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Editor's Comment

Editor’s Comment: October 2022

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Fall is upon us, or so I am told, as it is still hot out. I am writing this article as I fly back from my trip to Austin for the fall TCDLA Board meeting. By the time I get home, my wife Meghan will have decorated the entire house like Halloween is next week. Aside from the ghosts and goblins, fall is one of my favorite times of the year because of college football. I played at a small school in Mississippi named Millsaps College, and college football is one of the loves of my life, whether playing or watching. Sometimes I wonder why I love it so much when my Oklahoma Sooners leave me heartbroken every year. However, the more I think about it, the more I am convinced that the camaraderie of college football is what draws me to it even since I hung up my cleats and pads. The camaraderie doesn’t just include finding like‑minded people who choose correctly and root for the same team as me, but it is‑minded people who choose correctly and root for the same team as me, but also the spirited conversations with folks who choose wrong too. I spent much of the weekend talking trash with friends about whose team is better this year and it dawned on me just how many different teams are represented within our Board and our Organization.

Former TCDLA President Kerri Anderson Donica and future President David Guinn, Jr. both chose to root for Baylor. I forgive them but don’t think for a second I don’t remind them who I cheer for when OU wins and they likewise reminded me they finally got to be Big 12 champs last year. Current President Heather Barbieri is a Kansas State fan, much to my crimson‑blooded chagrin recently.

My friend and future President John Hunter Smith is an Auburn fan and I can’t wait to remind him that Auburn is of little consequence in the college football world when OU joins the SEC in the near future. Future President Clay Steadman, former President Bobby Mimms, former President Gerry Morris and Suzanne Spencer, former President Sam Bassett, former President Betty Blackwell, and Gene Anthes (all close friends) cheer for the school in Austin who may still play football, I’m not quite sure. They are both reminded almost yearly who dominates (dominated?) The Red River Rivalry. And then there are all my friends in and from Lubbock who cheer ever so loudly and obnoxiously for the Red Raiders (former President Tim Evans, Lance Evans, for‑ mer President Mark Snodgrass, Sarah and Rusty Gunter, Justin Underwood, Laurie Key, Lisa Greenberg, Dwight McDonald, and Sara Smitherman, to name a few).

If I had to think back to how many times I’ve yelled at a TV over the years when the Big 12 referees have screwed up a game it is almost always when OU is playing Texas Tech. There are too many of my friends to list in this article who cheer for Tech, and they are lucky I still call them friends. Just remember Baker Mayfield graduated up to OU and his Heisman Trophy. But, that’s not all, schools from west to east are represented within the Organization; my brother from another mother, Cris Estrada from UTEP, Mark Thiessen from TCU, Thomas Wynn from SMU, Jani Maselli Wood from the University of Houston (for her law degree), Sean Hightower from Stephen F. Austin, Mario Olivares for Texas A&M, and former President Grant Scheiner from Trinity University, among many others.

Aside from using this platform to assuredly piss off almost every friend I have in TCDLA, I want to remind everyone to think about something other than the law on occasion. If you attend a TCDLA CLE, or a board meeting, or other event, branch out from the normal, “I have this case . . .” conversation. We are competitive folks by nature and it doesn’t end at the courtroom doors. Enjoy the brotherhood (sisters included) that we have to mix it up and talk some shit to your fellow members. But, don’t ever forget there will only ever be one king of the Big 12 so long as OU is a member and it’s the team that plays in the Palace on the Prairie. And for those of you who chose right in your team, let us hope to hear on many occasions on the radio this year, “You can unhitch the wagons and put the ponies in the barn.” Boomer Sooner.

Be safe,
Jeep Darnell

Editor’s Comment: September 2022

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Fair warning, the columns you read in this month’s edition of The Voice can induce mixed emotions. On the one hand, the memories of one of our founding members should remind each of us of all that is good in our profession and how we should all carry ourselves in the practice of law. On the other hand, we are always saddened by the loss of one of the heroes of criminal defense. I am personally saddened that I never had the chance to meet and speak with Judge Maloney. Judging from the outpouring of memories, it is my loss. But, this is a reminder for me that I need to cherish the time I have with all of my heroes. Some of you know me well enough to know who my personal heroes are, but we all need to remember that each of our heroes won’t be here one day. I will echo Heather’s words that we often wait too long to tell them what they mean to us and how they have helped us become the lawyers we are today. I know we’re all busy and finding time in a hectic day to say “thank you” or “I love you” or “I owe a piece of my success to you” can fall to the bottom of the to‑do list. Don’t let it. I challenge each of you to find a few minutes in the next month to reach out to your hero, tell them how you feel, and ask them about their own story. I promise you’ll be happy that you did.

