender treatment; and (b) proof of successful completion of probation or parole. It is unclear why CSOT has suggested that these documents be included because CSOT cannot consider these documents when determining if a registrant is eligible for deregistration. These documents might be of some importance at the third and final step of the deregistration process (i.e., hearing on the petition to deregister), but these documents are superfluous at this step in the deregistration process. We recommend that registrants do not submit superfluous documents.

When CSOT receives an application, the application is logged and reviewed to determine if the application is complete. Incomplete applications are returned to the registrant. Complete applications are forwarded to the CSOT general counsel for review to determine if the registrant is eligible for deregistration. Every case is unique, and application of the deregistration eligibility guidelines is not always a simple matter. We would like to offer a list of eligibility criteria based upon what we have seen, with the recognition that each registrant is evaluated on an individual basis.

  • Convicted in a Texas Court: In general, individuals who were convicted in a Texas court are eligible to apply for de­registration. If the registrant was convicted in a federal or military court, even if it was in Texas, the registrant is usually not eligible to deregister. Also, if a registrant was con­victed in a state other than Texas, the registrant is usually not eligible to deregister.
  • One Count or One Offense: In general, individuals who have one count of a sexual offense are eligible for deregistration. Individuals with two counts or two sexual offense convictions are generally not eligible to deregister, but we have seen one exception. We have seen some individuals with two counts of child pornography be designated as eligible for deregistration at this stage of the process.
  • Type of Offense: The types of offenses considered eligible for deregistration is a muddled area. Based upon what we have seen, some offenses are eligible for deregistration and some are not (CSOT, 2010).
    • Offenses Eligible for Deregistration: Compelling Pros­titution, Compelling Prostitution (victim under 17 years old), Indecent Exposure (two or more convictions might be able to deregister), Unlawful Restraint (victim under 17 years old), Indecency with a Child by Exposure, Possession or Promotion of Child Pornography, Online Solicitation of a Minor, Sexual Performance of a Child, Indecency with a Child (victim 13 to 17 years old), and any attempts, conspiracies, and solicitations of any offense listed above. Aggravated Sexual Assault of a Child and Aggravated Sexual Assault can sometimes be eligible for deregistration and sometimes not.
    • Offenses Typically Not Eligible for Deregistration: Aggravated Kidnapping with Intent (adult or victim under 17 years old), Burglary with Intent, Continuous Abuse of a Child, Sexual Assault, Prohibited Sexual Conduct, Indecency with a Child (victim under 13 years old), or any attempts, conspiracies, and solicitations of these offenses are not eligible for deregistration.
  • No New Offenses: The registrant must not have been convicted of any sex offense including misdemeanors during the required registration period. The registrant must not be convicted of any offense for which imprisonment for more than one year may be imposed during the required registration period.
  • Length of Registration: If the registrant is required by Texas law to register for a period of time longer than the same offense would be required to be registered under federal law, the registrant is generally eligible for deregistration. This is a statutory requirement, however; actual determination of the comparison between Texas and Federal required lengths of registration is governed by the Texas Department of Public Safety (TDPS). TDPS has created a chart that is supposed to identify registrants who are eligible for deregistration based upon length of registration period. The current chart is under revision because it is full of errors. A new chart is to be released soon, but there are concerns in the legal community that this chart is at risk of containing just as many errors, if not more.

Upon completing a review of the deregistration application, the CSOT general counsel deems an application for deregistration approved or denied. Registrants are notified via mail about the results of the CSOT screening. For those found ineligible, deregistration is denied and the process ends. Those who are found eligible proceed to the second step in the process, which is the completion of a deregistration evaluation, at the applicant’s expense, by one of the 22 approved deregistration specialists in Texas (CSOT, 2017).

STEP TWO: Deregistration Evaluation: If CSOT grants the registrant his or her initial approval for deregistration, the next step is to seek out and complete a deregistration evaluation. The State of Texas has approved only 22 deregistration evaluation specialists. The registrant must obtain the deregistration evaluation from one of these 22 deregistration evaluation specialists. After the applicant receives initial approval for deregistration, CSOT shares with the applicant the names and contact information for the approved deregistration evaluation specialists.

From 2005 to 2011, CSOT studied various methodologies to identify registrants who would be appropriate for removal from the public registry (CSOT, 2010). In the end, CSOT adopted a risk assessment methodology that relied upon the use of standard risk assessment instruments that have been published in peer-reviewed scientific journals, are widely accepted by the scientific community, and have a known error rate.

The risk assessment methodology adopted by CSOT relies upon the use of three types of risk assessment instruments: the sexual reoffense risk instrument, nonsexual reoffense risk assessment instrument, and an instrument to determine risk of psychopathy.

In addition to specifying the risk assessment methodology, CSOT also established risk criteria, which are used to determine who is and who is not eligible for deregistration. CSOT determined that low- and medium-risk registrants would be eligible for deregistration and high-risk registrants would not be eligible for deregistration. Below is a listing of the risk instruments, along with the risk assessment deregistration criteria:

  • Sexual Reoffense Risk Assessment. For registrants whose only crime was related to child pornography, the Matrix 2000 is used to assess risk for sexual reoffense. Individuals who are rated as High or Very High Risk are not eligible to deregister.
     For registrants whose sex crime was not limited to child pornography, the Static-2002 is used to assess risk for sexual reoffense. A score of 9 or higher is considered high-risk. Individuals who obtain a score of 9 on the Static-2002 are ineligible for deregistration.
  • General Criminality Risk Assessment. All registrants are rated on the Level of Service Inventory–Revised to determine the registrant’s risk for general criminality, e.g., nonsexual crimes. A score of 16 or higher is considered high-risk. Individuals who obtain a score of 16 or higher on the LSI-R are ineligible for deregistration.
  • Risk for being a Psychopath: All registrants are rated on the Hare Psychopathy Checklist–Revised to determine if the registrant is a psychopath. A score of 30 or higher is used to classify an individual as a psychopath. Individuals who obtain a score of 30 or higher on the Hare PCL-R are considered high-risk and ineligible for deregistration.

To be eligible to deregister, a registrant cannot be rated high-risk on any of the risk assessment instruments. A registrant can be rated as medium-risk on all the risk instruments and still be able to deregister. On the other hand, if a registrant is rated as high-risk on any one of these instruments, even if the registrant is rated as a low-risk on the other two, the registrant cannot deregister.

There are two sexual reoffense risk instruments listed in the table above: the Static-2002 (Hanson & Thornton, 2003) and the Matrix 2000 (Thornton et al., 2003). The Matrix 2000 is used with registrants whose only sexual offense is a child pornography offense. The Static-2002 is used to determine risk for all other registrants. Only one sexual re-offense risk assessment instrument is used in the evaluation of a registrant.

In addition to ratings on risk instruments, part of the deregistration methodology includes a discussion of the registrant’s sexual offense as well as what he or she learned in sex offender treatment (if the registrant did participate in sex offender treatment). A registrant does not have to have participated in or completed sex offender treatment to be eligible for deregistration. Still, it is important to pay attention to the way the registrant talks about his or her sexual offense. If there is any portion of the deregistration evaluation that the registrant can undermine, it is the discussion of the sexual offense.

Deregistration is for guilty individuals. When a registrant minimizes or denies his or her sexual offense, it can derail the deregistration process. If the registrant tries to use the deregistration process to prove his or her innocence, the registrant’s attempt to deregister will be doomed. A registrant does not have to be innocent to deregister, but it helps if the registrant is honest and open, shows empathy, and accepts responsibility for his or her sex offense.

Once the evaluation is completed, the deregistration evaluation specialist writes a report and submits it to CSOT. A CSOT clinical board member reviews the report to ensure there are no errors with regard to the risk assessment portion. If there are errors, the report is sent back to the deregistration evaluation specialist. If there are no errors in the report, the report is stamped and certified and sent to the registrant or the registrant’s attorney.

STEP THREE: Petition the Court. Upon successful completion of the first and second steps of the deregistration process, the registrant is ready for the third and final step of the deregistration process: petitioning the court to deregister. The petition is heard in the court where the registrant was sentenced for his or her original sexual offense.

The court has complete discretion with regard to the petition hearing. The judge does not have to schedule a hearing if he or she does not want to do so. If the court does hold a hearing, the court has complete discretion with regard to the ultimate decision. There is nothing in the statute to guide the court. The court may even deny deregistration to a registrant who has met all requirements for deregistration.

If the court denies deregistration, there is no statutory basis for filing an appeal. On the other hand, if a registrant’s petition is denied, there is nothing in statue that prevents the registrant or the registrant’s attorney from refiling the petition. In fact, there have been instances where the court had problems with a registrant in the first hearing but granted the petition in a second hearing—after the registrant or registrant’s attorney had addressed the concerns the court had during the first hearing of the petition.

In our opinion, the third step of the deregistration process requires some good lawyering. The attorney’s work on the third step of the deregistration process should begin long before the petition is filed. It is not uncommon for the district attorney’s office and the court to be completely unfamiliar with deregistration. The attorney will need to educate the court and district attorney’s office about deregistration. Additionally, it is recommended that the attorney create and give a deregistration packet to both the court and district attorney, providing information about deregistration and the individual seeking deregistration.

