Monthly archive

November 2020 - Page 2

Ethics and the Law: How Much Discovery Does a Client Get?

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There continues to be confusion about discovery duties and what information defense counsel can share with her/his client.

Texas Code of C Procedure Article 39.14 (f) READS:

The attorney representing the defendant, or an investigator, expert, consulting legal counsel, or agent for the attorney representing the defendant, may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness’s own statement.

Essentially, you can share the discovery with your client by letting them read it, but you cannot give copies to the client unless you have permission from judge or th prosecutor. Many bad things happen when discovery is found in a client’s jail cell or his gang leader’s home after a search warrant’s execution.

While prosecutors make up their own minds and give what they think is discoverable and material, you have an obligation to your client to ensure the prosecutors follow all the rules. You should report prosecutorial non-compliance to the trial court and seek aid there.  Additionally, you have an obligation to report prosecutorial non-compliance to the State Bar’s Office of Chief Disciplinary Counsel.

The State Bar’s Professional Ethics Committee’s Opinion No. 657, May 2016 presented these questions:

  1. What documents and information must be delivered by a lawyer to a former client convicted of a criminal offense when requested by that former client?
  2. Who bears the costs of delivering the documents and information to the former client?
  3. In what form must the documents and information be delivered?

Read this opinion to get the answers. The opinion can be found online at http://law.uh.edu/libraries/ethics/Opinions/601-700/EO657.pdf. If you have questions, please call the Ethics Hotline at 512-646-2734.

Chapter and Verse: The History of the Bail System

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Dear and Beloved Colleagues,

I am not sure how it is that the Code knows just what I need to hear. This fat, new baby of mine falls right into the sections that are most applicable right when I need them, it seems. As I turned through the sections we’ve already covered and came across the next section in our read-along, boom, right there, in the middle of page 13: Art. 1.07 Right To Bail.

Any recognizable form of a bail system started with the Anglo Saxons, somewhere around 600 AD. Stay with me, beloved friends. This isn’t as boring as you think it’s going to be. The Anglo Saxons, you’ll remember, were the people who lived about where England is now (Angle-land, get it?) and they left us a lot of their language and some of their culture, and they farmed and fished in relative harmony until about 1066 or so, when something terrible happened, but that’s not what we’re talking about now. The Anglo Saxons developed a system of were-gild. “Were” means “man,” like in “were-wolf,” and “gild” means “gold,” or more generally “money.” So they developed this Man-Money system. There was a whole list of crimes and the corresponding restitution payments: if you cut off someone’s index finger, that was punished by a set amount. If you cut off someone’s pinky finger, there was a lower amount. There were things we might think of as enhancements (You stole a pig? That’s $50. Oh, it was the King’s pig? That’s $100). Then there were things that were mitigating (You stole a wife? That’s $200. You stole her from her second husband? That’s $100 and you have to keep her).  There was an idea that people generally aren’t dangerous to the community as a whole, so expending massive resources to confine someone, or wasting manpower by executing or mutilating people for small offenses, was probably not good for anybody. I tend to agree with them on this point.

Though the law was clear about what the restitution amounts were, trials still had to take place in front of factfinders, and sometimes that took a while. This is where the bail system emerged. People who were charged with a crime had to find someone who would stand as their surety, and if they absconded pre-trial, the surety would agree to pay the were-gild in full. Everyone was satisfied.

But then, as time went on, things changed. The horrible events of 1066 unfurled. Later, Martin Luther would drive a stake into the heart (and door) of the church, and the rift that followed would both lead to the colonization of the US and the rise of capitalism, both of which have everything to do with the current ridiculous money-bail situation we find ourselves in today, my dear coworkers. Now bail amounts are arbitrary and almost entirely discretionary. This is made worse by the predatory practices of commercial bondsmen, and the misinterpretation by judges of how those bondsmen work.

