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From the Front Porch

From the Front Porch: Practicing Law in Rural Areas

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What do I know?

When I was deciding what to write for this column, I wanted to discuss the differences between practicing law in rural areas and urban areas. Also, I wanted to give some pointers for those of us who choose to practice out in the sticks. However, in order to discuss the differences, one should know something about both situations, right? The first thing that dawned on me was, what do I know about practicing in an urban area? I have been practicing in a rural setting for nearly 28 years. So, in writing this column I have done my best to draw on information that I have received from my friends who practice in larger cities as well as personal experiences in dealing with big city lawyers.

You’re not going to get a lot of hard‑hitting legal analysis from me. Not here anyway. The law and procedure in Texas are the same, whether you practice in the country or in the city. The difference between the two is not with the law, but rather how we practice the profession.

Can’t we just all get along?

One of the first differences between practicing in the country and the city that comes to mind is the fact that, out here, lawyers seem to get along with one another better than they do in the city. I’m not sure why. Maybe it’s because there are not as many lawyers, and we all know each other much better than our counterparts in the city do. Maybe it’s because we see each other a lot. Not only do we see each other at the courthouse, but we also see each other at the grocery store, at church, at a Friday night football game, and at our children’s and grandchildren’s soccer games and other events on the weekends.

This is not to say that “we are all in bed together.” That’s a myth that some people believe about hiring a lawyer from a small town for a case pending in said small town. I don’t hear it as much as I used to, but there are still some that believe it. It’s nothing for some of us to engage in a long, bloody, acrimonious fight at the courthouse for hours or even days then go have a beer together when it’s all over. Believe it or not, it is possible to represent your client vigorously, and to the fullest extent of your ability, and still be courteous and civil with opposing counsel and the Court. Heck, some of us are actually very good friends. Many years ago, I went on an Elk hunting trip to Colorado with a group of guys that included criminal defense attorneys, the elected District Attorney, a criminal investigator with a local police department, and a probation officer, among others. Not a single case was decided or even discussed on that trip.

A lot of irons in the fire

Another difference between the country lawyers and city lawyers is that out here, we don’t generally get to specialize. That’s just the nature of making a living. In the larger cities a lot of attorneys are able to focus on specific practice areas like criminal defense, family law, civil litigation, real estate, and the list goes on and on. There are some lawyers that even sub‑specialize. For instance, there are some lawyers that handle only DWI cases, or drug cases, etc.

In rural areas, we tend to handle more than one kind of case, and in some instances several. I have always done criminal defense. It’s my passion. I majored in criminal justice in college. Most of my friends in college wanted to go into law enforcement of some sort. Not me. I wanted to practice criminal law. However, it’s very difficult if not impossible to make a good living doing just criminal defense in a small town. I have always practiced family law as well. In my career I have also done civil litigation (DTPA, Contract Disputes, Personal Injury / Medical Malpractice) and probate. For many years I was a title examiner and closer for a local title company. Rural practice just seems to be more diverse.

I have found that my experiences in other areas of the law have served me well in my criminal law practice. For example, I have received many referrals from other attorneys to represent people, who had criminal charges pending, in their divorce case. The referral may come from a divorce attorney that does not feel

comfortable handling both cases, so they refer both to me or sometimes just the criminal matter. Either way it’s good for business. For years, we had an attorney here that practiced only family law. She was board certified and very well respected. There were several times when she would hire me, and pay me well, to advise she and her client on complex real estate issues in large estate divorces. This was simply based on my knowledge and experience with not only family law, but also real estate law and financing.

Stay Educated

Staying educated is important no matter where you practice. In order to be competent, one must stay current on all developments in the area or areas of law in which they practice. There are many ways to accomplish this. You can attend CLE conferences in person or online. You can do self‑study. Personally, I find that I get much more out of continuing legal education if I attend in person. When I’m at the conference I’m a captive audience. I don’t have the phone constantly ringing, fires to put out, and office staff needing answers every few minutes. I’m there to listen, learn, and network. Networking… we’ll get to that in a minute.

The downside to rural practice as it relates to continuing legal education is that if you practice regularly in different areas of the law, you need to attend CLE in those areas to stay current. This can be time consuming and expensive. However, I find that it is worth the time and expense because it helps me to better serve my clients.

Networking – making and maintaining relationships

Again, networking and relationships are areas that are important no matter where you practice. However, I believe that they have tan extra level of importance for rural lawyers. Networking and maintaining relationships help to build business. The more people we know and associate with, the more channels for referrals of business. Also, the more attorneys that we know from other areas of the state that practice in our field, the more sources we have to discuss issues and bounce ideas off of one another. In rural areas it is vitally important to build and maintain relationships with those in the community, not just the lawyers. These are the people that will be on our juries. As criminal defense attorneys, we all know that more criminal cases go to jury trial than any other type of case.

Also, in rural areas, where we practice more than one area of the law, we have to be mindful to always be professional and courteous to others that are opposing parties in a case. If we are not, someone might wind up on one of our juries and hold that against us. I have tried many jury cases where there were several people on the jury panel that were either former clients (divorces, real estate transactions) or the opposing party in a case in which I was involved (mostly divorces). If the ex‑wife or ex‑husband of one of my former divorce clients winds up on that jury, it would be very detrimental for my client if they decided to hold a grudge against me.

For example, in one criminal jury trial, there was a lady on the panel that was the opposing party in a divorce case that I had previously handled. I flagged her immediately as someone that I did not want on my jury. During the State’s voir dire, she indicated that she knew me because I represented her ex‑husband. We approached the bench to do further examination outside of the presence of the whole panel. During that discussion she told the Judge that she did not hold anything against me because although I represented her husband, I was always professional and courteous with her. My client and I decided to not strike her. It went well. The case ended in a hung jury and she was one of the not guilty votes.

It also helps to maintain a good working relationship with law enforcement, when you can. There have been several times during my career when I called up someone with local law enforcement to ask questions and get help. If you don’t have a good working relationship with law enforcement they generally won’t talk to you. Again, for example, there have been several times when I was representing someone in a child custody case, and my client thought that the other party was up to no good but didn’t have any solid information. A couple of phone calls later I knew what they were doing, and whom they were associating with. These officers that provided information showed up at my hearing and willingly testified.

Recently, I represented a defendant in a large EOCA (Engaging in Organized Criminal Activity) case. The initial discovery was very large. It took me quite some time to go through it. Once I did, I was unable to find where my client was involved with the criminal organization. I called the lead investigator on the case, whom I have known for many years. I asked him to explain to me where my client was involved with the EOCA case. He basically told me that he believed my client was a drug user, but not involved with the EOCA. I asked him if he would relay that information to the D.A. He did. I spoke with the district attorney, and after a short time, my client’s case was dismissed. If I had not had a good working relationship with the detective, it would have taken months or years to have that case dismissed.