There are companies sending letters to registrants offering to help the registrant through the deregistration process. Some of these companies might be legitimate and helpful. Others are clearly not helpful because they mislead registrants. For example, some companies tell the registrant there is only one deregistration specialist the registrant can or should go to. This is not true. The registrant, or the registrant’s attorney, is free to choose any of the 22 deregistration evaluation specialists approved by CSOT. Additionally, some companies tell the registrant that he or she must submit to a polygraph. A polygraph is not part of the deregistration process, and there is no way for a deregistration specialist to include polygraph data in a deregistration evaluation report. Attorneys and registrants alike should be careful when making decisions about using third-party deregistration services.

If the court approves deregistration, the registrant or the registrant’s attorney sends the court order to the Texas Department of Public Safety (DPS). DPS is required to remove the individual from the public registry, but that does not mean that traces of the individual’s identity as a registrant will be removed from the internet.

There are companies that maintain information about the registrant’s sex offense and publicize this information on privately owned websites. These companies do not have to remove the registrant from the private, for-profit registries just because a judge signed an order to remove the registrant from the public registry. The registrant or registrant’s attorney must contact these internet-based companies and request the individual be removed from the website. To no great surprise, these companies sometimes require a fee to remove someone from their registry. It is part of their business model.

Recommendations and Conclusions

The Texas Legislature would never do anything to decrease public safety. The Texas Legislature determined that deregistration does not decrease public safety and may, in fact, increase public safety—which is why the deregistration legislation was passed.

Deregistration was intended to fix some of the problems with the registry. Although deregistration is an important step toward registry reform, if the efforts stop at solely removing cer­tain individuals from the registry, larger and more serious problems inevitably arise. We would like to offer some recommendations that could improve the current state of the registry.

1.   All Potential New Registrants Must Be Rated High-Risk. The number of registrants in Texas will exceed 100,000 at some point within the year. Deregistration does nothing to stem the tide of new registrants, but there is a way to limit the number of new registrants.

         It is recommended that registration statute be amended to require that an individual convicted of a sex offense undergo a risk assessment prior to being placed on the registry. Further, it is recommended that only indi­viduals rated as high-risk be placed on the registry.

         This proposed change puts a great deal of pressure on local courts. In an effort remove some of the pressure from local courts, it is recommended that the registration statue be amended to create a checks-and-balance system. We would like to offer the following recommendations: (a) only Licensed Sex Offender Treatment Providers should be allowed conduct risk assessments, and CSOT should be given the power to determine if Licensed Sex Offender Treatment Providers should receive special certification or permission to conduct these risk assessments; (b) once a risk assessment is completed, the risk assessment must be sent to CSOT for review and this review is used to determine if the risk assessment was conducted properly; (c) the courts may only make rulings regarding registration of individuals based upon risk assessment reports that have been reviewed and approved by CSOT; and (d) the defendant is responsible for paying the fees and costs associated with the risk assessment evaluation, and the court may require the defendant to pay this fee, along with other fees, as a condition of probation—e.g., like other fees, the deregistration evaluation fee can be paid over the term of probation.
 If these changes were made, it would greatly reduce the number of registrants added to the registry. In the long run, it might produce a more focused registry that contains only high-risk registrants, which might have a positive impact on public safety.

2.   Remove Any Reference to Federal Law in the Deregistration Statute. The current deregistration statute in Texas law has references to federal law—i.e., the Sex Offender Registration and Notification Act (SORNA). Texas opted out of adopting SORNA, most likely due to the high cost of implementation. States that did not adopt SORNA lost 10% of the Byrne Grant Highway Federal Funds; however, the cost of implementing SORNA neared millions more dollars than would be lost by losing federal funds. Texas is one among many states that did not adopt SORNA.
 As of 2017, only 18 states have substantially implemented SORNA’s requirements (SMART, 2017). States that did adopt some or all of SORNA have tremendously increased budgets for the management of sex offenders, which undoubtedly diverts funds from schools, highways, and other areas of need.
 Since Texas did not adopt SORNA, it is unreasonable to have a reference to SORNA in the Texas deregistration statute. The addition of the reference to SORNA has complicated registration and put an undue burden on governmental agencies, not to mention that including a reference to SORNA allows the federal government to have the final say in Texas affairs. We recommend that the Texas deregistration statute be altered to eliminate any mention of federal law.

3.   Get the Judiciary Off the Hook. One set of elected officials, the legislature, has created a law that puts another set of elected officials, the judiciary, in the position of re­moving individuals from the registry. To appreciate how unfair this is to the judiciary, all one has to do is to go to the capital during a legislative session and testify in a criminal justice committee hearing and suggest some tweak to the registration laws. The universal response from legislators will be: “I can’t do that. How will I explain that to my constituents?” Legislators know what judges know. One cannot win re-election if his or her opponent’s campaign is based upon the slogan, “The incumbent is soft on sex offenders.”
 It is unfair to give judges such a public role in the deregistration process, when their role could be eliminated and replaced by a simple administrative procedure. We recommend that the current registration statute be altered to allow CSOT and the Texas Department of Public Safety (TDPS) be responsible for the last step of the deregistration process.
 Specifically, we recommend that when CSOT receives a completed deregistration evaluation report, the report is examined for two criteria. First, the report should show that the evaluation was done correctly and has included the appropriate risk instruments. Second, CSOT should verify that the registrant meets the risk levels acceptable for de­reg­is­tration. If the risk assessment was done correctly and the registrant meets the risk assessment criteria for deregistration, then CSOT should inform TDPS. Once TDPS has received approval from CSOT for the removal from the registry, the registrant should be removed from the registry.

4.   Family Chaperon Training: The public registry was developed with an intent to increase public safety, but the research shows it has been largely unsuccessful (Letourneau & Armstrong, 2008; Prescott, 2012; Wakefield, 2006; Zevitz, 2006). On the other hand, chaperon training has the chance of increasing public safety by targeting the more common scenario of abuse against those familiar to the offender.

         Chaperon training allows family members of sex offenders to meet with a Licensed Sex Offender Treatment Provider (LSOTP) and receive training about how to keep children safe around the sex offender (McKay, 2002). When modifying the registration statute, it may be wise to add language that would require a sex offender not have contact with an underage family member, unless the parent or guardian of the minor has completed chaperon training.

         The language of the law should not require family members to undergo chaperon training. Rather, the law should mandate that registrants refrain from contact with children whose parents or caretakers have not undergone chaperon training. By putting the requirement on the registrant and not the registrant’s family, it gives the registrant’s family members a great deal of discretion and control over if, and when, to allow contact between the registrant and any family member who is a child.

5.   New Legislation Requiring Removal of Individuals from Private Registries: This recommendation is likely a difficult one to enact, given the constitutional right of free speech. However, it only makes sense for entrepreneurs to remove individuals from their private registry if the individual is removed from the public registry. Given the potential threat to public safety caused by any registry, private or public, it is possible that needs of public safety may outweigh the entrepreneur’s claims to free speech.

Albert Einstein was famous for his thought experiments. In fact, it has been said that the seeds of Einstein’s theory of spe­cial relativity were created as a result of a thought experiment he conducted at age 16. We would like to conclude with a thought experiment:

Imagine you are the director of the Centers for Disease Control and Prevention. As the director, it is your job to approve, or reject, the use of vaccines. Imagine that you receive a dozen reports on empirical studies done on Vaccine X. These studies show that Vaccine X does not prevent Disease X, as it was supposed to do. Worse still, Vaccine X makes patients sick. Not only that, Vaccine X makes family members of the patient sick. As the director of the Centers for Disease Control and Prevention, do you approve or reject Vaccine X for use in the general public?

Obviously, the mind experiment above is a metaphor for the ultimate question about the utility of the public registry. The public registry hurts registrants and registrants’ families and friends. Maybe someone should do something about Vaccine X so more people do not get hurt.

As Daniel Patrick Moynihan famously said, “Everyone is entitled to his own opinion, but not his own facts” (in Carnes, 1995). Registration has not had the impact on public safety that everyone hoped for. While deregistration is a step in the right direction, the recommendations presented in this paper offer some additional steps that could potentially result in a registry that produces a positive impact on the public. Unless, of course, we just do away with Vaccine X altogether.

Acknowledgments: The authors would like to thank Stan Schneider, Houston attorney, for suggesting this article be written and for his review of the article and helpful comments. We would like to thank Scott Smith, Austin attorney, for his input, based upon his extensive deregistration work and occasional correction of registry work done by TDPS and CSOT. Finally, we would also like to thank Mary Sue Molnar, Chair, Texas Voices for Reason and Justice, who provided helpful input.

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They Can’t Really Say That, Can They? Nope . . . But They Do!

We have all had those cases. The he-said-she-said type of child sexual abuse cases. There are no eyewitnesses. There is no physical evidence. The child seems relatively normal in spite of the horrendous allegation. But in every one of these cases, the State’s expert will come in and try to explain the child’s behaviors—no matter what those behaviors are—as consistent with abuse. We have all seen it happen. The question, then, is what can we do to combat that inevitable testimony?

What the State’s Experts Say

Go to any Texas District Courthouse and listen to the State’s expert testify by bolstering the alleged “traits” of sexually abused children. Following are actual transcript excerpts demonstrating the junk “expert” testimony fed to Texas jurors in these cases.

