Monthly archive

March 2021 - Page 2

From the Front Porch: Is Opening Up the Courts Good for the Rural Practitioner?

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After Governor Abbot announced that he was lifting regulations involving mask‑wearing and social distancing, it was not long before the OCA put their two cents in on the issue. Their recent opinion can be summarized by the lyrics of that old Mamas and Papas song. Now courts can go where they want to go and do what they want to do. The OCA left it up to each county to be restrictive or not, continue Zoom hearings or not, or go back to 2019 procedurally speaking. The question is, is opening up the court system good for the rural practitioner? The answer is… it depends!

Positives:

COVID rules put the brakes on jury trials. This can be good. If you have someone out on bond, time usually works on the Defendant’s side. The backlog makes more minor state jail felony cases and third‑degrees look even smaller to the judges and DAs. When there is a huge backlog, do you really want to go to court on a mandatory probation state jail felony case, or give them a 12.44 (b) and move it down the road? Opening up the court system to the good old days may lurch the criminal justice machine back to the days when these cases were taken much more seriously.

COVID made courts shift to Zoom hearings. This can be also good for the criminal practitioner. You can do court hearings and jail visits in your pajamas and slippers. Just wearing a dress shirt and tie over them, or move the camera, so it only shows your face! This makes these standard time‑wasting activities a snap. This has allowed the rural criminal defense attorney to be much more efficient, sometimes allowing them to be working on one case while in the Zoom waiting room on another. This is especially so when you practice in numerous counties. Opening up the court system could make our jobs move from being a quasi stay‑cation to having to dress up and go to court again like the old days.

Negatives:

COVID rules put the brakes on jury trials. This can be very bad. If you have some languishing in jail, the possibility of a jury trial looks very remote. Your client will probably wait years, if they have not already been, to have their day in court. The most heartbreaking scenario is a person accused of serious crime, has a high bond that they can’t make, and claim to be innocent. If the powers that be wont lower the bond, they’re stuck. If they genuinely are innocent, that’s an enormous injustice. Hopefully, you have gotten a good investigator to get some exculpatory information to grease the wheels of justice somehow. But if not, this is a horrible nightmare. Opening up the court system could really help these people get their day in court.

COVID has made courts shift to Zoom hearings. This can also be very bad. As we all know, getting into court, meeting the prosecutor face to face, seeing your client face to face, and having the judge pressure both parties to get things done can help resolve or get cases dismissed. When dealing with everyone in an impersonal zoom hearing, the immediacy and intimacy of in‑person contact are lost. These intangibles fuel the process. Opening up the court system can make innocent defendants get off the hook, and guilty ones gain a better result. Opening up the court system, in this case, would be positive.

In conclusion, COVID has been a double‑edged sword for the rural practitioner. Guilty folks on bond have enjoyed a long continuance, perhaps using the time to gain employment, get help for their addictions, and build a resume for a better resolution down the road. Zoom hearings have allowed the criminal practitioner to be more efficient, and it has made it easier logistically to practice in other counties. On the flip side, COVID has caused innocent folks may be languishing in jails for months or years before a trial. The lack of in‑person hearings has caused an enormous backlog, which hurts anyone trying to resolve a case.

Long story short, we will have to roll with whatever happens, just like we did a year ago when the system was upended.

Note: In the March edition, From the Front Porch was actually written by Dean Watts, not Clay Steadman. The appropriate person has been properly flogged.

Ethics and the Law: April Fools

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Assume lawyers are representing a client in an Article 11.07 of the Texas Code of Criminal Procedure post‑conviction writ. A contract was signed providing for a fee of $20,000 for a writ investigation plus expenses and an additional $10,000 fee was to be paid for the preparation and filing of a writ. The investigation fee has been paid including expenses. The fee for preparing and filing of a writ has not been paid. Client and lawyers cannot agree on the basis for a writ. Lawyers believe the best issue to proceed on is the failure to call witnesses in the punishment phase of trial. Client wants to claim actual innocence. Lawyers’ opinion is that there is no evidentiary basis for the claim of actual innocence.

Question number 1: Are the lawyers obligated to file a writ when they have not been paid to do so?

Question number 2: Are the lawyers obligated to file a writ claiming actual innocence if, in their opinion, there is no evidentiary basis for the claim of actual innocence?

Answer 1 provided by attorney Joe A. Connors, III.:

Q. 1: No. Client is entitled to the fruits of the investigation, which has been paid for, and a formal letter of withdrawal.

Q. 2: No. Client is entitled to a written discussion detailing why the attorneys will not pursue an actual innocence claim. Ineffective assistance of counsel for the “failure to call witnesses” requires a sworn statement from the witness detailing what the witness would have said plus compliance with both prongs of Strickland v. Washington, 466 U.S. 668 (1984). Of course, there is a duty to obtain a statement from the trial defense counsel on why they did not call that witness.

Answer 2 provided by attorney Laura Popps:

Although the client has a say in the overall objectives of a case, it is the lawyer who assumes responsibility for the legal tactics and strategies in reaching those objectives. Moreover, a lawyer is violating the disciplinary rules if he files a frivolous legal pleading or one with no basis in fact/law. If the client and lawyer cannot agree on this issue, it may be appropriate for the lawyer to withdraw.

Further, a lawyer has a right to be paid according to his agreement with the client. If the client refuses to abide by that agreement and pay the lawyer for his services, it may be appropriate to withdraw.

See Texas Disciplinary Rule of Professional Conduct 1.15 (b)(4) & (5), as well as comment 7.

The author would like to send a special thanks to Betty Blackwell, Sharon Bass, Laura Popps, Joe Connors, and Bobby Mims.

Chapter & Verse: Become an Outlaw

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Dear and Beloved Colleagues,

Last we spoke, we talked about double jeopardy. Today, we move on to maybe my favorite word in the English language: the Outlaw. Article 1.18 of this fat, miserable companion of mine specifies, “No citizen shall be outlawed, nor shall any person be transported out of the State for any offense committed within the same.”

“Ok, Allison,” you’re saying, “what on earth does that matter?”

And I ask you, in return, does Jesse James matter? Does Wild Bill Hickock matter? Does absolute freedom from tyranny and injustice matter?

The purpose of outlawry is basically banishment. You, as a person, have been deemed to illegally exist in our jurisdiction. You have no legal rights anymore.

It’s interesting because, in a former life in a different country, we frequently resolved cases by making the sole condition of probation that the defendant would “leave the jurisdiction and not return during the pendency of the probated sentence.” It worked pretty well, and I remember recounting this to a salty old DA in New Mexico once. He laughed.

“You know, when I used to practice in Oklahoma, we would kind of do the same thing,” he said. “I’d tell repeat misdemeanor defendants to just not show up to court and we’d bench warrant them. Since misdemeanors weren’t extraditable, it basically meant if they left the county, they’d never have to face charges for it.”

Not in Texas, you wouldn’t, my Salty DA.

Smarter lawyers than I have argued that the outlawry provision effectively prohibits sex offender registration requirements, which I think is a pretty interesting way of turning things. Unfortunately, the 14th COA slapped that down pretty handily in Velez v. State, 2002 Tex. App. LEXIS 1153 at 15, basically saying that registrants don’t give up all their legal rights, and registration is not a punishment, technically, so nyah.

But I just need to tell you, dear friends, that there’s a legal definition of outlawry, which I don’t really care for, and a true definition of outlawry, which I aspire to.

Please turn, if you are able, to one of my favorite authors of all time, Tom Robbins, who is still alive in LaConner, Washington, where I once worked and frequented the same coffee shop (the only coffee shop) in the hopes of catching a glimpse of the Outlaw King himself. My icy, outlaw‑wannabe heart skips a beat when I read this passage from Still Life With Woodpecker:

The difference between a criminal and an outlaw is that while criminals frequently are victims, outlaws never are. Indeed, the first step toward becoming a true outlaw is the refusal to be victimized. All people who live subject to other people’s laws are victims. People who break laws out of greed, frustration, or vengeance are victims. We outlaws, however, live beyond the law. We don’t merely live beyond the letter of the law–many businessmen, most politicians, and all cops do that–we live beyond the spirit of the law. In a sense, then, we live beyond society.

When war turns whole populations into sleepwalkers, outlaws don’t join forces with alarm clocks. Outlaws, like poets, rearrange the nightmare.

The trite mythos of the outlaw; the self-conscious romanticism of the outlaw; the black wardrobe of the outlaw; the fey smile of the outlaw; the tequila of the outlaw and the beans of the outlaw; respectable men sneer and say ‘outlaw’; young women palpitate and say ‘outlaw’. All outlaws are photogenic. ‘When freedom is outlawed, only outlaws will be free.’ Unwilling to wait for mankind to improve, the outlaw lives as if that day were here. Outlaws are can openers in the supermarket of life.

Dear friends, I so encourage you to find your inner outlaw. The outlaw doesn’t listen to the definitions or branding of the State. The outlaw creates the world he wants to live in. But still, you know, wash your hands.

Love always, AJM

Federal Corner: Six Days in a Texas Prison Hell

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For nearly a quarter of a century, I have been writing for The Voice about federal criminal cases. For my 250th – and last – column, I found a federal civil rights case with facts that are so beyond the pale that I wanted to bring them to your attention. On November 2, 2020, the Supreme Court, in a case from the United States Court of Appeals for the Fifth Circuit, held, per curiam and without oral argument, that

(1) The Court of Appeals properly ruled that the conditions of confinement alleged by Mr. Taylor, whereby for six full days he was confined in a pair of shockingly unsanitary cells, the first of which was covered nearly floor to ceiling in “massive amounts” of feces and the second of which was frigidly cold and equipped with only a clogged floor drain to dispose of bodily wastes, violated the Eighth Amendment’s prohibition on cruel and unusual punishments; but

(2) The prison officials responsible for Taylor’s confinement had fair warning that their specific acts were unconstitutional and, thus, the Court of Appeals erred in granting the official qualified immunity with respect to Mr. Taylor’s claims.
Taylor v. Riojas 1

We are accustomed to the horrible fact situations that we find in some of our criminal cases. It just goes with the territory. Taylor, though, is concerned with the abuse that an inmate in a Texas prison suffered at the hands of his prison guards. We should all hope that nothing like this ever happens to one of our clients.

