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From the Front Porch

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 I’m not up to speed with using Facebook, which I hear is now outdated.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.

From the Front Porch: Mending Fences

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If you practice in a small town, sooner or later, you’re going to tear your britches with the prosecutor or the judge. Sometimes, you tear your britches with both. Me? I’ll take the 5th (as always). In a big city, this is not so much of a problem. Prosecutors come and go, and your cases are probably so spread out that you may not see that pesky judge for awhile. In the big city, things can cool off organically. The conveyor belt of problems will often quickly remove yesterday’s problem with today’s, then tomorrow’s. And as a learned attorney in Nacogdoches once said, “Time is a soothing balm.”

However, in a small town, time’s soothing balm may not always be so soothing. You may be dealing with that judge or prosecutor for the next 20 years or more. Literally! In my experience, rural practitioners seem to have a long memory. So, what do you do when you get crossways with the powers that be? Telling them to just go to hell doesn’t work in the long run. Unfortunately, and inextricably, they hold the keys to what ultimately happens to your clients. In my experience, there are three things that you can do to mend fences when things go south.

If you are wrong, admit it. No one likes to admit when they have made a mistake. But, hey, we’re all human. You may perceive that admitting when you made an error bruises your public perception. On the contrary, it enhances it. The worst thing you can do is wrongfully blame someone else, make excuses, etc. This makes you look far weaker in the long run. If you make a mistake, own up to it.

If they are wrong, don’t rub it in. Just as the rationale for #1, we are all human. If they don’t realize their mistake, you can point it out gracefully without making them lose face. If they own up to it, don’t rub it in. As stated before, you may be dealing with these people for a long, long time. Be graceful and dignified about their mistakes, just as you should be with yours.

Whether it is 1 or 2, don’t let your emotions dictate how you respond. This is probably the toughest advice to follow. Whether it’s extreme anger or fear, it is best not to show this to the other side. When I first started practicing, I often needed to leave the courthouse and drive around the block to cool off. One time, I almost hit my colleague driving around doing the same thing (I’m not kidding). With today’s zoom hearings, it’s even easier. Just mute your app, turn off the video, and let loose. Compose yourself and boogie on.

We are all going to be in this position sooner or later. Avoid the temptation to act like a jackass. Because our jobs inherently involve conflict, at some point in time, some fences will need mending. But our actions determine whether we need a small repair or if we need to fix the whole damn fence! If you practice in a small town, you probably are doing so to avoid the big-city headaches. I’ll take our unique rural problems over the big city headaches any day! I hope this helps you a little when you suit up and take on the state – even if only from the waist up in our current age of Zoom. Take care, good luck, and have fun!

From the Front Porch: Getting Back to Normal

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What exactly is normal?  How and when will we get back to normal in our criminal defense practice?  When will we have a jury trial without having to wear a face mask or shield?  When can we go to the courthouse without fear of contracting COVID-19 and bring it home to our loved ones?  All are good questions, and the likely answer is we just do not know.  However, with the rollout of multiple vaccines, a return to business as usual is on the horizon. 

I do not think returning to normal will resemble what it did a year ago.  With the use of Zoom, and the growing comfort with using it, I expect that the use of Zoom for certain court settings may continue.  This may be especially true in rural areas where the district court serves multiple counties over a large geographical area.  I do not think this is necessarily bad and may provide many rural practitioners the ability to become more efficient in their law practices.  We should be considering what that future holds for use of Zoom as a practice tool, and when the opportunity presents itself, having this type of conversation with our local judges.  I am not suggesting that we use Zoom for conducting a trial.  I also do not believe we should use Zoom for substantive contested motions, such as a motion to revoke, motion to suppress, or motion to revoke bond, as it is in the client’s best interest to have the opportunity to appear and be heard in open court on matters such as these. 

However, those of us who practice in rural areas are aware of the difficulties and limitations we sometimes experience in obtaining a setting on a preliminary pre-trial matter.  Zoom offers us an alternative.  I can think of several instances where using Zoom may be a preferable method to conducting a hearing for purposes of expediency, such as arraignment, preliminary or status pre-trial settings, contested pre-trial motions (so long as they are procedural in nature), and agreed-upon bond reductions and plea dispositions.  Under limited circumstances, I can envision where using Zoom can provide a cost-effective way for an out-of-county witness to testify.  This may be a double-edged sword and I would never agree to allow a complaining witness to testify via Zoom, as I believe it violates the client’s right to confrontation.  But there are legal arguments to be made on both sides of this topic, and we need to be prepared to respond to the state’s and/or court’s requests regarding these types of testimony or witness issues.

