Monthly archive

December 2019

December 2019 SDR – Voice for the Defense Vol. 48, No. 10

Voice for the Defense Volume 48, No. 10 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: no relevant opinions have been handed down by the SCOTUS yet during the new term.

United States Court of Appeals for the Fifth Circuit

United States v. Dean, No. 18-50509, 2019 U.S.App.LEXIS 30393 (5th Cir. Oct. 10, 2019) (designated for publication) [Conditions of supervised release; plain error review; search-condition of supervised release]

        Under 18 U.S.C. § 3583(d), a district court may order any condition set forth as a discretionary condition of supervised release in 18 U.S.C. § 3563(b) and any other condition it considers appropriate.

        When a defendant objects to a special condition of supervised release, review is for abuse of discretion. Failure to object causes review for plain error.

        When the defendant does not object to error before the district court, plain error review applies. Under Fed. Rule Crim. Proc. 52(b), a court of appeals may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. Under Molina-Martinez v. United States, 136 S.Ct. 1338 (2016), and United States v. Olano, 507 U.S. 725 (1993), these conditions must be met before a court may consider plain error: (1) error that has not been intentionally relinquished or abandoned; (2) the error must be plain (clear or obvious); (3) the error must have affected the defendant’s substantial rights, which requires the defendant to show a reasonable probability that but for the error, the outcome of the proceeding would have been different; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

        District courts have wide discretion in imposing terms and conditions of supervised release. District courts may impose any condition provided the condition is reasonably related to at least one of four factors: (1) the nature and characteristics of the offense and the history and characteristics of the defendant, (2) the deterrence of criminal conduct, (3) the protection of the public from further crimes of the defendant, and (4) the provision of needed educational or vocational training, medical care, or other correctional treatment to the defendant. The condition must be narrowly tailored such that it does not involve a greater deprivation of liberty than is reasonably necessary to fulfill the purposes set forth in § 3553(a).

Facts:

  • Dean pleaded guilty to felon in possession of a firearm per 18 U.S.C. § 922(g)(1).
  • The PSR showed a criminal history category of VI and offense level of 12.
  • The district court sentenced him to 37 months in BOP.
  • A term of supervised release was: “The defendant shall submit his person, property, house, residence, vehicle, papers, computers, other electronic communications or data storage devices or media, or office to a search conducted by a United States probation officer. Failure to submit to a search may be grounds for revocation of release. The defendant shall warn any other occupants that the premises may be subject to searches pursuant to this condition. The probation officer may conduct a search under this condition only when reasonable suspicion exists that the defendant has violated a condition of supervision and that the areas to be searched contain evidence of this violation. Any search shall be conducted at a reasonable time and in a reasonable manner.”
  • Dean did not object to the condition.

The record sufficiently supports the special search condition

  • Under 18 U.S.C. § 3583(d), a district court may order any condition set forth as a discretionary condition of probation in 18 U.S.C. § 3563(b) and any other condition it considers appropriate.
  • When a defendant objects at sentencing to a special condition of supervised release, review is for abuse of discretion. Failure to object causes review for plain error only.

Editor’s note: the full relevant law on plain error review:

  • When the defendant does not object to error before the district court, plain error review applies. Under Fed. Rule Crim. Proc. 52(b), a court of appeals may consider errors that are plain and affect substantial rights even though they are raised for the first time on appeal. Under Molina-Martinez v. United States, 136 S.Ct. 1338 (2016), and United States v. Olano, 507 U.S. 725 (1993), these conditions must be met before a court may consider plain error: (1) error that has not been intentionally relinquished or abandoned; (2) the error must be plain (clear or obvious); (3) the error must have affected the defendant’s substantial rights, which requires the defendant to show a reasonable probability that but for the error, the outcome of the proceeding would have been different; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
  • No factual finding was made by the district court about the condition.
  • In the absence of a factual finding, the 5th Circuit may affirm a special condition of supervised release if the district court’s reasoning can be inferred after an examination of the record.
  • The PSR reflects an extensive criminal history ranging from drug possession to burglary to firearm possession. The condition is a mechanism for enforcing other conditions prohibiting Dean’s possession of drugs or firearms by facilitating the detection of evidence of other supervised release violations.
  • The condition is also narrowly tailored because Dean will be subject to the condition only if the probation officer reasonably suspects Dean has violated a condition of supervision and any search may be conducted only at a reasonable time and in a reasonable manner.
  • There was no clear error. The judgment is affirmed.

United States v. James, No. 19-30049, 2019 U.S.App.LEXIS 27847 (5th Cir. Sep. 16, 2019) (designated for publication) [Government’s standard of proof in a Sell-hearing is clear and convincing]

        Under Drope v. Missouri, 420 U.S. 162, 171 (1975), mental competence is a prerequisite to stand trial. A person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial. A defendant is competent if he has a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings.

        Under Sell v. United States, 539 U.S. 166 (2003), the four-prong test to determine whether a defendant may be forcibly medicated to restore his competency for trial is whether: (1) im­portant governmental interests are at stake; (2) involuntary medication will significantly further those interests; (3) involuntary medication is necessary to further those interests; and (4) the administration of the drugs is medically appro­priate.

        The government’s evidentiary burden under Sell is by clear and convincing evidence before a defendant may be forcibly medicated.

United States v. Khan, No. 18-20519, 2019 U.S.App.LEXIS 27846 (5th Cir. Sep. 16, 2019) (designated for pub­li­cation) [Procedurally and substantively unreasonable sentences; U.S.S.G. § 3A1.4 enhancement for terrorism]

        Sentences are reviewed for procedural reasonableness and substantive reasonableness: A bifurcated review process reviews for procedural reasonableness and if there is no procedural error, for substantive reasonableness. Procedural reasonableness requires a determination whether the district court committed a significant procedural error at sentencing. Failing to calculate (or improperly calculating) the Guidelines range is significant procedural error.

        Under U.S.S.G. § 3A1.4, a terrorism enhancement makes the Guidelines range 180 months, the statutory maximum, and allows a 12-level increase and criminal history score of VI if it involved or was intended to promote a federal crime of terrorism (crime enumerated in 18 U.S.C. § 2332b(g)(5) that influences or affects the conduct of government by intimidation or coercion or to retaliate against government conduct).

        The Guidelines do not contain a general prohibition against double-counting. It is prohibited only if it is specifically forbidden by the guideline at issue.

Texas Court of Criminal Appeals

Ex parte Adams, No. PD-0711-18, 2019 Tex.Crim.App. LEXIS 979 (Tex.Crim.App. Oct. 9, 2019) (designated for publication) (Aggravated Assault with a deadly weapon and SBI, Taylor Co.) [Collateral estoppel]

        Under the Double Jeopardy Clause of the Fifth Amendment, North Carolina v. Pearce, 395 U.S. 711, 717 (1969), and Aekins v. State, 447 S.W.3d 270, 274 (Tex.Crim.App. 2014), a person is protected against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.

        Under Ashe v. Swenson, 397 U.S. 436, 445 (1970), collateral estoppel applies in criminal cases, so when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Under Rollerson v. State, 227 S.W.3d 718, 730 (Tex.Crim.App. 2007), and Currier v. Virginia, 138 S.Ct. 2144, 2150 (2018), the government may not litigate a specific elemental fact to a factfinder, receive an adverse finding on the specific fact, learn from its mistakes, hone its prosecutorial performance, and relitigate that same factual element already decided against the government. For collateral estoppel to apply: The factfinder had to have determined a specific fact (how broad—in terms of time, space and content—was the scope of its finding) that was decided in favor of the defendant in the first trial.

        When a defendant is acquitted on a defense of a third person theory after stabbing a person engaged in a fight, collateral estoppel does not bar a subsequent prosecution for stabbing another person who was not fighting.

Curry v. State, No. PD-0577-18, 2019 Tex.Crim.App. LEXIS 1088 (Tex.Crim.App. Oct. 30, 2019) (designated for publication) (Failure to Stop and Render Aid per Tex. Transp. Code § 550.021(a) & (c)(1), Harris Co.) [Legal sufficiency; mistake of fact under Tex. Penal Code § 8.02]

        Statutory construction is a question of law reviewed de novo. If the language is plain, the court will effectuate the plain language. If the language is ambiguous or effectuating the plain language would lead to absurd results, the court may resort to extra-textual sources to determine the intent of the legislators.

        Under Tex. Transp. Code § 550.021(a)(1)–(4) (Failure to Stop and Render Aid), the operator of a vehicle involved in an accident that results or is reasonably likely to result in injury or death shall: (1) immediately stop the vehicle at the scene of the accident or as close to the scene as possible; (2) immediately return to the scene of the accident if the vehicle is not stopped at the scene of the accident; (3) immediately determine whether a person is involved in the accident, and if a person is involved in the accident, whether that person requires aid; and (4) remain at the scene of the accident until the operator complies with the requirements of § 550.023.

        To prove Tex. Transp. Code § 550.021(a)(1)–(4) (Failure to Stop and Render Aid), the State need not prove that the driver knew a person involved in the accident was injured or killed (al­though such proof will suffice). The State may allege that a driver failed to stop and render aid because he knew that he was involved in an accident that was reasonably likely to injure or kill another person, if another person was involved. A driver does not have to stop and render aid if he does not know that he was involved in an accident; if he knows that he was involved in an accident and knows that it did not result in injury to or the death of a person; or if he knows that he was involved in an accident but it was not reasonably likely that the accident would result in injury to or the death of another.

        A defendant is entitled to a mistake-of-fact instruction if the issue is raised by the evidence even if that evidence is weak or controverted. Under Tex. Penal Code § 8.02(a), it is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.