[Testimony Demeanor]

A.    “A child can say this is what happened to me, but when a child’s behavior and emotions match up with what the child says, that gives us a sense of greater confidence that what he is saying is true.”

A.    “We see kids that have been sexually abused have heightened levels of depression. It takes different forms, but you see sadness, crying.”

Q.    “Is it—would you say it’s normal for a child to yell and scream while they are giving outcry?”

A.    “Some do, I guess. Some children, I’m sure, get quite emotional when they talk.”

Q.    “Would you expect some children to just be matter of fact, just answer the questions that they are asked?”

A.    “Some children are. Some children are matter of fact. They are flat. They are dull.”

[If There Is a Disorder, It Must Be Sexual Abuse]

A.    “Children don’t understand things like post-traumatic stress disorder or generalized anxiety disorder, and those kinds of things. They have not read-up on what constitutes those psychological conditions. Children don’t know how to fake those kinds of symptoms that go along with sexual abuse.”

[Explanation for Each and Every Disorder]

Q.    “What are some behavior problems children exhibit after being sexually abused?”

A.     “Well, there are many, but they fall in some standard categories. We do see heightened levels of depression in kids who have been sexually abused. So, we see mood disorders. Along with that depression comes low self-esteem, feelings of worthlessness, general sadness and crying, sometimes even suicidal behavior, ideations or actual acts of trying to take their lives. These anxiety disorders can take many forms, but may experience flashback of the abuse, nightmares regarding the abuse, but a general fearfulness and concern and anxiety regarding what’s happened. But we also see physical signs of trauma. Children who internalize anxiety are much more likely to—to make some added complaints, headaches, stomachaches. They don’t sleep well often. They have nightmares. You immediately start ask­ing questions. What’s wrong? Where are the stressors in this child’s life? What is she telling us through her behavior that she can’t say in words?”

A.     “Sexuality is one of the things you look for when you see children who—who have eating disorders, either overeating or under-eating.”

[Explanation If the Child Does Not Exhibit Symptoms]

A. “You see people who’ve been through many, many instances of sexual abuse who can be pretty normal and can function.”

[Explanation for Bad Grades]

Q.    “If a child’s grades that used to be good or average became
poor, can that sometimes be explained by sexual abuse?”

A.     “Yes. the fact that she’s being abused could help to explain that.”

[Explanation for Good Grades]

A.     “You know, they are getting straight A’s in school. They look wonderful. They may even look wonderful in the way of grades or other things they can take control of as a reaction to sexual assault that they suffered. The sexual assault could have felt like something that has taken control from them in a way that they latch on to things they can control. Like doing well in school, for example.”

[Consistent with Sexual Abuse]1

Q.    “If there is an immediate outcry, that is consistent, if there is a delayed outcry, that is consistent, and if there is no outcry, that is consistent, right?”

A.     “Yes.”

Q.    “If a child remains consistent in the details of what happened, that is consistent. If a child is all over the board in the details of what happens, that is consistent too, right?”

A.     “Can be.”

Q.    “I believe you have said today if someone is alone, that is consistent, or if there are other people around, that is consistent?”

A.     “Right.”

Q.    “If it is night, that is consistent, or if it is day, that is consistent. If it is in a home or if they are visiting somewhere, that is consistent. Either one of those can be consistent. If there is a meek defense put up by the victim, that is consistent. If there is a strong defense put up by the victim, that is consistent. You have testified to all those things, have you not?”

A.     “Yes.”

Q.    “If the child freezes up, that is consistent. If the child doesn’t freeze up, that is consistent?”

A.     “Yes.”

Q.    “True? If the child runs, that is consistent. If the child doesn’t run, that is consistent, correct?”

A.     “It could be.”

Q.    “If the people are related, that is consistent. If they are unrelated, that is consistent. Child reacts this way, one way, and then a child reacts the opposite way, as the district attorney asked about, that is consistent. In other words, one is upset and does something physical to themselves, and one is not upset and carries on with their lives, that is consistent?”

A.     “Right.”

Q.    “If they testify, one testifies emotionally and one testifies unemotionally, that is consistent?”

A.     “Could be.”

[And the Naked Emperor Award Goes to . . . ]

A.     “You develop your own internal norm system, and you know, you learn patterns and consistencies and that sort of thing. And you learn to read cases quite well over the course of time. You can get into the world of the victim. I would certainly go so far as to say that my treatment center and office experience teaches me much more than you can learn from a book.”

So . . . What Can the Defense Lawyer Do to Challenge This Junk Science?

This kind of testimony, from an expert in the field, absolutely impacts juries. After all, jurors want to believe the child. After such testimony the defense is often in damage-control mode. It is often impossible, though. Rather than being in constant damage control mode in these types of cases, though, why not try to shut down the testimony before it is ever heard by a jury?

To that end, consider submitting a brief to the trial court regarding the admissibility of child sexual abuse accommodation syndrome as follows:

[Download motion in PDF format]

TO THE HONORABLE JUDGE OF SAID COURT:

        This brief is submitted to the Court to determine the admissibility of any state witness’s testimony regarding “Child Sexual Abuse Accommodation Syndrome”(CSAAS) or similar behavioral characteristic testimony. The defense requests to voir dire potential state witnesses to examine their qualifications to offer opinion testimony on this subject. Additionally, the defense will challenge the scientific validity and reliability of “CSAAS.”

I. Anticipated “CSAAS” Testimony from the State

        The State intends to present opinion testimony to prove one can determine a child has been sexually abused if the child demonstrates certain behavioral characteristics. Defendant expects these witnesses to be psychologists, child protective services caseworkers, and/or police officers. Dr. Roland Summit published an article entitled “The Child Sexual Abuse Accommodation Syndrome” (CSAAS) in 1983. Dr. Summit described five characteristics commonly observed in child victims: (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed, conflicted, and unconvincing disclosure, and (5) retraction. Summit, “The Child Sexual Abuse Accommodation Syndrome,” 7 Child Abuse & Neglect 177 (1983).

        Defendant moves to have each witness who would testify to “CSAAS,” or any variant thereof, to be examined outside of the presence of the jury as to their competence to testify and offer expert testimony.

II. The Admissibility of Scientific Expert Opinions

        The admissibility of expert opinions is governed by case law and Texas Rules of Evidence 702, 703, and 705. The United States Supreme Court issued its landmark decision on expert testimony in Daubert v. Merrell Dow, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In Daubert, the Supreme Court changed the “Frye” general scientific acceptance to a test that expert testimony must be reliable and based on scientific methodology. Daubert, 125 L.Ed.2d at 482. The Daubert court held that evidence not grounded in methods and procedures of science is no more than subjective belief or unsupported speculation. Kumho Tire Company v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). See also Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), Jordan v. State, 928 S.W.2d 550 (Tex. Crim. App.1996); and Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998).

        For the State to offer evidence of “CSAAS,” it must show the evidence is reliable pursuant to the clear and convincing evidentiary standard. The State must prove the opinion testimony of “CSAAS” is scientifically valid and has been applied properly. “CSAAS” opinion testimony cannot be presented to the jury until after the trial court has ruled on its admissibility. Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000).

        Furthermore, the trial court must address both the reliability and relevancy of “CSAAS” evidence outside the presence of the jury. Tex. R. Evid. 401, 702. If the court finds the proposed testimony both relevant and reliable, then it must apply the balancing test of whether the evidence is more prejudicial than probative. Tex. R. Evid 403; Morales v. State, 32 S.W.3d 862 (Tex. Crim. App. 2000).

III. Texas Legal Standard for Admissibility of Expert Opinions

        The Texas Supreme Court adopted the Daubert standard in E.I. DuPont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1996). The Robinson court stated the standard of reliability applied to any expert testimony that may be offered. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998). A court should exclude the testimony of an expert whose testimony is not reliable. Robinson, Id. An expert witness may be qualified and highly credible, but their conclusions may be based on unreliable methodology. Unreliable evidence is of no assistance to the trier of fact and is therefore inadmissible under Rule 702 of the Texas Rules of Evidence. Gammill, Id. The Court of Criminal Appeals imposed similar standards on the admissibility of expert testimony. Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998); Hartman v. State, 946 S.W.2d 60 (Tex. Crim. App. 1997, en banc); Jordan v. State, 928 S.W.2d 550 (Tex. Crim. App. 1996); Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992, en banc).

        To be admissible, expert testimony must “assist” the trier of fact. Tex. R. Evid. 702; Duckett v. State, 797 S.W.2d 906, 914 (Tex. Crim. App. 1990). Expert testimony assists the trier of fact when the jury is not qualified to “the best possible degree” to determine intelligently the particular issue without the help of the testimony. Duckett, at 914. But, the expert testimony must aid—not supplant—the jury’s decision. Id. Expert testimony does not assist the jury if it constitutes “a direct opinion on the truthfulness” of a child complainant’s allegations. Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993).

