Sarah Roland

Anymore I dread turning on the news every morning. I used to be a news junkie, but I just can’t handle it. I used to watch the news on TV while I got ready, and then I’d listen to NPR on my way to drop my oldest son off at school and then on my way to the office. Aside from the fact that each day’s news seems to only be more depressing than the day before, I have reached my limit on the injection of political ideology into the legal system. I know ‑ it’s always been there, and it always will be, but it seems that the American legal system has recently become the pawn in the game of politics. And that’s a dangerous path to traverse. The issue has become so pervasive that I have asked my friend and former Editor, Sarah Roland, to co‑write this column.

Take for example Operation Lone Star; no greater waste of money and resources may have ever been undertaken just so the Governor can use human beings as puppets to try to claim victory for his party and mouth off to the President of the United States. And now, the Governor is helping fund  this  Operation with over $30 million diverted from the already troubled Juvenile Justice Department. Meanwhile, the rights of hundreds, if not thousands, of criminal defendants hang in the balance while a few of our brothers and sisters, like Angelica Cogliano who is a member of this editorial board, fight to protect their bare minimum constitutional rights. Thank you to those in this fight.

Another example is the recent leak of the draft opinion from the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization. It’s unprecedented. There’s no real point to address the merits of the legal analysis in Dobbs yet since this is just a draft, after all. And we’re not here to argue whether abortion should be legal or not (you can likely guess both of our viewpoints), but how are we to feel confident in our system of justice if the highest court in the land no longer has dignity and is simply playing politics, or worse, has become relegated to a political pawn of whichever party is in power. Let us be clear, whichever side of the political spectrum leaked the opinion, it was wrong. Unprecedented. And what real purpose did it serve other than to further fuel a raging, incessant fire? However, should we be surprised? Please read Buck Files’ article in this issue regarding the embarrassment that was the Ketanji Brown Jackson confirmation hearings. This may have been the straw that broke the camel’s back. Not only was an unquestionably qualified judge attacked, but our criminal justice system and the very work we all do every single day was blistered by the senators who played politics to demean her; not her credentials but her character. What was the character flaw that she was attacked so vehemently for? Being a criminal defense attorney. Protecting the constitutional rights of people in the most impossible of situations. Ensuring that our constitution means something for everyone. Since the SCOTUS does hear criminal cases, what a welcome relief that there will now be one justice who has done what we do. A justice who understands what it’s like to not just stand beside, but stand up for, the constitutional rights and protections that all of us enjoy and that many often take for granted. The very realistic hope is that Ketanji Brown Jackson will bring a different perspective to the Court. There are three sitting justices who were once prosecutors. Now there will be one former public defender.

How are we supposed to fight the ever‑unpopular political problems that we deal with every day; like our clients’ mental health problems and how that plays into their defense, or Veterans in the criminal justice system, or marijuana cases and the discrepancies in how those cases are treated state‑wide, when the very fact of doing the work we do regardless of the subject matter of a particular case is under attack in the halls of congress? It feels like we are in a whirlwind these days with everything in the news and with courts rushing to unclog the COVID backlog as if it can be done in a matter of a few months. We are going nonstop and making that ever uphill climb. But we have to remember to take care of ourselves. This month – May – is Mental Health Awareness Month. And we are all acutely aware of the criminalization and warehousing of those who suffer from mental illnesses. That’s the appalling reality of our criminal justice system. We fight against it every day one case at a time. But we can’t be effective advocates if our own mental health hangs in the balance.

So, let’s take care of ourselves and lean on each other and continue the fight to which we have all been called. We need to encourage each other and build each other up. Let us support each other and be sensitive to one another. We continue to learn from each other by using resources like this magazine and the countless CLE opportunities TCDLA makes available each year. It’s good that it’s almost time for Rusty so we can gather with the folks across this State who take the same punches we do on a daily basis and break bread together and maybe imbibe a little and rejuvenate our batteries. We’re in this together.