Facts:

  • Curry was indicted for Failure to Stop and Render Aid to bicyclist Ambrose per Tex. Transp. Code § 550.021(a), (c)(1). Curry did not dispute that he struck Ambrose and failed to stop and render aid and conceded that Ambrose died from complications arising from the medical treatment. Curry contended that he did not know that he had struck a person who required his assistance.
  • The investigation showed that a vehicle struck Ambrose from behind while he was bicycling in the northbound lane of a narrow, two-lane road, a driver traveling in the northbound lane could have seen Ambrose because his bicycle had reflectors that were visible at night, and the driver who struck Ambrose was aware that the collision had occurred because the debris path showed that the driver had swerved.
  • A citizen’s tip lead deputies to Curry. The front passenger side of his truck was damaged.
  • Curry testified that he did not think that he had been in an accident. It was dark and the surrounding lighting was poor. Curry said he did not see anything in the roadway and the passenger-side headlight suddenly burst. He believed that somebody threw something, something hit his truck, or that it was something that had just came up off the road. Curry conceded that he knew there had been a collision of some sort. Curry braked but did not stop, explaining that it was dark, and he feared the possibility of an “altercation” with someone.
  • Curry’s girlfriend San Felipo testified that she and Curry were returning from dinner that evening. San Felipo was following him in her car. They were traveling 30–40 mph. San Felipo could see the roadway beyond Curry’s truck. She did not see a bicyclist in the road. Curry’s headlight shattered, his truck “jerked a little bit,” and he braked. She thought somebody threw a bottle at him. San Felipo did not see Ambrose after the impact.
  • Curry and San Felipo drove to his home where they inspected the truck. Immediately afterward, they then returned to the scene in San Felipo’s car to determine what had happened. They slowly drove by the area, but they did not stop there. San Felipo saw the silhouette of a man, whom she thought might have thrown the bottle. Aside from the remains of his headlight, Curry said that he did not see debris in the road. Nor did he see Ambrose or his bike. Curry conceded that he would have found Ambrose and known that Ambrose needed help if he and San Felipo had stopped and looked around for a few minutes.
  • Rooke (accident reconstructionist and defense expert) opined that Ambrose was not in the roadway immediately before the accident; Ambrose, whose BAC was more than 2× the legal limit, had pulled out onto the road just as Curry’s truck passed by; Ambrose and his bike would have come to rest elsewhere if Curry had struck him from directly behind; the bicycle’s rear tire was too low to damage the truck’s headlight; because Curry’s truck sustained so little damage, a reasonable person could have believed that it struck something other than a person or another vehicle.
  • Rooke conceded that his testimony about Ambrose’s sudden entry onto the road was based on Curry’s and San Felipo’s statements and not physical evidence; the physical evidence was consistent with the police reconstruction; and if Ambrose was already on the road when Curry approached, Curry would have been able to see Ambrose from a distance.

The trial court erred by refusing the mistake-of-fact instruction

  • A defendant is entitled to a mistake-of-fact instruction if the issue is raised by the evidence even if that evidence is weak or controverted. Under Tex. Penal Code § 8.02(a), it is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.
  • The question is not whether Curry knew that he was involved in an accident (he admitted that he was). It is whether he made a reasonable mistake in thinking that no one involved in the accident was injured or killed or in thinking that the accident was not reasonably likely to have injured or killed another person.
  • Curry and his girlfriend testified that they never saw Ambrose or anyone else riding a bicycle. This testimony was sufficient to raise the mistake-of-fact issue when viewing the evidence in the light most favorable to the defense. If the jury concluded that Curry reasonably believed that he was not involved in an accident that injured or killed someone, or that he reasonably believed he was not involved in an accident that was reasonably likely to injure or kill someone, that would negate the necessary mens rea to find Curry guilty.
  • Because the court of appeals did not reach the issue of whether Curry was harmed by the failure to include a mistake-of-fact instruction, the case is reversed and remanded to determine if Curry was harmed by the absence of the instruction.

International Fidelity Ins. Co. (A-1 Bonding) v. State, No. PD-0642-18 to PD-0644-18, 2019 Tex.Crim.App.LEXIS 1082 (Tex.Crim.App. Oct. 30, 2019) (designated for publication) (Bond Forfeiture, Harris Co.) [Tex. Rule App. Proc. 34.6(f)]

        Review of a trial court’s ruling on an MNT is for an abuse of discretion, a deferential standard that requires appellate courts to view the evidence in the light most favorable to the trial court’s ruling. A trial court abuses its discretion only when no reasonable view of the record could support its ruling.

        Under Tex. Rule App. Proc. 34.6(f), an appellant is entitled to a new trial if: (1) the appellant timely requested a reporter’s record; (2) without the appellant’s fault, a significant exhibit or a significant portion of the court reporter’s notes and records has been lost or destroyed or—if the proceedings were electronically recorded—a significant portion of the recording has been lost or destroyed or is inaudible; (3) the lost, destroyed, or inaudible portion of the reporter’s record or the lost or destroyed exhibit is necessary to the appeal’s resolution; and (4) the lost, destroyed, or inaudible portion of the reporter’s record cannot be replaced by agreement of the parties, or the lost or destroyed exhibit cannot be replaced either by agreement of the parties or with a copy determined by the trial court to accurately duplicate with reasonable certainty the original exhibit.

        Tex. Rule App. Proc. 34.6(f) places a burden on Appellant to prove that a record existed in the first place. Litigants have no way of knowing how to meet the hefty burden this rule places on them. Where litigants have taken all reasonable steps to ensure the creation of a record, their right to appeal should be protected. But Rule 36.6(f) offers no remedy when through no fault of the appellant a record was never created.

Editor’s note: This is too strict of a reading of Rule 34.6(f)’s “lost or destroyed” language. It allows an incompetent court reporter to not make a record at all, leaving parties with no recourse. Certainly, judges may remove incompetent court reporters. But even if they do, cases are still destroyed, and parties are left without recourse through no fault of their own.

Williams v. State, No. PD-1199-17, 2019 Tex.Crim.App. LEXIS 980 (Tex.Crim.App. Oct. 9, 2019) (designated for publication) [Manslaughter and Accident Involving Personal Injury or Death, Brazoria Co.; Tex. Code Crim. Proc. Art. 38.41’s constitutionally permissible notice-and-demand provision for laboratory reports]

        The Confrontation Clause allows the accused the right to confront witnesses against him. When the State offers a testimonial statement into evidence, the accused has a right to insist that the person making the statement appear in court and be subject to cross-examination.

        Forensic laboratory reports created solely for an evidentiary purpose in aid of a police investigation are testimonial. Ordinarily a defendant has a right to insist that an analyst making incriminating claims in a laboratory report explain and defend her findings in person at trial.

        The State may—without offending the Confrontation Clause—adopt procedural rules governing confrontation-based objections like a notice-and-demand statute that requires the prosecution to notify the defendant of its intent to use an analyst’s report as evidence, after which the defendant is given time in which he may object to its admission absent the analyst’s appearance live at trial.

        Tex. Code Crim. Proc. Art. 38.41 is a constitutionally permissible notice-and-demand provision that provides: (§ 1) a certificate of analysis that complies with this article is admissible in evidence to establish the results of a laboratory analysis of physical evidence conducted by or for a law enforcement agency without the necessity of the analyst personally appearing in court; (§ 3) a certificate of analysis must contain this information certified under oath: (1) analyst’s name and the name of the lab employing her; (2) statement that the lab is properly accredited; (3) description of the analyst’s education, training, and experience; (4) statement that the analyst’s duties include analyzing evidence for law enforcement agencies; (5) description of the tests or procedures conducted by the analyst; (6) statement that the tests or procedures were reliable and approved by the lab; and (7) the results of the analysis; (§ 4) offering party must file the certificate with the trial court and provide a copy to the opposing party not later than the 20th day before the trial. The certificate is not admissible if not later than the 10th day before trial the opposing party files a written objection to the use of the certificate; (§ 5) a certificate is sufficient if it substantially complies with Art. 38.41 with an affidavit worded in the first person.

        “Substantial compliance” under Art. 38.41 does not require particular words but only that information be communicated in some effective way. It is irrelevant if the affiant is someone who could not over a Sixth Amendment confrontation-objection serve as a sponsoring witness for the laboratory results at trial. The affiant need not be the same person as the analyst. Whoever the affiant is, she must provide information that is responsive to § 3, including information pertinent to the analyst. Regardless of who the affiant is, the defendant can assert his right of confrontation if he is diligent about it. If the defendant does not promptly object to a timely filed and substantially compliant certificate, his confrontation objection will be forfeited.

Texas Courts of Appeals

Barnes v. State, No. 06-19-00045-CR, 2019 Tex.App.—LEXIS 8578 (Tex.App.—Texarkana, Sep. 25, 2019) (designated for publication) (Burglary of a Habitation, Gregg Co.) [Sufficiency of the evidence on the law of parties; proving prior convictions for enhancement purposes; nonconstitutional harm under Tex. Rule App. Proc. 44.2(b)]

        Under Tex. Penal Code § 7.01(a), a person is criminally responsible as a party if the offense is committed by his conduct, the conduct of another for which he is criminally responsible, or by both. A person is criminally responsible for the conduct of another if acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other to commit the offense.

        Under Beardsley v. State, 738 S.W.2d 681, 684 (Tex.Crim.App. 1987), while an agreement to act together in a common design seldom is proved by direct evidence, a trier of fact may rely on the actions of the parties, showing by direct or circumstantial evidence an understanding and common design to do an act. Circumstantial evidence may be sufficient to show that a person is a party. When determining whether an individual is a party to an offense and bears criminal responsibility, the court may look to events before, during, and after the commission of the offense.

        Under Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App. 1994) (op. on reh.), evidence is sufficient to convict under the law of parties if the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement.

        Under Rollerson v. State, 227 S.W.3d 718, 725–726 (Tex.Crim.App. 2007), a defendant’s unexplained possession of property recently stolen in a burglary permits an inference that the defendant is the one who committed the burglary. Where the possession of stolen property is not exclusive, the permitted inference by the factfinder is that the person in possession of the property was a party to the offense even where there is no evidence that the person entered the burglarized premises.

        Under Flowers v. State, 220 S.W.3d 919, 921 (Tex.Crim.App. 2007), and Wood v. State, 486 S.W.3d 583, 589 (Tex.Crim.App. 2016), to establish that a defendant was convicted of a prior offense, the State must prove beyond a reasonable doubt that: (1) a prior conviction exists; and (2) the defendant is linked to that conviction. No specific mode of proof is required to prove the elements. Identity often includes the use of a combination of identifiers. The totality of the circumstances determines whether the State met its burden. The evidence resembles a jigsaw puzzle: Pieces standing alone usually have little meaning, but when fitted together, they usually form the picture of the person who committed the alleged prior conviction. The trier of fact must fit the pieces together and weigh the credibility of each piece. The standard of review for evaluating the sufficiency of evidence is consideration of all the evidence in the light most favorable to the finding.

        Under Beck v. State, 719 S.W.2d 205, 210 (Tex.Crim.App. 1986), unless the defendant’s name is unique, a name and signature are insufficient by themselves to link a defendant to a prior conviction.

        The erroneous admission of extraneous-offense evidence is not constitutional error.

