Clifford Duke

Clifford Duke has been with the Dallas County Public Defender’s Office for the last thirteen years after a short miserable term practicing personal injury and worker’s compensation law. He is a graduate of Gonzaga University, a Past President of the Collin County Young Lawyers Association and the Dallas County Criminal Defense Lawyers Association, and currently serves on as a Director for TCDLA. He enjoys occasionally volunteering with Legal Aid of Northwest Texas, as well as speaking for TCDLEI and TCDLA. He and his wife are both avid hockey fans and players, and are enjoying getting their six year old son into the best game on earth.

The Law of Jury Selection – Qualification & Disqualification in the Art of Voir Dire

“The Right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.”

-Texas Constitution Article I Section 15

It goes without saying that the right to trial by jury is a cornerstone of fundamental rights in this country. It was among the grievances cited in the Declaration of Independence and ensconced in both the Sixth Amendment to the United States Constitution and Article I of the Texas Constitution.

But how is that jury selected?  There are as many opinions on the correct style and art to conduct voir dire (I won’t insult you by pointing out this is French for “To Speak the Truth”) as there are attorneys selecting juries. There are, however, specific rules on the qualification and disqualification of the persons who will be deciding our client’s fate. “The voir dire process is designed to insure – to the fullest extent possible – that an intelligent, alert and impartial jury will perform the duty assigned to it by our judicial system.” DeLaRosa vs. State, 414 S.W.2d 668, 671 (Tex. Crim. App. 1967).

No matter how you decide to talk to your venire, the attorney that knows the rules has the upper hand.

Qualifying the Juror

Qualifications for jurors are governed both by the Texas Government Code Chapter 62 as well as the Texas Code of Criminal Procedure Chapter 35. While the two can appear redundant, look back at the Government Code qualifications in conjunction with the Code of Criminal Procedure for additional authority to support your arguments. 

Basic Qualifications

The goal of jury selection is to select a jury of twelve persons in a felony case and six persons in a misdemeanor.  Tex. Code Crim. Pro. §33.01.  The Government Code lays out the general qualifications for a juror, while the Code of Criminal Procedure provides the mechanism to reject a juror who does not meet those qualifications.  Tex. Gov’t. Code §62.102 & Tex. Code Crim. Proc. §35.16.  General  requirements for a juror are:

  1. At least 18 years of age;
  2. A citizen of the United States;
  3. Is a resident of this state and the county in which the person is to serve as a juror;
  4. Is qualified under the constitution and laws to vote in the county in which the person is to serve as a juror;
  5. is of sound mind and good moral character;
  6. is able to read and write;
  7. Has not served as a juror for six days during the preceding three months in the county court or during the preceding six months in the district court;
  8. Has not been convicted of a misdemeanor theft or of a felony; and
  9. Is not under indictment or other legal accusation for a misdemeanor theft or felony.

Tex. Gov’t. Code §62.102.

Three of those standards are absolute: if convicted of or under indictment for a misdemeanor theft or felony, or if they are insane, they cannot serve. Tex. Code Crim. Proc. §35.19.  Every other qualification can be waived by the parties. Id. Yup, if everyone agreed, you could have a six-year-old on your jury.

Disqualifications

Some things which you might assume would disqualify a juror are actually not disqualifications. A juror is not required to be registered to vote. Tex. Gov’t. Code §62.1031.  Blindness and deafness are not a bar to jury service, unless a judge finds specifically that the disability renders them unfit to serve.  Tex. Gov’t. Code §62.104 & §62.1041. Section 1041 even specifically requires reasonable accommodation for a deaf or hard of hearing juror, allowing an interpreter to accompany a juror during all proceedings and deliberations in a case.  Id.

Other disqualifications to a specific case include if the potential juror:

  1. Is a witness in the case;
  2. Is interested, directly or indirectly, in the subject matter of the case;
  3. Is related by consanguinity or affinity within the third degree, as determined by Texas Government Code Section 573, to a party in the case;
  4. Has a bias or prejudice in favor of or against a party in the case; or
  5. Has served as a petit juror in a former trial of the same case or in another case involving the same questions of fact.

Tex. Gov’t. Code §62.105.

Exemptions

Aside from disqualifications, there are also exemptions from serving on a jury. A person who is otherwise qualified may establish an exemption if the person is:

  1. over 70 years of age;
  2. has legal custody of a child younger than 12 that cannot find adequate supervision of;
  3. is a student at a public or private secondary school;
  4. is enrolled in and in attendance at an institution of higher education;
  5. is elected to or employed by the legislative branch of state government;
  6. has served on a jury in the last 24 months in a county with a population of at least 200,0000;
  7. is the primary caretaker of a person unable to care for themselves;
  8. has served on a jury in the last three years in a county with a population over 250,000; or
  9. is a member of the US Military on active duty and deployed out of their county of residence.

Tex. Gov’t. Code §62.106.

A person can also establish a temporary or permanent exemption based on physical or mental impairment or an inability to understand English.  Tex. Gov’t. Code §62.109.

Excuses

Everyone wants to do jury service, right?  No.  And if you haven’t already, you will hear some amazing excuses at times.  The court is allowed to excuse a juror with a sufficient excuse. Tex. Gov’t. Code §62.110.  While these can be claims of exemption or lack of qualification discussed previously, they don’t have to be. The court or their designee may, for any reason except an economic reason, excuse or reschedule any juror who submits a statement of the exemption, lack of qualification, or excuse.  Id.  Prospective jurors can be excused for economic reasons, but only if each party of record is present and approves the release.  Tex. Gov’t. Code §62.110(c).

Challenging the Array

What do you do if the entire panel was summoned against your client? “Either party may challenge the array only on the ground that the officer summoning the jury has willfully summoned jurors with a view to securing a conviction or an acquittal.” Tex. Code Crim. Proc. §35.06.  A challenge to the array must be in writing and, if filed by the Defendant, must be supported by affidavit. Id. A challenge to the array is heard before any other qualification determinations.  Tex. Code Crim. Proc. §35.06.  If sustained, a new array is summoned.  Tex. Code Crim. Proc. §35.09.

Seating & Shuffling your Venire

All of these qualification determinations are before we even get to talk to our venire. The disqualifications or exemptions are filed with the court or their designee or tested under oath by the court or their designee.  Tex. Gov’t. Code §62.110 & Tex. Code Crim. Proc. §35.10.  Depending on how your jurisdiction manages their jury summons, these qualifications may be done in the courtroom by the judge, in a central jury room, or even online before your potential juror even reports to the courthouse.  Tex. Code Crim. Proc. §35.03.

After qualification questions by the Judge, but before the attorney’s questioning of the venire, either party can request that the jury panel be “shuffled”.  The “Jury Shuffle” is not clear from the statute, but very well established in Texas jurisprudence.  See Tex. Code Crim. Proc. §35.11; Alexander v. State, 523 S.W.2d 720, 721 (Tex. Crim. App. 1975)  citing Woerner v. State, 523 S.W.2d 717 (Tex. Crim. App. 1975) “The right to have a jury panel assigned to a case redrawn is clearly provided for in Art. 35.11.”  A “Jury Shuffle” may be demanded by either the State or Defense, but only one shuffle is required.  Jones v. State, 833 S.W.2d 146, 148 (Tex. Crim. App. 1992 En Banc.).  Failure to grant a motion to shuffle is reversible error, and no harm need be found.  Id. 

Once the venire is qualified, the disqualifications, exemptions, and excuses filed, your jury shuffled and is seated, and assuming there is no challenge to array, you may now begin your voir dire.