Jeep Darnell & Sarah Roland

It’s been one of my greatest pleasures to serve TCDLA as editor since Michael Gross entered the officer chain as secretary 5 years ago. The time has come, however, for me to step aside and allow new, fresh ideas and perspectives be involved. I have submitted my resignation as Editor of the Voice effective June 25, 2021. I will remain in an advisory capacity and will continue to serve TCDLA, but will be passing along the torch. This is certainly a bittersweet moment for me.

The Voice is bigger than any individual editor or author, and it always will be. It is a collective effort. Last March, I asked Jeep Darnell and Clay Steadman to join me as assistant editors. They graciously agreed, and I will be forever grateful. You never know what life is going to bring, and as the world was adapting and adjusting to a new normal during COVID-19, my family’s world turned upside down. In July, out of nowhere, my then four-year-old, Sam, suffered devastating medical issues. They have been ongoing but thankfully we are in a much better place now. It was Jeep and Clay who stepped in and picked up the slack with the Voice since my focus was completely on Sam. It was Melissa Schank who reassured me and kept things going. TCDLA has a real treasure in Melissa. And, recently, we added Amanda Hernandez to the fold. She has already exhibited editing prowess. It has been wonderful to have Jeep, Clay, and Amanda as part of this editorial team. We have certainly worked well together. My only regret is that I waited much too long before I recruited their assistance.

I have been blessed to work with giants like Buck Files, to talk to him each month, to read his columns, and to see him through to his 250^th article. We all reaped the benefits of Michael Mowla’s SDR’s and are now benefitting equally from Kyle Therrian’s. Robert Pelton has consistently fielded calls and made sure we stay out of hot water ethically. The Chapter and Verse (Allison Mathis) and From the Front Porch (Dean Watts) columns are great additions. I have had the humbling duty of editing feature articles by lawyers much more experienced than me. I learn something new every month. I know we all do. These authors are the people who have tirelessly contributed month after month for the benefit of all of us. They are ones who should be thanked.

Michael Gross, thank you so much for having suggested me to fill this role when you joined the officer chain five years ago. It’s hard to believe it’s been that long now. I would like to think I have made a positive impact on the Voice and will be leaving it better than when I began. That’s always been my goal, at least. I have certainly enjoyed the work and the opportunities this position has provided.

Thank you, George, for brainstorming with me and editing the editor. George is my brother and best trial partner hands down.

Thank you all for reading the Voice and for trusting me to be your editor for so long. Thank you for all your submissions. Thank you for all your feedback – both good and bad. We value it all. Truly. Keep it coming because the goal will always be to continue to make the Voice a better resource for our members, and keep on submitting your articles. Your articles are the lifeblood of the Voice.

You likely know I’m a defense lawyer because of my late dad, George Roland. I’ve mentioned him before in my articles. He was the biggest Willie Nelson fan ever, so it seems appropriate to quote Willie (though somewhat out of context given the rest of the song) –

Turn out the lights, the party’s over
They say that, ‘All good things must end’

Thank you. It has been an honor.

I am saddened to inform you that after 250 articles (yes, 250!) Buck Files has decided to put his pen down/close down his computer. As you know, Buck has been a consistent and prolific author of the Federal Corner column for a long time – probably for about as long as you can remember, in fact. Those of you who have had the benefit of reading his articles every month know we have a treasure in Buck. But, as Buck told me, “250 seems like a good number.” No doubt. It’s a record that will undoubtedly stand for years to come.

As the editor for the past five years, Buck’s articles were a dream. They came in on time, with superb content, and in great shape every month. I couldn’t have asked for more.

Buck’s Federal Corner column would never tell you about him and his accomplishments. However, I think it’s important that we all acknowledge the giant who has been amongst us and indeed led us for all these years.