Stay on the appointment wheel

In rural areas, it is very important to stay on the appointment wheel, even when your practice is doing well, and you don’t think it’s necessary. If you continue to receive appointments, these can be great sources for referrals. I have even had previous court appointed clients hire me on new cases because they liked the way I treated them when I was appointed. Staying on the wheel keeps your name out there and almost always produces more retained clients.

Unknown waters

If you are an attorney from a larger urban area and you are representing a client on a case in a small town, please consider the following advice.

Ask questions. Call a local attorney in that area and get the lay of the land. Many of us in TCDLA are more than happy to answer a few questions for our brothers and sisters. You will need to know all of the quirks about the Judge, the prosecutor, and how things are done. You need to know the local procedures of the Court.

Consider associating local counsel. A dog barks louder on his own front porch. In a rural community, these prosecutors who are used to working with the same defense lawyers day in and day out may not trust a lawyer coming in from a metropolitan area like they do the attorneys they know. If you are going to consider hiring local counsel, ask around, and be sure you associate someone who has a good working relationship with the Court and the prosecutor. Also, associate someone who the locals know is not afraid to try a case, and will if they have to. Finding someone who has a good working relationship with law enforcement helps also.

These are just some of my thoughts about practicing in a rural area. There are other areas to discuss, but I’ll save those for another time. Until then, remember:

“If you want to be successful, it’s just this simple. Know what you are doing, love what you are doing, and believe in what you are doing.”

‑Will Rogers

From the Front Porch: As Simple as 2 x 2 = 4; Making the Fourth Amendment Relevant to a Jury by Doubling Down on the Second Amendment

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How do we make our client’s right to be free from illegal search and seizure under the Fourth Amendment important to jurors who feel that they have nothing in common with our client?  How do we help them understand that a constitutional right is not a mere “technicality”, and that we are not just attempting to use it to “avoid responsibility”? 

In Texas, and more particularly in rural areas, you will get the interest of many members of the jury panel by just mentioning the Second Amendment, “gun rights.” Here in East Texas, where some of us practice, gun rights can serve as an effective tool to focus the attention of jurors. The fear of the government taking away people’s guns is pervasive, and ignites strong passions from many potential jurors. The public is inundated with information from political campaigns on issues involving firearms. These beliefs are reinforced by television commercials, direct mail ads, Facebook ads, and speeches which stress the importance of protecting the right to bear arms. If that isn’t enough, advocacy groups such as the N.R.A. vet candidates and give ratings based on how pro-gun the candidates are, then mail the ratings to every registered voter (juror pool).

If you were to poll an average jury panel, it would be surprising if even a few could list the amendments to the U.S. Constitution and the corresponding rights that are associated with them. However, the one thing that Texans are more passionate about than BBQ and football is guns. Ask a panel what the Second Amendment protects and 9 out of 10 potential jurors would likely answer correctly.

So how does a criminal defense attorney get a panel member to be as passionate about a client’s Fourth Amendment rights as he or she is regarding their own Second Amendment rights? You must connect the importance of the juror’s Second Amendment rights to your client’s Fourth Amendment rights. They must understand that only by preserving the defendant’s constitutional rights can they preserve their own.

Relevant Rights:

Regardless of your interpretation of the Second Amendment, in Texas it is widely believed to be a safeguard of one of our most important individual rights. That belief presents an excellent opportunity for criminal defense lawyers to relate to jurors the importance of our other individual rights. If applied in the appropriate setting, such a discussion could help potential jurors appreciate and value other constitutional rights such as the Fourth  (or Fifth, Sixth, etc.) Amendments to the U.S. Constitution (as well as Article 1, Sections 9 and 10 of the Texas Constitution).

Most of us have little or no experience trying cases with actual Second Amendment implications, which makes it easy to dismiss the subject as having little to no relevance to our practice. However, after a recent acquittal in a misdemeanor DWI trial, we were surprised by a post-trial question from the foreman of the jury. The foreman asked: “Do you practice Second Amendment Law?” Mike was a bit perplexed but responded: “Yes, I practice criminal defense law which includes many different areas including issues related to the protection of individual’s constitutional rights.” The foreman went on to say that while deliberating, the jury disregarded evidence of intoxication due to their concerns about possible government abuses of the defendant’s constitutional rights, which were presented to the jury by the inclusion of an instruction in the jury charge under Article 38.23 Texas Code of Criminal Procedure. These concerns were bolstered by the foreman’s inherent distrust of the government due to his belief that the government was attempting to violate his rights under the Second Amendment.

This led us to understand that jurors in Texas believe strongly in their own individual rights when they feel they are threatened by the government and they will enforce violations of the rights of others, when they make the connection. The key is engaging the jury early in voir dire regarding potential law enforcement overreach regarding the rights that Texans are most passionate about. You can force an all or nothing approach to protect everyone’s constitutional rights, including your client’s.

Getting them to care early:

Many attorneys miss opportunities to plant seeds early on in the trial process. Voir dire is the best opportunity for establishing trust and laying the groundwork for the “ah ha” moment for those that will serve on the jury. Introducing Article 38.23 to the panel in a carefully crafted manner is an effective way to lay such a foundation. The Texas Code of Criminal Procedure Article 38.23(a) states:

Art. 38.23. EVIDENCE NOT TO BE USED.  (a)  No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

If you have a case predicated on a traffic stop or any other encounter with the government that does not involve a warrant, consider whether you can make an Article 38.23 argument. It is important that you not only expose the panel to this concept, but also locate those who will, and those who will not, uphold the Constitution.

Remember, Texas gives us two “bites” at the suppression “apple”. Even if the Judge denies your Motion to Suppress in a pre-trial hearing, you can still argue the suppression issue to the jury. The following is an excerpt from a transcript of a voir dire in a trial that resulted in an acquittal in a felony drug charge tried to a jury:

“[I]n Texas, the people who established our laws a long time ago felt that they trusted jurors to make decisions about the legality of stops, searches and seizures. They put in the law what’s called Article 38.23 of the Code of Criminal Procedure. What it says is that if you as a juror hear evidence but then you believe that the evidence was seized by the government illegally, or if you have a question about the legality of that seizure of the evidence, then you’re required by law to disregard that evidence that you have already heard, and you cannot consider it for any purpose.”