IV. Texas Legal Standard for Admission of “Soft Science” Expert Opinions

        In Nenno, the court curtailed the legal requirements established in its “Kelly” decision when the “gatekeeper” is asked to evaluate the reliability of “soft science” (psychology/social sciences) as compared to “hard science.” The court in Nenno stated:

When addressing fields of study aside from the hard sciences, such as the social sciences or fields that are based primarily upon experience and training as opposed to the scientific method, Kelly’s requirement of reliability applies but with less rigor . . . The appropriate questions are: (1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert’s testimony is within the scope of that field, and (3) whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field . . . [H]ard science methods of validation, such as assessing the potential rate of error or subject in a theory to peer review, may often be inappropriate for testing the reliability of fields of expertise outside the hard sciences. Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998).

V. The Court as “Gatekeeper” for Purported Expert Testimony

        The United States Supreme Court held the trial court judge was the “gatekeeper” to determine both scientific reliability and validity of expert testimony. Daubert, supra. The Defendant requests this Court to exercise its “Daubert” gatekeeper function and determine the competence of any such experts to testify at any proceeding herein. Tex. R. Evid. 702; Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998); Hartman v. State, 946 S.W.2d 60 (Tex. Crim. App. 1997, en banc); Jordan v. State, 928 S.W.2d 550 (Tex. Crim. App. 1996); Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992, en banc).

VI. The Questionable Reliability and Validity of “CSAAS” Testimony

        For “CSAAS” evidence to be legally admissible, it must be supported by the application of scientific validity and reliability. This legal standard questions whether psychologists, caseworkers, or police officers are competent to provide expert testimony on this issue. A hearing outside the presence of the jury will demonstrate the inherent deficiencies of said witnesses attempting to make a sexual abuse conclusion through observed behavior nexus. Furthermore, any statements attributing sexual abuse to observed symptomatic behavior would be nothing more than the witness’s personal opinion. Personal opinion is not a proper substitute for proper scientific methodology.

        A major function of science is to test mistaken common-sense notions. An opinion does not attain reliable scientific status simply because its practitioners say it is so, or because they share a common set of beliefs. Rather, the purpose of science is to rigidly test such claims for their accuracy or support. In this case, a witness for the State may claim “CSAAS” principles are broadly accepted in their community. This may be true, but such a proclamation does not establish the “CSAAS” principle has achieved reliable scientific status.

                The following points illustrate the conflict within the scientific and legal community concerning the validity of “CSAAS” as a method of determining sexual abuse:

1. “CSAAS” Presumes the Abuse Occurred

        “CSAAS” operates from the presumption that sexual abuse occurred and seeks to explain how children commonly react to such abuse. The sole function of “CSAAS” was to start with a known child victim of sexual abuse and then explain the child’s behavioral reactions to the abuse. People v. Peterson, 537 N.W.2d 857, 873 (Mich. 1995, Cavanaugh, J. dissenting).

2. “CSAAS” Is Non-Falsifiable

        The particular symptoms of “CSAAS “are as consistent with false testimony as with true testimony. People v. Patino, 32 Cal.Rptr.2d 345, 349 (Cal. App. 1994). “CSAAS,” like all psychodynamic theories, “is essentially irrefutable.” State v. Foret, 628 So.2d 1116 (La. 1993). It is impossible to prove a child is not suffering from “CSAAS.” The error rate and falsifiability guidelines for “CSAAS” equally risk both false positive and false negative errors. Once an allegation hits a professional who believes in the validity of the “CSAAS” concept, nothing can falsify it. “Expert Testimony on Child Sexual Abuse Accommodation Syndrome: How Proper Screening Should Severely Limit its Admission,” Gitlin, C. 26 Quinnipiac L. Rev 497 (2008).

3. Behavioral Patterns and Symptoms of “CSAAS” Are Non-Specific

        Alleged behavioral indicators of sexual abuse are found in many different circumstances, including divorce, conflict between parents, economic stress, absent fathers, and almost every stressful situation children experience. The behavioral stages of “CSAAS” are not specific to child victims of sexual abuse. Gitlin, C., in his article stated:

The same behavioral patterns of “CSAAS” also apply to children who are not victims of sexual abuse. Some victims of sexual abuse exhibit no symptoms whatsoever. “CSAAS” cannot be considered helpful to the trier of fact when it cannot reliably distinguish between abused and non-abused children. Gitlin,C., Id. 26 Quinnipiac L.Rev 497 (2008).

Several courts have held the same position as Gitlin. In Commonwealth v. Dunkle, 602 A.2d 830, 836 (Pa. 1992) the court found:

“[I]t is virtually impossible to clinically describe the elements of the child abuse syndrome with any realistic degree of specificity.” The principle flaw with “CSAAS” is that there is no evidence indicating that it can discriminate between sexually abused children and those who have experienced other trauma.

The Supreme Court of New Hampshire agreed:

“[G]enerally speaking, the psychological evaluation of a child suspected of being sexually abused is, at best, an inexact science.” State v. Cressey, 628 A.2d 696 (N.H. 1993).

Many additional courts have cautioned against the attempt to compile a list of behaviors to serve as an evidentiary indicator of child sexual abuse. Dunkle, Id, State v. J.Q., 252 N.J.Super. 11, 33–35, 599 A.2d 172, 184–85 (1991), aff’d, 130 N.J. 554, 617 A.2d 1196 (N.J. 1993); State v. Rimmasch, 775 P.2d 388, 401–02 (Utah 1989). “The consensus among scholars is that there are as yet no scientifically reliable indicators of child sexual abuse.” State v. J.Q., 252 N.J.Super. at 33, 599 A.2d at 184.

        Finally, no current scientific research has demonstrated any set of behaviors common to sexually abused children which are indicative of abuse. Lawlor, R. J. “The Expert Witness in Child Sexual Abuse Cases: A Clinician’s View,” in Expert Witnesses in Child Abuse Cases (Ceci, S.J. & Hembrooke, H. 1998).

4. The Jury Appeal of “CSAAS”

        Despite its questionable legitimacy, “CSAAS” is deeply appealing to jurors. The syndrome is a weapon for prosecutors because it satisfies the jury’s need to find a rational explanation for the socially unacceptable behavior exhibited by alleged victims. With an explanation from a trusted State’s witness, the jury is reassured the child’s poor behavior is merely a manifestation of the actual trauma it expected to see in a victim.

        According to “CSAAS” experts, anything and everything is indicative of sexual abuse. It is consistent with “CSAAS” if the child does not report sexual abuse immediately. It is likewise consistent with “CSAAS” if the child has immediately reported abuse. Poor performance in school is explained away by State experts relying on the syndrome as a result of sexual abuse. Excellent performance in school is likewise indicative of the syndrome, as the expert will explain the child invested all their time and attention to school work to avoid the trauma of abuse. “CSAAS” has been described as the “magic bullet” for the prosecution as bad behavior, trouble in school, the failure to tell an accurate story, and even the recantation of the entire allegation of abuse are all indicators the sexual abuse occurred. Every criterion used by the defense to discredit a witness is actually consistent with abuse according to the State.

5. Diagnostic of Abuse

        A criticism of “CSAAS” (one subsequently admitted by its author, Dr. Summit) is that the syndrome is not diagnostic. Summit, R. “Abuse of the Child Sexual Abuse Accommodation Syndrome,” 1(4) Journal of Child Sexual Abuse, 157 (1992). “CSAAS,” per Dr. Summit, was never intended to be used in a manner to diagnose a child as having been sexually abused. “Disclosure of Child Sexual Abuse: What Does the Research Tell Us about the Ways That Children Tell?” London, Bruck, Ceci, Shuman, Psychology, Public Policy, and Law, Vol 11, No.1, 194–226 , 196 (2005)); Summit, R. (1992) “Abuse of the Child Sexual Abuse Accommodation Syndrome,” Journal of Child Sexual Abuse, 1, 153–163.

         London and Bruck cited the well-established rule that courts “have uniformly excluded ‘CSAAS’ evidence that is used to persuade a jury that a child’s testimony about sexual abuse is truthful or diagnostic of abuse.” London, Id. at 197. State v. Foret, 628 So.2d 1116 (La. 1993)(since CSAAS did not have peer support, nor could it be tested, nor could it establish a rate of error as a tool for child abuse detection, it could not be used as a diagnostic tool in child abuse cases). Steward v. Indiana, 652 N.E.2d 490, 493 (Ind. 1995).

         Other social scientists have agreed with London: “[I]t is an error in diagnosis to use non-discriminating signs to make a diagnosis.” Behavioral Indicators, Ralph C. Underwager and Hollida Wakefield (1995). “CSAAS” is not based on an empirical foundation as it contains no data and seems to be predicated solely on clinical intuition. Dr. Summit provided only clinical findings without any controlled experimental data. Gitlin, infra, 26 Quinnipiac L. Rev 497 (2008). “CSAAS” was not derived through the scientific method (experimentation and observation). “CSAAS: Issues of Admissibility in Criminal Trials,” IPT , Vol. 10, 1998, Garrison, A. Expert testimony by psychologists must be consistent with current scientific research. Ornstein, P. & Gordon, B. “The Psychologist as Expert Witness: a Comment,” in Expert Witnesses in Child Abuse Cases (Ceci, S.J., & Hembrooke, H. 1998).

