Monthly archive

March 2021 - Page 3

Combating Y-STR DNA Analysis in Sexual Assault Cases

We all know that sinking feeling that hits when you open the discovery for that big sexual assault case and see the words “DNA Lab Results” sitting nonchalantly on the page. A giant weight suddenly curls up on your chest, and rests there waiting for you to download the document that can make or break your theory. Your client has undoubtedly told you that there is “no way” this lab report comes back against him, and yet you brace for the inevitable statistic claiming it is 600 sextillion times more likely that the incriminating DNA came from him than anyone else on the planet. As the download progress bar fills, you start reciting your touch-DNA cross examination in your head to convince yourself the case is still triable. The report finally opens… and you let out a giant sigh of relief (into your mask of course – we are in a pandemic after all). The results are inconclusive. Despite a positive male screening test, they found only the complaining witness’s DNA. You live to fight another day.

A few weeks later, the prosecutor emails. The subject line reads “DNA.”  You’re not worried. Maybe it’s a new offer, considering the lab results went your way. You open it, and that sinking feeling returns. They ran a different type of DNA test – something called “Y-STR Analysis” – and the results inculpate your client. You stare at the screen, unsure how to react. What does this mean? What do you do? Can you fight this?

Y-STR testing is being used more and more frequently in sexual assault cases when the typical testing yields no results. Often, it feels like the Y-STR results pull the rug out from under your case. But don’t worry, Y-STR analysis is not the same forensic powerhouse as the typical STR analysis – and it can be bought down by those differences. This article outlines scientific and statistical weaknesses of Y-STR DNA analysis that can be used to contest its admissibility and challenge experts on cross examination.

What is Y-STR DNA Analysis?

The human genome is comprised of long strands of DNA that are packaged into twenty-three pairs of chromosomes. All twenty-three pairs are made up of one chromosome inherited from each biological parent, but which chromosome is from which parent is a matter of random selection. This randomization creates a unique genetic fingerprint for all individuals, including siblings (other than identical twins). Forensic analysts create a DNA profile by examining specific sections of DNA called “short tandem repeat” (STR) markers that are known to vary between individuals at designated loci on the chromosome. The analyst then compares a suspect’s DNA profile to the DNA profile obtained as evidence to determine if they match. If they don’t match, that suspect is “excluded as a contributor.” If they do, the analysist calculates the “random match” probability – the likelihood that a random alternate individual, rather than the suspect, is the true donor of the DNA evidence.

Typical STR analysis compares DNA profiles created from loci found on the twenty-two sex-neutral, or autosomal, chromosome pairs. In contrast, Y-STR analysis studies only loci found on the Y chromosome – the male specific sex-determining chromosome. The most common application of Y-STR analysis is in sexual assault cases, where autosomal STR typing is difficult or impossible because the excess amount of female DNA masks the male DNA. Since a female victim does not have any Y-chromosomes, the Y-chromosomes found in a victim sample are presumed to have come from the perpetrator. Once the perpetrator’s Y-chromosomes are isolated, the analyst can generate a Y-STR profile to compare against the Y-STR profile of a particular suspect. Once a match is found, the statistical significance of the match is determined by how rare that profile is in the database.

Limitations of Y-STR DNA Analysis

Scientists are in agreement that Y-STR analysis is a valid and precise mechanism to exclude persons as possible contributors to DNA evidence. However, the weight of a “match” is much weaker than in typical DNA testing due to (1) the inheritance patterns of the Y-chromosome and (2) the confines of the “counting method” to determine statistical significance.

Inheritance of the Y Chromosome

Whereas every other chromosome is found in both men and women, Y-chromosomes are found only in males. A male inherits his Y-chromosome in its entirety from his father. His Y-STR profile will be genetically indistinguishable from those of all his paternally related male relatives—his father, his son, his grandfather, his uncle, his cousins, etc. Because spontaneous Y-chromosome mutation is relatively rare, Y-STR profiles are also likely to be shared by males whose biological relationships are historically remote. Men who do not know each other or recognize each other may have identical Y-STR profiles if they had a common male ancestor hundreds of years in the past. Therefore, a “match” between an evidence sample and a suspect simply creates a population of possible contributors that includes the defendant plus all patrilineal related male relatives and an unknown number of unrelated males. Both because any one person’s Y chromosome is likely to be shared by an unknowably large number of other individuals and because Y-STR testing analyzes only one of the 46 chromosomes a person possesses, the probability of a “random match” with respect to Y-STR DNA is significantly higher than the probability of a random match with respect to a complete DNA profile using typical STR analysis. For example, random match probabilities with Y-STR DNA may be as high as 1 in 30, as opposed to the 1 in several million (or greater) probabilities generated by STR analysis.

Confines of the “Counting Method”

Since Y-STR analysis is all linked to one chromosome, the method typically used to calculate the “random match” probability cannot be used. Instead, analysts must literally “count” the number of similar profiles that exist in a profile database in order to determine the statistical significance of a match. This is called the counting method, and it presumes that the frequency of a Y-STR profile within the database parallels its frequency in the location where crime occurred. Therefore, its reliability depends directly on the size and quality of the database that is being used. It is fundamentally necessary that the database comprise an appropriate representative subset of the population. Unlike autosomal DNA, Y-STR profiles cluster geographically where common ancestors followed migration and settlement patterns. Specific profiles are not likely to be evenly dispersed among distant populations. Even within local geographic regions, certain Y-STR profiles are common within certain ethnic groups but entirely absent among others.

Forensic analysts attempt to control for this kind of non-random sorting by stating profile frequencies in terms of race.  Geneticists have tended to assume that historical within-race genetic mixing is sufficient to disperse Y-STR profiles evenly among that racial group. For this reason, Y-STR probability statistics are usually expressed as the frequency at which that profile was found in the database within each racial group. However, even within discrete racial groups, there can still be statistically significant differences in the frequency of Y-STR profiles depending upon the geographic location.1 Additionally, a different racial distribution within the database as compared to the given area will skew the results, and easily over or under-represent the local regularity of a given profile. For example, a 2003 study comparing U.S. populations found that the Y-STR profiles of both European-Americans and Hispanics were much more varied within their ethnic groups than the profiles of African-Americans, and that the variation in Hispanic genotype was higher in Texas than anywhere else in the country.2 In order for the “counting method” to generate the accurate statistical significance of any profile match, the database should reflect same genotype variations as the local populations and ethnic groups. However, such databases do not yet exist; in fact, the U.S. Y-STR database was decommissioned in 2019. The profiles form the U.S. database were all transferred to the international Y-Chromosome Haplotype Reference Database (YHRD).3  YHRD includes about 3,500 total profiles from the state of Texas (which is home to over 13.6 million men), 33% from European-American men, 33% from Hispanic-American men, and 33% from African-American men. This does not reflect racial and ethnic composition of the male Texas population, which, as of 2015, was 54% European-American, 28% Hispanic, and only 9% Africa-American.4

Exploiting the Limitations

        Y-STR DNA analysis is ripe for challenge in Texas courts. Defense attorneys faced with inculpating Y-STR evidence should request a Kelly/Daubert hearing to determine if the loci tested or kits used meet threshold requirements of reliability, and that the statistical evidence is likewise supported. The first erroneous Y-STR conviction recently came to light, underscoring the need for care with regard to interpretation of these results.5 While at least one Texas Court of Appeal has held that Y-STR analysis does meet the reliability standard, it did so only after a full pretrial hearing.6 The Court of Criminal Appeals has yet to weigh in on the issue, but in a concurring opinion, Judge Johnson has expressed concern that current databases do not contain enough samples, or a proper distribution of samples by race, to support the method’s reliability in this State.7 Importantly, two organizational leaders in quality assurance standards in DNA testing have released directives creating and changing guidelines in Y-STR interpretation and database selection within the past year, exemplifying that this method is still evolving and affording litigants the opportunity to challenge testing not done in accordance with those directives.8

        Additionally, there are many circumstances in which the admission of Y-STR results may be excludable under Texas Rule of Evidence 403. For example, there is very limited probative value to Y-STR testing in cases where there are potential suspects of the same paternal line, there is already likely contamination of the DNA sample, or there is a mixture of multiple male profiles in the sample. If all else fails, Y-STR analysis affords ample fodder for cross-examination, allowing you to challenge the method directly to the jury.