When I was a high school kid, I had the wherewithal to ask my maternal grandfather and paternal grandmother about their stories. They were two of my favorite people in the world, and I realized I had never asked either of them about their lives. Granted, neither were lawyers, but I assure you the lesson remains. I am forever grateful that I took that time when lord knows I didn’t have the brain matter to think past my next baseball or football practice. In both cases, two of my heroes spoke with me like they had never before and told me, in vivid detail, the good and bad of a life long gone. I could picture marching into Paris in World War II with my Grandpa and what that must have felt like. I could also feel the misery my Grandma and her family endured of living on a ranch in Oklahoma during the Dust Bowl and doing everything possible to keep that land. In both instances, I saw my personal heroes shed tears, something I had never seen before. I got to see people who were larger than life in a way that was both more human and yet even larger than before. I wouldn’t trade those two conversations for anything in the world, especially because they both passed within a few years of those conversations and that was probably the last time anyone took the time to hear their stories. None of this is to say that I’ve perfected the art of talking to my heroes and letting them know how I feel. I’m just telling you it’s worth the time. Hell, as I write this and think about those conversations, I am simultaneously smiling and tearing up, but I know that they both got as much out of those conversations as I did.

Be safe.

Editor’s Comment: July/August 2022

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Do you know what’s fun? Going to Rusty Duncan. Do you know what’s not as fun? When your youngest son tests positive for COVID the week of Rusty and you’ve been exposed and can’t attend Rusty.

You know what else is fun? Shooting off fireworks on the 4th of July with family and friends. Do you know what is less fun than that? Testing positive for COVID the week of 4th of July and then having your oldest son test positive on the 4th of July.

As I write this article we are hoping beyond hope that we can clear all of our protocols and make it to the annual TCDLA Members Trip in South Padre Island from July 13‑16. That trip is also fun. Aside from catching up on discovery I had not yet reviewed, I am spending my COVID‑cation working on making reservations to the Kalahari Resort for the Fall Board meeting held in con‑ junction with the Post‑Pandemic Trial Preparation CLE from September 15‑17 in Round Rock, Texas. That will also be fun.

So, aside from having to read about me feeling sorry for myself, what is the point? Well, the point is that if you haven’t ever engaged in TCDLA as a member and truly worked to get to know the members of this Organization you are missing out. Sure, there are many a lawyer who has a bit too much to drink at Rusty, but that’s not the extent of the human engagement side of being a part of TCDLA. If you’ve got a family, bring them to the Members Trip. My kids look forward to that trip every year. My oldest son comments every year about how he can’t wait to go to South Padre and swim in the frog pool (if you’ve been you know) and have breakfast with John Hundred Smith (otherwise known to the rest of us as John Hunter Smith). He’s also been bugging me incessantly about the upcoming meeting at the Kalahari because we’ll get to see that guy who’s my friend whose kids go to South Padre and Kalahari and they are fun (otherwise known in our world as Paul Tu). The fact of the matter is that my kids feel like this is their family as much as I do. So does my wife; heck she’s made fun of Clay Steadman more than I have and he likes her better than he likes me. But three trips within a matter of a few months aren’t the only opportunities that exist to get more involved with TCDLA and to become part of the family. While Mark Snodgrass has as much to do with making me a part of the TCDLA family as anyone by bringing me inside the tents at South Padre, there are tons of members across the State who would gladly bring you into the fold if you have the desire. Our Membership Committee has undertaken the awesome idea of having non‑CLE events just for the very purpose of getting us together to have fun. Let’s be honest, we all work too hard every day. There’s no question that a big part of our camaraderie comes from the common ground of hardship we endure every day at work. But that doesn’t define our only way of engaging with each other. I promise, if you get engaged and show up and meet people then you’ll have your own stories to tell about this wonderful organization and you’ll get to experience your own sense of the family that is TCDLA. Not many members can say that they had the treat of taxiing our new TCDLA President’s kids and mother to the hotel in South Padre the very first year I attended. But I did and I can say that I probably have that to thank for counting Heather as my friend.