After explaining the general nature of Texas Code of Criminal Procedure Article 38.23, the next key step is explaining what it requires of the jurors. Using an extreme hypothetical can demonstrate the importance of the law to the panel. An example used in the same voir dire:

“So, hypothetically, if you were to serve on a murder case and you’re a juror in a murder case and the only evidence that you see is a video recording of the murder taking place that undoubtedly shows the person to be guilty but that video recording was seized illegally by the police officer, you would be required by law to disregard that evidence and find that person not guilty.

That is a difficult concept because in Texas we value our Constitution, we value our rights to be free from illegal searches and we trust jurors to help make that decision.”

It is important that you phrase this in a way that lets the panel know this is a difficult concept, but a worthy one. Like most difficult concepts, when you ask someone on the panel if they can follow the law, you will get a lot of these types of responses: “maybe”, “I think I could”, and “I guess I need to know more about the facts.” You must press for a commitment that the juror will follow the law or, in the alternative, a statement that they will not commit to follow the law, making the juror subject to a challenge for cause.

This is where the Second Amendment comes in again. Another voir dire excerpt showing the transition:

Mike: Do y’all agree that the Constitution is important? How many of us believe the provisions of the Constitution should be upheld? How many of us possess firearms? Own guns? Mr. May, what would you do if the government came to get your gun?

Venireperson May: I’d probably raise a lot of hell when the police showed up.

Mike: And, Mr. May, who do you think enforces the Constitution against the government if they come to get your guns?

Venireperson May: Who enforces it?

Mike: Yes, sir.

Venireperson May: People.

Mike: Do you think if the people won’t stand up for the Fourth Amendment that they’re going to stand up for the Second Amendment?

Venireperson May: Probably not.

Mike: And is the constitution there to protect us or to protect the government?

Venireperson May: To protect the people.

Mike: And what does it protect the people from?

Venireperson May: The government.

Mike: And are police officers a branch of the government?

Venireperson May: I guess.

Mike: Thank you, Mr. May. So how many of us are willing to stand up for our Constitution? And how many of us are willing to do that by serving on a jury and applying the law as it relates to the Constitution? And how many feel like if we’re not willing to do it, nobody else is going to do it? I can tell you, it’s a difficult concept, but it is why in Texas we trust jurors to do that.

Using the murder hypothetical may appear extreme, but you want to make sure that each potential juror will follow the law in even the most extreme circumstances. This works for two reasons: 1) by getting the potential juror to accept the idea of disregarding evidence of a murder, disregarding evidence of methamphetamine, etc. is less of a problem; and 2) it “smokes out” jurors who truly cannot follow the law even if they thought they could.

Tailoring to fit your facts:

Once this point is established, the next step is to relate it back to a hypothetical more similar to the facts of your case. The following was taken from the same transcript and shows a transition from the murder hypothetical to a traffic stop:

[Let’s s]ay the officer said, I stopped the car because the right taillight wasn’t working. You get the video as the juror, you look at the video, and the right taillight is working. Don’t know why he said it wasn’t, but it was. Now, any evidence obtained as a result of that stop, what would we do with that evidence? We would disregard it. Okay? And if you couldn’t tell whether or not it was working and you had a reasonable doubt as to whether or not the stop was legal, those doubts as to whether or not the stop was legal, those doubts are taken against the government, against the State. And if you’re not sure whether or not it was legally obtained, you throw it out. Okay? That’s the way the law is set up in Texas. That’s what is required.

Beware, though, of Standifer v. State, 59 S.W.3rd 177 (Tex. Crim. App. 2001), which prohibits improper “commitment questions”.  Be sure you are familiar with those limitations! 

Sample Charge:

The inclusion of an Article 38.23 charge must be based on a question of fact that can be answered by the jury. Again, this requires a conflict within the evidence/testimony. Something as simple as an officer stating “I thought your lights may not have been on” should be enough for the argument and inclusion of the instruction. A sample charge:

You are instructed that no evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

You are further instructed that before an officer has the right to make a temporary investigative detention of a defendant, the officer must have a reasonable suspicion that the defendant is connected with some criminal activity that is or has occurred.  To justify an investigative detention, an officer must have specific articulable facts, which taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances.  The test for reasonable suspicion is not whether conduct is innocent or guilty, but the degree of suspicion that attaches to noncriminal acts.

Now, therefore, before you consider the testimony of Officer “X” concerning their observations of the defendant after his detention, you must first find beyond a reasonable doubt that the officer had such reasonable suspicion, and if you do not so find beyond a reasonable doubt you will disregard such testimony.

This instruction allows you to make a dual layer argument for an acquittal by telling the jury to first make a decision regarding the Article 38.23 charge before even considering the ultimate question of guilt/innocence. The goal is to get the jurors to deliberate on the legality of the stop, which creates an additional hurdle for the prosecutor.

In closing argument, you can then argue the jury has a “short” analysis or a “long” analysis depending on their Article 38.23 decision. Argue that each analysis will ultimately reach the same conclusion. We refer to this argument as a “parallel argument.” The arguments are consistent but involve a separate analysis to reach the same conclusion, “not guilty”.

Conclusion

Closing argument will allow you to bring your case back around to the foundation that you laid in voir dire.  Conclude the Second Amendment and Fourth Amendment comparison in a manner something similar to this:

The government is not here today to take away your Second Amendment rights, but what they are asking you to do would deprive him of his Fourth Amendment rights.  Are you going to stand up for the Constitution today?  More importantly, if you do not stand up, who will?  The sacrifice of the Fourth Amendment today forfeits the Second Amendment tomorrow.  Only you have the power to stop it.

This connection of the Second Amendment to the Fourth Amendment may sway a juror who might feel that they have nothing in common with your client and no empathy for your client’s situation to your side.  Help them understand they are defending their Second Amendment rights because in Texas, rural Texas especially, Second Amendment defenders are not likely to back down from an opportunity to defend their rights!

From the Front Porch: Courage to Persevere

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My Story

As I sit and ponder what to write in this article I am taken back to a time in my life when earning a living was as good as going to Las Vegas, putting $500,000 on red of the roulette wheel, and hoping that I win. Farming for a living is as good as gambling. This is my story.

The Past

Raised as a son of a share-crop farmer in Eastern Central Texas I have my share of memories that have shaped the man I am today. You see, from an early age of seven, my father put me to work driving tractors, chopping weeds, hauling hay, and feeding cows on the farm. As a child I worked from sun up to sundown. Sitting on a John Deere tractor through my teens I had a lot of time to consider my future. Long hours working beside grown men with my hands. Real Blue-Collar work.

I always wanted to be an attorney.  I felt at a young age a desire to help people. More especially, people who may not be able to defend themselves, be it from poverty, lack of education, or upbringing. I was raised in a very small rural community of 1300 people near the Trinity River. Even to this day, the poverty level is still around 70% of the population.

