Editor’s Comment: Goose, Meet Gander

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

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

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

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

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

Be safe.

Ethics and the Law: New Rule for Clients with Diminished Capacity

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Beginning July 1, 2021, a new Rule of the Texas Disciplinary Rules of Professional Conduct went into effect, Rule 1.16. It is intended to address the ethical problems of representing persons with “diminished capacity” a term that includes persons with mental impairment and intellectual disability. The central problem for lawyers has been the underlying assumption of the ethical rules that the client is mentally sound, an assumption often refuted by the reality of criminal defense lawyers often called upon to counsel and represent clients suffering from a mental disability.

Both the Code and the ethical rules are relatively clear about how to represent a person who is incompetent to stand trial. But the Rules have offered no guidance to lawyers about how to represent a client who is barely competent, but whose judgment is impaired due to illness. In Indiana v. Edwards, 554 U.S. 164, 173 (2008), the Supreme Court called such a client the “gray-area defendant,” legally competent to stand trial but who “lacks the mental capacity to conduct his trial defense unless represented.” Ethically, it has been an ethical no-man’s land.

The problem arises in those areas that award the client autonomy in criminal cases. Rule 1.02 specifically commands that the defense lawyer “shall abide by a client’s decisions” regarding the “plea to be entered,” the waiver of the right to trial by jury, and the decision whether to testify. Moreover, the lawyer cannot, even if it is sound strategy, concede guilt to a jury over the client’s objection. McCoy v. Louisiana, 138 S. Ct. 1500 (2018).

Without guidance, some attorneys decided to treat client decisions like any other, ignoring the impact of an illness on judgment, and dutifully obeying the ethical command even as the client was committing legal suicide. Others went the other direction, with an attitude of benevolent condescension, manipulating the events and the client as a countermeasure against his client’s illness, even against his will.

Rule 1.16 now provides guidance and expressly empowers the lawyer if certain preconditions are met. First, the defense lawyer must first reasonably believe that the client does in fact have diminished capacity due to mental illness. Secondly, this incapacity must render the client unable to “adequately act” in his own interest. Finally, the client’s diminished capacity has put him “at risk of substantial physical, financial, or other harm unless action is taken.”

If these preconditions are met, then the attorney is permitted to take “reasonably necessary protective action.” “Protective action” is intentionally broad to include the various courses of action that might arise. The Rule helpfully specifies that the lawyer may consult with “individuals or entities that have the ability to take action to protect the client.” The lawyer that has been hesitant to speak to others can be reassured that reaching out to those who care about the client is permitted under the Rules. When enlisting other people, the lawyer is directed by the Commentary to “look to the client, not the family members or other persons, to make decisions on the client’s behalf.”

The Rule also expressly addresses the attorney-client privilege issue: “the lawyer may disclose the client’s confidential information to the extent the lawyer reasonably believes is necessary to protect the client’s interests.” The Commentary directs the lawyer to consider the client’s consent before disclosing confidential information under these circumstances. “Only in compelling cases should the lawyer disclose confidential client information if the client has expressly refused to consent. The authority of a lawyer to disclose confidential client information to protect the interests of the client is limited and extends no further than is reasonably necessary to facilitate protective action.”

This Rule was debated and the concerns of some members of the bar should be noted. The Legal Director of Disability Rights worried about the Rule’s impact on clients who expected their lawyer to “be their advocate, not their protector.” Another objection was that the Rule invites lawyers “to make untrained judgments about a client’s mental state with no real guidance.” Time will reveal the wisdom of this Rule, but in the meantime, the criminal defense lawyer does address a frequent dilemma in our profession with some guidance, however minimal.

Chapter & Verse: History of Hearsay

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My Dear and Beloved Reader, I need a break. Yes, it’s true. Even indefatigable, un-shut-upable columnists like yours truly get fatigued from time to time. Having this giant copy of the Code of Criminal Procedure strapped to my back the past year of writing Chapter and Verse has done it to me. Sometimes a change is as good as a rest, they say, and so that’s what I seek: change. For these next few columns, I want to switch focus from digging through the CCP to digging through the ROE. Yes, you heard me right, dear friends: first, we’re going to spend a while getting cuddly with Article VIII –  Hearsay. Oh, don’t make that face. Deep breaths, we can do this… deep breaths.

