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Current Issue: October 2020

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Features

17 | A Primer on the Texas EOCA Statute – By Ed McClees
20 | Zoom Jury Trials: The Idea Exceeds the Technology – By Jennifer Lapinski, Robert Hirschhorn, and Lisa Blue
27 | Veterans and Violence Part I: Forensic Psychological and Neuropsychological Evaluations of Veterans with Posttraumatic Stress Disorder and Traumatic Brain Injury – By John Matthew Fabian

Columns

6 | President’s Message
7 | Shout Outs
8 | Executive Officer’s Perspective
9 | Editor’s Comment
10 | Ethics and the Law
12 | Chapter and Verse
13 | Federal Corner

Departments

5 | CLE Seminars and Meetings
43 | Significant Decisions Report

President’s Message: Let Us In

Tex. Code Crim. Pro. Art. 20.011 permits the following people inside a Texas grand jury room during proceedings: grand jurors, bailiffs, prosecutors, witnesses (while being examined or when their presence is necessary to assist the prosecutor), interpreters, stenographers and videographers.

Defense lawyers are not allowed in the room, even when a grand jury wants to hear from us. It’s time to change that.

The simplest way to do this is to amend the statute regarding persons “Who May Be Present in Grand Jury Room.” Tex. Code Crim. Pro. Art. 20.0111 The amended statute should add to the list of eligible people, an “Attorney for Defendant or Target, when requested by Grand Jury.” Target could be defined as any person or entity the Grand Jury believes may be a subject of a criminal prosecution, relating to the matter(s) of the Grand Jury’s investigation. The amendment would not permit the appearance of attorneys for fact witnesses who are neither under investigation nor threat of indictment.

There is an urgent need for grand jury reform in Texas. TCDLA and supporting groups are at the forefront of this movement. Two years ago during the Texas legislative session of 2019, the House and Senate considered versions of bills that would have required all grand jury testimony to be transcribed or video recorded, prevented repeat grand jury considerations after a case has been no-billed and a prosecutor has no new evidence (a.k.a. “grand jury shopping”), allowed witnesses and the accused to have their attorneys present during grand jury questioning, and required prosecutors to share with the grand jury evidence that is favorable to the accused. These were worthy measures, which, unfortunately, did not clear all the necessary hurdles to become law. I anticipate similar bills will be filed again in 2021.

But a bill allowing defense lawyers into the room upon request of a grand jury should be considered as a separate piece of legislation.

When I spoke on behalf of TCDLA to the Texas Judicial Commission (TJC) in February 2020, we discussed several potential reforms to the grand jury system. TJC considered ideas ranging from those contained in the aforementioned House and Senate bills, to my own suggestion of permitting examining trials at any time prior to trial. Our current system only allows examining trials before indictment,2 which means a prosecutor can sidestep a judicial inquiry into probable cause by (literally, in some instances) running to the grand jury room and securing an indictment. See State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 427 (Tex. Crim. App. 1990) (Magistrate has no authority to block or delay a prosecutor from presenting a case to a grand jury.). Because of their unchecked power to skirt examining trials, prosecutors in many Texas counties have rendered nearly all of Chapter 16 of the Code of Criminal Procedure completely useless.

But unlike our discussion of previous, unsuccessful grand jury reform measures, as well as my own call to expand the use of examining trials, I did not detect any concern in allowing defense lawyers into a grand jury room — when a Texas grand jury specifically asks for us to be there. It makes perfect sense to allow a grand jury an opportunity to hear both sides of a story. Practitioners and citizens should also consider that an indictment often has a profound effect on a person’s life. A “true bill” can destroy someone financially and emotionally. Criminal lawyers often see clients lose their jobs and get separated from their families following an indictment. Many clients are saddled with harsh and restrictive conditions of bail. Some spend months or longer in jail, awaiting trial or disposition after a grand jury returns a true bill. The public and even many in the legal profession would be shocked to learn that not only do prosecutors get to pick and choose which evidence they share with grand juries, but prosecutors are under no legal obligation to present exculpatory evidence! U.S. v. Williams, 504 U.S. 36, 45-55 (1992) (A district court may not dismiss an otherwise valid indictment because the Government failed to disclose to the grand jury “substantial exculpatory evidence” in its possession.).

