President’s Message: Balancing the Supreme Court

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Justice Ruth Bader Ginsburg was an American treasure. In her life and legal career she was a barrier-breaker, a fierce advocate for her clients and the causes in which she believed, a role model, and ultimately a cultural icon. Justice Ginsburg’s loss will be impossible to measure — except perhaps in one stark, numerical way: The Supreme Court of the United States (SCOTUS) will likely move from 5-4 to 6-3 “conservative.”

This will have an enormous impact on the practice of criminal defense.

Over the past several decades and especially most recently, SCOTUS decisions (often with one or two conservative justices siding with liberals or vice versa) have narrowly upheld constitutional protections in 4th, 5th, 6th and 14th Amendment cases. These will be fewer and further between if SCOTUS stays with nine justices.

The point of this thought-exercise is not to suggest that our President and United States Senate should hold off nominating and confirming Amy Coney Barrett until after the 2020 presidential election. They’re not going to do that. Instead, as concerned citizens and criminal law practitioners we should be thinking of ways to safeguard the rights of the criminally accused in this highly charged political environment.

There is no shortage of suggestions for how to re-balance SCOTUS or remove it from the political arena. Please add mine to the list. It may strike you as slightly different.

I believe most Americans want a balanced SCOTUS, as opposed to a political tribunal that tilts in favor of one side or the other. To me, this begs a fundamental question: Why does SCOTUS have to have an odd number of justices?

There is nothing in the Constitution that specifies the number of SCOTUS justices. Most advocates of court expansion (derisively called “court packing”) favor adding more justices to achieve an odd number that favors their side. Some liberal advocates are talking about forging a 13-justice Court, with a 7-6 advantage for the liberal camp.

But again, why does it have to be an odd number? Is it because SCOTUS is supposed to be the final arbiter of legal questions and no one wants a tie?

The vast, overwhelming number of constitutional law cases in America do not reach the Supreme Court. If a criminal case includes a crucial, debatable constitutional issue and not merely a fact dispute, and the case even reaches the appellate level, it is usually decided in a state court of appeals. In federal criminal cases, district and circuit courts typically resolve constitutional issues. A successful petition for certiorari is rare even in some of the most hotly disputed criminal law topics.

On occasion, such as in the aftermaths of death or resignation of a SCOTUS justice or when a justice is recused or steps aside from a case, America has an even number of Supreme Court justices. Not surprisingly there have been dozens of tie votes in the Supreme Court dating back to the 1950s.

As most lawyers know, when an appellate court vote ends in a tie, the lower court decision stands. Finito!

Expanding the number of justices to 12 would balance the High Court and ensure that no big decisions would happen unless one side or the other persuades at least one fellow justice to cross over and join their voting block. Absent that, a lower circuit court decision would stand and it would be up to us lawyers to argue to trial and appellate courts what it all means. Gone would be the days when major constitutional issues are resolved by a single vote on what appears to be party lines. True, there would be circuit splits in some narrow areas of the law, but there are already a bunch of those and lawyers and courts deal with them routinely.

Although a 12-justice SCOTUS would probably require a Democratic President and a Democratic Senate (which are far from certain in the upcoming election of 2020), the concept of 12 justices actually has historical precedent. In the 1860s Congress set the number of justices at nine in order to match the number of federal circuits. There are currently 12 federal circuit courts in the United States! Moreover, a 12-justice SCOTUS should be enticing to Republicans, because all tie votes would revert to the decision of the lower circuit court and Republicans currently have a voting advantage in seven of the 12 federal circuit courts. The Senate and Electoral College are already structured in ways to almost always give Republicans the Senate, the presidency, or both – thereby ensuring a long-term advantage in the federal circuits. For their part, Democrats should embrace a 12-person SCOTUS, because, for them, it would be a vast improvement over what will probably soon be a 6-3 conservative majority.

Legal practitioners and Americans should all demand a 12-person, balanced SCOTUS because it would give us some things we haven’t had in decades — stability, objective fairness and a far less politicized tribunal at the very top of our legal system.

Some might grumble that no one wins with a tie.