It will be up to our local judges to decide if Zoom provides an efficient alternative for conducting future court business.  I do think that some rural judges will continue using Zoom for the efficiency it provides and to reduce traveling to multiple counties for court appearances.  As criminal defense lawyers, we need to adapt to this new normal, and either embrace its use or be prepared to object to how it is being used, depending on the circumstances.  As such, our new normal may involve all of us becoming more fluent in the use of Zoom and digital evidence.  I know that I have been on the lookout for CLE seminars on these very issues and topics.  Everything changes over time.  We either adapt or become extinct like the dinosaurs. 

While a return to normal is what we are all waiting for, we need to embrace the technological advancements which have been made over the last year that in some cases have made the practice of law more efficient.  I have always tried to stay ahead of the curve on the use of technology in my law practice and specifically in the courtroom.  I remember the headaches I experienced when I first started using PowerPoint, and I found myself concerned about how to effectively use PowerPoint in my practice.  I ended up taking a local community education class to educate myself on how to create and use PowerPoint presentations, and now I cannot imagine a scenario where I would not use PowerPoint during some phase of the trial proceedings.  My point being that we should not be afraid to take advantage of the technological resources which are available, so long as we are willing to put in the time and effort to understand how best to utilize those resources.

I hope that we are back too normal soon because I miss being in the courtroom and socializing with my friends and colleagues at the courthouse.  I miss making my argument in front of the judge, and not having to decide whether to view the Zoom proceeding in speaker or gallery mode.  But when we finally start to get back to normal, I do think it will look different and that is not necessarily a bad thing.  Embracing change can be difficult, but as criminal defense lawyers it offers us another opportunity to become better advocates.  The technological advancements we have seen over the last 10 months is another way for us to provide better representation for our clients and work more efficiently.  Normal in the future should involve all of us becoming more adept at these technological changes and striving to educate and train ourselves on how to best take advantage of them. 

At some point in the future, I hope to see all of us gather for a seminar and telling war stories.  Until then, be safe and stay TCDLA strong.

From the Front Porch: Be a Participant and Not a Spectator

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As I write this column, the number of coronavirus cases is on the rise in Texas. Some hospitals are nearing capacity and health care resources are being stretched thin. To our colleagues and their families in some of the hardest hit areas of Texas, you are in our thoughts and prayers and we stand ready to help. We miss the courtroom and socializing with our colleagues. We are tired of wearing a mask and talking thru plexi-glass.  Zoom has been a lifesaver, but we are now Zoomed out. As cases rise, we may have to deal with another statewide shutdown in some form. Our anxiety has not subsided, as we just do not know what the future holds for us or what practicing in the courtroom will look like in six months. This uncertainty is nerve-racking and stressful and continues to take a toll on our professional and personal lives.

There is good news, as there may be a vaccine available soon. Hopefully, we can get back to normal sooner rather than later. In the meantime, what can we do to get our practice back in order? I will give you my thoughts on that question next month.

On November 11, 2020, the Texas Supreme Court ordered that no in-person jury trials could be held prior to February 1, 2021, extending the previous deadline of December 1, 2020. The exception continues to be that a judge can seek to have an in-person jury trial by submitting their operating plan to the local administrative district judge for that county and the regional presiding judge for approval. Specifically, there have been some judges in rural areas throughout the State that have obtained this approval and conducted in-person jury trials. My understanding is that jury selection was held at large venues and not at the courthouse, with restrictions in place for social distancing, and the wearing of a face shield or mask, etc. While I have not been personally involved in any of those jury trials, I believe the success of those proceedings has been mixed. I suspect that this perception of success is likely based upon your role in the proceedings. I do believe the courts and the Office of Court Administration should be applauded for their efforts to address the problems presented by the pandemic, but we all need to be mindful of the fact that there continues to be real health concerns and risks which must be safeguarded and taken into account when making these decisions.

