Leonard Martinez

Legislators are currently considering changes to our criminal discovery statutes. Better late than never, some would say. Unfortunately, it took the tragic case of Michael Morton to even bring about the Legislature’s look at the criminal discovery statutes.² The question remains whether there will be changes, and if so, will they be more than window dressing. But before I continue with this article, I want to tell you about a case Leonard Martinez handled in Williamson County. This case happened several years ago while Michael Morton’s lawyers were fighting to get the discovery that would ultimately free him. In this context, the case is striking for its irony. What follows are the details of that case.

Leonard was retained to represent a former client at the last minute. The client was about to take a plea to aggravated robbery. He allegedly robbed a bank. Leonard knew him from having represented him on aggravated assault charges—charges that ultimately got dismissed. Leonard had developed a relationship with him and his family. In other words, it was a good old-fashioned lawyer who had a long-standing relationship with his client, unlike some of the high-volume, quick-turn-around legal services that have come to dominate law practice nowadays. In an article I co-authored with Leonard in the Voice for the Defense that came out a couple of months ago, we expressed our concerns for this new style of “salesmanship” as opposed to “lawyering.” And by the way, every judge and attorney who read that article has been very supportive, with one exception. One lawyer confronted Leonard, accusing us of being ignorant and slanderous. I wonder why this lawyer felt personally attacked.

Back to the case referred to above. You will see the irony, as the county where this case took place was Williamson County. The prosecutor was Williamson County District Attorney John Bradley and the judge was Ken Anderson. (As an aside, Leonard has known Ken Anderson for a long time and feels quite conflicted, angry, and sad over the whole Morton incident.) The style of the case is State v. David Villarreal. David was accused of going into a bank in Cedar Park, handing the teller a threatening note, and fleeing with cash. The robber was caught on surveillance video. The person caught on tape sure looked like David. The officer who viewed the tape immediately “recognized” the perpetrator as David. Why? Probably because he had dealt with David on previous occasions.³

The officer pulled David’s mug shot and assembled a photo array. He showed this photo array to each of the bank employees. They all quickly, and without hesitation, picked David. Why? Probably because of the similarities between David’s features and those of the person who, in fact, robbed the bank. Could there have been an improper presentation of the array by the officer? Anything is possible, what with the problems with eye-witness identification. But, as you will see, there was no need for Leonard to challenge that aspect of the investigation. Why? Because there was a surveillance video with a fairly good image and other evidence that turned out to be compelling as to David’s actual innocence. But the challenge to the array was still there to be made if Leonard found it necessary.

After all of the employees picked David out of the photo array, the officer had the note checked for prints. An iodide fumigation was used and partials were extracted. The officer had the prints compared to those of David, and they matched with a fair number of points. Never mind the many problems inherent in identifying someone from a partial print, with only a fair number of points matching.⁴

Next, the officer found some notes that David had written while incarcerated on other charges. The handwriting analyst said the handwriting on the note matched David’s handwriting on his previous written letters. Never mind that comparing hand writing is an art, not a science, and the comparison is a very subjective opinion, at best.

And if that was not enough, two of David’s cousins had been charged with a felony hindering, a third-degree felony. Why? Because allegedly after a warrant was put out for David, the cousins gave David and his wife a ride to a motel. These poor cousins were represented by the same lawyer who took them in to Bradley for a debriefing after they had been arrested and posted bond. In exchange for a plea of five years deferred adjudication, they would testify that David admitted to the robbery.

When Leonard walked into court to file his motion to substitute, he did not have all the details. Leonard only knew the charge—and that he was being asked to represent someone whom he had previously represented.

He met with David, who was in custody. David told Leonard that the lawyer he was replacing had gotten a plea agreement. The agreement was that in exchange for a guilty plea, Bradley would recommend 40 years in the Institutional Division of the Texas Department of Criminal Justice. And in addition, Bradley would not charge his wife as an accomplice. David told Leonard he was ready to accept the offer.

Now remember, Leonard knew David. And in Leonard’s mind, this guy was no bank robber. He tended to be manic and even violent at times, but a robber he was not. So Leonard asked him to look him in the eye and tell him whether he robbed the bank or not. He said he did not but he wanted to take the deal to make sure his wife was not charged. Leonard persuaded him to hold off and not take the deal and allow him to substitute in, to which David agreed.

After the substitution order was signed, John Bradley took Leonard into the jury room, shoved two boxes—the type you store files in—at Leonard and said, “Let’s see you do your magic on this one.”

As Leonard was looking through the contents of the boxes, he told Bradley, “Well, I guess we will have to see.”

John started telling him what he had and what was in the box. And as he was being brought up to speed on the case, Leonard would recall that he was thinking: Holy crap! What in the hell have I gotten myself into?

Bradley not only allowed Leonard to look at everything in the two boxes. He told him, “I will get you anything you want or need.”

Leonard, in recounting the story, said: “When John told me this, I knew I was screwed. He must have such a strong case that he was going to violate his own closed-file policy. What hubris! So what was I going to do now?”

After he composed himself, he began to do what lawyers should do—take it one step and one issue at a time and by the numbers, as they say.

John was giving him everything he asked for. The first task was to get a copy of the surveillance video to examine it and, if necessary, have it enhanced by an expert. Second was getting a copy of the fingerprints lifted from the note and have them compared to David’s known prints. A request was made for a copy of the note David was supposed to have handed the teller.

Leonard also began to build his defense team by getting a good investigator. The surveillance tape was not clear enough to really make a definite identification, so the tape was taken to an expert in video enhancements.

The next thing was having the prints compared by an expert. One thing that was seen on David’s prints, and not on the partial from the note, was a line across the center of David’s print. It was determined that the line was caused by a scar from a cut David had on the finger that the print was supposedly matched to.

By this time, Bradley had assigned another prosecutor to handle the case. That prosecutor looked at the discrepancy in the prints but attributed the discrepancy to a copy error. So when David appeared in court, Leonard asked Judge Anderson if they could have David fingerprinted in court by the bailiff. He said okay and prints were taken. Lo and behold! The skin fold anomaly, as Leonard referred to it, appeared. Oops! That was no copying error. It was a scar! A scar that was not on the actual robber’s finger.

While all this was being done, the investigator was checking for anyone who had been arrested for bank robbery with a similar modus operandi (MO). The investigator was able to identify a couple of people who had been arrested for bank robbery with a very similar MO.

One of persons identified by the investigator was a man named Estrada. This Estrada just happened to be in the Williamson County Jail, charged with bank robbery. Bradley was asked if he would please provide Mr. Estrada’s mug shot with profile and his fingerprints. And to everyone’s amazement, Bradley gave them to the defense. Surprise! Mr. Estrada looked very much like the person on the surveillance tape. More so than David, upon close examination.

The enhancement on the tape was done and the image was much clearer. And as Leonard stared and stared at the image of the robber, it hit him like a baseball bat to the forehead. “Damn, this guy does not have a necklace tattoo around his neck and arms!”

The enhanced tape showed the bank robber wearing what looks like a muscle shirt; and it was very clear this man had no tattoos. None. Nothing like those that David had. Because Leonard had a lawyer-client relationship with David, he knew him and knew he had those tattoos long before this robbery occurred. Leonard’s gaze was just fixed on the image, saying over and over again, “Damn, damn, what the hell is going on?” Why would David have told his cousins he had done this when the “overwhelming evidence” showed he had nothing to do with the crime. Bradley’s case was starting to unravel.

And even though Leonard knew David had those tattoos before the robbery, he pulled old booking photos so there could be no argument as to when those tattoos were on David.

While the defense was working on the case, a pastoral counselor called Leonard to tell him he was visiting with David and wanted to offer his support. Leonard—not missing an opportunity for information—asked this counselor whether he was also seeing another inmate by the name of Estrada. The counselor said he was one of his clients.

And then Leonard did something that some might say was on the ethical edge, although that is debatable. To me, it was performing the function in the fullest sense of the Sixth Amendment. Leonard told the counselor that there was reason to believe David may have to be punished for something Mr. Estrada had done. It was left at that, with nothing else said.

A couple of weeks later, Leonard received a call from a very excited counselor. “Mr. Martinez, you will not believe . . .”