That’s absolutely true and exactly the point.

Chapter & Verse: Defending in the Name of Hope

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My Dear and Beloved Defenders,

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

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

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

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

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

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

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

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

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

Love always and wash your hands.

Federal Corner: Do Your Research Before Predicting Your Client’s Advisory Sentencing Guidelines Range

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This is an experience that we have all had:  The evidence against your client in his federal criminal case is overwhelming and he has realized that a plea of guilty is probably inevitable.  He asks, “What am I looking at?”  The answer to his question may be more or less complex.  In either instance, though, he is entitled to an intelligent – and accurate – answer.  If he receives something less, there is always the possibility of a post-conviction writ alleging ineffective assistance of counsel.  This is something that every lawyer should want to avoid.

Unfortunately, the lawyer for Aluro Pablo Valdez, Jr., did not give him such an answer.  Even so, a divided panel of the United States Court of Appeals for the Fifth Circuit held that Valdez’ lawyer’s performance in incorrectly advising him about the applicable Sentencing Guidelines range was not ineffective.  United States v. Valdez, 973 F.3d 396 (5th Cir. 2020) Panel:  Circuit Judges Wiener, Engelhardt and Oldham.  Opinion by Engelhardt; dissenting opinion by Wiener.)

Judge Engelhardt’s opinion reads, in part, as follows:

Valdez’ Claim of Ineffective Assistance of Counsel

Defendant-Appellant Lauro Valdez, Jr., federal prisoner # 76629-080, appeals the denial of his 28 U.S.C. § 2255 motion to set aside his conviction for being a felon in possession of a firearm. Valdez advanced several grounds for relief in the district court, but this court granted a certificate of appealability as to only one: Valdez’s claim that before he pleaded guilty, he received ineffective assistance of counsel because his trial attorney underestimated the range of imprisonment recommended by the United States Sentencing Guidelines (‘Guidelines’). United States v. Valdez, No. 18-40495 (5th Cir. Feb. 28, 2019) (one-judge order). (emphasis added)

An Overview of Valdez’ Plea and Sentencing in the District Court

After a jury was empaneled for his trial, Valdez pleaded guilty—with no plea agreement—to one count of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Valdez used the firearm to commit murder, so the Guidelines recommended a range of 324 to 405 months’ imprisonment. Valdez’s attorney estimated that his Guidelines range would be between twenty-four and thirty-three months, but the district court, after two colloquies pursuant to Fed.R.Crim.P. 11(b), accepted the guilty plea and sentenced Valdez to the statutory maximum term of 120 months in prison. (emphasis added)

The Background of the Case

Valdez was arrested and charged in state court with murder. While the state case was pending, Valdez was charged in federal court for being a felon in possession of a firearm.  In the federal matter, Valdez planned to assert a justification defense. Someone had fired shots at Valdez’s house ten days before the killing of Rodriguez, and Valdez claimed that he had received threatening phone calls. Valdez argued that he was justified in possessing the firearm because, in the context of those prior incidents, he feared for his life when Rodriguez arrived outside his door and yelled threats.

Valdez decided to go to trial for the possession charge. On October 19, 2015, after the jury had been selected, the district court conducted a hearing on whether to allow Valdez to assert the affirmative defense of justification at trial. The court clarified that Valdez would not be permitted to raise his affirmative defense unless he could make a prima facie showing on all four elements of justification.

 … after conferring with his counsel, Valdez then, before the district court officially ruled on any pretrial motions, sought to change his plea to guilty. The court specifically noted that only his sentence and any § 2255 issues would be appealable, and his counsel confirmed that was correct.

The Plea Colloquies

During the Rule 11 colloquy, the district court told Valdez, appropriately, correctly, and expressly, that

right now you don’t know what sentence I would give you, I don’t know what sentence I would give you and I don’t know that because a Probation officer has to meet with you, your lawyer gets to be present and they have to give me a report about your criminal history and then they’ve got to give me a report about this case and where you score.

