Current Issue: April 2021

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Features

19 | The New Cannabis Fight: What You Need to Know About Marijuana, THC, and Hemp – By Don Flanary & Amanda I. Hernandez
25 | Surviving the Practice of Law – By Rick Wardroup
29 | Don’t Leave Exculpatory Digital Evidence on the (Lab) Table – By Bob Gill & Chris Edquist
36 | Trial by Pandemic: Getting a Jury of Your Peers in the Age of COVID-19 – By JoLissa Jones
38 | Transportation Code 709.001 DWI Superfines – By Douglas Huff

Columns

5 | President’s Message
6 | Executive Officer’s Perspective
7 | Editor’s Comment
8 | Shout Outs
9 | Ethics and the Law
10 | Chapter & Verse
11 | Federal Corner
18 | From the Front Porch

Departments

4 | CLE Seminars and Meetings
41 | Significant Decisions Report

President’s Message: Texas Defense Lawyers Are Entitled to Broader Criminal Discovery

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There’s a case name Texas criminal lawyers should memorize because we’ll probably be citing it for decades: Watkins.

“Your honor, I object. This is a Watkins violation.” “Objection, your honor. Watkins.”

Watkins involved the admission of 33 of 34 state exhibits during the sentencing phase of a drug trial. The exhibits were a collection of booking records, pen packets, and judgments of prior convictions. The state offered them for purposes of enhancement (making Watkins subject to a 25‑year minimum) and proving extraneous offenses.

Before trial and in accordance with Tex. Code Crim. Pro. Art. 39.14 (a.k.a. the Michael Morton Act), defense attorney and TCDLA member Michael J. Crawford sent a timely written request to the prosecutor for “any other tangible things not otherwise privileged that constitute or contain evidence material to any other matter involved in the case.” The prosecutor provided notice of the State’s intent to introduce evidence of these prior convictions and extraneous offenses at sentencing. However, the prosecutor did not disclose copies of the exhibits themselves until it was time to introduce them. The defense attorney objected to the admission of the exhibits, citing Article 39.14.

In Ralph DeWayne Watkins v. The State of Texas, No. PD‑1015‑18 (Tex. Crim. App. March 3, 2021), the Court of Criminal Appeals held, in a 7‑2 opinion, it was error for the trial court to admit the state’s exhibits.

The gist of the CCA’s 55‑page slip opinion is that “material to any matter involved in the action” — a phrase contained in both the original text and the current version of Article 39.14 — includes the sentencing phase of a trial. “Material” simply means having “some logical connection to a consequential fact.” Watkins, slip op. at 3. In this case, the exhibits at issue were material because they had “a logical connection to subsidiary punishment facts.” Id.1

Worth noting (and it should prove instructive to all Texas prosecutors), the state, in this case, provided the defense with neither copies of the exhibits nor access to them in advance of trial. The prosecutor apparently “did not believe Article

39.14 applied to punishment …” Watkins, slip op. at 5. In disabusing the prosecutor of his mistaken belief, the CCA left open the door to full discovery of independent accusations (i.e., subsidiary punishment facts) which form the basis of prior convictions or alleged extraneous conduct.

Does your client have a prior DWI conviction or arrest the state intends to offer in its case‑in‑chief or during sentencing? Don’t just request copies of convictions, judgments, and sentences. Ask for offense reports, DIC forms, videos, chemical test results (and all of the underlying data) that were evidence in the prior case. Robbery conviction, arrest, or allegation? Get all the standard evidence, plus that unfairly suggestive photo spread that led to your client’s unjust conviction or arrest. Underlying evidence in virtually every type of prior conviction, arrest, or alleged extraneous conduct should now be fully discoverable. A prosecutor who elects not to search for and produce requested material in advance of trial does so at his or her peril. Keep in mind that even if a prosecutor claims he or she doesn’t plan to use certain evidence at trial, you might. Criminal defendants now have a recognized “general statutory right to discovery in Texas beyond the guarantees of due process.” Watkins, slip op. at 52 (emphasis added).