When it comes to grand jury reform, I am confident of several things: First, TJC and our Texas legislators do not want innocent people to get indicted. Nor do they wish to unnecessarily tie the hands of grand jurors. Further, I am certain that our state’s best prosecutors would feel comfortable permitting defense attorneys to share information — and possibly even their entire defensive strategy — with a grand jury, in those rare cases in which a defense attorney and a grand jury want to do exactly that.3 Finally, I am convinced that a minor alteration of the rule regarding who may be present in a grand jury room will neither slow things down nor lead to injustice. If a grand jury refuses to indict a person after hearing from a defense lawyer that’s exactly the kind of information that a good prosecutor will want to know in advance of trial.

I wish to emphasize that this proposed change would not convey a new right to defendants or their attorneys. It would merely be an additional option for grand juries in rare but appropriate cases.

It is time to let defense attorneys into the grand jury room. Today I am requesting that TCDLA’s Legislative Committee and our excellent lobbyists draft a very short bill to amend the applicable statute in the manner I have suggested. I ask that the proposed bill remain separate from any other bill to avoid getting it dragged into the larger morass of grand jury reform. Finally, I am sending a copy of this column to our friends at the Texas District and County Attorney’s Association (TDCAA), including TDCAA’s President and its Executive Director. They are intelligent and reasonable people. My hope is that TDCAA will join TCDLA and other stakeholders in this narrowly targeted effort to advance the cause of justice.

Executive Officer’s Perspective: Moving Forward

“All you need is the plan, the road map, and the courage to press on to your destination.”

—Earl Nightingale

As we continue through the COVID-19 era, things continue to change. Some days TCDLA moves the defense bar one step forward, then other days, we take two steps backward. There are so many decision-makers determining what is the “safe” route or who should be in-person in courtrooms. There are debates surrounding finances, backlogs, and what is in the best interest of the client.

TCDLA has all hands-on deck working endless hours, talking with and assisting our members, and providing motions, checklists, and other tools. Our ultimate goal is for TCDLA to be a resource to protect our members and ensure their clients’ rights are not abridged during the reopening process.

For the lawyers who are on the frontlines, our leadership, committees, staff, and TCDLA as a whole are doing everything possible.  If you are on the frontlines, you are not alone; you have TCDLA’s group power backing you – whatever the right thing is for each case and attorney. TCDLA supports you .

As we get ready for the 87th Texas Legislative Session, our TCDLA Lobbyists and Legislative Committee will continue to lobby progressive reform for criminal justice. They will keep our members informed of bills filed or any other pertinent information. This will be an unprecedented legislature due to limited access and the ever-changing rules. It is also unknown, other than the budget, what the priorities will be and what will be discussed.

TCDLA would like to thank Michael Mowla for his past years of service for the Significant Decisions Report. He will be missed, and I look forward to seeing him in person again, along with everyone else.

We are missing our face-to-face interactions at seminars and meetings. Till our roads cross again, may your destination be a peaceful one.

Editor’s Comment: A Season of Change

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.

As we went to print, news that Justice Ruth Bader Ginsburg had died at the age of 87 filled the media. Quite simply, her legacy is unrivaled, and we would all do to heed her advice: 

“Fight for the things that you care about, but do it in a way that will lead others to join you.”
 
  And let’s all be sure to vote and encourage others to, as well.

Chapter & Verse: What Does “Speedy Trial” Mean Anyhow?

As I strike out on this venture to read through the TCCP with all of you, my darling colleagues, I realize now, in this second humble installment, what a huge elephant I have promised to eat. For example, the next section I want to dive into is Art. 1.05. “Rights of the Accused.” Oh gosh. That’s a lot. Even in Texas, apparently, the accused have a lot of rights. Even the first sentence has a lot to unpack: “In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury.” We have to pick something to focus on here. I pick the speedy part.

Speedy trials have come to mean something entirely different in Texas than they did when they were first invented. Back in the Day (and by “day” I mean 1166 AD, specifically the Assize of Clarendon), trials had to be held within a few days of the person being arrested. To be totally fair, “trials” were also a bit easier to organize back then, requiring mostly a large vat of boiling water into which the hand of the accused person was plunged, then wrapped in bandages for an additional three days and then examined by a priest who determined if the hand was infected or not. If the wounds were infected, the person was guilty. This is about as fair a system as has ever been invented and, frankly, I’d probably take my chances with the vat of boiling water if I was ever given the option of that or to sit in the county jail for 20 months or so months awaiting trial, but I digress.