It appears that judges and prosecutors are having conversations on how to resume in-person proceedings at the courthouse. I do not believe that local criminal defense attorneys have been included in those conversations, and this concerns me as it should all of us. We are required to be a zealous advocate, but how can we do that when we have serious concerns of the health risks that would necessarily exist during a live jury trial proceeding. Now, how do we, as rural criminal defense attorneys, inject ourselves into that conversation? While we may be friends with the judges and prosecutors in our rural areas, our duty is to our clients, and keeping them and ourselves safe for the sake of our families and loved ones. Our health and safety concerns must be part of that conversation. In some of the surrounding counties that I practice in we have received information that there have been positive Covid-19 test results in several of the county courthouses. In rural areas this can lead to serious concerns because the local county courthouse is not only the hub of all legal matters, but a centralized point of contact for all county sponsored services. That is why it is important to make calls to the judges and prosecutors and invite ourselves into that conversation for developing a safe return plan to the courtroom. Staying in touch with our local community leaders and courthouse personnel is critical to us keeping ourselves safe and healthy. It has been over eight months since the pandemic creeped into my community, and it is easy to slip into a routine of self-isolation and start binge watching on Netflix. In reflecting back on the last eight months, I know I can do better in making sure my clients, friends, and colleagues are doing well and staying safe.

A friend of mine had concerns about his and his client’s safety and health with regards to a scheduled November jury trial setting. He utilized TCDLA’s resources and successfully argued for and had his request for a continuance granted. He may have to file it again as this problem is not going away anytime soon. This is a situation many of us are having to confront as the pandemic rages. While this is not an easy conversation to have with the court, it is necessary. When pressing this issue with the court, make sure your client agrees with you regarding the continuance, and they are aware that they are likely waiving a speedy trial complaint. My suspicions are that some of the courts seeking permission to proceed with a jury trial at this time involve cases where the client has demanded their right to a speedy trial.

Practicing law in a rural area during this pandemic has led me to rethink my practice and I have some thoughts to share with you:

  1. Remember where you come from;
  2. Know where you are going;
  3. Check in on friends and colleagues;
  4. Stay in regular contact with your clients;
  5. Remain accessible via Zoom, by telephone or in-person;
  6. Stay in regular contact with your local judges, prosecutors, court clerks and personnel;
  7. Protect your client;
  8. Protect your family;
  9. Remember you cannot protect anyone if you do not protect yourself; and
  10. Be thankful for what you have and do not obsess about the rest.

The Rural Practice Committee continues to meet monthly. We are developing helpful hints and a checklist for use when we return to the courtroom. This information will be posted on the TCDLA Rural Practice list serve. Each member on this committee is dedicated to making themselves available to assist you and address any of your concerns. If something unusual or exciting happens in your neck of the woods, please let us know how we can help.

Lastly, I take my hat off to all of us that have endured the hardships of this pandemic and continue to advocate on behalf of the accused during these trying times. We have continued, unphased and undaunted, despite impossible circumstances and a myriad of the Governor’s executive and emergency orders, to protect and preserve our client’s rights. Stay strong and vigilant. Remember TCDLA has your back, from west Texas to east Texas and all parts in between. We are TCDLA strong.

From the Front Porch: An Introduction to the Rural Practice Committee

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Hopefully, this will be the first of many articles during which we will explore the differences and challenges faced by the criminal defense attorney in a predominately rural area. I know that many of us have handled cases in rural areas throughout the State as part of our practice, and we realize there are some distinct differences which exist between representing the citizen accused in a rural versus urban environment. Those differences can be seen in how cases are docketed, pre-trial hearings are held, and ultimately, the type of jury pool you encounter.

As we begin to adapt to this ever-changing landscape of criminal defense work during the COVID-19 pandemic, it is apparent that many rural areas are much closer to attempting to get back to business as usual. This is partly because the positivity rate has been decreasing in smaller counties, and the courts are ready to get back to conducting jury trials. However, it is also because of the lack of infrastructure, where smaller county jails are near or at capacity, and their respective criminal dockets and backlog of jury trial settings have exponentially increased since March of this year. It is like that old pressure cooker your grandma used to use – you can hear the pot rattling and the whistle blowing, but we cannot quite take it off the stove yet. We don’t know what our jury trial experience will resemble when we get back to the courtroom, but it is likely that many of our brothers and sisters in rural areas will begin to understand how the ongoing pandemic will impact that experience before some of us handling cases in cities such as Houston, Dallas, Fort Worth, San Antonio, or Austin.