I graduated from high school in 1988 achieving just about everything you can in high school. The work as a farmer’s son paid off teaching me how to persevere and never give up on my dreams. Accepted to Texas A&M University-College Station I joined the corps of cadets.  I stayed seven days and due to homesickness, I withdrew and went back to the farm.

Family

At the age of nineteen I married and soon had a family of four children to raise. Adopting my wife’s two daughters who were three and four, and two sons born by the age of twenty-two, with my dreams on hold, I did what I knew and returned to farming in 1990. I farmed, enduring droughts in 1996 and 1998 that devastated the crops and more precisely my financial situation. Losing hundreds of thousands of dollars due to the weather is a hard pill to swallow.

I continued fighting the good fight, farming, while raising my four children.  On September 11, 2001, the world, and my life, changed forever. The realization of my own mortality sunk into my soul.  For the first time in my life, I no longer felt safe in the United States. I realized that the same country I grew up in was not guaranteed to my children. I felt fear, but more than fear, I felt the desire to ignite my dreams of becoming an attorney. And the journey began.

Back to College

I earned an Associate’s Degree from Navarro College in 1990. But as you may know, a Bachelor’s Degree is a requirement for law school. So, I enrolled in an online program through Texas A&M University-Commerce. I achieved a Bachelors Degree in 2005 in Business.  My preparation for law school entrance had begun. In the meantime, I started the MBA Program at the same University.

Getting Accepted to Law School

There were days upon days I felt like I was fighting windmills, like the stories of Don Quixote. The LSAT, it was a huge obstacle in my way, so I enrolled in a LSAT Preparation Course in Dallas.  Driving 140 miles to Dallas and back home daily I learned how to take the test, and make a high enough grade to apply for law school. I gathered my reference letters and all other items necessary to complete the one-stop computer-based application process to law schools. When my LSAT scores came in, I anxiously sent out admission requests to every law school in Texas.

My first choice was SMU-Dedman School of Law.  But I really didn’t think I was smart enough to get accepted, much less graduate, from such a prestigious school. I started receiving acceptance letters. South Texas College of Law, Texas Tech, Texas Wesleyan (now Texas A&M University School of Law), and lastly SMU. It was a no-brainer.  SMU here I come.

Law School

At the age of thirty-six I appeared on SMU Law Campus eager, but terrified, of what was to come.  Remember, I am a country boy, shy, timid, afraid to speak in crowds. Yet, I planned on conquering my fears, and I did. The night program is where my law school career began. A maximum course load of no more than nine hours a semester. After the first full year I petitioned the University to allow me to attend full time. My request accepted, I retired from farming after seventeen-years, once again a full-time student.

It was my goal to finish law school in three years. Now mind you, I finished the first year with only eighteen credit hours.  Summer School, full-time Fall and Spring semesters, I made the round trip of one-hundred and forty miles a day for two years. I always went home daily so I could wake up, serve my kids breakfast, and take them to school. I look back on those three years of law school and cannot believe I actually succeeded and graduated. Me, a country boy, a share-croppers son, the first person to go to college in my family.

Time to Work

After passing the bar exam I hung my own shingle in my small hometown of 1300 people. And people came. I was alone running a law office with no training other than law school. I succeeded. I was now “helping people.”  Many who could not help themselves.  After one year I moved my office to the county seat. Seven years later I opened a second law office in the county just north of my home county.

Courage to Perform

When I have a bad day, I just think about my children’s faces. Seeing each one in my mind. I tell myself “I have a mission to defend the Constitution of the United States of America to my best ability with fairness to all.” The whole time hoping I can make a difference for my children’s future by defending those who cannot fight for themselves. 

It has all been worth it. And I wouldn’t change a thing if I had a chance to do it again. My struggles have led to my passion to perform at the highest level. I now have six children, four grown, and two boys seven and eight years old. I thank them for giving me the courage I need to step out every-day against the oppression of the government. Owing the drive, perseverance, and courage I muster up on a daily basis to face adversaries, States Attorney’s, Federal Attorney’s, and Courts to my children. I do it for my children with love in my heart. 

I have saved clients lives from life in prison. Helped families fight for their children. Protected innocent victims of abuse. All a part of my “mission” to seek justice in this world.

From the Front Porch: Patches of humanity: a writer, his ranch, and the art of storytelling

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In 1974, John Graves published Hard Scrabble, a wide-ranging series of essays about his ranch near Glen Rose. The writing – “observations on a patch of land,” as he described it – meanders his property beautifully. He offers some armchair history, a lay of the land itself, and spends his time showing you the trees and describing all the birdsong and guessing at why the creek runs differently now than it did before. You’re walking with him, really, and trusting the gentle clip of your nicely-paced tour guide – happy that he seems particularly adept and knowing when to chat and when to let the world speak for itself.

Fourteen years earlier, Graves did something similar in Goodbye to a River. It was his homage to a portion of the Brazos River that he had known and loved quite intimately, one that appeared ready to change course with the construction of a series of dams. So, he took his dog, hopped in a canoe, and spent a few weeks traveling. You’re with him as he hunts, you feel the chill of autumn and the warmth of his fire – it’s as if he handed you a paddle, too, and asked for a little help from time to time.

He did it all again a few years later in From a Limestone Ledge, which, on its cover, was described perfectly: a celebration of “the casual but constant observation of detail, the noticingness of rural life.” More essays, more description, more questions, more thoughts. It was almost as if Graves spent his life quietly watching and hearing, comfortably quiet in his pauses between books, and offering up what I would consider to be the most magical writing about “place” I have come across.

When I moved to rural Texas (Beeville, more specifically) to begin my work as a public defender – what Graves may describe as when I “put my boots to earth with a mingled set of feelings” (Hard Scrabble, p. 44) – I was continually searching for the words that seemed to flow so easily from Graves. I was trying to understand a world I hadn’t known before, and his sentences became the soundtrack to my curiosities – it was as if he had decided to do something that felt resonant: tip the balance in favor of listening and looking and wondering.

On people: “There were cattle kings and horse thieves and half breeds and whole sons of bitches and preachers in droves and sinners in swarms.” (Goodbye to a River, p.200).

On the lovely dynamic between rain and land: “Hence, it depends not only on rainfall year by year but also on the way the land receives and handles the rain.” (Hard Scrabble, p.53).

On aging and time: “’Maybe it is, at that,’ said his grandfather, nudging dark loose earth with his toe and feeling in old hurts the certainty of rain. ‘We feed the dirt, and the dirt feeds us.’” (Hard Scrabble, p. 139).