We should start in the beginning of this story – which, in the case and of all things evidentiary – is dear John Wigmore.  Wigmore, if you don’t remember,  was a law professor who spent more than ten years “in monastic study” to produce a massive sketch of the evidentiary landscape. In a 1904 Harvard Law Review article, Wigmore alerts us to the recency of the hearsay doctrine in Anglo-American law. He traced it as  something that began in back to the 1500s, but clarifies that it was not really nailed down until the 1700s.1

I know you don’t believe me, dear reader, but the way that this worked out is actually super interesting and I think will illuminate the path for us in the dark nights to come. Historically, before about 1500, a big part of a juror’s role was to educate himself (never herself – because jurors were always men, remember?) about the case as much as possible BEFORE the trial. Yes, you heard me right. They were supposed to go knock on doors and visit people, and ask any questions they deem necessary, and then show up to court and discuss what they had learned with each other and with the judge. Wigmore even cites a 1303 robbery where, the judge asks the sheriff if the jury is ready, and the sheriff replies, “The least informed of them has taken great pains to go up and down in every hole and corner of Westminster—they and their wives—and to learn all they could…”2 (let’s all appreciate that even in 1303, or maybe especially in 1303, wives were considered an important part of effective hearsay-gathering). These were trials where jurors took an active role, and themselves often acted as witnesses. The concept of hearsay, or even, really, any kind of rules of evidence, didn’t make sense in that paradigm.

But as the world became a more crowded place, and as cities in Europe grew, trials became a different spectacle all together. It became increasingly expected, and then requisite for the parties to bring actual evidence to trial. Conversely, and it became increasingly common for the jury to be pulled from a larger group and be less familiar with intimate facts, to as a result, juries began to consider that the evidence presented to them impartially. Eventually, in the mid-1500’s, trial courts were routinely holding that hearsay evidence could only be considered for (as we would put it in modern legalese) “the truth of the matter asserted” when if it was corroborated. The mentality being, it seems, that no shocking revelations should come as a form of gossip.

Today, it seems like pretty common sense that hearsay, by itself, is not sufficient to sustain a conviction. However, that proved difficult under the social norms of the time, but I think it’s also interesting to note that for most of history, all women (and men who were enslaved or indentured) were generally forbidden from of testifying at trials. This makes any case with an alleged female or minority victim particularly difficult to prove without hearsay evidence. For a particularly chilling example of this principle in action, see: occurred in People v. Hall, 4 Cal 399 (1854), (Where the California Supreme Court overturned the murder conviction of a white man who killed a Chinese laborer in front of several Chinese witnesses, finding that because, per the State’s high court, no Chinese persons should be able to give testimony against a white man as a matter of law.)

But I digress… let’s go back for a moment to dear John Wigmore. Painstakingly, he draws connections between the development of hearsay rules. He articulates that not only the way the role of the juror changed, but also, later, the way the role of counsel changed. Wigmore points out that until 1695, defense counsel didn’t do much more than give impassioned arguments for the accused, and only if the accused were even permitted an attorney – and over the next hundred or so years, the role of the “defense lawyer” gradually started to include cross-examining witnesses, as well, which had previously been something the judge or the accused would do himself. 3

This greatly lengthened the average trial, and also began the evolution of “the art and science of cross examination”, which still makes a few worthy practitioners and many unworthy bloviators a lot of money to this very day. As cross examination became a skill practiced by law-trained defense attorneys, the legal theory and reasoning of the hearsay doctrine grew more refined.

So that, my charming correspondents, is the quick and very dirty history of how we have gotten to where we are today. In 1975, the Federal Rules of Evidence were finally codified, and reliance on Wigmore’s (lengthy, historical, and frankly much more lovely and fascinating) traditions of evidence waned. Somewhat unbelievably, Texas did not officially adopt an actual Rules of Evidence to apply to criminal cases until 1986! And didn’t adopt a unified civil and criminal code, such as that we have now wasn’t adopted, until 1997, when your darling Allison was but a babe in arms (or maybe a moody and rebellious teenager, who can be sure?), but still well within the professional memory of many of our esteemed members.

