Monthly archive

November 2019 - Page 2

Getting Paid

The past few years there has been confusion on setting fees, non-refundable fees, and other matters. I will be putting fee examples in future issues to make sure we are all on sound ethical ground.

Betty Blackwell, Joseph Connors, Judge Herb Ritchie, and Judge Greg Glass have given me permission to use their contracts as examples.

To avoid problems, always get something in writing regarding your fee. At minimum, get a letter of acknowledgment.

Keep notes of all meetings and calls with clients or their families. When you find yourself sitting in a fee-dispute or grievance hearing, you will be happy to have documentation of jail visits and calls, emails, personal meetings, and any other communication.



Ethics & The Law: Freedom Is Not Free


I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies foreign and domestic: that I will bear true faith and ­allegiance to the same. That I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.

Voting is not a privilege, it is a right, and many paid dearly for it. Remember this when you say “my vote won’t count” or “I’m too busy” or “I don’t care”—American men and women in uniform have served, or are currently serving, in the military to protect and preserve our democracy and YOUR right to vote. Many have died1 or suffered permanent disabilities fighting for our freedoms.


Voting is our most fundamental right as Americans. Many sacrifices have made it possible for our citizenry to be able to vote—from military actions to civil rights movements.

African-Americans won the right to vote in 1870 when the 15th Amendment2 ended the practice of denying the right to vote based on race, skin color, or prior servitude. This was the third of the Reconstruction amendments.3 Fifty years later, after a long struggle known as the Women’s Suffrage Movement, women earned the right to vote in 1920 with the 19th Amendment.4

Many black citizens were threatened or killed trying to exercise their right to vote. There were other voting obstacles as well. A “poll” or “head” tax had to be paid in person at the time of voting. It was imposed on all adults equally, regardless of income or property ownership. The poll tax was used in the South during and after Reconstruction as a means of circumventing the 14th Amendment5 and denying voting rights to African-Americans.

The tax also created a burden on poor white Americans. This form of taxation gradually fell out of favor in the South in the mid-20th century, but it was not until the adoption of the 24th Amendment6 in 1962 that poll taxes were finally abolished as a prerequisite for voting in federal elections. They were later eliminated in all elections. The Voting Rights Act of 1965 was passed to enforce the already-existing rights in a handful of Southern states.

Don’t take our freedoms for granted. Too many have sacrificed for our rights. Be smart in your voting decisions. Politics can be dirty business—false information is everywhere—so look at the source of these allegations. Remind others to vote. You can send out emails to people on your list and encourage them to vote. Since you as a lawyer may know more about many of the candidates, you can do a service for your contacts by giving them your choice of who is the best candidate.

Federal Corner: A Case of First Impression on Forcibly Medicating a Defendant Against Her Will


In a case of first impression in the Circuit, a panel of the United States Court of Appeals for the Fifth Circuit held that—in order to forcibly medicate a criminal defendant against her will—the government bears the burden of satisfying the four-pronged Sell test, 123 S.Ct. 2174, providing clear and convincing evidence under each of these four prongs. United States v. James, ___F.3d___, 2019 WL 4410005 (5th Cir. Sept. 16, 2019) [Panel: Circuit Judges Holly, Ho, and Engelhardt (Opinion by Judge Ho)].

Compelling the Medication of a Defendant

Forced medication to ensure that a mentally troubled criminal defendant is competent to stand trial implicates profound liberty interests under the Due Process Clause. To protect those interests, the Supreme Court has established a four-prong test that prosecutors must satisfy before a court may compel the medication of the accused. See Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003).

        To date, however, neither the Supreme Court nor this court have stated what burden of proof the government must carry under the four-prong test. But our sister circuits overwhelmingly agree that the government must establish the four factors by clear and convincing evidence, and not just by a preponderance of the evidence. The parties here agree as well. We now join our sister circuits and adopt the same burden of proof today.