TCDLA member, Jason Edward Niehaus, handled Watkins’s appeal to the CCA. He briefed and successfully argued the case. TCDLA Amicus Committee member Lane Hagood wrote TCDLA’s amicus brief – specifically mentioned in the CCA’s opinion ‑‑ and participated in oral argument as well. (A slew of other TCDLA members pitched in at the intermediate level.) Finally, Texas Court of Criminal Appeals Justice David Newell and staff should be congratulated for authoring an extremely thorough and impeccably reasoned opinion.

The criminal discovery playing field is now a little more level in Texas, and that is something for citizens and practitioners alike to celebrate. Remember the case name–Watkins!

Executive Officer’s Perspective: Red, White, and Blue

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“Permanence, perseverance, and persistence despite all obstacles, discouragements, and impossibilities: It is this that in all things distinguishes the strong soul from the weak.”

—Thomas Carlyle

This month we come to a close celebrating Buck Files’ 250th Federal Corner article. This is nothing to be taken lightly. It takes a dedicated, meticulous, and hardworking person to ensure they turn in their edited article each month. The work Buck has put into each issue since 1986 is unequaled by anyone, anytime in the Voice.

Buck would review from six to 20 cases each month to find a specific case that was not only current but also germane, then explain it in words that our readers could digest. For 35 years, Buck has voluntarily provided diligent federal updates and shared the information to help trial lawyers.

This is a challenge—and yeoman’s work when you think about how many cases come out each month—finding the perfect one to explain in six or eight pages, covering relevant facts and providing supporting evidence.

We all know what Buck’s bio says. Did you know he was a former U.S. Marine, photographer, vegan, and a big believer in family comes first? He has been married to wife Robin for more than 50 years and has two children—one a lawyer, another an accountant—and three grandkids he never stops talking about!

When you talk to anyone who knows Buck, they’ll mention how passionate he is about his family, the law, and his clients, but also, most notably and significantly, they’ll call him loyal. Buck had been with his law partner, who passed, for more than 40 years. Carrie Hall, his paralegal, has been with him for more than 25 years, as has Tammy. Kimberly has worked for Buck for 24 years and Karen for 22 years.

His stories over the years have not only warmed my heart; they’ve also made me so proud to work for TCDLA. Quite often I share them with the staff here and even my family. Recently, we lost a great warrior, Scrappy Holmes, someone Buck grew up with in Kilgore. The relationship they had is like no other, though anyone who can call Buck a friend knows how special he is. He will go out of his way to help anyone. He is one of the most compassionate and devoted individuals, both to his friends and clients.

Buck is very modest, as most of our leaders tend to be, but he has been instrumental for the last 15 years in strengthening the relationship between SBOT and TCDLA. He has offered advice and suggestions for improvement throughout the years to grow TCDLA as well.

Buck helps behind the scenes and asks for no credit or recognition. He is truly one of our heroes—red, white, and blue. I will miss our weekly discussions. Keep reading the Voice, and we will still have the Federal Corner with a team of authors. If we are lucky, we might even get a guest column from Buck in the future. Thank you, Buck, for all you have done, and all I know you will continue to do for criminal defense lawyers!

Editor’s Comment: 250 Seems Like a Good Number

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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.

From the Front Porch: Is Opening Up the Courts Good for the Rural Practitioner?

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After Governor Abbot announced that he was lifting regulations involving mask‑wearing and social distancing, it was not long before the OCA put their two cents in on the issue. Their recent opinion can be summarized by the lyrics of that old Mamas and Papas song. Now courts can go where they want to go and do what they want to do. The OCA left it up to each county to be restrictive or not, continue Zoom hearings or not, or go back to 2019 procedurally speaking. The question is, is opening up the court system good for the rural practitioner? The answer is… it depends!

Positives:

COVID rules put the brakes on jury trials. This can be good. If you have someone out on bond, time usually works on the Defendant’s side. The backlog makes more minor state jail felony cases and third‑degrees look even smaller to the judges and DAs. When there is a huge backlog, do you really want to go to court on a mandatory probation state jail felony case, or give them a 12.44 (b) and move it down the road? Opening up the court system to the good old days may lurch the criminal justice machine back to the days when these cases were taken much more seriously.