In their Petition for a Writ of Certiorari, Mr. Taylor’s lawyers included this Statement of the Case:

At the time of the events giving rise to this suit, Petitioner Trent Taylor was incarcerated in the John T. Montford Unit of the Texas Department of Criminal Justice (Montford). Pet. App. 3a. Respondents Robert Riojas, Ricardo Cortez, Stephen Hunter, Larry Davidson, Shane Swaney, and Joe Martinez were officials at Montford during that period.  Id.

Taylor was transferred to Montford, a psychiatric prison unit, for mental health treatment following a suicide attempt. Electronic Record on Appeal (R.O.A.) 49 Instead of providing that treatment, Respondents stripped Taylor of his clothing, including his underwear, and placed him in a cell where almost every surface— including the floor, ceiling, windows, and walls—was covered in “massive amounts” of human feces belonging to previous occupants. Pet. App. 7a-8a;

R.O.A. 50. The smell was overpowering and could be discerned from the hallway. Pet. App. 8a; R.O.A. 50. Taylor was unable to eat because he feared that any food in the cell would become contaminated. Pet. App. 8a. Feces “packed inside the water faucet” prevented him from drinking water for days. Id. Respondents were aware the cell was coated in excrement:   One Respondent asked several others whether Taylor’s cell was the one covered in feces; another answered, “Yes, he’s going to have a long weekend,” and the officials laughed. Id.; R.O.A. 50. Taylor asked numerous prison staff members to clean the cell, but they refused. Pet. App. 8a n.8. When Taylor complained of the conditions, Respondent Swaney responded, “Dude, this is Montford, there is s*** in all these cells from years of psych patients,” Pet. App. 8a (brackets omitted).

Four days later, Respondents removed Taylor from the first cell; they then transferred him, still naked, to a different “seclusion cell.” Pet. App. 8a, 12a. Montford inmates referred to this cell as “the cold room” because of its frigid temperature; Swaney told Taylor he hoped Taylor would “f***ing freeze” there. Pet. App. 8a n.9. This cell had no toilet, water fountain, or furniture.   Pet. App. 8a. It contained only a drain on the floor, which was clogged, leaving a standing pool of raw sewage in the cell. Pet. App. 8a. Because the cell lacked a bunk, Taylor had to sleep on the floor, naked and soaked in sewage, with only a suicide blanket for warmth. Pet. App. 8a-9a, 33a.

Taylor spent three days in the seclusion cell, during which Respondents repeatedly told him that if he needed to urinate, he would not be escorted to the restroom but should urinate into the backed up drain. Pet. App. 8a. Taylor refused, not wanting to add to the pool of sewage in which he had to sleep naked. Pet. App. 8a-9a. Instead, Taylor avoided urinating for 24 hours until he involuntarily urinated on himself; he attempted to use the clogged drain as instructed, but Taylor’s urine “mix[ed] with the raw sewage and r[a]n all over [his] feet.” Pet. Appl. 91, 19a (alterations in original). As a result of holding his urine in a bacteria-laden environment for an extended period, Taylor developed a distended bladder required catheterization.2

The Supreme Court’s per curiam opinion reads as follows:

[Background]

Petitioner Trent Taylor is an inmate in the custody of the Texas Department of Criminal Justice. Taylor alleges that, for six full days in September 2013, correctional officers confined him in a pair of shockingly unsanitary cells. The first cell was covered, nearly floor to ceiling, in ‘ “massive amounts” of feces’: all over the floor, the ceiling, the window, the walls, and even ‘ “packed inside the water faucet.” ’ Taylor v. Stevens, 946 F.3d 211, 218 (CA5 2019). Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. Correctional officers then moved Taylor to a second, frigidly cold cell, which was equipped with only a clogged drain in the floor to dispose of bodily wastes. Taylor held his bladder for over 24 hours, but he eventually (and involuntarily) relieved himself, causing the drain to overflow and raw sewage to spill across the floor. Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage.

[The Eighth Amendment]

The Court of Appeals for the Fifth Circuit properly held that such conditions of confinement violate the Eighth Amendment’s prohibition on cruel and unusual punishment.

[The Fifth Circuit Concluded That the Prison Officials Did Not Have Fair Warning]

But, based on its assessment that ‘[t]he law wasn’t clearly established’ that ‘prisoners couldn’t be housed in cells teeming with human waste’ ‘for only six days,’ the court concluded that the prison officials responsible for Taylor’s confinement did not have ‘ “fair warning” that their specific acts were unconstitutional.’ 946 F.3d at 222 (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)).

[The Fifth Circuit Erred in Granting Qualified Immunity]

The Fifth Circuit erred in granting the officers qualified immunity on this basis. ‘Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.’ Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct.

596, 160 L.Ed.2d 583 (2004) (per curiam). But no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time. See Hope, 536 U.S. at 741, 122 S.Ct. 2508 (explaining that ‘ “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question”’ (quoting United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997))); 536 U.S. at 745, 122 S.Ct. 2508 (holding that ‘[t]he obvious cruelty inherent’ in putting inmates in certain wantonly ‘degrading and dangerous’ situations provides officers ‘with some notice that their alleged conduct violate[s]’ the Eighth Amendment). The Fifth Circuit identified no evidence that the conditions of Taylor’s confinement were compelled by necessity or exigency. Nor does the summary-judgment record reveal any reason to suspect that the conditions of Taylor’s confinement could not have been mitigated, either in degree or duration. And although an officer-by-officer analysis will be necessary on remand, the record suggests that at least some officers involved in Taylor’s ordeal were deliberately indifferent to the conditions of his cells. See, e.g., 946 F.3d at 218 (one officer, upon placing Taylor in the first feces-covered cell, remarked to another that Taylor was ‘ “going to have a long weekend” ’); ibid., and n. 9 (another officer, upon placing Taylor in the second cell, told Taylor he hoped Taylor would ‘ “f***ing freeze” ’).

[Conclusion]

Confronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution. We therefore grant Taylor’s petition for a writ of certiorari, vacate the judgment of the Court of Appeals for the Fifth Circuit, and remand the case for further proceedings consistent with this opinion.

[Note: Justice Barrett took no part in the consideration order decision of this case. Justice Thomas dissented, without written opinion. Justice Alito concurred in the judgment, with a written opinion.]

[The Prequel to the Supreme Court’s Opinion in Taylor]

In 2014, Trent Taylor, a Texas inmate who was serving a sentence for robbery, began his journey through the federal courts. He filed, pro se, a civil rights complaint pursuant to 42 USC § 1983 in the United States District Court for the Northern District of Texas. Mr. Taylor named eleven correctional officers and/or prison officials as defendants.

In his complaint, Mr. Taylor raised – among other issues – a cell conditions issue. All of the defendants relied on the affirmative defense of qualified immunity and moved for summary judgment. In the district court’s order are the following two sentences:

The Court finds that although the conditions of Plaintiff’s confinement may have been quite uncomfortable during the days he was held in the two cells in question, the conditions did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Accordingly, Plaintiff has failed to rebut Defendants’ assertion of qualified immunity on his conditions-of-confinement claim, and their Motions for Summary Judgment should be granted.3  (emphasis added)

After the district court granted summary judgment in favor of the defendants, Mr. Taylor appealed, pro se, to the United States Court of Appeals for the Fifth Circuit. On December 20, 2019, a panel of the Circuit held in Taylor v. Stevens, inter alia, that “[1] it had jurisdiction over appeal;… and, [3] correctional officers were entitled to qualified immunity from conditions-of- confinement claim; …”

The Court’s opinion reads, in brief part, as follows:

Taylor repeatedly alleged that the defendants knew that his cells were covered in feces and urine and that he had an overflowing sewage drain in his seclusion cell.

‘The risk’ posed by Taylor’s exposure to bodily waste ‘was obvious.’   And the risk was especially obvious here, as the defendants forced Taylor to sleep naked on a urine-soaked floor. Taylor also alleged that the defendants failed to remedy the paltry conditions, so he has shown factual disputes on deliberate indifference. In sum, Taylor has met his burden at the first QI prong to show that his Eighth Amendment rights were violated. See Arenas, 922 F.3d at 620.

* * *

The second prong of QI asks ‘whether the right was clearly established at the time of the violation.’

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The ‘salient question,’ therefore, is whether the defendants had ‘fair warning’ that their specific actions were unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).

The law wasn’t clearly established. Taylor stayed in his extremely dirty cells for only six days. Though the law was clear that prisoners couldn’t be housed in cells teeming with human waste for months on end, see, e.g., McCord, 927 F.2d at 848, we hadn’t previously held that a time period so short violated the Constitution, e.g., Davis, 157 F.3d at 1005–06 (finding no violation partly because the defendant stayed in the cell for only three days). (emphasis added)

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It was therefore not ‘beyond debate’ that the defendants broke the law. al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074. They weren’t on ‘fair warning’ that their specific acts were unconstitutional. Hope, 536 U.S. at 741, 122 S.Ct. 2508.4

Lawyers to the Rescue

After going 0 for 2 as a pro se litigant, Mr. Taylor’s luck changed for the better. Samuel Weiss, of RIGHTS BEHIND BARS in Washington, D.C., read the Fifth Circuit’s opinion in Taylor and decided to come to Texas and meet with Mr. Taylor. He did so and offered to represent him pro bono to seek relief at the Supreme Court. Mr. Taylor was pleased to become his newest client and accepted Mr. Weiss’ generous offer.

When Mr. Weiss returned to Washington, D.C., he met with his board of directors that included an associate with the Orrick, Herrington and Sutcliffe firm’s Washington, D.C. office. Orrick is a global firm with some 1,100 lawyers in the United States and in at least 12 other countries. At that time, Kelsi Brown Corkran was the head of U.S. Supreme Court practice at Orrick. After a meeting with Mr. Weiss, the decision was made that Orrick lawyers would join with Mr. Weiss in the representation of Mr. Taylor. At the Supreme Court, Ms. Corkran was counsel of record – with three other Orrick lawyers and Mr. Weiss as Mr. Taylor’s appellate team.

Ms. Corkran is now a Pro Bono Senior Fellow at Georgetown University’s Law Center’s Institute for Constitutional Advocacy and Protection. In talking with her about Taylor, she mentioned that this was the first time in 16 years that the Supreme Court has denied qualified immunity to a state official in a § 1983 case. For those representing plaintiffs or defendants in § 1983 cases, it is important to know that Taylor is already being cited in the trials of these cases.