* * *

A Bureau of Prisons Psychologist Concluded That James Was Competent to Stand Trial

Susan James allegedly threatened to kill her aunt and uncle in violation of 18 U.S.C. § 875(c). After she was arrested and taken into custody, the district court held a hearing to determine whether James was competent to stand trial, in light of her stated belief that everyone involved in this prosecution, including her own lawyer, was conspiring against her. Prior to the February 7, 2018, hearing, James underwent a court-ordered psychiatric and psychological evaluation conducted by Dr. Tennille Warren-Phillips, a licensed psychologist, at the Bureau of Prisons (BOP) federal detention center in Houston, Texas. Dr. Warren-Phillips diagnosed James with General Personality Disorder and Obsessive-Compulsive Disorder, but nevertheless initially concluded that she was competent to stand trial.

An Independent Forensic Psychiatrist Concluded That James Was Not Competent to Stand Trial

James’ attorney, however, was concerned about her own fraught interactions with James. So she requested an independent evaluation.

        The independent evaluation conducted by Dr. Loretta Sonnier, a forensic psychiatrist, concluded that James was not competent to stand trial. As reflected in her December 21, 2017, report, Dr. Sonnier diagnosed James with “schizoaffective disorder, bipolar type”—a condition marked by “fixed false beliefs” that “affect her judgment.” Dr. Sonnier further concluded that psychotropic medication would be “substantially likely” to render James competent to stand trial.

After a Hearing, Judge Ashe Found That James Was Not Competent to Stand Trial and Sent Her to a Medical Facility

After a hearing held on February 7, 2018, the district court found James was not competent to stand trial.

        James was then sent to a medical facility in an effort to restore her competency. Dr. Hayley Blackwood, a forensic psychologist, informed the court of her conclusion that James suffered from Delusional Disorder, Persecutory Type, and would need to be medicated to stand trial. In a preliminary letter submitted to the court, Dr. Blackwood said: “[W]e believe there is an increased likelihood that with [psychotropic medication], [James] could be restored to competency to stand trial in the foreseeable future.” She repeated this conclusion in her full report to the court.

Bureau of Prisons Doctors Concluded That Involuntary Treatment With Antipsychotic Medication Would Be Medically Appropriate to Restore James to Mental Competency

The BOP held an administrative hearing and reaffirmed Dr. Blackwood’s conclusions. Dr. Judith Cherry, who oversaw the hearing, concluded that “[a]ntipsychotic medication is [ ] recognized as a safe and standard treatment for Delusional Disorder. The evidence presented is clear, and persuasive that involuntary treatment with antipsychotic medication is medically appropriate and the only viable option to restore Ms. James to mental competence to stand trial.”

James Refused to Consent to Be Medicated and the Government Requested a Sell Hearing

James consistently refused consent to be medicated. So the government requested a hearing under Sell to determine whether it could medicate her involuntarily. See 539 U.S. at 179–81, 123 S.Ct. 2174.

        At the January 10, 2019, hearing, both Dr. Blackwood and Dr. Jose Silvas, a psychiatrist in charge of James’ medication, testified that medication was necessary to restore James’ competency. James’ counsel cross-examined the government’s witnesses, and James spoke on her own behalf, but otherwise did not provide her own evidence.

Judge Ashe Concluded That the Government Had Met Its Burden and Ordered That James Be Involuntarily Medicated Unless She Would Agree to Voluntarily Receive Antipsychotic Medication

In an oral pronouncement, the district court concluded that the government met its burden under Sell, and ordered that James shall be involuntarily medicated, in an attempt to render her competent to stand trial, in accordance with the treatment plan recommended by Dr. Silvas. . . . Prior to each administration of involuntary medication, James shall be provided an opportunity to voluntarily receive antipsychotic medication, as directed by Dr. Silvas, as an alternative to involuntary medication. . . . James shall remain confined at the Carswell Federal Medical Center (FMC) for six (6) months, or a lesser period that is reasonably sufficient to restore her to competency.

Judge Ashe Entered a Written Order in Order That James Could Pursue an Interlocutory Appeal

The court memorialized its oral ruling in a non-substantive written order, which it stayed so James could seek an interlocutory appeal. See Sell, 539 U.S. at 176–77, 123 S.Ct. 2174 (permitting interlocutory appeal of such orders under the collateral-order doctrine). To date, James has been in custody for over two years.