Rural Texas mystique is (and always will be) a mine for creative plundering. There is a fierce identity to it, and a romance that accompanies its exploration. And, I firmly believe that defense lawyers whose practice carries them into the hard scrabble of Texas, will do well spending time with the likes of John Graves. He is not there to give you the answer, but he does prod you along to truly soak in what’s around.

His genius is to give the lesser known a profound, authentic, feeling identity. With him, you are not between other places, not described in reference to elsewhere, not on a road between somewhere you might know (Fort Worth) and somewhere else you might know (Abilene) – you are in Somervell County, and being there is just right. There is a depth of humanity that exists in each of Graves’ paragraphs, and with a level of simplicity that is reassuring. We, as lawyers, are also at our best when we can take in the complexities that lie before us and speak about them with some combination of plainness and straightforwardness and minimalism.

That Graves writes about rural Texas – and, therefore, the idea that his writing is applicable to it alone – is to miss out on what he teaches about the ways in which we can all find identity (and, in turn, humanity) no matter where our place is. In her brilliant collection On Photography, Susan Sontag offers a mission that defense lawyers can certainly borrow: “There is one thing the photograph must contain, the humanity of the moment.” (p. 122). The humanity of the moment, the humanity of our client – the re-insertion of these photographs into a process built upon its proficiency at stripping away those very things – that is our non-stop mission.

From the Front Porch: The Need for Rural Practice Trial Tips Post Covid

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As we have emerged from our hibernation over the last year-and-a-half and have gotten back to regular court appearances and jury trials, it is not hard to tell in many respects the landscape has changed.  This may be especially true for those of us who practice in rural areas and do not have the option of continuing to appear via Zoom.

I know from my personal experience that jury selection in rural towns can be challenging depending upon the nature of the charges. I have had several serious cases where we have held jury selection in the local civic hall, the DAV, or other various county structures that can hold more than 150 people at once based on the nature of the charge.  The older historic courthouses, while picturesque and beautiful, were not designed to accommodate 150 or 200 people or more.  Often times when you have a sexual assault or murder case in a small town where everyone knows everybody else’s business, you might have to have panels that big to get an impartial and fair jury. So, when we started to come out of that great pandemic hibernation and we are being sent to the local ag barn or exposition center to pick our juries, many of us had been to the local ag barn or exposition center before. 

However, we were not prepared for not being able to clearly see a juror’s face because of the face-shield or mask.  The jury selection process has developed the sterile feeling of some type of laboratory experiment. How you navigate that particular type of problem depends to a significant extent on how your judge has been addressing and handling these types of issues since March of 2020. If the Court just does not care, it may be that you need to object that the Court is not taking the appropriate safety precautions to protect the prospective jury panel and court personnel. Remember, those folks must be there because they are appearing based upon the Court’s summons for jury duty but the rest of us are there because we are being paid to appear and do our respective jobs. 

Personally, I do not like the idea of wearing a face-shield or mask during jury selection. It detracts from the personal connection we are trying to establish with the jury. I do, however, believe it is the correct decision for everyone involved. This is in no way a political statement or position, but I do not want to be known as the person that potentially infects a prospective jury panel.  I believe for the time being as we get back to work in courthouses across the State, that we need to accommodate others and be aware of our surroundings and the fact those jurors are serving the community. Now, I know some judges who have told me they do not believe they can require anyone to wear a mask in the courtroom because of the Governor’s pending executive orders. While I do not agree with that position, I do respect how they have arrived at that decision, and ultimately it is the Judge’s decision to make. This is just one of the problems I have seen come up over the last six months as we have gotten back to work in court. I, for one, am thankful we have moved back into the courtroom. I do not believe we can be as effective via Zoom as we are in-person when protecting and advocating on our client’s behalf. 

I can see other issues which have begun to spring to life as we proceed to trial in a post-COVID environment. If I choose to wear a mask during trial for my protection and my client’s protection, should I be allowed to ask the prospective jurors what their feelings are regarding the wearing of a mask or face-shield? It appears the choice to wear a mask or to get vaccinated has somehow turned into a political debate. Is it appropriate for someone to object to proceeding to trial if the Court does not require all the prospective jurors, court staff, and personnel to wear a mask and take appropriate safety measures?  These questions and issues are fascinating to me because we all hold different beliefs of how they should be addressed and handled by those in charge.  Some believe its none of that person’s business and the government needs to stay out of my decision-making process.  Others feel we have people in charge to protect the community as a whole and especially the more vulnerable people in our communities. So, how we manage these types of issues becomes more delicate in a post- COVID environment because we certainly do not want a prospective juror’s perception of our beliefs to affect our client during trial. This is why, we look to the Court to call balls and strikes on these and many other issues which are fast approaching, as we get back to normal.

To that end, our Rural Practice Committee is in the process of organizing and putting together a cheat-sheet or tips for trial checklist for use in court as it concerns some of those issues which may be affecting our brothers and sisters in rural areas. There are no bad ideas or arguments as we start to formulate this tip sheet/checklist, so I would ask for everyone’s input and assistance in getting this project off the ground. 

If you have been in trial and faced a problematic issue, caused or exacerbated by the circumstances we currently find ourselves in courthouses throughout the State, please send us your thoughts but more importantly your solutions.  This is going to be an undertaking which takes our entire village, collective voice, and knowledge to deal with in the year ahead.  If you are able and willing, please help us in this endeavor which will benefit our entire membership.  You can contact us with your ideas, tips and thoughts by sending them to me at or to Melissa Schank at . As always, we and you are TCDLA Strong.

From The Front Porch: October 2021

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Criminal defense attorneys are an independent-minded group, especially in rural areas. Whether you came back home to practice law or ditched the big city headaches to practice in a small town, you have shunned the traditional law firm experience for one reason or another. Unfortunately, this independent streak can be accompanied by a selective interpretation of norms you must follow. One example is the requirement of having an IOLTA, which stands for Interest on Lawyer Trust Account. For advice on this article, I called Ellen Pitluk, an ethics attorney with the State Bar.  We discussed three common excuses typically heard among criminal defense lawyers for not keeping unearned legal fees in an IOLTA.

Excuse #1: I’m a criminal defense attorney, and I don’t handle these types of funds. IOLTA accounts are for civil attorneys with shiny shoes and rolling file folders.

Harsh reality: Wrong! The Texas Disciplinary Rules of Professional Conduct make no distinction between civil and criminal fees. The only difference is that we can NOT charge contingency fees in criminal cases. Rule 1.04(e).  I will not insult your intelligence by explaining why you don’t charge contingency fees in criminal cases, only to say if you do, stop now.

Excuse #2: I always charge a flat fee. My contract says my fees are earned when paid, and it clearly states it is nonrefundable.