Illuminating Pathways to Criminal Defense Practice: An Update from TCDLA’s Law School Committee

The TCDLA Law School Committee has begun several projects aimed at forging stronger bonds between the association and law students interested in criminal law. These students are the future of TCDLA, therefore it is imperative that we foster their career development and introduce them early to everything the association has to offer them, both now as students, and in the future. The pinnacle of support for a law student interested in criminal defense comes with TCDLA’s student membership: For $20, the student gets access to the listserve, the members’ website, with the all-new student tab that will feature clerkship and job opportunities, postings about upcoming trials the students can view and help with, copies of the Voice, free attendance at CLEs, and use of the TCDLA app. But to involve the students in this level of support, we must first meet them.

Therefore, the first goal of the committee, started last year and completed this year, was to recruit at least one criminal law faculty member from each Texas law school. This internal faculty member will serve as a liaison between TCDLA and the law school and help promote TCDLA events for students and student membership in TCDLA. Committee members split up the Texas law schools and have committed to work with the law school internal liaisons by providing information about TCDLA events. These events include scheduled seminars where law students are invited, such as the annual Innocence/Forensics seminar scheduled for October 6-8, 2021, in Fort Worth, and encourage speaker lunches or virtual presentations at the law school. We are always interested in expanding our connections within the law schools. If any of our members have connections within any of the Texas law schools, or have suggestions as to how we can better connect with students at a law school, please reach out to the respective TCDLA liaison to that law school. The TCDLA liaisons and their contact information is as follows:

The second goal of this year’s committee is to develop a student portal within the TCDLA website. With the goal of marketing what TCDLA has to offer students. It will be open to all law students, regardless of whether they are student members in TCDLA. There will be TCDLA member testimonials on key subjects that impact law students and their career development. Law students will be able to submit questions, and there will be a “frequently asked questions” section with TCDLA member answers to questions submitted by law students. TCDLA merchandise will be available for students to purchase through the website. There will be teasers to other material that is available only for TCDLA student members, with the goal of encouraging joining TCDLA. There will be job, intern and upcoming trial notices posted on the student member section. There will be resources such as trial skill simulations by TCDLA members, and practical articles on skills every new defense lawyer needs to know.

The third objective this year is to create a webinar, open to all law students, entitled Career Pathways to Criminal Defense Practice. Working with 3L law students in a criminal defense clinical program, we often hear students lament that there are so few job opportunities in criminal defense, that most defense attorneys are lone wolves and do not hire, that it is hard to get court appointments right out of law school, and if they do get court appointments, there’s no way they can survive on the fees. While there are kernels of truth in these statements, they are exaggerated and overstep the viable pathways many defense attorneys have taken to get to where they are. Our goal is to shine light on these.

The event will consist of a panel presentation of TCDLA lawyers with a moderated chat for law student questions, an hour of ethics and wellness, and conclude with virtual networking break-out rooms which will be organized by geographical practice location and practice focus areas.

The panel presentation will cover different pathways that criminal defense lawyers have taken. These include:

  • Working for a district attorney’s office, with a focus on advantages and disadvantages;
  • Working for a public defender’s office, a Texas Rural Legal Aid office working in criminal defense, or RDPO, with a focus on how to find these positions, advantages and disadvantages;
  • Starting out as a criminal defense solo practitioner with a focus on what kind of income they can expect, sources of income, how they got business and different options to consider in terms of supplementing income;
  • Building a practice seeking court appointments, with a focus on how they navigated the wheel, multiple county practice to maximize appointments, income that can be expected from appointments and tips on how they supplemented income from court appointments;
  • Working in an established criminal defense firm in an urban area, with a focus on how they obtained the position, what advice they would give to law students about making the connections to obtain such a position;
  • Working for a rural law firm that takes all cases, including criminal defense, with a focus on how they found this employment arrangement, whether they were seeking the position in order to primarily practice criminal defense or did they start practicing criminal defense as part of the firm’s case load;
  • Working for a general law firm that also handles criminal defense, with a focus on how they found the position, whether they signed on primarily for the criminal defense opportunities, or did they start practicing in criminal defense as part of the firm’s case load; and
  • Serving as a briefing or staff attorney at the Court of Criminal Appeals, an intermediate court of appeals or federal court.

Speakers will also address ethical questions and issues soon-to-be criminal defense lawyers should give thought to, and be aware of: The question of whether criminal defense work is right for you; with a focus on feelings or beliefs about representing clients in all types of cases; personal baggage that can interfere with zealously representing the client; work/life balance issues; professional stressors and triggers; worries about being subjected to vicarious trauma; resources such as TLAP and membership in supportive professional associations such as TCDLA and its affiliates; as well as ethical ways to market and set fees; and introduction to IOLTA accounts and a primer on how the grievance process works.

The event will conclude with break-out rooms where law students can meet criminal defense lawyers from the counties where they hope to practice, or who practice in specific areas of criminal defense the student is interested in, such as: indigent defense, juvenile law, appellate, post-conviction/innocence, capital murder, DWI, domestic violence and sexual assault.

To make the event successful and meaningful for the law student participants, we are seeking your help in volunteering for either the panel or break-out sessions. If you have an idea for another pathway to criminal defense work and/or wish to participate in this event, please contact us via either Melissa Schank at or Law School Committee Chair Anne Burnham at .

Kids, Schools, Phones, and Consent

By now, we all know juveniles have the same protections of the law as adults, and in many cases increased protections. However, it wasn’t always that way. It was in 1967 when the United States Supreme Court held juveniles shall be afforded the same rights of the Due Process Clause of the 14th Amendment to the United States Constitution, as adults.1 Fortunately for children, courts and the legislature have expanded and further explained the application of due process rights for juveniles. This article explores the due process rights of children in schools and particularly regarding cell phones.

Is a Child Capable of Being Reasonable?

The scientific world has recognized the adolescent brain continues to develop until the average age of 25. A juvenile’s brain lacks a fully developed prefrontal cortex, resulting in a lack of rational, adult-like thought.2 As we know, though, an adolescent of 17 years is prosecuted as an adult. And, interestingly, an adolescent need only attain the age of 18 to make important decisions, such as voting, joining the military, or partaking in non-voidable contracts, despite the inability to think rationally. However, some industries, such as car rental companies and insurers, recognize the underdevelopment of juvenile brains, and charge higher premiums and prohibit certain activities accordingly. The criminal justice system has increasingly acknowledged the need to treat juveniles differently because they don’t have the ability to think like adults and should therefore not suffer similar repercussions as adults. As a consequence, juveniles may not be sentenced to death or life without the chance for parole.3

The United States Supreme Court held age is a factor when determining if a child believes they’re in custody.4 The subjectivity (with an objective basis) of determining custody is well established in Texas. In fact, the Third Court of Appeals established what is essentially the reasonable juvenile standard for purposes of ascertaining custody twelve years before the United States Supreme Court required age as a factor in a custodial analysis. While we know the standard for determining custody is whether a reasonable person would feel free to leave, when dealing with juveniles we look to “whether, based upon the objective circumstances, a reasonable child of the same age would believe [their] freedom of movement was significantly restricted.”5 Most children will say they are prevented from leaving the confines of a school, but does that mean they are in the State’s custody Mondays through Fridays?

