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Chapter & Verse: Hearsay III

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Agoy! Zounds! Hwaet! Mo#$%@&er! You heard me! It’s time to discuss my favorite of all hearsay exceptions, the excited g****mn utterance. Or, as the TRE likes to put it: 803(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

Excited utterances descend to us from the amorphous res gestae statements we discussed last month. They’re one of the categories of res gestae statements that were teased out in the late 19th century when People Who Do These Things started trying to clarify and define rules of evidence.

Interestingly, an excited utterance is admissible regardless of whether the declarant is available.* That means that Powers the Be think of this as a particularly trustworthy type of evidence- with or without the ability to cross-examine the declarant, with or without the proof that the person seeking to have the statement admitted searched high and low for the declarant, that superlative expletive is coming in! The phrase courts use about this one is “firmly rooted.” This is a “firmly rooted” hearsay exception. Rooted in what? Well, more on that in a second, beloved.

Guys. Seriously. While I might be credulous enough to believe that in the heat of an assault, someone wouldn’t think to shout out lies about who the assailant was, I know for sure that when I was a kid, I would stand in the kitchen, slap my own arm until it was red, and then scream to my mom that my brother hit me.

I also have been aware of cases where “under the stress of excitement” meant a very, very long time according to the prosecutor trying to get the evidence in (and according to the appellate courts reviewing trial cases for error- see: Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003) (holding that a statement made twenty hours after an assault qualified as an excited utterance). 

In fact, critics much more savvy and devoted than your Darling Allison have noted that the excited utterance exception runs counter to the experience of many female victims. A 1997 feminist critique examined the documented reactions of women to rape, and noted that many rape survivors are too disoriented, numb, afraid, or ashamed to issue a prompt statement, excited or otherwise. Instead, the excited utterance exception seems to describe best those who are sufficiently confident of their power to emit a prompt excited cry, and who expect that their cries will be taken seriously.1

And it’s true that the excited utterance exception was largely based around what that old rascal John Wigmore thought he would do, or folks like him would do, in that situation.

But the truth is that not even the Wigmores and Roosevelts usually respond that way to trauma. Psychologists have researched this very issue for years, and while we might like to think that people won’t actively invent lies while they’re being traumatized, the more complicated reality is that when people are being traumatized, their brains are not reliable reporters of events.

Research is clear that the fight-or-flight response affects individuals’ perceptions of an event in ways that may increase the likelihood of mistakes. Because the amygdala prioritizes safety and survival, quick assessments and defensive judgments prevail over deliberate and thorough analyses. Thus, independent of reality, people are more likely to perceive threats, more likely to overestimate the degree of threat, and more likely to attribute ill-intent to others when they are experiencing the fight-or-flight response. Because stereotypes and prejudices (consciously or unconsciously held) facilitate fast decision-making, individuals will also tend to rely on them more heavily to evaluate situations and the intents of others; these sorts of perceptual biases can also lead to errors in judgments and decision-making and in subsequent interpretations and memories of the event. Steven Baicker-McKee, The Excited Utterance Paradox, 41 Seattle U. L. REV. 111 (2017).

So all of a sudden this “firmly rooted” hearsay exception has its roots in… well. What do plants usually have roots in?

I think it’s time, vexatious litigants, for us to start contesting these rules. If you have an alleged excited utterance, do your best to demonstrate that the reliability of it is suspect at best. It might be coming in, but that doesn’t mean anyone has to believe it. Use it as your chance to pull in a memory expert who can talk to the fact finder about why the witness doesn’t have to be lying to just be plain wrong. We can also use our knowledge of how trauma cognition works to advocate for excited utterances we want to be admitted to come in. We can talk about how the stress of situations lasts longer than courts have traditionally realized, and we can emphasize that a person doesn’t have to be visibly disoriented to be responding to trauma.

*Except now we have Crawford v. Washington, which changes all of this in certain cases, and we will spend a whole separate column discussing Crawford and its ramifications.

Chapter & Verse: Hearsay Part 2

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Dear and Beloved Colleagues,

After our date with John Wigmore (or was it more of a one-night stand? Hmmm? I’d see him again, but does he want to see me?) last issue, I was thinking about how we should get into the reality of this hearsay thing. It’s so much! Have I finally bitten off more than my big mouth can chew? Fear not dear reader, for I have the jaw muscles of a much younger woman.

