Ethics & The Law: Zoom: The Walking Ethical Violation

/

Within 30 minutes of counsel’s calling into the TCDLA’s Ethics Hotline, counsel’s problems were solved.

DILEMMA:  Lawyer L represents incarcerated and indicted client C. Mr. C. is adamant that lawyer L immediately gift all discovery already received from the DA under Article 39.14, C.C.P., to Mr. C’s brother-in-law, Mr. B, who is a licensed private investigator in Texas.

Who will be killed, kidnapped or threatened as a result of that “required” release of discovery information?

Should an attorney always follow the dictates of his/her client, even if the client is right or wrong? 

ANSWER:  No!

Does Article 39.14, C.C.P., authorize counsel to so release all to Mr. B, who was not appointed or hired as an investigator for Mr. C? 

ANSWER:  No. See Article 39.14.

Do the Texas Rules of Disciplinary Conduct authorize counsel to disclose confidential communication and unprivileged information upon Mr. C’s request? 

ANSWER:  Yes. See Rule 105(c) and (d).

How can lawyer L “avoid or get around” the disclosure prohibition in Article 39.14, C.C.P.?

ANSWERS

  1. Only with a “sealed” judicial order authorizing such redacted or unredacted disclosure to Mr. B. 
  2. Without a court order, lawyer L can hire Mr. B as lawyer L’s second investigator in this case and disclose all. Lawyer L should be sure that he can trust Mr. B. 

How many clients can you trust not to get you involved in client’s past, present or future criminal conduct?

How many investigators have you dealt with that you can trust to do it right and keep you out of ethical and professional misconduct due to the actions and omissions of that very investigator whom you hired on a case?

When it comes to prosecutors and judges, how many can you trust to always do the right thing?

When  it  comes to hiring an investigator or working with an appointed investigator, 

who can you trust to always do the right thing so you will not get indicted, convicted or disbarred for that investigator’s conduct on your and Mr. C’s behalf?

Lawyer L may be held liable under tort or criminal law, if Mr. B alone or in conspiracy with Mr. C threatens, kidnaps or kills any State witness, whose name, address or phone number is disclosed in the Article 39.14 discovery.

Common sense dictates what a knowledgeable ethical lawyer should do in this scenario. What would you do?

Joseph A. Connors III

COVID-19 has changed the whole world, not just our part. 

We hear lawyers everyday complain that there is no business, no money to pay rent or mortgage.

The government has established several loan programs at low interest rates since lawyers are making no money. Some of this money has to be paid back. There is no free ride.

Many communities are making deals to conduct trials in coliseums. The powers-that-be insist it will happen. But many older lawyers are advised by doctors to stay away, that this killing pandemic is no joke.

To ethically do your job, warn clients about making phone calls, speaking to anyone, and writing any letter that may contain any information the prosecutor, judge or jury can use against the client. Get  your client to sign an acknowledgment that you have so advised her/him of this problem.

In the opinions of many trusted experienced lawyers, many calls on Zoom are unethical because other people can immediately hear or later listen to the client’s confidential communications with counsel. Knowingly allowing any third party to listen to or later review attorney-client communications waives the confidentiality of that information and the privilege created by the the attorney-client relationship. 

In almost all scenarios, Texas Rule of Disciplinary Conduct 1.05 prohibits counsel from waiving that privilege without her/his client’s informed prior consent. 

Law enforcement make arrests and accused citizens are quickly released since jails are full.

In Harris County, accused citizens appear before a magistrate who reviews the case and sets a bond. Then accused citizens have to appear in court for bond conditions. Contrary to settled law and without presentation of any “change of circumstances” evidence, many presiding judges continue to revoke bonds set by magistrates. 

After great discussions with several excellent lawyers, like Brent Mayr who is on our Ethics Committee, it became necessary to file a judicial complaint. No one took that obligation lightly;  but it was absolutely necessary that it be done.                                                                              

Zoom is a walking ethical violation: i.e. A jailed client is on Zoom and a guard is standing so close and can hear all dialogue between lawyer and client. That is wrong, wrong, wrong.

Yes, COVID-19 has changed our lives, but how many federal and state constitutional rights must be lost?  It is the job of each of us to preserve those constitutions one client in Texas at a time.

We recommend you object every time you are put in any such a situation. Make the judge’s record reflect that the law considers the attorney-client privilege to be sacred but it is being violated and abused each time something like this happens and you are being forced to commit an ethical violation every time this happens on the judge’s Zoom hearing; so i object to the court’s procedural manner of conducting this judicial hearing that is systemically depriving this defendant of each of his/her following rights guaranteed by the state and federal constitutions, namely:  First Amendment freedom of speech about confidential matters with counsel; Fourteenth Amendment due process of law; Fifth Amendment right to confidential communication with counsel during custodial interrogation by police, prosecutor and/or court; and Sixth Amendment right to effective assistance of counsel.