For next time, dear reader, now that we have seen the painful birth of this ROE baby, let’s take a deep breath and turn to TROE 801 (a)-(d). It’s a short reading assignment, but I assure you that it has a lot to unpack. Until then, I remain, as always,

-Allison

Federal Corner: When Does “No” Mean No?

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On August 10, 2021, a panel of the United States Court of Appeals for the Fifth Circuit held that a defendant who a jury determined did not know the quantity of drugs involved in a conspiracy could be found guilty of the conspiracy, but could not be sentenced for the quantity of drugs involved in the conspiracy. United States v. Aguirre-Rivera, 8 F.4th 405 (5th Cir., 2021). The case distinguishes between jury questions related to the primary offense versus those relating to punishment.

Background of the Case

Baltazar Aguirre-Rivera was charged with one count of conspiracy to possess with intent to distribute at least one kilogram of heroin in violation of 21 U.S.C. §§841(a)(1), (b)(1)(A)(I), and 846. At the end of Aguirre-Rivera’s trial, the district Court instructed the jury that it could find Aguirre-Rivera guilty only if the government had proven beyond a reasonable doubt: (1) “that two or more persons directly, or indirectly, reached an agreement to possess heroin with intent to distribute the same”; (2) “that the Defendant knew of the unlawful purpose of the agreement”; (3) “that the Defendant joined in the agreement willfully, and that is with the intent to further its unlawful purpose”; (4) “that the overall scope of the conspiracy involved at least one kilogram or more of a mixture or substance containing a detectable amount of heroin”; and(5) “that the Defendant knew, or reasonably should have known, that the scope of the conspiracy involved at least one kilogram or more of a mixture or substance containing a detectable amount of heroin.” See id. at 408.

Jury Questions and Answers

The district court provided the jury with a verdict form containing three questions. The first question asked for a general verdict of “Guilty” or “Not Guilty.” The jury answered this question “Guilty.” The second question asked, “Do you find beyond a reasonable doubt that the overall scope of the conspiracy involved at least one kilogram or more of a mixture or substance containing a detectable amount of heroin?” The jury responded “Yes” to this query. The final question asked, “Do you find beyond a reasonable doubt that the defendant knew or reasonably should have known that the scope of the conspiracy involved at least one kilogram or more of a mixture or substance containing a detectable amount of heroin?” The jury answered, “No.” See id.

Is there a Problem here?

The jury’s answer to the third question seems to fly in the face of the Court’s instructions. The jury found the defendant guilty in spite of the fact that they did not find that the government proved beyond a reasonable doubt that the Defendant knew or should have known the scope of the conspiracy; this was one of the questions the Court instructed the jury must be answered affirmatively in support of a “Guilty” verdict. Based on this discrepancy, Aguirre-Rivera moved for judgment of acquittal on the basis that the jury’s answer to the second special interrogatory contradicted, and therefore undermined, its general verdict of guilty. See id.

“No” Does Not Mean No

Despite the Court’s instructions, the judge did not issue a judgment of acquittal. The district court denied Aguirre-Rivera’s motion because, although the jury’s answer to the second special interrogatory “undermine[d] the fifth element of the jury charge, [it did] not negate an essential element of the jury’s finding of guilt.” See id.

The 5th Circuit addresses the First Issue

Aguirre-Rivera first challenged the district court’s denial of his motion for judgment of acquittal. He contended that the jury’s answer to the second special interrogatory, which found that he neither knew nor should have known that the conspiracy involved one kilogram or more of heroin, directly contradicted the fifth element of the jury charge. According to him, this contradiction undermined one of the elements that was necessary to support his conviction under the statute; and therefore it also undermined the guilty verdict altogether. See id. at 409

The Standard of Review

The panel for the Fifth Circuit started by stating “We review the denial of a motion for judgment of acquittal de novo. United States v. Buluc, 930 f.3d 383, 387 (5th Cir.), cert. denied, 140 S.Ct. 544(2019). ‘Courts consistently vacate convictions when the answers to special interrogatories undermine a finding of guilt the jury made on the general questions.’ United States v. Gonzales, 841 F.3d. 339, 348 (5th Cir. 2016)). If the jury’s answer to the second special interrogatory did undermine an essential element of the charged offense, then the district court should have granted Aguirre-Rivera’s motion for the judgment of acquittal. See id. Our task, then, is to determine whether the jury’s answer to the special interrogatory undermined an essential element of Aguirre-Rivera’s conviction.” See Aguirre-Rivera 8 F.4th at 409.