Valdez initially said that his attorney had not reviewed the Guidelines with him, but after being shown a copy of the manual, he said that he was familiar with them. The court thoroughly explained how the Guidelines arrive at a recommended sentence, noted clearly that the court had the power to sentence above or below that range, and stated the factors that the court must consider when choosing a sentence. The court asked, ‘Are you aware of the penalties?’ to which Valdez replied, ‘Yes, ma’am.’ The court then explained that the statutory maximum penalty was ten years in prison. Valdez again said that he understood and that he had no questions about the penalty. The court explicitly addressed the issue of an estimated sentence, including one from Valdez’s counsel (emphasis added):

And this is important because I will tell you that your attorney may have given you a good faith estimate where he thinks you may fall in that chart and — and he may tell you, ‘You know, I’ve been in front of this Judge a lot of times, I think she may or may not do this,’ but at the end of the day he really has no idea and you really have no idea and I have no idea because I don’t know where you’re going to score and I don’t know everything about your life history, and so whatever your lawyer may have said to you is not a promise, it’s not a guarantee and it’s not binding on this Court. Do you understand that? (emphasis in the opinion)

Valdez said, ‘Yes, ma’am,’ and confirmed that he wanted to proceed with pleading guilty.

The hearing continued to the next day, October 20, 2015, when the district court again confirmed that Valdez understood that he could not withdraw his guilty plea if he was unhappy with the sentence he received. The court then gave Valdez a chance to withdraw his plea. He declined, and the court accepted Valdez’s plea of guilty.

 The Advisory Sentencing Guidelines Range

The district court determined that the Guidelines recommended a range of imprisonment of 324 to 405 months. Valdez had a criminal history category of II, which the district court found significantly underrepresented Valdez’s criminal activity. The district court determined that Valdez’s base offense level was forty-three because he committed first degree murder … The court then applied a three-level reduction for acceptance of responsibility.

Under the Guidelines, when a firearm is possessed or used in connection with another offense that results in death, the base offense level for illegal possession of that firearm is taken from the homicide subpart of the Guidelines that is most analogous to the conduct, if the resulting offense level is greater than it would be otherwise. U.S. SENTENCING GUIDELINES MANUAL § 2K2.1(c)(1) (U.S. SENTENCING COMM’N 2015). First degree murder results in an offense level of forty-three, second degree murder an offense level of thirty-eight, voluntary manslaughter an offense level of twenty-nine, and involuntary manslaughter an offense level of twelve to eighteen. Id. §§ 2A1.1, 2A1.2, 2A1.3, 2A1.4.

Valdez’ Argument at Sentencing and the Court’s Response

Despite the … undisputed facts, Valdez urged the district court not to apply the homicide cross-reference because he had not been convicted of homicide in state court, making the base offense level twenty. That would have resulted in a Guidelines range of twenty-seven to thirty-three months of imprisonment after a three-level reduction for acceptance of responsibility. See Id. Ch. 5, Pt. A. The court overruled Valdez’s objection to the cross-reference and sentenced him to the statutory maximum term of 120 months in prison. The court observed that, although it found that Valdez committed first degree murder, the Guidelines recommendation would also have exceeded the statutory maximum if Valdez had only committed second degree murder. Important to the issue raised here, the district court further explained that even if it had not used a first or second degree murder application to calculate the Guidelines range, the court would have relied on Valdez’s extensive and underrepresented criminal history to vary upwards to the maximum sentence of 120 months. (emphasis added)

 Valdez’ Allegation in a § 2255 Petition and His Lawyer’s Response

Valdez then filed a motion under 28 U.S.C. § 2255, seeking to set aside his conviction. Valdez … asserted … that his trial counsel was ineffective in substantially underestimating Valdez’s Guidelines range and therefore failing to advise Valdez that he faced a significant risk of receiving the statutory maximum term of imprisonment.

Valdez’s trial counsel submitted an affidavit stating that he ‘informed him of the guideline levels’ and the statutory maximum of ten years but admitting that he did not inform Valdez that the base offense level could be forty. 