My Thoughts

  • Congratulations to Mr. Taylor’s appellate team for their successful representation of him. It is impressive to see this pooling of talent on behalf of an indigent Texas inmate.
  • Over the years, some of our larger Texas law firms have committed their substantial legal resources to the representation of indigent inmates. It would be wonderful if more of these firms would rise to the challenge. Perhaps Taylor will inspire them to do so. If they do, they should get recognition for their efforts.
  • Man’s Inhumanity to Man were the first words that came to mind as I was reading Taylor.
  • I would have at least these questions:
    • How many, if any, prison employees – in whatever capacity – were disciplined because of the abuse that Mr. Taylor suffered?
    • How many other inmates at the Montford Unit endured the same cell conditions as Taylor?
    • What, if any, remedial action has been taken by prison officials in response to Taylor’s original complaints or to the Supreme Court’s opinion?
    • What, if anything, has the Texas Department of Criminal Justice done to address the issues raised by Mr. Taylor?
  • I am surprised that Taylor has not been picked up by the print media. This is the kind of case that The Dallas Morning News and the Houston Chronicle would have jumped all over 25 or  30 years ago. The days of the investigative reporter may be over.

TCDLA Thanks You, Buck!

All previous installments in “The Federal Corner” series can be found online by logging into your TCDLA member account and visiting voiceforthedefenseonline.com.

Don’t despair–”The Federal Corner” will continue in future issues of the Voice. Our editors are busily compiling a team of authors with federal experience to contribute to this important topic.

If you have federal experience and would like to contribute, please reach out to one of our editors:

Sarah Roland:
Clay Steadman:
Jeep Darnell:
Amanda Hernandez:


Some Reflections and Some Thank Yous

Buck Files

Writing the “Federal Corner” has been both challenging and rewarding. The challenge has been to find a case for each edition of the VOICE that would be of interest to our members and to the judges who also receive a copy of the magazine. The case would have to be recent and not too long or too complex for me to fit it into the space that I was allocated.

The reward was in what I learned. For each column, I would usually review some six to twenty cases. I always found something in this research that I would never have known if I had not been writing this column.

As the turtle who was sitting on top of the fence post said, “I didn’t get here by myself.” I owe a word of thanks to:

  • Our former executive director Joseph Martinez and our current executive director Melissa They supported my efforts enthusiastically. When I turned in my 100th column, Joseph said, “Keep writing.” When I turned in my 200th column or article, Melissa said, “Keep writing.” I listened to each of them, but now it’s time to hang it up. 250 columns or articles is enough for anyone.
  • Sarah Roland, the current editor of the VOICE. It is her responsibility to turn out ten editions of the VOICE each year and she has done a magnificent job in working with others to improve the quality of the magazine. Sarah has been a pleasure to work with and I have no doubt that she will be a leader in our association for many years.
  • The other editors with whom I have worked. I have good memories of each of you and enjoyed working with you.
  • The TCDLA staff, both past and present, with whom I have worked—especially Craig Hattersley.
  • The TCDLA members who have called to mention a case to me that I later wrote about.
  • The TCDLA members who would have a kind word for me about one of my columns or articles. People who write for a publication are like radio announcers. We never know if anyone is paying attention to what we are trying to communicate.

Shout Outs

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Kudos to Jason Cassel, who helped dismiss the murder charge against his client, Deborah Smiley McFadden, for the death of her then‑boyfriend, Edward George, Jr. McFadden was accused of the murder in 2003. On Feb. 17, 2017, she was found guilty and sentenced to 40 years in prison. Cassel contended that the prosecuting attorney suppressed evidence that would have been beneficial for McFadden. Congratulations, Jason!

Kudos to Brent Mayr, who is representing a Eddy, Texas, man who is among those indicted for the January 6 storming of the U.S. Capitol. In a February 11 court filing, Mayr argued that his client “is anything but insurrectionary” and that cell phone footage proves this. It may seem a daunting case to take on, but Brent is handling it with the same ethical professionalism that he uses when assisting lawyers who call the Ethics Hotline. Best of luck, Brent, and kudos for taking the case!

Congratulations to Jason Niehaus and TCDLA’s Amicus Curiae Committee for the work and win in Watkins v. State, PD‑1015‑18 (Tex. Crim. App. 3/3/21).

Congratulations to Josh Zientek, who handled an appeal before the 9th Court of Appeals and was able to get stacked sentences removed from his client’s conviction. Excellent work, Josh!

Congratulations to Eric Torberson, who saved a dog from the death penalty. The dog in question was out for a walk with his owner and was frightened by a jogger coming up behind, and the dog pawed at the jogger but didn’t even break her skin. Paws in the air for Eric!

Congratulations to Nnamdi Ekeh, whose client was no billed on a aggravated sexual assault charge and whose charge for felony assault of breathing impediment was dismissed!

To be featured in our shout outs, email details to Melissa Schank at

March 2021 SDR – Voice for the Defense Vol. 50, No. 2

Voice for the Defense Volume 50, No. 2 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

It was a slow post-holiday month, but at least one branch of our government remained chill in January. We have more unsuccessful COVID-19 litigation in both state and federal court with the normal consolation prize of really strong language for some future situation with a perfect set of facts. Check out Weatherly v. State, below, for a case which might have PDR legs—it involves the right to redress (or lack thereof) when a court orders potentially unconstitutional sex-offender registration requirements by way of nunc pro tunc order.

TCDLA thanks the Court of Criminal Appeals for graciously administering a grant which underwrites the majority of the costs of our Significant Decisions Report. We appreciate the Court’s continued support of our efforts to keep lawyers informed of significant appellate court decisions from Texas, the United States Court of Appeals for the Fifth Circuit, and the Supreme Court of the United States. However, the decision as to which cases are reported lies exclusively with our Significant Decisions editor. Likewise, any and all editorial comments are a reflection of the editor’s view of the case, and his alone.

Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided.

This publication is intended as a resource for the membership and I welcome feedback, comments, or suggestions: (972) 369-0577.

United States Supreme Court

The United States Supreme Court did not hand down any published opinions since the last Significant Decisions Report.

Fifth Circuit

United States v. Bonilla-Romera, 984 F.3d 414 (5th Cir. 2020)

Issue. Can a trial court graft the sentencing range for second-degree murder onto the offense of first-degree murder to punish a defendant who is constitutionally ineligible for first-degree sentencing (life imprisonment or death) because he was under the age of 18 when he committed his offense?

Facts. Defendant was involved in a gang-related murder when he was 17. The government tried him as an adult and he ultimately pleaded guilty to first-degree murder under 18 U.S.C. §1111(b). Because this provision required a sentence of either death or life imprisonment but Miller v. Alabama, 567 U.S. 460, 479 (2012), and Roper v. Simmons, 543 U.S. 551 (2005) prohibit both punishments for a defendant under the age of 18 at the time of his offense, the district court severed these provisions from the statute. The district court concluded that §111(b) authorizes the punishment of such an individual for “any term of years or for life” and sentenced the defendant to 460 months. Defendant argued that the sentencing range fashioned by the trial court did not reflect a severance of unconstitutional provisions, but a merging of first- and second-degree murder sentencing ranges to invent a totally new sentencing range.

Holding. Yes. When a portion of a statute is unconstitutional “the traditional rule is that the unconstitutional provision must be severed unless the statute created in its absence is legislation that Congress would not have enacted.” Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S.Ct. 2183, 2209 (2020). There is no indication Congress would have decriminalized murder had it legislated with the benefit of the Miller and Roper decisions. Courts must use the test from United States v. Booker to craft a constitutional statute by excising the unconstitutional provisions. 543 U.S. 220 (2005). Booker requires the court to retain portions of the statute that are (1) constitutionally valid, (2) capable of functioning independently, and (3) consistent with Congress’ basic objectives in enacting the statute. Because the federal murder statute provides a sentencing scheme, and second-degree murder is a lesser-included offense of first-degree murder the outcome under Booker would be to excise the totality of the first-degree sentencing range and simply apply the second-degree sentencing range.

Comment. The prosecution and defense had agreed to a 30-year sentence which the trial court rejected. Then in defendant’s sentencing hearing the prosecution argued for a 35-year sentence. It baffles me why there are so many cases where the judge rejects a plea agreement, then in sentencing the prosecution argues for more than what they had negotiated as a fair punishment.

United States v. Thompson, 984 F.3d 431 (5th Cir. 2021)

Issue. Does the combination of hypertension, high cholesterol, and a previous stroke present the type of extraordinary circumstances meriting compassionate release (early prison release) during the COVID-19 pandemic for an inmate who has served only eight of his twenty years of imprisonment.

Facts. Defendant, an inmate at FCI Texarkana, presented a request for compassionate release on account of underlying health conditions during the COVID-19 pandemic. Defendant cited hypertension, high cholesterol, and a stroke he suffered over ten years ago as grounds making him uniquely at risk to COVID-19. Procedurally his request was first presented to the warden of the prison who recognized that Defendant presented “legitimate concerns and fears about the spread and effects of COVID” but ultimately denied the request. Defendant then presented his motion to the district court who rejected his request as well.

Holding. No. Compassionate release is governed (though not dispositively) by § 1B1.13 of the United States Sentencing Guidelines (“Guidelines”). The Guidelines provide that compassionate release should be granted only for “extraordinary and compelling” reasons. The Guidelines provide four “extraordinary and compelling reasons” for consideration (1) medical conditions, (2) age, (3) family circumstances, and (4) other. Medical conditions are limited to terminal illness or conditions where the defendant is substantially unable to provide self-care. Defendant’s conditions are managed effectively by medication, his conditions are common conditions, and there is no indication that he is at higher risk than the average inmate. Some courts have found underlying health conditions combined with the COVID-19 pandemic to justify release under “other” considerations, but courts which have granted this form of compassionate release have done so for “defendants who had already served the lion’s share of their sentences and presented multiple, severe, health concerns.”

United States v. Morton, 984 F.3d 421 (5th Cir. 2021)

Issue. Does the good faith exception to the exclusionary rule apply where an officer relied on an invalid search warrant authorizing the search of a cell phone photographic evidence of drug trafficking where that officer’s investigation and accusation led only to the conclusion that the defendant possessed personal quantities of drugs?

Facts. Defendant was stopped for speeding. After officers smelled marijuana in his vehicle, defendant consented to a search of the vehicle. Officers found 16 ecstasy pills, a small bag of marijuana, a glass pipe, children’s school supplies, a lollipop, 14 sex toys, and 100 pairs of women’s underwear. The arresting officer became concerned the defendant might be a pedophile and applied for a search warrant of defendant’s three cellphones. In his application the officer did not mention any concerns about child exploitation, instead he expressed his desire to seek more evidence of drug activity based on his many years of experience. A warrant was authorized and the arresting officer eventually found 19,270 images of sexually exploited minors. In the trial court, the defendant challenged the probable cause supporting the warrant issuance and the government argued the good faith exception to the exclusionary rule. 