After Leonard asked him to calm down, slow down, and to tell him what he was talking about, the counselor told him. For a moment there was the fear that David had confessed to the counselor. That would have been a shot to the heart. No, he told Leonard that Mr. Estrada had not only confessed but had confessed in writing and asked the counselor to have the confession letter given to David’s lawyer. As Leonard recounts, “It took a couple of minutes to gather myself up from the floor. But then I thought, oh hell, his lawyer is going to be pissed!”

But the truth was the truth, and justice would not be served with David, who now was clearly innocent, being convicted of something Mr. Estrada had done.

Mr. Estrada’s handwritten confession was turned over to the prosecutor. No very long after the confession was turned over, the prosecutor handling the case said, “Leonard, I have some Brady material I have to disclose.” And he added, “Leonard it seems you have somehow f—d up my case.”

When David and Leonard appeared before Judge Anderson at jury docket call the State of Texas filed a motion to dismiss.

So what about Mr. Estrada? Well, the lawyer was indeed a bit miffed, but as a result of his expressed displeasure, his client got a better deal for pleading to now two cases concurrent rather than to the offer he had previously for one. And what about the two cousins who a lawyer pled guilty and had gotten to agree to testify against an innocent man? I do not know what ultimately happened, although I hope Bradley would move to dismiss.

The cousins had come to Leonard’s office and asked him if he would represent them. They felt they were pressured by their lawyer to plead, even though they, too, were innocent. They said they did not know that there had been a warrant issued for David’s arrest, and that David never admitted to robbing the bank. It is disgusting what they were “counseled” into doing. Leonard told them that they should consider seeing another lawyer about filing a writ.

Full and complete disclosure and cooperation from a prosecutor that was not known for much, if any, disclosure and cooperation resulted in a complete exoneration before the case went to trial. David’s case illustrates why full and complete discovery is so extremely important.

Of course, we lawyers must carry on our own investigation and must do something with the information acquired. So as the Legislature continues to debate the merits or demerits of full, open, and complete discovery, we must tell them we need real change. We must do so in a loud voice, as an organization and as individual lawyers. It is for the sake of truth and justice. It is for the wrongfully convicted, like Michael Morton. And we need to encourage the legislators to consider the discovery practices of other states, particularly Florida and Missouri, where witnesses and complaining witnesses can be deposed. The experience in those states has been very positive, resulting in more cases being resolved by agreement, whether through pleas or dismissals.

Let us all continue to push for change. We as lawyers have a special calling not only to defend the accused but also to defend our constitutions and improve the administration of justice.

As the title of this article says, the truth will set you free. It certainly did for Michael Morton, just as it did for David.

Notes

1. John 8:32

2. Isn’t it ironic that a civil defendant has far more discovery rights than someone whose liberty, or life, is at stake?

3. This is an example of confirmatory bias—you “find” what you expect to find or what you are looking for. To the police officer, David was a known criminal.

4. Never mind the case of Brandon Mayfield, the Portland, Oregon, lawyer who was incorrectly identified by the FBI as being involved in the Madrid train station bombings. The prints that the FBI used to incorrectly identify Mr. Mayfield had more points than the partial prints that were used to “finger” David.

Isn’t it interesting how the courts recognize taint in so many different contexts?¹ We have an illegal search by the police and everything found during the illegal search becomes “fruit of the poisonous tree”—it is said to be tainted. The Houston Police Department’s Crime Lab does not observe proper sterile procedures in handling DNA and the specimens are contaminated—they are said to be tainted. We have a lineup where the crime victim sees one White guy, three Hispanics, and two Blacks. The identification of the White guy is said to be tainted, the product of a suggestive or improper lineup.

A victim of a crime has no conscious recollection of the events or details, is hypnotized and, while hypnotized, is presented with questions that suggest answers. Upon regaining consciousness, the victim “remembers” details of the crime. The courts recognize the problems inherent in this type of enhanced “recollection.” So this “recollection” is subject to being excluded because it is tainted—the product of suggestion.

But how differently the courts in Texas treat the “recollection” of children, even very young children, who are said to have been abused, sexually abused, or even sexually assaulted —especially when there is no evidence of the alleged crime other than the child’s statement and the crime is alleged to have occurred months or even years ago. Children’s memory is deemed to be pristine and incorruptible, no matter how many different people may have discussed their recollection with them and no matter how many different people may have suggested details to the children, in how many different settings, on how many different occasions, or for how long on each occasion.

And it doesn’t matter that none of these conversations or interviews or counseling sessions have been recorded in a neutral media so that improper interview techniques can be identified and the implanted results of those techniques challenged. Again, young children’s memory is deemed to be pristine and incorruptible, even though no such presumption exists with a teenager’s or an adult’s memory. Remember the advertising slogan: “Is it real? Or is it Memorex®?” Well, the same logic applies when it comes to a young child’s supposed recollection.

The corruption of a young child’s recollection affects not only their testimony but also any “outcry” statement² that the State may try to use. In this article, the authors will attempt to define the problem and suggest ways to deal with the same.

Please understand that for the most part, this concerns the recollection of children who are under the age of 7—in other words, children who are not old enough to really understand the concept of a lie. Consider that a child who learns that Santa Claus is not real, that it was Mommy and Daddy all along, does not understand that Mommy and Daddy lied about Santa Claus existing. Please also understand that the age of seven is an arbitrary break point, created by the authors for the purpose of this article. Some experts will be more exacting with older kids versus younger kids, but there is no clear, bright-line demarcation. The younger the children, the more susceptible they are to the many ways in which memory can be tainted, but the principles apply along a continuum. Research going back to Europe in the late 19th and early 20th centuries shows much the same results and conclusions as today’s research, even though the children then under examination were 10 years old or even older. In fact, in the Salem Witch trials, children as old as 16 were convinced by their interviewers that they saw several women in their community perform acts that were supernatural—e.g., levitating.³

Of course, we will still have “repressed memory” cases from adults like in Sandusky and other cases. Those cases present similar issues as to the reliability of the testimony of young children, but the science and the research are different.⁴ And the motivation to testify falsely in such a case tends to belong to the “victim” instead of to a third person attempting to get a child to testify falsely. It is easy to conceive how a young adult might be motivated by the prospect of making large sums of money from a civil suit—a motivation that doesn’t exist for the “victim” when the testifying “victim” is 2–7 years old.

For the article to be relevant, the authors felt that they should look at what kind of case comprises the bulk of prosecutions. Usually it is a pre-adolescent child making an outcry about something that happened at some point in the past. Those cases are more numerous than younger children making outcries contemporaneous with the alleged event.

Conversely, children above the age of seven are old enough to understand the concept of a lie, but they may be, or become, active participants in the lie without knowing or comprehending the consequences of the words they say. Children under seven understand neither. So while the science involved with older children is similar to that with young children, it is sufficiently different that you will need to use different experts, depending on the age of the child.

And this article also does not deal with cases where there is unequivocal physical evidence of abuse—e.g., an STD that the defendant also tests positive for. The article presupposes that you, as defense counsel, not only have the evidence that the child has been subjected to multiple conversations/interrogations/interviews/counseling sessions, but that you also have an expert who is competent to present the science to the court.

Under no circumstances should a taint hearing be requested to try to obtain discovery. This will not only damage your expert through trying to give an opinion with an incomplete foundation and cause your expert to become the prosecution’s best witness; it can also lead to the creation of more bad case law. While there may be something worse than your expert having to concede on cross-examination that there is not sufficient evidence to support the defendant’s contention that the child’s memory is tainted, that something does not come to the authors’ mind.⁵

Remember and understand that when you try to challenge the recollection of a child as being tainted, you will run into several fallacies or flaws that are endemic within the Texas courts.

The first fallacy or flaw is that judges and DAs will attempt to re-frame your argument as going to the competence of the child to testify. You cannot allow yourself to fall into this trap.

Why? First, Rule 601 of the Rules of Evidence creates a presumption that a person is competent to testify.⁶ The trial court has no duty to conduct a preliminary competency examination on its own motion.⁷ This means that you have to file a motion challenging the competence of the child to testify. Even if you expect to lose the motion, you should file it.