Texas actually used to have what most other states have, which is a speedy trial act that required the state to be ready for trial within a set amount of time after “the commencement of a criminal case.” In Texas, this meant that the state had 120 days to get ready for a felony, barring exceptional circumstances. In my humble experience in other jurisdictions with similarly strict day requirements, there are always exceptional circumstances. In Meshell v. State, 739 S.W.2d 246, the CCA declared that the Texas Speedy Trial Act violated the separation of powers doctrine, and that the legislature couldn’t tell the DA how long it would take to get ready for trial. That’s disappointing, especially for Meshell himself, whose lawyers didn’t argue that his case was a federal or state constitutional speedy trial violation. So, when the act was struck down, he hadn’t preserved any error for review and ended up with a conviction (lesson: OMG CONSTITUTIONALIZE YOUR OBJECTIONS).

So now where does that leave us? What do we get when we get a speedy trial? Answer: Not much. We get SCOTUS’s Barker v. Wingo factors for the court to consider once the delay gets long enough to qualify as “presumptively prejudicial” (the length of delay, reason for the delay, assertion of the right, and prejudice to the accused). How long is long enough to be considered “presumptively prejudicial?” Cantu v. State, 253 S.W. 3d 273, tells us that it’s more than four months but definitely 17 months. Everything else is up for interpretation.

So, much like life itself, we are challenged to sift through a morass of meaninglessness and come up with meaning for ourselves. I would contend that it is good practice in appropriate cases to: (1) Demand in writing a speedy trial at the beginning of a case; (2) refuse to agree to resets – make the state request it, write on the reset that you’re signing as to service only, not agreeing, etc; (3) flesh out your prejudice (yeah, it’s prejudicial if a material witness dies, but you can’t show what they would have testified to if you never interviewed them); and (4) move to dismiss for speedy trial violations.

Ethics & The Law: Zoom: The Walking Ethical Violation

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Within 30 minutes of counsel’s calling into the TCDLA’s Ethics Hotline, counsel’s problems were solved.

DILEMMA:  Lawyer L represents incarcerated and indicted client C. Mr. C. is adamant that lawyer L immediately gift all discovery already received from the DA under Article 39.14, C.C.P., to Mr. C’s brother-in-law, Mr. B, who is a licensed private investigator in Texas.

Who will be killed, kidnapped or threatened as a result of that “required” release of discovery information?

Should an attorney always follow the dictates of his/her client, even if the client is right or wrong? 

ANSWER:  No!

Does Article 39.14, C.C.P., authorize counsel to so release all to Mr. B, who was not appointed or hired as an investigator for Mr. C? 

ANSWER:  No. See Article 39.14.

Do the Texas Rules of Disciplinary Conduct authorize counsel to disclose confidential communication and unprivileged information upon Mr. C’s request? 

ANSWER:  Yes. See Rule 105(c) and (d).

How can lawyer L “avoid or get around” the disclosure prohibition in Article 39.14, C.C.P.?

ANSWERS

  1. Only with a “sealed” judicial order authorizing such redacted or unredacted disclosure to Mr. B. 
  2. Without a court order, lawyer L can hire Mr. B as lawyer L’s second investigator in this case and disclose all. Lawyer L should be sure that he can trust Mr. B. 

How many clients can you trust not to get you involved in client’s past, present or future criminal conduct?

How many investigators have you dealt with that you can trust to do it right and keep you out of ethical and professional misconduct due to the actions and omissions of that very investigator whom you hired on a case?

When it comes to prosecutors and judges, how many can you trust to always do the right thing?

When  it  comes to hiring an investigator or working with an appointed investigator, 

who can you trust to always do the right thing so you will not get indicted, convicted or disbarred for that investigator’s conduct on your and Mr. C’s behalf?

Lawyer L may be held liable under tort or criminal law, if Mr. B alone or in conspiracy with Mr. C threatens, kidnaps or kills any State witness, whose name, address or phone number is disclosed in the Article 39.14 discovery.

Common sense dictates what a knowledgeable ethical lawyer should do in this scenario. What would you do?

Joseph A. Connors III

COVID-19 has changed the whole world, not just our part. 

We hear lawyers everyday complain that there is no business, no money to pay rent or mortgage.

The government has established several loan programs at low interest rates since lawyers are making no money. Some of this money has to be paid back. There is no free ride.

Many communities are making deals to conduct trials in coliseums. The powers-that-be insist it will happen. But many older lawyers are advised by doctors to stay away, that this killing pandemic is no joke.

To ethically do your job, warn clients about making phone calls, speaking to anyone, and writing any letter that may contain any information the prosecutor, judge or jury can use against the client. Get  your client to sign an acknowledgment that you have so advised her/him of this problem.

In the opinions of many trusted experienced lawyers, many calls on Zoom are unethical because other people can immediately hear or later listen to the client’s confidential communications with counsel. Knowingly allowing any third party to listen to or later review attorney-client communications waives the confidentiality of that information and the privilege created by the the attorney-client relationship. 