Element versus Enhancement

The opinion then lays out the elements of the offense charged. “The essential elements of a drug conspiracy are (1) an agreement by two or more persons to violate the narcotics laws; (2) a defendant’s knowledge of the agreement; and (3) his voluntary participation in the agreement.” See id. (quoting United States v. Bargas-Ocampo, 747 f.3d 299, 303 (5th Cir. 2014) (en banc)). The Court then stated, “That is all the government needs to prove to sustain a drug conspiracy conviction under 21 USC §§ 841(a)(1) and 846.” See id. at 410. The Court reasoned that an enhancement is different from an element of the primary offense because it only affects punishment, not guilt. Although it must be submitted to the jury as an element, because it increases the mandatory punishment under Alleyne v. United States, 570 U.S. 99, 103 (2013), a finding of fact that affects only the legally prescribed punishment does not become an element of the conspiracy offense. See id. at 410-11. In so holding, the Court cited United States v. Daniels, 723 F.3d 562 , 573 (5th Cir.) 2013, as supporting its position. On that basis, the Court sustained the district court’s denial of the judgment for acquittal. See id. at 411.

Sentencing Implications

The Court then addressed the impact of the jury’s finding that Aguirre-Rivera did not have knowledge of the scope of the conspiracy. The Court held that even though the conviction was not affected by the jury’s finding, “the sentence most certainly was.” The defendant was sentenced under the guideline range for Conspiracy to Possess with Intent to Distribute 100 Gams or More of Heroin in violation of 21 U.S.C. §§ 841(b)(1)(B). This was improper since the jury’s negative answer to the question regarding the amount of heroin involved in the conspiracy negated any enhancements under § 841(b).” See id.

Legal Basis for Sentencing Implications

The Supreme Court has held “that factual determinations that increase maximum or minimum sentences, other than a prior conviction, must be found by a jury beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); see also Alleyne v. United States, 133 S.Ct. 2151, 2158, (2013); United States v. Haines, 803 F.3d 713, 738 (5th Cir. 2015).

The Aguirre-Rivera Court held: “Because the quantity of heroin involved” in a drug conspiracy case can affect a defendant’s “minimum sentence[] under §841, it must be found by a jury.” Id. In this case the jury’s answer to the second special interrogatory negated any enhancements under §841(b). Therefore, Aguirre-Rivera could not be subject to any mandatory minimum. He should have been sentenced under  §841(b)(1)(C), which gives the sentencing range for drug conspiracy violations not subject to additional enhancements under §841(b)(1)(A), (B), or (D). Aguirre-Rivera, 8 F.4th at 411.

One More Time, in English

Aguirre-Rivera was charged with participating in a conspiracy involving a kilo or more of heroin under 21 U.S.C §§ 841(a)(1), (b)(1)(A)(I), and 846. The jury found that he did not know the conspiracy involved over a kilo of heroin. So, the district court sentenced Aguirre-Rivera under §841(b)(1)(B) for a conspiracy involving 100 grams or more of heroin, which carries a minimum of 5 years. However, the jury did not make a finding that Aguirre-Rivera knew any amount of heroin involved in the conspiracy, so he could not be charged with even that reduced amount of heroin. Aguirre-Rivera should have been sentenced under §841(b)(1)(C), which is the range of punishment for an offense without an enhancement for the amount of drugs involved in the conspiracy.

The district court sentenced Aguirre-Rivera under a statute which had a range of punishment of 5 years to 40 years. He should have been sentenced within a range of punishment of no more than 20 years. The proper statute for sentencing was §841(b)(1)(C), which has no mandatory minimum sentence.

Was there Harm?