Do Children Have Rights at School?

The government’s mandate of compulsory school attendance has been a fact of life in everyone’s childhood. Nevertheless, school children “do not shed their constitutional rights… at the schoolhouse gate,”6 but those rights have limitations. For example, the state of the law is that children are not in custody of the State when they are being restrained solely by a school administrator, such as a principal, despite being a State actor. However, if an officer (including a school resource officer-SRO) is present and participating in said restraint, the child is in custody.7 In fact, the Court in V.P. suggested the child was in custody while being transported to the principal’s office by a police officer, then custody ceased to exist once the officer left the room and V.P. was in the room alone with the principal. The disparate treatment of different adults handling children at school can be confusing for most, let alone children. Luckily, the courts have provided some guidance on the issue.

The seminal school search case (T.L.O. v. New Jersey) was decided by the United States Supreme Court in 1985.8 The T.L.O. Court held the 4th Amendment of the United States Constitution applies to searches of children in schools. However, the level of cause for school administrators to search children is reasonable suspicion and not probable cause. A 2-prong test was also established for searching children, to wit: 1) the search must be reasonable at its inception, and 2) the search must be reasonably related in scope to the initial purpose of the intrusion.9 Basically, a school official is not allowed to search a student for a reason unrelated to the inception of the encounter. For example, a school official is not permitted to search a student’s car as a result of the student being investigated for truancy.10 The bottom line is there needs to be a nexus between the student’s conduct and the purpose of the search. Of significance, the established lower level of cause to search students pertains to school administrators only, mainly because they are in the business of educating students and do not receive training in ferreting out crime, as police officers do.11

Continuing with the theme of determining the differing levels of cause to search a child at school, the Texas Tenth Court of Appeals, in Russell v. State, 74 S.W.3d 887, 891-92 (Tex.App. – Waco 2002, pet. ref’d), adopted a 3-category approach:

1) Searches initiated and conducted by school officials – reasonable suspicion;

2) Searches initiated and conducted by SROs – reasonable suspicion; and

3) Searches initiated by outside police officers, or school officials and SROs working at the behest of an outside police force – probable cause.12

The Russell Court ruling, which essentially equates the status of a school official and an SRO for purposes of investigating crime at school, forged a contradiction when one considers the decisions in T.L.O. and V.P. together. The T.L.O. Court rationalized requiring a lower level of cause for school officials because they are not trained as peace officers are and, therefore, should not be held to the same standard as police. Moreover, the V.P. Court ruled the child was only in custody when the SRO was present, but not in custody when he was alone with the principal. Therefore, there is a split in the Texas Courts of Appeals regarding the differing treatment of school officials and SROs when dealing with criminal investigations of delinquent conduct. Some courts have performed legal gymnastics to categorize school searches as administrative searches, thus lowering the level of cause required by the investigator, rather than focusing on the character of the searcher’s status or job.

There are certain searches that, as a matter of policy, are permissible and lack specific suspicion. Administrative, suspicionless searches occur daily at disciplinary alternative education program (DAEP) schools. The rationale behind the daily searches of children upon entering DAEPs derives from the school’s responsibility pursuant to the doctrine of in loco parentis, resulting in a duty in “maintaining a safe and disciplined environment,” particularly when dealing with a population of children with disciplinary issues.13 As a consequence, administrative searches at DAEPs serve to satisfy a governmental interest of providing a safe environment for students.14

Ordinarily, DAEPs require students and their parents to sign a contract, permitting the school to search the child upon entry. One justification for the intrusion is that the parent and child essentially consent (or are at least advised) to the search, resulting in a diminished expectation of privacy.15 Interestingly, children who are removed from their home school are required to attend a DAEP and are provided with a student handbook detailing daily searches as a matter of policy, thereby infringing on their 4th Amendment rights, and raising voluntariness issues. Students of DAEPs and their parents are put on notice and essentially consent to daily searches when provided with handbooks containing language similar to the following: “Students pass through a metal detector each morning and receive a pat search. This search entails patting the student’s outer clothing and checking pockets, socks, shoes, hems, and waistbands for prohibited items. Prohibited items will be confiscated (failure to comply could lead to suspension).”16 While schools may be permitted to confiscate prohibited items -cell phones in particular -they are not granted unfettered access to search through them.

Hell No! Not My Cell Phone!

As a parent of teenagers, and someone who has worked with teens and tweens for 20 years, I can emphatically say one of the worst punishments for kids today is the extraction of cell phones from their talon-like claws. Many children are likely extra protective of their cell phones because of the intimate nature of the information stored on it. The storage capacity of cell phones is tantamount to searching through a person’s cabinets, bureaus, and desks for personal effects.17 Hence, absent exigent circumstances such as a fear of destruction, a warrant is required to sift through the digital data.18 Even if a child consents to a search of his property, the voluntariness of said consent can still be suspect. The particular circumstances of each case in which a child gives consent must always be evaluated.

The case of a 13-year-old girl consenting to a search by the school nurse for prescription-strength ibuprofen in her bra and panties was deemed beyond the scope of reasonableness when she was asked to shake out her bra and pull out the waistband of her underwear.19 Luckily for Texans, the Family Code mandates that a child may only waive their rights under the United States Constitution or Texas Constitution if the child and their attorney both voluntarily waive the right, and only if the waiver is made in writing or in recorded court proceedings.20 It may seem unreasonable to require a child who is the subject of an investigatory stop to have their attorney with them to sign off on the waiver of their 4th Amendment right against an unreasonable search, but such is the plain language of the statute. It makes more sense once the diminished capacity of a child is considered. The safeguards are in place to level the playing field between juveniles and adult government actors. Lastly, the Court of Criminal Appeals reinforced the need for extra protection for children, even when a juvenile case is transferred and tried in adult court when they declared “…the juvenile is cloaked with the trappings of a non-criminal proceeding with attendant safeguards such as greater protections in areas of confession law,” and I would include search and seizure law as well.21

In conclusion, juveniles have underdeveloped brains, resulting in a lack of sophistication with the criminal justice system, and an inability to make rational, voluntary decisions. To counteract the inherent deficiencies in children, the legislature and courts have created extra safeguards for them. For instance, a child is not completely stripped of their constitutional rights when they enter a schoolhouse, although there are some limitations in certain circumstances. Additionally, a child’s cell phone carries with it extremely personal information, thus warranting the same constitutional protection afforded one’s personal effects. With regard to a child waiving their rights, their immaturity and underdevelopment requires they be joined in said waiver by a friendly adult who is tasked with advising them, their attorney. As a vulnerable group, children require and are afforded morally necessary protection from governmental intrusion.

Working with Diverse Juries

“When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable.” 

– Supreme Court Justice Thurgood Marshall, Peters v. Kiff, 407 U.S. 493, 503 (1972).

A study conducted by psychologist Samuel Sommers concluded that diverse juries were less likely to presume a defendant’s guilt than all-white juries. Diverse juries also evaluated the evidence more thoroughly, deliberated longer, and made fewer factual errors. It was concluded that this was a result of white jurors being more careful and systematic in making decisions when interacting with non-white jurors. Sommers, S.R. (2006). On racial diversity and group decision making: Identifying multiple effects of racial composition on jury deliberations. Journal of Personality and Social Psychology, 90 (4), 597. The benefits of having diverse juries are not limited to the accused; they are appreciated by society as a whole. Trust in the criminal justice system is preserved and verdicts are more likely to be accepted with diverse juries.