In almost all scenarios, Texas Rule of Disciplinary Conduct 1.05 prohibits counsel from waiving that privilege without her/his client’s informed prior consent. 

Law enforcement make arrests and accused citizens are quickly released since jails are full.

In Harris County, accused citizens appear before a magistrate who reviews the case and sets a bond. Then accused citizens have to appear in court for bond conditions. Contrary to settled law and without presentation of any “change of circumstances” evidence, many presiding judges continue to revoke bonds set by magistrates. 

After great discussions with several excellent lawyers, like Brent Mayr who is on our Ethics Committee, it became necessary to file a judicial complaint. No one took that obligation lightly;  but it was absolutely necessary that it be done.                                                                              

Zoom is a walking ethical violation: i.e. A jailed client is on Zoom and a guard is standing so close and can hear all dialogue between lawyer and client. That is wrong, wrong, wrong.

Yes, COVID-19 has changed our lives, but how many federal and state constitutional rights must be lost?  It is the job of each of us to preserve those constitutions one client in Texas at a time.

We recommend you object every time you are put in any such a situation. Make the judge’s record reflect that the law considers the attorney-client privilege to be sacred but it is being violated and abused each time something like this happens and you are being forced to commit an ethical violation every time this happens on the judge’s Zoom hearing; so i object to the court’s procedural manner of conducting this judicial hearing that is systemically depriving this defendant of each of his/her following rights guaranteed by the state and federal constitutions, namely:  First Amendment freedom of speech about confidential matters with counsel; Fourteenth Amendment due process of law; Fifth Amendment right to confidential communication with counsel during custodial interrogation by police, prosecutor and/or court; and Sixth Amendment right to effective assistance of counsel.

Federal Corner: Competing Views on the Granting of a Motion for a New Trial

On August 20, 2020, a sharply divided panel of the United States Court of Appeals for the Fifth Circuit affirmed the order of Senior District Judge David Briones of the United States District Court for the Western District of Texas granting the defendant’s motion for a new trial.  United States v. Crittenden, ___F.3d___, 2020 WL 4876721 (5th Cir. 2020) Panel:  Circuit Judges Dennis, Elrod (authored the opinion – 2855 words) and Costa (authored the dissenting opinion – 2315 words)  For any lawyer looking to file a motion for new trial in a federal case, this should be a “must read.”

Judge Elrod’s opinion reads, in part, as follows:

An Overview of the Case

A jury convicted Samuel Crittenden and his wife Carla Dominguez of possession with intent to distribute 500 grams or more of methamphetamine. The district court granted Crittenden a new trial because the record does not show that he knew that the bags he removed from his house—and the bag his wife requested that he bring her—contained methamphetamine or any other controlled substance. Because the district court did not abuse its discretion in granting Crittenden a new trial, we affirm. (emphasis added)

The Facts of the Case

In 2017, Federal Bureau of Investigation agents received a tip from the Drug Enforcement Agency field office in Juarez, Mexico, that ten pounds of methamphetamine was being stored at a house in El Paso. The FBI agents enlisted a cooperating informant to call Dominguez’s phone number, which was associated with the tip, in order to arrange a controlled methamphetamine purchase. In a series of phone calls over the next few days, Dominguez and the informant discussed the informant’s ostensible interest in ‘windows’—a street term for methamphetamine. The informant met Dominguez in person in the parking lot of a JCPenney where they discussed the sale of ‘crystal,’ and the informant offered to buy ‘ten’ for $35,000. The two agreed to meet again after Dominguez had verified how much supply she had.

After the meeting, the agents surveilled Dominguez as she returned to the house she shared with Crittenden. Thereafter, the agents observed the two depart the home in separate cars. One of the agents followed Crittenden to another home on Byway Drive in El Paso, where Crittenden exited his vehicle and went inside. The agent broke off the surveillance and rejoined the remaining agents that had continued to surveil Dominguez. Dominguez, however, ultimately led the agents back to the Byway Drive residence. The agents observed a male who was likely Crittenden exit the house and hand Dominguez a black bag through the window of her car. (emphasis added)

Dominguez then drove away from the house. When law enforcement intercepted her, they found a black leather handbag containing ten bundles of methamphetamine collectively weighing 4.2 kilograms. Law enforcement then interviewed Crittenden. According to the agents’ later testimony, Crittenden stated that he had moved the bags—which were Dominguez’s—to the Byway Drive residence, believing that they contained marijuana. When Dominguez asked him to retrieve one of the bags for her, he did so. A resident of the Byway Drive house would later testify that Crittenden had asked him if he could stay at the Byway Drive house and store some personal effects in the attic because he was having a fight with Dominguez. After receiving consent from the residents of the Byway Drive house to search the attic, law enforcement recovered three roller suitcases filled with 1.65 kilograms of methamphetamine and 47 kilograms of marijuana. (emphasis added)

 The Offenses

Dominguez and Crittenden were charged in the Western District of Texas with (1) conspiracy to possess with intent to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii); (2) possession with intent to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii); and (3) conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D), and 846.