6. The Daubert Criteria Analysis

        “CSAAS” is likely to fail the admissibility test if all the Daubert factors are properly applied. The Louisiana Supreme Court performed its own evaluation of the known or potential rate of error for “CSAAS.” The court found the error rate for” CSAAS” to be too high to be acceptable. State v. Foret, 628 So.2d 1116 (La 1993). See Newkirk v. Commonwealth, 937 S.W.2d 690, 695 (Ky. 1996). One court held “CSAAS” lacked the scientific validity to explain a child’s general reactions to sexual abuse. Gerstein v. Senkowski, 426 F.3d 588, 611 (2nd Cir. 2005). In Dunkle, supra, the court held “CSAAS” was not derived through the scientific method and was not accepted in the discipline to which it belonged and was thus inadmissible. In Dunkle, the court also held: “permitting an expert to testify about an unsupportable behavioral profile and then introducing testimony to show that the witness acted in conformance with such a profile is an erroneous method of obtaining a conviction.” 602 A.2d 830 (Pa. 1992).

7. Improper Use of “CSAAS”

        Once ”CSAAS” testimony is admitted there is a significant danger that jurors will improperly draw the inference the sexual abuse at issue occurred. Gitlin, infra C. 26 Quinnipiac L. Rev 497 (2008). Dr. Summit has acknowledged the intent for “CSAAS” was not to be applied in the liberal manner it has been used in the courts. Summit, R. (1992) “Abuse of the Child Sexual Abuse Accommodation Syndrome.” Journal of Child Sexual Abuse, 1, 153–163). Dr. Summit further noted how “CSAAS” testimony had been improperly used by prosecutors and experts. His list of improper applications included:

        1. An offer of proof that a child had been abused;

        2. An assertion that a child was suffering from or displaying “CSAAS”;

        3. A contention that silence was consistent with “CSAAS”; and

        4. A claim that a retracted complaint was more believable than a consistent one.

Summit, R. (1992) “Abuse of the Child Sexual Abuse Accommodation Syndrome.” Journal of Child Sexual Abuse, 1, 153–163.

8. Insufficient Balance: Prejudice vs. Probative Value

        The probative value of “CSAAS” testimony is outweighed by the risk of undue prejudice to the defendant. Gitlin, C. 26 Quinnipiac L. Rev 497 (2008). There is no real difference between a prosecutor’s claim that a child’s behavior was consistent with sexual abuse and stating the child had been sexually abused.

        McGough, L., made the following argument:

Such testimony is not simply rehabilitating the credibility of the witness—it is presented as a characteristic of a sexually abused child, giving the jury the impression that the child’s behavior is not only not inconsistent with, but also typical of, a sexually abused child.

McGough, L. “A Legal Commentary: the Impact of Daubert on 21st-Century Child Sexual Abuse Prosecutions,” in Expert Witnesses in Child Abuse Cases, 265, 266 (Stephen J. Ceci, & Helene Hembrooke, Eds. 1998).

        Indeed, relying on the jury’s ability to make the correct legal distinction between the syndrome offered as direct evidence of sexual abuse versus being admitted for a limited purpose is unrealistic at best. The admission of such evidence presents a significant risk of unfair prejudice to a defendant. Gitlin stated: “the admission of theoretical expert evidence which presumes guilt from the very fact of the accusation is contrary to our most fundamental rights.” Gitlin, C, infra. 26 Quinnipiac L. Rev 497 (2008).

VII. Texas Caselaw on “CSASA” and Behavioral Characteristic Evidence

A. Authorized Testimony on Behavioral Characteristics

        The Court of Criminal Appeals, Clinton, J., held that expert testimony concerning behavioral characteristics typically exhibited by sexual abuse victims and describing behavior observed in complaining witnesses was admissible as substantive evidence. State v. Cohn, 849 S.W.2d 817 (Tex. Crim. App. 1993). In Texas, an expert may testify the child exhibited symptoms consistent with sexual abuse. Fox v. State (citing Cohn), 175 S.W.3d. 475 (Tex. App. —Texarkana 2005); Edwards v. State, 107 S.W.3d 107 (Tex. App.—Texarkana 2003, pet. ref’d). Expert testimony that identified certain physical or behavioral manifestations of sexual abuse and related those characteristics to the complainant was admissible even if the complainant had not been impeached. Yount v. State, 872 S.W.2d 706, 708–09 (Tex. Crim. App. 1993).

        Texas has admitted expert testimony a child exhibited behavioral characteristics that had been empirically [emphasis added] shown to be common among children who have been abused. See Perez v. State, 113 S.W.3d 819 (Tex. App.—Austin 2003, pet. ref’d) (citing Hitt v. State, 53 S.W.3d 697, 707 (Tex. App.—Austin 2001, pet. ref’d); Vasquez v. State, 975 S.W.2d 415, 417 (Tex. App.—Austin 1998, pet. ref’d); Yount, 872 S.W.2d 706, 709, and Cohn, 849 S.W.2d 817, 819–21, overruled on other grounds); Taylor v. State, 268 S.W.3d 571, 578 (Tex. Crim. App. 2008). Such testimony was not objectionable on the grounds that it bolstered the credibility of the child complainant. Cohn, Id.

B. Limitations on Testimony Concerning Behavioral Characteristics

        i. The Witness May Not Testify Regarding “Truthfulness”

        In Texas, expert testimony is admissible if it assists the jury to intelligently determine an issue but does not decide the issue for the jury. See Duckett v. State, 797 S.W.2d 906, 914 (Tex. Crim. App. 1990, disapproved on other grounds), Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993); Drake v. State, 123 S.W.3d 596, 606 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). An expert witness may not testify that a witness is truthful. The Court of Criminal Appeals in Schutz v. State explained: “[E]xpert testimony does not assist the jury if it constitutes a direct opinion on the truthfulness of a child complainant’s allegations.” Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997) (quoting Yount, 872 S.W.2d at 708).

        The witness may not “cross the line” and testify directly to the victim’s truthfulness, as it does not concern a subject matter on which the testimony of an expert witness could assist the trier of fact. Yount v. State, 872 S.W.2d 706, 709 (Tex. Crim. App. 1993). In Flores, expert testimony that “consistency was the most important indicator of credibility and that complainant’s statements were consistent” impermissibly decided an ultimate question of fact. Flores. v. State, 513 S.W.3d 146 (Tex. App.—Houston [14th Dist.] 2016, pdr ref’d.). The Flores court found testimony regarding the factors for truthfulness observed by the experts directly commented on the truthfulness of the child. Therefore, the court held the testimony did not assist the jury and was inadmissible. Similarly, expert testimony admitting statistical opinion on false allegations was error. Wiseman v. State, 394 S.W.3d 582 (Tex. App.—Dallas 2012). In Wiseman, the court noted the State offered no independent evidence of the offense, and the case was entirely based upon the credibility of the complainant and her outcry witnesses. Wiseman, Id.

        ii. The Witness Must Be Qualified to Offer Behavioral Characteristic Testimony

        In Perez v. State, 25 S.W.3d 830 (Tex. App.—Houston [1st Dist.] 2000), the Court of Appeals found the trial court abused its discretion by allowing a child advocacy center director to testify concerning the “child abuse accommodation syndrome” theory propounded by Dr. Roland Summit. The witness had substantial experience in the field of child sexual abuse investigation but was not an expert in the field of psychology, psychiatry, medicine, or science. The court additionally found the record weak regarding the acceptance of Dr. Summit’s writings in the relevant scientific community and the existence of literature supporting Dr. Summit’s findings. Perez v. State, Id. The witness in Perez testified she understood the “scientific method” only “to a degree.” She had never written an article about the “Child Abuse Accommodation Syndrome,” nor did she possess similar qualifications necessary to testify as an expert. The court held the testimony significantly strengthened the State’s case by giving it the apparent endorsement by an expert child psychiatrist, Dr. Summit. The conviction was reversed. Perez, Id.

Don’t Forget the Obvious

When all else fails and the testimony is permitted, don’t forget the obvious. Remember, no evidence of abuse is just that—no evidence of abuse. Likewise, normal behaviors are just that—normal behaviors. This point should be emphasized repeatedly for the jury.

Conclusion

As incredible and potentially damaging as this kind of testimony is, it is not impossible to prevent. Be proactive. Always request expert hearings. Test the expert’s qualifications. Test the expert’s conclusions. Test the expert’s methodology. Educate the court so that the trial judges can properly exercise their gatekeeping function and prevent juries from hearing such unproven testimony.

1. Thanks for this cross-examination excerpt from a “Mr. Williams.”

September 2018 Complete Issue – PDF Download

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Features
20 | Something Is Wrong with the Sex Offender Registry – By Matthew Ferrara & Emma Hamilton
31 | They Really Can’t Say That, Can They? Nope, But They Do – By Paul G. Stuckle

Columns
6 | President’s Message
8 | Executive Director’s Perspective
13 | Federal Corner
17 | Shout Outs

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

President’s Message: A Long Way to Go – By Mark Snodgrass

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While I have never claimed to be a student of history, I do often enjoy looking back on things that happened 10, 25, or 100 years ago. The type of stories you hear on the radio or see on your newsfeed on social media informing you that 100 years ago today the first automatic potato peeler or something like it was developed.