Conducting the Voir Dire

“The paramount concerns of jury selection and the laws governing is the ability for a defendant to exercise their preemptory challenges intelligently.”  See Wappler v. State, 183 S.W.3d 765, 772 (Court of Appeals of Texas, Houston 1st Dist.) citing Smith v. State, 703 S.W.2d 641, 643 (Tex. Crim. App. 1985).  “The right to question venire members to exercise preemptory challenges intelligently is an essential part of that Sixth Amendment guarantee.”  Id. citing Franklin v. State, 138 S.W.3d 351, 354 (Tex. Crim. App. 2004); see also Gonzales v. State, 994 S.W.2d 170, 171 (Tex. Crim. App. 1999) (“[T]he right to pose proper questions during voir-dire examination is included within the right counsel under Article I §10 of the Texas Constitution”). 

That does not mean there are no limitations on how voir dire is conducted. “Texas trial courts have broad discretion over the jury-selection process.”  Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App 2002). Both the trial court’s discretion and established case law will limit what and how you can question your venire.

Time Limitations

The first hurdle you may have to get over is how much time you will have to question your venire. Although it is unclear why anyone would need more than thirty minutes to question eighty-five people regarding guilt and innocence and punishment in a case involving sexual abuse, DNA, co-defendants, and police misconduct, some attorneys may find they want more time.

Time limits on jury selection deal with two competing rights: the constitutional right to question prospective jurors and a trial judge’s right to impose reasonable restrictions.  McCarter v. State, 837 S.W.2d 117 (Tex. Crim. App. 1992) citing  Naugle v. State, 40 S.W.2d 92, 94 (Tex. Crim. App. 1931); McManus v. State, 591 S.W.2d 505, 520 (Tex. Crim. App. 1979). 

It’s well established that a trial court can impose reasonable limits on questioning and time. Id. citing McManus v. State, 591 S.W.2d 505, 520 (Tex. Crim. App 1980) (not abuse of discretion to disallow duplicitous question); Clark v. State¸608 S.W.2d 667, 669 (Tex. Crim. App. 1980) (trial court can set reasonable time limits); Abron v. State, 523 S.W.2d 405, 408 (Tex. Crim. App. 1975) (trial court can set reasonable time limits, restrict repetitious or vexatious questions, restrict questions asked in improper form, restrict questions directed at personal habits of jurors). Because it is a balancing of two rights, a trial court’s decision to limit voir dire is reviewed for abuse of discretion. Id. citing Smith, 703 S.W.2d 641, 643 (Tex. Crim. App. 1985).

Some time limits are too much. See E.g. Morris v. State, 1 S.W.3d 336 (Tex. App – Austin 1999) (45 minute time limit in Aggravated Assault case inappropriate); Cartmell v. State, 784 S.W.2d 183 (Tex. App – Fort Worth 1990) (20 minute time limit in DWI unreasonable).  The central question is did counsel have enough time to intelligently question the venire? Look a little later in the paper for how to preserve error if your time is cut short.

Question Limitations

In addition to the trial court’s discretion, the Court of Criminal Appeals has defined limits of what questions may be asked during Voir Dire. “A question is proper if it seeks to discover a juror’s views on an issue applicable to a case.”  Barajas,93 S.W.3d at 39, citing Smith v. State, 703 S.W.2d 641, 643 (Tex.Crim.App. 1987). Questions which would be appropriate can become objectionable when they are either too vague or too specific. 

Overly Broad

With the touchstone of attempting to intelligently strike jurors, either preemptively or for cause, we need to make our voir dire questions specific enough to touch on the issues of our case.  “[A] trial judge can exercise his discretion to prevent an improperly phrased question from being asked when it threatens to duplicate earlier questions, or presents so broad a question as to constitute a global fishing expedition.” Smith v. State, 703 S.W.2d 641,645 (Tex. Crim. App. 1985 overruled on other grounds).

The Smith case provides great examples of asking too broad or too narrow of questions. Mr. Smith’s attorney was relying entirely on the insanity defense at trial. Counsel’s question of the jurors about “their thoughts” on the insanity defense was found to be too broad. The Court found that to be a “general topic for discussion” and did not attempt a more restrictive question or direct the question to specific jurors based on prior answers.  See Id. However, counsel’s question to the jury panel of “their idea of punishment” and “what they think its purpose should be” where his client was charged with murder and had filed for probation was proper.  See Id.

Unfortunately, Smith was overruled by Easley v. State, which relegated limitations on juror questioning to non-constitutional harm analysis. Easley v. State, 424 S.W.3d 535 (Tex. Crim. App. 2014). Nonetheless, craft your questions to the theme and points in your case and object when the other side does not.

Commitment Questions

Too tight of a scope of question can draw and objection just as quickly as one that is too broad. Trying to nail a juror down to a specific answer may draw that terrible and confusing objection: a commitment question.

What is a commitment question? “Commitment questions are those that commit a prospective juror to resolve, or refrain from resolving, an issue a certain way after learning a particular fact.” Standfer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001). Not all commitment questions are objectionable.  Id. at 182. To be objectionable, a commitment question must either (1) ask a commitment where the law does not require one or (2) provide facts in addition to what is needed to establish a challenge for cause. Id.

The Inappropriate Commitment

In the first scenario the problem is asking the juror to commit when it’s not appropriate. The question “Can you consider the entire punishment range in a murder case?” is a proper commitment question. However, the question “Can you consider my clients age in mitigation?” is not. A juror cannot be challenged for cause for failure to consider specific mitigation evidence. Raby v. State, 970 S.W.2d 1, 3 (Tex. Crim. App. 1998), cert. denied, U.S., 525 U.S. 1003 (1998).

The key is does a possible answer to the question lead to a valid challenge for cause? See Id. In the example above, no matter what the answer is considering your clients age, you cannot challenge the juror for cause.

Remember that as long as you’re not seeking commitment, you are not prohibited from exploring any number of issues. Consider these two questions: “Do you believe age can influences a person’s choices and actions?” vs. “Can you consider my client’s age when looking at his actions?” The first question is a information gathering question. It does not demand a commitment. Question two however…

Committing To Too Much

The second scenario is when the question adds too much to your commitment question. Look at a permutation of our appropriate commitment question on a range of punishment: “Can you consider the entire range of punishment in a murder case when the victim was a clown?” Now we have an additional fact:  the identity of the victim.

“To be proper, then, a commitment question must contain only those facts necessary to test whether a prospective juror is challengeable for cause.” Standfer, 59 S.W.3d at 182.  The Court in Standfer uses the example of the decision in Atkins v. State. There, the prosecutor asked prospective jurors if they could convict a person of possession of a controlled substance if the crack pipe in their pocket during arrest had residual amount of cocaine in it. Atkins v. State, 951 S.W.2d 787, 789

(Tex.Crim.App.1997).The additional facts of the arrest, the crack pipe, and the fact that it was in defendant’s pocket “rendered improper what otherwise would have been a proper question designated to assess whether a prospective juror was challengeable for cause.” Id.

To keep it in perspective, then, remember it’s ok to ask a juror to commit, as long as the law requires them to.

Juror Questionnaire

Not all examination of the venire has to be done orally.  A well-crafted juror questionnaire can not only help with identifying specific jurors you want to zero in on and challenge for cause, but frequently will give you some information on that juror in the back you never got to while you’re doing your strikes.

There is no requirement that a judge allow or include the use of any questionnaire or a specific questionnaire. Remember that the trial court has very broad discretion in conducting voir dire that trial courts are given. Barajas, 93 S.W.3d at 38 (Tex.Crim.App 2002). If you get shut down, make your record as to how your inability to use the questionnaire inhibits your ability to effectively question the venire and exercise your preemptory challenges. Also make the case to your judge that the questionnaire will make voir dire go faster, since you’ll have to ask all those questions in person if you can’t do it on paper.