The Testimony at Trial

At trial, Dominguez took the stand as the sole witness for the defense. She testified that she used to buy marijuana for her and her friends’ personal use from an individual named Juan Diaz. Dominguez stated that this relationship ended when, in 2015, she and Crittenden decided to have a fifth child together and resolved ‘to get closer to God and to take care of their family together without having any kind of partying or drug use.’ She said that she did not hear from Diaz again until he called her in January of 2017 and asked her if she could retrieve his car, which he said had been left on the U.S. side of the border as a result of a fight he had with his girlfriend, and hold it at her house until his sister could pick it up the following day. Dominguez testified that she agreed and retrieved the car, but when Juan’s sister arrived, she took several bags and a large plastic container out of the trunk, gave them to Dominguez, and quickly left before Dominguez could object. (emphasis added)

With regard to the series of phone calls, Dominguez testified that she first did not understand what the calls concerned and assumed they were in regard to some broken windows in her house. When the calls continued, Dominguez stated, she began to suspect that the packages contained drugs or other contraband and that her and her family’s lives were in danger, so she went along with meeting the individuals who contacted her in order to get rid of the packages. Dominguez stated that when she told Crittenden about what was occurring, Crittenden said that he did not want to have anything to do with the matter and that he did not want the packages to be in the house with their children. According to Dominguez, Crittenden then moved the packages to the Byway Drive residence to get them out of the house.

Dominguez testified that she just instructed Crittenden to ‘grab a bag’ from the Byway Drive house on the day she met with the informant without specifying the contents of the bag. She stated that Crittenden was not involved in any of the transactions and did not know Diaz. (emphasis added.

The Result of the Trial

…the jury convicted both defendants on all counts.

The Defendant’s Motions and the Court’s Response

Crittenden then renewed a properly preserved motion for judgment of acquittal, or, in the alternative, for a new trial. The district court granted the motion for a new trial. In its memorandum opinion, the district court concluded that the Government failed to prove that Crittenden participated in a conspiracy or that he had the knowledge of the nature of the controlled substance he possessed that was required to convict him of possessing methamphetamine with the intent to distribute. (emphasis added)

As to the possession count, the court stated:

No direct or circumstantial evidence was presented during the first trial to show beyond a reasonable doubt that Mr. Crittenden knew the contraband was comprised of any controlled substances listed on the schedules or that he knew the identity of the controlled substances he possessed.  (emphasis added)

The Government Appealed, In Part

The Government timely appealed the grant of new trial on the possession count.  It did not appeal the grant of new trial on the conspiracy counts.

The Standard of Review

Unlike a judgment of acquittal based on the sufficiency of the evidence, which this court reviews de novo while taking the evidence in the light most favorable to the verdict, ‘the decision on a new trial motion is entrusted to the discretion of the district court so this court will reverse it only on an abuse of that leeway.’ United States v. Hoffman, 901 F.3d 523, 552 (5th Cir. 2018). This court thus reviews a district court’s grant of a new trial for abuse of discretion, while considering de novo any questions of law that figured into the determination. United States v. Wall, 389 F.3d 457, 465 (5th Cir. 2004). ‘A district court by definition abuses its discretion when it makes an error of law.’ Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)…

Federal Rule of Criminal Procedure § 33(a)

A district court may grant a new trial under Federal Rule of Criminal Procedure 33(a) ‘if the interest of justice so requires.’ ‘In this Circuit, the generally accepted standard is that a new trial ordinarily should not be granted “unless there would be a miscarriage of justice or the weight of evidence preponderates against the verdict.” ’ United States v. Wright, 634 F.3d 770, 775 (5th Cir. 2011) (quoting Wall, 389 F.3d at 466).

The Government’s Argument on Appeal and the Court’s Response

On appeal, the Government argues that the district court ‘erroneously found that the government had failed to prove … that Crittenden knowingly possessed a controlled substance.’  … We conclude that the district court correctly stated the relevant law and permissibly applied it to the facts of this case.