What’s the point of all of this history? I’m not sure. Something about how we can learn from the past, from even older, dead-er white guys who made the law before this current iteration, how the barbarians 1,500 years ago were more humane, somehow, than these barbarians in expensive haircuts and tailored suits who make the law now. Oh, friends who are still with me, I am at a loss this month. How weird it is to write about bail when one has been sheltering in one’s home for months on end.

 But what I will say about this section of this giant tome of sections is that it is short–blessedly, powerfully, impactfully so. In the same vein as “Jesus wept.”

“ALL PRISONERS ARE BAILABLE.” Of course, there’s an asterisk to that–the “death is different” asterisk. But for us, that is all we have to remember, that single promise reaching out to us through history and cronyism and viruses and uncertain futures: All prisoners are bailable. Some are more bailable than others.

Love always.

Federal Corner: There is a Limit to the Power of Federal Probation Officers

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On October 27, 2020, a panel1 of the United States Court of Appeals for the Fifth Circuit, held as a matter of first impression, that the district court abused its discretion by giving the defendant’s probation officer the option to choose between inpatient and outpatient drug treatment; and, that when substance abuse treatment is a condition of supervised release, the decision to restrict the defendant’s liberty during the course of substance abuse treatment must remain with the judge, as opposed to the defendant’s probation officer.  United States v. Martinez, ___F.3d___, 2020 WL 6281738 (5th Cir., 2020)

Over the years, we have had a number of instances where a federal probation officer, we believed, was overstepping his authority; however, we have been able to resolve these issues without the necessity of a hearing or an appeal.  Martinez gives us something of a road map of where to go if we cannot do this.  Judge Elrod’s opinion reads, in part, as follows:

Martinez Has Continuing Drug Issues at His Halfway House

Martinez pleaded guilty to unlawful escape after he failed to return to a halfway house at the end of a workday. Martinez began serving the supervised-release portion of his sentence for that offense in August of 2018. In November 2018, Martinez’s probation officer petitioned the district court to modify the conditions of Martinez’s supervised release because Martinez tested positive for cocaine use. The modification required Martinez to ‘participate in a program of testing and treatment for drug abuse.’

Martinez’s probation officer once more petitioned the court for a modification in August of 2019 because Martinez continued to engage in drug use. At the revocation hearing for this petition, Martinez’s counsel said that Martinez ‘would be the first to admit there are times that he struggles with substance abuse.’ Martinez’s substance-abuse struggles sparked the following dialogue between the district court and Martinez:

The Dialogue Between the Court and Martinez

[THE COURT:] It seems to me—you know, I may be off base, or maybe not—that you’re your own worst enemy. You walked away from a halfway house; that got you the escape charge. You failed to report. You’ve done, you know, cocaine on a number of occasions. And I understand how hard sometimes those habits are to break.

But, you know, as a judge, we can order drug treatment, we can order all these different things to try to help, but you’re the only one that can make that decision for yourself. You need to really take it to heart….

I’m going to sentence you, but I’m also going to recommend to the Bureau of Prisons that you participate in the drug treatment program. When you get out, I want you to participate in the drug treatment program.

All right. The Court hereby revokes the term of supervised release in 17-CR-34 and sentences the defendant Abran Martinez to 10 months in the custody of Bureau of Prisons with the reimposition of supervised release under the same terms and conditions of one year….

Mr. Martinez, as I said, I can order things until I’m blue in the face. It only works if you really put your heart into it.

THE DEFENDANT: By continuing on this release, it just—I mean, I’ve tried it. I’ve tried it several times. I don’t know what it is. I just can’t—I can’t do it. I mean, I’ll try. I’ll try again.

THE COURT: I want you to try again. I know that the probation department didn’t recommend it. And that is one of the reasons I only put you back on for a year. If I can help you make that step, I want to help you, but try it one more time.