Be safe
Jeep Darnell

Editor’s Comment: June 2022

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

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

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

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

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

Jeep Darnell & Sarah Roland

Editor’s Comment: You Might Not Like It, But You Better Get Used To It

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Last year at Rusty Duncan I had the pleasure of speaking on the topic of “Technology in the Modern Criminal Defense Law Office.” Normally that level of excitement is reserved for the time of day when everyone is taking a nap, but instead they had me speak at 8:00 a.m. on Thursday morning. One of the topics that had the crowd roused at such an early hour was the ethical implications in maintaining a “modern” law office. Attendees were a little shocked at the idea that if they didn’t maintain a fairly high level of technological understanding in maintaining and securing their technological information, it could be problematic.

As of 2019, comment 8 to Rule 1.01 of the Texas Disciplinary Rules of Professional Conduct states that,

  1. Because of the vital role of lawyers in the legal process, each lawyer should strive to become and remain proficient and competent in the practice of law, including the benefits and risks associated with relevant technology. To maintain the requisite knowledge and skill of a competent practitioner, a lawyer should engage in continuing study and education. If a system of peer review has been established,the lawyer should consider making use of it in appropriate circumstances. Isolated instances of faulty conduct or decision should be identified for purposes of additional study or instruction.

Changes like that make each of us responsible for so much more knowledge and skill than our predecessors had to deal with. No longer are the days where lawyers could pass off changing technology as something for another professional to have to worry about. We all have an ethical duty to maintain a level of proficiency in the technology associated with the practice of law, and more importantly the associated risks. It isn’t hard to figure out that means we have to maintain a level of understanding of how to minimize those risks. Over the next couple of months, beginning with this edition, we will try to bring you relevant articles on that very topic. Not just from other lawyers, but from professionals who are equipped with the knowledge that not all of us possess to assist in maintaining the level of understanding that we are tasked with knowing. I know it may not always be the most riveting of topics, but I hope each of y’all learn something from the material.

Be safe.

Editor’s Comment: The Castle Doctrine

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On occasion, we are reminded that what is old may be useful. See Chuck Lanehart’s article in this edition. I recently had the pleasure of handling a murder court martial at Fort Stewart, Georgia. The one and only real issue in the case was whether my client properly acted in self‑defense when he shot and killed a civilian who entered my client’s off‑post home in the middle of the night after beating on the door and threatening to come inside and do some form of harm (depending on whose story you believe). The government argued throughout the pretrial proceedings that the Texas defense of self‑defense, or the Castle Doctrine, applies to members of the military since the defense is not codified in the Uniform Code of Military Justice (UCMJ). Our judge in the case, Colonel Cook from Fort Bragg, was one of the best and most thoughtful judges in front of whom I have had the pleasuring of practicing. At one of our 39a sessions (motions hearing), we were scheduled to argue for any nonstandard panel instructions. I convinced all three of my fellow defense counsel that we needed and were entitled to the Texas jury instruction on self‑defense within one’s home. Although I had said all the right words, i.e., equal protection and the right not to die in your own home, my team told me if we were going to wade off into that fight, I had to write the brief. And so, I started down the path of proving what I knew had to be true. I was shocked at the literal death of caselaw that existed on the topic within my normal time‑period search ranges. I mean, I knew about the seminal case, District of Columbia v. Heller, 554 U.S. 570 (2008), but I had to be honest with myself, I hadn’t done a deep‑dive into that case in a few or more years. I have to admit, Justice Scalia was not always a friend of the criminal defendant, but that case is worth going back and reading. Justice Scalia, in what may be dicta, essentially recognized the castle doctrine as a constitutional right. In deciding that the rights afforded by the Second Amendment were unconnected to service in a militia, Heller, 554 U.S. at 595, Justice Scalia specifically addressed the history of what we now refer to as the castle doctrine, noting that the right to protect one’s “castle” was recognized by at least 1866. Id., at 616. Scalia even went so far as to state that the handgun ban at issue in Heller amounted “to a prohibition of an entire class of arms that is overwhelmingly chosen by American society for that lawful purpose” and “extends, moreover, to the home, where the need for defense of self, family, and property is most acute.” Id. (emphasis added). The opinion went even further and noted that the statutory requirement that “any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable,” id., “[made] it impossible for citizens to use them for the core lawful purpose of self- defense . . .” Id. at 630 (emphasis added).

