Chief Executive Officer’s Perspective: July/August 2021

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In the past 16 years I have learned so much about the history of TCDLA. I remember the first year I started I had the opportunity to sit with Judge Frank Malone, the first TCDLA president, to work on a PowerPoint project. We spent a number of hours together. I was so intrigued about criminal defense, its checkered history, and the stories he told me stick with me to this day. Over the years I’ve had the opportunity to sit and listen to the stories of many of our gentle giants, who gracefully and humbly shared with me their struggles and successes in the fight for criminal defense.

Many of our giants are not with us today, but who can forget their contributions—Kelly Pace’s smile and energetic pep talks bright and early, Scrappy Holmes’ late-night stories. And I’ll always cherish Weldon Holcomb coming into the office, signing a book, and explaining to me what it was like to be a defense attorney decades ago. To this day we have Weldon’s first gavel memorialized in a shadow box hanging in the office. Many other pictures grace our home office of the charter members who first met in Dallas in 1971 to found TCDLA, if you ever have the opportunity to come and visit.

To honor our leaders, we also began taking an annual presidents picture at Rusty, which we hang in the office to celebrate anew those who sacrificed not just one year but six to work on the officer chain. These now join the more than 50 presidents adorning our wall. Each day I walk by and I look at these people, some I’ve gotten to know very well—helping me grow professionally and mentoring me over the years. The institutional knowledge of our past presidents and board members helps us all in so many ways that one can only understand when you yourself serve as an active leader in the association.

Once a small organization of some 60 attorneys, today we number close to 3,400, training more than 5,000 attorneys each year. With our grants, we continue to expand our outreach to develop experienced criminal defense lawyers. Our efforts in the legislature have also grown, assuming more importance every year. But the continued success of our association comes from relying not only on our leaders but also on our members—who contribute by serving on a committee, writing a Voice article, testifying about legislation, helping a listserve colleague, giving a referral, or assisting with all the tools at their disposal at seminars.

In my years as witness to the growth of our organization, I myself have been given so many opportunities, been exposed to truths I would never have otherwise experienced—such as understanding what actual innocence means and what it means to represent somebody who needs a fair defense. These are things I never would’ve been exposed to short of working in a criminal defense field. Most of all, I’ve been given a chance to be part of the friendship bond. I have made some truly amazing friends in this organization.

When I looked at the video put together of all of our pictures collected over the last 50 years, I was struck by the heartfelt camaraderie: simply overwhelming. I am so proud to be part of an organization with people who not only care about one another but who will also fight alongside each other. The Texas Criminal Defense Lawyers Association is a singular organization, one we all should be proud to belong to. I look forward to celebrating another decade—no! 50 years!—and making it to the centennial celebration. Cheers to all of our members and criminal defense attorneys who are part of the organization’s past, present, and future.

Editor’s Comment: July/August 2021

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I’m old enough to know that I’m still too young to get to toot my own horn regarding my wins and important cases.  There are far too many lawyers who have earned the right to do that in the pages that follow this article. Those men and women have spent far longer than I have changing the face of criminal defense in this State and bettering the lives of countless defendants. I am, however, old enough to tell everyone how important TCDLA is to me. My best friends belong to this Organization, and I can’t tell you how lucky I am to be able to say that. I’ll always remember Clay Steadman pushing me to get more involved; John Hunter Smith hearing me present the first time at a CLE and telling me I needed to keep speaking while immediately recruiting me to do so; David Moore asking me to serve and even chair a few committees during his Presidency; Heather Barbieri, Lance Evans, and Reagan Wynn all taking the time to help me learn as much as I could at the TCDLA Texas Criminal Trial College; Betty Blackwell and Clay asking me to speak in Austin at the seminar they were moderating (Clay told me I was in the big leagues and I better not f*ck this up and I better not say f*ck either); Sarah Roland asking me to serve as one of her co Vice-Editors; my good friends Sarah and Rusty Gunter recruiting me to come speak in Lubbock just so I could be introduced with my testicle case (don’t ask); Kerri Donica asking me to serve on her COVID-19 Task Force and fighting the good fight all over Texas for an entire year with one of the best groups of lawyers I’ve ever been around; and many other unforgettable times. My time in TCDLA has made me certain that I am exactly where I am supposed to be. 