Buck is a charter member of TCDLA and has consistently and continually strived to uphold the culmination of our mission statement – “…to promote justice and the common good.” Buck is a Marine. He has been married to his wife, Robyn, over 50 years. Buck served as president of the State Bar of Texas for 2012‑2013. He has been an active leader in both TCDLA and SBOT for many years. In 1975, he was part of the charter class to be certified as a specialist in criminal law. In 2011, Buck was inducted into TCDLA’s Hall of Fame. The next year, Buck received the Lifetime Achievement Award from the Criminal Justice Section of the State Bar of Texas. You should all know, if you don’t already, that in addition to all the above‑earned accolades Buck is a genuinely polite and kind person. I will miss him. Buck, we are all thankful for you and your contributions that have made us all better, and we wish you the very best.

The Federal Corner column is an important part of the Voice, and we will continue to bring it to you without interruption with rotating columnists.

The Voice’s New Assistant Editor!

The Voice for the Defense is excited to announce San Antonio‑based lawyer Amanda I. Hernandez has joined as an associate editor!

Amanda is an associate at the Flanary Law Firm, PLLC, and has jury trial experience with misdemeanor, felony, and federal cases.

Amanda currently serves as a board member for the Texas Criminal Defense Lawyer’s Association (TCDLA) and the San Antonio Criminal Defense Lawyers Association (SACDLA). She is also on the board of directors for the Texas Coalition to Abolish the Death Penalty (TCADP). Amanda is a zealous advocate and has been recognized by her peers as SACDLA’s “2019 Young Lawyer of the Year” and as a 2020 Top Attorney featured in San Antonio Magazine’s November 2020 issue.

She is also a 2017 graduate of the Tim Evans Trial College, an intensive program run by TCLDA in which new lawyers learn trial strategy from some of the best criminal attorneys in Texas.

Amanda earned her degree in International Business from the University of Texas at San Antonio in 2011 and went on to attend St. Mary’s University School of Law, graduating in May of 2016. After graduation, Don Flanary started the Flanary Law Firm, PLLC, and quickly promoted her from being his long‑time law clerk to the first associate attorney in his practice, where she remains today.

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

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

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

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

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

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

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

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

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

(2)  consist of:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A new year. A fresh start. Or so it’s supposed to be. We are all still dealing with COVID-19 and all its many implications on our profession. Many of us are balancing work with helping our children with connected learning. Some of us have lost loved ones. We have all been, and continue to be, impacted. Amidst all this, please know that TCDLA continues to be out front fighting for us. Your officers and executive director work incessantly for the interests and benefit of all of us. Recently, our leadership reached out to Governor Abbott about vaccine prioritization for criminal defense lawyers. After all, as we know, criminal defense lawyers are essential to a fully functioning criminal justice system.

Keep on keepin’ on (as my Dad would say), stay safe, and let’s continue to take care of each other.

Sarah

Two New Year Reads

I want to share a couple of books with you that I recently read and think you will enjoy.

Uncomfortable Conversations with a Black Man
By Emmanuel Acho

I had heard about this book a while back and considered reading it but honestly just happened to pick it up on a whim recently. I’m so glad I did. I couldn’t put it down. The book is exactly what its title indicates. There’s nothing pretentious about it. Acho, the son of Nigerian immigrant parents who grew up in Dallas, played for the NFL, and who now is an analyst on Fox Sports, fully acknowledges his experience is not representative of all black people, and that gives the book a certain credibility. Each chapter begins with a question – a question many people have thought if not wondered out loud at some point. Then, each chapter discusses the history behind the question, the uncomfortableness around the question itself, and how to come together. The book is appropriately divided into three parts: 1) You and Me; 2) Us and Them; and 3) We. Acho doesn’t talk down to the reader or make the reader feel ashamed, and he provides actionable suggestions to become a part of the solution. This is a quick but thought provoking read. You will learn something about yourself and someone else. As Acho points out (and we all know from experience), black men are disproportionately arrested, convicted, and imprisoned in our justice system. You won’t regret spending the time to read this book if you haven’t already.

Murder in Montague: Frontier Justice and Retribution in Texas
By Glen Sample Ely

Even though I’m a Baylor/Texas Tech girl, Mr. Ely and the University of Oklahoma Press was kind enough to send me Murder in Montague to review. If you love history, this book is for you.