Holding. No. The good faith exception allows officers to rely on a defective warrant unless the warrant “so lacked indicia of probable cause that the officers’ reliance on it was entirely unreasonable” citing United States v. Leon, 468 U.S. 897, 923 (1984)(cleaned up). The probable cause affidavit sought permission to search contacts, call logs, text messages, and photographs. Separate probable cause is required to search each of these categories. Citing Riley v. California, 573 U.S. 373 (2014). While it is logical to believe that texts, call logs, and contacts might contain information pertaining to the purchase of drugs the defendant possessed, the same cannot be said about his photographs. The officer’s assertion that co-conspirators often take pictures of their drugs and their drug proceeds was not pertinent to what the offense for which defendant was being accused. Defendant was accused of drug possession, not drug trafficking. Nor did the facts surrounding his arrest did not give rise to an assumption that he was trafficking. “Under these facts, reasonably well-trained officers would have been aware that searching digital images on [defendant’s] phone—allegedly for drug trafficking-related evidence—was unsupported by probable cause.” Thus, the good faith exception to the exclusionary rule does not apply.

Comment. Watch this space. The good faith exception to the exclusionary rule is popping up on the radar more and more.

Texas Court of Criminal Appeals

Ex parte Casey, WR-90,442-01 (Tex. Crim. App, 2021)(not designated for publication)

Issue. Can a Brady violation render a guilty plea involuntary when the matter not disclosed rebuts an affirmative representation made by the prosecutor or in the discovery?

Facts. Defendant shot at two police officers at nighttime in an alleyway. He was subsequently charged and convicted with aggravated assault on a public servant and sentenced to 25 years. The proceeding in the trial court appears to have been an open plea of guilty (a guilty plea followed by sentencing hearing). Defendant filed the instant writ of habeas corpus alleging that the prosecutor withheld a crucial fact which officers testified to at defendant’s punishment hearing: that they did not identify themselves as police officers. Trial counsel provided an affidavit indicating that the discovery provided by the State indicated that officers identified themselves repeatedly. Appellate counsel provided an affidavit that the officers’ failure to identify was not contained in the discovery. Defendant testified that he would not have pleaded guilty if he had known this favorable evidence, that evidence was improperly withheld under Brady v. Maryland, and that his plea was involuntary. The trial court found that the alleged failure to identify was either untrue or unknown to the prosecutor and that the Brady violation is based on speculation. 

Holding. Yes. At least here it did where the discovery materials affirmatively establishes that officers identified themselves and their testimony in punishment proved otherwise. The possibility of the prosecution’s ignorance of the failure to identify evidence is irrelevant to a claim of involuntary plea.

Concurrence (Keel, J.)(joined by Hervey, Richardson and Walker, JJ.). “The prosecution has an inescapable duty to disclose favorable evidence, even if it is known only to the police.” A Brady violation can render a guilty plea involuntary, particularly where a defendant is affirmatively misled about the prosecution’s case—as he was here.

Dissent (Keller, J.)(joined by Yeary, Slaughter, and McClure, J.J.) It is unsettled whether Brady applies to a guilty plea. Brady definitely does not require the disclosure of all exculpatory evidence prior to the guilty plea. Affirmative false representations by the State may render a guilty plea involuntary. Here, the exculpatory evidence was revealed during the punishment stage of trial and counsel did not complain at that time. All of these dilemmas and nuances aside, the false representation that officers repeatedly identified themselves when they did not identify at all is neither material nor prejudicial. Defendant testified in his hearing that he knew the two individuals he shot at were police officers. This fact, alone, eliminates the possibility of materiality or prejudice under a claim of involuntary plea, or even ineffective assistance of counsel (for failing to request a mistrial during sentencing).

Comment. There is clearly a split among the judges on the Court here. We may someday see a more nuanced and published opinion on this issue. Should that day come, I would hope that the fact that the prosecution successfully induced the Defendant into giving up the details of his guilt is not a basis for forgiving the wrongfulness of the inducement. A criminal defendant has a constitutional right to withhold information, stand behind the presumption of innocence, and demand the State satisfy its burden. We don’t celebrate these rights because we love guilty people going free. We celebrate them so they remain intact for the falsely accused staring down the most lopsided fight in history. 

1st District Houston

The First District Court of Appeals in Houston did not hand down any significant or published opinions since the last Significant Decisions Report.

2nd District Fort Worth

Weatherly v. State, No. 02-19-00394 (Tex. App.—Ft. Worth, Jan. 7, 2021)

Issue. (1) May a trial court, years after entering its judgment, enter a nunc pro tunc order to add an omitted sex-offender-registration requirement and a finding that the victim was under the age of 17? (2) Is the application of sex-offender-registration requirements to a person convicted of a non-sex-offense unconstitutional?

Facts. In 2015, defendant pleaded guilty to unlawful restraint and was sentenced, pursuant to an open plea of guilty (plea without punishment recommendation), to 15 years confinement. The trial court’s judgment reflected that sex-offender-registration requirements did not apply and that the age of the victim at the time of the offense was “N/A.” In 2019, the trial court entered a nunc pro tunc order (its fourth in a series dating back to 2017) amending the judgment to reflect that sex-offender registration requirements apply and that the age of the victim was “younger than 17 years of age.”

Holding. (1) Yes. “A judgment nunc pro tunc is the appropriate avenue to make a correction when the court’s records do not mirror the judgment that was actually rendered.” Such orders are limited to the correction of clerical errors, but not errors which were the result of judicial reasoning. “When the law requires the trial court to enter a particular finding in the written judgment of conviction, the trial court retains no discretion to do otherwise, and the failure of the trial judge to do so is not an error of judicial reasoning but rather an error of clerical nature.” Chapter 62 of the Texas Code of Criminal Procedure requires a judgment convicting a defendant of unlawful restraint include sex-offender-registration requirements and a child victim’s age. These are clerical acts which involve no judicial reasoning. (2) Dodged – no jurisdiction. “Just as a trial court may not correct errors that are the result of judicial reasoning via nunc pro tunc . . . we do not have authority to review the underlying conviction or other ancillary matters related to the conviction.”

Concurrence (Sudderth, C.J.). Urges the Court of Criminal Appeals to reconsider what constitutes “judicial error” and what constitutes “clerical error.” The error corrected in this case should be considered “judicial error” not subject to a nunc pro tunc. Procedural due process rights are denied by the binding standard that the majority has to follow.

Dissent (Wallach, J.). Defendant objected and then appealed when the registration requirements were imposed. Defendant may seek redress on appeal regarding the constitutionality of imposing a sex-offender-registration requirement. Because such a requirement has not rational relation to the government’s interest in heightened public awareness of and protection from sexual offenders, imposing a sex-offender-registration requirement here is unconstitutional.

Comment. To challenge the validity of an unconstitutional condition imposed in sentencing a defendant must object at the time of sentencing. This is typically the rule imposed for probation conditions, but it has also been applied to certain trial court findings, including age-of-victim. Keller v. State, 125 S.W.3d 600, 606 (Tex. App.—Houston [1st Dist], 2003). Now, you might ask “how does a defendant object when a condition is not imposed at sentencing?” It’s actually simple:

COUNSEL: I object to you making that finding.
COURT: I didn’t.
COUNSEL: Then, I appeal!
COURT: ???

I guess habeas relief still remains a potentially viable option for the defendant in this case. Ex parte Chamberlain, 352 S.W.3d 121, 122 (Tex. App.—Ft. Worth, 2011). Indeed, the defendant attempted this. But when the case was forwarded to the Court of Criminal Appeals, the State successfully argued (with their fingers crossed behind their backs, I guess) that the defendant has direct appeal remedies which he must first exhaust in the Ft. Worth Court of Appeals. This was surely fantastic news for the defendant to hear—that the State agrees he should have his day in court. But lo, the State made the opposite argument in the Ft. Worth Court of appeals. So, in the CCA, the State argued the defendant must pursue his ability to seek redress in the COA. And in the COA, the State argued the defendant cannot seek redress in the COA. Is this “see[ing] that justice is done?” See Tex. Code Crim. Proc. Art. 2.01.

3rd District Austin

The Third District Court of Appeals in Austin did not hand down any significant or published opinions since the last Significant Decisions Report.

4th District San Antonio

The Fourth District Court of Appeals in San Antonio did not hand down any significant or published opinions since the last Significant Decisions Report.

5th District Dallas

The Fifth District Court of Appeals in Dallas did not hand down any significant or published opinions since the last Significant Decisions Report.

6th District Texarkana

The Sixth District Court of Appeals in Texarkana did not hand down any significant or published opinions since the last Significant Decisions Report.

7th District Amarillo

Ex parte McManus, No. 07-20-00152-CR (Tex. App.—Amarillo, Jan. 26, 2021)

Issue. After a year of pretrial confinement for two nonviolent offenses, and amidst the COVID-19 pandemic, is defendant’s argument that he cannot afford bail and has health conditions making him an increased risk for COVID-19 a sufficient basis for reduced bail without supporting evidence?

Facts. Defendant failed to appear for his Evading Arrest jury trial. He was subsequently arrested on the new charge of Failure to Appear. Nearly a year after his arrest, defendant filed an application for writ seeking personal bond or reduction in bond to $10,000. He articulated the following bases for relief: (1) more than 1-year of custody, (2) nonviolent offenses, (3) health concerns pertaining to his pre-existing health condition and the COVID-19 pandemic, (4) lack of resources to afford his current bail. The district court set bond at $200,000 in both cases. Defendant argued on appeal that his bail is oppressive and calculated to punish him for his failure to appear.

Holding. No. “While [defendant’s] argument has the potential of being persuasive due to the unprecedented delays in trial being experienced due to the COVID-19 pandemic, [defendant] has not provided any evidence supporting his position on these points and the record before us contains none.” Texas Code of Criminal Procedure Article 17.15 provides the appropriate factors for determining the amount of bail; they include: the ability to make bail, work record, family ties, length of residency, prior criminal record, compliance with the provisions and conditions of any previous bond. Defendant did not present evidence on these factors, he presented mere argument. The record failed to establish his financial inability or his unique medical vulnerabilities which he presented as bases for reduced bail. Courts “must be innovative in dealing with the delicate balance between an accused’s right to be released on reasonable bail pending trial and the unparalleled delays courts are experience in the trial of pending offenses.” However, a court cannot be faulted for failing to invent solutions when the record is devoid of factual support.