For those that don’t know this about me, I went to college wanting to be anything but a lawyer. Specifically, a lawyer in Texas. More specifically, a criminal defense lawyer in Texas. Even more specifically, in El Paso, Texas.  My dad, Jim, is the best lawyer I know and I just didn’t want to have to work as hard as he has for as long I’ve been alive. But during college, it only took one science class for me to figure out I wasn’t going to be a doctor, so I started working towards law school.  I went on to attend the University of Oklahoma College of Law, never intending to practice criminal defense, and certainly not criminal defense in Texas, and absolutely not criminal defense in El Paso. My first day of Constitutional Law class set me straight, though; I was going to take a side in criminal law and that side was on the side of the good guys. Still, I sure as hell wasn’t coming back to Texas or to El Paso.  It turns out God had other plans and, for the last 10 years, I’ve been working alongside my dad, as a criminal defense lawyer, in Texas, working too hard but fighting the good fight. So, in addition to all of the friends I’ve mentioned, and all of those I haven’t, I have my dad, the person I’ve looked up to forever, to thank for getting me into what consists of the greatest group of people I’ve ever known. If it weren’t for him, I wouldn’t have known after one day of law school what I wanted to do for the rest of my life and I wouldn’t be who I am today.  He’s also the person who told me I had to join TCDLA because it was (and is) a giant organization of people who work too hard fighting the good fight every single day. That’s why all of the people I’ve mentioned are among my best friends. They understand what I do because it is what we all do on a daily basis, fighting the un-winnable fights because it’s the right thing to do (or maybe we’re all nuts). 

Be safe.


50 Years of Editors

Sarah Roland…………………………2016-2021

Michael Gross……………………….2013-2016

Greg Westfall…………………………2009-2013

Emmett Harris………………………2005-2009

David Richards……………………..2004-2006

John Carroll…………………………..2001-2004

D’Ann Johnson……………………..1999-2000

Suzanne Donovan…………………………..1998

William P. Allison…………………1995-1997

Jim Skelton……………………………1993-1995

Kerry P. Fitzgerald…………………1984-1994

Stanley Weinberg…………………..1981-1983

Clifton Holmes………………………1977-1981

F.R. “Buck” Files, Jr……………………….1976

Harry Lee Hudspeth………………1974-1975

Emmett Colvin……………………..1973-1974

Wesley H. Hocker………………………….1972

Ethics and the Law: July/August 2021

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I became aware of TCDLA in 1974 while I was a student at South Texas College of Law. I joined as a student member. I was assigned to intern with Jim Skelton. Jim and I met, and he let me start working on cases. One case was a robbery case where a woman, our client, had robbed a grocery store. I had read in the Voice for Defense about mitigating evidence being presented to a jury. I showed the article to Jim, and we immediately started preparing for the punishment part of the trial. We put on several witnesses to testify about our client and her background. We put on evidence of her family history. We showed that her husband had abandoned her and three small children, and when she robbed the store she took food, diapers, and other household goods. The jury came back very soon, and our client was granted a short probation – thanks to the article in the Voice. After that my job on all cases was to investigate and prepare mitigating evidence. When I first met Jim Skelton, he was defending David Owen Brooks who was a defendant in the largest mass murder case in U.S. history. After being involved in that case and helping Jim, I knew my calling was defending citizens accused of crimes.

Jim and I were appointed to represent a woman charged with capital murder. The case had been reversed and we did the retrial. She was found guilty again and sentenced to death. After many years and finally at a writ hearing in federal court, she was given a new trial. Rather than go to trial again the state allowed her to plead to life. A documentary was made about the case. When I went to prison to see her, she started crying and said thanks to my testimony in the federal writ hearing – hours away from her execution – her life was spared. We both cried together, and I felt part of my mission in life was fulfilled. She was released from prison a few months ago and called me on the phone to thank me again and talk.