The Due Process Clause of the Fifth Amendment and Forcibly Medicating a Criminal Defendant

The Due Process Clause of the Fifth Amendment guarantees that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.” U.S. CONST. amend. V. Forcibly medicating a criminal defendant to ensure that he is competent to stand trial plainly intrudes upon liberty interests protected by the Due Process Clause. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 725, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (noting our “long legal tradition protecting the decision to refuse unwanted medical treatment”); Cruzan by Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 269, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) (“At common law, even the touching of one person by another without consent and without legal justification was a battery. . . . This notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment.”).

The Sell Test

In Sell, the Supreme Court set forth a four-prong test to govern the forcible medication of defendants to restore their competency for trial. District courts must ask “(1) whether important governmental interests are at stake; (2) whether involuntary medication will significantly further those interests; (3) whether involuntary medication is necessary to further those interests; and (4) whether the administration of the drugs is medically appropriate.” United States v. Palmer, 507 F.3d 300, 303 (5th Cir. 2007) (citing Sell, 539 U.S. at 179, 123 S.Ct. 2174) [emphasis added].

Sell Does Not Establish the Government’s Evidentiary Burden

Sell did not, however, establish the government’s evidentiary burden. But on appeal, the parties agree that the government must provide clear and convincing evidence under the four-prong test before an accused may be forcibly medicated. Nine of our sister circuits take the same view today—as did the United States government in Sell itself.

* * *

The Record Does Not Reflect What Evidentiary Standard Judge Ashe Applied

It is not clear whether the district court here applied a clear and convincing evidentiary standard—which is perhaps understandable, because until today, our court has not adopted a standard. From our review of the record, the district court only invoked the need for “clear and convincing evidence” when it analyzed the second Sell factor. The court was silent as to the burden of proof governing the other Sell factors—as the government recently acknowledged in a post-oral-argument filing on appeal.

The Court Remands the Case Back to Judge Ashe

Because we cannot determine what standard the district court applied, we vacate the Sell order and remand to allow the district court to apply the clear and convincing standard in the first instance. See, e.g., United States v. Bush, 585 F.3d 806, 817 (4th Cir. 2009) (“[T]he application of the clear-and-convincing standard in this case might be material to the question of whether the government met its burden. For that reason, we remand this issue . . . to the district court to receive further evidence, if it deems it appropriate, and to apply the clear-and-convincing burden of proof.”).

        Forced medication would be a significant incursion into James’ liberty. We cannot tell whether the district court here applied the proper burden of proof—and thus we cannot tell whether the evidence is sufficient to support such an incursion. Accordingly, we vacate the Sell order and remand for further proceedings.

My Thoughts

  • In 2004, I represented a client who had killed two of her children and seriously injured a third. Eventually, she was prosecuted and found not guilty by reason of insanity. The first time that I talked to her, she told me that she was ex­pecting me because she had seen a large, male deer in the pasture while she was waiting for the ambulance and the officers to come to her home. It was a buck. She also knew that my legal assistant, Debbie, was going to be with me because—on her cell walls—were the letters D, E, and B. It was very painful to listen to her during that meeting. At that time, she would not have been found competent to stand trial.
  • Six weeks later, after taking antipsychotic medication, she was horrified by the memories of what she had done and would have been found competent to stand trial, if the issue had been raised. I was amazed at how the antipsychotic medication impacted her.
  • I have no doubt that Judge Ashe is going to conduct a hearing and find that the Government has established the four factors of the Sell test by clear and convincing evidence and that James will be medicated against her will, found to be competent, prosecuted, convicted, and sentenced by the court.
  • The Government will win and James will lose—but only after she is forced to take a medication that she does not want. Painful.