        Under Tex. Rule App. Proc. 44.2(b), an appellate court must disregard a nonconstitutional error that does not affect a criminal defendant’s substantial rights. An error affects a substantial right when it has a substantial and injurious effect or influence on the jury’s verdict. Nonconstitutional error does not allow a reversal if when the court looks at the entire record it concludes that there is fair assurance that the error did not influence the factfinder or had only slight effect. A harm analysis may include overwhelming evidence of guilt.

Ex parte Barton, No. 02-17-00188-CR, 2019 Tex.App.—LEXIS 8859 (Tex.App.—Fort Worth Oct. 3, 2019) (designated for publication) (Pretrial Habeas Corpus, Tarrant Co.) [Constitutionality of Tex. Penal Code § 42.07(a)(7), Online Harassment]

        Tex. Penal Code 42.07(a)(7) is facially unconstitutional because it is vague and overbroad. The criminalization of “annoying” behavior—without any objective measurement or standard—is unconstitutionally vague.

        Under Scott v. State, 322 S.W.3d 662, 668 (Tex.Crim.App. 2010), Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 390 (1969), and Cohen v. California, 403 U.S. 15, 21 (1971), the protection of free speech includes the free communication and receipt of ideas, opinions, and information. The guarantee of free speech is not absolute, and the State may lawfully proscribe communicative conduct that invades the substantial privacy interests of another in an essentially intolerable manner.

        A person who communicates with the intent to harass, annoy, alarm, abuse, torment, or embarrass can also have an intent to engage in the legitimate communication of ideas, opinions, information, or grievances.

        A phone call by the appellant (complainant’s neighbor) had both a facially legitimate reason behind it—to inform the complainant of construction issues—and could also have been made with an intent to harass or annoy the complainant when viewed in the context of other harassing phone calls made by the appellant.

        Under May v. State, 765 S.W.2d 438, 439 (Tex.Crim.App. 1989), vague laws violate the Constitution by: (1) allowing arbitrary and discriminatory enforcement, (2) failing to provide fair warning, and (3) inhibiting the exercise of First Amendment freedoms. When examining the vagueness of a statute, a court must focus on the statute’s ability to provide fair notice of the prohibited conduct. A law imposing criminal liability must be sufficiently clear to: (1) give a person of ordinary intelligence a reasonable opportunity to know what is prohibited; and (2) establish determinate guidelines for law enforcement. A law that implicates First Amendment freedoms requires even greater specificity to avoid chilling protected expression. Specificity and clarity are important to prevent citizens from steering far wider of the unlawful zone than if the boundaries of the forbidden areas are clearly marked.

            Under Long v. State, 931 S.W.2d 285, 288 (Tex.Crim.App. 1996), and State v. Johnson, 475 S.W.3d 860, 865 (Tex.Crim.App. 2015), vagueness and overbreadth are intertwined. A statute is overbroad and if in addition to proscribing activity that may be forbidden it sweeps a substantial amount of expressive activity that is protected. The statute’s oppressive affect cannot be minor—it must prohibit a substantial amount of protected expression and the danger that the statute will be unconstitutionally applied must be realistic and not based on fanciful hypotheticals.

Coercive Interrogation and the Vulnerable Population

[A] system of criminal law enforcement which comes to depend on the “confession” will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.” Escobedo v. Illinois, 378 U.S. 478, 488-89 (1964).

“[F]alse confessions are [a] leading cause of wrongful convictions[.]” State v. Lawrence, 920 A.2d 236, 266–67 (2007)(Katz, J., dissenting)(citing R. Leo, S. Drizin & P. Neufeld et al., Bringing Reliability Back In: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 Wis.L.Rev. 512 (2006). “False confessions are most common among the most vulnerable groups of defendants—juveniles and people with mental disabilities. Id. “Individuals who are deaf are especially susceptible to offering false confessions. When they fail to understand what is asked of them, they often accede to what they do not understand, especially when confronted by a person in authority.” “Individuals with Disabilities and the Issue of False Confessions,” 26 Champion 34, 38 (July 2012).

Coercive Interrogation

“Just Want to Get Your Side of the Story”

“[C]ontemporary interrogation strategies . . . are based on the manipulation and betrayal of trust.” Richard A. Leo, Miranda’s Revenge: Police Interrogation as a Confidence Game, 30 L. & Soc’y Rev. 259, 259–60 (1996)(studying five hundred hours of police interrogations). “The purpose of interrogation is therefore not to discern the truth, determine if the suspect committed the crime, or evaluate his or her denials . . . [T]he single-minded purpose of interrogation is to elicit incriminating statements, admissions, and perhaps a full confession in an effort to secure the conviction of offenders.” Fred E. Inbau et. al., Criminal Interrogation and Confessions 8 (4th ed. 2001). This reality is at least recognized, if not enforced, by the Supreme Court of the United States. Miranda v. Arizona, 384 U.S. 436, 449–55 (1966)(police “persuade, trick, or cajole him out of exercising his constitutional rights”). Welcome to the accepted Texas method of interrogation commonly referred to as the “Reid Technique.”

If you are the police, it is easy to exercise. First isolate the person, then assert with certainty his guilt (“we already know, we’ve got witnesses, we’ve got the crime scene evidence, we’ve got the DNA”). Next, make a sympathetic offer of blame-shifting (“I believe you. I really do. So, he was doing most of it?”) or minimization (“You hardly had anything to do with the offense. She did it to you. I feel for you”). When the person still protests his innocence, reject them with confidence and finality (“Hey, we’re past that. You’ve already admitted. We both agree we’ve got the evidence. You’re guilty. Sorry, but under the law, you just are—wish I could change it. It’s no longer open for debate”). After psychological domination is complete, have the person endorse the narrative with his own signature or affirmation. The technique is so effective that ordinary people, even those who know the technique is being employed against them, will endorse false confessions. But some people are more vulnerable than others.

Supreme Court Recognition

This reality is no revelation at this late date, as the Supreme Court long ago reviewed:

The officers are told by the manuals that the “principal psychological factor contributing successful interrogation is privacy—being alone with the person under interrogation.” The efficacy of this tactic has been explained as follows:

 “If at all practicable, the interrogation should take place in the investigator’s office or at least in a room of his own choice. The subject should be deprived of every psychological advantage. In his own home he may be confident, indignant, or recalcitrant. He is more keenly aware of his rights and more reluctant to tell of his indiscretions or criminal behavior within the walls of his home. Moreover, his family and other friends are nearby, their presence lending moral support. In his own office, the investigator possesses all the advantages. The atmosphere suggests the invincibility of the forces of the law.”

        To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect’s guilt and from outward appearance to maintain only an interest in confirming certain details. The guilt of the subject is to be posited as a fact. The interrogator should direct his comments toward the reasons why the subject committed the act, rather than court failure by asking the subject whether he did it. Like other men, perhaps the subject has had a bad family life, had an unhappy childhood, had too much to drink, had an unrequited desire for women. The officers are instructed to minimize the moral seriousness of the offense, to cast blame on the victim or on society. These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already—that he is guilty. Explanations to the contrary are dismissed and discouraged.

The texts thus stress that the major qualities an interrogator should possess are patience and perseverance. One writer describes the efficacy of these characteristics in this manner:

In the preceding paragraphs emphasis has been placed on kindness and stratagems. The investigator will, however, encounter many situations where the sheer weight of his personality will be the deciding factor. Where emotional appeals and tricks are employed to no avail, he must rely on an oppressive atmosphere of dogged persistence. He must interrogate steadily and without relent, leaving the subject no prospect of surcease. He must dominate his subject and overwhelm him with his inexorable will to obtain the truth. He should interrogate for a spell of several hours pausing only for the subject’s necessities in acknowledgment of the need to avoid a charge of duress that can be technically substantiated. In a serious case, the interrogation may continue for days, with the required intervals for food and sleep, but with no respite from the atmosphere of domination. It is possible in this way to induce the subject to talk without resorting to duress or coercion. The method should be used only when the guilt of the subject appears highly probable.

The manuals suggest that the suspect be offered legal excuses for his actions in order to obtain an initial admission of guilt. Where there is a suspected revenge-killing, for example, the interrogator may say:

“Joe, you probably didn’t go out looking for this fellow with the purpose of shooting him. My guess is, however, that you expected something from him and that’s why you carried a gun—for your own protection. You knew him for what he was, no good. Then when you met him he probably started using foul, abusive language and he gave some indication that he was about to pull a gun on you, and that’s when you had to act to save your own life. That’s about it, isn’t it, Joe?”

Before the Mutt-Jeff routine, the Supreme Court noted the effectiveness of developing “inconsistencies” which “serve to deprive” the defendant of a defense. As any practitioner knows, this technique is employed in most roadside investigations, whatever the pretense of enforcement of Transportation Code infractions. Miranda v. Arizona, 384 U.S. 436, 449–63 (1966).

Involuntary Confessions

A confession is deemed voluntary if it is “the product of an essentially free and unconstrained choice,” but “if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” Schneckloth v. Bustamonte, 412 U.S. 218, 225–26 (1973). See also Culombe v. Connecticut, 367 U.S. 568, 602 (1961)(confession must be “product of an essentially free and unconstrained choice” to be voluntary); Rogers v. Richmond, 365 U.S. 534, 544 (1961)(decision to confess must be “freely self-determined”); Blackburn v. Alabama, 361 U.S. 199, 208 (1960)(“product of a rational intellect and a free will”). “[C]oercion can be mental as well as physical, and . . . the blood of the accused is not the only hallmark of an unconstitutional inquisition.” Blackburn v. Alabama, supra at 206. See also Reck v. Pate, 367 U.S. 433, 440–441 (1961); Watts v. Indiana, 338 U.S. 49, 52 (1949).

When the issue is raised, the State bears the burden of proving a statement deemed incriminating was voluntarily given. See Alabama v. Beecher, 389 U.S. 35 (1967); Clewis v. Texas, 386 U.S. 707 (1967); Blackburn v. Alabama, supra. “The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.” Lisenba v. California, 314 U.S. 219, 236 (1941).

Vulnerable Populations

The Need for Defense Counsel Alertness and Protection

People are more vulnerable than ever before, due to the weakening of constitutional protections against coerced confessions. In 2010, the Supreme Court of the United States held that it is not enough for a person to remain silent after having been informed of his Miranda right to do so. He must affirmatively invoke his right to silence. Otherwise the police are free to interrogate. Berghuis v. Thompkins, 560 U.S. 370 (2010). The same year, the Court created a 14-day period for police to have another go at a defendant who has previously invoked his right to silence to do so again. Maryland v. Shatzer, 559 U.S. 98 (2010).

People with disabilities are even more vulnerable than the general population, as studies have shown.