So, what you might ask, is so old about a case from 2008? Nothing. It was the rest of my research that led me to a gem from 1896. In Alberty v. United States, 162 U.S. 499 (1896), the Supreme Court recounted a case from a year earlier: “In the case of Beard v. United States, 158 U.S. 550, the doctrine of the necessity of retreating was considered by this court at very considerable length, and it was held, upon a review of the authorities upon the subject, that a man assailed upon his own premises, without provocation, by a person armed with a deadly weapon, and apparently seeking his life, is not obliged to retreat, but may stand his ground and defend himself with such means as are within his control . . .” Alberty, 162 U.S. at 505. Although not named specifically “the castle doctrine,” this right has long existed in our jurisprudence. When I made the argument that our client had a constitutional right to defend himself in his home but, according to the government, forfeited that right by joining the United States Army, Judge Cook bristled . . . and denied my motion. He clarified that I was not going to get the entire Texas jury instruction. However, the issue was going to remain pending until trial, and he would revisit the issue once evidence was presented because he did not believe that a man or woman forfeited their right to be safe in their home just because they joined the Army. Ultimately, the government and the commanding authority did the right thing and dismissed the case. I don’t believe any of them, from the general on down, truly wanted to admit they wouldn’t use force in their own homes either.

Editor’s Comment: Baseball and Wind; That’s Just Life

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By the time y’all read this we will be moving out of February and into March. This season brings me immense happiness, but also carries incredible frustration. I love spring because it means baseball is coming back. Take Easter and Groundhog Day, roll them into one and that’s the day I embark on the annual trek to Phoenix, Arizona.  My Dad, my little brother, and my two little boys head over to watch Major League Baseball’s Spring Training. Days are spent watching sleepy baseball games while enjoying the beautiful weather and getting to spend generally uninterrupted time with my boys. But, for those of you in west Texas (I’ll even count Lubbock as part of that for these purposes, although a map would prove each of my friends up there to be wrong). March means the god-awful, sand-filled wind that brings along all of the dust anyone could ever bear, and some we can’t. I hate the damned spring winds. But, I suppose that is life and it’s a little bit of a microcosm of what we experience pretty regularly. I don’t know of many people, save for Derek Jeter or Mickey Mantle (I’m a Yankee fan), who probably experience the highs that we do when we get two-word verdicts, especially in the cases we’re supposed to lose. But, I don’t know that most folks know the pain of sitting next to someone you’ve worked your butt off to save only hear to the jury come back with one miserable word. I suspect maybe Jeter knew a pain close to that feeling when the Yankees lost to the Red Sox in ALCS after being up three games to none, but at least he didn’t have to get hit in the face with the damn dust-filled wind coming out of the west at a million miles per hour. Each issue I try to think of what I can say that could possibly reverberate with all of the criminal defense attorneys in this State. What ties bind us? Fortunately, or unfortunately, I think the ties that bind us are the extreme highs and lows of our practice. Be kind to one another because unless one of us is friends with Derek Jeter, the only people that truly know how high and low we feel at work are the brothers and sisters we encounter in court, correspond with on the Listserv, and see at CLEs and Board meetings. Just like I know that only my dad completely understands the beautiful experience of rebirth that I feel getting to spend days at baseball games with my young sons. Also, I know that only the men and women of this organization completely understand how I feel when I walk a client out of a courtroom after a hard-fought battle. Just the same, only the folks of west Texas (yes, even Lubbock) know how bad the wind sucks in March, and only the men and women who practice criminal defense know what it’s like to have your head caved in during a defeat. Keep fighting brothers and sisters. Rusty is just around the corner.