Even if a questionnaire is allowed BEWARE! You cannot rely on a questionnaire alone to challenge for cause. Gonzales v. State, 3 S.W.3d 915 (Tex. Crim. App. 1999). You must follow up with oral questions to establish a jurors answer. “[W]ritten questionnaires, while often helpful tools in conducting voir dire, do not constitute a formal part of the voir dire proceeding.” Garza v. State, 7 S.W.3d 164, 166 (Tex. Crim. App. 1999). A questionnaire can be an amazing tool for jury selection but can only go so far.

Preserving Error

What do you do if you feel like your questions were inappropriately excluded, either by time or direct objection? To preserve error concerning the manner of voir dire, the record must reflect a question which the trial court has not allowed to be answered. Caldwell v. State, 818 S.W. 29d 790, 794 (Tex. Crim. App. 1991). It has to more than just a general question. “A question that is so vague or broad as to constitute a global fishing expedition is not proper, and fails to preserve error because it is impossible for a reviewing court to determine if the question is relevant and property phrased.”Id.

The abuse of discretion test for voir dire is three pronged:  (1) whether the party attempted to prolong the voir dire; (2) whether the questions that the party was not permitted to ask were proper voir dire questions, and; (3) whether the party was not permitted to examine prospective jurors who actually served on the jury. Ratfill v. State, 690 S.W.2d 597, 600 (Tex. Crim. App. 1985). To preserve the error, the reviewing court will need enough information to answer those questions.

As a practical matter, to do this you will need to identify the person or persons you were unable to question, the specific questions that would have been asked, and that these persons actually served on the jury. This can be done either by dictating that information to the court reporter or by filling a bill of exceptions. But be careful! The timeliness requirement of objections requires that the trial court is made aware of objections or complaints at a time when there is an opportunity to cure or respond to the complaints. The “contemporaneous objection rule” is that an objection must be made at the first opportunity to do so. Tex. R. App. Proc. 33.1; Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997). Filing your bill of exception or dictating objections after a Jury is sworn will probably be too late. Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991).

Challenging the Juror

Let’s step back and remember why we are asking these questions: to intelligently exercise our peremptory challenges. See Smith, supra. There are three ways a prospective juror may be dismissed. The first is by agreement of the parties. Tex. Code Crim. Proc. §35.05. Second is to establish for the court that a potential juror is not qualified. Tex. Code Crim. Proc. §35.16. Finally, is to use one of the limited number of preemptory challenges afforded each side.

Challenges for Cause

A challenge for cause is established from a juror not meeting the basic qualifications discussed above or by showing some objectionable level of bias or prejudice. The sole finder of fact on the disqualification of jurors is the Judge.  “The court is the judge, after proper examination, of the qualifications of a juror, and shall decide all challenges without delay and without argument thereupon.” Tex. Code Crim. Proc. §35.21.

Basic Qualifications

Any juror may be dismissed for failing to meet one or more of the basic qualifications from the Texas Government Code or Code of Criminal Procedure noted above. “A challenge for cause is an objection made to a particular juror, alleging some fact which renders the juror incapable or unfit to serve on the jury.” Tex. Code Crim. Proc. §35.16(a). Additionally, the State may dismiss any juror within the third degree of consanguinity or affinity of the Defendant. Tex. Code Crim. Proc. §35.16(b). The Defendant may do the same for any person injured by the alleged offense, or to any prosecutor in the case. Tex. Code Crim. Proc. §35.16(c).

Remember that with the exception of having a pending misdemeanor theft or felony, being convicted of theft or felony, or being insane, any juror disqualification can be waived.  Tex. Code Crim. Proc. §35.19; Mayo v. State, 4 S.W.3d 9, 12 (Tex. Crim. App. 1999). And even past insanity may not be enough!  See Carter v. State 278 S.W.840 (Tex. Crim. App. 1925). In Carter, the Defendant found out after the trial that one of his jurors “had been duly adjudged a lunatic and confined in the insane asylum at Terrell…” Id. However, because there was no objection, and because the court did not clearly abuse its discretion in judging the juror sound of mind, there was no error.  Id. You must lodge an objection to preserve an error for appeal. 

Bias or Prejudice

In addition to the qualification issues for each juror “a prospective juror is challengeable for cause if he or she has a bias or prejudice against the defendant or against the law upon which either the State or the defense is entitled to rely.”  Buntion v. State, 382 S.W.3d 58, 83 (Tex. Crim. App 2016), citing  Tex. Code Crim. Proc. §35.16(a)(9) & (c)(2); Gardrner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009).  A prospective juror is disqualified if their bias or prejudice would substantially impair their ability to follow their oath to uphold the law. Id., citing Wainwright v. Witt, 469 U.S.412, 424 (1985).

Bias does not have to be proven with unmistakable clarity. Id. For a prospective juror to be excused for cause, the law must be explained to them, they must understand the requirements of the law, and they cannot overcome their prejudice well enough to follow the law. Davis v. State, 329 S.W.3d 789, 807 (Tex. Crim. App. 2010). The proponent for the challenge for cause has the burden to show their challenge is proper. See, e.g., Howard v. state, 941 S.W.2d 102, 128 (Tex. Crim. App. 1996); Harris v. State, 784 S.W.2d 5, 25 (Tex. Crim. App. 1989).

The flip side of a direct answer establishing bias is an evasive or vacillating venireman. Getting different answers or having a juror who is unable or unwilling to say that they can follow the law is a basis for cause. Riley v. State, 889 S.W.2d 290, 300 (Tex. Crim. App. 1993).

The central test for juror bias isn’t whether a person is influenced by their background or pre-conceived notions. If a prospective juror is consistent that they can put aside bias, even if it would be difficult or “violate their moral conscious”’, they are not challengeable for cause. See Id. The test if they are unwilling or unable to follow the law. See Id.

Remember the foundation of who is making the final decision. The trial court is given extreme deference since they are “in the best position to evaluate a venire member’s demeanor and responses.” Colburn v. State, 966 S.W.2d 511, 517 (Tex. Crim. App. 1998). An appeals court will review all the evidence for a challenge for cause, and only reverse on a clear abuse of discretion.  Davis, 329 S.W.3d at 808.

Rehabilitating Jurors

Once a potential juror reveals a bias or prejudice, can they be brought back from being caused? The answer is maybe.  The general rule is that once a bias or prejudice is established, the juror must be dismissed. Tex. Gov’t. Code §62.105(4); Tex. Code Crim. Proc. §35.16(a)(9). It is not discretionary. 

The previous rule was once established, a juror could not be rehabilitated. Sullemon v. U.S. Fidelity & Guaranty Co., 734 S.W.2d 10, 14 (Tex. App – Dallas 1987, no writ). Even if a juror is “rehabilitated through the efforts of counsel or the court by stating that he would decide the case on the evidence and could be fair to both sides, the trial court must excuse the juror.” White v. Dennison, 752 S.W.2d 714 (Tex. App. – Dallas 1988), citing Gum v. Schaefer, 683 S.W.2d 803, 808 (Tex. App. – Corpus Christi 1984, no writ).