In the group of sixty-six false confessions, twenty-three were juveniles, and at least twenty-two had an intellectual disability or were mentally ill . . . This tracks the pattern among the first forty such false confessions, in which fourteen had an intellectual disability, three were mentally ill, and thirteen were juveniles . . . Still others among these exonerees, while not diagnosed with such a disability at the time of trial, may have been quite suggestible or may have not been diagnosed because the defense did not retain experts.

Brandon L. Garrett, Contaminated Confessions Revisited, 101 Va. L. Rev. 395, 399–400 and n.18 (2015). In another study of 125 confessions later proven false, almost 30% came from a person with at least one mental disability. Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891, 970–73 (2004). In another, 43% of people exonerated by DNA and who gave false confessions had some form of disabilities. Brandon L. Garrett, The Substance of False Confessions, 62 Stan. L. Rev. 1051, 1095 (2010).

Deaf Persons

The consensus of those who serve the deaf community appears to be that the mean reading level of deaf persons in the United States is approximately fourth grade[.] Having a high-school diploma may or may not indicate an adequate ability to read and understand written documents, nor may possession of a driver’s license so indicate, as the licensing test may have been interpreted for the deaf person.

Linton v. State, 275 S.W.3d 493, 510 n.2
(Tex.Crim.App. 2009)(Johnson, J., concurring).

If the accused is a deaf person, the accused’s statement under Section 2 or Section 3(a) of this article is not admissible against the accused unless the warning in Section 2 of this article is interpreted to the deaf person by an interpreter who is qualified and sworn as provided in Article 38.31 of this code.

Tex. Code Crim. Pro. art. 38.22, Sec. 3(d).

Constitutional Right to an Interpreter

The right to an interpreter is based in part on the Sixth Amendment’s Confrontation Clause. Garcia v. State, 149 S.W.3d 135, 142 (Tex.Crim.App. 2004)(reversing conviction of defendant who did not understand English and had no translator on basis of Sixth Amendment). But the right is also based on the Fourteenth Amendment’s Due Process Clause as well. “Considerations of fairness, the integrity of the fact-finding process, and the potency of our adversary system of justice forbid that the state should prosecute a defendant who is not present at his own trial[.]” United States ex rel. Negron v. New York, 434 F.2d 386, 389 (2nd Cir. 1970). Prince v. Beto, 426 F.2d 875, 875 (5th Cir. 1970)(appointment of husband of deaf wife as interpreter violated the Due Process Clause).

Interpreter Qualifications: Licenses and Certifications

Section 57.002 of the Government Code and article 38.30 of the Code of Criminal Procedure govern the appointment of interpreters. Article 38.31 specifically governs deaf interpreters.

The interpreter must be licensed by the Department of Assistive and Rehabilitative Services. A deaf interpreter must be certified by the Department of Assistive and Rehabilitative Services. An interpreter for the deaf is qualified if she holds a current legal certificate issued by the National Registry of Interpreters for the Deaf or a current court-interpreter certificate issued by the Board for Evaluation of Interpreters at the Department of Assistive and Rehabilitative Services.

The court in small counties (less than 50,000) or counties that border Mexico may appoint an unlicensed or uncertified spoken-language court interpreter if the language is other than Spanish and there is no licensed court interpreter within 75 miles. Under these circumstances, the interpreter must be at least 18 years old, not a party, and must be qualified by the court as an expert under the Texas Rules of Evidence.

The Health and Human Services Commission creates the rules for the qualifications, training/education, certification, and compensation of certified court interpreters. A violation of the Commission’s rules is a Class A misdemeanor.

No proceeding involving a deaf person may commence “until the appointed interpreter is in a position not exceeding ten feet from and in full view of the deaf person.” Tex. Code Crim. Pro. art. 38.31(d).

“The interpreter may not disclose a communication between the defendant and defense counsel or a fact that came to the attention of the interpreter while interpreting those communications if defense counsel may not disclose that communication or fact.” Tex. Code Crim. Pro. art. 38.31(d).

Competency of Interpreters

The competency of an individual to act as an interpreter is a question for the trial court, and the trial court’s determination of the individual’s competency is reviewed on appeal under an abuse of discretion standard. Martins v. State, 52 S.W.3d 459, 470 (Tex. App.—Corpus Christi 2001, no pet.); Kan v. State, 4 S.W.3d 38, 41 (Tex. App.—San Antonio 1999, pet. ref’d). The accuracy of an interpreter’s translation is a question of fact for the factfinder and not reviewable by an appellate court. Kan, 4 S.W.3d at 43. An unqualified interpreter can result in reversible error. Watson v. State, 596 S.W.2d 867 (Tex.Crim.App. 1980).

Trial Court and Defense Duties Regarding Interpreters

A judge who knows a witness cannot understand English must appoint an interpreter unless the defendant affirmatively waives the appointment. Garcia v. State, 429 S.W.3d 604, 606–07 (Tex.Crim.App. 2014). Similarly, if a motion for appointment of an interpreter is filed by the State or defendant or requested by a witness, the trial court must appoint an interpreter. Consequently, the defendant does not need to do anything else to preserve the issue for appeal. Id.  “Courts have found the absence of an interpreter violated due process where the defendant’s inability to understand the proceeding or an element of the proceeding resulted in the denial of a fundamental right.” State v. Calderon, 13 P.3d 871, 876 (Kan. 2000).

The defense must make an objection regarding a complaint regarding the competency of an interpreter appointed by the trial court or the issue is waived. Montoya v. State, 811 S.W.2d 671, 673 (Tex.App—Corpus Christi 1991, no pet.).

Questions for Interpreters

  • Are you licensed or certified?
  • What agency licensed or certified you?
  • When was the last time you were certified?
  • How many times have you been certified?
  • Has your license ever been suspended?

Juveniles

Juveniles are recognized as a group that requires specific safeguards against the perils of custodial interrogation. Tex.Family Code Ann. § 151.003 and § 262.104; Juvenile Justice Code, § 54.03 and § 51.09. In one study, over 30% of 103 juveniles proven innocent through DNA had falsely confessed, and over half of the eleven- to fourteen-year-old group had confessed falsely. Joshua A. Tepfer, Laura H. Nirider & Lynda M. Tricarico, Arresting Development: Convictions of Innocent Youth, 62 Rutgers L. Rev. 887, 904–05 (2010).

The Court of Criminal Appeals has said:

In deciding whether a particular interrogation was custodial, courts must consider numerous factors[.] . . . The subjective intent of the police officer is one such factor, but courts will disregard an officer’s testimony that a defendant was not a suspect and not in custody if the testimony is belied by the facts of the case. . . . “The courts cannot be expected to decide cases solely on the basis of self-serving statements by the defendant or the interrogating officer.” .Ê.Ê. Among the other factors which may be considered, one which “has consistently impressed our court [is] whether or not the focus of the investigation has finally centered on the defendant.” . . . Another factor which may be considered is whether there was probable cause to arrest.

Ruth v. State, 645 S.W.2d 432, 435 (Tex.Crim.App. 1979)(internal citations omitted). The Court of Criminal Appeals outlined at least four general situations which constitute custody:

(1) when the suspect is significantly deprived of his freedom of action in any significant way; (2) when a law enforcement officer tells a suspect that he cannot leave; (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to go.

Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App. 1996).

Some courts have found it appropriate to “apply a wider definition of custody for Miranda purposes” where juveniles are concerned. See, e.g., In re Joshua David C., 116 Md. App. 580, 698 A.2d 1155 (Md.App. 1997). The voluntariness of juvenile confessions is gauged according to the totality of circumstances. Fare v. Michael C., 442 U.S. 707, 725 (1979). Accordingly, a defendant’s age should be included in any legal analysis of whether she was in custody for purposes of her entitlement to constitutional and statutory protections against coerced statements.

[W]hen . . . a mere child—an easy victim of the law—is before us, special care in scrutinizing the record must be used.

***

        He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a [child] in his early teens. This is the period of instability which the crisis of adolescence produces. A 15-year-old . . . is a ready victim of the inquisition. Mature men might possibly withstand the ordeal. . . . But we cannot believe that a [child] of tender years is a match for police in such a contest.

Haley v. Ohio, 332 U.S. 596, 599–600 (1948)(reviewing confession of a 15-year-old interrogated for 15 hours by police relay teams). Due process accordingly requires that “the greatest care must be taken to assure that the admission was voluntary, on the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of right or of adolescent fantasy.” Matter of Gault, 387 U.S. 1 (1967). See also Gallegos v. Colorado, 370 U.S. 49, 53–55 (1962)(five days of isolating 14-year-old from mother or other adult, deemed coercive).

Intellectually Disabled

“[W]e cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated. As two recent high-profile cases demonstrate, these exonerations include mentally retarded persons who unwittingly confessed to crimes that they did not commit.” Atkins v. Virginia, 536 U.S. 304, 320 n.25 (2002)(citations omitted).

Previously identified with the stigmatizing term “mentally retarded,” the preferred term used today is “intellectually disabled” or “intellectual developmental disorder.” The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), defines the terms as a disorder with onset during person’s developmental period that features “intellectual functioning deficits” (i.e., difficulties in school and learning from experience, reasoning and problem solving, abstract thinking, and judgment) and “adaptive functioning deficits” (i.e., “failure to meet developmental and sociocultural standards for personal independence and social responsibility”).

There are four levels of intellectual disability severity: profound, severe, moderate and mild. Three of these categories—profound, severe, and moderate—are so bad, the people in them are the least likely to ever have contact with the criminal justice system. If these people are ever arrested and accused, there are issues of incompetency to stand trial, among others, that result in a treatment not easily traceable. They are the minority of people who are so disabled.

People with a profound intellectual disability (1–2%) fall below an IQ of 20–25. It hardly takes an expert to perceive this level of disability, as they can hardly express themselves verbally, among other very extreme deficits. People at the “severe” level (3–4%) have a slightly higher IQ range (between 20 and 40) than the “profound.” Like their even more disabled counterparts, they don’t understand numbers, can’t tell time or count money. They have limited language and must be helped with bathing, eating, and dressing themselves. A greater number (10%) fall within the “moderate” range with IQs at 35–55. Those in the moderate range can actually become independent on basic household chores and with personal care. With great support from family coworkers and other helpers, they can even work and manage money.

But the vast majority—about 85%—fall within the “mild” range (50–70). These are exactly the people who will be crushed by the criminal justice system because they don’t look like the character “Lennie’ from John Steinbeck’s Of Mice and Men. It is easy to believe the person is “just playing dumb.” Police and prosecutors who believe it have little difficulty convincing juries. As the “Making a Murderer” shows, it convinces judges as well.