Once the competency of a child witness is challenged, the trial court must assure itself that the child has (1) the ability to intelligently observe the events in question at the time of the occurrence, (2) the capacity to recollect the events, and (3) the capacity to narrate the events.⁸ The third element, involving the capacity to narrate, requires that the witness is able to understand the questions asked, frame intelligent answers to those questions, and understand the moral responsibility to tell the truth.⁹ And the trial court’s determination of whether a child witness is competent to testify and its ruling on the issue will not be disturbed on appeal absent an abuse of discretion.¹⁰

But the child witness’ Rule 601 competence to testify is not the issue. The issue is the one of competency as it relates to personal knowledge, not whether the child is capable of testifying and reliability. Let us give you an example to illustrate this point—an example from a deposition taken in a case in Tarrant County.¹¹ The Unauthorized Practice of Law Committee of Tarrant County had sued Joe A. Izen Jr. for assisting in the unauthorized practice of law. During discovery, it turned out that no one on the committee knew where the complaint came from or who was going to testify against Joe Izen—but if anyone did, it was the lawyer who was the head of the committee. His was the last deposition taken. During his deposition, he testified that the source of the information (that Joe A. Izen Jr. had assisted in the unauthorized practice of law) was psychic phenomena. Yes, psychic phenomena!¹²

Was the head of the committee—again a lawyer—able to intelligently observe the events in question at the time of the occurrence, capable of recalling the events, and capable of narrating the events? The answer to all of these questions was yes.

But the lawyer’s testimony was not reliable. Why? Because not only do the courts not recognize ouija boards as a source of admissible evidence; there is simply no way to cross-examine a ouija board. Or a ghost. Or tarot cards. Or any of the myriad other possible sup­posed manifestations of psy­chic phenomena.

Some might argue that the question presented is a Rule 602, Tex. R. Evid., question and not a reliability question. The authors disagree because the courts recognize ways in which one can remotely acquire information (knowledge). An example of that would be a security guard watching a video monitor when a crime is committed. Say that the recording system malfunctions. In such a situation, would the security guard be allowed to testify as to what he saw on the monitor? Absolutely. That testimony is reliable. And it is not a question of competence.

So when a young child can distinguish between a red card and a blue card, and “knows that you get in trouble” if you tell a lie, that does not end the inquiry. Nor is that the only inquiry. In fact, the authors are only aware of one case where a young child who was allegedly sexually abused was found to be incompetent to testify.¹³

Why does that not end the inquiry? Well, let’s consider a hypothetical five-year-old who has (1) the ability to intelligently observe the events in question at the time of the occurrence, (2) the capacity to recollect the events, and (3) the capacity to narrate the events. Now, let’s assume that this five-year-old is being asked to testify about who left the presents under the Christmas tree that he found on December 25. He’s got a lot of circumstantial evidence that it was Santa Claus. And he knows all about Santa Claus—what he wears, who makes the toys, how he flies around the world, etc. But will he be allowed to testify that it was Santa Claus who left the presents?

No, he won’t. Because his recollection is not reliable. Now, this is an innocent example of implantation of a false memory. But it shows the difference between competence and reliability of the recollection—a difference we will address in more detail below.

And you need to be aware of the growing body of research regarding the implantation of false memories. Some of this research is set forth in Endnote 14. You need to be familiar with this body of literature.

The second fallacy or flaw is the belief that there must be coercion used to create a false memory in a young child. Well, not only does a child’s “knowledge” that Santa Claus exists dispel that belief; so does all of the scientific literature.¹⁴ Indeed, scientific research has shown that a memory can be implanted in a young child in as little as 20 seconds—without coercion!

Unfortunately, most judges and prosecutors think or are under the mistaken belief that coercion must be used in order for a memory to be implanted in a child. They for­get, or ignore, the myriad other factors that can affect what a child tells you.

These factors include the desire of the child to please the adult. Repeating a question after a child answers will make the child assume that it has answered incorrectly, and the child will, therefore, change its answer. A question that suggests an answer will usually elicit that suggested answer. An “or” question that is answered with a “yes,” followed by a specific fact-stated question will usually get the child to adopt the specific fact stated.

And it is precisely because of this effect that you should move to have the Court require that all meetings, interviews, sessions, counseling sessions, etc., with the child be recorded in a neutral media. You should include a request that all meetings with anyone in the DA’s office be recorded in a neutral media.¹⁵ Your argument should be that this is Brady material—potentially exculpatory or useable for impeachment.

Expect the State to oppose any such motion and to oppose it vehemently. The DA will announce with great emphasis that he and his employees don’t coerce any child or taint any child’s testimony or recollection. And the DA thereby ignores all of the science in this field.

An example of how easy it is to implant a memory, or to get a child to agree with something stated by an adult, occurred during the one of the authors’ defense of a 17-year-old juvenile who was facing 4 petitions that alleged aggravated sexual assault of 3 girls, aged 2–4 at the time of the alleged sexual assaults and aged 7–9 at the time of trial. The prosecutor repeatedly told the judge, and then the jury, that she and her office had not implanted any memories in these girls, that they had not coerced any testimony, and so on. The prosecutor’s argument ignored the fact that taint can occur without malice, coercion, or evil intent. Taint can occur through otherwise innocent actions or even genuine or mistaken beliefs. It does not have to come from someone who has something to gain, although it can.¹⁶

Then, on direct examination of the 7-year-old, the prosecutor asked the following question: “When Bobby walked into the bathroom, were you taking a bath or a shower?” Surprise! A totally new allegation, one not found anywhere in the multiple forensic interviews, in the counseling records, or in the outcry statement of this child. Nowhere!

The child’s answer was, “Yes.” But, yes to what? Bath or shower?

Well, the DA provided that information in the next question. “When you were taking a shower and Bobby walked in to the bathroom, was the shower curtain closed?” “Yes.” “What did Bobby do then?” And she went from there, adding more and more details. On an “event” that had never come up before the DA’s question.

Not surprisingly, every time the DA asked if that was all that Bobby had done, the complainant was able to conjure up more details—details that, when put in the total context, showed how impossible this event was. But all conjured up out of a desire to please the adult who was asking the questions.

Of course, these questions and the “answers” elicited demonstrate why you, as defense counsel, should be prepared to vigorously oppose any request by the DA for a “little leeway” in questioning the child complainant. The “leeway” that the DA is asking for is the ability to lead the child and the right to repeat the questions when the “correct” answer is not elicited.¹⁷

Fortunately for Bobby, during the recounting of details, the complainant said that Bobby was holding his penis with both hands. A 12-year-old holding his penis with both hands! On cross-examination, the 7-year-old was asked about how Bobby held his penis with both hands, whether it was one hand over the other or whether it was fingertip to fingertip. “Oh, it was fingertip to fingertip.” That answer was reinforced and then she was asked details about how much of the penis was above Bobby’s hands and how much was below. To say that a horse would have been jealous with envy is an understatement.¹⁸

But that is how very easy it is to implant memories in a child, or to get a child to go along with something an adult has stated. And having the court reporter transcribe those few pages so they could be read back to the jury conclusively demonstrated to the jury that coercion and force are not required to implant memories in young children. It was the gift that kept on giving.¹⁹

And this case is also an example of having the appropriate experts testify. While both experts were psychologists, one expert was able to testify to the science as related to what was done with and to the girls when the allegations first surfaced, in other words, when they were 2–4 years old. But this expert did not have a clinical practice or deal with children who were 7 years old or older. The other psychologist had a clinical practice, dealing with children as young as 7, and was very familiar with the science relating to corruption of recollection, the suggestibility of these aged children, and factors that could affect the reliability of their recollection. This psychologist was also able to opine how dangerous it was to have children this young on psychotropic medications. The expertise and experience of the two experts dovetailed perfectly to cover the entire time period and all of the factors that could influence the reliability of what the girls were saying. If you have one expert who can cover all of the science and facts involved in your case, then you can get by with one expert. But by all means, make sure that your expert can do so. Otherwise get the right number of experts for your case, making sure they have the appropriate experience and qualifications.

The third fallacy or flaw is that judges and DAs will attempt to re-frame your argument as going to the credibility, and that credibility is for the jury to decide. You cannot allow yourself to fall into this trap, either.