The District Court’s Ruling

The district court denied Valdez’s § 2255 motion. As to the issue now on appeal, the district court found that Valdez understood that he faced a maximum possible sentence of 120 months, and there was no evidence that his counsel promised him a particular sentence. With that understanding, the court reasoned, Valdez could not show that he was prejudiced by ignorance of section 2K2.1(c)(1)(B)’s potential application before his decision to plead guilty.

Valdez’ Burden at the Fifth Circuit

To prevail on an ineffective assistance of counsel claim, a defendant must satisfy the test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), by showing that (1) his ‘counsel’s performance fell below an objective standard of reasonableness,’ and (2) that his counsel’s deficient performance caused him prejudice. United States v. Grammas, 376 F.3d 433, 436 (5th Cir. 2004).

Valdez’ Lawyer’s Advice and the Court’s Holding

Here, although Valdez’s counsel’s estimate of what he ‘hoped’ Valdez’s sentence would be was well below the 120 months to which Valdez was ultimately sentenced, counsel properly apprised Valdez, prior to his pleading guilty, of the maximum penalty the court could impose. And counsel also made abundantly clear to Valdez that no estimation he offered was a guarantee or a promise. It is no doubt that counsel’s estimated sentencing range was far lower than Valdez’s actual sentence. Nevertheless, we do not find any deficiency in counsel’s estimation to be unreasonable. (emphasis added)

Valdez Was Aware of What He was Facing

…Valdez was clearly aware that the maximum possible prison term was 120 months, even though he and his attorney were operating with the understanding that the Guidelines with a plea would suggest a significantly lower sentence. …Valdez and his attorney knew full well the circumstances of the charge against him, including most significantly the use of the subject firearm to murder Rodriguez, … as well as Valdez’s significant criminal history aside from this incident. It came as no surprise to the defendant or his counsel that the district court would indeed factor in all of the circumstances in determining a sentence, whether after trial or following a guilty plea. See Lee, 137 S. Ct. at 1966 (‘The decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea.’). (emphasis added)

Valdez was clearly advised—multiple times—by both the court and his counsel of the maximum sentence he could receive, such that he was ‘fully aware of his plea’s consequences.’  

Be Aware That This Analysis Will Not Apply to Every Case

This is not to say that every defendant whose attorney makes an error in estimating his Guidelines range has not suffered prejudice.  But, in this instance, Valdez has not shown that his counsel’s estimation of the applicable Guidelines range alone caused him to plead guilty. Rather, the record indicates that Valdez’s decision to plead guilty at the eleventh hour was logically motivated by the exposure of evidence which proved fatal to his affirmative defense, all but guaranteeing a conviction at trial, without any possible sentencing benefits he knew might be available with a plea of guilty.

Accordingly, the judgment of the district court is affirmed.

Judge Wiener filed a dissenting opinion in which he cited cases from the D.C., Sixth, Seventh, Ninth and Tenth Circuits in support of his conclusion that Valdez’ lawyer had not provided the effective assistance of counsel.

Judge Wiener’s opinion reads, in part, as follows:

I respectfully dissent in the belief that Valdez has satisfied both prongs of Strickland and that the majority deeply undermines the Sixth Amendment’s guarantees in contemporary criminal defense by rendering counsel’s familiarity with the Sentencing Guidelines optional when advising a client of the consequences of a guilty plea. 

Because of the importance of sentencing guidelines in contemporary criminal practice, professional standards for defense counsel repeatedly emphasize that defense counsel must be familiar with the law and procedures applicable to sentencing, including any applicable sentencing guidelines. Such standards can inform the attorney conduct that is reasonable. ‘Although they are “only guides,” … and not “inexorable commands,” … these standards may be valuable measures of the prevailing professional norms of effective representation….’

Recognizing the importance of the Guidelines in the sentencing process, several other circuit courts require defense counsel to make a minimally competent Guidelines estimate, or at least a good faith attempt. They do so, for the most part, even in the era of advisory Guidelines, and so by implication hold that defense counsel does not discharge his duty by merely informing his client of the statutory maximum sentence.