Comment. I half agree. According to the State’s briefing, this matter was resolved in the trial court without a hearing and without consideration of evidence. In that regard, the record is insufficient to substantiate the defendant’s medical condition. However, I believe that a year of pretrial confinement, having not posted bail, is prima facia evidence that the defendant can’t make bail. I may have just made that rule up – but it seems like a pretty solid one.

8th District El Paso

The Eighth District Court of Appeals in El Paso did not hand down any significant or published opinions since the last Significant Decisions Report.

9th District Beaumont

The Ninth District Court of Appeals in Beaumont did not hand down any significant or published opinions since the last Significant Decisions Report.

10th District Waco

The Tenth District Court of Appeals in Waco did not hand down any significant or published opinions since the last Significant Decisions Report.

11th District Eastland

The Eleventh District Court of Appeals in Eastland did not hand down any significant or published opinions since the last Significant Decisions Report.

12th District Tyler

The Twelfth District Court of Appeals in Tyler did not hand down any significant or published opinions since the last Significant Decisions Report.

13th District Corpus Christi/Edinburg

The Thirteenth District Court of Appeals in Corpus Christi/Edinburg did not hand down any significant or published opinions since the last Significant Decisions Report.

14th District Houston

Bleimeyer v. State, No. 14-18-01082-CR (Tex. App.—Houston [14th Dist.], Jan. 7, 2021)

Issues. This case is an injury-to-child-by-omission arising from allegations that defendant-stepmother, together with her husband, starved her stepson to near death. The most significant issues presented include: (1) Can a stepmother who disclaims responsibility for a stepchild avoid omission-culpability when she has a history of at least fulfilling some parental responsibilities for the injured child? and (2) When a stepmother presents evidence that she merely sat idly by while her husband starved her stepchild, is she entitled to a lesser-included offense instruction on child endangerment?

Facts. Defendant was the stepmother of a starving five-year-old child. A doctor who ultimately treated the child for his injuries reported that the child was terribly malnourished and underweight (one pound shy of what W.H.O. would classify as a famine victim). The doctor described the condition as chronic starvation with the onset of liver and kidney failure and near death. In addition to the complainant, the defendant had five children of her own, and two mutual children with the complainant’s father. Defendant indicated that the complainant was “part of the family and participated in family events.” Defendant testified that her relationship with complainant was similar to a nephew, but that complainant called her “mom.” In addition to managing the household, defendant assumed the responsibility of complainant’s medical visits. Defendant’s children testified that their mom was in control of the household and that their mom and stepfather would starve the complainant as a form of discipline. On one occasion defendant prevented her longtime friend from taking the child to the hospital for his starvation. On another occasion defendant’s son got into a physical altercation with defendant’s husband about complainant’s care. This physical altercation culminated in the defendant and her husband fleeing the home with the complainant to avoid the police. Defendant, her husband, and defendant’s niece all testified that there was an explicit agreement in the relationship that defendant would care for her own children and husband would care for his own children (i.e. the complainant). Defendant also presented evidence that she never actually punished the complainant herself, that her husband and complainant only lived with her off-and-on, that her husband was abusive toward her, and that she was prohibited from doing anything with the complainant without her husband’s permission. Much of this evidence was controverted.

Holding. (1) No. “To be convicted of injury to a child by omission, a defendant need not have an in loco parentis relationship with the child—that is, the defendant need not assume all the duties of a parent.” The record reflects ample evidence that defendant assumed care over the complainant and would lead a reasonable person to assume she accepted responsibility for the child’s nourishment and wellbeing. (2) No. A lesser-included instruction is required when: (1) the lesser-included offense is included within the proof necessary to establish the charged offense, and (2) there is some (more than a scintilla) of evidence that suggests that if the defendant is guilty, she is only guilty of the lesser-included offense. The defensive evidence which painted a picture of the defendant having a more passive role did not refute the causation element of injury to a child. “The evidence does not show that appellant’s omissions merely placed the complainant in danger of injury, rather than caused injury.”

Comment. Defendant went on Dr. Phil and said she was busy with her other kids and that feeding her stepson was not her responsibility. Defendant’s biological children understandably did not have many good things to say about her—at trial or on Dr. Phil.

Root v. State, No. 14-19-00075-CR (Tex. App.—Houston [14th Dist.] Jan. 21, 2021)

Issue. This case involves the seven-day requirement for registering as a sex offender after release from prison. The statute defines compliance as a meeting occurring either within a seven-day-literal window, or a seven-day-expanded window (the earliest day the police choose to meet). Where the State specifically alleges that a defendant failed to report his new email address within seven days of release from prison, may the State rely on the seven-day-expanded definition in the statute to convict at trial?

Facts. In July 2015 defendant was released from prison and went to Houston PD to set up his sex-offender registration. Houston PD set up a meeting for November 2015. At the November meeting defendant completed a “registration update form” where he verified “Email: None.” Three months later, defendant admitted to an investigator that he had the email address . It was shown that this address was created on August 10, 2015 (one month after release, three months prior to his registration meeting). The State charged the defendant with failure to register—by failing to provide his email address within seven days of release from a penal institution. Defendant argued the State’s theory was impossible because he did not create the email address until the 13th day after his release. The State argued that the indictment language was unimportant and that the statutory seven-day requirement is broader than a literal seven-day period. Under the statute, the seven-day requirement also means a date that is on “the first date the local law enforcement authority . . . allows the person to register . . . “ The State’s argument followed: because defendant’s seven-day window was expanded to a date after the creation of the email, the law required the defendant to disclose it at his meeting.

Holding. No. Sufficiency of evidence is evaluated against a hypothetically correct jury charge. An unproven allegation is to be included in the hypothetically correct jury charge when the variance between the allegation and proof is material. The Court of Criminal Appeals has identified three categories of variance:

(1) a statutory allegation that defines the offense, which is either not subject to a materiality analysis, or, if it is, is always material; the hypothetically correct jury charge always will include the statutory allegations in the indictment;

(2) a non-statutory allegation that is descriptive of an element of the offense that helps define the allowable unit of prosecution, which is sometimes material; the hypothetically correct jury charge sometimes will include the non-statutory allegations in the indictment and sometimes will not;

(3) a non-statutory allegation that has nothing to do with the allowable unit of prosecution, which is never material; the hypothetically correct jury charge will never include the non-statutory allegations in the indictment.

The variance here, the seven-day-literal window the State pleaded and the seven-day-expanded window the State proved, is a variance of the first category. The State’s indictment provided a definition for the offense. The State did not prove the offense as they defined it. This variance is material, the hypothetically correct jury charge incorporates only the definition from the indictment, and the evidence is therefore insufficient. Defendant could not have reported the existence of within seven days of his release from prison, because it did not yet exist on that date. 

Comment. A quick TDCJ offender lookup shows the defendant was born in 1969.

Be Sure to Pencil Yourself In

My first jury trial as a defense attorney was in January of 2010. I remember feeling tired and nervous walking into it and figured it was all just par for the course. But by the time we had picked the jury and broke for lunch, I found myself limping. I looked down at my ankle and discovered that it was swollen up like the size of a softball. How odd, I thought. Paranoia was slipping in because I had not twisted it or done anything to cause that type of injury.

I ate my sandwich and went back for opening statement. But I was hobbling badly and now in a good bit of pain, so on the next break I went and looked at my legs again. All the blood vessels in both legs had broken, and from ankles to knees I was covered completely in little blood blisters. To say I was freaked out would have been an understatement.

But I hobbled back into the courtroom and tried the rest of the case. By the time the trial had ended, I felt completely sick and whipped – not to mention scared out of my mind, considering I had absolutely no idea what on Earth was going on with me. So, I drove myself straight from the courthouse to the emergency room.

The emergency room proved a worthless experience, and they sent me home with little more than a suggestion that I see a dermatologist. I continued to get progressively worse and wound up seeing five specialists over the course of three weeks before being diagnosed with an extreme auto-immune reaction to a virus. A virus that either my body would clear in time or that had the power to take me out completely.

During those weeks and the weeks that followed, I became completely bedridden. I couldn’t really walk or use my hands or do much of anything at all. Except pray and meditate. Every day I would slink down to the floor and rest my back against my bed. I would bargain with God as I understood Him.

I prayed that if God would restore my health, I would change my ways. I wouldn’t be so hard on myself. I wouldn’t risk it all as I had for a single case. I would work to make the world a better place. And I would start with myself.

Eventually, I began to improve and within a few more weeks was back at work. When I went back before the judge I’d tried that case in front of he asked where I had been. Funny thing, I told him. I drove myself to the emergency room right after the verdict in our trial and had been sick in bed ever since. The Judge looked at me in horror.

“WHAT?!” the Judge exclaimed. “Why didn’t you say something if you got sick during trial? We would have stopped so that you could have taken care of yourself.”

Now I was the one who was shocked. That thought literally hadn’t even entered my mind. As a young attorney, it hadn’t even entered my brain that the wheels of justice could be halted on behalf of little old me.

I’d come up through the ranks with the attitude that you have to “be the job” and that being the job meant that the case and client come first always and no matter what. Even to my own demise.

I learned a valuable lesson that day that I’ve held dear ever since. We can’t give from an empty cup. If we don’t take care of ourselves, eventually we won’t be able to take care of our cases or clients either.

We must establish boundaries and protocol so that we don’t burn out or fade away. Our legal practices are only as sustainable as our life practices.

What that looks like has continued to evolve for me over the decade since that trial. But for starters, I no longer leap out of bed and head to Westlaw in the middle of the night when a thought pops in my brain about a research wormhole that I hadn’t gone down yet. Instead, I get a piece of paper, jot down the idea to save for later, and go back to sleep.

I no longer work for weeks on end without a day off. Now every week contains at least one day for me to remain completely work free. Even God took the seventh day off, I rationalized. And the Jewish faith observes a weekly Shabbat or Sabbath.

My mental, emotional, physical, and spiritual health now deserve space on the calendar alongside the bills and dishes and clients and cases. Sometimes that looks like carving out an hour or two of my day for formal self-care activities. But other times it looks like stopping what I’m doing, if only for a brief moment, just to ground and collect myself. You, too, can do that if you so choose.