    • 841(a)’s Knowledge Requirement

As to the governing legal principles, the district court properly noted that the ‘knowledge requirement of § 841(a) may be met by showing that the defendant knew he possessed a substance listed on the schedules.’ McFadden v. United States, 576 U.S. 186, 192, 135 S.Ct. 2298, 192 L.Ed.2d 260 (2015). The district court also properly concluded that a defendant’s mere ‘belief’ that he possessed a controlled substance—divorced from other factors such as deliberate ignorance—’is not enough to establish knowledge.’

 Deliberate Indifference Is Not Before the Court

…the Government has never argued deliberate ignorance in this case, and the jury was not instructed on it. We therefore express no opinion regarding whether the evidence demonstrated Crittenden’s deliberate ignorance.

The Evidence, Or Lack Thereof, Favors the Defendant

… There was no evidence that the methamphetamine at issue belonged to Crittenden or that Crittenden was attempting to sell the drugs; rather, federal agents seized the methamphetamine from Dominguez pursuant to a transaction the confidential informant set up with Dominguez. Although the jury originally convicted Crittenden of conspiring with Dominguez to sell the drugs, the evidence supposedly showing Crittenden’s involvement in any such conspiracy was so insufficient that the Government did not even appeal when the district court granted a new trial on the conspiracy counts.

In fact, the evidence does not show that Crittenden ever laid eyes on the drugs themselves—not when he moved the bags into the Byway Drive residence, and not when he retrieved a bag on Dominguez’s instructions. At oral argument, the Government pointed to Dominguez’s testimony that Crittenden ‘probably’ moved the drug packages from their original container to the bags before moving them to the Byway Drive residence. … But Dominguez also admitted that she ‘wasn’t there’ when the drug packages were moved into the bags and therefore ‘wouldn’t be able to tell you if it was Crittenden or someone else.’  At any rate, the district court was not required to credit Dominguez’s testimony in granting the motion for new trial. (emphasis added)

Despite the Government’s repeated prodding, Dominguez expressly disavowed telling Crittenden that the bag she asked him to retrieve contained any drugs at all, testifying instead that she told Crittenden to ‘just grab a bag.’  The evidence shows only that Crittenden complied with Dominguez’s request by bringing her a bag. Nothing more. (emphasis added)

Some FBI agents testified that Crittenden told them that he ‘believed’—incorrectly, as it turned out—that ‘the bags contained marijuana.’  That is why he ‘removed them … from his home and family’ by putting them in the Byway Drive house. But, as previously explained, the district court properly concluded that testimony ‘showing, if anything, that Mr. Crittenden believed the bags contained marijuana’ is insufficient to prove knowledge. As a result, it was not an abuse of discretion for the district court to grant Crittenden a new trial on the basis of insufficient evidence of knowledge. (emphasis added)

The Law of the Circuit

…we are bound by the law of this circuit, which has long afforded district courts ‘considerable discretion with respect to Rule 33 motions.’ United States v. Jordan, 958 F.3d 331, 338 (5th Cir. 2020) (quoting United States v. Simmons, 714 F.2d 29, 31 (5th Cir. 1983)). Indeed, this court has stated that a district court may grant a new trial even where ‘the evidence is sufficient to support a conviction,’ if, upon ‘cautiously reweighing it,’ the district court concludes that the evidence ‘preponderates heavily against the guilty verdict.’ United States v. Herrera, 559 F.3d 296, 302 (5th Cir. 2009).

Preventing A Miscarriage of Justice

Here, the district ‘court did not simply disregard the jury’s verdict in favor of one it felt was more reasonable.’ Robertson, 110 F.3d at 1119. Instead, ‘it cautiously reweighed the evidence implicating Crittenden and determined that a mistake had been committed. On this basis, having given full respect to the jury’s findings, and to prevent a miscarriage of justice, it granted a new trial.’ Id. at 1119–20. 

For the forgoing reasons, the district court’s order granting a new trial is affirmed. 

Judge Costa’s, dissenting opinion reads, in part, as follows:

The Constitution twice says that juries decide criminal cases. U.S. CONST. art. III, § 2, cl. 3; id. amend. VI.