Be safe,
Jeep Darnell

Editor’s Comment: The Law School Committee

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If you are looking to get involved with TCDLA please look no further than the Law School Committee and their now annual Interactive Career Pathways Event, which will be held this year on February 26, 2022, via Zoom. For all the work that can be done by any of the members to help make TCDLA a stronger organization, this committee may be the most rewarding and it’s fun. The Law School Committee is chaired by Anne Burnham. She has worked to put together an event that connects current law school students and current attorneys who have been practicing for five years or less and interested in entering criminal defense, with our own criminal practitioners. The format of the event is really the best part because it allows those students and young lawyers to get to break out into small groups and talk to TCDLA lawyers about practicing in a specific geographical area and also about handling specific types of cases. I, not surprisingly, am the odd ball of the Committee as I volunteered to be the liaison for my law school alma mater, the University of Oklahoma. But, every single one of the Texas law schools has a liaison on the Law School committee as well, and those liaisons are in charge of recruiting students from the respective law schools to attend the event by working with the criminal law faculty, the career development staff, or any criminal clinic attorneys. 

I have to admit, I was a little bit worried about getting in contact with some of my former professors and giving them my song and dance routine about who I was, if they didn’t remember, and why I was contacting them. To my surprise it was easy.  Many of them remembered me, and making contact again was neat enough. But the real reward was getting to reach out and connect with law students who have a hunger for the work that we do every day and giving them a pathway to a career in this wonderful work. Although I was really only signing up to help Anne with recruiting students for last year’s event, it has turned into a mentor-type program with many of the students who signed up from OU. I have been able to give real-world career advice to those students who aren’t going to practice at the big law firms. Getting to assist in creating the excitement in finding career placement for students has been such a pleasant surprise and brings me my own sense of helping to build the future of TCDLA. 

We all went to law school, and I would imagine we all have some contact at our respective law schools. Most importantly, we can all provide assistance and advice to students who have an interest in criminal defense. Don’t be shy, please reach out to the TCDLA home office and get involved with the Law School Committee.

Be safe.

Editor’s Comment: The Christmas Miracle

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By the time you read this we will have finished Thanksgiving dinner and we may be moving out of our respective food-comas.  I hope that each of you had a wonderful Thanksgiving, safe from COVID, and with the ability to enjoy all the family time that you can possibly handle. Now, on to Christmas, Chanukah, Kwanza, and other winter holidays that allow (require) each of us to do it all again. In case my tone is not clear via the typed word, too much family time is too much for me on occasion. I am known to reach my limit on extended family interactions somewhere around the first or second day of joyous festivities, and I suspect I am not alone in that need for space.  But, shame on me.

We, as criminal practitioners, know better than just about anyone what a privilege it is to spend time with family on the holidays. So many of our clients, whether they are pre-trial or post-conviction clients, don’t get to experience what we take for granted or what, in my case, tends to drive me nuts. I can’t tell you the number of jail calls I get beginning around the week before Thanksgiving begging me to try one more time to get someone out of jail. I know as well as the next person that not every client is being truthful about wanting to be home for their respective holiday celebration, but I’ve got a soft spot in my heart for the old line, “I just want to spend Christmas with my kids.” Even when I know the dude is full of it, it makes me wonder how I would feel if I couldn’t see my boys’ smiles on Christmas morning. Even if picking up all the trash after opening presents and the inevitable breaking of a Christmas present on Christmas morning is aggravating, seeing and feeling the joy of watching them open presents fills my tank and helps me get going for another year.

When I was a baby lawyer, I had this yearly feeling by Thanksgiving that I was tired of it all and needed a break from the grind. I would try and coast as best as I could to the end of the year. (Let’s be honest, I still get that same feeling). Then, one year, I was set for trial in early December on an injury to a child case for an appointed client for whom I had been fighting for years. I knew the judge wouldn’t actually be calling any cases for trial that week and that all of the trials would be reset. I was grouchy and tired of the grind that Friday morning when I showed up at the courthouse just to reset my client’s case. My poor client had been beset by horrible health problems during the duration of her case, brought on in part by the anxiety of the pending charges. I walked into the court coordinator’s office to get my new setting and she instructed me I needed to conference the case with the prosecutor. Annoyed, I walked to the room where the prosecutors were waiting and grumpily informed them that I was told to conference with them before I got a reset and consider this grumpy message my conference and I was leaving. The lead prosecutor on my case, however, told me to wait a second. He told me that the case had been reset too many times and, although they knew they weren’t actually going to trial, they had subpoenaed many of the cases in order to determine if they actually had any witnesses to testify in the eventual trials.  Mine was one such case. He said, let’s go check and see if I have a witness. We walked out, together, into the foyer on that floor of the courthouse where he called for his witnesses, and none appeared. He walked me back into the court offices and filled out and signed a dismissal. After getting the Judge’s signature, I walked a copy to my client, handed it to her with a smile and told her something to the effect that the perpetual annoyance of her case was over. She burst into tears in the middle of the crowded foyer. She hugged me and told me that I had saved her life. 