So how do we work with diverse juries? As advocates, what can we do to use diverse juries to our clients’ benefit and what are the pitfalls we should be mindful of?

  • Recognize and understand the importance of implicit bias. Lots of people would never consider themselves biased against any group of people; however implicit bias is perhaps best described as “thoughts about people you didn’t know you had”.
  • Understand what diversity means. Jurors do not all share in the same, religion, education, socioeconomic, and geographic backgrounds. Don’t limit the idea of bias or diversity in your mind to just one factor when selecting a jury.
  • Do your research in advance. In some counties, lawyers have access to juror information cards before voir dire begins. Use this information and time to develop a better idea of the demographics of your jury and the jurors’ background. You will know what you’re working with, how to frame your presentation, and what to be mindful of.
  • Speak clearly. Don’t assume that you have a panel of all native English speakers. Slow it down, and enunciate to ensure that your message is understood.
  • Mean what you say and say what you mean. Figurative language can get lost in translation or not received the same by all jurors. Instead of saying “The Defendant was going to fix the Complaining Witness’s wagon” (one of my law partner’s preferred Southern phrases)—consider saying “The Defendant confronted the Complaining Witness.” Instead of “Ladies and gentleman, I’m going to tell you how the cow ate the cabbage” (another favorite)—just say “I’m going to tell you exactly what happened.”
  • Use visual aids during voir dire or witness examination. If there is a language or cultural barrier, pictures, videos, drawings, and diagrams can help aid the listener.
  • Take a moment to stop and confirm that your panel members are following the discussion. Don’t assume that everything you’re saying is being understood. Ask along the way if any of the panel members have questions about what you’re discussing. Offer clarification or rephrase the point you’re trying to make.
  • Keep it tight. The shorter you keep your presentation, and the less you talk and start to ramble, the less likely you are to stray from your game plan.
  • Avoid humor. What might be amusing in one culture could be offensive or just unfunny in another.
  • Be mindful of nonverbal communication. For example, the thumbs up might signal confirmation or great job while in some countries in West Africa and the Middle East, it means “up yours!”
  • Do not assume everyone has your same beliefs and values. When I was in law school, I would come down to the courthouse and watch jury trials. There was a talented defense attorney that quoted a lot of scripture in his closing arguments. It seemed to play well with the jury, but he also ran the risk of alienating those with different beliefs or those that were unfamiliar with the Bible.
  • Use local examples. One thing that everyone on a jury has is common is that they live in the same county. Use headlines from your local community that everyone has experienced or is familiar with.
  • Make your client universally identifiable and relatable. If you did it right, you picked a diverse jury so chances are your client is being judged by people that don’t look or sound exactly like your client.
  • Educate yourself and keep learning. Read books, travel, talk to different people in order to continue to learn about other people and cultures. Talk to jurors after trials and ask them questions about what they liked and didn’t like about your presentation style.

Alcohol Testing in the Age of COVID-19

/

This in an important article, one that outlines the risks associated with breath testing during a pandemic.  Is your client at risk in providing a breath sample? Is the officer at risk in taking one? Beyond the hype, what does the known epidemiology of disease transmission under similar circumstances tell us? This article will discuss how COVID-19 will likely impact alcohol and drug related criminal investigations, now and in both the foreseeable future and perhaps, the long term under our “new normal.”

The pandemic has impacted all aspects of our society – from how and where we work, how we go to school, attend court, or eat in a restaurant.

DUIs, DWIs, breath test refusal cases and DREs will not – and more importantly should not – be done the same way in the future. Your client’s physical response to breath or blood testing may be different. What officers have been trained to believe about drug related driving offenses may no longer apply. Even the frequent use of hand sanitizers – which we should all be doing along with wearing a mask and physical distancing – may impact blood testing and urinalysis.

Before we begin, I have one caveat. This article uses information that is available as of the end of September 2020. Much is currently unknown about COVID-19, and its long-term impact on humans won’t be known until, well… the long term. So, if you’re reading this a month or two from now, or a year or two, this information may have – and probably will have changed, perhaps drastically, as we better understand the overall effect of COVID-19 on humans.

The Potential for Disease Transmission

First, let’s discuss the risk of disease transmission through breath alcohol testing – particularly roadside testing using portable testing units.

The story is simple. Your client is stopped for a vehicle infraction or roadside sobriety check. A breath sample demand is made, and a Preliminary Breath Test (PBT) instrument produced. Your client refuses the test on the grounds of the potential for disease transmission.

Is this a reasonable excuse?

What are the disease transmission risks involved with providing breath samples into a PBT in light of the current international pandemic of coronaviruses and specifically Corona Virus Disease 2019 (COVID-19)?

Well, as with most situations, it depends…

  • If we have a test subject (your client) with no predisposed medical conditions that make them unlikely or less susceptible to coronavirus transmission, and;
  • If we have an officer who has taken all reasonable precautions to prevent the transmission of any communicable disease, including but not limited to:
    • The use of appropriate Personal Protective Equipment (PPE)
    • Disinfection of the PBT before each and every use

Then the disease transmission risk may be considered acceptably low.

The problem, of course, is that no one, other than those who have been exposed, infected, become sick (either symptomatically, or asymptomatically), and recovered and who now have COVID-19 antibodies are unlikely or less susceptible to getting COVID-19. Basically, you’re only truly safe if you’ve had it and recovered. We think… there are now a number of reported cases of persons who were infected, tested positive, recovered, and are now ill again with COVID-19. 

If, on the other hand:

  • Your client is immunocompromised
  • Your client is on medication that suppresses their immune system
  • Your client’s family situation includes:
    • living in a multi-generational home with elderly family members,
    • living with a person with a pre-existing, high-risk condition, or
    • a child or spouse with a health condition
  • Your client is a high-risk worker (essential service worker, health care provider, first responder, etc.)
  • The officer produces a PBT, with an unverified level of cleanliness, not using any PPE, or minimal PPE

Then the disease transmission risk may be considered unacceptably high. This list is, of course, not exhaustive. There are any number of situations that constitute a “high-risk” background.

In addition to being designated in court as an expert in breath alcohol testing, I have some background in infectious disease control. I was the designated Chief Infection Control Officer for the Saskatoon Police Service from 1997 – 2002. I authored the Infectious Control Reference Guide and created the surrounding policy and training for police members regarding infectious control that was adopted by various police agencies across Canada. We were concerned with disease transmission from crime scenes, arrests, contaminated evidence, in the detention facilities, etc. I was a Primary Care Paramedic and served as the Chief Instructor in Emergency Response at both the Saskatchewan Police College and Saskatoon Police Service, and instructor for the First Responders program. I sat on the Instructor – Trainer’s Advisory Committees for both the Canadian Red Cross and the Saskatchewan Heart & Stroke Foundation, where we investigated disease transmission between participants during First Aid and CPR training.

How Coronaviruses Spread

For the most part, health officials think that human coronaviruses, including but not limited to SARS-CoV-2 (which causes the subsequent infectious disease COVID-19), cause infections of the nose, throat and lungs. Coronaviruses are most commonly spread from an infected person through:

  • Respiratory droplets generated when a symptomatic or asymptomatic infected person coughs or sneezes
  • Aerosolized droplets coming from a symptomatic or asymptomatic infected person’s exhaled breath from talking
  • Aerosolized droplets inhaled into the lungs from a symptomatic or asymptomatic infected person
  • Close personal contact, such as touching or shaking hands with an infected symptomatic or asymptomatic person
  • Touching something infected with the virus, then touching your mouth, nose or eyes before washing your hands appropriately or using a hand-sanitizer

This is why the simple act of wearing a mask, washing your hands frequently, and not touching your face is so important. Yes, masks are uncomfortable, hot, and sticky. (And, no, they don’t lower your oxygen levels or increase your carbon dioxide levels.) They may lower your viral exposure, keeping you from getting COVID-19 in the first place, or reducing the severity of the disease if you do come in contact with a carrier.