The jury’s constitutional role in deciding criminal trials leaves little room for judicial second-guessing. Our review of verdicts is therefore quite limited. See, e.g., Burks v. United States, 437 U.S. 1, 16–17, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Likewise, the authority to grant a new trial when there is enough evidence to support the verdict, but the judge would weigh the evidence differently, is in some tension with Article III and the Sixth Amendment. As a result, although we review the grant of a new trial only for abuse of discretion, we have repeatedly warned that its discretion is not unbridled. United States v. Arnold, 416 F.3d 349, 360 (5th Cir. 2005);…

… The district court granted the new-trial motion in a one-page order that said an opinion would follow. That order did not mention anything about weak evidence of knowledge. And despite the fact that the evidence presented at trial would have been freshest in the court’s mind when it granted the motion, it took five months to give a reason for doing so.

At a status conference after it finally issued the order explaining the new-trial grant, the court added:

I think if it was up to the Fifth Circuit I’m going to get reversed, quite frankly, but I went over the PSR this morning. Mr. Crittenden is facing 292 to 365 months and I think that’s the reason I considered … granting a new trial because I was very reluctant to issue that type of sentence. (emphasis included in the opinion)

The district court doubled down at Dominguez’s sentencing:

Counsel, as I informed you sometime back, maybe last week, I’m going to grant a new trial for Mr. Crittenden.

I am—his guideline range is 292 to 365 months and he’s facing a 20-year mandatory minimum. I can’t … even go the 20-year mandatory minimum on him and I’m certainly not going to go 292 months.

He had a limited role in what his wife was doing and she got him into this. Very limited role.

Ultimately, this case pits the deference we owe district judges on discretionary matters against the deference judges owe juries. Both the district judge and the jury saw and heard the evidence. … Between the two, the choice is easy given the overwhelming evidence of Crittenden’s guilt. I go with the citizens who missed work and had to rearrange family responsibilities because they showed up to do their civic duty. When it comes to commonsense questions like the ones this trial posed, the perspective of a single judge is no match for the collective wisdom that a jury of varied backgrounds and experiences brings to bear.

Yet the district court—now with our court’s blessing—concluded that the cross-section of the El Paso community that found Crittenden guilty committed a miscarriage of justice. (I guess I too would have been party to that miscarriage of justice as I think the jury got it right.) This judicial override of the jury’s verdict disrespects their service.

My Thoughts

  • What a great case.  Judge Elrod’s opinion gives us a roadmap for the urging of a motion for new trial and Judge Costa’s opinion gives us a preview of the Government’s anticipated response.
  • I’ve given you a taste.  Please read the entire opinion.

Shout Outs

Not many lawyers have mastered the art of spitting a razor blade from their mouth, but Megan Rue has. A rising star at Cofer & Connelly, PLLC, in Austin, Texas, Megan focuses on ferocious courtroom advocacy and complex motion practice. This month, Megan and partner Rick Cofer represented a young man accused of shooting a crack dealer in the thigh outside the downtown homeless shelter. The “victim” had started the altercation by pulling a razor blade from his mouth and slashing the client’s face in a fight. Megan researched the practices and habits of local crack dealers and discovered how many safely store a razor blade inside the cheek of the mouth. Megan was able to perform the demonstrative in front of the Court and the State to rave reviews. Ultimately, the case resolved on the day of trial, with the accused agreeing to a lesser included state jail felony deferred adjudication and back-time on an unrelated felony evading charge. Great result when he was looking at 30 years stacked! Megan’s willingness to risk bodily injury to represent her client is commendable, and her nickname henceforth shall be Megan “The Blade” Rue.

Kudos to Bryan Cantrell of Huntsville, Texas for his recent win in a Cruelty to Nonlivestock Animals case in Houston County.  The jury came back with a NOT GUILTY verdict in less than nine minutes!

Allen Place as lead counsel, with Shea Place as second chair, successfully obtained parole for Bobby Moore who was formerly on death row. Bobby Moore was originally sentenced to death in Harris County and his conviction was eventually commuted to life by the Texas Court of Criminal Appeals,following two decisions by the U.S. Supreme Court focused on the issue of intellectual disability-586 U.S. (2019)/470 S.W.3d 481. In a reversal of roles, Shea Place was lead counsel and assisted by Allen Place in obtaining parole for Joe Bryan who was assessed a life sentence for a Central Texas murder conviction. Both men are now at home with their respective families.