COVID made courts shift to Zoom hearings. This can be also good for the criminal practitioner. You can do court hearings and jail visits in your pajamas and slippers. Just wearing a dress shirt and tie over them, or move the camera, so it only shows your face! This makes these standard time‑wasting activities a snap. This has allowed the rural criminal defense attorney to be much more efficient, sometimes allowing them to be working on one case while in the Zoom waiting room on another. This is especially so when you practice in numerous counties. Opening up the court system could make our jobs move from being a quasi stay‑cation to having to dress up and go to court again like the old days.

Negatives:

COVID rules put the brakes on jury trials. This can be very bad. If you have some languishing in jail, the possibility of a jury trial looks very remote. Your client will probably wait years, if they have not already been, to have their day in court. The most heartbreaking scenario is a person accused of serious crime, has a high bond that they can’t make, and claim to be innocent. If the powers that be wont lower the bond, they’re stuck. If they genuinely are innocent, that’s an enormous injustice. Hopefully, you have gotten a good investigator to get some exculpatory information to grease the wheels of justice somehow. But if not, this is a horrible nightmare. Opening up the court system could really help these people get their day in court.

COVID has made courts shift to Zoom hearings. This can also be very bad. As we all know, getting into court, meeting the prosecutor face to face, seeing your client face to face, and having the judge pressure both parties to get things done can help resolve or get cases dismissed. When dealing with everyone in an impersonal zoom hearing, the immediacy and intimacy of in‑person contact are lost. These intangibles fuel the process. Opening up the court system can make innocent defendants get off the hook, and guilty ones gain a better result. Opening up the court system, in this case, would be positive.

In conclusion, COVID has been a double‑edged sword for the rural practitioner. Guilty folks on bond have enjoyed a long continuance, perhaps using the time to gain employment, get help for their addictions, and build a resume for a better resolution down the road. Zoom hearings have allowed the criminal practitioner to be more efficient, and it has made it easier logistically to practice in other counties. On the flip side, COVID has caused innocent folks may be languishing in jails for months or years before a trial. The lack of in‑person hearings has caused an enormous backlog, which hurts anyone trying to resolve a case.

Long story short, we will have to roll with whatever happens, just like we did a year ago when the system was upended.

Note: In the March edition, From the Front Porch was actually written by Dean Watts, not Clay Steadman. The appropriate person has been properly flogged.

Ethics and the Law: April Fools

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Assume lawyers are representing a client in an Article 11.07 of the Texas Code of Criminal Procedure post‑conviction writ. A contract was signed providing for a fee of $20,000 for a writ investigation plus expenses and an additional $10,000 fee was to be paid for the preparation and filing of a writ. The investigation fee has been paid including expenses. The fee for preparing and filing of a writ has not been paid. Client and lawyers cannot agree on the basis for a writ. Lawyers believe the best issue to proceed on is the failure to call witnesses in the punishment phase of trial. Client wants to claim actual innocence. Lawyers’ opinion is that there is no evidentiary basis for the claim of actual innocence.

Question number 1: Are the lawyers obligated to file a writ when they have not been paid to do so?

Question number 2: Are the lawyers obligated to file a writ claiming actual innocence if, in their opinion, there is no evidentiary basis for the claim of actual innocence?

Answer 1 provided by attorney Joe A. Connors, III.:

Q. 1: No. Client is entitled to the fruits of the investigation, which has been paid for, and a formal letter of withdrawal.

Q. 2: No. Client is entitled to a written discussion detailing why the attorneys will not pursue an actual innocence claim. Ineffective assistance of counsel for the “failure to call witnesses” requires a sworn statement from the witness detailing what the witness would have said plus compliance with both prongs of Strickland v. Washington, 466 U.S. 668 (1984). Of course, there is a duty to obtain a statement from the trial defense counsel on why they did not call that witness.

Answer 2 provided by attorney Laura Popps:

Although the client has a say in the overall objectives of a case, it is the lawyer who assumes responsibility for the legal tactics and strategies in reaching those objectives. Moreover, a lawyer is violating the disciplinary rules if he files a frivolous legal pleading or one with no basis in fact/law. If the client and lawyer cannot agree on this issue, it may be appropriate for the lawyer to withdraw.