The consistent theme in the foregoing decisions is that defense counsel’s performance in making a Guidelines calculation is unreasonable under prevailing professional norms when, because of his ignorance of basic Guidelines provisions, counsel makes an error of significant magnitude. And that is precisely what happened here. (emphasis added)

At the very least, Valdez has shown enough to merit an evidentiary hearing in the district court, which he was denied. ‘A district court must hold an evidentiary hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”’ Valdez’s claim is plausible enough that he should be allowed to present evidence regarding (1) why counsel failed to advise him of the cross reference provision and (2) the benefits that counsel erroneously advised Valdez might accrue from his pleading guilty.

These are the reasons why I respectfully dissent.

My Thoughts

  • I liked Judge Wiener’s dissent and can see where another panel might have come to a different conclusion than the one that decided Valdezs appeal.
  • Valdez appeared for his plea and sentencing before United States District Judge Marina Garcia Marmolejo of the United States District Court of the Southern District of Texas.  Her plea colloquies with Valdez and her explanation as to the sentence imposed provided the basis for the panel’s holding in Valdez.
  • After all these years, I can still find some federal sentencing issues to be confusing.  My “go to” resource is Federal Sentencing Guidelines Handbook by Roger W. Haines, Jr., Frank O. Bowman, III, and J. Douglas Wilson 2019 Thomson Reuters.  I would recommend it.

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 .

Shout Outs

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Mitch Adams was appointed to represent a client in Cherokee County on a second-degree aggravated assault with a deadly weapon case. After visiting with the client and reading the deputy’s report, Mitch figured that no one involved in the case had clean hands (read: drug deal), and that the alleged victim would probably not be a very cooperative witness. Mitch filed a motion for an examining trial to find out for sure. At the hearing on the motion (2nd District Court, Cherokee County, Texas), the prosecutor announced that he’d subpoenaed two sheriff’s deputies (who were present) and two civilian witnesses, including the alleged victim, neither of whom showed up. After a brief recess during which the prosecutor tried unsuccessfully to contact his witnesses by telephone, he announced that the State would have to file a motion to dismiss the case. Mitch decided not to object. Mitch called the State’s bluff, and he was right. Congratulations!

Scott Medlock, an attorney at Edwards Law in Austin, and the lawyers at Winston & Strawn won a permanent injunction against the Texas Department of Criminal Justice’s Executive Director Bryan Collier on behalf of their clients, Laddy Curtis Valentine and Richard Elvin King. The plaintiffs are incarcerated in the Wallace Pack Unit in between College Station and Houston. The injunction alleges the defendant, TDCJ, “failed to properly protect (the plaintiffs) and other similarly situated Pack Unit inmates from the COVID-19 pandemic.” Congratulations to Medlock and the team at Winston & Strawn.

Letitia D. Quinones represented Arkema Inc. in Houston. Arkema, a chemical plant, was indicted on several charges, alleging the company endangered the lives of its employees and emergency personnel during Hurricane Harvey because the company had not properly moved or stored 350,000 gallons of organic peroxide, which is toxic once it reaches a certain temperature. Arkema executives argued they had real-time monitoring of all their chemicals. The trial was plagued with two instances of prosecutorial misconduct and ended with the DA’s Office dropping all criminal charges. Congratulations to Letitia on a hard-won case.

Current Issue: October 2020

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Features

17 | A Primer on the Texas EOCA Statute – By Ed McClees
20 | Zoom Jury Trials: The Idea Exceeds the Technology – By Jennifer Lapinski, Robert Hirschhorn, and Lisa Blue
27 | Veterans and Violence Part I: Forensic Psychological and Neuropsychological Evaluations of Veterans with Posttraumatic Stress Disorder and Traumatic Brain Injury – By John Matthew Fabian

Columns

6 | President’s Message
7 | Shout Outs
8 | Executive Officer’s Perspective
9 | Editor’s Comment
10 | Ethics and the Law
12 | Chapter and Verse
13 | Federal Corner

Departments

5 | CLE Seminars and Meetings
43 | Significant Decisions Report

President’s Message: Let Us In

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Tex. Code Crim. Pro. Art. 20.011 permits the following people inside a Texas grand jury room during proceedings: grand jurors, bailiffs, prosecutors, witnesses (while being examined or when their presence is necessary to assist the prosecutor), interpreters, stenographers and videographers.