“Making a Murderer”—Interrogation of Brendan Dassey

The Netflix documentary showed the repeated interrogation of a 16-year-old special education student, Brendan Dassey, with an IQ between 74 and 81 and described as “highly suggestible, docile, withdrawn, with extreme social anxiety and social avoidant characteristics, and more suggestible than 95% of the population.” Dassey v. Dittmann, 860 F.3d 933, 938–39 (7th Cir.), reversed, 877 F.3d 297 (7th Cir. 2017)(en banc). It is better observed on the videotape.

[Police Interrogators]: What else did he do to her? We know something else was done. Tell us, and what else did you do? Come on. Something with the head. Brendan?
Brendan: Huh? . . .
[Police Interrogators]: What else did you guys do, come on. . . .
[Police Interrogators]: We have the evidence, Brendan, we just need you ta, ta be honest with us.
Brendan: That he cut off her hair.
[Police Interrogators]: He cut off her hair? In the house?
Brendan: mm-huh. . . .
[Police Interrogators]: OK, what else?
[Police Interrogators]: What else was done to her head?
Brendan: That he punched her.
[Police Interrogators]: What else? [pause] What else? . . .
[Police Interrogators]: What did he make you do, Brendan? It’s okay. What did he make you do?
Brendan: Cut her.
[Police Interrogators]: Cut her where?
Brendan: On her throat. . . .
[Police Interrogators]:: What else happens to her in her head? . . .
[Police Interrogators]: Come on, Brendan, what else?
[pause] [Police Interrogators]: We know, we just need you to tell us.
Brendan: That’s all I can remember.
[Police Interrogators]: All right, I’m just gonna come out and ask you. Who shot her in the head?
Brendan: He did.
[Police Interrogators]: Then why didn’t you tell us that?
Brendan: Cuz I couldn’t think of it.
[Police Interrogators]:: Now you remember it? [Brendan nods “yes”]. Tell us about that then.

Interrogated with Intellectual Disabilities: The Risks of False Confession, 70 Stan. L. Rev. 643, 669–680 (2018).

Memories of a Christmas in Vietnam

After 44 months as a Marine and 158 weeks as a prosecutor for Smith County, I became a Texas criminal defense lawyer on September 15, 1970, at the age of 32. Three months later, Christmas was approaching and the Vietnam war was escalating. By the end of the year, there would be 184,314 American troops in country and 1,928 Americans would have died there. Memories of the Christmas Day that I spent in Vietnam in 1965 were still fresh in my mind—as they are even today.

We lawyers had our living tents, office tents, and a courtroom tent on the side of Hill 323 near Danang. The monsoon season was almost over, but the mud and dampness were always with us. Christmas morning was dreary, and that matched my mood. Two of my best friends had just rotated back to the Land of the Big PX, and I missed their camaraderie. Most importantly, though, was that I missed my wife, Robyn, and my parents. This was the first time that I had been away from family on a Christmas Day, and I learned what loneliness during the holiday season was all about.

And so it was that I began a tradition in 1970 that has continued. Each Christmas Day, I go to the jails here in Tyler and visit with all of my clients—33 is the record. Some of them will have other visitors; some will not. Most, if not all, will be surprised to see me. I spend enough time with each client for them to know that I understand what it is to be away from family and friends on Christmas Day, and that I am concerned about each of them. Some will become serious and reflect on the changes they intend to make in their lives to avoid being in confinement next year. For others, there will be a quiet resignation that this is yet another Christmas to be locked up. Often, I listen more than I talk.

Over the years, I’ve had former clients tell me how pleased they were to see me on a Christmas Day and conversations with parents who expressed their appreciation for my visits with their sons or daughters. I know that most of us will be celebrating Christmas or Hanukkah or just relaxing with our families on December 25th this year and may not be enthusiastic about having a visitation with clients as I am suggesting. If you give it a try, though, you’ll understand why it has been so rewarding for me for 50 Christmases.

Buck Files joined the 3rd Battalion, 4th Marine Regiment at Phu Bai, Vietnam, in June 1965, and was one of the first Marine lawyers in country. In August, he prosecuted the first general court-martial convened by the Marine Corps in Vietnam at the old French compound in Danang and spent another eight months trying cases and providing legal assistance for the Marines of the 1st and 3rd Marine Divisions, FMF.

Small-Town Advice for the Big-City Lawyer

As a solo practitioner in Nacogdoches, I always enjoy seeing fellow criminal defense lawyers from out of town travel to the courthouse and defend the innocent accused (and occasionally a few guilty ones). It can also be quite entertaining to see how they handle practicing in a small town. In the twenty-odd years I’ve been practicing here, I’ve noticed that many make the same mistakes over and over, which although entertaining to us locals, do not serve their clients well. With that in mind, I wanted to share with you six common mistakes I see when city attorneys come to smaller towns.

Mistake #1: They overdress. While it’s good to dress for success, I often see attorneys from big cities wearing custom-made suits, matching socks, handkerchief, and tie, Rolexes, fancy briefcases, etc. The local prosecutor understands you are successful because your client must be paying a big fee to have you come up here. But looking dressed to the nines will often be counterproductive, as I’ve seen what are normally reasonable prosecutors dig in their heels against someone they think is trying to visually intimidate them.

Mistake #2: Don’t talk down to prosecutors. This is very common. An out-of-town lawyer treating a small-town prosecutor like an idiot will not get the desired result. A case that might ordinarily be dismissed because of a bad stop may need a few more settings so that the local prosecutor can casually “look up” all that complicated law so haughtily thrust upon them. They live here, but you have to drive here. Sometimes, over and over again . . . You don’t need to be a kiss-ass; just don’t be a smart ass.

Mistake #3: Don’t threaten prosecutors. This is closely associated with Mistake #2—especially when combined with Mistake #1. Threatening to file a suppression hearing, threatening to go to trial after the first setting, etc., will probably result in you coming back up here many more times than if you’d just acted like a rational human being. When threatening a prosecutor, you will just motivate them to figure out how to hammer you and your client. If you have a good case and the state has a bad one, great. Point it out in a non-threatening way and see what happens. Your result will usually be better than aggressively firing an opening legal salvo right off the bat.

Mistake #4: Don’t aggravate the court staff. If you tick off the prosecutor, that’s bad enough. But you really don’t want to make the court staff mad. They live nearby and go to that courthouse daily. You may have made your point that you want a jury trial, but you could be at the bottom of the list for many dates down the road. And, you may find yourself angrily driving back and forth indefinitely if you make the wrong court coordinator mad.

Mistake #5: Don’t pick a jury without consulting local counsel. This one may be obvious, but it’s worth noting. The smaller the jurisdiction, the more likely local counsel is going to know a lot about the folks on the jury panel. They may have kids that go to school with jurors’ kids or may have gotten one of their family members out of trouble. If you don’t have the resources to hire local counsel as a jury consultant, at least ask a fellow TCDLA member to give a once-over on the jury list.

Mistake #6: Don’t go to the judge for important issues without consulting local counsel. Every judge is different, and some judges are good with probation and some generally are not. Local counsel is going to know which ones are good about that, as well as suppression hearings, continuances, etc. They will probably have some entertaining war stories to punctuate their opinion.

I hope this will help you the next time you practice in smaller towns. You can always consult the TCDLA directory and find fellow members to help you fill in the gaps if you find yourself in over your head. Good luck and have fun!

Voir Dire: Method Follows Model

Imagine you are repairing a car. How you perform the task depends on your understanding of how the car works. If you think internal combustion is powered by magic hamsters, you’re going to do the job differently than if you understand the suck-squeeze-bang-blow of a four-stroke engine. And, because there are no hamsters, feeding the hamsters is not going to work as well as making sure that the fuel, air, compression, spark, combustion, and exhaust necessary to make an internal-combustion engine work are all present.

Or imagine you are writing a song. If you understand music theory, you’re going to write a better song than if you think dissonance is more pleasant to the ear than consonance and make up your own scales.

You may be a natural-born mechanic or songwriter, with an intuitive or even subconscious understanding of your subject, but most people don’t have that sort of talent. Most mechanics and songwriters study their subject matter, and do their work according to their understanding—their model—of how it works. Method follows model.

Because method follows model, a better—closer to the truth—model leads to better—more successful—methods. You don’t have to understand music theory perfectly, but the better you understand it the better your songs might be.

This is no less true of trying cases than of tuning V8s. Trying a case to a jury is about getting jurors to adopt the beliefs that you want them to adopt. Unless we are naturally talented (and almost none of us are), we need to form a model of how people adopt beliefs and develop our trial skills to work with this model.

How jurors decide cases determines how you try cases. If your model of how jurors decide cases is more accurate, your method will be better. If your understanding is closer to the truth, your results are going to be better.

Voir dire1 is our first contact with the jury. I contend, for reasons that I’ll lay out below, that it is our most important contact with the jury. To have a method of voir dire, we first have to have a model of how jurors decide cases—that is, of how people adopt beliefs. The less accurate the model of how people adopt beliefs—the less it reflects reality—the less effective your voir dire will be.

So. We want a good method for causing people to adopt beliefs that are helpful to our clients. We need a good model. How do people adopt beliefs?

Our jury trial system is based on one model we can read in the instructions given to the jury by the court: Jurors are instructed to wait until they have heard all the evidence to begin deliberating, and then to decide the case based only on the evidence and not on emotion or sympathy. In this model, people withhold judgment until the facts are in, then adopt beliefs by weighing those facts and rationally deciding what is most likely correct.

This is a nice way to look at the decision-making process. It gives people a lot of credit for rationality and gives comfort that the world can be a safe and predictable place. Its only shortcoming is that it is laughably wrong.2

As evidence of its wrongness, I offer cognitive biases. Cognitive biases are unconscious mental processes, ingrained systems to save our brain’s decision-making work. The cognitive bias of confirmation bias, which is our tendency to filter information in a way that confirms our preexisting beliefs, is one such example. Due to confirmation bias, we seek out information that confirms our beliefs, and we discard information that refutes them.

Or consider the cognitive bias of fundamental attribution error, which causes us to attribute others’ failings (as we see them) to their character and choices and our own failings to external factors.

Another cognitive bias is affinity bias, which is our tendency to be biased toward people who we perceive to be like us.3

We are not aware of these cognitive biases in our day-to-day decision-making. What their existence tells us is that we aren’t the rational decision-making machines that we imagine ourselves to be.4

And neither are jurors.