Why? Because credibility²⁰ has nothing to do with the reliability of the testimony. Consider the Houston case of Josiah Sutton. Josiah was convicted of rape and sentenced to 25 years in prison.²¹ The rape victim was convinced that Josiah Sutton had raped her. She was very credible—so much so that then Harris County DA Chuck Rosenthal threatened to re-try Josiah, because he had the eyewitness’ testimony. But regardless of her credibility (believability), the DNA proved that, as to Josiah Sutton, her testimony was completely unreliable. And ultimately, he was not retried.

Reliability is the issue—the only issue—that is involved when you challenge a child’s recollection. And you must not allow the judge or the DA to shift the focus of your challenge.

Reliability is a threshold issue that must be determined by the judge.²² Reliability is not an issue that can be determined by the jury. Consider all of the cases under Rule 702, Tex. R. Evid., where the expert’s opinion (testimony) is challenged. Every single case holds that it is the court’s (judge’s) duty to determine the reliability of the opinion (testimony).

The court has a responsibility to ensure that evidence admitted at trial is sufficiently reliable so that it may be of use to the finder of fact who will draw the ultimate conclusions of guilt or innocence. That concern implicates principles of constitutional due process and due course of law. Reliability is the linchpin in determining admissibility of evidence under a standard of fairness that is required by the Due Process Clause of the Fourteenth Amendment and by the due course of law guaranteed by the Texas Constitution.²³ Competent and reliable evidence remains at the foundation of a fair trial, which seeks ultimately to determine the truth about criminal culpability. If crucial inculpatory evidence is alleged to have been derived from unreliable sources, due process and due course of law interests are at risk.

So, how do you challenge the reliability of a young child’s recollection?

To challenge a child’s recollection, you should first have evidence that will support a finding of taint. If you don’t know what that evidence would consist of, you should become familiar with the case of Margaret Kelly Michaels.²⁴ The Michaels case gives you examples of improper interrogation and quite a bit of the research in the field. If you need a starting point to learn about improper interrogation of children, there is probably no better place to start.

When, and only when, you have the evidence to support a taint motion, file a motion requesting a taint hearing. You might also want to challenge the outcry statement by separate motion. If you do so, you might want to try to have both motions heard at the same time. And consider also having the court hear your challenge to the child’s competence heard at the same time.

In a taint hearing, the court is asked to consider whether the number of people who have spoken to the child, the interview techniques employed by the State, its agents, the people or others involved, as well as other factors could have undermined the reliability of the complainant’s statements and subsequent testimony, to the point where the statements should be excluded.²⁵ This is so because the complainant will probably have been sub­jected to repeated questioning and interrogation about the alleged event that gave rise to the indictment. This questioning may have been innocent and well-intentioned, such a relative’s concern when they believe that something untoward has been done to the child, or a counselor’s “belief” that something has happened so that the child may be continued in counseling.²⁶

Again, remember that you, as movant, have the burden of proving what those factors are, that those factors are present, and that they are sufficient to undermine the trier of fact’s ability to rely upon the testimony.

And in a taint hearing, the court is asked to determine whether the child’s accusations were founded “upon unreliable perceptions, or memory caused by improper investigation procedures,” and thus whether the testimony reflecting those accusations could lead to an unfair trial.²⁷ A pretrial hearing is required to assess the reliability of the statements and testimony to be presented by the child witness to determine their admissibility. This logic also applies to the outcry statement.

Expect the DA to try to limit your inquiry into the admissibility of the outcry statement to the factors set forth in Art. 38.072(2)(a), CCP. The authors suggest that the focus should instead be on the factors set forth in Art. 38.072(2)(b)(2), CCP,²⁸ especially the “circumstances” of the statement. Those circumstances would include how the child came to have the “recollection” that led to the outcry.

Consider a couple of cases that the authors have been involved in. One arose out of a divorce case, where custody of an infant daughter was at issue. That daughter was too young to be verbal, so the mother’s two older daughters made outcries against the stepfather. CPS intervened in the divorce, and during discovery in the divorce, CPS produced a tape recording that the mother had made wherein she was heard telling her daughters that “this is what you need to say that your step-daddy did to you.”²⁹

The other case involved a stepdaughter who accused her stepfather of sexually abusing her at the age of 6. After he had served 10 years of a 30-year sentence, she recanted. During the writ hearing, she detailed how upset she was that her mother had divorced her father, and how her aunt told her that if she said these things about her stepfather, her mother would have to divorce him and get back together with her father.³⁰ Not surprisingly, the aunt had been the outcry witness. Also not sur­prisingly, the girl, who was almost 8 when she testified, had no concept of the consequences of her testimony—that her stepfather would be sentenced to prison for 30 years or that her mother would stick by him and not file for divorce.

This is important to comprehend because there is a constantly broadening body of scholarly scientific authority existing on the question of children’s susceptibility to improper interrogation.³¹ There is a consistent and recurring concern over the capacity of the interviewer and the interview process to distort a child’s recollection through slanted interrogation techniques. There are certain interview practices that are sufficiently coercive or suggestive to alter irremediably the perceptions of alleged child victims.

There are other scientific and psychological propositions that courts have addressed in analogous contexts, among these being (1) the availability of battered women’s syndrome as self-defense in criminal cases;³² 2) the holocaust survivors syndrome;³³ (3) the effect of hypnosis on the admissibility of testimony;³⁴ and (4) the consideration of testimony at pretrial hearings regarding tainted identification evidence.³⁵

The “investigative interview” is a crucial, perhaps determinative moment in a child-abuse case.³⁶ That an investigatory interview of a young child can be coercive or suggestive and thus shape the child’s response is generally accepted. If a child’s recollection of events has been molded by interrogation, that influence undermines the reliability of the child’s responses as an accurate recollection of actual events.

A variety of factors bear on the kinds of interrogation that can affect the reliability of a child’s statements concerning abuse. A fairly wide consensus exists among experts, scholars, and practitioners concerning improper interrogation techniques. They argue that among the factors that can undermine the neutrality of an interview and create undue suggestiveness are a lack of investigatory independence, the pursuit by the interviewer of a preconceived notion of what has happened to the child, the use of leading questions, the use of suggestive questions, and a lack of control for outside influences on the child’s statements, such as previous conversations with parents or peers and whether the interviewer was a trusted authority figure.³⁷

In cases with a child complainant, the complainant will often have been interviewed or interrogated by family members, psychologists, caseworkers, physicians, detectives, investigators, and even Assistant District Attorneys. The total number of persons will often be difficult, if not impossible, to determine. Often, a number of these persons will have conducted multiple interviews. The use of incessantly repeated questions also adds a manipulative element to an interview. When a child is asked a question and gives an answer, and the question is immediately asked again, the child’s normal reaction is to assume that the first answer was wrong or displeasing to the adult questioner.³⁸ The insidious effects of repeated questioning are even more pronounced when the questions themselves over time suggest information to the child.³⁹ In fact, memories of abuse that never occurred can be implanted in the mind of a child in just one interview.⁴⁰

The explicit vilification or criticism of the person charged with wrongdoing is another factor that can induce a child to believe abuse has occurred. Similarly, an interviewer’s bias with respect to a suspected person’s guilt or innocence can have a marked effect on the accuracy of a child’s statements. The transmission of suggestion can also be subtly communicated to children through more obvious things such as the interviewer’s tone of voice, mild threats, praise, cajoling, bribes, and rewards, as well as resorting to peer pressure.

These are factors that are often present in contested divorce/custody cases. In fact, the authors routinely look for a the pendency of divorce case when these type of cases come in the door. That is not a bad thing, since it will often afford a vehicle for discovery—discovery that otherwise would not be available in the criminal case.