September has always been my favorite month of the year. September 1st always marks the first day of dove season. Football season starts giving new hope to fans of professional, college, high school, and even peewee teams. The weather usually begins to cool off from another hot Texas summer, meaning fall is right around the corner. Last but not least (to me anyway), it is my birthday month. As exciting as all that may be, I am not sure anyone would care for me to spend a whole column on any of the above.

The other thing that always comes to mind this time of year is 9/11. I decided to look back and see what the president’s column was following the horrific event some 17 years ago. As I expected, the column was an impressive message from then-president Betty Blackwell. It began: “We are at war. That is what we face today. That is what we face tomorrow. Collapsed buildings, hijacked planes—there is nothing we can do to stop it. It has happened. We know that the effects on our lives, on our children’s lives, on our grandchildren’s lives, will be significant and fundamental.” The words proved to ring true.

Not long after 9/11, I was trying a case, and a crucial witness to our defense was a young man of Muslim faith whose parents legally came to the United States. I voir-dired the venire panel as to the trustworthiness of a young Muslim of Middle Eastern descent, and as expected many opined—to their credit for being honest—that they automatically would not trust him due to his race and religion. This young man was only a witness. It is truly frightening to wonder what would have happened had he been the Defendant.

Another item that caught my mind was a news article I read regarding the introduction of the character Franklin into the “Peanuts” comic strip 50 years ago on July 31, 1968. Franklin was the first African-American character introduced in the comic strip. Charles M. Schulz, the creator of “Peanuts,” received some criticism as he feared for including an African-American character in the comic. I guess I am just naïve, but it amazes me that this was ever an issue.

Fifty years is essentially the amount of time I have been alive. The Civil Rights Act and the Voting Rights Act are eligible for AARP membership. A person would hope that given 50 years’ time we would not still be talking about race in this country. One would hope that as Dr. King dreamed, people would not be judged by the color of their skin but by the content of their character. Unfortunately, this is not the case.

While the problem may not be as bad as it was 50 years ago, we still see protests of police brutality towards African Americans. We witness white supremacists staging rallies throughout the country. We witness immigrants separated from their children and deported without being afforded the due process guaranteed in the Constitution we took an oath to defend. We live in a state where African Americans are incarcerated at a rate nearly four times that of whites. In short, we still have a long way to go.

I leave you with the words Betty Blackwell signed off with right after 9/11 that ring as true now as they did then. “These are dark times, and there may be darker times ahead, but we must not lose sight of our goal—freedom. For everyone. Freedom for all of us and freedom for all of those unlike us. It is the way that we treat the least among us that will define our legacy as a people. We will punish the guilty, but in our quest, we must not trample the innocent. We will not give comfort to our enemies but must not allow our government to strip us of our rights in the name of war. God have mercy on our souls if we do.”

Executive Director’s Perspective: Reenergizing Yourself – By Melissa J. Schank

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“Live as if you were to die tomorrow. Learn as if you were to live forever.”

—Mahatma Gandhi

South Padre’s CLE events were very well attended this year. We had several members comment on how this has become a TCDLA tradition over the past ten years. The camaraderie that has built up over time cannot be replaced. Veteran attorneys still come to prepare or improve their presentations, while new attorneys enjoy the one-on-one interaction and conversation that build lifelong relationships. It is so meaningful when the attorneys take time on a personal level and share real-life experiences after the seminars each day. Bobby Lerma and Bill Trantham and their crew truly outdid themselves this year. The beach cookout was delicious, and all had a fabulous time. We thank them for their dedication to TCDLA and for the days’ time they dedicate in preparation to make this a unique tradition.

I had the opportunity to attend the Defenses of Executives in conjunction with NACDL this year. I was overwhelmed with the hospitality shown by each of the executive directors, as well as their willingness to share ideas. The creativity each state organization contributed was exciting and reinvigorating. I could not type fast enough. Speaking for TCDLA, the largest state association of criminal defense lawyers, I could brag on the many things we do well, but I learned so much more that we could try and other ways we could improve what we do. As each day went by, the juices continued to flow.

It was also very empowering to see that all of the executive directors except two were women. Discussions ranged from challenges associations face to marketing, technology, social media, staff, fundraising, and online CLE, to name a few. I felt energized by the guidance and mentorship many shared previously on the listserves, but to meet face to face and actually network during the day on a professional level—and then in the evening on a personal level—proved invaluable. Throughout the day and evening, we picked each other’s brains.

No one acted territorial or felt threatened: The group collaborated on ideas, exchanging documents, packets, and marketing material, as well as sharing insights on personal situations where maybe someone needed help or a pick-me-up. All in all, an overwhelming, great time. The group genuinely wanted each person who was an ED to be successful and were willing to help one another get there. A representative for NACDL affiliates also met with us to discuss how they could assist. We are looking forward to the upcoming year working closely with NACDL.

The staff was very excited when I brought back five pages of to-do items. Already they had been meeting to brainstorm on our marketing efforts and different ways to reach audiences via social media. The new ideas were welcomed, leading to more staff inspiration. The creative ideas and suggestions kept coming.

Is this how you feel when you leave a TCDLA event? It should be our goal for you to leave with techniques you can implement right away or motions to use, other methods for you to employ and tailor to your personal style. Do you come back and challenge yourself to try something different, out of the box? Did you meet new colleagues who you did not know otherwise, or did you stay to yourself or with your clique? Did you see young or veteran attorneys sitting alone—then invite them to join you for lunch or start a conversation to find out more about them?

I returned home from the NACDL event reenergized, empowered, and reinvigorated, alive with new ideas—at work and at home. I always feel like there are not enough hours in the day to finish what I need to do without going overboard. I need a getaway to discover something new and challenge myself to climb out of my box. Getting out of the office for personal time or continued education refreshes me, a jump-start. It relieves my stress and helps with the work-home balance.

In August I was able to take a vacation without the kids and just relax. When I returned, the staff graciously surprised me with fresh flowers, which I love—flowers are one of those things that can liven up any room. The kids always think it is so odd I frequently buy myself flowers. There doesn’t have to be a reason, I explain to them. The staff also warmed my heart with a beautiful desk display. They are truly amazing. We are lucky to have them!

Another year has come and gone, and I am year older. Time seems to go so much faster now, and I wish I could slow it down. I remember wanting to be 16 to get my driver’s license, then 18 to get into the clubs, then 21 to drink legally. But then you find you’re an adult and the bills roll in—and you want things to slow down. Yet every year seems to pass faster and faster.

I am thankful and truly blessed for all the opportunities and kindness I have been shown. I want to extend the warmest thank you for your big-hearted contributions I received on Facebook for our Texas Criminal Defense Educational Institution fund. I was overwhelmed by it. I am now a Fellow . . . Wait! Just in: a special new anonymous donation for $1,000! I am putting in the rest to become a Super Fellow! I am so excited to achieve this status! What a way to act as one, in unity. We can do so many things together!

In other news, TCDLA co-sponsored the Innocence for Lawyers CLE with the Innocence Project of Texas (IPOT). Course directors Gary Udashen, Mike Ware, and Allison Clayton all work endlessly throughout the year with IPOT. The staff was invited to attend the dinner presentations and listen to these exonerees. It always amazes me how their spirits are not crushed and they are not jaded. The staff returned and talked about how empowering the speakers were. If it were up to me, I would want everyone to hear their stories just once. IPOT was founded in 2006 to provide free investigative and legal services to indigent Texas citizens convicted of crimes they did not commit. Thirty-one states still have the death penalty, but I try to remain optimistic. I had the opportunity to listen to Rick Wardroup discuss his experience in a capital case, traveling to Huntsville when they executed his client. I hope he will share his story soon. I have been in Huntsville several times when people were executed, a surreal experience. Texas has had eight executions since January this year, compared to seven in all of 2017. These are grim statistics; I can’t say fewer is better.

Also new: TCDLA initiated a communication audit to review the Voice IP phone system, fax machines, internet connections, and speed in-house and on the website. The audit was performed by an independent consultant to review expenses and compare our systems with current technology and services available. While at one time VOIP was the service to select to avoid long-distance charges, many phone carriers now include limits of 8,000 to 10,000 minutes of long-distance calls. With more and more people using cell phones, they end user does not incur long-distance fees, making pay lines obsolete.

Technology is ever-changing. By the time you adopt the current model or learn the latest technology, the new version is released the next week. Are you up-to-date with the technology needed to represent your client effectively?

With that in mind, you might want to join us for a new CLE,  “Forensics, Phones, and Snitches,” held in Austin (Lakeway) September 13–14, 2018. Our course directors and the CLE Committee have put together a fresh new lineup. This is a must-attend seminar for every lawyer who defends serious felony cases. Learn how to decipher—and combat—the social-media and cellular evidence in your case. Learn how to deal with enhancement paragraphs, and, when all else fails, learn how to protect yourself from the inevitable writ. Hear from experts and lawyers who have successfully handled these types of cases. Get away to Lakeway! We have responded to our members’ comments on evaluations asking for seminars at venues with more amenities, selecting the Lakeway Resort and Spa for the September seminar and board meetings. Show your support for not only the new location but also the seminar.

Federal Corner: The D.C. Circuit Relies on Padilla in Deciding an Ineffective Assistance of Counsel Issue – By F. R. Buck Files Jr.