Federal Corner: Competing Views on the Granting of a Motion for a New Trial

/

On August 20, 2020, a sharply divided panel of the United States Court of Appeals for the Fifth Circuit affirmed the order of Senior District Judge David Briones of the United States District Court for the Western District of Texas granting the defendant’s motion for a new trial.  United States v. Crittenden, ___F.3d___, 2020 WL 4876721 (5th Cir. 2020) Panel:  Circuit Judges Dennis, Elrod (authored the opinion – 2855 words) and Costa (authored the dissenting opinion – 2315 words)  For any lawyer looking to file a motion for new trial in a federal case, this should be a “must read.”

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

An Overview of the Case

A jury convicted Samuel Crittenden and his wife Carla Dominguez of possession with intent to distribute 500 grams or more of methamphetamine. The district court granted Crittenden a new trial because the record does not show that he knew that the bags he removed from his house—and the bag his wife requested that he bring her—contained methamphetamine or any other controlled substance. Because the district court did not abuse its discretion in granting Crittenden a new trial, we affirm. (emphasis added)

The Facts of the Case

In 2017, Federal Bureau of Investigation agents received a tip from the Drug Enforcement Agency field office in Juarez, Mexico, that ten pounds of methamphetamine was being stored at a house in El Paso. The FBI agents enlisted a cooperating informant to call Dominguez’s phone number, which was associated with the tip, in order to arrange a controlled methamphetamine purchase. In a series of phone calls over the next few days, Dominguez and the informant discussed the informant’s ostensible interest in ‘windows’—a street term for methamphetamine. The informant met Dominguez in person in the parking lot of a JCPenney where they discussed the sale of ‘crystal,’ and the informant offered to buy ‘ten’ for $35,000. The two agreed to meet again after Dominguez had verified how much supply she had.

After the meeting, the agents surveilled Dominguez as she returned to the house she shared with Crittenden. Thereafter, the agents observed the two depart the home in separate cars. One of the agents followed Crittenden to another home on Byway Drive in El Paso, where Crittenden exited his vehicle and went inside. The agent broke off the surveillance and rejoined the remaining agents that had continued to surveil Dominguez. Dominguez, however, ultimately led the agents back to the Byway Drive residence. The agents observed a male who was likely Crittenden exit the house and hand Dominguez a black bag through the window of her car. (emphasis added)

Dominguez then drove away from the house. When law enforcement intercepted her, they found a black leather handbag containing ten bundles of methamphetamine collectively weighing 4.2 kilograms. Law enforcement then interviewed Crittenden. According to the agents’ later testimony, Crittenden stated that he had moved the bags—which were Dominguez’s—to the Byway Drive residence, believing that they contained marijuana. When Dominguez asked him to retrieve one of the bags for her, he did so. A resident of the Byway Drive house would later testify that Crittenden had asked him if he could stay at the Byway Drive house and store some personal effects in the attic because he was having a fight with Dominguez. After receiving consent from the residents of the Byway Drive house to search the attic, law enforcement recovered three roller suitcases filled with 1.65 kilograms of methamphetamine and 47 kilograms of marijuana. (emphasis added)

 The Offenses

Dominguez and Crittenden were charged in the Western District of Texas with (1) conspiracy to possess with intent to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii); (2) possession with intent to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii); and (3) conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D), and 846.

The Testimony at Trial

At trial, Dominguez took the stand as the sole witness for the defense. She testified that she used to buy marijuana for her and her friends’ personal use from an individual named Juan Diaz. Dominguez stated that this relationship ended when, in 2015, she and Crittenden decided to have a fifth child together and resolved ‘to get closer to God and to take care of their family together without having any kind of partying or drug use.’ She said that she did not hear from Diaz again until he called her in January of 2017 and asked her if she could retrieve his car, which he said had been left on the U.S. side of the border as a result of a fight he had with his girlfriend, and hold it at her house until his sister could pick it up the following day. Dominguez testified that she agreed and retrieved the car, but when Juan’s sister arrived, she took several bags and a large plastic container out of the trunk, gave them to Dominguez, and quickly left before Dominguez could object. (emphasis added)

With regard to the series of phone calls, Dominguez testified that she first did not understand what the calls concerned and assumed they were in regard to some broken windows in her house. When the calls continued, Dominguez stated, she began to suspect that the packages contained drugs or other contraband and that her and her family’s lives were in danger, so she went along with meeting the individuals who contacted her in order to get rid of the packages. Dominguez stated that when she told Crittenden about what was occurring, Crittenden said that he did not want to have anything to do with the matter and that he did not want the packages to be in the house with their children. According to Dominguez, Crittenden then moved the packages to the Byway Drive residence to get them out of the house.