While not specifically overruling that standard, the Texas Supreme Court in 2005 essentially left the determination with the trial court’s discretion. Cortez ex rel. Estate of Puentes v. HCCI – San Antonio, Inc. 159 S.W3d 87 (Tex. 2005).  In disapproving of the hard and fast rule of no rehabilitation, the Supreme Court in Cortez held that “trial courts exercise discretion in deciding whether to strike venire members for cause when bias or prejudice is not established as a mater of law, and there is error only if that discretion is abused.”  Id. at 92. “If the initial apparent bias is genuine, further questioning should only reinforce that perception…”Id.at 93

Preserving Error

So what to do if the Judge denies your perfect challenge for cause? “To establish harm for an erroneous denial of a challenge for cause, the defendant must show on the record that he used a preemptory strike to remove the venireperson and thereafter suffered a detriment from the loss of the strike.” Buntion v. State, 482 S.W.3d 58 (Tex. Crim. App. 2016). Preserving error in jury selection is a five step process: 1) make a clear  and specific challenge for cause; (2) use a preemptory challenge on the complained of venire; (3) exhaust your preemptory challenges; (4) request and be denied additional strikes; and (5) identify an objectionable juror you were forced to accept. Id., citing Chambers v. State, 866 S.W.2d 9, 22 (Tex. Crim. App. 1993). Make a cheat sheet.  Check your list. Don’t skip your steps.

Peremptory Challenges

Juror number twelve is giving your client the stink eye, but knows how to answer all of your brilliant cause questions and not get kicked. What to do? Bring out the peremptory challenge. “A peremptory challenge is made to a juror without assigning any reason therefor.”   Tex. Code Crim. Proc. §35.14. These are your strikes to dismiss jurors who are not otherwise disqualified.

How Many You Get and How To Get More

The number of challenges given to each side is governed by level of offense being tried. A capital case receives fifteen strikes, non-capital felonies ten, misdemeanors tried in District Court five, and misdemeanors tried in the County Court, or County Court at Law, three. Tex. Code Crim. Proc. §35.15. If two or more co-defendants are tried together, a capital defendant receives eight strikes, non-capital felony six, and misdemeanors three each. Id. The State then receives equal strikes (e.g. two defendants with three strikes each equals six strikes for the State). Id.

If alternate jurors are to be used, both the State and Defense get one additional peremptory challenge if one or two alternates are to be used, two additional peremptory challenges if three or four alternates are used. Tex. Code Crim. Proc. §35.15(d). Those additional strikes can only be used on alternates, and your other strikes cannot be used on alternates. Id.

Additional peremptory strikes are discussed above with challenges for cause. An additional peremptory strike is granted to allow the judge “the opportunity to correct his error by granting additional peremptory strike to make up for the one that was wrongfully denied.” Comeaux v. State, 445 S.W.3d 745, 751 (Tex. Crim. App. 2014). Rule of thumb, you’ll never get more if you don’t ask.

Discriminatory Use (Batson)

Peremptory challenges are used any way one wants to, within limits. Either party “may strike any member of the venire panel for any reason (except a prohibited reason such as race or sex) or no reason at all.” Id. at 749. Strikes based on gender or race violate the equal protection clause of the fourteenth amendment. Batson v. Kentucky, 476 U.S. 79 (1986); Ladd v. State, 3. S.W.3d 547, 563 (Tex. Crim. App. 1999 overruled on other grounds).

To establish a Batson challenge, the party objecting must make a prima facie showing of discriminatory motives behind peremptory strikes. Herron v. State, 86, S.W.3d 621, 630 (Tex. Crim. App. 2002). Strikes in a pattern against a specific race or gender, along with statements during voir dire, may support or refute the inference of a discriminatory purpose.  Batson, 476 U.S. at 97.

If the court determines a prima facie showing of discriminatory use of peremptory challenges, the burden shifts to the other party to provide a discriminatory neutral explanation for the use of their challenge. Id. The trial court will then make a determination if intentional discrimination has been shown. Id. The trial court must consider the entire record. Watkins v. State, 245 S.W3d 444 (Tex. Crim. App. 2008).  The final determination is a fact question, and the trial court is given extreme deference in their findings. Id.

In addition to race, gender cannot be the basis for exclusion from jury service. JEB v. Alabama, 511 US 127 (1994); Fritz v. State, 946 S.W.2d 844 (Tex. Crim. App. 1997). Not all classes are protected from a biased peremptory strike.  Batson’s foundation is equal protection analysis. Harkening back to law school days, some classes and groups receive more protection than others. “A violation of the Equal Protection Clause may occur when the government discriminates against the members of a class of individuals who have historically suffered discrimination, i.e., a “suspect” class, or when the government impairs the members of a class from exercising a fundamental right.” Casarez v. State, 913 S.W.2d 468, 473 (Tex. Crim. App. 1995).

Equal protection analysis does not apply to peremptory challenges of prospective jurors on the basis of religion. Id. at 472-74.Striking a juror for age is not prohibited.  See Gerber v. State, 845 S.W.2d 460, 465 Tex. App.—Houston [14th Dist.] 1993, pet. ref’d.) While a juror may not be dismissible simply because of their disability, a rational explanation stemming from a disability is not prohibited. U.S. v. Harris, 197 F.3d 870 (7th Cir. 1999) (Dismissal of a juror with multiple sclerosis was proper due to medication making her tired).

The prohibition against peremptory challenges based on race is codified at Tex. Code Crim. Proc. §35.261.  But don’t stop just at race. Batson does not apply to a challenge for cause. When a potential juror cannot follow they law, they can be precluded from jury service. See Staley v. State, 887 S.W.2d 885 (Tex. Crim. App. 1994). If, however, there is a discriminatory purpose behind the use of preemptory challenges it must be rationally related to a legitimate governmental interest.  Casarez, 913 S.W.2d at 474. Watch how voir dire is conducted and preserve that discriminatory challenge if it appears to be harming your client.

Conclusion

So how do you do this? That is a question of style and far beyond my area to lecture on. If by the Colorado Method or psychodrama, rhetorical or scaled questions, lecture or looping, every person has their own style. If I have learned anything, it’s that while you can learn from every attorney you watch, you cannot be any of them. You need to find your style.

But while you’re doing that, keep the central tenants in mind: 1) The trial court is going to make the ultimate determination with wide deference; 2) The exclusion of a juror isn’t because they have a bias or prejudice, but because they cannot put it aside; and 3) harm for appeal only comes about if you have an objectionable juror on your case either because you had to waste a peremptory on anther, or got cut off and didn’t get to question that objectionable juror.

The rules of voir dire are not short and sweet. And every voir dire should be different for every case. Set your theme, convey your foundations, and seek out the jurors sympathetic to your case. It is the court’s job to find a neutral and unbiased jury. It is ours to advocate for our clients.

HIPAA in the Age of COVID

Most of us are familiar with the Health Insurance Portability and Accountability Act of 1996, better known as HIPAA. While digital discovery and electronic transfer of records is no new thing, COVID stomped on the accelerator pushing lawyers into technology and e-practice. A lot of us are stumbling into the digital realm and safeguarding the Protected Health Information (PHI) we have in our possession probably isn’t the first thing on our to do list. Unless you want to risk the potential of fines between $119 and $59,522 per violation, you’re going to want to pay attention. 

To understand if your practice falls under the regulations of HIPAA, you first need to look at the Texas Medical Records Privacy Act (TMRPA). The TMRPA’s definition of a covered entity is broader than the Federal Law. If you create, receive, store, or work for someone that creates, receives, or stores PHI, you fall under TMRPA. Texas Health and Safety Code §181.001(b)(2)(A-D) Essentially, if you come into contact with PHI, you’re a covered entity and will need to comply with the requirements protecting that information.

What is Protected Health Information (PHI)?  PHI is information, including demographic information, which relates to an individual’s past, present, or future physical or mental health condition, healthcare, or payment for the healthcare information that identifies the individual.  45 C.F.R. §160.103 This includes information transmitted by electronic media, maintained in electronic media, or “Transmitted or maintained in any other form or medium.”  Id.  So, if it’s medical information that can be tied to a specific person, it’s probably PHI.