There is much authority recognizing the considerable sup­port the deleterious impact improper influence can have on a child’s memory. Other courts have recognized that once tainted, the distortion of a child’s memory is irremediable.⁴¹ The debilitating impact of improper interrogation has even more pro­nounced effect among very young children.⁴²

The conclusion that improper influences generate a significant risk of corrupting the memories of young children is confirmed by government and law enforcement agencies, which have adopted standards for conducting interviews designed to overcome the dangers stemming from the improper interrogation of young children. The National Center for the Prosecution of Child Abuse, in cooperation with the National District Attorney’s Associations and the American Prosecutors’ Research Institute, have adopted protocols to serve as standards for the proper interrogation of suspected child-abuse victims. Those interview guidelines require that an interviewer remain “open, neutral and objective”;⁴³ an interviewer should avoid asking leading questions;⁴⁴ an interviewer should never threaten a child or try to force a reluctant child to talk;⁴⁵ and multiple interviews with various interviewers should be avoided.⁴⁶

Courts around the country recognize the very same concerns expressed in the academic literature and addressed by the guidelines established by governmental authorities with respect to improper interrogation of alleged child-abuse victims. The United States Supreme Court noted with approval the conclusion of the Idaho Supreme Court that the failure to videotape interviews with alleged child victims, the use of blatantly leading questions, and the presence of an interviewer with a preconceived idea of what the child should be disclosing, in addition to the children’s susceptibility to suggestive questioning, all indicate the potential for the elicitation of unreliable information.⁴⁷

So, to conclude, as a matter of judicial economy and, frankly, lawyer economy, the authors believe it is possible to have a hearing that challenges the outcry testimony per Art. 38.072, and as you contest the admissibility requirements of the outcry, you should contest the statutory exception under Crawford. You can also contest the child’s personal knowledge under Rule 602 as well as the reliability of the proposed testimony of the child by virtue of who interviewed the child (parent, social workers, police, forensic interviewers, therapists, doctors, and prosecutors) and how they interviewed the child, while examining how these individuals and the repetition has now made it highly unlikely that the testimony of the child will be reliable (and also whether the child now has personal knowledge—e.g., is it real or is it Memorex®?).

That is why three motions need to be filed and can all be heard at one time by witnesses and experts. And if the judge refuses you, ask to make a bill.⁴⁸ If the judge refuses to allow you to make your bill, you should make a proffer on the record of what the evidence would show. And then you raise the same objections when the child and outcry witnesses are offered during trial. Hopefully, given the present makeup, this should be held to preserve the error.

Lastly, during trial, make sure to hammer the number of times the child has been talked to, interviewed, counseled, etc. This will at least allow you to argue that the child’s testimony and the child’s outcry are not to be believed.

Notes

1. Taint—1. To imbue with a noxious quality or principle. 2. To contaminate or corrupt. 3. To tinge or affect slightly for the worse. Black’s Law Dictionary (9th ed. 2009)

2. Art. 38.072, CCP

3. See Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony by Stephen J. Ceci and Maggie Bruck (July 1999) for a thorough examination/discussion of the Salem Witch trials.

4. One of the authors attended a CLE presentation by a neuropsychologist from one of the Medical Colleges in the Texas Medical Center. This neuropsychologist opined that repressed memories are real because “you can’t have a memory unless you are in the same chemical state that you were in when the memory was created.” The author looked at the attorney seated next to him and said, “I’m not in the same chemical state as I was when (you fill in the blank) and I distinctly recall it.” The other lawyer laughed and stated that he had the same thought. To say that there are a lot of faulty studies on repressed memories is an understatement.

5. Knowing what your expert can and cannot testify to, and what the expert would have to concede on undisputed facts, is critical to providing effective as­si­stance of counsel. In one of the authors’ cases, the 39-year-old defendant teacher had placed 125 cell phone calls and exchanged 400+ text messages with the 13-year-old student-complainant in a 60-day period. The calls ranged from very short to almost 4½ hours in length, at all times of the day and night. Any competent expert would have to concede that this was consistent with the State’s theory that the teacher was “grooming” the student. As a result, while experts were disclosed, none was ever intended to be called during trial.

6. Tex. R. Evid. 601.

7. McGinn v. State, 961 S.W.2d 161, 165 (Tex.Crim.App.1998).

8. Torres v. State, 33 S.W.3d 252, 255 (Tex.Crim.App.2000) (quoting Watson v. State, 596 S.W.2d 867, 870 (Tex.Crim.App.1980)).

9. Watson, 596 S.W.2d at 870.

10. Broussard v. State, 910 S.W.2d 952, 960 (Tex.Crim.App.1995), cert. denied, 519 U.S. 826, 117 S.Ct. 87, 136 L.Ed.2d 44 (1996)

11. The excerpt from the actual deposition can be found in The Underground Lawyer, © 2001 by Michael Louis Minns.

12. Although the head of the committee read and signed his deposition, he never changed this answer. The specific type of psychic phenomena (spirits, automatic writing, ouija board, tarot cards, crystal ball, tea leaves, etc.) was not identified by the head of the committee.

13. This was in a case in Harris County defended by Mark Ramsey. The three-year-old boy was questioned on videotape by a CPS caseworker. Four times the boy denied that his father had done anything. The caseworker then sat the boy on her lap and proceeded to rub his crotch! The boy was so upset that he wet himself and got away from her. She then repeated the same questions, eliciting different and incriminating answers. At the end of this, she asked whether the answers he had just given were the truth or a lie. The young boy spun around, looked directly at the camera and said, “They’re a lie!” Judge Myron Love found the young boy incompetent to testify, based on the videotape.

14. See, e.g., Investigative Interviews of Children: A Guide for Helping Professionals by Debra A. Poole and Michael E. Lamb (Jan 1, 1998); Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony by Stephen J. Ceci and Maggie Bruck (July 1999); The role of mental imagery in the creation of false childhood memories, Hyman Jr., I. E., & Pentland, J. (1996), Journal of Memory and Language, 35, 101–117; The reality of repressed memories, Loftus, E. F. (1993), American Psychologist, 48, 518–537; The formation of false memories, Loftus, E. F., & Pickrell, J. E. (1995), Psychiatric Annals, 25, 720–725;“A picture is worth a thousand lies: using false photographs to create false childhood memories, Wade, K. A., Garry, M., Read, J. D., & Lindsay, D. S. (2002), Psychonomic Bulletin & Review, 9(3), 597–603.

15. You might even consider including a request that the adults in the child’s family be enjoined from talking to the child about the alleged event.

16. A kid’s statement of opportunity (e.g., “daddy touched my pee-pee and it hurt”) can be taken from what it actually is (a father putting diaper rash cream on a rash) and turned into something far more sinister—if the adult hearing the statement has the motive to do so (e.g., a contested custody case).

17. In this case, counsel had objected to the court allowing this “leeway.” The objection was overruled by the court, so a leading objection was made as to each such question. You should do the same to protect the record.

18. In closing arguments, counsel stood in front of the jury box, put his hands fingertips to fingertips and told the jury, “If this is what little Suzie really thinks that men have, then she is either going to be sorely disappointed or greatly relieved when she becomes a woman.”

19. The DA never wavered from her stated belief that Suzie was to be believed—despite the physical impossibility of what she had described. This demonstrates the position taken by many DAs that everything proves that something happened and nothing proves that something didn’t happen.

20. Credibility—The quality that makes something (as a witness or some evidence) worthy of belief. Black’s Law Dictionary (9th ed. 2009).

21. Josiah Sutton is the poster child for the problems with the Houston Po­lice Department Crime Lab. A crime lab technician testified that the DNA was an exact match even though, with only 3 of 13 alleles matching, it was an absolute exclusion. His writ of habeas corpus was granted, and he was freed af­ter serving 4 years of his sentence.

22. Reliable—Capable of being relied on; dependable. The American Heritage Dictionary of the English Language, Fourth Edition copyright © 2000.

23. Manson v. Brathwaite, 432 U.S. 98 (1977) (regarding the corrupting effect of unreliable identification testimony).

24. State v. Michaels, 642 A.2d 1372 (New Jersey 1994). While Michaels is only persuasive authority, it comes from a “sister court” to the Court of Criminal Appeals. And it is spot-on with the science and resources that it refers to.

25. By interview techniques, the authors include all of the times and ways that the adults in the child’s life have spoken to the child about the alleged event. Conversations with parents or adult relatives, counseling sessions, etc., can all affect a child’s recollection.