Harsh reality: This is false. Rule 1.14 (a) of the Texas Disciplinary Rules of Professional Conduct says you must keep a client’s unearned fees separate from your law office’s operational funds or your own personal funds. So your contract says you’ve earned it. How? Imagine going into a doctor’s office, and they charge you a nonrefundable bill before they even examine you. How about going to an accountant and paying them a nonrefundable fee before they have even looked at your books. You would think something was fishy. So don’t do it. Period.

Excuse #3: I give back the money if there is a dispute, so what does it matter which account it’s from?

Harsh reality: If a client has a problem and files a grievance, you will get dinged. Hard. Once again, Rule 1.14 (a) clearly states you can’t commingle client’s funds with your funds. By depositing unearned legal fees in your operational or personal account, you have, in essence, commingled funds and violated Rule 1.14(a).  Remember the adage, “Follow the money?”  All it takes is one disgruntled client to complain.  Money issues are something the bar takes very seriously and commingling funds may result in a disciplinary sanction published in the Texas Bar Journal.

So what should you do now that you know these excuses will get you in big trouble? First, get an IOLTA account. Then, get a system in place that allows you to reasonably justify taking the money fee out of that IOLTA account. For example, charge by the hour and keep track of your time. Is this too much of a pain? Ok, put benchmarks in your flat fee contract. For example, you can spell out that you earn 25% of the total fee at the arraignment, 50% at the first pretrial hearing, etc. Just put in something that spells out your fee agreement. It’s not as hard as you think. See, Professional Ethics Committee Opinion 611 (September 2011) (discussion of nonrefundable fees and benchmarks).  You can also call the State Bar of Texas Ethics Helpline at 1-800-532-3947 for more detailed advice. The ethics attorneys will provide preventative ethics advice to assist you. These are great people, and they will take the time to help you with your questions.

In conclusion, I hope this has helped disabuse you of some common misconceptions about IOLTA accounts. Yes, they can be a bit of pain, but not unnecessarily so. And not having one is far worse.  For a guide on IOLTAs, see “A Lawyer’s Guide to Client Trust Accounts” at https://www.texasbar.com/Content/NavigationMenu/ForLawyers/ResourceGuides1/TrustAccounts/GuidetoTrustAccounts.pdf.  Special thanks to Ellen Pitluk for taking the time to speak with me about this article and to answer my questions! As always, take care, good luck, and have fun!

From The Front Porch: Tech Gadgets for the Rural Practitioner

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I must admit that I am not terribly interested in technology. I’m not up to speed with using Facebook, which I hear is now outdated. However, when technology makes my job easier and more efficient, it gets my attention. You may not have a large support staff who can organize everything as a rural practitioner, so it’s at your fingertips. Your team may consist of, well, you. If that is the case, and even if it isn’t, here are three apps that may make your life easier. I won’t recommend any per se by name (I’m not getting paid for endorsements here!). Still, I can point you in the general direction of time-saving technology that helps make you more professional and efficient. You can take several online options for a test drive and see which one is right for you.

Virtual Receptionists – This can be great even if you have an entire staff. It can be an actual human being or a programmed voicemail that takes your calls after hours. You can get a transcription of your message, and then you have the option of texting them back (without revealing your personal phone number) or having a receptionist return their call and tell them precisely what you want them to say. Most people are used to dealing with some sort of technological buffer between themselves and who they want to talk with. Using the right one can weed out bad calls automatically so you can focus on who you want to talk to and what you want to say. Once you start using this, you will wonder how you survived without it.

Law Management Software – At one time, a well-run office simply had a client’s file folder in a file cabinet. Some may still operate this way, but you are making it very hard on yourself for no reason. Law management software can put all of your client’s information in the palm of your hand, literally. You can use their app, pull up all of your client’s records, offense reports, billing history, payments, etc., within seconds. If you have a bad memory (I’m taking the 5th… again!), this is truly a lifesaver. It will also track your billing instead of looking up receipts and, gulp, doing math!

Online Writing Assistant – Ever file a document, look at it a few days later, and have embarrassing typos? (I‘ll remain silent again). This will virtually eliminate embarrassing errors that look unprofessional. If you have motions that have been recycled over the years, run it through them. You may be shocked at how many grammatical anomalies you actually have. I’m all for eliminating the “heretofore” and “premises considered” that permeate our motion practice. They impede communication, are ignored by the reader and are meaningless. Write your motions in plain English, and everyone will be happier.

Although technology is not the answer to all of our problems, it can eliminate a few. Incorporate these three things in your profession, and you will make your life easier. As always, have fun, take care, and good luck!

From the Front Porch: 50 Years of Rural Practice in Criminal Law

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It’s impressive that TCDLA is celebrating its 50th year. It is incredible how far this organization has come. Although I have not been practicing for all of its 50 years (although some days it feels like it!), as a tribute to this special anniversary, I will try to give some insight into where we have been, where we are, and where we will be in the next 50 years insofar as the rural practice of law is concerned.

Although TCDLA was born in the late sixties, the rural practice of criminal law was somewhat unfazed by the 60’s counterculture. Most rural communities looked upon all that hippie hype and culture with contempt. Sure, there were glimmers here and there of awakenings of the rights of the individual. However, law enforcement usually subscribed to their own brand of rural justice. I have heard stories of a local sheriff taking a suspect to an open grave and telling him to spill the beans or else. I remember one old Texas sheriff telling me about his technique for getting a Defendant to confess. He would handcuff them to a chair, then slide a glass jar with a snake in front of them. He cautioned that the snake would need to be kept unfed for a few days to get it sleepy and docile in order to stay in the jar. He said it was remarkably effective for getting confessions but lamented the one time it did not work as expected. The snake was too fresh and perky, so when the Sheriff slid over to the handcuffed defendant, it leaped out onto the guy’s lap. He screamed and jumped up so high he hit the ceiling. He crashed down, breaking the chair as the snake slithered off and hid in the jail. The Sheriff was really upset that it took so long to hunt down the snake and get it back in the jar. When I asked how he could get away with this stuff, he said, “Hell, no one ever complained.”

Trial advocacy was also quite primitive. You did not have NITA, the Trial Lawyers College, or the National Criminal Defense College. Instead, a young lawyer went to court and watched old-timers practice their craft. Their strategy often involved doing things to distract the jury so they would ignore the state’s damaging evidence. To do so, criminal defense lawyers might wear different colored socks and shoes. One might blow smoke rings or use the old Clarance Darrow technique of fixing your cigar so that the ash would be distractingly long. You might bring large boxes with eye-catching, intriguing labels to distract the jury. The boxes were, in fact, often empty.  You would hear things from lawyers like, “Calling your attention to the night of February 25th, what, if anything, unusual occurred?”