Current evidence strongly suggests person-to-person spread is efficient when there is close or prolonged contact, without the necessity of actual physical contact. Again, keep in mind that First Responders, including police officers, are essential service workers who are at greater risk of being in contact with persons who are infected or potentially infected, and as such, are at greater risk of passing the virus onto others, including members of the public that they come into contact with during the course of their duties.

It is currently well established that the disease transmission of the virus occurs before the infected person becomes visibly symptomatic.

The dosage of the micro-organism required for transmission of the coronavirus is measured in microns. The size of the coronavirus itself is just 0.1µ (microns) in diameter. The strength and degree of transmission from an infected person to another person is considered very high, and the pathogenicity, or seriousness, of the resulting illness (COVID-19) is deemed extremely high.

Epidemiology and Breath Alcohol Testing

It must be recognized that both the disease transmission ratio of coronaviruses and the mortality rate of COVID-19 are higher than the seasonal flu. Transfer of the virus can occur from person-to-person, and from objects to a person. By its very nature, breath testing places the officer and test subject into close physical proximity, in violation of most health agencies’ guidelines of distancing at least 6 feet from one another.

The officer conducting the breath test at roadside will have their hand within 1-2 inches to the test subject’s nose and mouth. Potentially contaminated items (the hand of the officer, regardless of gloving, and the PBT used for the breath test) are located immediately adjacent to the test subject’s nose and mouth.

Let’s personalize this a bit to illustrate the transmission mechanism. I would like you to try an experiment at home. Go get a bottle of perfume or cologne, one that may not have been used for some time. Hold the bottle of perfume or cologne, used perhaps within the last few weeks or even a few months ago, under your nose. Without activating the pump, sniff around the spray tip. Can you smell the perfume? Congratulations! If that perfume was a virus, you’ve just introduced a viral agent into your nose, air passages and lungs. You may now be infected. It is that easy.

We don’t actually know the dosage required for infection, but recent studies in China found that people with more severe infections tended to have higher viral loads, another important reason for wearing your mask, which may cut down the amount of virus you receive – potentially below the infectious dose.

“The truth is, we really just don’t know… I don’t think we can make anything better than an educated guess.”

– Angela Rasmussen, Virologist, Columbia University, New York. (as reported in The New York Times, May 29, 2020)

The pathogen is proving the familiar adage in toxicology, coined by Paracelsus more than 500 years ago: “The dosage makes the poison”. For SARS1, the infective dose was considered to be just a few hundred particles. For MERS2, the dosage required is much higher, on the order of thousands of particles. The Coronavirus (SARS-CoV-2) is more similar to the SARS virus, and therefore, the dose may be just hundreds of particles. Nobody really knows for sure.

Regardless of gloving or the use of other (PPE), the officer’s hand and the PBT will be within the protective field of the test subject. Like our illustrative perfume, any contagion, including viral contamination, will be in the immediate vicinity to the test subject’s nose and oral pathway. This is currently identified as the most accessible route of entry of the coronavirus into the body of an uninfected person.

Additionally, the World Health Organization has established that the coronavirus can remain active on non-porous or hard-surface objects for anywhere from a few hours to several days. Many health agencies identify that these items include electronic devices such as cellular phones and television remotes. These are similar in design and operation to the PBTs used by police in the sense that they are constructed with a hard-plastic exterior, are used as handheld devices, and as with cell phones, are deployed in close proximity to a person’s face, nose, and mouth.

But wait – PBTs have a disposable mouthpiece for sanitary use…

Breath alcohol testing is unique in that the operator is attempting to obtain a sample of “deep lung” air from the test subject. This air sample is being obtained from the alveolar sacs of the person blowing into the PBT. Unfortunately, the alveolar sacs are precisely where the virus is resident in the human body, and the mechanism of carrying the virus (exhaling the deep lung air) brings the virus out into the open.

The disposable mouthpieces used on the PBTs are intended only as a means of providing a clean surface between the test subject’s mouth and lips, and the device itself. They do not provide any means of epidemiological protection in any other regards. Most disposable mouthpieces use a pass-through design, and do not incorporate a one-way valve to protect either the officer receiving the breath sample, or the person providing the sample.

Even the so-called “spit-trap” used in certain mouthpieces easily allows pass through of liquids, exhaled air and the potential for contamination, as shown in Figure 1. Disposable mouthpieces cannot be considered an effective barrier to disease transmission efficacious enough to prevent the transfer of viruses, including coronaviruses.

In March 2020, one breath testing manufacturer, Intoximeters, Inc., identified three main paths for the transmission of contamination during breath testing:

  1. Breathing aerosolized particles
  2. The breath test subject could be contaminated from particles from a contaminated instrument.
  3. The Breath Test Operator can become infected from an infected test subject.
  4. The test subject could be contaminated from an infected operator
  5. Skin contact with contamination from the breath sample.
  6. Skin contact with saliva or other bodily fluids deposited on the instrument.

As a result of their warning, Intoximeter, Inc. had established a specific recommended cleaning and disinfection timetable in the use of their instruments and had provided detailed instructions for both evidentiary units and roadside PBTs. They stated that their recommended procedures for disinfection would normally take between 10 – 30 minutes per device.

Withdrawing a Warning…

Notice that I put this in past-tense. These recommendations were posted on the Intoximeter website (in March 2020) but have since then been removed. This begs the question – Why?

Was there pushback from police agencies, worrying that by NOT following the recommended manufacturer’s procedures they would expose themselves, not only to the virus, but to liability for not following standard practice? The virus hasn’t changed. The threat hasn’t changed. Virus transmission understanding has not changed. Why withdraw procedures to decontaminate these devices?

Cross Contamination from Breath Testing Devices in the Clinical Setting

Currently, there is no known research on disease transmission during roadside breath alcohol testing. The closet analogy concerns pathogen transmission during pulmonary function testing using hand-held spirometry devices, commonly found in physician’s offices and pulmonary function labs, and performed routinely among COPD (Chronic Obstructive Pulmonary Disorder) patients.

I had the opportunity many years ago to perform pulmonary function tests on patients using these devices when I participated, as one of the principal researchers, on the ability of COPD or Asthma patients to provide breath samples into roadside screening devices, so I’m very familiar with their design. The spirometers are remarkably similar in form and function to hand-held PBTs.

Research over more than 20 years has shown that the potential for cross-contamination of pathogens between patient and operator, and more alarmingly, between patients being tested by contaminated spirometers has been established. The risk is of sufficient concern to require further research and recommendations for control strategies. Researchers Rasam, et al write, “Cases of cross infection acquired from the pulmonary function laboratory, although rare, have been reported from various countries” (Rasam, et al, 2015).

You should focus on that last part again, “…have been reported from various countries.” This is not a one-time case study. Multiple cases of disease transmission have been reported between patient and operator, and between patients, from multiple countries. So, it goes to reason, your client could conceivably become contaminated from viral matter on the PBT from the asymptomatic person who last provided a sample. Or three samples ago – meaning three others who recently used that PBT are also contaminated, including the operator.

Certainly, the counter argument is that the officer “disinfected” the PBT between breath tests. Keep in mind that these reported pulmonary function tests (the ones with documented cross-contamination) are performed:

  • In clean, but more importantly – disinfected or sterilized clinical settings,
  • Using medical personnel who have been
  • Trained in epidemiology and infectious control,
  • They have the ability to disinfect these medical-grade devices immediately,
  • Using medical-grade disinfectants and sanitizers.