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Over the last several months, I have realized that it has been some time since I wrote a column about a case having an ineffective assistance of counsel issue. Then along came United States v. Aguiar, 894 F.3d 351 (D.C. Cir. 2018) [Panel: Circuit Judges Rogers, Griffith, and Srinivasan (opinion by Rogers, Griffith dissenting)]. In Aguiar, a divided panel of the Circuit held that the defendant’s attorney performed deficiently in failing to advise his client of the clear and easily determinable consequences of rejecting a plea offer.

What caught my eye when I read Aquiar was the reliance by Judge Rogers on Padilla v. Kentucky, 130 S. Ct. 1473 (2010). In the past, I have always thought of Padilla as that immigration case in which the lawyer failed to advise his client of the consequences of the plea of guilty that he was about to enter. My emphasis, unfortunately, was on the words immigration case. Judge Rogers shows us that there is much more to Padilla. His opinion reads, in part, as follows:

[The Background of the Case]

In superseding indictments, Aguiar and five co-defendants were charged with RICO and armed bank robbery conspiracies, two armed bank robberies, three counts of unlawful possession of a firearm by a convicted felon, and two counts of possession or use of a fully automatic assault weapon in connection with a crime of violence in violation of 18 U.S.C. § 924(c)(1)(B)(ii). Earlier Aguiar had rejected the government’s offer of a plea to three counts: RICO conspiracy, felon in possession of a firearm, and § 924(c)(1)(B)(ii), with a likely total sentence of between 47 and 51 years, including a mandatory 30 years on the § 924(c) count. A jury found Aguiar guilty of all charges except possession or use of fully automatic assault weapons, instead finding him guilty of possession or use of semi-automatic weapons in violation of §§ 924(c)(1)(B)(i) & (C)(i). He was sentenced to an aggregate term of 60 years’ imprisonment, including mandatory consecutive terms of 10 and 25 years’ imprisonment for the § 924(c) convictions, and ordered to pay restitution of $361,000. On direct appeal, this court affirmed the judgment of conviction. See United States v. Burwell, et al., 642 F.3d 1062 (D.C. Cir. 2011), aff’d, 690 F.3d 500 (D.C. Cir. 2012).

[The Writ Alleging Ineffective Assistance of Counsel]

Thereafter, on September 12, 2012, Aguiar, pro se, filed a motion pursuant to 28 U.S.C. § 2255(a) to vacate the judgment of conviction on the grounds of ineffective assistance of trial counsel. He argued that counsel . . . failed to explain to him the sentencing consequences for the two § 924(c) counts of rejecting the plea offer and going to trial, in violation of his Sixth Amendment right to effective assistance of counsel. Under the two-part test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Aguiar had to show counsel’s performance was deficient “under prevailing professional norms,” id. at 688, 104 S.Ct. 2052, and that the deficient performance was prejudicial, creating a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id. at 694, 104 S.Ct. 2052. The district court denied Aguiar’s motion without an evidentiary hearing because he had not proffered factual allegations to require a hearing and “the files and records of the case” showed he was entitled to no relief. United States v. Aguiar, 82 F.Supp.3d 70, 74, 76 (D.D.C. Feb. 12, 2015); 28 U.S.C. § 2255(b).

[The Sixth Amendment Right to the Effective Assistance of Counsel Extends to Plea Bargaining]

The Sixth Amendment right to the effective assistance of counsel extends to the “critical stage” of plea bargaining. Lafler v. Cooper, 566 U.S. 156, 162–63, 165, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). Constitutionally adequate representation requires counsel to adhere to “prevailing professional norms” and thereby “play[ ] a role that is critical to the ability of the adversarial system to produce just results.” Strickland, 466 U.S. at 685, 688, 104 S.Ct. 2052. The Supreme Court concluded “the proper standard for attorney performance is that of reasonably effective assistance,” id. at 687, 104 S.Ct. 2052, with the consequence that counsel’s representation is constitutionally deficient if it falls “below an objective standard of reasonableness,” Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Strickland, 466 U.S. at 687–88, 104 S.Ct. 2052. Reasonably effective assistance requires that counsel be more than a mere bystander and avoid making “errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

        The duty to provide reasonably effective representation at sentencing presumes knowledge of statutory penalties and familiarity with the U.S. Sentencing Guidelines. See Abney, 812 F.3d at 1089; United States v. Gaviria, 116 F.3d 1498, 1512 (D.C. Cir. 1997). Representation is deficient when counsel fails to protect his client’s interests in accord with the prevailing norms for criminal defense counsel or offers a “‘plainly incorrect’ estimate of the likely sentence due to ignorance of applicable law of which he ‘should have been aware.’” United States v. Booze, 293 F.3d 516, 518 (D.C. Cir. 2002) (quoting Gaviria, 116 F.3d at 1512). The former situation is illustrated in Abney, 812 F.3d at 1092, where counsel’s failure to seek a continuance of sentencing so his client could benefit from a likely imminent favorable amendment to the Sentencing Guidelines, as other defense counsel had done, meant Abney was unable to benefit from a five-year reduction in a mandatory minimum that would have been available. The latter situation is illustrated in Booze, 293 F.3d at 518–19, where counsel’s erroneous advice about a likely sentence upon conviction at trial resulted in the defendant rejecting a plea offer involving a sentence two-thirds lower than the sentence that was imposed after trial. Similarly, in Gaviria, 116 F.3d at 1512, counsel’s advice, contrary to the court’s precedent, that his client would be sentenced as a career offender, and thereby face 30 years to life imprisonment, resulted in Gaviria’s rejection of a plea offer with a likely sentence of 15 to 22 years’ imprisonment.

[The First Padilla Section of the Opinion]

In Padilla v. Kentucky, 559 U.S. 356, 366, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the Court concluded that even though removal is a civil proceeding, “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.Because the law has enmeshed criminal convictions and the penalty of deportation,id. at 365–66, 130 S.Ct. 1473, and because “deportation is a particularly severe penalty,” id. at 365, 130 S.Ct. 1473 (internal quotation marks and citation omitted), . . . counsel’s failure to advise the defendant that pleading guilty would make him eligible for deportation was contrary to reasonable professional norms under Strickland’s first prong, id. at 368–69, 130 S.Ct. 1473. Counsel must advise defendants of “clear” and “easily determined” immigration-related collateral consequences of entering a guilty plea. Id. Because “there is no relevant difference between an act of commission and an act of omission in this context,” id. at 370, 130 S.Ct. 1473 (internal quotation marks and citation omitted), the Court rejected the government’s view that Strickland should be limited to situations where the defendant has received “affirmative misadvice” on matters in the criminal case, id. at 369–70, 130 S.Ct. 1473 [emphasis added].

* * *

[Aguiar’s Contention That He Was Denied the Effective Assistance of Counsel]

Aguiar contends he was denied the effective assistance of counsel when trial counsel failed to explain to him that upon rejecting the plea offer and going to trial, the government’s superseding indictment would include more than one § 924(c) count and increase his mandatory minimum sentencing exposure, even to as much as life imprisonment. He maintains his “counsel needed only elementary reasoning to know what would happen if Aguiar rejected the plea offer.” Appellant’s Br. 49. In an affidavit attached to his § 2255 motion, Aguiar states:

My attorney . . . informed me verbally that the government had offered me a thirty (30) year [mandatory minimum] plea to resolve my case. He failed to inform me and explain to me the consequences of the consecutive sentences exposure[ ] I was actually facing, if I was convicted at trial. He failed to advise me regarding the d[e]sirability of accepting the plea offered, rather than to proceed to trial. Had I been aware[ ] that I was actually facing a total of 35 years for the two (2) § 924(c) counts consecutively with an additional 30 years for the remaining counts, I would ha[ve] accepted the 30-year plea offer and pleaded guilty in a timely manner instead of proceeding to trial.

[The District Court’s Rejection of Aguiar’s Contention]

The district court rejected Aguiar’s argument without holding an evidentiary hearing, reasoning that Aguiar’s “counsel’s performance did not fall below an objective standard of reasonableness under prevailing professional norms by failing to explain to him the sentencing implications of violations to which he was not charged at the time that the plea offer was extended and expired without acceptance.” Aguiar, 82 F.Supp.3d at 80.

[The Second Padilla Section of the Opinion]

[T]he question after Padilla is whether there were “clear” and “easily determined” severe sentencing consequences of Aguiar’s rejection of the plea offer. Padilla, 559 U.S. at 368–69, 130 S.Ct. 1473. The indictment pending at the time of the plea offer repeatedly described Aguiar’s involvement in four armed bank robberies: it stated three times that Aguiar acted “while armed with firearms,” once that he “equi[pped] [himself] with handguns, pistols, [and] assault weapons,” three times that he was “armed with assault weapons and pistols,” three times that he “demand[ed] money at gunpoint,” and once that he “hid . . . weapons.” Indictment at 2–8 (Aug. 5, 2004). The references to possession and use of a firearm during commission of a violent crime would alert competent counsel that the government had grounds to seek Aguiar’s indictment on multiple counts of violating § 924(c). Doing so would be consistent with prosecutorial policy on firearms offenses in the United States Attorneys’ Manual. But even if the indictment alone did not alert counsel, the plea offer did. Counsel did not have to be clairvoyant. The plea offer included a § 924(c) count and stated that the government would “not file additional § 924(c) violations” if Aguiar accepted the plea offer. Plea Offer at 2 (Sept. 17, 2004) [emphasis added].