During this time, prosecutors were usually placed in office by the local powers that be. There were usually two types of justice, giving breaks to the haves and giving the shaft to the have-nots. Rural criminal defense attorneys did not usually put too much time or thought into practicing criminal law. This was usually a sideline, something to avoid unless it was a bad month, and the light bill was due. Rural lawyers were also expected to have drinks at lunch with the local movers and shakers to maintain their position at the feeding trough. Driving back to the office half-drunk was understandable. Few women practiced law in those days. Tristes with the secretaries were common without many repercussions.

This process more or less trucked along until the 1980s. Suddenly, the war on drugs ramped up the time, energy, and money spent on the criminal justice system. Cops started to shy away from giving teenagers a break by throwing their marijuana away and calling their parents as punishment. They needed convictions and photo ops to show their progress on the war on drugs, which in turn led to federal funding to keep up the good fight. Fighting communism was replaced by fighting drugs. Even the federal system was structurally changed so that citizens accused of violating federal drug laws could be uniformly hammered. In Texas, trial by ambush was the norm. Hiding exculpatory evidence to get convictions got DA’s awards and speaking engagements.

By the 90s, jurors looked like angry villagers with torches. The OJ Simpson trial was exhibit A in the public perception that the criminal justice system was broken and needed to be tougher. Judges and DA’s often followed this train of thought to keep their jobs. Asking for discovery in open court was like getting a root canal. No elected official wanted to be seen as being soft on crime. The upside was that criminal defense attorneys were forced to up their game to deal with these challenges. Trial advocacy schools and seminars started springing up. Actual trial techniques replaced criminal defense attorney gimmicks and tricks. Blowing smoke rings in court was replaced by storytelling and humanizing the citizen accused. More and more dedicated criminal defense attorneys got on board with these ideas. But huge sentences for drug cases were becoming more common and were celebrated by the press and society.

Then along came 9/11. It did not per se replace the war on drugs but gave another dimension to the fear and loathing of criminal defendants. Trial by ambush was still accepted policy. An open file policy was a gift that could be taken away by filing too many motions or giving the DA’s office a hard time at trial. You had paper files in which things could be taken out of without your knowledge. You had to put on your Sherlock Holmes hat to figure out precisely what happened with your case. This was probably when public sentiment against criminal defendants was at its highest.

But as is often the case in life, things change. Once the war of terrorism simmered down, you started hearing about cases of people wrongfully convicted of violent crimes being cleared by DNA evidence. The notion that prosecutors were angels began to crack. You would watch the news and see people freed after decades of imprisonment for crimes they did not commit. Even to a tough-skinned rural Texan, this struck a nerve. Occasionally, someone might say, “Well, maybe criminal defense attorneys aren’t all bad.” You would have been tarred and feathered if you said that a couple of years ago.

Michael Morton truly busted the cap off the unethical mindset held by so many old-school rural prosecutors. Suddenly, hiding evidence did not get you awards and a speech at a banquet. It got you sanctioned or disbarred. Once seen as a tremendous gift to the defense bar, prosecutors replaced their open file policy with free zip drives of everything in the file! Instead of hiding exculpatory evidence, prosecutors made sure they told you about it, then sent emails to make sure you got it! A complete 180 degrees from days past.

While this was going on, society started figuring out that all its problems were not being fixed by billions of dollars spent on the war against drugs. Of course, it all started in California, but as the years rolled by, this train of thought crept its way into our rural areas. Suddenly, 50 years in TDCJ for possession started to seem a harsh.

Then Covid hit. I do not need to preach to the choir about what happened then. Jury trials were as realistic as a pardon from the governor. You now had court hearings in your living room wearing flip-flops.  Extraordinary times. Before Covid, you were required to file a motion for a continuance if you wanted to postpone a hearing. Now, all you had to do was cough in a zoom hearing. Instead of the Judge saying, “Please rise for the jury!” now we heard, “Counselor, your device is muted!”.

So, what now? What is the future for the rural practitioner? Hell, I have no idea! Well, maybe some. The playing field has been leveled a little bit more. Gone are the days of trial by ambush. Technology has made it easier to handle our cases effectively. I believe that prosecutors now worry more about doing the right thing.

I am hopeful that as our profession progresses, the citizen accused is treated with greater respect and humanity. Drug laws need to be revamped, for everyone’s sake. As for our profession, we have now been promoted from being detrimental to society to being necessary instruments in the pursuit of justice. One day, we may even be knighted like barristers are in England, but don’t hold your breath! If you look like you have breathing problems, you may get tossed out of the courthouse. Wait a minute, that gives me an idea…

From the Front Porch: The Fear & Future of Remote Jury Proceedings

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When COVID-19 shuttered the state’s courthouses in March 2020, the Texas Supreme Court responded by authorizing Texas courts to hold court proceedings remotely, by video conference. The emergency orders prohibited all in-person jury trials, and the Governor promptly suspended the 90-day mandatory release of incarcerated defendants awaiting trial.1 Initially, Texas judges and lawyers overwhelmingly opposed the shift online. However, as infections continued to rise with no viable options on the horizon, most Texas courts grudgingly moved their operations to Zoom.

Over the next twelve months, Texas courts held over 1.2 million remote proceedings, including evidentiary hearings and trials of all types, save one – felony criminal jury trials.

As cases moved forward online, many attorneys came to appreciate the benefits of virtual court proceedings.2 But while courts could compel remote jury trials in civil cases, the emergency orders forbade courts from doing so in criminal cases. The parties must agree for a remote criminal jury trial to take place, and simply put – defense attorneys won’t do it.

TCDLA has taken a strong and vocal stance against remote jury trials in felony criminal cases, and as of the writing of this article, not one has been conducted in Texas. Due to widespread initial (and justifiable) concerns about the efficacy and equity of online trials, criminal defense attorneys employed a wait-and-see approach. During that year-long wait, over fifty remote jury proceedings took place in Texas courts. We now see that remote jury proceedings present a viable and valuable option for criminal defendants, and an opportunity to improve the equitable administration of justice in a system many see as inherently and historically inequitable for minority defendants. The wait is over. It’s time to take what we’ve learned and consider anew whether and when remote jury trials should be undertaken in criminal cases.

The Fears

When remote court proceedings first began in Texas, a cacophony of voices decried a long list of fears and anticipated flaws. Among them was that a “digital divide” would exclude minorities and economically disadvantaged persons from the process, resulting in White,3 older, affluent juries, thus negatively impact minority criminal defendants.