I’m not re-living this story for an atta-boy. I’m telling y’all, and really reminding myself, that we all have a Christmas miracle in us that we can bring to one of our clients. And sometimes prosecutors surprise us near the end of the year, too. I don’t always get dismissals at Christmas time, but I might be able to get someone out of jail, or I might be able to do something as simple as going and visiting a client in jail, not to talk about the case, but just to visit and remind him or her that they aren’t alone. If we shrug off the tired at the end of the year, we can bring some semblance of joy to someone we represent and make this time of year a little happier. And who knows, that may make all the difference in the world to our client.

Be safe.

Editor’s Comment: Goose, Meet Gander

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From October 7 through October 8, 2021, I had the pleasure of attending my first TCDLA Forensics Seminar.  The seminar may be the most educational CLE event I have ever attended.  What Philip Wischkaemper, E.X. Martin, and Larry Renner, along with Melissa and the folks at the home office, put together is an incredible event that every criminal defense attorney should try to make time to attend in the future.  While I got my normal dose of camaraderie that I often feel when I attend TCDLA events and get to hang out with our brothers and sisters from across the State, the Forensics Seminar struck me as such an interesting difference from the norm because all of us attendees were primarily taught by non-lawyers for the entire seminar. Learning from the professionals who know the sciences, rather than from lawyers who have learned it from a professional, was a fascinating difference.  Each of the scientific professionals who presented were wonderful and helped me, and I would hope others, understand at a deeper level each of their respective forensic sciences, including and maybe most importantly, the limitations. 

In fact, that was a regular topic of conversation among many of the attendees.  While we are generally trying to keep out many of these various fields of forensic science in our trials, we cannot forget that sometimes the fields of science can work to our benefit. While we should never allow the government to bring garbage dressed up as science in front of a judge or jury without a fight, we should not be unwilling to utilize forensic sciences to our benefit, even those forensic fields that may be considered on the fringe.  We’ve all known forever that polygraphs are inadmissible in criminal courts in Texas, but that doesn’t mean we cannot utilize them to conduct our investigations into our clients. It also doesn’t mean that the best post-conviction lawyers we have among our members don’t utilize them all the time to help with the exoneration of their clients. 

Similarly, blood spatter evidence should not be discarded by our members as junk without any potential merit. Let me be clear, I will never suggest that blood spatter evidence should always be admissible. What I am suggesting is that within the proper limitations of blood spatter evidence exists the potential exculpatory use of that forensic field. I have used evidence to my client’s benefit that I would probably fight tooth and nail to keep out or discredit if the tables were turned. Don’t let us box ourselves out from properly utilizing forensic sciences to our clients’ benefit simply because of our own disagreements with improper use of a certain field.

One of the other great presentations at the Forensics Seminar was by Mark Daniel. We all owe a debt of gratitude to Mark for the work that he has done on behalf of the criminal defense bar at the Forensic Science Commission. With Mark’s help, the Commission has made strides in limiting the use of junk science in criminal courts in Texas. Among those achievements is the licensing requirement for certain Forensic analysts in order for their forensic analysis of physical evidence . . . and expert testimony to be admissible in a Texas criminal court. See Tex. Code Crim. Proc. art. 38.35(d)(1).   Although not every Forensic science has such a licensing requirement, there are many professed forensic sciences that have been excluded from the licensing requirement because they are unreliable. On the other hand, there are other forensic sciences that the Commission has simply not required licensing despite the general evidentiary admissibility of the field. Do not forget to review to article 38.35 of the Texas Code of Criminal Procedure. And you probably want to get a copy of Mark’s PowerPoint presentation that specifically lays out the sciences that require licensing and those that don’t. 

There is no way I can summarize in one short column the information I learned at the Forensics Seminar.  However, I can tell you that until we learn to work with experts in the various forensic fields and gain our own understanding of the proper application of the fields and the limitations, we are simply missing out on a benefit to each of our clients. Lucky for us, Philip Wischkaemper is planning to put on the Forensic Seminar again next year.

Be safe.

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