On a sweltering August night in 1876, a Methodist minister, his wife, and children were brutally slaughtered in their North Texas home. Acting on deathbed testimony, three men were arrested and tried for the murders. The book is a blend of true crime reporting, social drama, and legal history and presents a vivid snapshot of frontier justice in Texas following the Civil War.

The sheer brutality of the Montague murders terrified settlers already traumatized by decades of chaos, violence, and fear – from the deadly raids of Comanche and Kiowa Indians to the terrors of vigilantes, lynchings, and Reconstruction lawlessness. But the crime’s aftermath – involving five Texas governors, five trials, five appeals, and life at hard labor in the state’s abominable, inhumane prison system – offered little in the way of reassurance or resolution.

Viewed from any perspective, the 1876 murders were both a tragedy and a miscarriage of justice. Combining the long view of history and the intimate details of true crime reporting, this book captures this moment of reckoning as vigilante justice grudgingly gave way to an established system of law and order.

The Voice has always been an important benefit of this organization. Back in 2007, I submitted my first article for publication to the Voice. It addressed the presentment requirement of search warrants as applied to search for blood.¹

Now, 13 years after my first article – and along with many other Americans, I’m certain – I find myself contemplating more and more another topic related to search warrants: no-knock warrants. The requirement has long been a part of history even before Justice Thomas authored the opinion for a unanimous SCOTUS in Wilson wherein he wrote: “At the time of the framing, the common law of search and seizure recognized a law enforcement officer’s authority to break open the doors of a dwelling, but generally indicated that he first ought to announce his presence and authority. In this case, we hold that this common-law ‘knock and announce’ principle forms a part of the reasonableness inquiry under the Fourth Amendment.”

Wilson v. Arkansas, 514 U.S. 927, 929 (1995). The case involved a search warrant based on information from a confidential informant. Police had information that the target had previously been convicted of arson and firebombing and also that he had threatened the confidential informant with a semiautomatic weapon. Police officers announced entry contemporaneous with, rather than prior to, entry in this case. The SCOTUS ultimately reversed and remanded the case to the Arkansas Supreme Court to address whether evidence of potential danger to law enforcement and destruction of evidence justified the failure of law enforcement to announce their presence prior to breaching the door.

Thus, since 1995, the knock and announce requirement is part of the reasonableness inquiry of a Fourth Amendment analysis. But now, especially given all the recent events, the question is: does the ever-increasing cost of no-knock warrants outweigh their potential benefits?

The scene in executing these no-knock warrants is often the same – an arsenal of police in military-type tactical gear (versus typical patrol uniforms that we are all used to) load up under the cover of darkness and surround the target house often giving hand signals to communicate. To anyone watching, they appear ready for war. Then, when the signal is given, they breach entry with some sort of battering ram, again under the cover of darkness, throw flashbangs while simultaneously screaming commands, and storm the location with guns drawn and shields up. The occupants are often sleeping, and there are frequently noninvolved people – sometimes kids and/or elderly – present at the location. They are awoken or interrupted suddenly by the sounds of flashbangs and screaming. Through an open interior door, the occupants may see smoke and guns pointed at them. Predictably, panic and chaos often ensue, and gunfire is often exchanged.

In my experience and reading, these no-knock warrants are typically employed in drug raids. Certainly, the same concerns that existed in Wilson as justifications for the failure of the police to announce their presence will exist in the execution of a warrant in virtually every drug (and every other criminal) case. The consideration, then, has to be is it worth the risk. Is it worth the risk to any one law enforcement life? Is it worth the risk of life to the sometimes completely innocent occupant? Importantly, to answer the question, we must acknowledge that “it” is most frequently a covert drug bust. The problem is further compounded by the fact that Texas is a proud “stand your ground” state. Gunfire, or the sound of gunfire, will often predictably be met with the return of gunfire. Is the risk of harm really worth it? Not a chance.