Aguirre-Rivera was sentenced to 60 months in prison. This was the minimum sentence under §841(b)(1)(B). The length of the sentence held significance with the Court. “The court then proceeded to sentence Aguirre-Rivera to 60 months in prison and three years of supervised release- a sentence coinciding almost exactly with the mandatory minimum under §841(b)(1)(B).” Aguirre-Rivera, 8 F.4th at 412. Since the Court held that Aguirre-Rivera should have been sentenced without any mandatory minimum under §841(b)(1)(C), the Court found that there was harm. The Court noted that the district court, despite saying that the sentence would have been the same even if any error was made in the calculation of the guidelines, also stated, “[i]f it turns out that [Aguirre-Rivera’s] lawyers are correct, and if we have lower guidelines, I would be the first to be happy to revisit the case in order to make a correction to any mistake that this may have resulted in.” Id. The Court found that this statement confirmed that Aguirre-Rivera may have been harmed by the error. The Court stated, “Given that the district court expressed willingness to revisit the case and correct any errors inherent in Aguirre-Rivera’s sentence, we cannot say that the government has carried its burden of demonstrating beyond a reasonable doubt that the district court would have imposed the same sentence regardless of any error.” Id. at 412-13.

My Thoughts

In my opinion, the Aguirre-Rivera case is more important to the trial lawyer than it is to the appellate practitioner. The case is a reminder to the trial lawyer, facing the prospects of trying an unwinnable case or pleading to an outlandish guideline range, that there may be an issue to try if the client held a minor role in the conspiracy. This issue is often present in cases involving “mules” or persons  enlisted to perform tasks by the primary conspirators. The results of a jury finding that the defendant lacked knowledge of the scope of the conspiracy at trial could greatly reduce a client’s guidelines just as it did in this case. Winning this issue could go a long way toward earning your client    a deduction for his role in the offense. It would be hard for the judge to find your client was a major player in the conspiracy when a jury found that your client did not know the scope of the conspiracy. See USSG §§2D1.1(a)(5) and 3B1.2. A finding that your client played a minor role in the conspiracy could also eliminate the two-level increase for importation in cases involving methamphetamine under USSG § 2D1.1(b)(5). Remand for sentencing under the correct guidelines was made possible in this case because the district court judge was more interested in the correct application of the law than in protecting against a remand.

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

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

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

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

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

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

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

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

Shout Outs

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Clint Broden had a client charged in federal court for failure to register as a sex offender in the Northern District of Texas based upon an Illinois Child Pornography conviction. The case was dismissed on the eve of trial through a motion in limine based on the argument that the Illinois child pornography law had a broader mens rea element (should have known child was under 18) than the federal law (knew child was under 18). Because the Illinois statute “swept more broadly” than the federal SORNA statute, Broden argued that the Illinois could not form the basis of a federal failure to register charge and therefore was inadmissible at trial and need to be excluded in limine. Without the admissibility of that conviction, the government had to dismiss the case because it was the only basis for the federal failure to register charge. Congratulations, Clint!

Congratulations to Heather Barbieri, who got a NOT GUILTY on false allegations of continuous sexual assault of a child, last week in Collin county. Amazing work, Heather!

Mark Griffith received a verdict of NOT GUILTY on a DWI case. His client’s blood test was suppressed prior to trial. After a full investigation and a two day jury trial, “Sweet Justice” was served. Congratulations, Mark!

The Court of Criminal Appeals unanimously decided Ex Parte Clinton Lee Young, No. WR-65,137-05 (unpublished) granting a new trial on September 22, 2021. Young had been on death row since 2003, and had three previous writs failed. The Los Angeles Federal Defenders, Capital Habeas Unit, took on the case and found records that the district judges had paid Assistant District Attorney Ralph Petty $16,000 for working for the judges on Young’s case, while drawing a salary from the District Attorney’s office. The DA self-recused and a neighboring County’s DA was appointed to represent the State. Allison Clayton was enlisted to assist with FOIA requests and other investigation of Midland County records. Ultimately, Petty double-dipped repeatedly, getting paid by several judges as their “law clerk”, from around 2000-2016, on top of a base annual salary of about $151,950. At least $262,650, in addition to his salary, was paid by the judges. Petty retired in lieu of State Bar discipline. In response to discovery efforts, Petty asserted his Fifth Amendment rights. This throws into doubt the validity of about 450 convictions in Midland County. TCDLA has filed Complaints with the State Commission on Judicial Conduct, reporting record facts on all the offending judges. Outstanding job to Allison Clayton, and all who contributed!