26. It is an axiom of counseling that the counselor must not be confrontational but must “believe the patient” for the counseling to work. Of course, this raises the very real economic bias of the counselor, since counseling continues only if the child needs it because something has happened. It also raises the spec­ter of “confirmatory bias”—people tend to find what they are looking for.

27. These investigation procedures include parents or relatives repeatedly asking the child what happened. It can also include therapy sessions.

28. “[T]he trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement” (emphasis added).

29. This shows the importance of trying to get discovery through any ongoing civil case. As a result of the tape-recording, the outcries were suppressed and the cases dismissed.

30. These are the facts underlying the writ of actual innocence in Ex parte Harmon, 116 S.W.3d 778 (Tex. Crim. App. 2002).

31. See Endnote 14, above.

32. Fielder v. State, 756 S.W.2d 309 (Tex. Crim. App. 1988), Pierini v. State, 804 S.W.2d 258 (Tex. App.—Houston [1st Dist.] 1991, review refused), Lane v. State, 957 S.W.2d 584 (Tex. App.—Dallas 1997, no writ).

33. Werner v. State, 711 S.W.2d 639 (Tex. Crim. App. 1986).

34. Zani v. State, 758 S.W.2d 233 (Tex. Crim. App. 1988), Vester v. State, 713 S.W.2d 920 (Tex. Crim. App. 1986, en banc), Spence v. State, 795 S.W.2d 743 (Tex. Crim. App. 1990, en banc), Burnett v. State, 642 S.W.2d 765 (Tex. Crim. App. 1982, en banc).

35. Barley v. State, 906 S.W.2d 27 (Tex. Crim. App. 1995, en banc); Manson v. Brathwaite, 432 U.S. 98 (1977) (regarding the corrupting effect of unreliable identification testimony); Gilbert v. California, 388 U.S. 263 (1967).

36. See Gail S. Goodman and Vicki Helgreson, Child Sexual Assault: Children’s Memory and the Law, 40 U. Miami Law Review, 191, 195 (1985).

37. John E. B. Myers, The Child Witness: Techniques for Direct Examination, Cross-Examination and Impeachment, 18 Pac. L.J. 801, 899 (1987).

38. See Debra A. Poole and Lawrence T. White, Effects of Question Repetition on Eyewitness Testimony of Children and Adults, 27 Developmental Psychology, November (1991) at 975.

39. Goodman and Helgeson, supra, 40 U. Miami L. Rev. at 184–187.

40. See William Bernet, M.D., Case Study: Allegations of Abuse Created in a Single Interview, Journal of the American Academy of Child and Adolescent Psychiatry, 36:7, July 1997, pp. 966–970.

41. See State v. Wright, 775 P.2d 1124, 1128 (1989), aff’d sub nom Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). (“Once this tainting of memory has occurred, the problem is irremediable. That memory, is from then on, as real to the child as any other.”). See also Stephen J. Ceci and Maggie Bruck, Jeopardy in the Courtroom, 1995, pp. 218–220.

42. See Stephen J. Ceci, PhD, and Mary Lynn Crotteau Huffman, PhD, “How Suggestible are Preschool Children? Cognitive and Social Factors,” Journal of the American Academy of Child and Adolescent Psychiatry, 36:7, July 1997, pp. 948–958, as well as Maryann King and John C. Yuille, Suggestibility and the Child Witness in Children’s Eyewitness Memory, 29 (Stephen J. Ceci et al., eds. 1987) and Age Difference in Suggestibility in Children’s Eyewitness Memory 82 (Stephen J. Ceci et al., ed. 1987).

43. American Prosecutors; Research Institute, National Center for Prosecution of Child Abuse, Investigation and Prosecution of Child Abuse at p. II-7 (1987).

44. Id. at II-8.

45. Id. at II-9.

46. Id. at II-5.

47. See Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990).

48. The right to make a bill of exception is absolute. Kipp v. State, 876 S.W.2d 330 (Tex. Crim. App. 1994). Being refused the right to make a bill of exceptions may build in reversible error.

Over the years, I have been cognizant of members of the bar who, while having the piece of plastic in their pocket that says they are members of the State Bar, were not living up to the high ideals of the profession. This gave me a sense of unease, but I could not put my finger on the problem.

Then it came to me. I was finally hit with the realization that many of us are not lawyers in the highest sense or counselors at law but rather just salespeople out to make money. Three experiences made me come to that realization.¹ These experiences just seemed to hit me all at once and have an impact on me. And mind you, I have been practicing criminal law for over 30 years.

The first experience that made me think about what our calling is, or should be, was when I was appointed to represent a young Black male charged with drug possession in a drug-free zone. I got to meet the young man and he seemed like so many youths of today, uncertain about what he was going to do with his life. His case was set on the magistrate’s docket, and right off I was given a really good deal. The deal was reduce to a Class A possession of a controlled substance, Zanex, with either time served or a two-year deferred. I would get my voucher paid within two weeks (and like everyone else I need the money), and my client gets out of jail. But is that all I should be doing? Is that what lawyering is?

I will not plead anyone until I have investigated the case as to the facts and all applicable law. I also have to know who my client was and what would be in his best interest—not only now but later in life. So many young people might have been diverted and their lives improved had someone done more than process them quickly through the system and get their quick fee.

In this case, I decided to do all I could to get him out of jail and into some kind of counseling. I also decided that given the stop-and-search issues and the constitutionality of the drug-free zone statute, I would do all I could to get the charges dropped. There were serious issues concerning the officer’s detention of the young man and the subsequent search and interrogation.

These issues merit challenge. I do not know if I will succeed and if this will ultimately have a positive impact on this young man, but a quick plea and a quick fee would not have been “law­yering” in my opinion. I will have invested more time and received less money for my time on this appointed case. But I feel that I will have lived up to my oath of attorney, to “discharge [my] duty to [my] client to the best of [my] ability.”²

The next experience that caused me to rethink our profession was when I was in a county court and saw a young associate of a “firm” with a stack of files a foot high, going through each for about five minutes with a prosecutor who was doling out plea offers. I was thinking how in heaven’s name could these clients be getting the benefit of Padilla,³ Lafler,⁴ and the Performance Standards for Representation on Non-Capital Offenses? The answer is no darn way!

While that lawyer was going through this quick bargain-basement sale, another came in with a daily docket with 50 peo­ple on it getting reset after reset—all the while I waited in line to reset the 2 cases that I had been working on. I thought wow, intense advertising, in-office sales pitches, cut-rate fees, and a lot of money. But is this lawyering? Does either live up to our Oath of Attorney?

The next experience was one that just made me wonder whether this was an honorable profession, one that I could be proud of and continue to be part of. That experience involved a contract lawyer—for a high-volume firm—cutting a quick but ultimately terrible plea deal. This was a young lawyer hired by a high-volume, heavy-advertising firm to handle a felony driving while intoxicated case.

These contract lawyers get a fee that is capped at a certain amount. They are tasked with working the case out in order to get their fee (and thereby make themselves a profit). These capped fees do not envision taking a case to trial. These capped fees don’t even envision the contract lawyer doing the kind of evaluation envisioned by the Performance Standards. And, in my opinion, these capped fees create an inherent conflict of interest between the lawyer’s financial self-interest and the client’s right to diligent, competent representation.

The problem with lawyers contracting to take these capped fees is that it ultimately results in representation that is questionable, at best. This lawyer did not view the video of the stop or of the field sobriety tests. But he made a quick offer to the prosecutor for a long probation with a long jail sentence as a condition. The client, not knowing any better and rightfully relying upon his lawyer, took the plea.

Fortunately for this defendant, a friend of his who is a lawyer referred him to an attorney who takes lawyering seriously. The client was awaiting sentencing and decided to retain the lawyer he was referred to. The newly retained lawyer undertook an investigation and viewed the video. In doing this, he discovered how weak the case was.

After convincing a prosecutor (who is higher up the chain of command) to view the video with him, that prosecutor also had doubts about the merits of the case. The prosecutor who handled the case was brought in to discuss the case. Both prosecutors and the newly hired lawyer went to the judge with a motion for new trial to set aside the guilty plea. The ultimate result was a reduction to a misdemeanor.