As criminal defense attorneys there is a really good chance we’ll end up being covered entities regulated by HIPAA and TMRPA because of the information that we come to possess regarding our clients: from the mental health records we receive for a mitigation packet or for a grand jury presentation, to the TDCJ records that include infirmary trips, to the SAFPF records that include counseling information, to the UA results for a pre-trial check in, or to the discovery with EMT or blood draw records, the potentials are pretty limitless. Remember too that it does not have to just be our client’s PHI. Records we receive on third parties like witnesses or family members still fall under HIPAA and TMPRA regulations.

What does it mean then that we are covered entities maintaining confidentiality of PHI?  Obviously secondary possessors of PHI like attorneys were not the main focus of HIPAA or the TMRPA. PHI is not our main focus, but we are still required to protect medical privacy. Big picture is two things: 1) We cannot release PHI without a proper release; and 2) we have to comply with other provisions of HIPAA and TMRPA for safeguarding, training, and notice requirements. 

Under what circumstances can a party re-disclose PHI that we have received? The first is to have a valid court release such as a subpoena signed by the Judge, a Grand Jury subpoena, or an administrative subpoena that authorizes a covered entity to re-disclose PHI in their possession.  However, that is not the most likely scenario for when we will re-disclose PHI. Usually,  those subpoenas are going to go to the people creating the PHI. We will need a valid release to re-disclose PHI.

A valid release is more than just a set of initials on your intake contract saying you can use a client’s medical records for anything we need. Texas Health and Safety Code 181.154(d) tasked the Attorney General with creating a standardized form to comply with signed releases to comply with TMRPA and HIPAA. The 2013 form has some specific requirements like designating who the documents are being released to (not just “anyone who wants them”), the purpose of the release, a description of the information to be used or disclosed, and a specific expiration date. Additionally, there must be a separate statement for release of mental health records, drug or alcohol information, or HIV records that are to be released. The Attorney General’s standardized form is available at https://www.texasattorneygeneral.gov/sites/default/files/files/divisions/consumer-protection/hb300-Authorization-Disclose-Health-Info.pdf. Your releases are allowed to be in written or electronic format, or even orally given as long as properly documented. Tex. Health &Safety Code 181.154(b) Best practices though: GET IT IN WRITING.

What constitutes a valid signature? It’s easy enough when a client is in person with a State ID to verify who is signing your release. But gone are the days of ink and pen, and an electronic signature is acceptable as long as it is valid under applicable law. The touchstone is the ability to verify that the signature is valid, and the person signing has the authority to do so. There are some programs, SIGNiX, eSignLive by Vasco, and Adobe Sign have been found to comply with HIPAA requirements of verification.

What about just safeguarding the records in our file? Is your USB drive encrypted? Can you use your Hotmail account to e-mail the records to another attorney or the Judge? How complex is your password? These are all things that HIPAA and through it the TMRPA expect you to have considered and made a plan for. The TMRPA adopts the standards of HIPAA at Texas Health and Safety Code 181.004.  HIPAA lays out standards to ensure confidentiality, protect against reasonably anticipated threats, protect against reasonably anticipated non-permitted uses or disclosures, and ensure compliancy by your workforce. 45 C.F.R. §164.306 It does not make a list of “do this and don’t do that” but requires that any covered entity assess the level of risk to accidental disclosure, make a plan, and justify what choices were made and why.  The goal is that if there ever is a breach, we can show we did everything we could to avoid it.  Here are some highlights of best practices:

Encryption

Encryption renders PHI unreadable and undecipherable. The data can only be read if a key or code is applied to decrypt the data.  While encryption is not required for all ePHI data, HIPAA-covered entities should conduct a risk analysis to determine the level of risk and if encryption is not used what other safeguards are used in its place.  There are many options for encryption programs out there, both free and paid. Before you go drop off that USB for the District Attorney, take a look at https://www.techradar.com/best/best-encryption-software for some ideas.

Passwords

Even though passwords are usually the front line to prevent unauthorized access to data, the only requirement in HIPAA is that covered entities create “Procedures for creating, changing, and safeguarding passwords.” The National Institute of Standards and Technology (NIST) recommends a password be between 8 – 64 characters, using passphrases instead of previously recommended complex passwords that people forget or write down to remember.  So instead of using a complex sequence of numbers, letters, and symbols, use something only you would know as a passphrase like “Mywifesbirthday!JanuaryFirst1980”.

Third Party Storage

Are you using another company to maintain your files? If so you’re going to need a business associates agreement. 45 CFR §164.308(b) A business associates agreement is simply a written agreement that the third party you are paying is going to take all of the necessary steps to protect your data instead of you doing it yourself.

E-mail

Not all e-mail is created equal. Using your 45 hours of free AOL access to send ePHI documents to your expert or the judge is not secure. If you’re e-mailing ePHI you need to make sure your e-mail is HIPAA compliant. To do that you need a few things: 1) End to end encryption; 2)  a business associates agreement with your email provider; 3) make sure to configure your e-mail correctly; and 4) have policies and training for your staff for e-mailing ePHI. Talk to your e-mail provider about making your e-mail HIPAA compliant on how to set up your account to send HIPAA compliant e-mails.

If you’re not a solo practitioner, you have to make sure that you’re training your associates too. Texas Health and Safety Code 181.101 requires training of employees on both State and Federal law regarding any PHI they may come into contact with. That training must be done within 90 days of hire, and the employee is required to sign a statement verifying the training. Tex. Health &Safety Code 181.101(a) & (d) 

And why are we doing all of this? Because we want to avoid the enforcement arm of HIPAA and the TMRPA.  The TMRPA in addition to injunctive relief provides for civil penalties: $5,000 per violation for negligent violations and $25,000 per violation for intentional or knowing violations up to $1.5 MILLION per year. Texas Health and Safety Code §181.201. As noted above, the Department of Health and Human Services published a final rule increasing the civil penalties for 2020.  For violations the covered entity did not know about, fines can be between $119 and $59,522 per violation.  If the violation is due to willful neglect the penalty jumps to between $11,904 and $59,522 per violation. 

These are not nebulous threats.  In May 2017 HHS levied a $2.4 million civil penalty against Texas Health Systems after they released the name of a patient who had presented fraudulent identification and was subsequently arrested.    Concentra Health Services in Addison, Texas was fined $1.7 million after an unencrypted laptop was stolen from its facilities. The largest HIPAA fine to date has been against Anthem Health in 2019 for $16 million dollars for failing to protect patient data.

So what do we take away from this? It is to remember that as we implement new technology and new ways of doing business into our practices we be aware of steps to make sure private client information stays private. A lot of us may be old hat to encrypted transfers and two step verification, but there are lot of lawyers (and their staff) who are not. Take the time to learn about the new technology you’re using, and how to use it better to comply with privacy of all kinds.

HIPAA in the Age of COVID

/

Most of us are familiar with the Health Insurance Portability and Accountability Act of 1996, better known as HIPAA. While digital discovery and electronic transfer of records is no new thing, COVID stomped on the accelerator pushing lawyers into technology and e-practice. A lot of us are stumbling into the digital realm, and safeguarding the Protected Health Information (PHI) we have in our possession probably isn’t the first thing on our to do list.  Unless you want to risk the potential of fines between $119 and $59,522 per violation, you’re going to want to pay attention. 

To understand if your practice falls under the regulations of HIPAA, you first need to look at the Texas Medical Records Privacy Act (TMRPA). The TMRPA’s definition of a covered entity is broader than the Federal Law. If you create, receive, store, or work for someone that creates, receives, or stores PHI, you fall under TMRPA. Texas Health and Safety Code §181.001(b)(2)(A-D). Essentially, if you come into contact with PHI, you’re a covered entity and will need to comply with the requirements protecting that information.