Defense lawyers are not allowed in the room, even when a grand jury wants to hear from us. It’s time to change that.

The simplest way to do this is to amend the statute regarding persons “Who May Be Present in Grand Jury Room.” Tex. Code Crim. Pro. Art. 20.0111 The amended statute should add to the list of eligible people, an “Attorney for Defendant or Target, when requested by Grand Jury.” Target could be defined as any person or entity the Grand Jury believes may be a subject of a criminal prosecution, relating to the matter(s) of the Grand Jury’s investigation. The amendment would not permit the appearance of attorneys for fact witnesses who are neither under investigation nor threat of indictment.

There is an urgent need for grand jury reform in Texas. TCDLA and supporting groups are at the forefront of this movement. Two years ago during the Texas legislative session of 2019, the House and Senate considered versions of bills that would have required all grand jury testimony to be transcribed or video recorded, prevented repeat grand jury considerations after a case has been no-billed and a prosecutor has no new evidence (a.k.a. “grand jury shopping”), allowed witnesses and the accused to have their attorneys present during grand jury questioning, and required prosecutors to share with the grand jury evidence that is favorable to the accused. These were worthy measures, which, unfortunately, did not clear all the necessary hurdles to become law. I anticipate similar bills will be filed again in 2021.

But a bill allowing defense lawyers into the room upon request of a grand jury should be considered as a separate piece of legislation.

When I spoke on behalf of TCDLA to the Texas Judicial Commission (TJC) in February 2020, we discussed several potential reforms to the grand jury system. TJC considered ideas ranging from those contained in the aforementioned House and Senate bills, to my own suggestion of permitting examining trials at any time prior to trial. Our current system only allows examining trials before indictment,2 which means a prosecutor can sidestep a judicial inquiry into probable cause by (literally, in some instances) running to the grand jury room and securing an indictment. See State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 427 (Tex. Crim. App. 1990) (Magistrate has no authority to block or delay a prosecutor from presenting a case to a grand jury.). Because of their unchecked power to skirt examining trials, prosecutors in many Texas counties have rendered nearly all of Chapter 16 of the Code of Criminal Procedure completely useless.

But unlike our discussion of previous, unsuccessful grand jury reform measures, as well as my own call to expand the use of examining trials, I did not detect any concern in allowing defense lawyers into a grand jury room — when a Texas grand jury specifically asks for us to be there. It makes perfect sense to allow a grand jury an opportunity to hear both sides of a story. Practitioners and citizens should also consider that an indictment often has a profound effect on a person’s life. A “true bill” can destroy someone financially and emotionally. Criminal lawyers often see clients lose their jobs and get separated from their families following an indictment. Many clients are saddled with harsh and restrictive conditions of bail. Some spend months or longer in jail, awaiting trial or disposition after a grand jury returns a true bill. The public and even many in the legal profession would be shocked to learn that not only do prosecutors get to pick and choose which evidence they share with grand juries, but prosecutors are under no legal obligation to present exculpatory evidence! U.S. v. Williams, 504 U.S. 36, 45-55 (1992) (A district court may not dismiss an otherwise valid indictment because the Government failed to disclose to the grand jury “substantial exculpatory evidence” in its possession.).

When it comes to grand jury reform, I am confident of several things: First, TJC and our Texas legislators do not want innocent people to get indicted. Nor do they wish to unnecessarily tie the hands of grand jurors. Further, I am certain that our state’s best prosecutors would feel comfortable permitting defense attorneys to share information — and possibly even their entire defensive strategy — with a grand jury, in those rare cases in which a defense attorney and a grand jury want to do exactly that.3 Finally, I am convinced that a minor alteration of the rule regarding who may be present in a grand jury room will neither slow things down nor lead to injustice. If a grand jury refuses to indict a person after hearing from a defense lawyer that’s exactly the kind of information that a good prosecutor will want to know in advance of trial.

I wish to emphasize that this proposed change would not convey a new right to defendants or their attorneys. It would merely be an additional option for grand juries in rare but appropriate cases.