Further, a lawyer has a right to be paid according to his agreement with the client. If the client refuses to abide by that agreement and pay the lawyer for his services, it may be appropriate to withdraw.

See Texas Disciplinary Rule of Professional Conduct 1.15 (b)(4) & (5), as well as comment 7.

The author would like to send a special thanks to Betty Blackwell, Sharon Bass, Laura Popps, Joe Connors, and Bobby Mims.

Chapter & Verse: Become an Outlaw

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Dear and Beloved Colleagues,

Last we spoke, we talked about double jeopardy. Today, we move on to maybe my favorite word in the English language: the Outlaw. Article 1.18 of this fat, miserable companion of mine specifies, “No citizen shall be outlawed, nor shall any person be transported out of the State for any offense committed within the same.”

“Ok, Allison,” you’re saying, “what on earth does that matter?”

And I ask you, in return, does Jesse James matter? Does Wild Bill Hickock matter? Does absolute freedom from tyranny and injustice matter?

The purpose of outlawry is basically banishment. You, as a person, have been deemed to illegally exist in our jurisdiction. You have no legal rights anymore.

It’s interesting because, in a former life in a different country, we frequently resolved cases by making the sole condition of probation that the defendant would “leave the jurisdiction and not return during the pendency of the probated sentence.” It worked pretty well, and I remember recounting this to a salty old DA in New Mexico once. He laughed.

“You know, when I used to practice in Oklahoma, we would kind of do the same thing,” he said. “I’d tell repeat misdemeanor defendants to just not show up to court and we’d bench warrant them. Since misdemeanors weren’t extraditable, it basically meant if they left the county, they’d never have to face charges for it.”

Not in Texas, you wouldn’t, my Salty DA.

Smarter lawyers than I have argued that the outlawry provision effectively prohibits sex offender registration requirements, which I think is a pretty interesting way of turning things. Unfortunately, the 14th COA slapped that down pretty handily in Velez v. State, 2002 Tex. App. LEXIS 1153 at 15, basically saying that registrants don’t give up all their legal rights, and registration is not a punishment, technically, so nyah.

But I just need to tell you, dear friends, that there’s a legal definition of outlawry, which I don’t really care for, and a true definition of outlawry, which I aspire to.

Please turn, if you are able, to one of my favorite authors of all time, Tom Robbins, who is still alive in LaConner, Washington, where I once worked and frequented the same coffee shop (the only coffee shop) in the hopes of catching a glimpse of the Outlaw King himself. My icy, outlaw‑wannabe heart skips a beat when I read this passage from Still Life With Woodpecker:

The difference between a criminal and an outlaw is that while criminals frequently are victims, outlaws never are. Indeed, the first step toward becoming a true outlaw is the refusal to be victimized. All people who live subject to other people’s laws are victims. People who break laws out of greed, frustration, or vengeance are victims. We outlaws, however, live beyond the law. We don’t merely live beyond the letter of the law–many businessmen, most politicians, and all cops do that–we live beyond the spirit of the law. In a sense, then, we live beyond society.

When war turns whole populations into sleepwalkers, outlaws don’t join forces with alarm clocks. Outlaws, like poets, rearrange the nightmare.

The trite mythos of the outlaw; the self-conscious romanticism of the outlaw; the black wardrobe of the outlaw; the fey smile of the outlaw; the tequila of the outlaw and the beans of the outlaw; respectable men sneer and say ‘outlaw’; young women palpitate and say ‘outlaw’. All outlaws are photogenic. ‘When freedom is outlawed, only outlaws will be free.’ Unwilling to wait for mankind to improve, the outlaw lives as if that day were here. Outlaws are can openers in the supermarket of life.

Dear friends, I so encourage you to find your inner outlaw. The outlaw doesn’t listen to the definitions or branding of the State. The outlaw creates the world he wants to live in. But still, you know, wash your hands.