What is Protected Health Information (PHI)? PHI is information, including demographic information, which relates to an individual’s past, present, or future physical or mental health condition, healthcare, or payment for the healthcare information that identifies the individual. 45 C.F.R. §160.103. This includes information transmitted by electronic media, maintained in electronic media, or “Transmitted or maintained in any other form or medium.” Id. So, if it’s medical information that can be tied to a specific person, it’s probably PHI.

As attorneys, there is a really good chance we’ll end up being covered entities regulated by HIPAA and TMPA. For example, Mental Health records we receive for a mitigation packet for a grand jury presentation, TDCJ records that include infirmary trips, SAFPF records that include counseling, UA results for a pre-trial check in, or discovery with EMT or blood draw records, the potentials are pretty limitless. Remember, too, that it does not have to just be our client’s PHI. Records we receive on third parties like witnesses or family members still fall under HIPAA and TMPRA regulations.   

What does it mean then that we are covered entities maintaining confidentiality of PHI? Obviously, secondary possessors of PHI like attorneys were not the main focus of HIPAA or the TMRPA. PHI is not our main focus, but we are still required to protect medical privacy. Big picture is two things: 1) We cannot release PHI without a proper release, and 2) we have to comply with other provisions of HIPAA and TMRPA for safeguarding, training, and notice requirements. 

Under what circumstances can a party re-disclose PHI that we have received? The first is to have a valid court release. A subpoena signed by the Judge, a Grand Jury subpoena, or Administrative Subpoena authorizes a covered entity to re-disclose PHI in their possession. That is not the most likely scenario for when we will re-disclose PHI. Usually those subpoenas are going to go to the people creating the PHI. We will need a valid release to re-disclose PHI.

A valid release is more than just a set of initials on your intake contract saying you can use a client’s medical records for anything we need. Texas Health and Safety Code 181.154(d) tasked the Attorney General with creating a standardized form to comply with signed releases to comply with TMRPA and HIPAA. The 2013 form has some specific requirements like designating who the documents are being released to (not just “anyone who wants them”), the purpose of the release, a description of the information to be used or disclosed, and a specific expiration date. Additionally, there must be a separate statement for release of mental health records, drug or alcohol information, or HIV records that are to be released. The Attorney General’s standardized form is available at https://www.texasattorneygeneral.gov/sites/default/files/files/divisions/consumer-protection/hb300-Authorization-Disclose-Health-Info.pdf  Your releases are allowed to be in written or electronic format, or even orally given as long as properly documented. Tex. Health &Safety Code 181.154(b) Best practices though: Get it in writing.

What constitutes a valid signature? It’s easy enough when a client is in person with a State ID to verify who is signing your release. But gone are the days of ink and pen, and an electronic signature is acceptable as long as it is valid under applicable law. The touchstone is the ability to verify that the signature is valid, and the person signing has the authority to do so. Some programs – SIGNiX, eSignLive by Vasco, and Adobe Sign – have been found to comply with HIPAA requirements of verification. 

What about just safeguarding the records in our file? Is your USB drive encrypted? Can you use your Hotmail account to e-mail the records to another attorney or the Judge? How complex is your password? These are all things that HIPAA, and through it, the TMRPA expect you to have considered and made a plan for. The TMRPA adopts the standards of HIPAA at Texas Health and Safety Code 181.004. HIPAA lays out standards to ensure confidentiality, protect against reasonably anticipated threats, protect against reasonably anticipated non-permitted uses or disclosures, and ensure compliancy by your workforce. 45 C.F.R. §164.306. It does not make a list of “do this and don’t do that” but requires that any covered entity assess the level of risk to accidental disclosure, make a plan, and justify what choices were made and why.  The goal is that if there ever is a breach, we can show we did everything we could to avoid it.  Here are some highlights of best practices:

Encryption. Encryption renders PHI unreadable and undecipherable. The data can only be read if a key or code is applied to decrypt the data. While encryption is not required for all ePHI data, HIPAA-covered entities should conduct a risk analysis to determine the level of risk and if encryption is not used what other safeguards are used in its place. There are many options for encryption programs out there, both free and paid. Before you go drop off that USB for the District Attorney, take a look at https://www.techradar.com/best/best-encryption-software for some ideas. 

Passwords. Even though passwords are usually the front line to prevent unauthorized access to data, the only requirement in HIPPA is that covered entities create “Procedures for creating, changing, and safeguarding passwords.” The National Institute of Standards and Technology (NIST) recommends a password be between 8 – 64 characters, using passphrases instead of previously recommended complex passwords that people forget or write down to remember. So instead of using a complex sequence of numbers, letters, and symbols use something only you would know as a passphrase like “Mywifesbirthday!JanuaryFirst1980”

Third Party Storage. Are you using another company to maintain your files? If so, you’re going to need a business associates agreement. 45 CFR §164.308(b). A business associates agreement is simply a written agreement that the third party you are paying is going to take all of the necessary steps to protect your data instead of you doing it yourself. 

E-mail. Not all e-mail is created equal. Using your 45 hours of free AOL access to send ePHI documents to your expert or the judge is not secure. If you’re e-mailing ePHI you need to make sure your e-mail is HIPAA compliant. To do that you need a few things: (1) end to end encryption; (2) a business associates agreement with your email provider; and (3) make sure to configure your e-mail correctly; (4)  have policies and training for your staff for e-mailing ePHI. Talk to your e-mail provider about making your e-mail HIPAA compliant on how to set up your account to send HIPAA compliant e-mails.

If you’re not a solo practitioner, you have to make sure that you’re training your associates, too. Texas Health and Safety Code 181.101 requires training of employees on both State and Federal law regarding any PHI they may come into contact with. That training must be done within 90 days of hire, and the employee is required to sign a statement verifying the training.  Tex. Health &Safety Code 181.101(a) & (d). 

And why are we doing all of this? Because we want to avoid the enforcement arm of HIPAA and the TMRPA. The TMRPA in addition to injunctive relief provides for civil penalties: $5,000 per violation for negligent violations and $25,000 per violation for intentional or knowing violations up to $1.5 MILLION per year. Texas Health and Safety Code §181.201. As noted above, The Department of Health and Human Services published a final rule increasing the civil penalties for 2020. For violations the covered entity did not know about fines can be between $119 and $59,522 per violation. If the violation is due to willful neglect the penalty jumps to between $11,904 and $59,522 per violation. 

These are not nebulous threats. In May 2017, HHS levied a $2.4 million civil penalty against Texas Health Systems after they released the name of a patient who had presented fraudulent identification and was subsequently arrested. Concentra Health Services in Addison, TX was fined $1.7 million after an unencrypted laptop was stolen from its facilities. The largest HIPAA fine to date has been against Anthem Health in 2019 for $16 million dollars for failing to protect patient data.

So, what do we take away from this? Remember that as we implement new technology and new ways of doing business into our practices, we ought to be aware of steps to make sure private client information stays private. A lot of us may be old hat to encrypted transfers and two step verification, but there are lot of lawyers (and their staff) who are not. Take the time to learn about the new technology you’re using, and how to use it better to comply with privacy of all kinds.

Balancing the Scales: A Closer Look at Ake v. Oklahoma

In October of 1979, Glen Burton Ake quit his job as an oil field worker. He and a co-worker, Steven Keith Hatch, borrowed a car and drove to the home of Reverend and Mrs. Richard Douglass. Ake and Hatch held the Douglass’s and their two children, Brooks and Leslie, at gunpoint. They bound and gagged the mother, father, and son and attempted to rape twelve year old Leslie. They then shot all four of the Douglass family. Reverend and Mrs. Douglass died, but the children survived.