On several occasions, I’ve been blessed to speak with rooms full of attorneys on this very subject. One of my favorite things to do is to ask them to raise their hands if they feel as though they’re free to care for themselves throughout their workday. Very few hands go up.

“Really,” I ask. So, you aren’t able to head to the restroom if need be to use the facilities? Giggles. Of course, we can go to the bathroom. Ok, so put your hands up if you have the time to take a break when you need to during your workday.

Now, most everybody’s hands go up. Why then do you deprive yourself the opportunity to stop and take a few deep breaths when you need to periodically throughout the day? Of course, you can do it! You just need to make sure to pencil yourself into your own day.

Home-Rule City Ordinances vs. Texas Penal Code

Texas has a unique form of local government known as home-rule that allows for broad powers of self government within that home-rule city.  The Texas Constitution was amended in 1912 to grant cities with over 5,000 citizens the power to self-govern. See 22 David B. Brooks, Texas Practice: Municipal Law & Practice § 1.17; Tex. Const. art. XI, § 5.  These cities are referred to as home-rule cities.  State v. DeLoach, 458 S.W.3d 696, 698 (Tex. App. – San Antonio 2015, pet. ref’d.)  Prior to the adoption of this constitutional amendment, a city had to specifically seek the authority to act from the legislature or the city would be powerless to act.  Ex parte Heidleberg, 51 Tex. Crim. 581, 103 S.W.395 ( 1907).  But, as the Texas Court of Criminal Appeals noted in a case decided not long after the constitutional amendment, this approach was ineffectual.   Le Gois v. State, 80 Tex. Crim. 356, 360; 190 S.W. 724 (1916).  The legislature only meets once every two years and “as new evils arose to require the different cities and towns to rush to it and ask and secure a grant of authority and power to suppress the evil,” seeking and gaining permission to act was unduly slow and burdensome.  Id.  Accordingly, the constitutional amendment granted and conferred on the cities all the power that is not prohibited by the Constitution and the general laws of the state.  Id. at 726. 

The home rule doctrine applies in all cities that have a population of over 5,000 in which its citizens have adopted a home-rule charter.  This translates to more than 352 cities in Texas with home-rule authority (https://ballotpedia.org/Cities_in_Texas).  Thus, it can be helpful to look at some of the ordinances passed within your city to determine whether a currently charged offense could or should have been charged only as a Class C misdemeanor under the home-rule doctrine.

One example of this came up recently in one of our cases in San Antonio.  Our client was charged under the penal code provision for discharging a firearm inside the corporate limits of a municipality having a population of 100,000 or more, namely the municipality of San Antonio.  Interestingly, Texas Penal Code § 42.12(d) states that “[s]ubsection (a) does not affect the authority of a municipality to enact an ordinance which prohibits the discharge of a firearm.” 

This caused us to search the San Antonio city ordinances and find that our municipality had indeed enacted an ordinance prohibiting the discharge of a firearm.1  The elements of both provisions, Texas Penal Code 42.12 and the San Antonio City Ordinance are the same.  That is:  it is an offense to recklessly discharge a firearm inside the corporate city limits of a municipality having a population of 100,000 or more.  “[I]t is a fundamental tenet of criminal jurisprudence that, when courts must choose between two reasonable readings of a statute to determine what conduct the legislature intended to punish, courts apply the policy of lenity and adopt the less harsh meaning.”  Cuellar v. State, 70 S.W.3d 815, 821-22(Tex. Crim. App. 2002), concurrence Cochran, J.  The rule of lenity is a doctrine dating back to at least 1886 requiring that if any doubt exists on the statute to proceed under, the doubt must be resolved in favor of the accused.  Id.

As a home-rule city, San Antonio derives its powers from the Texas Constitution, not from the legislature. State v. DeLoach, 458 S.W.3d at 698.  A home-rule city has all the powers of the State as long as the powers are not inconsistent with the Texas Constitution, the general laws, or the city’s charter. Id. Further, a home-rule municipality has the power to enforce ordinances “necessary to protect health, life and property and to preserve good government, order and security of the municipality and its inhabitants.” Tex. Loc. Gov’t. Code Ann. § 54.044 (West 2018).   As such, home-rule city ordinances are given a presumption of validity. State v. DeLoach, 458 S.W.3d at 698.

“The mere fact that the legislature has enacted a law addressing a subject does not mean that the subject matter is completely preempted.”  City of Richardson v. Responsible Dog Owners of Tex., 794 S.W. 2d 17, 19 (Tex. 1990). For example, the Fourth Court of Appeals held that a home-rule city ordinance requiring licensing for operators of taxicabs was not preempted by state laws governing issuance and revocation of licenses.  Ex parte Heine, 158 Tex. Crim. 248, 250; 254 S.W.2d 790 (1952).  Likewise, the El Paso Court of Appeals found that although general state laws regulate the operation of bicycles and motorcycles, the home-rule city ordinance requiring a cyclist to wear a helmet was not preempted.  State v. Portillo, 314 S.W.3d 210, 216 (Tex. App. – El Paso 2010, no pet.).

Far from expressing an intent to limit San Antonio’s, or any other city’s, right to pass ordinances regarding discharging firearms, the legislature manifestly allowed for such local governance.  Texas Penal Code § 42.12 (d).

Because San Antonio is a home-rule city, it has broad powers to enact laws, unless the legislature clearly expresses an intent to limit that regulatory power. City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007).  “Such limits exist only when a statute speaks with ‘unmistakable clarity.'” Id

In re Sanchez, 81 S.W.3d 794 (Tex. 2002), required the Texas Supreme Court to determine whether a home-rule city provision for election filing deadlines was preempted by the Texas Election Code.  Id. at 796.  The Election Code provision, §143.007(a), specifically acknowledged other code sections may provide exceptions to the state law deadline.  The Supreme Court thus found that no intent to preempt was clearly manifested by the legislature.  Id. at 797.  Indeed, the Texas Supreme Court found that the Election Code expressly allows home-rule cities to establish their own requirements in municipal elections.  Id.  Having so concluded, the Court found the city’s provision regarding election deadlines is the provision that must be applied.  Id. at 798.

We filed a motion to set aside the information (attached to this article) and the trial court granted our motion. Our motion to set aside contained the home-rule city argument as well as an in pari materia argument.  The State appealed the trial court’s decision.  The lower court ruled against us, but only addressed the in pari materia argument.  State v. Musa-Valle, 2018 WL 3264831 (Tex. App. – San Antonio 2018).  Initially, the Court of Criminal Appeals granted petition for discretionary review, but then found the petition was  improvidently granted. State v. Musa-Valle,  2019 WL 2518103 (Tex. Crim. App. 2019).  Therefore, this is still an open issue before the courts.


NO. ___________________

STATE OF TEXAS IN THE COUNTY COURT AT LAW

VS. NUMBER ____

BEXAR COUNTY, TEXAS

DEFENDANT’S MOTION TO SET ASIDE THE INFORMATION

TO THE HONORABLE JUDGE OF SAID COURT:

Now comes, Defendant, in the above-styled and numbered cause, and, prior to announcing ready, moves that the information filed in this case be set aside by virtue of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, Article I §§ 10 and 19 of the Texas Constitution, and Articles 1.05, 21.01, 21.02, 21.03, 21.04, and 21.11 of the Texas Code of Criminal Procedure for the following reasons:

I.

Defendant is currently charged with discharging a firearm in a municipality over 100,000 pursuant to Texas Penal Code 42.12.  The information in this case should be set aside as the conduct described within should be punishable as a Class C misdemeanor pursuant to a San Antonio Municipal Ordinance.   San Antonio Municipal Ordinance § 21-152 and Texas Penal Code § 42.12 both attempt to criminalize and punish for the offense of discharging a firearm in certain municipalities in Texas. Each of these provisions are attached to this motion.  § 42.12 of the Penal Code classifies the offense as a Class A misdemeanor, while § 21-152 classifies it is a Class C misdemeanor.  The elements of both provisions are the same.  That is: it is an offense to recklessly discharge a firearm inside the corporate city limits of a municipality having a population of 100,000 or more (§42.12) and it is unlawful to discharge a firearm within the city limits of the City of San Antonio (§ 21-152).  “[I]t is a fundamental tenet of criminal jurisprudence that, when courts must choose between two reasonable readings of a statute to determine what conduct the legislature intended to punish, courts apply the policy of lenity and adopt the less harsh meaning.”  Cuellar v. State, 70 S.W.3d 815, 821-22(Tex. Crim. App. 2002), concurrence Cochran, J.  The rule of lenity is a doctrine dating back to at least 1886 requiring that if any doubt exists on the statute to proceed under, the doubt must be resolved in favor of the accused.  Id.

II.

Moreover, in 1912, Texas adopted a constitutional amendment providing for home rule in cities with populations over 5,000. Tex. Const. art. XI § 5.  Home rule cities therefore derive their powers not from the legislature, but from the Texas Constitution. See interpretive commentary, Tex. Const. art. XI § 5.  San Antonio is a home rule city.  Tex. River Barges v. City of San Antonio, 21 S.W.3d 347, 352 (Tex. App. – San Antonio 2000, pet. denied).  Thus, San Antonio has broad powers of self government – provided that any ordinance enacted does not conflict with the state constitution or laws enacted by the state.  Tex. Const. art XI, § 5.  This ordinance, §21-152,  is not prohibited by the legislature.  In fact, the legislature made clear in § 42.12 of the Texas Penal Code that municipalities are allowed to proscribe this conduct by city ordinances. 

“Subsection (a) does not affect the authority of a municipality to enact an ordinance which prohibits the discharge of a firearm.” 

Tex. Penal Code § 42.12 (d).  To insist on prosecution under §42.12, would be an unconstitutional restriction on San Antonio’s autonomy.

This case should be filed in municipal court because San Antonio is a home rule city and therefore San Antonio Ordinance § 21-152 is the controlling provision.   Art. 4.14 of the Texas Code of Criminal Procedure states that a municipal court shall have exclusive original jurisdiction in all criminal cases that arise under the ordinances of the municipality. Tex. Code Crim. Pro. art. 4.14 (emphasis added).

The appropriate remedy is for this Court to set aside the information, and rule that, pursuant to the rule of lenity and the autonomy of home rule cities, the proper venue for this alleged offense is in municipal court as a Class C Misdemeanor, not a Class A Misdemeanor.