Love always, AJM

Federal Corner: Six Days in a Texas Prison Hell

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For nearly a quarter of a century, I have been writing for The Voice about federal criminal cases. For my 250th – and last – column, I found a federal civil rights case with facts that are so beyond the pale that I wanted to bring them to your attention. On November 2, 2020, the Supreme Court, in a case from the United States Court of Appeals for the Fifth Circuit, held, per curiam and without oral argument, that

(1) The Court of Appeals properly ruled that the conditions of confinement alleged by Mr. Taylor, whereby for six full days he was confined in a pair of shockingly unsanitary cells, the first of which was covered nearly floor to ceiling in “massive amounts” of feces and the second of which was frigidly cold and equipped with only a clogged floor drain to dispose of bodily wastes, violated the Eighth Amendment’s prohibition on cruel and unusual punishments; but

(2) The prison officials responsible for Taylor’s confinement had fair warning that their specific acts were unconstitutional and, thus, the Court of Appeals erred in granting the official qualified immunity with respect to Mr. Taylor’s claims.
Taylor v. Riojas 1

We are accustomed to the horrible fact situations that we find in some of our criminal cases. It just goes with the territory. Taylor, though, is concerned with the abuse that an inmate in a Texas prison suffered at the hands of his prison guards. We should all hope that nothing like this ever happens to one of our clients.

In their Petition for a Writ of Certiorari, Mr. Taylor’s lawyers included this Statement of the Case:

At the time of the events giving rise to this suit, Petitioner Trent Taylor was incarcerated in the John T. Montford Unit of the Texas Department of Criminal Justice (Montford). Pet. App. 3a. Respondents Robert Riojas, Ricardo Cortez, Stephen Hunter, Larry Davidson, Shane Swaney, and Joe Martinez were officials at Montford during that period.  Id.

Taylor was transferred to Montford, a psychiatric prison unit, for mental health treatment following a suicide attempt. Electronic Record on Appeal (R.O.A.) 49 Instead of providing that treatment, Respondents stripped Taylor of his clothing, including his underwear, and placed him in a cell where almost every surface— including the floor, ceiling, windows, and walls—was covered in “massive amounts” of human feces belonging to previous occupants. Pet. App. 7a-8a;

R.O.A. 50. The smell was overpowering and could be discerned from the hallway. Pet. App. 8a; R.O.A. 50. Taylor was unable to eat because he feared that any food in the cell would become contaminated. Pet. App. 8a. Feces “packed inside the water faucet” prevented him from drinking water for days. Id. Respondents were aware the cell was coated in excrement:   One Respondent asked several others whether Taylor’s cell was the one covered in feces; another answered, “Yes, he’s going to have a long weekend,” and the officials laughed. Id.; R.O.A. 50. Taylor asked numerous prison staff members to clean the cell, but they refused. Pet. App. 8a n.8. When Taylor complained of the conditions, Respondent Swaney responded, “Dude, this is Montford, there is s*** in all these cells from years of psych patients,” Pet. App. 8a (brackets omitted).

Four days later, Respondents removed Taylor from the first cell; they then transferred him, still naked, to a different “seclusion cell.” Pet. App. 8a, 12a. Montford inmates referred to this cell as “the cold room” because of its frigid temperature; Swaney told Taylor he hoped Taylor would “f***ing freeze” there. Pet. App. 8a n.9. This cell had no toilet, water fountain, or furniture.   Pet. App. 8a. It contained only a drain on the floor, which was clogged, leaving a standing pool of raw sewage in the cell. Pet. App. 8a. Because the cell lacked a bunk, Taylor had to sleep on the floor, naked and soaked in sewage, with only a suicide blanket for warmth. Pet. App. 8a-9a, 33a.

Taylor spent three days in the seclusion cell, during which Respondents repeatedly told him that if he needed to urinate, he would not be escorted to the restroom but should urinate into the backed up drain. Pet. App. 8a. Taylor refused, not wanting to add to the pool of sewage in which he had to sleep naked. Pet. App. 8a-9a. Instead, Taylor avoided urinating for 24 hours until he involuntarily urinated on himself; he attempted to use the clogged drain as instructed, but Taylor’s urine “mix[ed] with the raw sewage and r[a]n all over [his] feet.” Pet. Appl. 91, 19a (alterations in original). As a result of holding his urine in a bacteria-laden environment for an extended period, Taylor developed a distended bladder required catheterization.2

The Supreme Court’s per curiam opinion reads as follows:

[Background]