[The Third Padilla Section of the Opinion]

In Padilla, the Supreme Court, in reaffirming that “negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel,” concluded that counsel’s Sixth Amendment duty to provide reasonable assistance to his client extends beyond the pending charges in an indictment. 559 U.S. at 373, 130 S.Ct. 1473. Although at the time the plea offer was pending Aguiar had yet to be indicted for violating § 924(c), it would have been “clear” and “easily determined” by competent counsel that upon rejection of the plea offer the government would seek a superseding indictment charging Aguiar with more than one § 924(c) count, and that upon his conviction on both counts the “severe” sentencing consequences, id. at 365, 130 S.Ct. 1473, extended to mandatory life imprisonment under § 924(c)(i)(C)(ii). Even if Aguiar were to be convicted only of possession or use of semi-automatic weapons, his mandatory sentence would increase to 35 years’ imprisonment under §§ 924(c)(1)(B)(i), (C)(i). Reasonably effective assistance under Strickland’s first prong required counsel to advise Aguiar of these sentencing consequences of rejecting the plea offer. A failure to do so is legally indistinguishable from affirmatively misinforming the defendant as a result of ignorance of relevant law. See id. at 370, 130 S.Ct. 1473 [emphasis added].

* * *

[The Fourth Padilla Section of the Opinion]

What Aguiar needed to know before he decided whether or not to accept the plea offer was the worst-case scenario if he rejected the plea and went to trial. Although this “court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,” Strickland, 466 U.S. at 689, 104 S.Ct. 2052, “[t]he record is quite sketchy regarding plea discussions,” United States v. Winstead, 890 F.3d 1082, 1088 (D.C. Cir. 2018). “[T]he motion and the files and records of the case” do not “conclusively show” Aguiar was advised that a consequence of rejecting the plea offer was mandatory life imprisonment or at least a longer mandatory minimum sentence. 28 U.S.C. § 2255(b). Consequently, the district court erred in denying his ineffective assistance of counsel claim without holding an evidentiary hearing given the inconclusiveness of the record and the failure to apply the legal standard announced in Padilla, 559 U.S. at 365, 368–69, 130 S.Ct. 1473. Therefore, we remand for an evidentiary hearing on this part of Aguiar’s Sixth Amendment challenge. 28 U.S.C. § 2255(b); cf. Winstead, 890 F.3d at 1088 (citing United States v. Rashad, 331 F.3d 908, 910 (D.C. Cir. 2003) ). Aguiar will have the opportunity to proffer any “contemporaneous evidence” about “how he would have pleaded but for his attorney’s [alleged] deficiencies,” as did the defendant in Lee v. United States, ___ U.S. ___, 137 S.Ct. 1958, 1967, 198 L.Ed.2d 476 (2017) [emphasis added].

[The Result]

Accordingly, . . . we reverse and remand the plea bargaining challenge.

My Thoughts

  • In WestLaw’s All Federal database, Padilla is cited 4,451 times. By comparison, Strickland has been cited more than 9,999 times.
  • One of the great lawyers of our time and an early leader of TCDLA was heard to say that the client of today is the enemy of tomorrow. Perhaps he was being a bit cynical, but there is a great deal of truth in what he said. There are two groups of criminal defense lawyers: those who have had an allegation of ineffective assistance of counsel brought against them and those who are waiting for it to happen.
  • It just doesn’t hurt for us to review Strickland and Padilla in order that we may be reminded of how important it is that we be clear and accurate in the advice that we give to our clients.

Shout Outs

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Kudos to Houston assistant PD Nicolas Hughes and colleague Sarah Wood for their work challenging testimony on bloodstain pattern evidence and gunshot residue. Sarah filed a complaint with the Texas Forensic Science Commission, stemming from testimony in a cold case, Nicolas says: “Christopher Duncan with HPD testified regarding bloodstains, and reasoned that because there was a single positive blood result, then all the other spots he felt were part of the same ‘stain pattern’ must have also been blood as well.
 “Dr. William Davis testified about gunshot residue statistics, misapplying a study about finding GSR on hands in this case.
 “The Texas FSC concluded that there were severe problems with both areas of testimony. The Texas FSC concluded that there are foundational problems with BPA and will require that BPA analysis be performed under accreditation standards after May 2019. The Texas FSC also concluded that GSR experts should not be applying statistical tools to support their conclusions.“
 As Nicolas concludes: “I don’t think enough credit can be given to Sarah Wood to raising this important issue and challenging junk science and misapplied science. Not all our victories happen in Court. “
 Excellent work, Sarah and Nicolas, in the fight for justice.

Notch another big win for listserve lodestar Michael Mowla on a convoluted case on remand from the CCA in the 204th District Court. The State was attempting to reinstate four indictments against D the trial court had dismissed with prejudice, in a case involving a dispute over a $50 million fee. D sought to have them quashed due to three types of alleged prosecutorial misconduct—lack of a disinterested prosecutor, vindictive prosecution, and selective prosecution. In a scathing concurring opinion, Justice David Schenck battered the State’s case: “A prosecutor proceeding to take a case before a grand jury where the objective facts would indicate an undue influence casting a shadow over his judgment and that would otherwise not be pursued cannot be adequately remedied by simply observing the fact and starting over as if it had not happened. Without some form of meaningful remedy, there would be no meaningful check on the very weighty institutional concerns that undergird Massey Coal and the right to due process that would otherwise be reduced to a hollow form of words.”
 He also added, “[T]he trial judge had ample evidence on which to base her decision to dismiss with prejudice on either a finding of egregious misconduct by the district attorney or a finding that but for his misconduct no case would have been brought.”
 The entire opinion is worth a read, rife as it is with details about prosecutorial misconduct and assorted skullduggery. It can be found here: https://law.justia.com/cases/texas/fifth-court-of-appeals/2018/05-13-00424-cr-1.html.
 Of note as well is the fact that the DA in question here lost a bid for reelection and will no longer haunt the halls of justice. Congratulations, Michael, for walking the walk on another big case.

Seth Sutton of Waco sent along a shout out to his brothers in arms: “Today, my partner Jason Milam and our associate Stephen Yip received a NOT GUILTY on both counts (assault family violence and interference with an emergency phone call) of a hard-fought trial. I think what makes me so incredibly proud is that not only was this an appointed case, but the defendant had also been stuck in jail and already had the time served. Many lawyers would have convinced such a client to simply take a deal to get the thing over with. But to Jason and Steven, every client and every case matters. Nice work, guys!”
 And Jason returned the favor in another case: “Seth Andrew Sutton did a great job in negotiating a plea deal for our client in which a felony would be pled down to a misdemeanor for time served. This is an incredible result as our client lives in another state and would just do a walk-through at jail after court and catch a flight home tomorrow. I handled the announcement and plea today and was able to confirm out-of-state credit that got him to time served.” Congratulations to our Waco warriors for jobs well done.

Kudos to Team Thiessen of Houston for a righteous verdict in a recent case. The circumstances of this case require further explication. From Mark: “2½ years ago our client ran over a man and then took off. It all started when she double-parked in her apartment complex roundabout. When she came out the owners (daughter and father) of the car began yelling at her. As she attempted to leave around the circle, the father flanked her and tried to block her from leaving. Little did he know that our client suffered from serious PTSD against men from being kidnapped and forced into sex slavery—and the FBI had to kidnap her back out. There were no burn-out marks, he sustained no cuts or injuries to his legs. Our accident reconstructionist opined he was run over at around 5 mph. All the evidence suggested he jumped out in front of her. The State and father alleged she stopped, said move out of the way, and then just ran over him. He was a very fit man with a lot of room to the left or right to move. He didn’t and was very seriously injured (52 days in a coma, $1M in medical bills). However, she left the scene of the accident, did not return, and never called 911. We fought the aggravated assault with a deadly weapon charge from the beginning. But then they filed failure to stop and render aid (FSRA)—very smart, because the client did not stop and render aid. The Agg Aslt was dismissed and the client plead guilty to FSRA. We went to the jury for punishment because the State wanted her to do 10 years in prison.
 “We had a very smart jury that listened to all of the evidence. The jury agreed that prison was not the right punishment for this particular set of facts. They gave our client probation. The Judge was very fair in trial and assessed no jail time. Our client returns home to her 3 sons and has a chance to rebuild her life. Tears were shed, and we were happy to save this poor young lady from prison.
 “Thank you to the just jury and their ability to see through the State’s attempt to punish her for injuries that were not her fault. I hope they forever remember the day they gave a young lady a second chance at life. And thank you to the Judge for running a fair trial.“
 Not all wins result in the big NG, but this outcome certainly deserves a shout out to Mark and Taly.

Ethics Committee Chair Robert Pelton sends a shout out to committee member Ray Fuchs and Joel Perez of San Antonio for their work on a capital murder trial of a man charged in the shooting and stabbing deaths of two people after an argument over cigarettes. Despite D’s DNA found on the murder weapon, the jury deliberated for 13 hours over two days but were unable to reach a verdict, hanging 6–6. Congratulations, guys, for outstanding work on a tough case.