So how do we—and jurors—adopt beliefs? If the classic rational-decision-making model is less than perfectly accurate, what model can we adopt that is more accurate and so will guide us to a better way to try cases?

The existence of cognitive biases suggests that we adopt beliefs irrationally, based on things like affinity, and then resist changing them and rationalize—find plausible rational justifications for—them. This model better reflects real-world observation and predicts real-world behavior than the classic model.5 It is, in other words, a better model.

The better model will lead us to better methods. And as long as we have a better model, we don’t need a perfect model. If we have a better model and therefore better methods than our adversary, we are at an advantage.6

Our next step in developing those better methods is to apply this better model, which is very general (“how people adopt beliefs”), specifically to trial (“how jurors, in trial, adopt beliefs”).

Consider the life of a juror. Pulled out of her usual routine, she comes to an unfamiliar environment—the courthouse—where she sits on an uncomfortable pew, and people talk at her about things she doesn’t understand. Worse, they try to make her talk. There’s a judge and there’s a prosecutor—she’s watched “Law and Order,” so she knows that’s the good guy—and a defense lawyer (bad guy!) with the defendant, who’s probably guilty.

Given the better model, at what point does this juror reach a belief about whether our client is guilty?7 The answer is disheartening: She has reached a belief before anyone starts talking. But there’s nothing we can do about that since that’s the first time we even see her, so let’s concentrate on what we can do something about. At what point does a juror reach a belief about whether our client is guilty that we can do something about?

So that we don’t lose heart—and we needn’t lose heart, because our method is better than our adversary’s—let’s treat the beliefs that the juror reaches before we get up to talk as tentative beliefs. Assume that we can change them and instill our own beliefs. Our first opportunity to do so is when we begin our voir dire. Our second opportunity is when we give our opening statement.

By tradition—this is not a written rule—we cannot talk about the facts of the case in voir dire. This unwritten rule probably arises from the proscription against improper commitment questions: If we tell the jurors what the facts of our case are, we are close to committing them to acting on those facts.

But if we can’t talk about the facts, then the prosecutor hasn’t talked about the facts. The jurors’ tentative beliefs, when we begin our voir dire, are based on the prosecutor’s framing of the issue and the prosecutor’s credibility. In our voir dire, our objectives (aside from and superior to the mechanics of eliminating unfavorable jurors) are to reframe the issue and to build credibility with the jury.

We reframe the issue with hypotheticals. Ideally, we will come up with a hypothetical that will allow the jurors to come up with our theory of the case on their own. If the jurors feel that our theory of the case is their idea, they are invested in it and will more readily accept it than if we have to tell them what it is. If the jurors can’t come up with our theory of the case on their own, it’s probably not a good defense.8

Our theory of the case might be “she never intended to meet for sex but was only offering to introduce him to someone his own age,” or “she cried rape when he said he wouldn’t marry her,” or “when his wife found the money missing, he had to claim that it was stolen so that she wouldn’t find out about the affair.”

A hypothetical might be the following: “I’m a criminal-defense lawyer. If I told you, ‘text me if you need a family lawyer,’ what might I mean?” Or: “Why would a woman cry rape after consensual sex?” Or: “If a man gave a woman money, why might he claim that she had stolen it?”9 This will certainly be a different frame than the State has put on the case. Jurors will give several answers; record them all, and don’t commit to any of them yet.10

Before coming in to the courtroom, the jury has started forming a group, and the lawyers are not part of it. An important thing for you to know about groups is that a group feels things that happen to one member as happening to all members.11 Here, if one member of the group comes up with your theory of the case, the rest of the group will treat it as the group’s idea.

The State had the advantage of primacy in its framing, but we have the advantage of recency. We also have the advantage of having trusted the jury to come up with our theory of the case. Not only will they be more committed to the theory for having come up with it themselves, but they will reciprocate the trust we put in them with trust for us.

That—trust—brings us to our other primary voir dire task (other than framing) which is to build credibility with the jury. Other descriptions of what we’re building include:

  • Trust;
  • Liking;
  • Attraction; and
  • Rapport.

Generally: If we like someone, we trust them. If we trust them and like them, we are attracted to them—we are willing to spend time with them and hear what they have to say.12 If we trust and like someone and they trust and like us, we have rapport.

What is more, if we trust someone they are more likely to trust us. If we like someone they are more likely to like us. If we are attracted to someone they are more likely to be attracted to us. These are feedback loops, which you will start noticing everywhere in human relationships.

Most two-way interpersonal communications involve feedback loops. If I smile warmly and sincerely at you, you may feel good and smile warmly and sincerely at me, and I will feel good: a feedback loop. If you scowl at me, I may feel bad and scowl at you, and you will feel bad: also a feedback loop.13

The personal traits that make other people trust, like, be attracted to, and feel rapport with you are charisma. Charisma is in part about opening feedback loops with people that make them feel good. If you make people feel good, they will want to spend time with you and hear what you have to say.

Charisma in jury selection is also about another kind of loop: the Zeigarnik Effect loop. The Zeigarnik Effect is the tendency of our brains to pay attention to unresolved things. If we hear “Once upon a time . . .” our brains pay attention until “. . . happily ever after.” If our audience is curious, they will want to spend time with us and hear what we have to say.

There is a common misconception that charisma is something that we just have or don’t have, and can’t do anything about. Nothing could be further from the truth. We can take concrete actions to increase our charisma. Paying attention to positive feedback loops and Zeigarnik Effect loops is a good start. Beyond that, there are various descriptions of the components of charisma. For example:

  • Power + presence + warmth;14
  • Affability + influence;15 or
  • Makes people feel comfortable, smiles at people often, can get along with anyone, has a presence in a room, has the ability to influence people, knows how to lead a group.16

One researcher has dissected charisma as “both verbal and nonverbal”:

Verbal aspects involve use of metaphor, story, and emotionally appealing language to communicate an inspiring vision and increase self-efficacy. Nonverbal components include paralinguistics (aspects of speech such as variability in volume, rate, pitch, articulation, fluency, and emphasis), kinesics (body involvement such as posture shifts or head movements), gestural fluency, facial expressivity, and eye contact.17

Here, I count fourteen separate competencies—use of story, variability in rate of speech, gestural fluency, and so on—any one of which you could work on to increase your charisma.

By increasing your charisma, you make yourself more credible to the jury. By making yourself more credible to the jury, you improve the chances that they will adopt and act upon your story. And by improving the chances that they will adopt your story, you give your client a fighting chance in a system that is rigged against him. This is all because you were willing to consider that the classic model of how jurors make decisions might be improved upon—that what you learned in law school, and in your practice so far, might be based on assumptions that are simply wrong.

President’s Message: A Season for Sharing

I admit it—I am a summer person. I LOVE the sunshine and the warm weather. Then it gets close to Christmas and I quit complaining about the cold! What a great time of year—spending time with family and friends and celebrating (for me) the birth of Christ!

 I LOVE trying to find the perfect gift for those I love! Don’t you love receiving Christmas cards from people far and near showing their precious families?

This year I hope you will find time to do something for someone who is less fortunate than you, or reach out to someone who might be especially lonely during the holiday season. Sometimes a person just needs to feel needed and valued, or even noticed. Be the outstretched hand to that person you know. Help your city’s social programs feed families who have to make hard choices this time of year.

I hope this Christmas ushers in an incredible 2020 for all of you! Please let me know of anything I or TCDLA can do for you to make the holiday season better for you or someone you know—or how we can help you in 2020.

Merry Christmas & Happy New Year!

Executive Director’s Perspective: Learn by Doing

Join the next generation of Texas Defenders by applying to become a mentor or mentee through the Future Indigent Defense Leaders Program (FIDL). Together the Texas Indigent Task Force, Harris County Public Defenders Office, and TCDLA are starting their second year of the program.

FIDL is a selective program that aims to create the next generation of highly skilled, client-centered Texas attorneys to represent persons who cannot afford counsel. FIDL offers unparalleled indigent defense training, mentoring, and leadership opportunities. Selected through a competitive process, FIDL mentees become part of an exclusive statewide team dedicated to zealous representation.

If you’re interested in learning more about the program, visit our website. Mentee and Mentor applications are due Monday, December 16, 2019, by 5 pm (Central).

And lest you forget one of TCDLA’s signature events: The 44th Annual Tim Evans Texas Criminal Trial College is coming up. The College is an intensive program of practice exercises on a simulated case, from jury selection to final argument, enhanced by faculty demonstrations and personal critiques. This course is designed for all ranges of criminal defense trial experience—from new to veterans to those who left prosecution to the attorney who wants to continue improving trial skills.

Students and faculty build lifelong relationships, and many students come back as faculty members. No other program builds the relationships that allow such an exchange of ideas specifically for criminal defense. Enrollment is limited to 80 students, selected by an application and registration process. Get your application in now—the deadline is January 14, 2020, at 5 pm (Central).

We are also seeking local bars interested in holding one- to two-hour CLE seminars. TCDLA can sponsor your event. Contact me for more information.

As everyone counts down the holidays, I am selfishly counting down the days I have before Craig Hattersley, TCDLA communications director, will retire. I will be so sad to lose such a talented individual, one who possesses such institutional knowledge of our association. He will be irreplaceable, and I will miss him dearly.

On a more positive note, I wish everyone a happy holiday. I hope you can relax and take some time for yourself.

Editor’s Comment: First and Last

As criminal defense lawyers, we are uniquely positioned.

We have the ability to be positive influences. We have the ability to affect change, if only in but one life at a time. We are often both the first and the last: The first to get to the office, and the last to leave. The first to stand up for our client, and the last to forget—if ever—the one-word verdict. We are empathetic and compassionate. We think of others. Check out Buck Files’ article for proof or just think about the last nice thing you did for absolutely nothing in return. Born of necessity, we are intuitive, fighters, and most of all creative. It’s that creativity that helps us navigate both in and out of the courtroom. It’s that creativity that helps give us the perspective that others simply don’t have. Be thankful you are a criminal defense lawyer.

My dad, George Roland, a criminal defense lawyer and creative genius, wrote the following poem over 20 years ago. Whatever your religious preference or affiliation, enjoy the perspective and creative genius, and celebrate the wonderment of the season.

Editor’s Choice

It’s unanimous!  All Voice editors agree—Craig Hattersley is the best! After 12 years serving TCDLA as the communications director and man responsible for the Voice, we will be sad to see Craig retire at the end of January. We wish him the very best!