Current Issue: September 2020

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Features

17 | Practical Handgun Laws and Defenses in Texas – By Ronnie Yeates
21 | Chapter and Verse: A Deep Dive into the CCP – By Allison Mathis
23 | Getting Your Wings Back: How Pilots Charged with DWI Can Get Back to Flying – By Dr. Arthur T. Hadley & J. Gary Trichter
25 | Balancing the Scales: A Closer Look at Ake vs. Oklahoma – By Clifford Duke
29 | Rethinking Article 38.23(a) Jury Instructions – By Michael C. Gross

Columns

6 | President’s Message
7 | Shout Outs
8 | Chief Executive Officer’s Perspective
9 | Editor’s Comment
10 | Staff Spotlight
11 | Ethics and the Law
13 | Federal Corner

Departments

5 | CLE Seminars and Meetings
32 | Significant Decisions Report

President’s Message: A Slippery Slope Usually Begins with a Delicate First Step

On August 6, 2020, a Travis County Justice of the Peace named Nicholas Chu took a perilous stride down an icy constitutional declivity when he announced — in a press release! — his plan to preside over the nation’s first “binding” criminal jury trial via videoconference. (Or, at least as binding as any other Class “C” misdemeanor in a court with no reporter and in which the defendant has the right of appeal de novo.)

But still.

The accused would be tried for the offense of Speeding in a Construction Zone. Importantly, for reasons only the defense attorney can explain (which he did, of course, to the press), the defendant consented to this ill-advised experiment. So did the prosecutor. Most notably so did the Office of Court Administration — the government agency charged with approving all Texas trials during the pandemic until October 1, 2020.

The “Zoom trial” took place on August 11, 2020. It was beset with technical glitches ranging from muted audio and choppy video, to venire members being excused because they couldn’t login, to an empaneled juror being excused because his screen froze. (Good thing they had an alternate.) But while some of the technical challenges in Zoom trials can be addressed with public education and faster, more reliable internet connections, what can’t be fixed are the constitutional violations that arise from the denial of an accused’s rights to effective assistance of counsel and confronting the witnesses and evidence against him.

In but one example, the jurors who served in the speeding ticket trial were unable to observe the body language (or what the United States Supreme Court has called “demeanor”) of the police officer who testified. Maryland v. Craig, 497 U.S. 836, 837 (1990). In a trial of greater consequence — for example, when an accused is facing jail or prison time — a person’s liberty cannot be left to the best guesswork of jurors who can’t see anything more than a two-dimensional view of a witness’ face. Every experienced cross-examiner can tell you about trials won and lost because jurors observed a key witness physically “squirming on the stand.” Additionally, the accused and her lawyers in the speeding ticket case couldn’t see the body language of the jurors. Oftentimes that’s crucial in knowing whether a message is getting through to them. (For whatever it’s worth, prosecutors usually sit closest to the jury. Losing their ability to study jurors up close would be a major blow.) Two-dimensional Zoom faces and an inability of jurors, lawyers and the accused to fully observe demeanor are a poor substitute for some of the cherished constitutional rights that Americans have fought and died for on battlefields all over the world.

In the speeding ticket trial, as YouTube viewers stared into jurors’ homes, took note of their eclectic furnishings and hoped no children would come strolling by, Judge Chu prepared to read the verdict. He paused for what seemed like a long time. It turned out that the defense attorney was somehow locked out of the virtual trial and in a different Zoom “room” (which is probably the technological equivalent of getting trapped in a courthouse restroom). Eventually, Judge Chu pronounced that the defendant had been found not guilty of the charge or Speeding in a Construction Zone, but guilty of the lesser charge of speeding. At least we can be confident the jurors didn’t reach a split verdict because they wanted to beat the traffic home.

The true danger in Class “C” Zoom trials is not that speeding defendants will get clobbered in greater numbers (although, that’s part of it). It’s that there really are some appealing characteristics in virtual trials. They are cheaper, require less security, save jurors and witnesses from having to show up at the courthouse and probably move trial dockets faster because there are fewer continuances. It is these attractive features that may one day convince judges to lobby for virtual Class “C” misdemeanor trials without consent of the parties. Then, of course, some public officials will wonder why we can’t just have Zoom trials in all misdemeanor cases. Perhaps Classes “A” and “B” misdemeanor Zoom trials will start as consent only. But then judges may complain — as they did in convincing the Texas Supreme Court to abandon the consent-of-the-parties clause from its Emergency Orders governing trials during the pandemic — that litigants shouldn’t get to decide whether, when and how to go to trial. Only judges should.

Judge Chu’s Zoom trial is exactly how slippery slopes begin. A delicate first step, followed by another, and then an irreversible momentum toward a really bad policy for accused citizens and everyone connected to the Texas criminal justice system.

When something is cheap and easy it eventually becomes irresistible to those in power. We are absolutely kidding ourselves if we believe that Zoom trials will never happen without consent of the parties or that they won’t be seriously considered in criminal cases punishable by jail or prison.

Mark my words on this.

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