TCDLA is very important to me as it allows me to try and help my fellow lawyers by founding the ethics committee and ethics hotline.

Chapter & Verse: July/August 2021

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

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

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

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

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

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…

Federal Corner: Thomas v. Lumpkin

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Capital federal habeas proceedings, or the civil procedure and law governing challenges to state capital sentences in federal court, is a narrow area of practice. These cases often turn on complex procedural issues and federal courts apply a standard of review that is highly deferential to state courts. As a result, federal habeas relief from a death sentence is vanishingly rare. In the broader field of criminal defense, however, this small number of cases offers a rare glimpse into how a single remark in state court or single sentence in a state court opinion can have outsized importance in federal court.

Federal post-conviction review of Texas sentences of death is governed by Chapter 153 of the Antiterrorism and Effective Death Penalty Act of 1996, known as AEDPA. AEDPA was enacted with the interests of federalism and finality as its driving force. Chapter 153 was accordingly designed to narrowly limit federal courts’ review of state court convictions and sentences of death. For example, 28 U.S.C. § 2254(d) reads:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim–

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

In other words, where a state court has determined that a claim does not warrant relief from a petitioner’s capital conviction and sentence, a federal court may not come to a different decision unless a petitioner can satisfy one of two very narrow exceptions: either that the state court unreasonably (not just incorrectly) applied an on-point Supreme Court decision or that the state court made an unreasonable (not just incorrect) factual finding.

Section 2254 imposes a notoriously high bar on capital petitioners and will almost always frustrate merits review by a federal court even where a claim goes to the very reliability of a sentence of death. The Fifth Circuit’s recent decision in Thomas v. Lumpkin, 995 F.3d 432 (5th Cir. 2021), illustrates how Section 2254 operates  to prevent a federal court from granting relief from a sentence of death where the jury was tainted by racial bias. In federal court, Mr. Thomas sought to challenges his sentence, in part, on the ground that the jury that sentenced him to death was tainted by racial bias. The majority briefly summarized:

In March 2005, an all-white jury found Thomas guilty of capital murder and sentenced him to death.

The dissent further explained:

An all-white jury found Thomas, a black man, guilty of capital murder and sentenced him to death for killing his wife, a white woman, and two children, including their interracial child. That jury included three jurors who acknowledged bias against interracial marriage.

The Fifth Circuit’s majority opinion summarized Mr. Thomas’s briefing on this issue:

Thomas emphasizes to this court that “his jury included three jurors who admitted that they harbored bias against ‘people of different racial backgrounds marrying and/or having children.’” As we previously discussed, attitudes about interracial marriage were explored because the defendant Thomas, who is a black man, married Laura Christine Boren, a white woman. Though Thomas killed his wife and their own interracial child, Andre Jr., the murder for which he was tried was that of Leyha Marie, his wife’s child by her later relationship. The briefing does not indicate the race of that victim, nor does it raise any issues about race having affected the trial beyond juror attitudes about an interracial marriage and the couple having a child together.

After block-quoting the sections from the jury questionnaire about prospective jurors’ views on interracial marriage, the Fifth Circuit examined the three contested jurors’ answers to those questions and in voir dire. The Fifth Circuit observed that “only one” of the three jurors at issue had answered that:

[H]e “vigorously oppose[d] people of different racial backgrounds marrying and/or having children and [was] not afraid to say so.” [He] was the only one of those three jurors who was questioned on voir dire specifically about racial attitudes. Counsel asked how [he] would feel about sitting on a capital case where the black male defendant was accused of killing his wife, a white female. He answered,

Well, I think—I think it’s wrong to have those relationships, my view, but we are all human beings and God made every one of us. And, you know, as far as—I don’t care if it is white/white, black/black, that don’t matter to me. If you’ve done it, you are a human being, you have got to own up to your responsibility.