Our goal is to get you off drugs. I don’t want to run your life. I have enough trouble running my life. But I want to give you a chance to break this drug habit. (emphasis added)

The Written Conditions of Supervised Release

After the hearing, the district court imposed the following written condition:  You must participate in an inpatient or outpatient substance-abuse treatment program and follow the rules and regulations of that program. The probation officer will supervise your participation in the program, including the provider, location, modality, duration, and intensity. You must pay the costs of the program, if financially able. (emphasis added)

Martinez’s Arguments on Appeal

Martinez appealed the written condition, challenging particularly the words ‘inpatient or outpatient.’ Martinez argues first that he did not have an opportunity to object to these words because he encountered them for the first time in the written judgment. Thus, according to Martinez, our review should be for abuse of discretion. Martinez then argues that the words ‘inpatient or outpatient’ impermissibly delegate judicial sentencing authority to Martinez’s probation officer because inpatient drug-treatment involves a significant deprivation of liberty.  (emphasis added)

The Government’s Response

The government, conversely, asserts that we should review for plain error because Martinez failed to object to the condition of supervised release in the district court. According to the government, Martinez did have the opportunity to object because the district court stated it was imposing a term of supervised release ‘under the same terms and conditions’ as the 2018 modification to Martinez’s supervised release. On the government’s theory, although the 2018 modification did not contain the words ‘inpatient or outpatient,’ it implicitly contained those options; ‘by leaving those terms unstated, the 2018 condition necessarily contains both.’

The Court Agrees With Martinez

We agree with Martinez. He had no opportunity to object, and so we review for abuse of discretion. In United States v. Franklin, we reviewed an appeal of a condition of supervised release for abuse of discretion because the defendant had no opportunity to object to the discretion given to a probation officer to require mental-health treatment. 838 F.3d 564, 567 (5th Cir. 2016). The district court’s oral pronouncement at the sentencing hearing did not mention or define the probation officer’s role in the recommended mental-health treatment. Id. Similarly, in this case the district court’s oral statements at the sentencing hearing did not mention or define the discretion the court would give to the probation officer to choose between inpatient and outpatient treatment.

The District Court Abused Its Discretion

The district court abused its discretion by giving Martinez’s probation officer the option to choose between inpatient and outpatient drug treatment. While probation officers may ‘manage aspects of sentences’ and oversee the conditions of supervised release, a probation officer may not exercise the ‘ “core judicial function” of imposing a sentence, “including the terms and conditions of supervised release.” ’ United States v. Barber, 865 F.3d 837, 839 (5th Cir. 2017) (quoting Franklin, 838 F.3d at 568). This duty belongs to the court and may not be delegated. Id. We have previously vacated special conditions that delegate judicial authority to the probation officer by allowing the probation officer to decide whether mental-health or substance-abuse treatment should be required. United States v. Simpson, 788 F. App’x 991, 992 (5th Cir. 2020); United States v. Griffin, 780 F. App’x 103, 106–07 (5th Cir. 2019); United States v. Moreno, 697 F. App’x 384, 384–85 (5th Cir. 2017); Franklin, 838 F.3d at 568. We have not yet, however, decided whether giving a probation officer the option to require inpatient treatment impermissibly delegates a core judicial function.  (emphasis added)

The Second, Ninth and Tenth Circuits Have Addressed This Issue

Three of our sister circuits have addressed this question in published opinions, and each has decided that the court may not delegate the decision to require inpatient treatment to a probation officer because of the significant liberty interests at stake in confinement during inpatient treatment.  See United States v. Matta, 777 F.3d 116, 122–23 (2d Cir. 2015); United States v. Mike, 632 F.3d 686, 695–96 (10th Cir. 2011); United States v. Esparza, 552 F.3d 1088, 1091 (9th Cir. 2009). Inpatient treatment differs from outpatient treatment because the patient cannot leave; the patient must remain at the hospital or facility day and night throughout the duration of the treatment. Matta, 777 F.3d at 122. ‘Conditions that that touch on significant liberty interests are qualitatively different from those that do not.’ Mike, 632 F.3d at 695. (emphasis added)

The Court Agrees With the Second Circuit

Mike is right. The decision to place a defendant in inpatient treatment cannot be characterized as one of the managerial details that may be entrusted to probation officers. See Barber, 865 F.3d at 839. The decision to restrict a defendant’s liberty during the course of treatment must remain with the judge. That said, our decision should not be construed to prevent a defendant from electing inpatient treatment in the absence of a court order. Instead, we hold today that the judge may not delegate to the probation officer the decision to require inpatient, rather than outpatient, treatment because of the liberty interests at stake.  (emphasis added) 

Conclusion

 The condition allowing Martinez’s probation officer to elect between inpatient or outpatient treatment is vacated, and the case is remanded for further proceedings consistent with this opinion.