It is time to let defense attorneys into the grand jury room. Today I am requesting that TCDLA’s Legislative Committee and our excellent lobbyists draft a very short bill to amend the applicable statute in the manner I have suggested. I ask that the proposed bill remain separate from any other bill to avoid getting it dragged into the larger morass of grand jury reform. Finally, I am sending a copy of this column to our friends at the Texas District and County Attorney’s Association (TDCAA), including TDCAA’s President and its Executive Director. They are intelligent and reasonable people. My hope is that TDCAA will join TCDLA and other stakeholders in this narrowly targeted effort to advance the cause of justice.

Executive Officer’s Perspective: Moving Forward

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“All you need is the plan, the road map, and the courage to press on to your destination.”

—Earl Nightingale

As we continue through the COVID-19 era, things continue to change. Some days TCDLA moves the defense bar one step forward, then other days, we take two steps backward. There are so many decision-makers determining what is the “safe” route or who should be in-person in courtrooms. There are debates surrounding finances, backlogs, and what is in the best interest of the client.

TCDLA has all hands-on deck working endless hours, talking with and assisting our members, and providing motions, checklists, and other tools. Our ultimate goal is for TCDLA to be a resource to protect our members and ensure their clients’ rights are not abridged during the reopening process.

For the lawyers who are on the frontlines, our leadership, committees, staff, and TCDLA as a whole are doing everything possible.  If you are on the frontlines, you are not alone; you have TCDLA’s group power backing you – whatever the right thing is for each case and attorney. TCDLA supports you .

As we get ready for the 87th Texas Legislative Session, our TCDLA Lobbyists and Legislative Committee will continue to lobby progressive reform for criminal justice. They will keep our members informed of bills filed or any other pertinent information. This will be an unprecedented legislature due to limited access and the ever-changing rules. It is also unknown, other than the budget, what the priorities will be and what will be discussed.

TCDLA would like to thank Michael Mowla for his past years of service for the Significant Decisions Report. He will be missed, and I look forward to seeing him in person again, along with everyone else.

We are missing our face-to-face interactions at seminars and meetings. Till our roads cross again, may your destination be a peaceful one.

Editor’s Comment: A Season of Change

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It is with sadness and understanding that I must inform you that TCDLA’s beloved Michael Mowla has resigned his post as SDR contributor and editor after three years of contributions. I originally tapped him for the job knowing that he would raise the level of the Voice. We all know Michael has been and continues to be tireless in his efforts to help us all be a little smarter legally. He was happy to help, answer questions, and point us all in the right direction. He provided stellar (and comical) SDRs. We are grateful for his service.

Please join me in welcoming our new SDR contributor and editor, Kyle Therrian. Kyle has been extremely active – especially lately – in TCDLA. He has been a part of COVID-19 Response Task Force, Amicus, Memo Bank, Strike Force, and Nominations committees and TCDLEI Board. Like me, he must not sleep much. I was thrilled he agreed to step into this very formidable role. You will find the SDR remains very readable and very insightful. Kyle is more than capable of keeping us up to speed on significant decisions.

You will find this edition of the Voice dense with valuable insight and information as we begin to return to “normalish.” There are none better to have tested out the new frontier of Zoom trials than Jennifer Lapinski, Robert Hirschhorn, and Lisa Blue. They participated in the first two Zoom trials from jury selection through verdict. Should there be any tendency to proceed with a Zoom jury trial, this article should cause us all to put on the brakes, and to resist any effort to be put to trial via Zoom or any other electronic means. There is absolutely no benefit that will come to our client with a Zoom trial.

Ed McClees explains the difficult concept of “combinations” as related to engaging in organized criminal activity (EOCA) cases in his article “When it Takes More than Two to Tango.” We all know EOCA can be really tough, but Mr. McClees helps simplify the complexity of one of the main issues in these cases. He also reminds us to be sure to check that the predicate offense alleged in the indictment is one of the enumerated offenses listed in the statute since not every criminal offense is a qualifying predicate offense for EOCA.