The bulk of my practice surrounds counties in and around the Texas Hill Country, and I rarely handle cases in Bexar or Travis counties. From my limited perspective, I have heard from several criminal defense practitioners who are anxious to get back to the courtroom so long as it is safe and we have an established set of procedures and rules that everyone must follow. I can’t assume that is the perspective of all of our rural members throughout the state, but if I were a betting man, I would hedge my bets that we need to brace ourselves for a future of conducting jury trials during this pandemic. Please understand, I am not endorsing the idea that we must get back to the courtroom and jury trials this week or next, but I do believe it is a situation that over the next couple of months will require us to hone our trial skills and find a way to adapt when we are required to get back into the courtroom. It has become clear that commencing jury trials at least by December 1, 2020, will become the norm with or without a vaccine, unless God forbid, there is another huge spike in the COVID-19 positivity rate which requires another shutdown. Keep in mind that a small county jail can only hold so many people before they start bursting at the seams, and much like the pressure cooker, the only way to diffuse that pressure is take it off the stove. Like it or not, this is the situation that many of us may find ourselves in as soon as December 1, 2020.

As the co-chair of the Rural Practice Committee, we are working on organizing our thoughts and resources on this situation and preparing for the circumstances when we will have to start returning to trial. Within the next month, we should all have access to all the county plans for returning to jury trials as approved by each of the respective administrative regional judges throughout the state. The COVID-19 Response Task Force has come up with a checklist of procedural requirements and safeguards for returning to the courtroom for purposes of trial. I would encourage all our members to access the checklist via our website and use it, as necessary. 

The Rural Practice Committee hopes to add to this functional checklist, taking into consideration some of the specific problems sometimes encountered by the rural practitioner. As such, if you are handling or have handled a case in a rural area and have a particular question or believe there is an issue of particular concern which needs to be addressed moving forward, please contact me or John Hunter Smith to let us know how we can help.

Many of us have probably picked a jury in a small town in the local Civic Hall, American Legion Hall or other county wide venue facility designed to hold hundreds of people versus a hundred people. However, we have never had to do that wearing a mask and face shield with each juror socially distancing 6 feet apart. We are social creatures, and this new age is going to present some challenges, but we all must stay safe and healthy or we cannot help anyone, let alone our clients.

In small towns social distancing requirements are often difficult and not well received by our neighbors which makes jury selection even more difficult and time consuming. I believe if it was going to take you a half-day to pick a jury prior to the pandemic, it will now take a full day. Also, I have not yet seen a plan for a rural area, as of writing this column, but how is a shuffle going to work, and where is the court going to park a hundred or two hundred folks while they work that out and then re-seat the panel? These are just some of the issues we have been discussing on the Rural Practice Committee, and we would like your input and any information pertinent to this situation to help us develop some local resources for the benefit of all of our members.

As an example, today as I was writing this column, I received an email from one of the Rural Practice Committee Members asking for assistance for a fellow member because a judge in a small county was picking a jury and sent out 200 summons – 35 people showed up and 6 were excused. The Court decided it would just round up 30 more jurors for the panel and start a general voir dire that afternoon. Within a few minutes of sending out a request for help, Allison Clayton, one of the current co-chairs of the Covid-19 Response Task Force, responded by sending out a motion to the challenge of the array. It is this type of support and development of resources that TCDLA hopes to continue to refine over the course of the next couple of months.

We are here for our members, and we need your input and assistance so that we can be proactive and responsive to our members and their needs regardless of where they practice. Whether you are in Alpine or Austin, we are here for you. Please know that it is never just you against the government because we can bring to bear the collective voice, experience, and knowledge of over 3,200 members statewide. As we navigate these uncertain times, please send us any questions you have or issues that you have encountered practicing in a rural area. Do not assume someone else has already contacted us or experienced the same thing. We want to help if we can, and there is no such thing as a bad question. We are in this together and remain TCDLA Strong.

John Hunter Smith Co-Chair of the Rural Practice Committee can be contacted at .

Clay Steadman Co-Chair of the Rural Practice Committee can be contacted at .

Melissa Schank can be contacted at .