My Thoughts

  • In most opinions, the judge of the court below is mentioned by name in the opinion; however, Judge Elrod did not tell us who the judge was in Martinez’s case.  During his colloquy with Martinez, the judge showed both patience and kindness in his comments.  I want him to hear my next drug case.

From the Front Porch: Be a Participant and Not a Spectator

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As I write this column, the number of coronavirus cases is on the rise in Texas. Some hospitals are nearing capacity and health care resources are being stretched thin. To our colleagues and their families in some of the hardest hit areas of Texas, you are in our thoughts and prayers and we stand ready to help. We miss the courtroom and socializing with our colleagues. We are tired of wearing a mask and talking thru plexi-glass.  Zoom has been a lifesaver, but we are now Zoomed out. As cases rise, we may have to deal with another statewide shutdown in some form. Our anxiety has not subsided, as we just do not know what the future holds for us or what practicing in the courtroom will look like in six months. This uncertainty is nerve-racking and stressful and continues to take a toll on our professional and personal lives.

There is good news, as there may be a vaccine available soon. Hopefully, we can get back to normal sooner rather than later. In the meantime, what can we do to get our practice back in order? I will give you my thoughts on that question next month.

On November 11, 2020, the Texas Supreme Court ordered that no in-person jury trials could be held prior to February 1, 2021, extending the previous deadline of December 1, 2020. The exception continues to be that a judge can seek to have an in-person jury trial by submitting their operating plan to the local administrative district judge for that county and the regional presiding judge for approval. Specifically, there have been some judges in rural areas throughout the State that have obtained this approval and conducted in-person jury trials. My understanding is that jury selection was held at large venues and not at the courthouse, with restrictions in place for social distancing, and the wearing of a face shield or mask, etc. While I have not been personally involved in any of those jury trials, I believe the success of those proceedings has been mixed. I suspect that this perception of success is likely based upon your role in the proceedings. I do believe the courts and the Office of Court Administration should be applauded for their efforts to address the problems presented by the pandemic, but we all need to be mindful of the fact that there continues to be real health concerns and risks which must be safeguarded and taken into account when making these decisions.

It appears that judges and prosecutors are having conversations on how to resume in-person proceedings at the courthouse. I do not believe that local criminal defense attorneys have been included in those conversations, and this concerns me as it should all of us. We are required to be a zealous advocate, but how can we do that when we have serious concerns of the health risks that would necessarily exist during a live jury trial proceeding. Now, how do we, as rural criminal defense attorneys, inject ourselves into that conversation? While we may be friends with the judges and prosecutors in our rural areas, our duty is to our clients, and keeping them and ourselves safe for the sake of our families and loved ones. Our health and safety concerns must be part of that conversation. In some of the surrounding counties that I practice in we have received information that there have been positive Covid-19 test results in several of the county courthouses. In rural areas this can lead to serious concerns because the local county courthouse is not only the hub of all legal matters, but a centralized point of contact for all county sponsored services. That is why it is important to make calls to the judges and prosecutors and invite ourselves into that conversation for developing a safe return plan to the courtroom. Staying in touch with our local community leaders and courthouse personnel is critical to us keeping ourselves safe and healthy. It has been over eight months since the pandemic creeped into my community, and it is easy to slip into a routine of self-isolation and start binge watching on Netflix. In reflecting back on the last eight months, I know I can do better in making sure my clients, friends, and colleagues are doing well and staying safe.