Kudos to T.W. Davidson, who represented a client on trial for murder in Cherokee county. After a nine day trial and six hour jury deliberation, they received a NOT GUILTY verdict. Great work, T.W.!

Shout-Out to Mark Thiessen, Amanda Culbertson, and Kacie Penman, who were able to achieve a NOT GUILTY on a .146 suppressed breath test DWI case. They were able to prove that the 15 minute required observation period for the breath testing was violated by the arresting officer by checking the DPS computer logs. Kudos to all!


Staff Highlights: TCDLA’s Seminar Associate

Desirae Esquivel

Title: Seminar Associate
Native State: Texas
Zodiac Sign: Libra
Favorite Color: Lime Green
Loves: to be creative
Interesting Fact: She cannot wink, snap or whistle.

Desirae Esquivel has six years of service industry experience and has been a bookkeeper for over two years. At TCDLA, she prepares registration forms, agendas and evaluations. She also applies for the CLE credit and maintains the online CLE. In her spare time, she likes to draw, paint, craft and sew. In addition, she volunteers at dog adoption events and enjoys the great outdoors.

Current Issue: October 2021

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DOWNLOAD PDF VERSION

Features

22 | Court Appointed Attorneys are “Cop Out” Attorneys – By Randy Wilson
29 | Juvenile Certifications – By Niles Illich
34 | The ‘New’ DWI: Deferred or Trial? – By John Eastland

Columns

5 | President’s Message
6 | Executive Officer’s Perspective
7 | Editor’s Comment
8 | Ethics and the Law
14 | Federal Corner
18 | From the Front Porch
20 | Shout-Outs

Departments

4 | CLE Seminars and Meetings
38 | Significant Decisions Report

President’s Message: October 2021

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As I write this article today, the second special session of the Texas legislature has ended, and the Texas Denial of Bail for Certain Crimes Amendment (2021) did not pass. As a result, this proposed constitutional amendment currently will not be on the November 2, 2021, ballot in Texas as a legislatively referred constitutional amendment. This amendment was designed to authorize a judge or magistrate to deny bail for certain crimes including violent or sexual offenses or continuous trafficking of persons. The Texas legislature, however, is scheduled to begin its third special session with five agenda items on September 20, 2021. Fortunately, this constitutional amendment is not on the current agenda. I want to thank our outstanding lobbyists – Allen Place, Shea Place, and David Gonzalez – and our excellent legislative committee for their wonderful efforts regarding this proposed amendment and many other legislative issues they successfully faced during this legislative year.

The Texas legislature, unfortunately, passed S.B. No. 6 “relating to rules for setting the amount of bail, to the release of certain defendants on a monetary bond or personal bond, to related duties of certain officers taking bail bonds and of a magistrate in a criminal case, to charitable bail organizations, and to the reporting of information pertaining to bail bonds.” This bill is forty pages in length and covers many bail issues. The bill requires a public safety report (risk assessment) on all offenses Class B and higher. The final version of this bill dropped the broad limitation on charitable bail organizations but retained some reporting requirements for charitable bail organizations. One concerning issue regarding this bill is as follows: “Except as provided by Article 15.21 (Release on personal bond if not timely demanded), Article 17.033 (Release on bond of certain persons arrested without a warrant), and Article 17.151 (Release because of delay), this bail bill amends Article 17.03 (Personal bond) of the Texas Code of Criminal Procedure, effective September 1, 2021, by eliminating personal bonds for the following: (1) persons charged with an offense involving violence (murder, capital murder, kidnapping, aggravated kidnapping, trafficking of persons, continuous trafficking of persons, continuous sexual abuse of young child or disabled individual, indecency with a child, assault where the offense is a felony family violence or a second degree felony committed against a judge or peace officer lawfully discharging their duties or in retaliation, sexual assault, aggravated assault, aggravated sexual assault, injury to a child/elderly/disabled individual, repeated violation of certain court orders, continuous violence against the family, aggravated robbery, taking or attempting to take a weapon from an officer, aggravated promotion of prostitution, compelling prostitution, or sexual performance by a child); or (2) while released on bail or on community supervision for an offense involving violence, persons charged with committing any felony or with assault, deadly conduct, terroristic threat, or disorderly conduct involving a firearm. A citizen accused of these offenses, however, may still bail out with a surety or with cash bail for those listed offenses.”