***

The creative voice exists in our own Craig Hattersley, too. Craig is the communications director for TCDLA. He has served TCDLA for well over a decade and has finally decided it’s time to retire. Craig is the man behind the magazine so to speak. He makes the Voice happen. He has been a constant, creative, and uplifting presence behind the scenes. I’ve had the complete pleasure and privilege to work closely with him for the past several years as editor—to speak with him candidly and openly, to ponder, to laugh, to lament, and to celebrate. In this role as editor, I have been fortunate to see the man behind the curtain and to get to really know him. Craig, thank you for your creativity, service, and dedication to TCDLA, but most of all for your friendship. We love you, thank you, and will miss you! Enjoy!

Sarah Roland
Editor, Voice

***

What a genuine pleasure it has been to work with our Communications Director Craig Hattersley for the past 12 years!

In an era of communication specialization, Craig has been the ultimate Jack of all trades. He does nearly everything for TCDLA communications. Those eye-popping cover designs for Voice? That’s Craig’s handiwork. The layouts for all of our CLE brochures? Craig. Graphic artistry? Publications? Social media? Craig. Craig. Craig.

I mean this literally and not figuratively: If your car broke down in the TCDLA parking lot, Craig would probably fix it. He spent years as a Volkswagen mechanic.

Craig came to TCDLA with substantial qualifications, having worked as an editor for 3rd Coast, Texas Life, and Austin Weekly, as well as working for numerous publications including Texas Monthly Press and the Village Voice. But the truth is, most of us will miss Craig the person, far more than we will miss our excellent communications director. Every meeting, phone call, or text exchange with Craig leaves you with a smile.

Best wishes, my friend!

Grant Scheiner
President-Elect

***

It is with fond memories that I say farewell and safe winds to Craig Hattersley. Over the years that I was the editor of Voice, Craig was a steadfast source of support in ensuring the issues were timely published. Craig was always upbeat and approached everything with a can-do attitude. He consistently created novel covers for Voice issues and wonderful covers for our CLE brochures. I was always amazed at how friendly and supportive Craig was in all our encounters. Craig will be sorely missed by us all. Be well, brother.

Michael Gross
Past Editor, Voice

Ethics & The Law: Rudolph (and Gifts to Judges)

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All of you have heard the song “Rudolph the Red-Nosed Reindeer” and are familiar with its main character, Rudolph. Rudolph was created in 1939 by Robert May, an employee of Montgomery Ward. Although sources vary as to whether May created the story of Rudolph to promote sales at the Christmas season or to give as a gift to his young daughter to bring her comfort, May was doing his best to keep his job and comfort his child because Ms. May was dying of cancer.

May was picked on and bullied as a child, and the story of Rudolph was based on those personal experiences. Rudolph was Santa’s ninth reindeer, mocked by the other reindeer because of his shiny red nose. Like May, Rudolph was mocked and bullied, but in the end, Rudolph became the hero when he was chosen to lead Santa’s sleigh on a foggy Christmas Eve.

Johnny Marks, Robert May’s brother-in-law, actually wrote the song “Rudolph the Red-Nosed Reindeer.” My friend Carol Erickson remembers Johnny Marks, who served as a captain in the Army during World War II. Carol’s dad served in the same unit as Johnny. After the war, Carol remembered Johnny coming to her house wearing a red suit and driving a new red Cadillac. Johnny tried to pitch the song to many popular singers—Dinah Shore, Perry Como, Bing Crosby, Frank Sinatra—but none were interested. At the urging of his wife, my hero and family friend Gene Autry recorded the song in 1949. It was an immediate hit and became one of the top songs in music history, selling millions of copies.

“Rudolph the Red-Nosed Reindeer” has become a piece of modern folklore and a metaphor for overcoming obstacles, embracing differences, and recognizing everyone’s unique potential. As you review the lives of your clients in an ethical manner, you may find a little or a lot of Rudolph in them. Your client may have come from a broken and dysfunctional home, or have learning disabilities or mental issues. It is important to get your client’s full life history. The recommendation is that you go back three generations in your client’s life. No matter how bad and bleak the case looks, there may, and probably will, be some socially redeeming qualities.

It is our job to zealously defend our clients in an ethical manner. If your client is a veteran, get all of his records whether good or bad. Also get a copy of the school and medical records. Do not forget to have your client stop all social media, especially Facebook. Serious prosecutors will be checking to see what a defendant has posted. If your client is in jail, warn him to be aware letters can be read and may be used against him and to beware of phone calls from jail. Be mindful of conversations in the hallways at the courthouse. It has happened that bystanders including law enforcement have testified about what they heard.

Once your investigation is complete, you may find your “Rudolph” has a history that will help him guide the sleigh to a positive outcome, or produce mitigation of the punishment. Even the worst among us has done something right in life. The research done on the ancestors of your client may help explain and or excuse his behavior. As my psychiatrist friend Geoff Grubb believes, only a very small percentage of humans are “Born to be Wild.” The remaining commit crimes because of many factors: poverty, inferiority complex, peer pressure, opportunity, desperation, drugs, depression, mental disorders, overpopulation, politics, racism, TV violence, or regionalism.

Like Rudolph, your client’s life may be changed forever if given the chance. If your Rudolph has alcohol or drug problems, enroll them in AA or NA. Encourage them to get a job, go to school and church, and any other positive thing that will help get them back on the right track.

Always remember: Santa Claus and the Grievance Committee are watching you.

Acceptance of Holiday Gifts by Judge and Staff

Opinion No. 194 (1996)

QUESTION: Is it a violation of Canon 4(d)(4) of the Texas Code of Judicial Conduct for a judge, court coordinator, or court reporter (as well as clerks and bailiffs) to:

1.   accept holiday or seasonal gifts (assuming such to be commensurate with the occasion); or
2.   attend holiday or seasonal law firm parties?

ANSWER 1: Yes. A judge may only accept a gift from a friend for a special occasion and then only if the gift is fairly commensurate with the occasion and the relationship. Canon 4D(4)(b). A Judge may accept any other gift only if the donor is not a party or person whose interests have come or are likely to come before the judge. Canon 4D(4)(c). Opinion No. 44.

Texas Judicial Ethics Opinions Page 115 of 170

The Committee concludes that a holiday or seasonal gift from a lawyer or law firm where a lawyer is not a friend is prohibited. Where a friendship exists, the gift must be commensurate with the occasion and the judge must be mindful of Canon 2A—and should act in a manner that promotes public confidence in the integrity and impartiality of the judiciary. A judge should not convey or permit others to convey the impression that they are in a special position to influence the judge. Canon 2B. Opinion No. 39.

ANSWER 2: No. A judge may attend holiday or seasonal law firm parties if the party is open to people other than judges and court personnel. Rule 4D(4)(b) and Opinion No. 39 permits a judge to accept ordinary social hospitality. The judge should act in a manner that promotes public confidence in the integrity and impartiality of the judiciary and should not convey or permit others to convey the impression that they are in a special position to influence the judge. Canon 2(A) and (B).

The answers above apply equally to the judge’s staff, court officials, and others subject to the judge’s direction and control. Canon 3C(2) provides a judge should require staff, court officials, and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge. See Canon 3B(2) Code of Judicial Conduct, September 1, 1974, through December 31, 1993, and Opinions 110, 112, and 140 applying Code to court personnel.

Here is the main code provision that would apply to gifts:

Canon 4D:

(4)   Neither a judge nor a family member residing in the judge’s household shall accept a gift, bequest, favor, or loan from anyone except as follows:

(a) a judge may accept a gift incident to a public testimonial to the judge; books and other resource materials supplied by publishers on a complimentary basis for official use; or an invitation to the judge and spouse to attend a bar-related function or activity devoted to the improvement of the law, the legal system, or the administration of justice;

(b) a judge or a family member residing in the judge’s household may accept ordinary social hospitality; a gift, bequest, favor, or loan from a relative; a gift from a friend for a special occasion such as a wedding, engagement, anniversary, or birthday, if the gift is fairly commensurate with the occasion and the relationship; a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; or a scholarship or fellowship awarded on the same terms applied to other applicants;

(c)  a judge or a family member residing in the judge’s household may accept any other gift, bequest, favor, or loan only if the donor is not a party or person whose interests have come or are likely to come before the judge;

(d) a gift, award or benefit incident to the business, profession, or other separate activity of a spouse or other family member residing in the judge’s household, including gifts, awards, and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties.

Ancillary to that would be the requirement to report certain gifts (depending on the value) in annual personal financial statements. That reporting requirement is for those officeholders who file reports with the Texas Ethics Commission or with the local county clerk per the Election Code. It is also generally covered under Canon 4I:

Compensation, Reimbursement, and Reporting

(1)   Compensation and Reimbursement. A judge may receive compensation and reimbursement of expenses for the extra-judicial activities permitted by this Code, if the source of such payments does not give the appearance of influencing the judge’s performance of judicial duties or otherwise give the appearance of impropriety.

(a) Compensation shall not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity.

(b) Expense reimbursement shall be limited to the actual cost of travel, food, and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the judge’s family. Any payment in excess of such an amount is compensation.

(2)   Public Reports. A judge shall file financial and other reports as required by law.

Finally, as you know, some gifts are illegal and could result in criminal charges under Chapter 36 of the Penal Code.

Federal Corner: Sentencing Juvenile Defendants After Miller

What is a court to do with an inmate who was sentenced to life without parole for an offense that was committed when he was 16 years old and is now seeking habeas relief? A panel of the United States Court of Appeals for the Fifth Circuit answered that question on October 24, 2019, in United States v. Sparks, ___F.3d___, 2019 WL 5445897 (5th Cir. 2019) [Panel: Circuit Judges Elrod, Graves, and Oldham. (Opinion by Oldham)].

In Sparks, the Court held, as to the life without parole issue, that

  • an inmate’s 35-year sentence did not violate the Eighth Amendment prohibition against sentencing a juvenile offender to a mandatory life sentence without the possibility of parole; and,
  • the sentence satisfied the procedural requirement that a court consider the inmate’s youth and its attendant characteristics.

The Beginning of the Case

In 2001, Sparks pleaded guilty to the offense of aiding and abetting a carjacking that resulted in death. A district judge of the Western District of Texas sentenced him to life without parole. On direct appeal, he argued that he was sentenced for a murder that he did not commit. On December 14, 2001, a panel of the Circuit [Circuit Judges Davis, Benavides, and Stewart] (per curiam) affirmed the judgment and sentence in his case, holding that he was not sentenced for the murder—rather, for aiding and abetting a carjacking which resulted in the death of the victim. United States v. Sparks, 31 Fed.Appx. 156 (2001).