  1. So, the color of anyone’s skin would not have any impact or bearing upon your deliberations?
  2. No, not according to that, no.
  3. Okay.
  4. Not whether they were guilty or innocent.

Defense counsel then asked again whether [the juror] would take into account the defendant’s or victim’s race in deciding whether to impose the death penalty. [He] answered: “No, I wouldn’t judge a man for murder or something like that according to something like that, no, I would not.”

As to the other two contested jurors, the Court summarized their answers:

Another juror…checked the option on the questionnaire that his church’s position was that there “should not be” interracial marriage, and [he] indicated he agreed with that view. In response to Question 105, [he] checked the option that he “oppose[d] people of different racial backgrounds marrying and/or having children, but [he] tr[ied] to keep [his] feelings to [himself].” [He] was not specifically questioned about these answers. When the court asked him during voir dire if he could “make up [his] mind solely upon the evidence” presented, [he] answered that he could.

The final relevant juror . . . indicated that her church or spiritual affiliation did not have a position on interracial marriage, and she added: “It is not the church[’s] place to have a position on matters such as this.” Like [the second juror], she checked the option on Question 105 that she opposed interracial marriage and such couples having children but tried to keep those feelings to herself. She added her own explanation: “I think it is harmful for the children involved because they do not have a specific race to belong to.” [She] was not questioned about her answers at voir dire. The court asked whether she could assess the case based only on the evidence presented in the courtroom, and she stated that she could.

A majority of the panel proceeded with applying Section 2254(d) to Mr. Thomas’s claim of racial bias. The first question the panel majority addressed was how Mr. Thomas had raised his claim of racial bias in state court:

In order to understand the claims about juror racial bias presented in state court, we examine the state habeas application. Counsel filed 44 claims for relief in state court. The only one relevant for jury bias itself (as opposed to ineffectiveness of counsel on the issue) was Claim 20, which stated that the “presence of jurors opposed to interracial relationships deprived Mr. Thomas of a fair trial.” Thomas argued that the presence of racially biased jurors “raises overwhelming concerns that significant racial bias affected the decision-making process in Mr. Thomas’s capital trial.” He also contended it was “highly likely that the views of the four impaneled jurors who opposed interracial marriage prevented or substantially impaired ‘the performance of [their] duties as [] juror[s] in accordance with [their] instructions and [their] oath.’”

In accordance with Section 2254(d), the Court then identified the state court’s adjudication of that claim:

The only relevant fact findings by the state habeas court were these:

All members of Mr. Thomas’s jury were white.

There is no evidence that the jury’s decision was racially motivated.

No objection was ever made by the Applicant to the purported racial bias of any juror that was seated.

There were no legal conclusions about jury racial bias other than as to the effectiveness of counsel.

(emphasis added)

Because Section 2254(d) requires a reviewing federal court to determine, as the next step in its analysis, whether a state court’s adjudication was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” the panel summarized the relevant Supreme Court case law:

We begin our analysis of the law with essential points: “blatant racial prejudice is antithetical to the functioning of the jury system.” Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 871 (2017). It is undeniable “that discrimination on the basis of race, ‘odious in all aspects, is especially pernicious in the administration of justice.’” Id. at 868 (quoting Rose v. Mitchell, 443 U.S. 545, 555 (1979)). Any “defendant has the right to an impartial jury that can view him without racial animus, which so long has distorted our system of criminal justice.” Georgia v. McCollum, 505 U.S. 42, 58 (1992). If a defendant is denied the right to an impartial decisionmaker, regardless of the nature of the bias, any subsequent conviction is tainted with constitutional infirmity. See Virgil [v. Dretke], 446 F.3d [598] at 607 [(5th Cir. 1996)]. Any juror who “the defendant has specific reason to believe would be incapable of confronting and suppressing their racism” should be removed from the jury. See McCollum, 505 U.S. at 58. If a juror should have been removed for cause, then seating that juror requires reversal. United States v. Martinez-Salazar, 528 U.S. 304, 316 (2000).