Shout Outs


Kudos to ex-prez Randy Wilson for an impressive victory in Federal Court in hometown Abilene. D, charged with Possession of More than 5 grams with intent to deliver, had 2 prior drug convictions and faced 10 years to life. Undisputed evidence showed that while the D was being arrested, he was patted down twice before the officer discovered over 11 grams of meth in the pocket of his shorts. The defense charged that the Abilene PD planted these drugs because D had been arrested over 50 times, knew he was about to be arrested, and would not have come out of the house with any contraband—which was surrounded at the time by the Abilene Police Department Special Operations Unit and a Deputy U.S. Marshal. Randy convinced the jury that his client, a convicted drug dealer, did not have this meth in his possession. D testified that he was cuffed when he exited the house, then searched at least two times before being placed in the vehicle for transport to jail. He further testified that the person who found the methamphetamine in his pocket was the commander—after he was placed in the officer’s vehicle. The jury took two hours to return the big NG verdict. Quite a job there, Randy. Congratulations.

Kudos also to Greg Westfall of Fort Worth for his efforts in winning a new trial for his client in the First Court of Appeals. The decision reads as follows: “Molina contends the trial court abused its discretion in admitting evidence of contraband the State conceded belonged to his passenger. Concluding that the probative value of the evidence of the passenger’s contraband was significantly outweighed by the danger of unfair prejudice, we conclude the trial court abused its discretion in admitting the evidence. We further conclude that the admission affected Molina’s substantial rights and warrant reversal.” Way to go, Greg.

A shout out to Wade B. Smith of Houston, who won a recent Motion to Suppress in a DWI case. D was pulled over by a 36-year veteran officer of the HPD after he said he almost hit him and “kind of” ran a stop sign. D, who speaks little English, stopped and got out. Cop grabbed and searched him, cuffed him, then put him in the cruiser. DWI unit conducted SFSTs, though D refused blood draw. A warrant lead to a .237 alcohol content. At the hearing, Wade put the officer on the stand and crossed him on the absence of signs of intoxication, using the officer’s own body-cam recording. A portion showed the officer tell the DWI unit he thought he was intoxicated because he almost hit him in the parking lot. He told the unit that he didn’t see red, glassy, or bloodshot eyes, notice any issues with D’s balance, or smell alcohol. Through the officer’s testimony and the video, Wade established that the only facts officer relied on for his believing D was intoxicated was the driving behavior and what he called slurred speech. The judge herself said she couldn’t determine if the speech was actually slurred or if it was due to his difficulty with the language. And without something more than the driving facts, she said, there was no reasonable suspicion to expand the stop into a DWI investigation, granting the motion to suppress. Congratulations, Wade, on a good win.

Tip of the hat to Sean Hightower of Nacogdoches for his recent win in a big case. He notes that the state’s offer was 16 years in prison on “the largest drug case they’ve ever had.” Sean called on all his lawlerly skills, concluding, “Judge granted probation—after yours truly begged, pleaded, rolled my eyes, cursed under my breath, and talked about common sense.” Whatever works, counselor. On another note, Sean rates another congratulations for being selected a 2020 Rising Star, another TCDLA lawyer in ascendance.

Kudos to Mark Thiessen for his work in a recent case not always within his purview. As he explains: “Today was a nice closure for a young man who I have spent almost 2 years getting back on track. Charged with Aggravated Robbery for stealing a truck by point a gun to a stranger’s head, a judge gave him a second chance at life today. It was truly eye-opening to see what can happen if your child falls in with the wrong crowd. Had loving parents and never a problem until his senior year in HS. Then fell in with the wrong crowd and in 3 months confessed to 7 other Aggravated Robberies. Not a case for trial. So instead, I got this young man back on track and begged for mercy and compassion from the Court. Judge showed tremendous compassion and mercy and gave this man a second chance to get his life back. Walked in looking at 5 to 99 years. And he walks out with deferred adjudication. I look forward to seeing him at the end and how far he has come. This horrible charge and 3 months may just be the thing that saved his life and transformed him. Big THANK YOU to Judge.” And to you, Mark, for caring about him.

Shout out to David Mee of Allen, who just watched a client walk with a full dismissal in Montague County from a charge of First-Degree Arson. “Great expert out of Lubbock,” says David. “His report and my motion to dismiss seems to have carried the day. Thanks to Michael Payne out of Wichita Falls for letting me come in for some late briefing and bullpen help! Michael did the first three years of work. Happy to share any good results! First post in a dozen years from a former prosecutor.” Congratulations to both of our members for a job well done.