Contrast this situation with a police officer, at roadside, wiping down a PBT between breath tests, using cleaning items on-hand (as in little disposable towelettes), even if performed with the best of intentions. The decontamination and sterilization done in clinical settings still resulted in multiple documented cases of cross contamination, worldwide.

Decontamination and Cleaning of Hard-Surface Items, including Portable Breath Test Devices

The World Health Organization advises that coronaviruses are one of the easiest types of viruses to kill, as long as the appropriate disinfectant products are used according to the manufacturer’s directions. It is recommended that users clean high touch surfaces often, using either regular household cleaners or a solution containing diluted household bleach at a 0.1% sodium hypochlorite concentration. This is equivalent to just 1 teaspoon of household bleach per quart of fresh water.

This solution must be prepared fresh daily, and must, by necessity, be applied to the hard-surface item after each and every use. The surface must be sanitized with the disinfectant for at least one minute before being washed away by a clean and uncontaminated cloth. We do not know the measures taken by police agencies to ensure that PBTs are decontaminated properly between breath tests.

Even if frequent decontamination of the PBT is a policy of the police agency, the person providing the breath sample has no verification that this procedure has been properly performed, and all of the virus has been eradicated. Remember – the dosage of the micro-organism required for transmission of the coronavirus is measured in microns…

Again – Why did Intoximeter remove their disinfection instructions?

Also, keep in mind that the breath test operator can only clean the external surface of the PBT. The internal breath sampling ports cannot be adequately cleaned and disinfected in the field. The tubing and inlet ports are too small to allow access without specialized tools but are often found to be contaminated with saliva droplets from previous breath tests during annual maintenance.

Sort of like the aerosol pump on the perfume bottle… get the picture?

If the test subject were to inhale through the disposable mouthpiece, even momentarily to draw in enough breath to provide a suitable breath sample, they would inhale potentially contaminated residual matter from the PBT breath sampling assembly. You smelled the perfume, meaning you inhaled the perfume, into your body.

While one-way valves on the disposable mouthpieces would somewhat mitigate this potential area of contamination, the mouthpieces used on most handheld PBTs, as previously noted, use a flow through design, allowing the contamination to occur.

Internationally, health agencies currently advise that COVID-19 is a serious health threat, and the situation is evolving with new cases emerging daily. The risk of transmission and mortality will vary from community to community but given the increasing number of cases of both infection and loss of life, the risk to the world population is considered high. We have not seen epidemic precautions of this nature taken worldwide since the Influenza pandemic that lasted from January 1918 to April of 1920.

Argue if you will that the coronavirus risk has been overblown by the media and government response. I heard an epidemiologist interviewed early on in the crisis say, to the effect, that we will be successful at combating the virus if we look back on our response at a future point in time and think that we overreacted.

The consequences for under-reacting are too grave to consider. Remember the 1918 Influenza pandemic is estimated to have infected approximately one-third of the world’s population and killed perhaps as many as 50 million people – in four consecutive waves, with the second wave the deadliest.

Currently, the current risk of contamination of Covid-19 is considered elevated merely by going to a grocery store, to a family member’s home, or otherwise out in public, even as restrictions begin to relax. And with these relaxing restrictions, we are seeing an increased level of exposure, disease transmission and infection. Governments around the world have instituted physical distancing and isolation measures in response to the increased threat of virus transmission.

Police agencies have also identified breath testing as a risk factor in contracting COVID-19. Many have suspended roadside breath testing programs. Some have switched to taking blood samples or urinalysis under controlled settings back at the police station. In general, it is recognized that roadside breath alcohol testing places a risk to both the officer and test subject due to:

  • The form and function of the equipment used,
  • The lack of appropriate and available PPE that can be used during testing,
  • The inability to confirm suitable decontamination of the breath testing device used,
  • The close physical proximity of the operator to the test subject, and
  • The overall nature of breath testing.

The only logical conclusion to draw is that persons receiving or providing breath samples for alcohol testing are at a substantially increased risk of potential contamination and transmission of the SARS-CoV-2 virus, which causes the subsequent infectious disease COVID-19. Couple that with the risk factors listed at the beginning of this article, and you have a recipe for disaster. 

Does this constitute a reasonable excuse to refuse a breath test? That is a legal issue for you to argue. The risk factor, scientifically, is both identifiable and measurable.

I’m going to ask you again – Did you smell the perfume?

For more information on the effects of COVID-19 on forensic alcohol investigations, including a video presentation, numerous supporting articles, and special Counterpoint subscription pricing for TCDLA members, go to Counterpoint-Journal.com/TCDLA. Enter the code TCDLA2019 on checkout and receive 25% off all past volumes, or an annual subscription.

References:

  1. “Coronavirus Disease (COVID-19): Prevention and Risks”, Public Health, Government of Canada , found at https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/prevention-risks.html?topic=tilelink on September 24, 2020.
  2. Coronavirus: Police Scotland Reported to the HSE Over Breath Tests”, BBC World News, found at https://www.bbc.com/news/uk-scotland-52713404 on May 19, 2020.
  3. Hierbert, T, Miles, J & Okeson, G C, “Contaminated Aerosol Recovery from Pulmonary Function Testing Equipment”. Am J. Respir Critical Care Med Vol 159. pp 610-612, 1999.
  4. “How COVID-19 Spreads”, Centers for Disease Control and Prevention, found at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html on September 24, 2020.
  5. “Infection Control, Cleaning and Disinfecting, Intoximeters Handheld Breath Testing Instruments”, Intoximeters, Inc. March 2020.
  6. “Q&A on COVID-19”, European Centre for Disease Prevention and Control, found at https://www.ecdc.europa.eu/en/covid-19/questions-answers on September 24, 2020.
  7. “Q&A on Coronaviruses (COVID-19)”, World Health Organization, found at https://www.who.int/news-room/q-a-detail/q-a-coronaviruses on September 24, 2020.
  8. “Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19)” — United States, February 12–March 16, 2020, Centers for Disease Control and Prevention, found at https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm on September 24, 2020.
  9. Kim, Jeong-Min et al. “Identification of Coronavirus Isolated from a Patient in Korea with COVID-19”. Osong Public Health and Research Perspectives, Vol. 11,1 (2020): 3-doi:10.24171/j.phrp.2020.11.1.02
  10. Prabhu, M.B., Hurst, T.S., Cockcroft, D.W., Baule, C. and Semenoff, J., “Airflow Obstruction and Roadside Breath Alcohol Testing”, Chest 1991: Volume 100, pages 585-586.
  11. Rasam, S. A., et al, “Infection Control in the Pulmonary Function Laboratory”, Lung India, 2015 Jul-Aug; 32 (4): 359-366.
  12. Semenoff, J., “The Infectious Control Reference Guide”, Saskatoon Police Service, 1997.
  13. Semenoff, J., “Infectious Disease Controls and Police Response Issues”, presentations to the Canadian Police Association and the Saskatchewan Federation of Police Officers, Fall, 1997, Regina, SK.

Invest in Secure E-Mail Services

/

If you are like most of us, you send and receive dozens, if not hundreds, of e-mails every day, so this is a subject that is on everyone’s minds. Unfortunately, for most of us, the only thing we think about when it comes to e-mail is what to write and what someone else wrote. There are other issues to think about when e-mailing. One of the most important issue is security. If you do not think about it, you could end up like me – fighting to get out of the junk folder.

Since the beginning of time, or maybe the mid-‘90s, people have been sending unsolicited e-mails as advertisements and for other unscrupulous reasons. These messages are known as SPAM. Some of the e-mail messages are designed to scam you into buying inferior or non-existent products or trick you into providing them with sensitive data – a process called “phishing.”  