A defendant’s right to an impartial jury, though fundamental, does not mean that jurors who have preconceived notions cannot be validly seated. To the contrary, as the Supreme Court has instructed:

To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

Irvin v. Dowd, 366 U.S. 717, 723 (1961).

After identifying the relevant Supreme Court case law, the Court again turned its attention to how Mr. Thomas’s claim of racial bias by the jury was dealt with by the state court:

Thomas presented his argument on this claim to the state habeas court in four short paragraphs. Quoting Wainwright v. Witt, 469 U.S. 412, 424 (1985), he argued that it was “likely that the views of the four impaneled jurors who opposed interracial marriage prevented or substantially impaired ‘the performance of [their] duties as a juror in accordance with [their] instructions and [their] oath.”

In response to this argument, the state court found “[t]here is no evidence that the jury’s decision was racially motivated.” That finding is not directly on point as to whether any juror with a relevant bias that made him or her unable to be impartial was seated on the jury.

Despite conceding that “we can identify no state-court findings directly on the point of whether a biased juror was seated,” the panel continued on with its analysis of whether the state court’s adjudication of Mr. Thomas’s claim was unreasonable:

Indeed, “determining whether a state court’s decision resulted from an unreasonable . . . factual conclusion does not require that there be an opinion from the state court explaining the state court’s reasoning.” Richter, 562 U.S. at 98. Rather, a federal court will deny habeas relief “if there was a reasonable justification for the state court’s decision” in the record. Id. at 109.

The issue before us, then, is whether it was “objectively unreasonable” for the state habeas court to reject Thomas’s claim that his right to an impartial jury was violated. See Miller, 420 F.3d at 360. In reviewing whether the state court erred when it did not find that someone with disqualifying racial attitudes was seated as a juror, we should consider any “reasonable justification for the state court’s decision.” See Richter, 562 U.S. at 109. A necessary implicit finding within the state court’s explicit finding is that no juror would base his decision on race rather than on the evidence presented. To rephrase, any bias of a juror could be set aside in determining guilt or a punishment. We now turn to determine whether that finding was “objectively unreasonable.” See Miller, 420 F.3d at 360.

Here, the majority emphasized the first contested juror’s answer in voir dire that he could set aside his expressly racist views:

In evaluating the state habeas court’s finding and any possible reasonable justifications, we consider the answers [he] gave during voir dire. The questioning did not cause [him] to retreat on his beliefs about interracial marriage. Still, when asked if “the color of anyone’s skin would . . . have any impact or bearing upon [his] deliberations,” [he] responded, “No, not according to that, no.” He “wouldn’t judge a man for murder or something like that according to something like [race], no, I would not.” [He] also said that he didn’t “care if it was white/white, black/black, that don’t matter.”

On that record, the state court found “no evidence that the jury’s decision was racially motivated.” We consider it a reasonable understanding of that finding that [his] answers, if accepted as true, which the state habeas court was entitled to do, were clear that his moral judgment would not affect his fact finding. (emphasis added)

The majority accordingly concluded: Thomas is not entitled to relief on the basis that the state court improperly resolved the claim that any partial jurors were seated. Section 2254(d), along with the rest of AEPDA, commands that federal courts defer to state courts’ adjudication on the merits of any claim also raised in federal court. But a state court’s opinion may not always squarely address, let alone resolve, the serious constitutional concerns about the reliability of a petitioner’s capital conviction and sentence of death. As the Thomas decision illustrates, however, one juror’s remark and one phrase in the state court’s opinion may be sufficient for a federal court to find that it will not disturb a sentence of death obtained by a jury tainted by racism.