I suppose that the best way to tackle this thing, now that we know what hearsay is, is to talk about admissible hearsay, exception by glorious exception. I can’t wait. Turn now, if you will, to Texas Rule of Evidence 803 and read along with me,

 “EXCEPTIONS TO THE RULE AGAINST HEARSAY—REGARDLESS OF WHETHER THE DECLARANT IS AVAILABLE AS A WITNESS

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: 

(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.”

Ok, let’s stop there and evaluate this first exception: “present sense impression.” We are told in our law school evidence classes that the exceptions to the hearsay rules are time-honored traditions, truisms passed down throughout human existence that supply sufficient “indicia of reliability.” But that’s kind of bull, isn’t it? What does that mean, exactly? That it’s some kind of ancient Roman maxim that we all recognize the inherent truth in? If that’s the case, why don’t we also admit hearsay statements made under the influence of alcohol, since in vino, veritas, after all?

It turns out that the origins of some hearsay exceptions are not much more complex than just that. Present Sense Impression, along with some of the other exceptions we will look at in future columns, comes from trying to tease some sense out of the “res gestae” rule, which had, at the end of the 19th century, become a veritable dumpster fire on which judges burned the rights of defendants. In Latin, “res gestae” means “things done.” For our purposes, it basically means the story of the crime. We still use “res gestae” in legal Latin for other reasons, “the police said he made a ‘res gestae’ statement” (usually meaning that it was a voluntary utterance from someone at or near the time of the offense- “I shot that guy because he was coming at me!”) but just general “res gestae” itself as a whole blob of concepts doesn’t work as a hearsay exception anymore.

So back in the days when smarter folks than your dearest correspondent sat down to puzzle things out, they decided to try and define what, specifically, made statements that were otherwise hearsay credible, other than just being sloppily categorized as “res gestae.” In 1898, James Thayer, a Harvard law professor, issued his “A Preliminary Treatise on Evidence at the Common Law.” Yes, dear reader, it was as fascinating as it sounds, and beat out my own beloved John Wigmore’s evidentiary edicts by about six years. It was a big thing at the time, but if you look up the digitized copy that the Cornell library keeps on hand, it hasn’t been checked out since 1993. Boo. Hiss.

Thayer identified the present sense impression as a distinct type of res gestae statement with unique reliability. He indicated that the reliability of the present sense impression came largely from its proximity in time to the event that was being described, and clarified that the requirements for admissibility of such statements were that they were: spontaneous statements describing the event, made at the time of the event, and witnessed by another person who also witnessed the event.

Ok. So that’s a lot of requirements. Texas law doesn’t require the witness who also witnessed the event, instead teasing apart the elements thusly: “a statement must (a) describe or explain an event or condition, (b) be expressed by the person who made the observation, and (c) be made contemporaneously with or immediately after the observation.”

If you go digging Lexis or Westlaw for some cases about present-sense impression, you will find sadly very little. That said, there is some really interesting stuff on there that defense lawyers ought to be aware of.

“The rationale underlying the present sense impression is that: (1) the statement is safe from any error of the defect of memory of the declarant because of its contemporaneous nature, (2) there is little or no time for a calculated misstatement, and (3) the statement will usually be made to another (the witness who reports it) who would have an equal opportunity to observe and therefore check a misstatement.”
Fischer v. State, 252 S.W.3d 375 (Tex. Crim. App. 2008).

In Fischer, a trooper stopped defendant’s vehicle with the intention of citing defendant for failing to wear a seatbelt, and the trooper subsequently discovered that defendant had been drinking and arrested him for DWI. During the stop, the trooper contemporaneously dictated his observations on to his patrol car videotape. On appeal of the appellate court’s decision that the trooper’s taped observations were not admissible as a present sense impression hearsay exception under Rule 803(1), the court affirmed. The evidence showed that the trooper calmly walked back and forth from his patrol car to defendant several times, and that he carefully and deliberately narrated the results of his DWI field tests and investigation. The trooper’s statements were testimonial and reflective in nature, and they were the type of statements that were made for evidentiary use in a future criminal proceeding; therefore, they were not the sort of spontaneous, unreflective, contemporaneous present sense impression statements that qualified for admission under Rule 803(1).