Each of us has at some point in our legal career been advised to, “Never ask a question if you don’t know the answer.” After years in the courtroom, most seasoned litigators try to avoid, but feel generally able to handle, the unexpected. At some point, you feel as if you’ve seen it all. But this confidence does not carry over into the virtual world, and as we’ve seen repeatedly over the last year – from nudity to surgery to lawyercat – with remote hearings you have never seen it all. Although almost all litigators now report being technologically competent in remote proceedings,4 many lawyers candidly admit that they oppose virtual proceedings partly out of fear of looking foolish or inept, or embarrassing themselves on YouTube. After all, professional reputations take a lifetime to build and only one foolish moment to damage, especially if that moment goes viral.

What we must determine as a profession is whether the benefits of remote proceedings eclipse the risks associated with the fears of moving online.

The Facts

When remote jury trials were first contemplated, a primary concern was that a “digital divide” – meaning a technological gap between segments of the community – would exclude minority and lower-income residents from jury pools. While seemingly a logical concern, reports from the more-than 50 remote jury proceedings held in Texas between June 2020 and April 2021 show otherwise.5 Not only did the digital divide fail to materialize as feared, the digital divide is far smaller than the pre-COVID financial or transportation divide.

Dire predictions of widespread technological exclusion from remote jury proceedings often rely upon the fallacy of comparing a dystopian worst-case scenario that never materialized with a utopian pre-pandemic system that never existed – one where all summoned potential jurors were able to attend court, in person. This idyllic view of the pre-COVID era is far from reality. In many counties, historic jury response rates hover in the teens, and some have never exceeded 50% for in-person trials.

Obviously, considerations other than access to technology often influence summoned jurors’ ability to attend court, such as lack of reliable transportation or day care. While courts cannot provide free transportation for an in-person appearance, many courts (with the help of the Office of Court Administration) can and in fact have provided free use of equipment for remote proceedings, thus eliminating the transportation gap and closing the technology gap among potential jurors. And daycare became less of a concern when most parents did not need to leave their homes in order to answer a summons (certainly not the initial response, which consists of filling out a form online, rather than driving to a courthouse for half a day or more).

The ubiquity of smart phones, tablets, and personal computers, coupled with the efforts of the OCA, have resulted in fewer summoned jurors failing to appear remotely than failed to appear in-person. Courts report that response rates for remote jury trials are significantly, and often dramatically, higher than in pre-pandemic in-person jury calls.6 And as discussed below, these larger response rates have yielded jury panels that constitute broader and more representative cross-sections of the community.

Conventional wisdom posits that younger, more diverse jury panels are better for criminal defendants than older, all-White panels. This is not controversial, and for good reason – the numbers bear it out.

A Duke University study published in 2012 concluded that minority defendants in criminal jury trials fare significantly better when the jury pool contains members of their own race.7 The study found that conviction rates of Black defendants decrease by 10% when the jury pool includes at least one Black member.8 This is especially significant in Texas, where roughly two-thirds of incarcerated adults are Black or Hispanic.

A direct correlation is also seen between average jury age and conviction rate.9 Conviction rates decrease by roughly one percentage point for each year decrease in the average age of the jury; juries with an average age under 50 convict an average of 11% less often than juries with an average age over 50.10 Simply put, younger juries result in lower conviction rates.11

Lawyers customarily rely on such conventional wisdom in choosing jury or bench trials, and in exercising peremptory challenges.12 It is understandable, then, that given the common fear of a “digital divide,” defense attorneys would resist any change that could exclude minorities and younger jurors. But after more than fifty remote jury proceedings in Texas, and countless others across the country, we are confident that the opposite is true.

Fears of a racially disparate impact are allayed by Texas judges who’ve presided over remote jury proceedings, who overwhelmingly report that minority participation in such proceedings is significantly higher than in pre-pandemic in-person proceedings. Taking Presidio County as an example, the most recent in-person jury panel included no Black or Asian participants, while the most recent remote panel included both. As shown above, this simple difference can have a significant impact on the jury selection process, and ultimately the outcome of the trial.

Data also shows that the average age of remote jury pools trends lower than in-person jury pools. Young adults are more comfortable online and enjoy digital interactions more than seniors, and thus seem more likely to respond. Retirees who might have foregone the over-70 exemption for an in-person trial may be more likely to claim such exemption for a remote proceeding. Whatever the reason, courts report that remote jury panels are on average younger than in-person panels. By way of example, the average age of the most recent Presidio County in-person jury panel was 51.3 years, while the most recent remote panel averaged 48.7. Other courts report even more dramatic drops in average jury age in remote proceedings, by as much as 7 years. And the larger the drop, the greater the impact on conviction rates.

The Personal and Professional Challenge

Lawyers do not become litigators to sit in their offices in front of a computer. Litigators are often showmen and women; they want to be in the courtroom, where they “own the room.” Some trial lawyers are concerned that the remote setting does not fully showcase their skills and charisma. While understandable, the Texas Supreme Court expects lawyers to rise above such personal interests when it benefits their clients.

“A lawyer shall employ all appropriate means to protect and advance the client’s legitimate rights, claims, and objectives. A lawyer shall not be deterred by a real or imagined fear of judicial disfavor or public unpopularity, nor be influenced by mere self-interest.” Texas Lawyer’s Creed, Sec. II.

This expectation goes hand-in-hand with the lawyer’s duty of technological competence, requiring all to become proficient in legal software, and know the benefits and risks associated with using relevant technology.13

It is the lawyer’s duty as advocate to seek the best possible outcome for his or her client. Our experiences over the last year indicate that, by giving in to fear of the unknown, criminal defense attorneys may be missing out on a historic opportunity to help their clients. Admittedly, all other things are not equal between the two types of proceedings. As with all important choices, there are benefits and detriments to each option, and no one knows how they will ultimately come into play. No one is suggesting that remote jury proceedings are right for every client and every criminal case. But given what we now know, there are undoubtedly cases where criminal defendants would be better served in remote proceedings than in-person proceedings. The challenge is not in avoiding remote jury trials – that part is easy. The challenge is in knowing when your clients’ interests, and your ethical obligations, require them.

Jury selection is largely an exercise in playing the odds – in trying to determine which juror is more likely to favor the defense or the prosecution. Lawyers cannot read minds, so we rely in large part on questionnaires, demographics, guesswork, and intuition to determine as best we can the biases and predilections of potential jurors. What we know is that more diverse juries produce significantly lower conviction rates for minority defendants, and that younger juries produce lower conviction rates for all defendants. And we know that jury panels in remote trials during the pandemic are younger and more diverse than were in-person pre-pandemic jury panels. While it is yet to be determined whether or to what extent these statistical correlations will carry over into remote jury trials, we owe it to defendants across the state who are languishing in jail awaiting jury trials to pursue these opportunities, if we are to fulfill our moral, ethical and professional obligations to them, and be prepared for the future.

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.