Current Issue: June 2021

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Features

9 | Recover 101, an Introduction to “Working” a 12-Step Program – By Rick Wardroup
19 | From the Hooterville Courthouse – By Tip Hargrove
21 | All You Need to Know: A Texas License to Carry Holder’s Rights While Traveling to Another State – By Hiram McBeth
23 | Media Relations Committee: Who We Are, What We Do, and Why it’s Important – By Lisa Greenberg
24 | Biases. We All Have Them. What Are Yours? – By Michelle Ochoa
27 | Tips for Avoiding Lawyer Burnout – By Dean Watts

Columns

5 | President’s Message
6 | Executive Officer’s Perspective
7 | Editor’s Comment
8 | Ethics and the Law
11 | Chapter & Verse
12 | Federal Corner
14 | From the Front Porch
28 | Shout Outs

Departments

4 | CLE Seminars and Meetings
33 | Significant Decisions Report

President’s Message: Michael C. Gross

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I am humbled and honored to have been selected to work with all TCDLA members as your incoming TCDLA President for this upcoming year. With all of us working together, we can make this a great year for our outstanding organization. Thanks to Kerri Anderson Donica and Grant Scheiner for your hard work and dedication the last two years in guiding us through the pandemic challenges. What wonderful leadership and fortitude. We have an excellent and resilient organization with members from El Paso to Texarkana and from Booker to Brownsville who continue to amaze me with their dedication to TCDLA even during the pandemic. TCDLA is the largest state criminal defense organization in the nation and continues to lead the way. Our 3,200 members are among the best criminal defense attorneys in the nation. Melissa Schank has been superb as the TCDLA Executive Director, and Melissa and her staff continue to amaze me at how well they keep our more than 40 CLE seminars running smoothly throughout the year. I want to thank all the hard-working TCDLA members who have agreed to act as committee chairs this coming year. We could not continue to provide our members with helpful and useful assistance without our committee chairs and their committee members. Each of our committees works extremely hard and are superstars and deserve our admiration and respect. For instance, as the courts begin to further open up for criminal jury trials, TCDLA will be there for our members as new issues arise and must be addressed to protect the citizen accused. I am always in awe, for instance, at the tireless work from the COVID-19 Response Task Force Committee chairs – Allison Clayton and Nicole DeBorde Hochglaube (and Clay Steadman who paved the way forward as the first chair of this committee). It is amazing to see an email from Allison or Nicole that was sent at 4:00 a.m. for an important issue that arose and needed a quick resolution for our TCDLA members.

Our TCDLA committees will continue to be a vital life line for our members in the coming year. Just last week, I was in a federal criminal jury trial here in San Antonio which used three court rooms and had remote access in the courthouse basement for the public present in the courthouse to watch the proceedings. The public was not allowed in the courtroom where the trial was proceeding because the jury was scattered throughout the gallery during trial rather than in the jury box. Key issues will continue to arise in these jury trials such as the Sixth Amendment right to a public trial and right to a fair cross section representation of the community. While jury trials become more prevalent thereby raising important issues for our members, the Texas legislature continues to address issues that are also important for our members and the citizen accused. I personally witnessed last month the wonderful dedication of our TCDLA lobbyists – Allen Place, Shea Place, and David Gonzalez. These three outstanding individuals were at the State capitol until after 3:00 a.m. on a Tuesday night ensuring that TCDLA interests and the interests of the citizen accused were properly represented in testimony before the Texas House Criminal Jurisprudence Committee regarding stringent bail legislation that had been proposed. What an outstanding job.

With the assistance of our members and committees and staff, I am confident that TCDLA will continue to lead the way for our members to address any concerns that will develop in the coming year. All of this is possible because of how we work together for TCDLA. I thank all of you for this opportunity to work with you and to serve you this coming year as your TCDLA President.

Executive Officer’s Perspective: The End… & a New Beginning

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“And in the end, it’s not the years in your life that count.
  It’s the life in your years.”

—Abraham Lincoln

It seems like only a pandemic ago we were here at this exact moment. We come to an end of Grant Scheiner’s presidency of TCDLA and pass the gavel on to Michael Gross. With this, we also thank our board members who have completed their terms and welcome the new members. We also lose Sarah Roland, our Voice editor of the past five years—but gain her as a board member. The Voice editor is a voluntary position requiring 15 to 25 hours a week, editing, gathering stories, communicating with staff and editors. It was such a pleasure to work with Sarah; she will be sorely missed. Jeep Darnell from El Paso, a member of the editorial committee with years of experience, will be taking over the position.