This horrible, life shattering evening was the predicate to the United States Supreme Court case that leveled the playing field in criminal law more than any cases since Gideon v. Wainwright. Prior to Ake v. Oklahoma in 1985, there was no constitutional guarantee of funding for indigent defendants to obtain experts to mount a defense. Ake, and its progeny, recognized that “justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.” 1

This paper is going to take a closer look at Ake, its background and the Supreme Court’s holding. Next, we’ll take a look at how the law developed to its current state and its application in Texas. Finally, we’re going to look at some practical application points for obtaining funding for your indigent, or sometimes even retained clients to be able to participate meaningfully when their liberty is at stake.

 A Closer Look At Ake

From the introduction to this paper we can see that the facts of The State of Oklahoma vs. Glen Burton Ake are horrific. Two parents murdered and a family devastated. The judicial process afforded to Glenn Ake leading up to his Supreme Court appeal was almost as bad. During arraignment on two counts of murder in the first degree and two counts of shooting with the intent to kill, Ake’s behavior was so bizarre that the trial judge, sua sponte, ordered Ake examined for competency.  2 Ake was diagnosed with paranoid schizophrenia, and transferred to a state hospital with respect to his “present sanity”. 3 

Six weeks after his transfer to the state hospital, Ake was declared competent to stand trial: as long as he had three daily doses of 200 milligrams each of Thorzine. For comparison, the current recommended dosage according to drugs.com is about 1/10th of that amount for the most severe cases of psychosis in an outpatient setting. Even the Oklahoma Court of Criminal Appeals acknowledged that Ake “stared vacantly ahead through the trial.” 4

In June of 1980 at a pretrial conference, Ake’s attorney informed the trial court that he intended to raise insanity as a defense to the charges against Ake. Ake’s attorney requested that the court either arrange for a psychiatrist to examine Mr. Ake for trial, or provide the funds for the tests to be arranged. The request was denied. 5

At trial the defense called each of the psychiatrists who had examined Mr. Ake at the state hospital to address his sanity at the time of the offense. However, none of those doctors examined Ake in regards to his sanity at the time of the offense. The State hammered that point on cross examination. The jury was instructed that Ake was presumed sane at the time of the offense unless he provided sufficient evidence to raise a reasonable doubt about his sanity at the time. 6 Ake had no expert witness to testify to his sanity. The jury rejected Ake’s defense of insanity and found him guilty on all counts.

At the sentencing proceeding no new evidence was presented. The State relied heavily on the testimony of the psychiatrists who all testified during the guilt phase that Ake was dangerous. Ake had no expert to rebut that testimony. He was sentenced to death on each of the murder counts and five hundred years imprisonment on the two counts of shooting with intent to kill. 7

Ake appealed to the Oklahoma Court of Criminal Appeals. He argued, among other issues, that as an indigent defendant he should have been provided the services of a court-appointed psychiatrist. His argument was rejected. The Oklahoma Court of Criminal Appeals held that even when attempting to impose the death penalty, “the State does not have a responsibility of providing such services to indigents charged with capital crimes.” 8

The Supreme Court granted certiorari and ultimately reversed the convictions. Relying on the Fifth and Fourteenth Amendments of the United States’ Constitution the Court determined that “mere access to the courthouse doors does not by itself assure” a fair trial. 9  Defendants needed “access to the raw materials integral to the building of an effective defense.” 10 The court applied a three part balancing test to determine when additional protections validated providing those raw materials: 1) the private interest that will be affected by the action of the State; 2) the governmental interest that will be affected if the safeguard is to be provided; and 3) the probable value of the addition or substitute procedural safeguards that are sought and the risk of deprivation of the interest if the safeguards are not provided. 11

In Ake’s case, the first factor, the private interest, was clear: the State wanted to kill him. On the second factor, the State’s interest, the Supreme Court noted the minimal financial burden in providing expert assistance and that “a State may not legitimately assert an interest in maintenance of a strategic advantage over the defense, if the result of that advantage is to cause a pall on the accuracy of the verdict obtained.” 12 Finally, the court recognized the necessity of psychiatric assistance crucial to mounting a defense. The three factors weighed heavily in Ake’s favor and his convictions were reversed.

In 1986 Glen Burton Ake was retried on two counts of First Degree Murder and two counts of Shooting with Intent to Kill. He was found guilty and sentenced to life imprisonment for each of the First Degree Murder charges and two hundred years imprisonment for each of the Shooting with Intent to Kill. 13 He died in a prison hospital April 23, 2011, at age 55.  

The Aftermath of Ake

Ake v. Oklahoma provided a new foundation for obtaining expert assistance for indigent defendants. The specific holding, though, was narrow. The Supreme Court only ruled that “when a defendant makes a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist’s assistance on the issue if a defendant cannot otherwise afford one.” 14

How is this applicable in non-capital cases? Can we obtain funds for experts for non-psychiatric issues? Does this type of assistance apply to pre-trial hearings? Is it a neutral expert, or one specifically provided for the defense? How can this standard affect other grounds for which a defendant should be entitled to expert assistance? Can this apply to a non-criminal case? We will address each of these critical questions in turn.

 The Scope of Ake

As noted above, the holding in Ake was fairly limited.  One of the first questions was if the right to expert assistance goes beyond psychiatric assistance. There were some early attempts by various States to limit Ake’s holding to psychiatric assistance only. 15

However, the general consensus among the states, including Texas, is that upon a showing of need, the court must provide an indigent defendant an expert, “regardless of the field.” 16 17 (“There is no principled way to distinguish between psychiatric and nonpsychiatric experts. The question in each case must be not what field of science or expert knowledge is involved, but rather how important the scientific issue is in the case, and how much help a defense expert could have given.”). The same conclusion was reached on whether Ake applied to non-capital cases, and is accepted by most courts. 18 (“We [do not] draw a decisive line for due process purposes between capital and noncapital cases.”) 19

What about a non-criminal or quasi-criminal proceeding? Interestingly, a case pre Ake established the scope of expert assistance beyond that of only the criminal defendant. Little v. Streater was a paternity action that the Supreme Court labeled as “quasi-criminal”. 20 There an indigent defendant in a paternity suit had a right to a blood grouping test to determine paternity. 21

For non-criminal proceedings where indigent individuals are seeking court funded assistance, the Due Process analysis used in Ake is the same; weigh the private right balanced against the State’s interest and the probable value of the additional safeguard. Due process protections have been found to apply in a number of non-criminal proceedings. 22

 Whose Expert Is It?

Ake was vague on the question of what role the expert to be appointed would have in the case. It was not clear if a ‘neutral’ expert reporting to the court would satisfy due process protections, or if a Defendant was entitled to their own expert. Justice Rehnquist’s dissent in Ake even noted in the opinion that “I see no reason why the defendant should be entitled to an opposing view, or to a ‘defense’ advocate” 23

Courts are split on the question. The Fifth Circuit has held that “a court-appointed psychiatrist, whose opinion and testimony is available to both sides, satisfies [the accused’s] rights” 24

The Texas Court of Criminal Appeals, however, has ruled that a ‘disinterested’ expert witness does not satisfy the due process protections of Ake. 25 The court recognized that a neutral examination could not provide technical assistance, evaluate strengths of a defense, identify weaknesses in the State’s case or witnesses, or be able to testify at trial for the defense if favorable. 26 A defendant requires their own expert to help prepare and present their defense.

This does not mean that a defendant is entitled to an expert of their choosing. 27 30 Simply put, if you cannot afford to hire the expert you love, love the expert you can afford.