Just search “no-knock warrants” and you will find that many police departments in Texas are now suspending or severely limiting the use of no-knock warrants for precisely this reason. And, in June, Kentucky Senator Rand Paul introduced the Justice for Breonna Taylor Act to prohibit no-knock warrants at the federal level and for states or any local law enforcement agency that receives funding from the Department of Justice.² What harm will it actually do to eliminate or severely restrict the use of no-knock warrants like many police departments and legislation propose? None. The warrants will still be executed, police will still come prepared, and people will still be arrested. The risk isn’t worth it.

And finally, although our country is clearly divided, let us not become so. Let us embrace the differences in each other and let us remember that whatever our differences may be, we stand united because we all are criminal defense lawyers.

Peace on earth and goodwill to all.

P.S. – A huge thank you to all those committees and individuals who have committed to contribute to the Voice. Your thoughtful contributions are what continue to propel the success of this publication.

It is with sadness and understanding that I must inform you that TCDLA’s beloved Michael Mowla has resigned his post as SDR contributor and editor after three years of contributions. I originally tapped him for the job knowing that he would raise the level of the Voice. We all know Michael has been and continues to be tireless in his efforts to help us all be a little smarter legally. He was happy to help, answer questions, and point us all in the right direction. He provided stellar (and comical) SDRs. We are grateful for his service.

Please join me in welcoming our new SDR contributor and editor, Kyle Therrian. Kyle has been extremely active – especially lately – in TCDLA. He has been a part of COVID-19 Response Task Force, Amicus, Memo Bank, Strike Force, and Nominations committees and TCDLEI Board. Like me, he must not sleep much. I was thrilled he agreed to step into this very formidable role. You will find the SDR remains very readable and very insightful. Kyle is more than capable of keeping us up to speed on significant decisions.

You will find this edition of the Voice dense with valuable insight and information as we begin to return to “normalish.” There are none better to have tested out the new frontier of Zoom trials than Jennifer Lapinski, Robert Hirschhorn, and Lisa Blue. They participated in the first two Zoom trials from jury selection through verdict. Should there be any tendency to proceed with a Zoom jury trial, this article should cause us all to put on the brakes, and to resist any effort to be put to trial via Zoom or any other electronic means. There is absolutely no benefit that will come to our client with a Zoom trial.

Ed McClees explains the difficult concept of “combinations” as related to engaging in organized criminal activity (EOCA) cases in his article “When it Takes More than Two to Tango.” We all know EOCA can be really tough, but Mr. McClees helps simplify the complexity of one of the main issues in these cases. He also reminds us to be sure to check that the predicate offense alleged in the indictment is one of the enumerated offenses listed in the statute since not every criminal offense is a qualifying predicate offense for EOCA.

Dr. John Fabian, in part one of a two-part article, provides a richly sourced article that suggests our military clients, precisely because of their traumatic experiences serving in the military, may be more predisposed to commit certain violent acts. While these experiences may not be exculpatory in most cases, it is most certainly mitigating in every single case, and now thanks to Dr. Fabian, there is supporting literature on the very topic. Let’s always be sure to fully explore the backgrounds of all of our clients, especially those who have given of themselves at one time in service to us.

Finally, my deepest appreciation and thanks to assistant editors Jeep Darnell and Clay Steadman – especially during this time – for all their work in helping edit the Voice and bring you the best product possible. As always, please let us know if you have any feedback – good, bad, or otherwise – to help improve the quality of the Voice for all our readers.

Be sure to vote, love your families, stay safe, and be well.

I was talking to a good friend and colleague recently about the impact of COVID-19 on our local court system and criminal defense community. We were lamenting that, on the whole, we, the criminal defense lawyers, seem to be the only moving part in the process – going to and from the jail and courthouse to facilitate pleas (even if doing pleas via Zoom). It was a role we undertook, understanding it placed us at risk, as we, and our clients, were largely the only live and in-person components of the criminal justice system. And now, as was inevitable, the jails are experiencing a rash of COVID-19 cases. The anxiety we are experiencing is real and palpable. The backdrop this pandemic is creating is just as real.