WHEREFORE, premises considered, the Defendant prays that the Court set aside the Information in the above-numbered and entitled cause.

Respectfully submitted:

CERTIFICATE OF SERVICE

I hereby certify that a copy of Defendant’s Motion To Set Aside The Information has been delivered to the District Attorney’s Office,                  County, on this the            day of                   ,2020 .

Get What You Need for the Indigent Non-Citizen Client With an ICE Hold During COVID-19

I. Introduction

When you speak Spanish and have an indigent defense practice, it will consist of many Spanish speaking non-citizen clients who have immigration holds due to entering the US without inspection, i.e., no documentation. Much to the chagrin of many, these clients will be in removal proceedings after the criminal case is completed. Many of these clients have no funds to retain an Immigration lawyer.  In Austin, Travis County lawyers vetted to accept appointed cases are managed by a Managed Assigned Counsel group. Fortunately, the group provides an Immigration attorney to help us meet our obligations to the client as mandated by the Supreme Court case of Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010). The holding in Padilla essentially states that a lawyer who has a non-citizen client charged with a criminal offense has a constitutional obligation to inform the client whether a guilty plea will result in deportation for the client.

However, the goal is not only to properly advise the client regarding deportation, but to craft a plea bargain that will give the client the best chance of: (1) being released on an immigration bond while removal proceedings are pending; (2) of remaining in the US; and/or (3) preserving the eligibility to apply for (a) Lawful Permanent Resident(LPR) status, commonly referred to as a ‘Green Card’ or (b) eligibility for US citizenship in the future.

II. Immigration Consultation

The Immigration consultation is key to the strategy for attaining an acceptable disposition on the criminal case. One of the first things to do with a non-citizen client is to make a referral to the Immigration lawyer, hereinafter referred to as ‘IL’. The next step is to prepare the client for the consultation. 

The IL will need to know the following from your client: criminal history; date of entry into the US; immigration status, i.e., (a) LPR, (b) Refugee1 or (c) granted  Asylum2; entered with a visa or entered without documentation; any immigration action including the date of action, i.e., (a) removed from US, (b) actual deportation, or (c) denial of admission into US; previous settings in immigration court; previously filed for immigration relief; any contact with an immigration officer; the immigration status of all family members including spouse, partner, children and their ages, the client’s parents, siblings and even grandparents; if client enrolled in High School, has a High School diploma, or a GED; has the client been a victim of crime that was report to law enforcement; and has the client been a victim of domestic violence or trafficking.

The IL will work up the case and prepare a legal memo. The memo will contain what forms of relief, if any, the client has from removal proceedings from the US and recommendations for the type of plea bargains that will support the client’s goals of bond eligibility and of remaining in the US or preserve eligibility for future LPR status or citizenship. This is where the work on the criminal case really begins.

III. Putting the Immigration Advice and Criminal Case Into Perspective

After all the necessary investigation, and of course, the discovery process, plea bargaining can begin with the option of setting the case on the jury docket…because of COVID-19 most of us have not had the benefit of a jury docket.  In my experience, my non-citizen clients tend to be reluctant to participate in any criminal trial proceeding out of fear of ICE agents appearing to remove and detain them in immigration custody. Regardless of the reason for not going to trial – COVID-19 or client fear – the fact remains that you as the criminal defense lawyer have the task of handling your client’s criminal cases in a manner that meets your client’s immigration goals.

Here is an example of an actual case with a non-citizen client where we got what we needed without the specter of a jury trial. Mr. Garcia (not actual name) was charged with a DWI 1st (.12 blood test) and Evading Arrest on Foot.

The client was prepped for the immigration consultation. The consultation revealed that he had entered the US without inspection in 2008, was detained by ICE after his arrest for two Robbery cases that were dismissed, was placed in Removal Proceedings3, and was granted Voluntary Departure4, meaning that he was allowed to leave the US without an Order of Deportation. However, he re-entered the US in 2011 without inspection. He was arrested for the DWI and Evading Detention on Foot in 2020.  An ICE hold was thereafter lodged against him. This client is not eligible for relief in the form of Cancellation of Removal for Non-LRP’s5 as he has no qualifying relatives such as an LRP or US citizen spouse, child, or parent. Cancellation of Removal would have allowed the client to apply to the immigration judge to adjust his status from deportable to one lawfully admitted for Permanent Residence. Assuming he has a credible fear of returning to his home country, his only remedies are to apply for Asylum, Withholding of Removal6, and Relief under the Convention Against Torture (CAT)7. It was further revealed that the client’s criminal history only consisted of a Juvenile Deferred Prosecution for Evading Arrest and the two dismissed robbery cases mentioned above.

Per the IL, a conviction for the DWI 1st charge under TPC §49.04 will not make the client ineligible for any relief for which he is otherwise eligible at this time. However, a single DWI conviction will reflect negatively on his request for bond from ICE custody. Many immigration Judges consider a DWI conviction as evidence that the client is a danger to public safety. If the Judge is so inclined, they can deny bond or set an exorbitantly high bond.

Per the IL, a conviction for the Evading Detention on Foot under TPC §38.04(a) is not considered to be a Crime Involving Moral Turpitude. This offense would place Mr. Garcia under discretionary detention. Therefore, he could be released from custody on bond if he is not a flight or security risk. Nonetheless, a conviction for the Evading on Foot may also cause the request for bond to be denied as he may be considered a flight risk.

IV. Immigration Lawyer Recommendations

The IL’s recommendation for resolution of the DWI case under TPC §49.04 is to negotiate the case to a non-DWI disposition in which the DWI is dismissed and  the client pleads to TPC 1§42.03(a) Obstructing Highway or Passageway. Although a conviction for a single DWI 1st offense will not prevent the client from seeking Asylum, Withholding of Removal, and relief under the Convention Against Torture at this time, it could in the future. The Department of Homeland Security and the Department of Justice have issued a ‘Notice of Proposed Rulemaking’ which would make an individual ineligible for Asylum if convicted of operating a motor vehicle while intoxicated. In addition, a non-DWI disposition will improve the client’s chances of being granted bond by the immigration Court. Immigration Judges view individuals with DWI convictions as a danger to the community.

The IL’s recommendation for the Evading on Foot is to try to negotiate a dismissal. A conviction for Evading can negatively affect the client’s chances for bond. The immigration Court may consider an individual with such a conviction to be a flight risk.

V. Working the Criminal Case

Now the criminal defense lawyer has been tasked to negotiate the DWI to the reduced charge of Obstructing a Highway or Passageway and a dismissal for the Evading on Foot charge. No problem, right?

My strategy is to work the case up as though preparing for a Jury Trial. Comb through all the discovery. In these cases, there were 15,188,376 KB of discovery in the Discovery Portal, including 14 Body Cams, 1 DMAV (in-patrol car video) and the Blood Draw video. Locate and interview the lone witness. Investigate the scene of the alleged crimes, etc., etc. After this, I email the prosecutor in charge to give a heads-up regarding what I am seeking and why. I write a detailed fact-based memo explaining the vast weaknesses in the State’s cases. As we know there are usually many. Be specific and direct in pointing out the deficiencies in the State’s case if you believe doing so will help accomplish the desired plea bargain. It is helpful to include video references and times in the memo to support your position. Remember, too, in a case like Mr. Garcia’s with so much discovery, it is unlikely that the prosecutors will have reviewed it all thoroughly before receiving your memo and request. This gives the defense lawyer the advantage.

VI. Plea Bargaining

  1. Begins with what the harsh Immigration consequences are for Mr. Garcia. I explain what my tasks and obligations are to the client. I will elaborate on how I can accomplish them with their cooperation.
  2. Always obtain and tender to the prosecutor a letter from the IL explaining the immigration consequences and recommendations. I use this letter to bolster the arguments for the disposition that is needed.
  3. Numerous offers will be made that don’t quite meet my objectives, i.e., dismiss the Evading with a plea to the DWI, plead to Evading and Reduce the DWI, etc. Don’t despair and carry on.
  4. On occasion I will have to involve the upper chain of command. As in these cases, when the trial Court chief told me that the DWI case was not a reduction worthy case and we were at an impasse. I will remind the State that we cannot set the cases for Jury Trial because of COVID19.
  5. In the end, we prevailed. Mr. Garcia was elated with the result: Obstructing Highway or Passageway was filed to which Mr. Garcia plead to back time and the DWI and the Evading on Foot were dismissed.

 

What is Computer Vision and How Does Law Enforcement Use It?

What Is Computer Vision And How Does Law Enforcement Use It?

Computer vision is the art of training computers to understand visual data like photographs and videos. Computer vision is part of familiar technologies, such as UPC bar code readers, and exotic technologies, like self-driving cars. Government agencies and law enforcement are adapting computer vision technologies for their purposes. Automated license plate readers, social media dragnets, and mass surveillance operations all use computer vision. Integrating information from computer vision with private and government databases allows an unprecedented level of surveillance. Although there are other forms of computer vision used by law enforcement for forensic purposes, such as AFIS or NIBIN, this article focuses on the use of deep-learning computer vision software to detect and identify people or objects in videos or images.

How do computers recognize images and video?1

Computers require software to perform any useful task. Traditionally, developers explicitly programmed software to interpret input, meaning programmers had to understand the important relationships within the data. Machine learning is an incredibly powerful set of artificial intelligence tools that help computers uncover relationships in data without explicit instructions. A real estate software developer knows that a house’s sale price relates to the house’s zip code, square footage, schools, and the year of the home’s construction, but might be unsure exactly how to predict a house’s value. Machine learning can determine the relationship between the relevant factors and predict a house’s value, using only historical sales data.

Machine Learning and Deep Learning

Machine learning requires a person to identify the important factors (features) needed to understand the relationships in a set of data. For example, if a medical software developer wanted to understand which patients were at the greatest risk of a heart attack, the developer might need an understanding of what factors (features) might increase the risk of a heart attack. Deep learning is a refinement of machine learning that allows the computer to not only understand relationships between the important factors (features) but also to determine what factors (features) are important to the relationship. A person might understand that a stop sign is a red octagon with a white border and white lettering that says “STOP”, but computers do not understand language or images like a human being. A deep learning system can train itself using many different pre-categorized images, creating a method to recognize a stop sign after comparing the images that contain stop signs to images that do not contain stop signs. The deep learning system continues to improve its ability to detect stop signs without any human input by repeating the training process.