Dr. John Fabian, in part one of a two-part article, provides a richly sourced article that suggests our military clients, precisely because of their traumatic experiences serving in the military, may be more predisposed to commit certain violent acts. While these experiences may not be exculpatory in most cases, it is most certainly mitigating in every single case, and now thanks to Dr. Fabian, there is supporting literature on the very topic. Let’s always be sure to fully explore the backgrounds of all of our clients, especially those who have given of themselves at one time in service to us.

Finally, my deepest appreciation and thanks to assistant editors Jeep Darnell and Clay Steadman – especially during this time – for all their work in helping edit the Voice and bring you the best product possible. As always, please let us know if you have any feedback – good, bad, or otherwise – to help improve the quality of the Voice for all our readers.

Be sure to vote, love your families, stay safe, and be well.

As we went to print, news that Justice Ruth Bader Ginsburg had died at the age of 87 filled the media. Quite simply, her legacy is unrivaled, and we would all do to heed her advice: 

“Fight for the things that you care about, but do it in a way that will lead others to join you.”
 
  And let’s all be sure to vote and encourage others to, as well.

Chapter & Verse: What Does “Speedy Trial” Mean Anyhow?

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As I strike out on this venture to read through the TCCP with all of you, my darling colleagues, I realize now, in this second humble installment, what a huge elephant I have promised to eat. For example, the next section I want to dive into is Art. 1.05. “Rights of the Accused.” Oh gosh. That’s a lot. Even in Texas, apparently, the accused have a lot of rights. Even the first sentence has a lot to unpack: “In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury.” We have to pick something to focus on here. I pick the speedy part.

Speedy trials have come to mean something entirely different in Texas than they did when they were first invented. Back in the Day (and by “day” I mean 1166 AD, specifically the Assize of Clarendon), trials had to be held within a few days of the person being arrested. To be totally fair, “trials” were also a bit easier to organize back then, requiring mostly a large vat of boiling water into which the hand of the accused person was plunged, then wrapped in bandages for an additional three days and then examined by a priest who determined if the hand was infected or not. If the wounds were infected, the person was guilty. This is about as fair a system as has ever been invented and, frankly, I’d probably take my chances with the vat of boiling water if I was ever given the option of that or to sit in the county jail for 20 months or so months awaiting trial, but I digress.

Texas actually used to have what most other states have, which is a speedy trial act that required the state to be ready for trial within a set amount of time after “the commencement of a criminal case.” In Texas, this meant that the state had 120 days to get ready for a felony, barring exceptional circumstances. In my humble experience in other jurisdictions with similarly strict day requirements, there are always exceptional circumstances. In Meshell v. State, 739 S.W.2d 246, the CCA declared that the Texas Speedy Trial Act violated the separation of powers doctrine, and that the legislature couldn’t tell the DA how long it would take to get ready for trial. That’s disappointing, especially for Meshell himself, whose lawyers didn’t argue that his case was a federal or state constitutional speedy trial violation. So, when the act was struck down, he hadn’t preserved any error for review and ended up with a conviction (lesson: OMG CONSTITUTIONALIZE YOUR OBJECTIONS).

So now where does that leave us? What do we get when we get a speedy trial? Answer: Not much. We get SCOTUS’s Barker v. Wingo factors for the court to consider once the delay gets long enough to qualify as “presumptively prejudicial” (the length of delay, reason for the delay, assertion of the right, and prejudice to the accused). How long is long enough to be considered “presumptively prejudicial?” Cantu v. State, 253 S.W. 3d 273, tells us that it’s more than four months but definitely 17 months. Everything else is up for interpretation.

So, much like life itself, we are challenged to sift through a morass of meaninglessness and come up with meaning for ourselves. I would contend that it is good practice in appropriate cases to: (1) Demand in writing a speedy trial at the beginning of a case; (2) refuse to agree to resets – make the state request it, write on the reset that you’re signing as to service only, not agreeing, etc; (3) flesh out your prejudice (yeah, it’s prejudicial if a material witness dies, but you can’t show what they would have testified to if you never interviewed them); and (4) move to dismiss for speedy trial violations.