Consider the impact of this constant hum of worry on someone struggling with substance abuse, where the very “triggers” for use might well be the stress and anxiety that are now constants for all of us. The unintended hardship COVID-19 is creating in our communities, especially for those struggling with substance use disorder, is impossible to ignore: inability to attend in-person AA/NA meetings; loss of jobs; loss of housing; isolation; working in less-than-safe conditions; finding treatment facilities that are able to take new patients; and many, many more. Telehealth is an answer to many of these problems, but it’s less than ideal given the importance of face-to-face connection, physical contact with others, and the role environment all play in therapeutic communication. As we all know and have experienced at this point, there is just no substitute for face-face connection – for actual eye contact with a person rather than starring at one’s reflection and the two-dimensional faces of others on a screen. 

Make no mistake, the economic and social conditions created by the pandemic are devastating, and the collateral impact of COVID-19 on those struggling with substance use disorder is real, and places serious impediments to the recovery of some. It is well-publicized that alcohol sales were up during the shut-down and have remained above normal. What we lack, presently, is data regarding illicit drug sales and drug use. It stands to reason though that drug use and sales have risen also in response to the uncertainty.

Thousands of people die each year in the US from drug overdose in a normal (re: non-pandemic) year. Over the last two decades, the number has grown close to 600,000 people who have been lost to drug overdose. The number of overdose deaths in the US for 2018 (the most recent year for which there are statistics) exceeds 67,000, according to the CDC. COVID-19 has far eclipsed that number but will-inevitably and directly increase the number of overdose-related deaths during this pandemic. The backdrop this pandemic is creating for those struggling with substance use disorder is real, and is scary.

August 31st is International Overdose Awareness Day. The goal of IOAD is to raise awareness of overdose and reduce the stigma of overdose deaths. It also acknowledges the grief felt by family and friends remembering those who have died or had a permanent injury as a result of drug overdose. That grief is real and should not be stigmatized. IOAD spreads the message that overdose death is entirely preventable. That is worth considering again: Unlike deaths from other diseases or viruses, deaths from drug overdose are 100 percent preventable.  

Maybe we can all do our part, however small, to help prevent an overdose. Let’s pick up the phone and call that client who may be struggling – not to talk about their case but just to talk to them, to check in with them and see if there is anything we can do to help them, to let them know you care. Talk to the client who has the state jail possession charge about their substance use. We all know odds are that it’s not the first time that person has used. Know the substance abuse resources in your area. Let’s be a lifeline to that person.

“Is it over yet?” we keep asking ourselves and each other. “Can’t things just go back to normal?” Not hardly. As the great lyricist Bob Dylan sang in 1963, “The Times They Are A-Changin”. Amid the first (and hopefully only) pandemic that we have all experienced, we are being put to the test every day. We are trying to stay connected in the face of social distancing. We are homeschooling while simultaneously trying to keep the doors to our businesses open and dollars coming in to take care of our employees…even though the majority of the state has been under stay-at-home orders. We have all been adapting and maintaining in the best ways we know… all while trying to keep our families and ourselves healthy.

And as you know, TCDLA has been adapting, maintaining, and retooling, too. There is no better evidence of this than Rusty Duncan. While this wasn’t Rusty as it has been in years past, this year was still a success thanks to our chief executive officer, Melissa Schank, and her staff, our course directors, and our speakers. And I’m sure the same will be said about the Declaration Readings next month. Be sure to start or get involved in your local Declaration reading whether it occurs virtually or in accordance with social distancing recommendations. It is that important. Especially now, as we define for ourselves and for our clients why the work we do is essential.