It is very concerning how indigent citizens and minorities will be adversely affected by S.B. No. 6. Many citizens charged with these offenses are currently able to be released from jail only by using a personal bond because of the very low amount required to be paid for release. How many citizens will be denied bail merely because they will be unable to afford a surety or cash bond? This bill will have a dramatic impact on county jails and magistrates. Jail populations will be increased resulting in a financial burden on counties throughout Texas. With respect to these and other adverse effects resulting from this bill, it was recently reported that, “Last month, the ACLU of Texas sent a letter to all 254 counties in Texas informing them that following the law “might land them in court.” SB6 “conflict[s] with our constitutional right to pretrial liberty and the presumption of innocence,” it said in a statement.1 Time will tell how our brothers and sisters in the criminal defense bar will handle these changes to the bail system in Texas. I want to let all of you know, however, that the Texas Criminal Defense Lawyers Association is here to help you with these and other challenges all of us face every day by providing the best continuing legal education possible.

Executive Officer’s Perspective: The Future Starts Today

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“The secret to so many artists living so long is that every painting is a new adventure. So, you see, they’re always looking ahead to something new and exciting. The secret is not to look back.”

– Norman Rockwell

As the pandemic continues, we move forward and continue doing the best we can. This week, TCDLA brothers and sisters came to together in Arlington for one of many reasons—some for CLE and networking at the Sex and Violence seminar put on by course directors Sarah Roland, Sam Bassett, and Heather Barbieri. The speakers who appeared were phenomenal. (Not to worry if you missed this great seminar; you can still watch it at your own pace. Go to tcdla.com > CLE/EVENTS > Webinars on Demand. You can watch the videos as many times as you want for up to a year.)

Also on tap, we hosted TCDLA Board, Executive, and Criminal Defense Lawyers Project committee members for Saturday meetings. Many others came in just to watch the seminar, gather for a Friday members dinner, and reconnect with one another. No other organization I know can match the camaraderie of the defense bar. In many associations I network with, their meetings are all eight-to five business with little or no personal interchange or communication afterwards. The relationships our members build blossom over the years, extending far beyond the 5:00 pm meeting end.

This also spills over to the TCDLA staff. We are very fortunate to have a hard-working and dedicated team that believes in the work and service we provide. A small staff, we too are part of the TCDLA family.

During our meetings, we conducted five hours of business, though we could have conducted many more. But members were able to eat breakfast, have a cup of coffee, and share where life had taken them since they last connected. Myself, I got to know better new board members while learning more about old friends—also celebrating our September birthdays! Some of the highlighted board motions from the Board meeting follow:

  • •TCDLA Statement re Dallas Data Loss: “In the interest of transparency and to restore public trust, The Texas Criminal Defense Lawyers Association urges the Dallas Police Department to enlist an independent, qualified auditing firm to review the data loss and produce a public report of its findings.”
  • Respond to the Affordable Legal Services Subcommittee of the State Bar of Texas Board of Directors and approve the recommended proposed changes to the Performance Guidelines for Non-Capital Criminal Defense Representation. (If you would like a copy to review, email me.)

The 87th Legislature is now entering a third special session…I cannot commend enough our Legislative Committee Lobbying Team for all their hard work. It never ends! Allen Place and Shea Place will continue monitoring the session and all meetings throughout the year. You can see some of their work on the website, a member benefit (MEMBERS ONLY/Legislative Update), including these:

  • •FREE 2021 Legislative Update Paper by David Gonzalez, TCDLA Lobbyist
  • FREE 2021 Legislative Presentation (including SB6) by David Gonzalez, TCDLA Lobbyist, and Allen Place, TCDLA Senior Lobbyist
  • FREE 2021 Legislative Cheat sheet by Shea Place, TCDLA Lobbyist

Upcoming, we will host training on Constitutional Carry and Bail Reform. If your local bar is looking for a Legislative Update or an Innocence 1-hour program, contact me.