One of the things I think we ought to be mindful of in this modern era is the use of social media as essentially present-sense impression machines. Twitter, Facebook, Instagram…aren’t they all just saying what we’re doing and feeling at any given time? If I were arguing against admission of a social media post, I might suggest that written statements are more calculated than oral exclamations, no matter how speedy the typist, and that the calculation and reflection sufficient to put something on social media defeats at least the spontaneity element. But the times, as they say, are a’ changin’.

 I am hopeful that by understanding the underpinnings of the hearsay exceptions, the things that historical men with historical mustaches have thought made them as reliable as a live cross-examination would have, we can contest things that are not so reliable. The key to understanding is dissection. Next time, we will evaluate the EXCITED UTTERANCE, which I find fascinating since the utterance I am most likely to make as I’m witnessing a catastrophic event is usually a superlative expletive, which, if taken literally, are not accurate descriptions, unless such events are scatological or reproductive in nature. Until then, sweet reader, I remain,

Yours,
Allison

Chapter & Verse: History of Hearsay

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My Dear and Beloved Reader, I need a break. Yes, it’s true. Even indefatigable, un-shut-upable columnists like yours truly get fatigued from time to time. Having this giant copy of the Code of Criminal Procedure strapped to my back the past year of writing Chapter and Verse has done it to me. Sometimes a change is as good as a rest, they say, and so that’s what I seek: change. For these next few columns, I want to switch focus from digging through the CCP to digging through the ROE. Yes, you heard me right, dear friends: first, we’re going to spend a while getting cuddly with Article VIII –  Hearsay. Oh, don’t make that face. Deep breaths, we can do this… deep breaths.

We should start in the beginning of this story – which, in the case and of all things evidentiary – is dear John Wigmore.  Wigmore, if you don’t remember,  was a law professor who spent more than ten years “in monastic study” to produce a massive sketch of the evidentiary landscape. In a 1904 Harvard Law Review article, Wigmore alerts us to the recency of the hearsay doctrine in Anglo-American law. He traced it as  something that began in back to the 1500s, but clarifies that it was not really nailed down until the 1700s.1

I know you don’t believe me, dear reader, but the way that this worked out is actually super interesting and I think will illuminate the path for us in the dark nights to come. Historically, before about 1500, a big part of a juror’s role was to educate himself (never herself – because jurors were always men, remember?) about the case as much as possible BEFORE the trial. Yes, you heard me right. They were supposed to go knock on doors and visit people, and ask any questions they deem necessary, and then show up to court and discuss what they had learned with each other and with the judge. Wigmore even cites a 1303 robbery where, the judge asks the sheriff if the jury is ready, and the sheriff replies, “The least informed of them has taken great pains to go up and down in every hole and corner of Westminster—they and their wives—and to learn all they could…”2 (let’s all appreciate that even in 1303, or maybe especially in 1303, wives were considered an important part of effective hearsay-gathering). These were trials where jurors took an active role, and themselves often acted as witnesses. The concept of hearsay, or even, really, any kind of rules of evidence, didn’t make sense in that paradigm.

But as the world became a more crowded place, and as cities in Europe grew, trials became a different spectacle all together. It became increasingly expected, and then requisite for the parties to bring actual evidence to trial. Conversely, and it became increasingly common for the jury to be pulled from a larger group and be less familiar with intimate facts, to as a result, juries began to consider that the evidence presented to them impartially. Eventually, in the mid-1500’s, trial courts were routinely holding that hearsay evidence could only be considered for (as we would put it in modern legalese) “the truth of the matter asserted” when if it was corroborated. The mentality being, it seems, that no shocking revelations should come as a form of gossip.