The offense, the plea, and sentencing in the district court and the opinion in Sparks’ first appeal to the United States Court of Appeals for the Fifth Circuit all occurred before United States v. Booker1 made the United States Sentencing Guidelines advisory rather than mandatory and before Graham v. Florida,2 in which the Court held that juveniles may not be sentenced to life without parole for non-homicide cases. Relying on Graham, Sparks began seeking habeas relief.

Judge Oldham’s opinion reads, in part, as follows:

The Absolutely Horrible Facts in the Case

[F]ive gang members went to an IGA supermarket to find a carjacking victim. Bernard and Brown acted as lookouts while Sparks, Vialva, and Lewis approached potential victims to ask for a ride. No one offered them a ride, so they drove to a “Mickey’s” convenience store. Bernard and Brown went to a nearby laundromat to play video games. Sparks, Vialva, and Lewis went to the front of the convenience store.

        Shortly after arriving at the convenience store, Sparks found Todd Bagley using a payphone outside. Todd and his wife Stacie were youth ministers from Iowa. They’d previously lived in Killeen because Todd was a veteran of the U.S. Army and had been stationed at Fort Hood. The young couple had gone to church at Grace Christian, where they worked with the youth group. They were back in Killeen on a vacation to see old friends and attend a revival meeting at the church.

        Sparks approached Todd and asked if he would give Sparks, Vialva, and Lewis a ride to another location. Todd conferred with Stacie, and the young couple unsuspectingly agreed to give the gang members a ride. Bernard and Brown returned to their homes to wait for further instructions from Vialva.

        Sparks, Vialva, and Lewis got into the back seat of the Bagleys’ car. Todd drove while his wife sat in the front passenger seat. In accordance with their plan, Sparks and Vialva pulled out two handguns, and Vialva pointed his gun at Todd. Vialva told the Bagleys that the “plan had changed,” and he forced Todd to drive to a semi-rural location near the edge of Killeen. While Vialva pointed a gun at the Bagleys, Sparks and Vialva robbed them of their money, wallets, purse, debit card, identification, and jewelry. Vialva demanded their bank account’s pin number and then forced the Bagleys into the trunk of their car.

        With the Bagleys locked in the trunk, Sparks, Vialva, and Lewis went on an hours-long crime spree. They went to an ATM to steal all of the Bagleys’ money. That effort was frustrated, however, because the youth ministers had less than $100 in their bank account. They tried to pawn Stacie’s wedding ring. They used what little money they could steal from the Bagleys to buy cigars, cigarettes, and fast food from Wendy’s.

        Meanwhile, the Bagleys evangelized from the trunk. According to Lewis (who later testified), the Bagleys asked him and Sparks about God, Jesus, and church. The Bagleys acknowledged not having earthly wealth, but they told their captors that faith in Jesus is more valuable than money. The Bagleys talked about the revival meeting at Grace Christian. And the Bagleys urged their captors to have faith in Jesus Christ. The Bagleys begged for their lives.

        As night began to fall, Sparks told the gang that he needed to go home to avoid violating his 8 p.m. probation curfew for a previous robbery conviction. The group dropped Sparks off at his home. Sparks took the Bagleys’ jewelry with him. But Vialva asked Sparks not to take his .22 caliber handgun. After initially refusing, Sparks agreed.

        Bernard and Brown purchased fuel to burn the Bagleys’ car. Vialva and Lewis picked them up, and the four gang members drove (again, with the Bagleys still locked in the trunk) to the Belton Lake Recreation Area on the Fort Hood military installation. Vialva parked the Bagleys’ car on top of a little hill. Brown and Bernard poured lighter fluid on the interior of the car. All the while, the Bagleys sang and prayed in the trunk.

        Stacie’s last words were “Jesus loves you,” and “Jesus, take care of us.” Vialva crudely cursed at her, told Lewis to pop the trunk, and then executed Todd in front of his wife. Vialva shot Todd in the head with the .40 caliber Glock, killing him instantly. Then Vialva shot Stacie in the face but failed to kill her. Bernard set the car on fire and burned Stacie alive. Todd was 26. Stacie was 28.

* * *

The Three Supreme Court Decisions on Life Without Parole for Defendants Under 17 Years of Age

Since then, several Supreme Court decisions involving the Eighth Amendment raised constitutional concerns about Sparks’ LWOP sentence. In Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the Court held that juveniles may not be sentenced to life without parole for non-homicide offenses. In Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the Court held that juveniles may not receive mandatory sentences of life without parole. And in Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718, 193 L.Ed.2d 599 (2016), the Court made Miller retroactive to cases on collateral review.

The Procedural Background

We authorized Sparks to file a successive § 2255 motion based on Graham. In re Sparks, 657 F.3d 258, 262 (5th Cir. 2011). The district court denied the motion. But we granted a certificate of appealability, United States v. Sparks, No. 13-50807 (5th Cir. July 10, 2014), and remanded the case for reconsideration at the Government’s request, United States v. Sparks, No. 13-50807 (5th Cir. Feb. 10, 2015). We also authorized Sparks to file a successive § 2255 motion based on Miller, which the Government did not oppose. In re Sparks, No. 16-50973 (5th Cir. Nov. 18, 2016).

The Re-Sentencing Hearing Before Judge Yeakel

Upon joint motion of the parties, the district court consolidated the motions and ordered a resentencing. It provided Sparks with court-appointed experts and conducted a five-day sentencing hearing. At the hearing, the Government introduced evidence that Sparks committed repeated acts of brutal violence during his first decade in prison. In 2004, Sparks participated in a riot involving approximately 600 inmates, carrying a baseball bat during the fighting. In July 2006, Sparks stabbed his cellmate 12 times in the back, neck, head, and right arm. In September 2007, he stabbed another inmate in the neck, resulting in a spinal cord injury that left the inmate unable to walk or urinate by himself. In March 2008, Sparks attempted to murder an inmate by stabbing him repeatedly in the head, resulting in brain damage and the loss of the victim’s right eye. Sparks’ violence led to his transfer to ADX Florence in Colorado, a supermax facility where the nation’s most dangerous federal prisoners are located. Before that transfer, he had been sanctioned for at least 23 incidents. And in 2014, Sparks instructed two inmates to assault another inmate.

Judge Yeakel’s Memorandum Opinion

The district court carefully examined Sparks’ youth and its attendant characteristics in a twenty-six-page memorandum opinion. The district court included a thorough discussion of Miller and the 18 U.S.C. § 3553(a) factors. The court also considered the PSR, which could not identify any basis under § 3553(a) for varying from the recommended sentence of life imprisonment. The district court could not “imagine a worse offense, nor [could] the court imagine a more callous perpetrator than the defendant.” Nonetheless, the district court chose to vary downward and sentenced Sparks to 35 years, with credit for time in custody. Sparks appealed.

* * *

Sparks’ Argument on Appeal

Sparks’ principal argument on appeal is that the district court violated Miller v. Alabama. That case held the Eighth Amendment prohibits mandatory LWOP sentences for juveniles. Miller, 567 U.S. at 465, 132 S.Ct. 2455. It’s not clear from Sparks’ briefs whether he thinks his below-Guidelines sentence violates the substantive or procedural aspects of the Miller decision. At argument, his counsel urged us to consider both. We do so.

* * *

Understanding Miller

Three corollaries follow from Miller’s substantive rule. First, it “did not foreclose a sentencer’s ability to impose life without parole” on a discretionary basis. Montgomery, 136 S. Ct. at 726; see also Miller, 567 U.S. at 483, 132 S.Ct. 2455.

* * *

Second, Miller has no relevance to sentences less than LWOP. See United States v. Walton, 537 F. App’x 430, 437 (5th Cir. 2013) (per curiam). This means that sentences of life with the possibility of parole or early release do not implicate Miller.

* * *

Third, a term-of-years sentence cannot be characterized as a de facto life sentence. Miller dealt with a statute that specifically imposed a mandatory sentence of life. The Court distinguished that sentencing scheme from “impliedly constitutional alternatives whereby ‘a judge or jury could choose, rather than a life-without-parole sentence, a lifetime prison term with the possibility of parole or a lengthy term of years.’” Lucero, 394 P.3d at 1133 (quoting Miller, 567 U.S. at 489, 132 S.Ct. 2455). Given Miller’s endorsement of “a lengthy term of years” as a constitutional alternative to life without parole, it would be bizarre to read Miller as somehow foreclosing such sentences.

* * *

There Was No Substantive Miller Violation

Sparks cannot show a substantive Miller violation. First, he received a discretionary sentence under § 3553(a) rather than a mandatory sentence. Second, he was sentenced to thirty-five years in prison rather than life without parole. Because Sparks did not receive a mandatory sentence of life without parole, he has failed to demonstrate a violation of Miller’s substantive requirements.

* * *

The Procedural Argument

The procedural component of Miller “requires a sentencer to consider a juvenile offender’s youth and attendant characteristics before determining that life without parole is a proportionate sentence.” Montgomery, 136 S. Ct. at 734. In Miller and Montgomery, the Supreme Court considered state laws in Alabama and Louisiana imposing mandatory LWOP sentences on juveniles. But federal prisoners have procedural protections that state prisoners do not have—namely, the sentencing factors in § 3553(a) and the advisory Sentencing Guidelines. 

Judge Yeakel’s §3553(a) Analysis Satisfies Miller

Under § 3553(a), a sentencing court “shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes” of sentencing. In choosing an appropriate sentence, the court must examine “the nature and circumstances of the offense and the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). It must also consider the policy statements of the Sentencing Commission, id. § 3553(a)(5), which expressly allow for consideration of the defendant’s age, “including youth,” U.S.S.G. § 5H1.1, p.s.

        The § 3553(a) analysis satisfies Miller’s procedural requirement that the court consider the defendant’s youth and its attendant characteristics before imposing a sentence of life without parole. See Moore v. United States, 871 F.3d 72, 79 (1st Cir. 2017)É

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Thus, a sentence that satisfies § 3553(a)’s procedural requirements cannot be challenged under the procedural component of the Miller decision.

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There Was No Procedural Miller Violation

In this case, the district court appointed taxpayer-funded experts for Sparks, held a lengthy five-day hearing, and wrote twenty-six pages explaining its sentence. This fulsome process gave Sparks far more than the minimum procedure necessary to conduct a proper § 3553(a) analysis. And we agree with the Government that Miller does not add procedural requirements over and above § 3553(a).

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Sparks’ sentence is affirmed.

My Thoughts

  • We will probably never be confronted with a Graham v. Florida issue because the law is now so well settled.
  • As usual, Judge Lee Yeakel showed wisdom as he decided the Miller issue in Sparks.