What a difference! An attorney who takes his Oath of Attorney seriously and realizes that his relationship with his client is one of uberrima fides—instead of a lawyer who is only concerned with counting the stools.⁵

These scenarios play out daily in our courts. But is this abiding by our oaths? Is it really lawyering? Is it fulfilling our obligations to our clients and to the courts? Not in my opinion.

I am very proud of my membership in the Texas Criminal Defense Lawyers Association. I am equally proud of my fellow advocates, those who abide their Oaths of Attorney, those who believe in the values of our United States and Texas Constitutions, and those who fight daily to defend and preserve the Rule of Law. My concerns are not with those of us who are mem­bers of this organization, those who are the true advocates. My concerns are with those lawyers who have lost sight of what lawyering really is, and especially with those who are not members of our group.

But what the lawyers depicted in the above scenarios are doing by putting business models and the bottom line first is having a negative impact on our practices, on us individually, and on how others view us. Is it any wonder that used car salesmen continue to have a more favorable opinion among the general public than lawyers do?

So how do we address the concerns I have raised? I am not sure. One possibility would be for TCDLA to propose some guide­lines of our own and to disseminate those guidelines to lawyers who handle criminal cases. Another would be educating the public about what they should expect from those who take on the responsibility of undertaking their cases. Public Service Announcements (PSAs) work great for this sort of thing.

Another could be a willingness on each of our parts to look at previously pled cases when clients who have priors come to us with new cases—looking more closely at those cases not just in terms of how they affect a client’s liability on a new case and how they can be proven up, but on what was done in securing the plea to those cases in the first place. In looking at those previous convictions, if they were the result of guilty pleas, we should look at Padilla, Lafler, and the Performance Standards to determine if the pleas were intelligently and voluntarily entered. In those cases where the pleas do not appear to have been entered intelligently and voluntarily due to the ineffective assistance of counsel, we need to be willing to file post-conviction habeas ap­pli­cations to set aside those pleas. And perhaps we need to set up a committee within TCDLA to accept and file complaints with the State Bar against attorneys whom we see engaged in these practices.⁶

We are the first line of defense against governmental excess. We are defenders of our Constitutions and of the Rule of Law. Our decisions and our performance can affect people and their families for years to come if not for the rest of their lives. And given our high calling, we must do all we can to make sure that all of us who undertake this calling remain true to the highest ideals of that calling. Help me address these problems. Be silent no longer.

Notes

1. The experiences detailed in this article are those of Leonard Martinez. While this article is written in the first person, Butch Bradt has had similar experiences and agrees with the views and opinions expressed by Leonard Martinez herein.

2. § 82.037, Tex. Gov’t code.

3. Padilla v. Kentucky, 130 S.Ct. 1473 (2010).

4. Lafler v. Cooper, 132 S.Ct. 1376 (2012).

5. This is an expression from the restaurant business. It refers to the profit that can be made from a given number of chairs. To make a given profit, the res­tau­rateur must either raise prices or increase the turnover, increasing the num­ber of patrons in a given hour. The same logic applies to lawyers who have a “volume practice.”

6. Rule 8.03(a), Texas Disciplinary Rules of Professional Conduct requires us to report lawyers who violate the applicable rules of professional conduct.

Have you ever defended any of the following types of cases?

– Injury to a child?
– Injury to a child resulting in death?
– Aggravated sexual assault of a child?

As a general rule, these cases are guaranteed to get your client a very long sentence if he is convicted—what some lawyers call the “slow death penalty.”

And as a general rule, these cases are among the most complicated cases to defend. This is doubly important in light of the sentences that juries are likely to impose upon conviction. Unfortunately, most lawyers don’t really understand just how complicated they are, or the land mines they are filled with. In other words, they don’t know what they don’t know.

Even well-meaning lawyers who don’t know what they don’t know help create bad case law. And we have an overabundance of bad case law created by lawyers who did not know. These attorneys cannot properly protect the appellate record, and this leads to even more bad case law. Lawyers who do not know there is a special body of science dealing with all aspects of child abuse do not know what they do not know.¹

Not knowing what you don’t know often leads to convictions. When only three of thirteen alleles match, it is an absolute exclusion, not an absolute match. But there was testimony in a rape case, which apparently went unchallenged, that the DNA was an exact match when only three alleles matched. The defendant was convicted. The authors suggest that the defense counsel did not know what he did not know.

If you’re honest with yourself, you would probably rather defend a straight-up murder case than an injury to a child or a sexual assault of a child. Why? Because you may be able to sneak in the old “S.O.B. needed killing” defense. But the authors have yet to meet the first juror who ever thought that a child needed injuring, or killing. In other words, your ordinary defenses are missing. That alone is a tremendous hurdle to overcome.

And if you didn’t realize that a straight-up murder case is easier to defend than one of these cases, then you don’t know what you don’t know.

The work-up on these cases is critical. Whether the child is dead or injured or allegedly abused or sexually assaulted, there are going to be volumes of records to go through. Invariably, there are even more records and evidence that will need to be obtained. Do you even know what you are looking at, much less looking for, in the records?

Consider an infant who has died from what the State says is ethylene glycol poisoning? Do you know what to look for in the medical records to see if it could be the result of a genetic defect? Do you know which experts to consult with? Do you know what testing has to be done to confirm the genetic defect? If you don’t, then you don’t know what you don’t know.²

Consider a case involving an allegation of sexual assault of a child where the physical findings are normal, or inconclusive? The alleged assault is said to have occurred years before, and the State is relying upon the “outcry witness” and psychologists who have interviewed, counseled, and treated the child. Who and what are the experts you need to defend this case? If you can’t name them, then you don’t know what you don’t know.³

Consider a case involving scald injuries to a child. Do you know how to look at the photos and tell the difference between accidental and intentional scalds? Do you know who to send the photos to for an expert opinion on same? Again, if you can’t or don’t, you don’t know what you don’t know.

Consider the following hypothetical scenario. A father finds his six-month-old child unresponsive in a crib. He calls 911 and tries CPR. EMTs arrive and the child is still unresponsive. EMT records show periods of anoxia during transport. The child is received in ER, followed by more periods of anoxia. The first CT scan is clear, but the second shows a subdural hematoma and rib fracture. The child ultimately dies. Multiple bleeds are found in and around the brain, and an autopsy finds fractures of the ribs, of different ages—some new and some healing. The case is indicted as injury to a child resulting in death. The DA refers to it as a “shaken-baby” case. Who and what are the experts you need to defend this case? If you can’t name them, then you don’t know what you don’t know.⁴

In that hypothetical case, what medical records would you need to obtain, other than those of the EMTs and the hospital to which the child was taken? If you can’t name them, then you don’t know what you don’t know.⁵ And if you can’t say why these particular records are important, then you don’t know what you don’t know.⁶

Who is the State going to call as its experts? How are you going to deal with each of them?

Did you know that the American Academy of Pediatrics now offers a Board Certification in Child Abuse? Imagine, doctors who are now board certified in diagnosing crimes. And those doctors testify with great conviction (and efficacy) as to the “proof” that they find of the crimes your client has committed. Never mind the very serious flaws in the studies they rely upon—they are board certified, after all, and by the American Academy of Pediatrics, at that. Do you even know the names of the studies that these experts rely upon to say that certain types of retinal hemorrhages are pathognomonic of abuse, much less the research that shows how deeply flawed these studies are? If you didn’t know this, then, again, you don’t know what you don’t know.

The State’s expert (an M.D.) is going to testify that the forces that the child was subjected to are equivalent to the forces that would be experienced in a fall from a third story onto concrete—and that it is this type of force that caused the injuries the child or the child’s brain suffered. Anything wrong with that analysis or analogy? If you said no, or if you cannot articulate what is wrong, then you don’t know what you don’t know.⁷ Interestingly, there is at least one forensic pathologist who will testify, and who has performed autopsies on persons who committed suicide by jumping off of third-story balconies onto pavement. Needless to say, what he found in his autopsies bears no resemblance to what will have been found on the autopsy of the child in your case. And if you don’t know who this pathologist is, you don’t know what you don’t know.⁸

Do you know what questions you need to ask the State’s witnesses to try to establish your defense? Do you know what questions you need to ask your experts? If you didn’t know this, then, again, you don’t know what you don’t know.