Today, it seems like pretty common sense that hearsay, by itself, is not sufficient to sustain a conviction. However, that proved difficult under the social norms of the time, but I think it’s also interesting to note that for most of history, all women (and men who were enslaved or indentured) were generally forbidden from of testifying at trials. This makes any case with an alleged female or minority victim particularly difficult to prove without hearsay evidence. For a particularly chilling example of this principle in action, see: occurred in People v. Hall, 4 Cal 399 (1854), (Where the California Supreme Court overturned the murder conviction of a white man who killed a Chinese laborer in front of several Chinese witnesses, finding that because, per the State’s high court, no Chinese persons should be able to give testimony against a white man as a matter of law.)

But I digress… let’s go back for a moment to dear John Wigmore. Painstakingly, he draws connections between the development of hearsay rules. He articulates that not only the way the role of the juror changed, but also, later, the way the role of counsel changed. Wigmore points out that until 1695, defense counsel didn’t do much more than give impassioned arguments for the accused, and only if the accused were even permitted an attorney – and over the next hundred or so years, the role of the “defense lawyer” gradually started to include cross-examining witnesses, as well, which had previously been something the judge or the accused would do himself. 3

This greatly lengthened the average trial, and also began the evolution of “the art and science of cross examination”, which still makes a few worthy practitioners and many unworthy bloviators a lot of money to this very day. As cross examination became a skill practiced by law-trained defense attorneys, the legal theory and reasoning of the hearsay doctrine grew more refined.

So that, my charming correspondents, is the quick and very dirty history of how we have gotten to where we are today. In 1975, the Federal Rules of Evidence were finally codified, and reliance on Wigmore’s (lengthy, historical, and frankly much more lovely and fascinating) traditions of evidence waned. Somewhat unbelievably, Texas did not officially adopt an actual Rules of Evidence to apply to criminal cases until 1986! And didn’t adopt a unified civil and criminal code, such as that we have now wasn’t adopted, until 1997, when your darling Allison was but a babe in arms (or maybe a moody and rebellious teenager, who can be sure?), but still well within the professional memory of many of our esteemed members.

For next time, dear reader, now that we have seen the painful birth of this ROE baby, let’s take a deep breath and turn to TROE 801 (a)-(d). It’s a short reading assignment, but I assure you that it has a lot to unpack. Until then, I remain, as always,

-Allison

Chapter & Verse: July/August 2021

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In December of 2014, I became the Chief Public Defender of the Republic of Palau, a small island nation near Micronesia. I had been a lawyer for 2 years and 1 month and had worked as an assistant public defender there for six months before my boss quit and left me holding the bag. Even though the nation was small, the job was big. The private bar was tiny and generally disinterested in taking low-paying criminal work, which meant our office handled about 95% of all criminal cases- around 1,200 a year. These cases included murders, drug trafficking from the nearby Philippines, and a large number of sex assaults. In addition to rampant alcoholism, the native population of Palau also had one of the largest percentages of schizophrenics in the world.

I knew that I was underqualified for the job. I had no resources and no help. For the first three months, I was the only lawyer in the office, running desperately from traffic court to misdemeanor docket to felony trials. I bleated for help to everyone I could back home, through achingly slow dial-up internet. TCDLA answered.

Jani Maselli sent me dozens of hours of CLE on disks that even my battered desktop could play. She sent me books and banks of motions and everything she could get her hands on. The package arrived out of nowhere and I wept in my office, not just because of the life-changing materials I desperately needed, but because of the overwhelming kindness it showed.

Months later, David Ryan would show up on a late-night flight, bleary-eyed, and would present a CLE the next day to just about every practicing lawyer in Palau, a group that could fit in a medium-sized conference room. When you’ve been isolated for such a long time, seeing a familiar face, hearing a familiar voice, smelling their familiar cigars, and leaning against them as the night wears on in a muggy outdoor bar in a strange land means more to you than they can really ever know.

 And that’s what TCDLA means to me. More than I can ever repay.

Chapter & Verse: Duties of District Attorneys

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Well, here it is. We’ve made it through the first chapter in this behemoth of a cursed code. It’s just the beginning, and I’m feeling like Lawrence Sterne’s character, poor old Tristram Shandy, trying to write his wretched memoirs but each day he recalls takes him two days to write down, the insurmountable stack of memories piling up behind him as the stack of papers in front of him fails to keep up the pace. Sterne’s novel – in nine mind-numbing volumes – was once the talk of the 1760’s, with Shandy weighting in on everything from definitions of honor to how to best make button-holes. But now, it is relegated largely to the halls of academia where bored graduate students are forced to push through it at the behest of tenured faculty and their insistence on the importance of proper buttonholing.