Petitioner Trent Taylor is an inmate in the custody of the Texas Department of Criminal Justice. Taylor alleges that, for six full days in September 2013, correctional officers confined him in a pair of shockingly unsanitary cells. The first cell was covered, nearly floor to ceiling, in ‘ “massive amounts” of feces’: all over the floor, the ceiling, the window, the walls, and even ‘ “packed inside the water faucet.” ’ Taylor v. Stevens, 946 F.3d 211, 218 (CA5 2019). Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. Correctional officers then moved Taylor to a second, frigidly cold cell, which was equipped with only a clogged drain in the floor to dispose of bodily wastes. Taylor held his bladder for over 24 hours, but he eventually (and involuntarily) relieved himself, causing the drain to overflow and raw sewage to spill across the floor. Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage.

[The Eighth Amendment]

The Court of Appeals for the Fifth Circuit properly held that such conditions of confinement violate the Eighth Amendment’s prohibition on cruel and unusual punishment.

[The Fifth Circuit Concluded That the Prison Officials Did Not Have Fair Warning]

But, based on its assessment that ‘[t]he law wasn’t clearly established’ that ‘prisoners couldn’t be housed in cells teeming with human waste’ ‘for only six days,’ the court concluded that the prison officials responsible for Taylor’s confinement did not have ‘ “fair warning” that their specific acts were unconstitutional.’ 946 F.3d at 222 (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)).

[The Fifth Circuit Erred in Granting Qualified Immunity]

The Fifth Circuit erred in granting the officers qualified immunity on this basis. ‘Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.’ Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct.

596, 160 L.Ed.2d 583 (2004) (per curiam). But no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time. See Hope, 536 U.S. at 741, 122 S.Ct. 2508 (explaining that ‘ “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question”’ (quoting United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997))); 536 U.S. at 745, 122 S.Ct. 2508 (holding that ‘[t]he obvious cruelty inherent’ in putting inmates in certain wantonly ‘degrading and dangerous’ situations provides officers ‘with some notice that their alleged conduct violate[s]’ the Eighth Amendment). The Fifth Circuit identified no evidence that the conditions of Taylor’s confinement were compelled by necessity or exigency. Nor does the summary-judgment record reveal any reason to suspect that the conditions of Taylor’s confinement could not have been mitigated, either in degree or duration. And although an officer-by-officer analysis will be necessary on remand, the record suggests that at least some officers involved in Taylor’s ordeal were deliberately indifferent to the conditions of his cells. See, e.g., 946 F.3d at 218 (one officer, upon placing Taylor in the first feces-covered cell, remarked to another that Taylor was ‘ “going to have a long weekend” ’); ibid., and n. 9 (another officer, upon placing Taylor in the second cell, told Taylor he hoped Taylor would ‘ “f***ing freeze” ’).

[Conclusion]

Confronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution. We therefore grant Taylor’s petition for a writ of certiorari, vacate the judgment of the Court of Appeals for the Fifth Circuit, and remand the case for further proceedings consistent with this opinion.

[Note: Justice Barrett took no part in the consideration order decision of this case. Justice Thomas dissented, without written opinion. Justice Alito concurred in the judgment, with a written opinion.]

[The Prequel to the Supreme Court’s Opinion in Taylor]

In 2014, Trent Taylor, a Texas inmate who was serving a sentence for robbery, began his journey through the federal courts. He filed, pro se, a civil rights complaint pursuant to 42 USC § 1983 in the United States District Court for the Northern District of Texas. Mr. Taylor named eleven correctional officers and/or prison officials as defendants.

In his complaint, Mr. Taylor raised – among other issues – a cell conditions issue. All of the defendants relied on the affirmative defense of qualified immunity and moved for summary judgment. In the district court’s order are the following two sentences:

The Court finds that although the conditions of Plaintiff’s confinement may have been quite uncomfortable during the days he was held in the two cells in question, the conditions did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Accordingly, Plaintiff has failed to rebut Defendants’ assertion of qualified immunity on his conditions-of-confinement claim, and their Motions for Summary Judgment should be granted.3  (emphasis added)

After the district court granted summary judgment in favor of the defendants, Mr. Taylor appealed, pro se, to the United States Court of Appeals for the Fifth Circuit. On December 20, 2019, a panel of the Circuit held in Taylor v. Stevens, inter alia, that “[1] it had jurisdiction over appeal;… and, [3] correctional officers were entitled to qualified immunity from conditions-of- confinement claim; …”

The Court’s opinion reads, in brief part, as follows:

Taylor repeatedly alleged that the defendants knew that his cells were covered in feces and urine and that he had an overflowing sewage drain in his seclusion cell.