The voir dire on these cases is critical. What is your expertise in preparing to voir dire for one of these cases? Not what is your experience (read: number of cases) in conducting voir dire, but what is your expertise in preparing to voir dire for one of these cases? If you did not realize that expertise in preparing voir dire for this particular type of case was necessary, then, again, you don’t know what you don’t know.

When is the last time that you attended a seminar dedicated exclusively to the science involved in defending these types of cases? If it is more than a year ago, then, in the authors’ opinion—and in the words of Wolf-brand Chili^®—that’s too long. And again, you don’t know what you don’t know.

How many books do you have in your personal library dealing with the issues that arise in these types of cases? How recent are they? If your answer is only a few, and if they are older than ten years, then you probably don’t know what you don’t know.

What do you do to stay current on the latest developments in the science of these cases? What do you do to stay abreast of which experts to use and which experts to avoid (and why) and which experts fall in the middle?⁹ If you don’t do anything in this regard, then you probably don’t know what you don’t know.

Is there a solution to overcoming not knowing what you don’t know? The authors, who between them have 67 years of experience as attorneys, suggest there is. Interestingly, they came to the same solution independently—one 10+ years ago and the other within the last year. But they write together because they are so convinced of the value of the solution that they each came to.

That solution is this: They have both resolved to never undertake one of these cases without the assistance of Kim Hart. Who, you may ask, is Kim Hart?

Kim Hart is listed on TCDLA’s List of Experts under child abuse. She is a trial consultant living in Toledo, Ohio, and has more than 25 years’ experience assisting attorneys defending these type of cases all over the country—actually, the world.¹⁰ During that period of time, she has helped lawyers defend over 2,000 of these types of cases. Does your experience come anywhere near that? The authors’ combined experience is but a fraction of a percentage of that number.

In addition, she is the Executive Director of the National Child Abuse Defense and Resource Center (NCADRC). NCADRC is a 501(c)(3) entity that hosts its own seminar every two years on defending these cases. NCADRC has also co-sponsored CLE seminars with other criminal defense associations on these same topics in various parts of the country.

Because of this work, Ms. Hart deals with the foremost experts in many fields related to defending allegations of child abuse. She also stays current on the most recent developments in the fields, either through reading or in speaking directly to the various experts. Because so many of the very best experts have presented at the NCADRC seminars and hold her in such high regard, Ms. Hart is able to call them and get through to them, especially when time and answers are critical.

The insight she brings to these cases is invaluable. In a case in Toledo, Ohio, one of the state’s experts claimed to have been part of Dr. Ommaya’s team that did the research with rhesus monkeys.¹¹ Ms. Hart located Dr. Ommaya in retirement and got him to come testify that the expert had never been part of the research team. Would you have thought to try to contact Dr. Ommaya? Even if you had, do you think you could have gotten him to come testify?

Kim Hart is a must-have member of any team defending a child abuse case. In one case, Leonard Martinez was brought into the case by another lawyer just days before trial. It was a continuous sexual abuse of a child case. A 13-year-old child was accusing her mother’s former boyfriend of having raped her once a week for 16 or more weeks. It would allegedly happen when her mom left early in the morning to go to a flea mark in San Antonio. And the sister of the complainant, who is a year younger than the complainant, was allegedly an eyewitness to at least one of the rapes.

Leonard contacted Kim Hart, and even though the trial judge refused to give any resources, Kim helped with brainstorming, resources, and strategy. The case was a nightmare from Hell. The trial judge refused to give counsel any additional time to prepare. In a motion for continuance, counsel cited the “Performance Standards for the Representation of Non-Capital Cases.” The judge was not even aware of such standards.¹² As a result of some of the judge’s rulings, a motion to recuse was filed, and after a hearing, counsel was given just two additional weeks to prepare. Counsel had a total of three weeks to deal with a case no less complicated than a death penalty case, a case more emotionally charged than a death case, one that carried the potential of life without parole—the slow death penalty.

With the help of Kim Hart’s advice, Leonard’s team was able to have their client acquitted of all charges from continuous sexual abuse of a child all the way down to indecency by exposure. Without her help and advice, there is little doubt in the defense team’s mind that their client would have, in all probability, been convicted.

It is the opinion of the authors13 that you should never take one of these cases without hiring Kim Hart or having her appointed.¹⁴ There may be other trial consultants out there who are as competent in this field, but the authors have never heard of any, much less met one. Until they do, they are going to stick with what has been proven time and time again, throughout this country, by other lawyers who have used her services.¹⁵

Unfortunately, there are too many lawyers who believe child abuse cases can be handled like any other criminal case. Those who believe that are woefully unprepared to take on such a case. They don’t know what they don’t know.

The issues involved in child death, child injury, and child sex abuse cases are often difficult to identify and very difficult to analyze once identified. Kim can help you not only identify the issues, but also review the records and analyze the issues, bringing in the experts needed to assist the team in effectively representing the accused.

And if you didn’t know about Kim before this article, you now know part of what you didn’t know. For your benefit, the benefit of your clients and the benefit of Texas jurisprudence, please don’t ever handle one of these cases without Kim’s active participation and involvement. You may not be perfect, but you will at least be prepared. And you will no longer be in the position of not knowing what you don’t know.

Notes

1. Some of the “science” is not even worthy of being referred to as junk science. But you need to know which is which.

2. This is the case of Patricia Stallings in Missouri. She was sentenced to prison for life but subsequently exonerated on a writ when it was conclusively established that the laboratory results were misread and the recessive genetic defect that she and her husband both had was conclusively identified, thereby showing the cause of the propionic acid (not ethylene glycol) poisoning. Among the other problems with the case were that one laboratory claimed to find ethylene glycol even though its retention time (the period it takes for a compound to traverse a GC column) was not identical to a standard sample of ethylene glycol. Another laboratory did not even bother to run a standard. One laboratory did not calculate that the child would have had to consume 300 liters of ethylene glycol to account for the results of the chemical analysis. Genetic testing showed that the dead son had MMA, and the compound identified as ethylene glycol was shown to be propionic acid instead.

3. There are at least two: a SANE nurse or a pediatrician with experience in sexual assaults and a psychologist familiar with implantation of memories or corruption of memories.

4. There are at least two: an ME and a biomechanician.

5. You need to obtain the records relating to the birth of the child and any med­ical records of the child, especially those showing any vaccinations ad­min­istered to the child.

6. The birth records will show the child’s health at the time of birth and whether there was any birth trauma that could account for the rib fractures, among other conditions. Vaccinations have been shown to cause severe adverse reactions in young children, including subdural hematomas and even death.

7. A physician is not competent to calculate the forces that the body suffers in any particular situation. That job belongs to a biomechanician. And courtesy of biomechanics, we know that it is impossible to shake a child and generate any­where near those forces.

8. The pathologist is David Posey, M.D. He presented at the 2008 National Child Abuse Defense and Resource Center’s biennial seminar in Las Vegas. From May 1985 to August 1990, while he was Staff Pathologist and Forensic Pathologist at Tripler Army Medical Center, he was locum tenens at City and County of Honolulu Medical Examiner’s Office.

9. There are some physicians who are extremely competent in diagnosing hematomas and explaining their non-criminal causes, but they want to express opinions about the forces involved. If you know that up front, you can use them as experts, so long as they understand that they will not, under any circumstances, opine on the forces involved.

10. Ms. Hart has helped attorneys defend these type of cases in all 50 states, Puerto Rico, Guam, American Samoa, Canada, Australia, and Great Britain.

11. Ayub Ommaya, M.D. Dr. Ommaya’s research with rhesus monkeys provided the experimental data needed to model traumatic brain injury, which was used to come up with the unfounded theory of “shaken baby.”

12. This raises the question, were you?

13. The authors know other attorneys in other states who are of the same opinion when it comes to defending this type of case. Those lawyers will also not defend one of these cases without Ms. Hart’s assistance.

14. In several cases on which he has been appointed, Leonard Martinez has been able to have the trial judge authorize fees for Ms. Hart to be retained to assist in the defense. While it may be difficult, getting Ms. Hart appointed can be accomplished.

15. See Endnote 10, above.