Today, though… today we make some real headway, and we start an all-new chapter. TCCP Art. 2.01 “Duties of District Attorneys.” Please read along if you can, but the pertinent part is the part I will quote here, “It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” You see that, “progressive” prosecutors? You see that, Chief of Capital Misdemeanors? You see that, sleeping intake DA? PRIMARY. That means first. Your FIRST duty is to make sure justice is done. Tell me the last person at the DAO who was promoted because of their compassion, high dismissal and alternative diversion rate, and ability to see and solve problems that are creating continued interactions with the criminal courts. That’s not the rubric for promotion, of course.

Art. 2.01 is the statutory version of Brady for us. It doesn’t give us quite as much – notice that the language is “capable of establishing the innocence…” – as Brady’s more generous, “tends to establish.” (Emphasis added). See:  Brady v. Maryland, 373 U.S. 83 (1963). That said, it’s not the definition of the evidence that I think is the biggest chasm here between defense and State. It’s the definition of the word “justice.” 

I am sick of banging my head against this Article. Sick of listening to ADA’s with little life or legal experience tell me what my client “deserves” with no awareness of what the State can actually prove. Sick of ADA’s, casually pleading away people’s lives, negotiating years like dollars, like a kid’s poker game for candy.

The Texas defense bar has long let political infighting and competition for appointments prevent them from wielding the power that the defense bar should have in matters of how our clients are treated and how we are treated, but that needs to end.  No matter how many cases a beleaguered defense attorney, public or private, carries, an ADA will always carry more. We have the power to set things for trial, to give them motion sickness, to challenge and claw and fight each step of the way if we don’t get what we want. TCDLA does a great job of organizing, supporting, and connecting us, but we need to utilize our resources better. Let’s actually pull stuff out of the motions bank, contribute our own motions, and push for more and better discovery earlier and harder. Don’t get bogged down in local custom that exists just because it always has, even though it’s not in our clients’ interest.

I know it’s a slog. I know you’re busy. I know you think you don’t have time. But really, I’m not talking about inefficiency – I’m talking about extreme efficiency. Learning the law, learning the things we can do for our clients and how we can do them in a way that is heard, that is effective, and that is not just waiting until the next setting to try and ask the DA for discovery again and then getting a reset. We all have something to offer the defense bar and the other people in it. Part of the reason prosecutors handle things the way they do is because we let them. We are a legion of skilled, educated professionals with a lot of unique experience among us, and we need to demand what they are obligated to give our community but often refuse to: Justice. We can’t let the buttonholes at the DAO get in our way.

Love Always, Allison

Chapter & Verse: Public Trial

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Here we are, pushing forth into the month of May and as yet we are not even through the first chapter of this monstrous CCP, this albatross, this millstone, this student-loan of all possible Codes. But this month we will do our best, as we always do, to chug ahead, in this never-ending pandemic, to Art. 1.24, “Public Trial.” “The proceedings and trials in all courts shall be public.” Doomp. End of sentence. Of course, that’s not the end of the real sentence, though. Like most of our unlucky clients, it’s what comes after the sentence that does you in…the parole/annotations.

Lily v. State, 365 S.W.3d 321 (Tex. Crim. App. 2012), tells us about how judges can allow closure of “an accused’s trial or any part thereof.” (1) The party seeking to close the proceeding must advance an “overriding interest” that he is likely to be prejudiced (so we know the court can’t do this sua sponte, at least); (2) the closure must be no broader than it has to be to protect that interest; (3) the Court has to consider reasonable alternatives to closure; and (4) it has to make findings to support the closure. That’s a lot of steps.