‘The risk’ posed by Taylor’s exposure to bodily waste ‘was obvious.’   And the risk was especially obvious here, as the defendants forced Taylor to sleep naked on a urine-soaked floor. Taylor also alleged that the defendants failed to remedy the paltry conditions, so he has shown factual disputes on deliberate indifference. In sum, Taylor has met his burden at the first QI prong to show that his Eighth Amendment rights were violated. See Arenas, 922 F.3d at 620.

* * *

The second prong of QI asks ‘whether the right was clearly established at the time of the violation.’

* * *

The ‘salient question,’ therefore, is whether the defendants had ‘fair warning’ that their specific actions were unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).

The law wasn’t clearly established. Taylor stayed in his extremely dirty cells for only six days. Though the law was clear that prisoners couldn’t be housed in cells teeming with human waste for months on end, see, e.g., McCord, 927 F.2d at 848, we hadn’t previously held that a time period so short violated the Constitution, e.g., Davis, 157 F.3d at 1005–06 (finding no violation partly because the defendant stayed in the cell for only three days). (emphasis added)

* * *

It was therefore not ‘beyond debate’ that the defendants broke the law. al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074. They weren’t on ‘fair warning’ that their specific acts were unconstitutional. Hope, 536 U.S. at 741, 122 S.Ct. 2508.4

Lawyers to the Rescue

After going 0 for 2 as a pro se litigant, Mr. Taylor’s luck changed for the better. Samuel Weiss, of RIGHTS BEHIND BARS in Washington, D.C., read the Fifth Circuit’s opinion in Taylor and decided to come to Texas and meet with Mr. Taylor. He did so and offered to represent him pro bono to seek relief at the Supreme Court. Mr. Taylor was pleased to become his newest client and accepted Mr. Weiss’ generous offer.

When Mr. Weiss returned to Washington, D.C., he met with his board of directors that included an associate with the Orrick, Herrington and Sutcliffe firm’s Washington, D.C. office. Orrick is a global firm with some 1,100 lawyers in the United States and in at least 12 other countries. At that time, Kelsi Brown Corkran was the head of U.S. Supreme Court practice at Orrick. After a meeting with Mr. Weiss, the decision was made that Orrick lawyers would join with Mr. Weiss in the representation of Mr. Taylor. At the Supreme Court, Ms. Corkran was counsel of record – with three other Orrick lawyers and Mr. Weiss as Mr. Taylor’s appellate team.

Ms. Corkran is now a Pro Bono Senior Fellow at Georgetown University’s Law Center’s Institute for Constitutional Advocacy and Protection. In talking with her about Taylor, she mentioned that this was the first time in 16 years that the Supreme Court has denied qualified immunity to a state official in a § 1983 case. For those representing plaintiffs or defendants in § 1983 cases, it is important to know that Taylor is already being cited in the trials of these cases.

My Thoughts

  • Congratulations to Mr. Taylor’s appellate team for their successful representation of him. It is impressive to see this pooling of talent on behalf of an indigent Texas inmate.
  • Over the years, some of our larger Texas law firms have committed their substantial legal resources to the representation of indigent inmates. It would be wonderful if more of these firms would rise to the challenge. Perhaps Taylor will inspire them to do so. If they do, they should get recognition for their efforts.
  • Man’s Inhumanity to Man were the first words that came to mind as I was reading Taylor.
  • I would have at least these questions:
    • How many, if any, prison employees – in whatever capacity – were disciplined because of the abuse that Mr. Taylor suffered?
    • How many other inmates at the Montford Unit endured the same cell conditions as Taylor?
    • What, if any, remedial action has been taken by prison officials in response to Taylor’s original complaints or to the Supreme Court’s opinion?
    • What, if anything, has the Texas Department of Criminal Justice done to address the issues raised by Mr. Taylor?
  • I am surprised that Taylor has not been picked up by the print media. This is the kind of case that The Dallas Morning News and the Houston Chronicle would have jumped all over 25 or  30 years ago. The days of the investigative reporter may be over.