It would be easy to fix if all of these people would create a domain name and use that domain name in their e-mails; then we could block the spammers, phishers, and scammers, and everyone would be happy, except them. Instead, they use your domain name. Well, maybe not yours, but, apparently, they used mine.

 You may have received an e-mail that looked like it came from your own e-mail address. This is called “spoofing.” Eventually, if your e-mail address is spoofed enough, you could be blacklisted by larger information technology (IT) departments, including the IT department of the county government you deal with on a regular basis. You would not even know. You would be sitting in your office, watching your paralegal twiddling her thumbs, and wondering why nobody has responded to any of your e-mails, including the urgent messages about deals that need to be made. It happened to me, and it could happen to you.

I do not have all the answers, and I am not nearly the expert my mother thinks. I am simply an inquisitive guy trying to understand why things do and do not work. I am trying to explain things without all the big words the experts use.

I am lucky enough to have friends and family that work in all areas of the county government. When I realized that people were not responding to my e-mails, I called a few of them. It was discovered that my e-mail address had been spoofed and used by enough scammers that independent “spammer lists” had blacklisted me and the county’s mail server automatically sent all of my e-mails to the junk folder. 

While it may be a costly undertaking for you, you should consider utilizing a secure, third-party e-mail server. Microsoft offers subscriptions to their Exchange Server. Amazon offers a similar service, and some web hosting companies, such as GoDaddy, offer Microsoft Exchange for e-mail service, as well. Without getting too technical, these e-mail servers enter codes into every e-mail message that comes from you and it prevents anyone from being able to “spoof” you. 

In the end, I chose Microsoft for my office. The cost was minimal – approximately $12 per month to protect me and my staff. It is money well spent to ensure that my e-mail messages actually get to the person intended, whether that be a prosecutor, an expert witness, a client, or even a judge. Set up was easy and, much to my surprise, I was able to speak with a real, live person in the United States, who walked me through the process. They even called me back the next day to help finish setting up. 

It has taken a little bit of time and a little bit of money, but my name has been removed from the list of spammers and scammers. I can now get back to work representing my clients.  In the future, if I find myself wondering why my e-mails are being ignored, I will know it is not because my messages ended up in the junk file. If you ever find yourself in the same situation, it might be something you want to investigate.

Current Issue: March 2021

/

DOWNLOAD PDF VERSION

Features

17 | Be Sure to Pencil Yourself In – By Shana Stein Faulhaber
18 | Home-Rule City Ordinances vs. Texas Penal Code – By Anne Burnham & Stephanie Stevens
21 | Get What You need for the Indigent Non-Citizen Client with an ICE Hold During COVID-19 – By Suzanne Spencer
24 | What is Computer Vision and How Does Law Enforcement Use It? – By Nicolas Hughes
30 | Combating Y-STR DNA Analysis in Sexual Assault Cases – By Angelica Cogliano
32 | Illuminating Pathways to Criminal Defense Practice: An Update from TCDLA’s Law School Committee – By Anne Burnham & Stephanie Stevens
34 | Kids, Schools, Phones, and Consent – By Ambrósio Silva
37 | Working with Diverse Juries – By Rick Flores

Columns

6 | President’s Message
7 | Executive Officer’s Perspective
8 | Editor’s Comment
10 | Ethics and the Law
12 | Federal Corner
16 | From the Front Porch
29 | Shout Outs

Departments

5 | CLE Seminars and Meetings
43 | Significant Decisions Report

Online-Only Articles

Alcohol Testing in the Age of COVID-19 – By Jan Semenoff
Invest in Secure E-Mail Services – By Lex Johnson

President’s Message: Pandemic Jury Trials

/

It has been nearly a year since Texas and the nation’s courts began scaling back in-person operations due to the pandemic. It has been well more than a year since the pandemic became a major problem. This is but an example of a shortcoming with large governmental systems: They often react late to a crisis.

As of February 2021, I would be less than candid if I were to tell you that state and federal jury trials are unsafe and pose an unacceptably high risk of viral transmission. But it would be equally misleading to state that trials and other in-person court proceedings are safe. The truth is, no one really knows.

Here is another stubborn truth I’ve discovered during the past year through consultation with administrators, judges, defense lawyers, prosecutors, and even some scientists: Many of the important stakeholders in the criminal justice system have strong opinions about the “best” path forward and there is little we criminal practitioners — the ones on the front lines of the legal system due to frequent contact with inmates, clients, courthouse personnel, and many others — can do to change their minds.

The time has come to paddle our own boat.

If as a TCDLA member you believe it is unsafe to participate in a court proceeding or that your client’s constitutional rights are not adequately protected, this organization has your back. We have a COVID-19 Committee and a Strike Force to help you with legal and strategic assistance when a judge is dragging you and your client into trial against your will. If you believe there is no reason to postpone a court proceeding and your client has demanded a speedy trial, the same TCDLA people will assist you with the full force and intelligence we’ve assembled. You can reach me personally by text or email 24/7 and I will work for you as well.

Many among us believe that in-person court proceedings are unwise and possibly unsafe until vaccinations are widely distributed and the population has achieved herd immunity. That’s a reasonable position to take. As a single parent of a small child, I will not permit a judge to bully me into something I don’t think is safe and I wouldn’t ask any of our members to allow it, either.

It is not as though the criminal defense bar isn’t trying to improve the situation. In December I sent a letter on behalf of TCDLA to Governor Greg Abbott and vaccine administrators. We asked them to prioritize criminal practitioners in the vaccination pipeline. Not jump ahead of frontline healthcare workers, nursing home residents, medically vulnerable people, and the elderly. Just put us into a group of essential workers with vaccination priority. While that may indeed happen, the Governor’s Office has yet to respond.

During a State Bar Task Force Zoom meeting on February 8, 2021, I suggested that trial judges give priority to defendants who affirmatively demand a speedy trial, so we could possibly avoid situations in which attorneys, clients, and even some prosecutors are dragged into trial against their will. Several of the judges in the meeting (including two regional presiding judges) made it clear it was a hard no. For judges who are bent on going to trial during the pandemic, it’s not about incrementally shrinking trial dockets or safeguarding the accused’s constitutional right to a speedy trial. It’s about running their courtrooms however they see fit.

Worth noting, the vast majority of judges I’ve encountered in my small pocket of the universe (mostly Greater Houston) are doing the right thing and waiting until conditions are safer and not pushing cases to trial unless all parties are willing. When you see a judge doing the right thing, be sure to thank him or her. They’re under a lot of pressure, too.

Trials are about to ramp up, whether it’s the right path forward or not. My advice to colleagues is to follow your conscience. No matter which path you choose, TCDLA will make sure you do not have to walk it alone.

Executive Officer’s Perspective: Another Historic Event

/

The only thing you sometimes have control over is perspective. You don’t have control over your situation. But you have a choice about how you view it.

-Chris Pine

When I first started to write this article, I was going to write about how we have become so reliant on technology since COVID. Everyone has had to learn new programs, change the way we have always done things. Technology is tricky. By the time you buy the most recent device, program, or update, another is available.

How the tables turned this past week during our Texas arctic blast – another historical event to add to the pandemic and share with younger generations. It was tough to realize we had no power, water, and heat for days—the simple things I had taken for granted. The days just all ran into each other. Checking in with family, staff, and friends, I felt so helpless because there was no definite answer to when things would get back to running efficiently – normal? What is that? When the state offices and schools completely shut down, and over four million have no power, you know it is something very wrong. No light at the end of the tunnel, literally.