Interestingly, the right to a public trial isn’t only held by the defendant under the sixth amendment – it’s also held by the public under the first amendment. Presley v. Georgia, 558 U.S. 209 (2010). In Presley, the Court closed voir dire proceedings to the defendant’s uncle, over defense objection. The court said what a lot of courts, I think, would like to say, which was essentially: “Look, it’s just during voir dire, and we don’t really have a lot of room. I don’t want him mingling with the jury and I don’t want him taking up space, so just tell him to come back for opening statements.” Presley was convicted and appealed based on the exclusion of his uncle from jury selection. The ever-stodgy Supreme Court of Georgia ruled against him. Guess what, though? SCOTUS struck them down, ruling that trial courts are “obligated to take every reasonable measure” to keep trials open to the public, which could include things that sound pretty labor-intensive to me, including, “dividing the jury venire panel to reduce courtroom congestion.” Presley at 212.

 There is hope, dear reader, for Georgia, yet.

Your Darling Allison pretends to remember the days of the King’s (or Queen’s) Star Chamber, back in the Tudor days, in which those muckety-mucks too effete to be tried in lower courts could be comfortably tried in private by the biggest of wigs. Though in theory this seemed like a good idea, like many good ideas it quickly turned into a literal torture chamber where high-ranking enemies of the Crown were quietly, un-due-processily, beaten, branded with irons, and forced to have their… various parts cut off. Yes, they carried out these gruesome punishments on very expensive rugs in privy chambers.

It was probably the Star Chambers and their echoing injustices that terrified our Founding Fathers into including the right to a public trial into our constitution. My dear friend William Blackstone commented that it kept everyone honest to have public trials, and it prevented judges from overstepping as much. Maybe that is true, or maybe sitting and watching trials is just a long-standing form of human entertainment, akin to Roman bread and circuses.

But sometimes as we sit in court checking our phones and waiting for the ever-later chance to approach the bench and deal with our cases, we should remember to pay attention to what’s going on. To sit with arms crossed as a silent and effective observer when judges are doing the wrong thing. To take notes, obviously. To raise an eyebrow and stare down the State as a member of the great and powerful mob, exercising our right to be present.

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

Chapter and Verse: Double Jeopardy

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Dear and Beloved Colleagues,

This month, I write to you from the fog of eternal social distance. Me and my big orange O’Connor’s are snuggled up in bed together with a cup of tea and a burning desire to get to know one another since, you know, we have time on our side. There’s a sink full of dishes I’m ignoring, a toddler in the next room clomping around in my long-neglected high heels, and a feral cat noisily spraying his potent urine all over the outside of my bedroom window since one of the forsaken neighbors literally leaves 50 lb. bags of cat food open on his front porch. But inside my bedroom is a picture of calm, just me and the tea and the Code.

Somehow this thing always knows just what I need to hear. The next section is always exactly on-point. Like dipping into the Bible (ok, not so much the Old Testament with all the begats and the wrath), it always seems weirdly prescient. Today’s reading is §1.10-JEOPARDY. In a time so reminiscent of “Groundhog Day” where each day is the same as the last, jeopardy seems especially poignant. Even more, I am actually struggling with a jeopardy issue in a trial division case in which I seem to have gotten myself entangled recently.

No person for the same offense shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.

The rule seems extremely straightforward, but it turns out it comes with a long and bizarre series of asterisks that ensure that almost no one really understands what jeopardy is, except probably our wizened TCDLA presidents. Fortunately, those guys are on our side. Unfortunately, everyone else thinks they know what jeopardy is because the rule looks so deceptively simple.

A long time ago when I was a baby public defender, someone gave me a job for which I was not yet ready. Across the stormy ocean, very far from home, and without access to a legal research database, I hacked (with a blunt machete, dear friends, not a computer) my way into the law.

On that tiny island that used U.S. law and precedent, I represented a man who had lost all hope. He was an expat from the Philippines working for a pittance at a local tourist hotel. The job did not live up to what was promised, and he was homesick, broke, and struggling with undiagnosed mental health problems while living in a filthy, sweltering barracks with other workers. One day he grabbed a knife and threatened to kill himself in front of his only friend there, a fellow countryman who tried to talk him out of it. As the talking seemed to not be working, the friend struggled with my client over the knife, and the client, in the struggle, stabbed the friend in the neck inadvertently. Horrified and shocked, he jumped out of the window of the barracks, hoping to hit the sharp rocks beneath him. Of course, friends, you know what happened. He landed in the water. A local man saw him and quickly rescued him, and then he became my client.