In the past year, our Executive Committee has met virtually at least once a month—for at least 2 hours at a time, if not more—to stay ahead of issues impacting criminal defense lawyers. For all our committees, this year has been quite busy, somewhat unexpectedly given social-distancing guidelines. More than 32 committees met monthly and developed aggressive to-do lists, which members have worked hard to fulfill. The COVID Task Force, for one, proved relentless in defending our members’ right to be safe while representing their clients. The Ethics Committee fielded numerous calls every week. Overall, this year could only be described a success, with everyone working so close together and achieving many great things! Without all of our volunteers, this would not have been possible!

Now we turn to the anxiously awaited Rusty. Whether in person or live-streamed, it is TCDLA’s signature event—the most prominent seminar specifically designed for criminal defense attorneys. And this year, we will be celebrating TCDLA’s 50th anniversary! For Rusty, as we will be doing moving forward, we will continue monitoring CDC Guidelines to ensure the safety of all concerned. Planning must remain fluid, so we hope everyone remains patient and we learn together.

We have tentatively scheduled the next year of TCDLA and CDLP programs. We will continue to operate under a rather conservative budget, dealing with the unforeseen as we begin opening back up. To that end, we have worked hand in hand with David Guinn, our treasurer, and huddled with CDLP Chair Adam Kobs. You can view the resulting list of upcoming events on our website. We will also start offering all TCDLA seminars in their entirety on demand. If you attend a TCDLA seminar, you will be able to view presentations afterwards in the event you missed something. We will also be reorganizing the video section on the website.

Following Rusty, stay tuned for our Trainer for Trainers, Battling the Resistance, and TCDLA/CDLP/TCDLEI Orientation in South Padre Island July 7–10. There we will celebrate the change in leadership with the Grosses in an event that welcomes all families. Perhaps in Padre, incoming President Michael Gross might provide a hint of the lineup for his upcoming President’s Trip to New Orleans February 9–13, 2022. Already on tap (in addition to excellent company, food, and libations) is the seminar “White Collar—Federal and State.” So some Jazz and CLE to look forward to next spring! On to the new year; here we come!

Editor’s Comment: Filling Big Shoes

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I’ve always loved history, enough even to major in history in college. From that love has grown a tendency to look back to learn from those who have come before me and to gain a reverence for whatever new task, job, assignment, or position I undertake. As the new Editor of The Voice, I didn’t change my stripes but instead wanted to find out who had held this position before me in the last almost-50 years of TCDLA. Sometimes not knowing the answer is probably more comforting than knowing the answer because there are times where you don’t want to know the size of the shoes you are trying to fill. A veritable Who’s Who of criminal defense lawyers in Texas have undertaken to make sure that the materials provided in The Voice have been up to snuff during the last almost-50 years. To name a few:

Emmett Colvin
Harry Lee Hudspeth (later United States District Judge)
Buck Files
Scrappy Holmes
Stanley Weinberg (a good Sooner, like myself)
Emmett Harris
Greg Westfall
Michael Gross
Sarah Roland

There are many more, too many to put in one article, but I can’t help but think, “Wow, what the hell am I doing getting this gig?” These folks have each had such an instrumental position in making TCDLA the wonderful organization that it is today. I count on this list alone a number of friends and a lot of heroes. I don’t know that I’ll live up to being a federal judge or Scrappy Holmes, but maybe knowing the size of the shoes you’re supposed to wear makes you feel the responsibility to fill ‘em. I think I owe it to our wonderful Organization and the previous Editors to do my best to continue the tradition of not only making The Voice a high-quality publication for each TCDLA member and every Judge in the State, but also to strive to be as zealous an advocate as each of my predecessors. Now, I’m off to put on extra socks to fill the shoes.