A friend of mine had concerns about his and his client’s safety and health with regards to a scheduled November jury trial setting. He utilized TCDLA’s resources and successfully argued for and had his request for a continuance granted. He may have to file it again as this problem is not going away anytime soon. This is a situation many of us are having to confront as the pandemic rages. While this is not an easy conversation to have with the court, it is necessary. When pressing this issue with the court, make sure your client agrees with you regarding the continuance, and they are aware that they are likely waiving a speedy trial complaint. My suspicions are that some of the courts seeking permission to proceed with a jury trial at this time involve cases where the client has demanded their right to a speedy trial.

Practicing law in a rural area during this pandemic has led me to rethink my practice and I have some thoughts to share with you:

  1. Remember where you come from;
  2. Know where you are going;
  3. Check in on friends and colleagues;
  4. Stay in regular contact with your clients;
  5. Remain accessible via Zoom, by telephone or in-person;
  6. Stay in regular contact with your local judges, prosecutors, court clerks and personnel;
  7. Protect your client;
  8. Protect your family;
  9. Remember you cannot protect anyone if you do not protect yourself; and
  10. Be thankful for what you have and do not obsess about the rest.

The Rural Practice Committee continues to meet monthly. We are developing helpful hints and a checklist for use when we return to the courtroom. This information will be posted on the TCDLA Rural Practice list serve. Each member on this committee is dedicated to making themselves available to assist you and address any of your concerns. If something unusual or exciting happens in your neck of the woods, please let us know how we can help.

Lastly, I take my hat off to all of us that have endured the hardships of this pandemic and continue to advocate on behalf of the accused during these trying times. We have continued, unphased and undaunted, despite impossible circumstances and a myriad of the Governor’s executive and emergency orders, to protect and preserve our client’s rights. Stay strong and vigilant. Remember TCDLA has your back, from west Texas to east Texas and all parts in between. We are TCDLA strong.

Shout Outs

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Michael Heiskell was recently awarded Tarrant County Bar Association’s annual Blackstone award, their highest honor. The award is given to lawyers who have been in practice for 65 years or more and who demonstrate outstanding courage in the pursuit of justice. Mr. Heiskell was the first African-American selected to be “Mr. Navarro College” and his 50-year commemoration recently occurred in Corsicana. Past TCDLA President Mark Daniel said, “Mike Heiskell is a 40-year friend. Such an outstanding lawyer. He has the ability to adjust his style to fit the case. Mike can take on and win the most complicated white-collar federal matter or a straightforward state homicide or felony case. His preparation is only exceeded by his incredible courtroom delivery. Always humble. Always gracious. Always relentless. Always a professional. A lawyer’s lawyer.

Congratulations to Clint Snare, who represented a client in the Beaumont Court of Appeals. The client had been sentenced to 99 years for one count, 19 of a maximum of 20 on another, and the maximum 10 years on the five remaining charges, combined with $10,000 fines in each case ($70,000 total). Thanks to Mr. Snare’s advocacy, the Beaumont Court of Appeals reversed all the punishments and remanded. Awesome work, Clint!

Brian Wice and Dan Cogdell, who have faced off against each other in the never-ending saga of the State of Texas v. Ken Paxton since the Jimmy Carter administration, teamed up to win a 9-0 decision in the Court of Criminal Appeals, setting aside a judgment of direct criminal contempt entered against their client, Wayne Dolcefino, former ABC-TV investigative reporter and owner of Dolcefino Consulting, by Darrell Jordan, presiding judge in Harris County Criminal Court. The client approached Jordan while he was on the bench but not while conducting any official judicial proceeding to ask why the two young, inexperienced, and indolent special prosecutors Jordan had appointed to investigate the client’s four criminal complaints alleging violations of the TPIA had done nothing after 18 months. Jordan took exception to the client asking him questions he had every right to ask in a courtroom where he had every right to be, held him in direct contempt and put the 64-year old asthmatic, MS-suffering client in the COVID-ridden Harris County jail for two days before he made bond. Unbeknownst to Jordan, the client recorded the entire encounter with a video spy pen. The Dallas County DA’s Office, acting as attorneys pro tems appointed, agreed relief was warranted and CCA agreed.

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