Locked up in the small psychiatric cell at the local hospital, my client grieved and wept. The single psychiatrist in that country was also from the Philippines and she did her best to counsel and comfort him. I could tell she wanted to help him, but she found him competent, and I believed her. The DA offered to dismiss charges if he agreed to deportation. The family of the dead man petitioned the Philippine government to press murder charges and render harsh punishment. I tried to imagine what that was in the Philippines and I decided it was probably more akin to a lynching than a trial.

I sat on my porch with some other American lawyers I knew, drinking lukewarm Asahi beer and smoking harsh Korean cigarettes. “I think we have to prosecute him here, and then jeopardy attaches, and the Philippines can’t do anything to him.” I felt brave. We had double jeopardy protections; the Philippines had double jeopardy protections (I had bothered to check). That’s when I heard, for the first time, about the Separate Sovereigns doctrine. My heart lurched and for the millionth time that week, I realized again how inadequate I was.

Eventually, after a series of negotiations, the Philippine government agreed to confine my client to a mental hospital and not try him again if he were adjudicated of something in the island nation (not the Philippines) where charges were brought. I pleaded him to an involuntary manslaughter charge, and his sentence was suspended for ten years, with the only condition being that he leave the country and not return. Later, the Philippine consul brought me a box of instant coffee packets and a large pineapple. I am still unsure whether that gesture was personal or professional, but it was better received than the melting sack of frozen fish I once found on my coffee table after I woke up from a nap.

This is my round-about way of telling you, dear friends, that double jeopardy is weird. If you catch any sort of indication of it, much like a whiff of seafood coming from your living room on a warm, equatorial afternoon, it is a good idea to investigate immediately.

Stay safe and let me know if you need anything.

Love Always,
AJM

Chapter and Verse: The History of the Bail System

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Dear and Beloved Colleagues,

I am not sure how it is that the Code knows just what I need to hear. This fat, new baby of mine falls right into the sections that are most applicable right when I need them, it seems. As I turned through the sections we’ve already covered and came across the next section in our read-along, boom, right there, in the middle of page 13: Art. 1.07 Right To Bail.

Any recognizable form of a bail system started with the Anglo Saxons, somewhere around 600 AD. Stay with me, beloved friends. This isn’t as boring as you think it’s going to be. The Anglo Saxons, you’ll remember, were the people who lived about where England is now (Angle-land, get it?) and they left us a lot of their language and some of their culture, and they farmed and fished in relative harmony until about 1066 or so, when something terrible happened, but that’s not what we’re talking about now. The Anglo Saxons developed a system of were-gild. “Were” means “man,” like in “were-wolf,” and “gild” means “gold,” or more generally “money.” So they developed this Man-Money system. There was a whole list of crimes and the corresponding restitution payments: if you cut off someone’s index finger, that was punished by a set amount. If you cut off someone’s pinky finger, there was a lower amount. There were things we might think of as enhancements (You stole a pig? That’s $50. Oh, it was the King’s pig? That’s $100). Then there were things that were mitigating (You stole a wife? That’s $200. You stole her from her second husband? That’s $100 and you have to keep her).  There was an idea that people generally aren’t dangerous to the community as a whole, so expending massive resources to confine someone, or wasting manpower by executing or mutilating people for small offenses, was probably not good for anybody. I tend to agree with them on this point.

Though the law was clear about what the restitution amounts were, trials still had to take place in front of factfinders, and sometimes that took a while. This is where the bail system emerged. People who were charged with a crime had to find someone who would stand as their surety, and if they absconded pre-trial, the surety would agree to pay the were-gild in full. Everyone was satisfied.

But then, as time went on, things changed. The horrible events of 1066 unfurled. Later, Martin Luther would drive a stake into the heart (and door) of the church, and the rift that followed would both lead to the colonization of the US and the rise of capitalism, both of which have everything to do with the current ridiculous money-bail situation we find ourselves in today, my dear coworkers. Now bail amounts are arbitrary and almost entirely discretionary. This is made worse by the predatory practices of commercial bondsmen, and the misinterpretation by judges of how those bondsmen work.