As with all good things, the gatherings came to an end and it was time to return home. I had to reflect that I have a job I truly enjoy. If you are not feeling this same way when you attend a TCDLA event, I encourage you to seek me or other members out to introduce you around. Don’t be shy! Once you interact with your brothers and sisters, you won’t be able to wait till the next time.

When is that you ask? How about November 4–5, 2021, at the Menger for the 17th Annual Stuart Kinard Advanced DWI seminar in San Antonio? Or . . . December 2-3, 2021, at the Kalahari Resorts & Convention Center in Round Rock for the Cross Examination & Effective Use of the Rules of Evidence seminar. For this quarterly gathering, we will host a TCDLA Holiday Dinner on Friday, December 3. Let’s keep moving forward, reenergizing, empowering, and motivating each other!

Editor’s Comment: October 2021

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A cursory review of the widely-known source www.nationaldaycalendar.com shows that October is the National month of a laundry list of causes and celebrations, some serious others not so serious.  While Bat Appreciation Month, National Toilet Tank Repair Month, Squirrel Awareness Month (which according to the website is different than Squirrel Appreciation Day, which occurs in January), and International Walk to School Month are certainly causes that I am sure others may get very excited about, there are a few other causes that are a little nearer and dearer to my heart that I’d like to discuss in my column this month.

For those of you who don’t know me, I am married with two little boys: James (6) and Kennedy (3). I practice out in the west Texas town of El Paso, with my dad, Jim, and my brother from another mother, Cris Estrada. I had a dog that I adopted as a puppy in law school, named Hank the Cowdog, who just recently passed away. Our other dog, Sissy, who is a Great Dane, was very sad and lonely after Hank’s passing.  So, a few weeks ago, my wife Meghan and I loaded up the boys and we went to one of the local rescue shelters. We checked out the cast of poor, unfortunate souls cast aside and forgotten, and ultimately found the newest member of our household: Major Joe, a German Shepherd, Standard Poodle, Beagle, Boxer mix (we sent off his DNA to figure out what the Wookiee looking thing we just brought home was).  Our vet believes that Major Joe is likely about 2 years old, so we have been working hard to house train this wall-jumping, ball-fetching, barking, and howling mess of a new buddy. 

Another new joy-invoking task that we have recently undertaken is little league baseball. James just turned 6 in August, so he is only now old enough to play coach-pitch baseball.  The league in which we are playing has players ranging in age from six years old to eight years old.  Our team is made up entirely of six-year-olds, none of whom have ever played baseball. After four practices and one game, I am sad to report that we have not yet reached the fundamental level of Tinkers to Evers to Chance.

I tell y’all of these new-found joyous activities only to say that October is also National Adopt a Shelter Dog Month, Emotional Intelligence Awareness Month, Emotional Wellness Month, National Learning Development Month, and National Positive Attitude Month, which are clearly issues I am either fully invested in or need to become intimately aware of soon.

So, what does any of this have to do with TCDLA or being a criminal defense lawyer? While trials are occurring throughout the State, no one is back to practicing law the way we were before the pandemic hit.  We are in month 19 of this seemingly never-ending nightmare and I am, as I assume most of y’all are, am yearning for a return to normal. However, the delay in returning to normal is giving all of us an opportunity we will likely never get again: to spend a little bit more time with our families. I miss the intensity of trial, but I have to remind myself that I need to take advantage of this time I have been given to be a dad like I never was before the pandemic hit. I need to enjoy a few more adventures with my boys, because the reality is that I will never get this much time with them again for the rest of our lives. Unless, of course, they end up following in my footsteps someday, and come to work in our office as lawyers down the road. That thought is sobering. So, I now have to remind myself that October is also National Sarcastic Awareness Month and I need to maintain my sense of humor too.

Be safe
-Jeep Darnell