TCDLA Thanks You, Buck!

All previous installments in “The Federal Corner” series can be found online by logging into your TCDLA member account and visiting voiceforthedefenseonline.com.

Don’t despair–”The Federal Corner” will continue in future issues of the Voice. Our editors are busily compiling a team of authors with federal experience to contribute to this important topic.

If you have federal experience and would like to contribute, please reach out to one of our editors:

Sarah Roland:
Clay Steadman:
Jeep Darnell:
Amanda Hernandez:


Some Reflections and Some Thank Yous

Buck Files

Writing the “Federal Corner” has been both challenging and rewarding. The challenge has been to find a case for each edition of the VOICE that would be of interest to our members and to the judges who also receive a copy of the magazine. The case would have to be recent and not too long or too complex for me to fit it into the space that I was allocated.

The reward was in what I learned. For each column, I would usually review some six to twenty cases. I always found something in this research that I would never have known if I had not been writing this column.

As the turtle who was sitting on top of the fence post said, “I didn’t get here by myself.” I owe a word of thanks to:

  • Our former executive director Joseph Martinez and our current executive director Melissa They supported my efforts enthusiastically. When I turned in my 100th column, Joseph said, “Keep writing.” When I turned in my 200th column or article, Melissa said, “Keep writing.” I listened to each of them, but now it’s time to hang it up. 250 columns or articles is enough for anyone.
  • Sarah Roland, the current editor of the VOICE. It is her responsibility to turn out ten editions of the VOICE each year and she has done a magnificent job in working with others to improve the quality of the magazine. Sarah has been a pleasure to work with and I have no doubt that she will be a leader in our association for many years.
  • The other editors with whom I have worked. I have good memories of each of you and enjoyed working with you.
  • The TCDLA staff, both past and present, with whom I have worked—especially Craig Hattersley.
  • The TCDLA members who have called to mention a case to me that I later wrote about.
  • The TCDLA members who would have a kind word for me about one of my columns or articles. People who write for a publication are like radio announcers. We never know if anyone is paying attention to what we are trying to communicate.

Shout Outs

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Kudos to Jason Cassel, who helped dismiss the murder charge against his client, Deborah Smiley McFadden, for the death of her then‑boyfriend, Edward George, Jr. McFadden was accused of the murder in 2003. On Feb. 17, 2017, she was found guilty and sentenced to 40 years in prison. Cassel contended that the prosecuting attorney suppressed evidence that would have been beneficial for McFadden. Congratulations, Jason!

Kudos to Brent Mayr, who is representing a Eddy, Texas, man who is among those indicted for the January 6 storming of the U.S. Capitol. In a February 11 court filing, Mayr argued that his client “is anything but insurrectionary” and that cell phone footage proves this. It may seem a daunting case to take on, but Brent is handling it with the same ethical professionalism that he uses when assisting lawyers who call the Ethics Hotline. Best of luck, Brent, and kudos for taking the case!

Congratulations to Jason Niehaus and TCDLA’s Amicus Curiae Committee for the work and win in Watkins v. State, PD‑1015‑18 (Tex. Crim. App. 3/3/21).

Congratulations to Josh Zientek, who handled an appeal before the 9th Court of Appeals and was able to get stacked sentences removed from his client’s conviction. Excellent work, Josh!

Congratulations to Eric Torberson, who saved a dog from the death penalty. The dog in question was out for a walk with his owner and was frightened by a jogger coming up behind, and the dog pawed at the jogger but didn’t even break her skin. Paws in the air for Eric!

Congratulations to Nnamdi Ekeh, whose client was no billed on a aggravated sexual assault charge and whose charge for felony assault of breathing impediment was dismissed!

To be featured in our shout outs, email details to Melissa Schank at

Current Issue: March 2021

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Features

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

Columns

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

Departments

5 | CLE Seminars and Meetings
43 | Significant Decisions Report

Online-Only Articles

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

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