What’s the point of all of this history? I’m not sure. Something about how we can learn from the past, from even older, dead-er white guys who made the law before this current iteration, how the barbarians 1,500 years ago were more humane, somehow, than these barbarians in expensive haircuts and tailored suits who make the law now. Oh, friends who are still with me, I am at a loss this month. How weird it is to write about bail when one has been sheltering in one’s home for months on end.

 But what I will say about this section of this giant tome of sections is that it is short–blessedly, powerfully, impactfully so. In the same vein as “Jesus wept.”

“ALL PRISONERS ARE BAILABLE.” Of course, there’s an asterisk to that–the “death is different” asterisk. But for us, that is all we have to remember, that single promise reaching out to us through history and cronyism and viruses and uncertain futures: All prisoners are bailable. Some are more bailable than others.

Love always.

Chapter & Verse: Defending in the Name of Hope

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My Dear and Beloved Defenders,

Today I am reading TCCP 1.051, the next nibble in our attempt to eat the law whole. Right to Representation by Counsel. And then 1.051 (c), especially close to my little public defender heart: An indigent defendant is entitled to have an attorney appointed to represent him in any adversary judicial proceeding that may result in punishment by confinement and in any other criminal proceeding if the court concludes that the interests of justice require representation.

If the interests of justice require… that’s the part I’m thinking the most about today. The “interests of justice” part. Something I wonder about in the minutes of quiet during this quarantine is my role in the interest of justice. Sometimes I struggle with the part we all play as defense counsel to the damned. The further we climb into this system, the more apparent it is that it is rigged, that the game is predetermined, and the dull and powerful will win every time.

Grant Gilmore (who knew a lot about Hell because he was one of the law professors who drafted the Uniform Commercial Code-remember that?) wrote in the New York Times in 1977: “The worse the society, the more law there will be. In Hell there will be nothing but law and due process will be meticulously observed.”

I wonder if my appearance as counsel helps to legitimize an illegitimate system. If I know that the deck is stacked, why am I playing the game? I’ve thought about this many times in the seven long and strange years I’ve done this job, and more than once I’ve almost walked away because of it. 

When I was in law school, my aunt fought breast cancer. By the time they caught it, it had already metastasized and there was little hope of her survival. She had also struggled for many years with drug addiction, and she was the first person I knew who went to prison. When I was eight years old I visited her there in TDCJ. She wrote me long letters on yellow legal pads and drew the intricate and beautiful designs the women in her cellblock would weave into each other’s hair.  Later, when I was 17, I would bail her out of jail. I would sit up with her and pray that she would not go to prison again. I would try to sneak in stamps and perfume in the pages of letters I mailed her and help her come up with spread recipes from the prison commissary lists.

Later, when I was 29, I sat in a hospital room, trying to chat casually as the doctors dripped slow, thick poison into my tiny aunt’s veins to kill her cancer. I complained about law school. I complained about the idea of being a lawyer. “But at least you… have a chance,” she said, “and I…” she trailed off. That was as close as she ever came to admitting her disease was terminal, that she knew she was mortal. Soon after, as my aunt lay dying in her tiny apartment, my mother would lift her sister’s frail body, hollow-boned and aching, from the shallow bathtub and I heard her rasp, “I’m not going to die in that bed.”

 “I’m not going to let you,” my mother said, firmly, in this voice that I have always believed. “I won’t let you.” And I know she believed it, fervently, they both did, even though they also both knew that my mother, as powerful as she was and is, had no real control over life and death. And though I didn’t see it, I imagine my mother patted my aunt’s narrow arm as she lifted her up into the bed that she would in fact, two days later, die in.

I think of both of those women, and I know that I can’t be a spectator to all of this. That even if I know the result, that I know my client’s fate is sealed, that even if my whole job is palliative care, I have to do it. That as I have faced terrible things in my own life, I have wanted someone by my side to pat my arm and believe fervently that there is hope.

Oh friends, I love you, and I revel in your victories that are healing and restorative, that push past hospice and into recovery. But please know that in your defeats you are just as meaningful, and sometimes more so. And whether or not justice will exist for your client, and whether or not hope is justified, please know that that is why you are there, at the feet of the dying, because if there is hope it is in your advocacy and your representation, and you are called, by the interests of justice, to serve.

Love always and wash your hands.