A final thought. Take time for yourself to be and stay well. In addition to the regular stresses of our daily pre-pandemic practices, this is an emotionally exhausting, stressful, overwhelming time. While the doors are closed and the phones may not be ringing as much lately, the new stresses are unique and very real. So, exercise, meditate, read, knit, watch baseball (when it starts back in July) — do something for you. Self-care is vitally important. We need to take care – both physically and mentally – of ourselves first so that we can take care of our families, friends, and clients. A great place to start is TCDLA’s seminar series Mindful Mondays.

Stay safe and well,

-Sarah

P.S. – And this month, again for the safety of our staff, members, and postal service workers, we are publishing the Voice online. We know the overwhelming majority of our readers prefer to have the hard copy of the Voice and it is our hope to return to that very soon. In the meantime, if you’d still like a hard copy, please let us know so that we can get it to you.

We are all in this pandemic together as humans and as criminal defense lawyers, but we each have our own unique experiences both personally and professionally. As courthouses across the state begin to reopen, please consider sharing your experience – whether uplifting, heart wrenching, or anything in between – with us. We are compiling stories of criminal defense lawyers from around the state to share in the upcoming issue this summer. Send submissions to .

There’s a lot going on in our world. As an American, I can’t help but think about, worry about, and be saddened by what is going on. What happened to George Floyd is wrong, and the officers should be held accountable for their conduct. But, as a criminal defense lawyer, the idea of circumventing due process to hold those officers accountable, as seems to be the rallying cry of many, is also scary and terribly worrisome.

In the Boston Massacre Trial of 1770, then-future president John Adams defended eight British soldiers who had killed five Bostonians. The killings were publicly and collectively termed the “Boston Massacre” within days after they had occurred. The five Bostonians killed quickly became martyrs for the Patriot cause. To describe Adams’ defense as unpopular would be a massive understatement. That his business would have taken a tremendous hit because of his defense of the eight British soldiers is a given. But he did it. Due to Adams’ defense work, Captain Preston, whom the prosecution argued gave the order to fire, was acquitted. And, when the trials of the remaining British soldiers were finally over, only two were convicted – and of the lesser offense of manslaughter, at that.

How and why did Adams defend the British soldiers? He did it for the same reasons we defend the indefensible case: because we, as criminal defense lawyers, hold an unshakeable belief in our justice system.

Several years later, the Declaration of Independence was adopted by the Continental Congress on July 4, 1776. That was followed by the US Constitution which was ratified on June 21, 1788.

Fast forward nearly 250 years, to the killing of George Floyd. Mr. Floyd’s death has been followed by days (and sure to be weeks) of protest — many peaceful but some riotous. It can be unsettling and uncomfortable, and it should be. Injustices are inhumane.

But, we also realize as criminal defense lawyers who believe in our Constitution, that just as surely as protestors have a right to speak out, so too, do the Minnesota police officers have a right to fair trials with zealous representation unclouded by personal judgment. It doesn’t mean we condone the conduct in any way; quite the opposite. It doesn’t mean we want to see the officers escape accountability for their actions; they should be held accountable for their conduct. It just means to keep the integrity in our justice system – a system designed to protect the innocent – we must have trials where the defense is just as vigorous as the defense mounted on behalf of the British soldiers by John Adams. Our justice system fails when there is a laydown, railroad job – from any side.

It takes a special kind of person – it takes a criminal defense lawyer – to fight for our Constitution, be a zealous advocate, and defend the truly indefensible cases. It takes a special kind of lawyer to be able to not let personal feelings interfere with their representation. There are some cases some of us choose not to take because we recognize our objectivity may be or become compromised, and that’s ok. We are all human.

We will all defend the unpopular, hated client at some point during our careers. We have all been asked (at least a dozen times) “how do you defend someone you know is guilty?” And we all know, and believe to our very core, the answer to that question. We believe in and protect our Constitution. That is just what great defense lawyers like John Adams do. They stare into the abyss and march forward giving it their all to protect our justice system for all of us.

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Please be a part of the Declaration Readings happening in your area this Independence Day.

Sarah Roland
Editor

Clay Steadman
Associate Editor

Jeep Darnell
Associate Editor

Melissa Schank
Executive Director