Figure 1: How the terms Artificial Intelligence, Machine Learning, Deep Learning, Neural Network, and Convolutional Neural Network relate.

How Information Flows Through a Neural Network

To design software capable of unassisted learning, researchers used nerve cells (neurons) as an inspiration. A neural network is an interconnected network of individual units called neurons or perceptrons (See Figure 2).  Neurons receive input, produce output, and can communicate with other neurons. Neurons are organized into distinct layers. Each input, whether it comes from the outside world or another neuron, can have its own weight. A neuron does not treat all inputs equally and may ignore some inputs entirely. The output of each neuron is decided by an activation function. Typically, the input connects with the first layer of neurons, the first layer of neurons sends output to the second layer of neurons, and data typically flows from layer to layer in the same direction through the network, until the last layer of neurons provides the final output.

Figure 2: A single neuron/perceptron.

Figure 3: A simple neural network.

This process works something like a Presidential election. Each voter hears the same news (the input) but gives the news a different weight. Each voter adds up pros and cons (activation function), deciding how to vote. Voters are pooled by State (this layer’s input), the votes are weighted equally, and each State’s Electoral College allots its electoral votes according to the State’s popular vote (its activation function). Electoral votes (this layer’s input) are weighted by the number of congressional delegates in the State, and the President is selected by the total number of Electoral College votes (another activation function). Just as it is impossible to predict the exact outcome of an election from the news or even the popular vote, a neural network’s behavior depends on the variety of weights and what then happens at each layer.

How Neural Networks Learn

Neural networks are greedy: they require massive amounts of pre-classified training data, for instance, pictures known to contain stop signs and known not to contain stop signs. It is possible to determine how well a neural network correctly interprets the data for a set of weights by calculating the error, but often many images are misclassified. To reduce the amount of error, the software will adjust each weight (using an optimization algorithm). One common method used to optimize the weights is called backpropagation. Backpropagation is like a “hot and cold game.”  The neural network moves towards what it calculates to be the “hot” direction (minimum error), while avoiding the “cold” direction, changing its direction when it receives feedback like “you are getting colder!” The process will usually stop when enough cycles occur or when the repeated cycles lead to only tiny differences in error.

Convolutional Neural Networks and Computer Vision

Neural networks are powerful but can grow unwieldy and unworkable when there are too many neurons and connections involved. As there are often tens of thousands or millions of pixels in a single image or frame of video, traditional neural networks do not perform well in most computer vision tasks. Convolutional neural networks transform (convolve) image data into smaller, more workable chunks and retain the spatial relationships in the picture. The software sweeps through the image or video (using a sliding window) and transforms the image (using a filter/kernel) into a form suited to a particular task. There may be several layers of transformations, and at the end of the transformation process, the data may be fed into a traditional neural network. A convolutional neural network will go through the same deep learning and training process as a traditional neural network, teaching itself how to better perform its task.

The process is akin to how a person might solve a difficult “spot the differences” puzzle. The person moves methodically through the image, comparing small segment to small segment, eventually sweeping through the picture. The person marks the differences with stars on a piece of transparent film. To a second person looking at the film and seeing only the stars, the marks may not make sense. To the person who solved the puzzle, the marks contain all the important information about the solution to the puzzle.

Figure 4: The architecture of one type of convolutional neural network.

If a computer vision system can “recognize” an image, the system can then process the image to compare the image against other relevant images or data. A license plate reader can detect and identify letters and numbers on a license plate. For example, a facial recognition system may locate a person’s pupils and measure standardized points of interest from those pupils (nodal points), correcting for the picture’s orientation. By reducing an image of a license plate into letters and numbers or a face into simple measurements, it becomes possible to search databases and share information across many different information systems quickly and efficiently.

Figure 5: Segmenting a license plate into different letters and numbers.

Figure 6: Using nodal points for facial recognition.

Limitations of Computer Vision

A major limitation of computer vision and other types of deep learning is that the “reasoning” the computer uses is opaque, meaning that the data between input and output is unreadable, even by an expert. Convolutional neural networks are fundamentally different than human vision, and computer vision will fail to recognize images that are unambiguous to a human. For example, putting a small sticker on a stop sign may cause a convolutional neural network to interpret an image incorrectly.2 It may be impossible to predict what sort of conditions will cause the computer vision system to fail.3 The term used to describe the potential failure to cope with scenarios outside the training data is brittleness. Artificial intelligence is shallow, meaning it does not have a robust understanding of what it means to be a stop sign. Whereas a human being might understand that leaves, stickers, paint, or damage may obscure parts of a stop sign, a computer only “understands” what it has been trained to “know.”

Using unsuitable training data may negatively influence computer vision even during normal conditions. If a facial recognition database does not contain enough training data from different types of people, the system may perform poorly on underrepresented groups. The system might not contain enough nighttime photos or photos from different angles and may perform poorly when fed data from untested video cameras. The training data may contain too few images to perform reliable face recognition. The term used to describe this weakness in training data is bias.

Total Surveillance

Agencies link facial recognition and vehicle license plate identification tools to public and private databases and large-scale surveillance networks, enabling mass surveillance. Computer vision applications include virtual “gateways,” monitoring who enters and leaves an area, conducting facial recognition searches against drivers’ license databases to identify people on bodycam video, and using computer-vision-aided surveillance cameras to monitor protests.4 Subject matter experts predict that in the near future, computer-vision-monitored surveillance will be ubiquitous.5

Computer Vision and the Fourth Amendment

Agencies defend mass surveillance as equivalent to traditional surveillance and only capturing public information. However, traditional surveillance is limited in both scope and duration – no agency has the resources to track each citizen every day. Unlike traditional surveillance, computer vision surveillance programs allow agencies to simultaneously monitor all traffic through a city, simultaneously tracking every person’s movement from sensor to sensor.

The Fourth Amendment imposes limitations on the use of electronic surveillance to track movement through public spaces. First, the Fourth Amendment prohibits “permeating” police surveillance6, though it is unclear how that term applies to modern technologies. Second, Fourth Amendment affords some measure of protection to what a person seeks to preserve as private, even in an area accessible to the public.7 Third, the Supreme Court has rejected lengthy, warrantless location tracking schemes (through GPS and historical cell site data) in both Jones8 and Carpenter9. The legality of law enforcement computer vision tools may depend on the scope of the surveillance, the data integration capabilities of the tool, how much historical data is retained, whether law enforcement obtains a warrant, and public sentiment regarding mass surveillance. There is not much caselaw in this particular area, and the Fourth Amendment might be a viable attack on mass surveillance, even when supported by a warrant.

Computer Vision and Equal Protection

Equal protection provides limited protection against actions that discriminate against protected classes. Computer vision systems that are poorly trained – for example, using mostly Caucasian faces or mugshots to train data – may lead to differences in how the software performs with different protected classes.10 Abroad, computer vision systems have been used to target and harm minorities.11 When combined with other information systems with systemic differences between protected classes, computer vision systems may inherit those underlying biases.12

Unfortunately, equal protection standards are unfavorable to litigants. A facially neutral state action only violates equal protection rights when the action has a racially discriminatory purpose.13 It is insufficient to demonstrate disparate impact. Issues relating to choosing poor training data is unlikely to satisfy this demanding legal standard. However, if the purpose of a computer vision surveillance system is to keep out protected classes that law enforcement deems “undesirable,” it may be possible to show an equal protection violation.

Computer Vision and the First Amendment

Law enforcement often infiltrates, surveils, and disrupts disfavored groups and protestors.14 Agencies have coupled traditional surveillance with computer vision tools, such as Clearview AI, to arrest protestors15 and it is suspected that agencies use facial recognition to conduct surveillance of protestors.16 The use of computer-vision-aided surveillance techniques provides law enforcement the ability to track and identify protestors in real-time and to associate images with social media accounts and driver’s license photos. Through purpose or effect, powerful surveillance systems may chill free speech and assembly, violating the First Amendment. There is not much caselaw in this particular area, and particularly where mass surveillance is used to intimidate or discourage public protest, it is worthwhile to challenge the constitutionality of mass surveillance.

Some suggestions for your cases

1. Routinely request whether undisclosed video surveillance, including facial recognition and automated license plate readers, were used during the investigation and request any associated warrants.

Do not assume the State will be forthcoming about the use of mass surveillance. In major cases, cases involving special taskforces, and cases where there are major gaps in the offense report, investigators likely used some undisclosed means to find your client. 

2. Obtain the resume/curriculum vitae for the State’s proposed expert and determine whether the proposed experts satisfy Rule 702 and/or the Confrontation Clause.

If your “expert” is an officer, it is unlikely that the officer understands computer vision. Cross-examination may focus on the limitations of deep learning, and a law enforcement agent is not likely to understand how the software actually works.

3. Obtain expert assistance when computer vision is important to the case. You may need an expert on computer vision and/or the ethical issues and limitations of computer vision.

An expert can analyze the computer vision technology used in the case and can serve as a stark comparison to an underqualified officer.

4. Request any data used to train or evaluate computer vision software. Request a breakdown and summary of the variables accounted for in the training and evaluation data. Request any validation studies used to support the use of the software on casework. 

The training and validation process establishes the limits of computer vision’s expected performance and is an area where poor design can have a massive negative impact.

5. Request the source code for the computer vision system so your expert can review the code.

An expert can determine whether there are obvious flaws in the software used in this case. In some cases, the prosecution will dismiss a case rather than disclose the capabilities of advanced surveillance technology.

6. Request any peer-reviewed studies documenting the methodology used in the computer vision software.

The proponent of computer vision software output must demonstrate that the software applies a reliable methodology. The designated “expert” may not understand, be willing to disclose, or may have no unbiased validation data, leading to grounds for a 702 challenge.

7. Request the data the investigators collected on your client and information about the data systems integrated with the computer vision system.

In addition to having your expert review the data for correctness, the data may contain evidence that the surveillance program collects an intrusive, unconstitutional amount of data.

8. Do not reinvent the wheel.

Request help from civil liberties organizations like the Electronic Freedom Frontier (eff.org) or the American Civil Liberties Union. These organizations collect information about law enforcement technologies and can help you understand and litigate against the use of these technologies.

9. Attack the weaknesses: brittleness, greediness, shallowness, and opacity.

Any qualified expert should understand both that computer vision can behave unpredictably and is not error-free. Interview the opposing expert and see if the expert will acknowledge the limitations of computer vision and consider challenging the expert’s qualifications and/or credibility if the expert denies the known limitations of computer vision.