As with all tragedies, the takeaway is how I could have better prepared for things in my control. I sat here for a while to think about what I could do differently. I was well equipped with food and toilet paper since the start of COVID, candles, and flashlights if the power went out, lots of blankets. I had backups to charge the cell phone and laptop. Staff who had power were on standby to get us through the four live programs scheduled. One staff’s husband went in their 4 x 4 to make sure we didn’t have another busted pipe at the office. Check, check, and check.

I had people come over who needed food since theirs went bad without refrigeration. When I finally got power, others came to shower, and I left my house open. I checked in with co-workers, family, and friends, and they did with me. After several days without heat and water, I felt like a savage, surviving on libations and Girl Scout cookies. There were no patterns to the blackouts. But I am so blessed for my group of friends and family who reached out. TCDLA is the community we’ve built and the one we need.

Together I could see our TCDLA family reaching out to one another in group texts, direct texts, social media, and listserves. The relationships built through TCDLA are irreplaceable and it humbles my heart to be part of this community.

Now back to my original topic: The TCDLA staff along with the Technology Committee have worked really hard to update the How To section. You may think these are basic, but we had staff learn some new tricks to be more efficient with our daily work. If you have not gone through the sections, the videos are short and right to the point with hands-on examples. Many committee members are also working on pages under the members-only section and are reorganizing the video resource library. The COVID resource page has been updated and reorganized as well with new resources. We are working hard to keep up with technology – if only we had control of the power! Keep checking the members-only section for new additions!

Keep safe and warm!

Editor’s Comment: Tattoos Can Be Removed, But Can a “Gang Member” Label?

/

It all started simple enough. A question popped up in my inbox from a probation officer. It wasn’t a question about a particular client of mine – just a question from a good probation officer who, seeing beyond the criminal offense, was trying to help one of his young probationers.

“Do you know anything about the process that a probationer could use to be removed from the gang registry?”

And do you know what? I didn’t know, and I felt bad for not knowing. I could tell him all about other legal mechanisms to help restore a person – early release, expunctions, sealing records, and judicial clemency – but nothing about getting off the gang registry. So, I made it a point to find out.

When in doubt about a question like this, turn to the CCP to see if there’s guidance. The answer to the question above is found in Chapter 67. Before answering the question though, it is necessary to understand a little about the gang database.

As an initial matter, it is important to note that Texas is one of a minority of states that have a gang database. In 2005, the FBI established the National Gang Intelligence Center that integrates gang intelligence from across law enforcement agencies at all levels.

Article 67.051 mandates that the State compile and keep a database for the purpose of investigating or prosecuting the criminal activities of combinations or criminal street gangs. Subsection (d) requires local law enforcement to send to the department such information the agency compiles and maintains under Chapter 67. So, first, the database is required at the State level, and local law enforcement agencies are required to participate in providing information to the database.

Article 67.054 outlines the submission criteria for inclusion in the database:

(b)  Criminal information collected under this chapter relating to a criminal street gang must:

(1)  be relevant to the identification of an organization that is reasonably suspected of involvement in criminal activity; and

(2)  consist of:

(A)  a judgment under any law that includes, as a finding or as an element of a criminal offense, participation in a criminal street gang;

(B)  a self-admission by an individual of criminal street gang membership that is made during a judicial proceeding; or

(C)  except as provided by Subsection (c), any two of the following:

(i)  a self-admission by the individual of criminal street gang membership that is not made during a judicial proceeding, including the use of the Internet or other electronic format or medium to post photographs or other documentation identifying the individual as a member of a criminal street gang;

(ii)  an identification of the individual as a criminal street gang member by a reliable informant or other individual;

(iii)  a corroborated identification of the individual as a criminal street gang member by an informant or other individual of unknown reliability;

(iv)  evidence that the individual frequents a documented area of a criminal street gang and associates with known criminal street gang members;

(v)  evidence that the individual uses, in more than an incidental manner, criminal street gang dress, hand signals, tattoos, or symbols, including expressions of letters, numbers, words, or marks, regardless of how or the means by which the symbols are displayed, that are associated with a criminal street gang that operates in an area frequented by the individual and described by Subparagraph (iv);

(vi)  evidence that the individual has been arrested or taken into custody with known criminal street gang members for an offense or conduct consistent with criminal street gang activity;

(vii)  evidence that the individual has visited a known criminal street gang member, other than a family member of the individual, while the gang member is confined in or committed to a penal institution; or

(viii)  evidence of the individual’s use of technology, including the Internet, to recruit new criminal street gang members.

(c)  Evidence described by Subsections (b)(2)(C)(iv) and (vii) is not sufficient to create the eligibility of a person’s information to be included in an intelligence database described by this chapter unless the evidence is combined with information described by another subparagraph of Subsection (b)(2)(C).

So, it is important to recognize and acknowledge that the “gang member” label can be, and likely is, applied without due process and outside the walls of any courthouse. And as becomes obvious from a further read, removing a tattoo is easier than removing a “gang member” label.

The answer to the question of how to remove information from a gang database is contained in Article 67.151 which provides, in relevant part:

(b)  Subject to Subsection (c), information collected under this chapter relating to a criminal street gang must be removed after five years from an intelligence database established under Article 67.051 and the intelligence database maintained by the department under Article 67.052 if:

(1)  the information relates to the investigation or prosecution of criminal activity engaged in by an individual other than a child; and

(2)  the individual who is the subject of the information has not been arrested for criminal activity reported to the department under Chapter 66.

(c)  The five-year period described by Subsection (b) does not include any period during which the individual who is the subject of the information is:

(1)  confined in a correctional facility operated by or under contract with the Texas Department of Criminal Justice;

(2)  committed to a secure correctional facility, as defined by Section 51.02, Family Code, operated by or under contract with the Texas Juvenile Justice Department; or

(3)  confined in a county jail or confined in or committed to a facility operated by a juvenile board in lieu of being confined in a correctional facility described by Subdivision (1) or committed to a secure correctional facility described by Subdivision (2).

Interestingly, the person named in the database does not have to be informed they are named in the database. However, the CCP outlines procedures for determining if a law enforcement agency has collected or is maintaining gang information, requesting a review of criminal information that may have been incorrectly included in a gang database, and also for judicial review of any such determination made. See Art. 67.201- 67.203.

The Texas Department of Criminal Justice calls gangs “security threat groups.” TDCJ recognizes 12 such security threat groups: Aryan Brotherhood of Texas, Aryan Circle, Barrio Azteca, Bloods, Crips, Hermanos De Pistoleros Latinos, Mexican Mafia, Partido Revolucionario Mexicanos, Raza Unida, Texas Chicano Brotherhood, Texas Mafia, and Texas Syndicate. TDCJ has created a process for inmates to renounce their membership in one of these security threat groups (aka “gangs”). And it is a process – a 9-month process with several phases – called the Gang Renouncement and Disassociation (GRAD) Process. Of course, there are myriad considerations, not address herein, that must be evaluated before an inmate embarks on the GRAD Process. To say it is dangerous is an understatement. And the fact that an inmate has completed the GRAD Process doesn’t mean the “security threat group” notation will be forever removed. Rather, it means that the new notation will be “ex-security threat group member.” See www.tdcj.texas/gov/divisions/cid/stgmo_GRAD.html (last visited 2/9/21).

I’m thankful I received that email question. Chapter 67 is worth reading. And it’s worth a visit to the TDCJ website to check out the security threat groups and GRAD Process too. The bottom line is that it seems much easier to remove or cover up a tattoo – even a gang tattoo – than to remove the same label law enforcement has applied.

P.S. – We all weathered the recent winter blast together but experienced it in very different ways. Many of us may have experienced only minor inconveniences for a week while some of us were really hit hard and are still recovering from the damage caused. Please know that your TCDLA family is here for you. If there is anything we can do to help you, please reach out to any of us. Let’s take care of each other.