 Implications to Effective Representation

Now that our clients have the right to the assistance of an expert, what is our duty as attorneys to ask for that assistance? Does the failure to obtain an expert equate to a finding of ineffective assistance of counsel?

It may. If an attorney’s performance falls below “an objective standard of reasonableness under prevailing professional norms” that representation is ineffective.” 31

Briggs is a great case to review for appointed and retained attorneys alike. Ms. Briggs attorney was retained, and recognized that an expert was necessary to review medical records in a case involving the death of his client’s child. However she could not afford to retain experts. Ms. Briggs ultimately plead guilty to a lesser charge of injury to a child and was sentenced to seventeen years in prison.  Her case was overturned on a writ of actual innocence and ineffective assistance of counsel. The court found that her attorney was ineffective in not procuring the necessary experts to investigate and assist in the case. 32  The court, quoting Wiggins and Strickland remind us that while “strategic choices… are virtually unchallengeable” we, as attorneys, “have a duty to make reasonable investigations” to make those strategic choices possible. 33

What is an objective standard of reasonableness when it comes to seeking out and obtaining expert assistance? “Prevailing norms of practice as reflected in the American Bar Association standards and the like…are guides to determining what is reasonable.” 34

The State Bar of Texas has adopted “Performance Guidelines for Non–Capital Criminal Defense Representation.” 35  Specifically:

“Counsel should consider whether expert of investigative assistance, including consultation and testimony, is necessary and appropriate. Counsel should utilize ex parte and in camera procedures to secure the assistance of expert when it is necessary or appropriate to:

  1. The preparation of the defense;
  2. Adequate understanding of the prosecution’s case;
  3. Rebut the prosecution’s case or provide evidence to establish any defense;
  4. Investigate the client’s competence to proceed, mental state at the time of the offense, or capacity to make a knowing and intelligent waiver of constitutional rights; and
  5. Mitigate any punishment that may be assessed after a verdict or plea of guilty to the alleged offense.”
36

The test for effectiveness is the thoroughness of counsel’s investigation. “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable…” 37 If an expert is consulted, and not used, or a theory investigated and not pursued, that is not ineffective. It’s when we don’t look or we don’t ask that our representation falls short.

 Practical Applications

With the boundaries of Ake better defined, where does the rubber meet the road? How do we get the expert assistance we need to defend our clients? What if my client can pay me, but cannot afford to hire the expert we need? What can I do when the Judge says “no”?

 The Motion

There is no specific format that any motion must be in. There are however some central points to include in your motion, as well as times where requests for assistance have failed because these things were not there.

 Ex Parte

The first thing to note is that your motion for assistance should be ex parte. The foundation for this application comes from Ake itself. 38 Texas courts, following the due process principles that Ake used reached the same conclusion. 39

If, however the State wants to stick its nose in your request for assistance do not limit your argument for the ex parte aspect of your motion just to due process analysis. An attorney’s ability to retain an expert without the State’s input or even knowledge triggers equal protection, effective assistance of counsel, and due course constitutional arguments as well.

 Statement of Indigence

The central issues in Ake are that you need some expert assistance, and your client cannot afford it. Your motion must include some showing that your client is indigent and the reasons why you are asking the court to pay, i.e. why is the expert necessary.

Standards to determine indigence are found in the Texas Code of Criminal Procedure section 26.04(m). In determining indigence a court may consider: a defendant’s income; sources of income; assets; property owned; outstanding obligations; necessary expenses; number and ages of dependents; and spousal income that is available to the defendant. 40  The code specifically excludes a defendant’s ability to make bond, except that it reflects on their financial circumstances. 41

Additionally, Texas courts have held that it is the financial condition of the client, “not his parents or other relatives” that is relevant. 42 Indigence cannot be denied just because a defendant’s counsel is retained. 43  The question of indigence is at the time of the application, not the arrest or even based on previous findings of indigence. 44 Your motion does not have to lay out all of the arguments for indigence, but it must at least make the suggestion.

Centrality, Importance, and Complexity of the Issue to the Case

Just because you can get an expert does not mean that you will get an expert. “The state does not need to ‘purchase for the indigent defendant all the assistance that his wealthier counterpart might buy…” 45  “The burden is on the defendant to provide concrete reasons for why the expert should be appointed.” 46

In Ehrke, an indigent defendant wanted an expert appointed to retest the methamphetamines he was charged with. The Court of Criminal Appeals held that the application was appropriately denied because his motion failed to make a preliminary showing of significance, or why there was any reason to doubt the first analysis. 47 The court noted that motions which are denied tend to lack support for the request, such as affidavits or other evidence in support of the defensive theory, explanation of the defensive theory, or how an expert will help establish that theory. 48

This doesn’t mean not to request the help to challenge what has been accepted as established expert or scientific evidence. Eyewitness ID, bite mark evidence, arson investigation, and even finger print analysis have been called into question and even debunked. Just make sure to give the court the reason why you need the help.

State all of your legal grounds

If you want to make your appellate counsel happy remember this one phrase: if you haven’t raised it, you’ve waived it.

Appellate courts have no latitude to reverse a trial court’s decision on new theories of law not previously presented to the trial court for its consideration. 49 This means too that if you’re only ever making a due process argument your appellate counsel will never be able to argue your equal protection, right to counsel, due course of law, confrontation clause and due course of law arguments on appeal. An objection stating one legal theory at trial cannot be used to support a different legal theory on appeal. 50

Some judges may grant your Ake motion without any real analysis or argument. Some may fight you tooth and nail to open the purse strings and you’re going to need to develop your record with affidavits and potentially even testimony to show what you need and why. At the very least, your motion should have in it every conceivable constitutional ground as a foundation for your request for assistance. Ake was decided on due process, but it is not the only leg the argument has to stand on.

 What can you do when the Judge says “No”?

You’ve filed your motion and argued ex parte. You’ve shown a need and the centrality to your defensive theory, and supplemented with affidavits. You’ve urged and re-urged for your client and every time you hear “Denied counsel.” Or even better the judge gives you $250 for the DNA analysis central to your defense. Thanks…

What do you do? First you come to a hard realization: there is nothing we can do to make a judge do the right thing. They are not the judge because they are always right, they are always right because they are the judge… until they get overturned on appeal.

Most of the practical tips for what to do when you’re told “no” have already been addressed above. File your motion. Supplement and make your record. Make sure you’ve given your appellate counsel everything they need to develop a great argument on appeal if it’s needed. But also do all you can do. In Ex parte Briggs, discussed above, the Court of Criminal Appeals points out that if Ms. Briggs’ attorney had been denied the expert assistance he never sought he should have subpoenaed every doctor that ever made a note on the child’s health, introduce the medical records, and elicit their expert testimony. 51 If you’re denied the tools you need, use the tools you have.

Fighting the good fight does not hurt your client on appeal. In De Freece, the Court of Appeals attempted to explain away any harm of denying an expert because of defense counsel’s “admirable” cross-examination of the state’s psychological witness that succeeded in impeaching her without the benefit of expert assistance. 52 In response, the Court of Criminal Appeals pointed out that it “does not mean that he could not have done an even more effective job with the aid of an expert…” 53

That is the point; to do a better job for our clients. Before 1984 our scales of justice had a notable tip. Indigent Defendant’s had no right to the very basic of resources for their defense. Unless they were independently wealthy they didn’t have the vast resources which are available to the State.  Often those with significant resources got a better shake than those without. It goes without saying that the State will almost always possess significantly more resources than the accused. Ake v. Oklahoma put a thumb on that scale to help balance out the scales of justice. It’s up to you to use the tools that the Supreme Court has now provided.