Dominguez testified that she just instructed Crittenden to ‘grab a bag’ from the Byway Drive house on the day she met with the informant without specifying the contents of the bag. She stated that Crittenden was not involved in any of the transactions and did not know Diaz. (emphasis added.

The Result of the Trial

…the jury convicted both defendants on all counts.

The Defendant’s Motions and the Court’s Response

Crittenden then renewed a properly preserved motion for judgment of acquittal, or, in the alternative, for a new trial. The district court granted the motion for a new trial. In its memorandum opinion, the district court concluded that the Government failed to prove that Crittenden participated in a conspiracy or that he had the knowledge of the nature of the controlled substance he possessed that was required to convict him of possessing methamphetamine with the intent to distribute. (emphasis added)

As to the possession count, the court stated:

No direct or circumstantial evidence was presented during the first trial to show beyond a reasonable doubt that Mr. Crittenden knew the contraband was comprised of any controlled substances listed on the schedules or that he knew the identity of the controlled substances he possessed.  (emphasis added)

The Government Appealed, In Part

The Government timely appealed the grant of new trial on the possession count.  It did not appeal the grant of new trial on the conspiracy counts.

The Standard of Review

Unlike a judgment of acquittal based on the sufficiency of the evidence, which this court reviews de novo while taking the evidence in the light most favorable to the verdict, ‘the decision on a new trial motion is entrusted to the discretion of the district court so this court will reverse it only on an abuse of that leeway.’ United States v. Hoffman, 901 F.3d 523, 552 (5th Cir. 2018). This court thus reviews a district court’s grant of a new trial for abuse of discretion, while considering de novo any questions of law that figured into the determination. United States v. Wall, 389 F.3d 457, 465 (5th Cir. 2004). ‘A district court by definition abuses its discretion when it makes an error of law.’ Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)…

Federal Rule of Criminal Procedure § 33(a)

A district court may grant a new trial under Federal Rule of Criminal Procedure 33(a) ‘if the interest of justice so requires.’ ‘In this Circuit, the generally accepted standard is that a new trial ordinarily should not be granted “unless there would be a miscarriage of justice or the weight of evidence preponderates against the verdict.” ’ United States v. Wright, 634 F.3d 770, 775 (5th Cir. 2011) (quoting Wall, 389 F.3d at 466).

The Government’s Argument on Appeal and the Court’s Response

On appeal, the Government argues that the district court ‘erroneously found that the government had failed to prove … that Crittenden knowingly possessed a controlled substance.’  … We conclude that the district court correctly stated the relevant law and permissibly applied it to the facts of this case.

    • 841(a)’s Knowledge Requirement

As to the governing legal principles, the district court properly noted that the ‘knowledge requirement of § 841(a) may be met by showing that the defendant knew he possessed a substance listed on the schedules.’ McFadden v. United States, 576 U.S. 186, 192, 135 S.Ct. 2298, 192 L.Ed.2d 260 (2015). The district court also properly concluded that a defendant’s mere ‘belief’ that he possessed a controlled substance—divorced from other factors such as deliberate ignorance—’is not enough to establish knowledge.’

 Deliberate Indifference Is Not Before the Court

…the Government has never argued deliberate ignorance in this case, and the jury was not instructed on it. We therefore express no opinion regarding whether the evidence demonstrated Crittenden’s deliberate ignorance.

The Evidence, Or Lack Thereof, Favors the Defendant

… There was no evidence that the methamphetamine at issue belonged to Crittenden or that Crittenden was attempting to sell the drugs; rather, federal agents seized the methamphetamine from Dominguez pursuant to a transaction the confidential informant set up with Dominguez. Although the jury originally convicted Crittenden of conspiring with Dominguez to sell the drugs, the evidence supposedly showing Crittenden’s involvement in any such conspiracy was so insufficient that the Government did not even appeal when the district court granted a new trial on the conspiracy counts.

In fact, the evidence does not show that Crittenden ever laid eyes on the drugs themselves—not when he moved the bags into the Byway Drive residence, and not when he retrieved a bag on Dominguez’s instructions. At oral argument, the Government pointed to Dominguez’s testimony that Crittenden ‘probably’ moved the drug packages from their original container to the bags before moving them to the Byway Drive residence. … But Dominguez also admitted that she ‘wasn’t there’ when the drug packages were moved into the bags and therefore ‘wouldn’t be able to tell you if it was Crittenden or someone else.’  At any rate, the district court was not required to credit Dominguez’s testimony in granting the motion for new trial. (emphasis added)

Despite the Government’s repeated prodding, Dominguez expressly disavowed telling Crittenden that the bag she asked him to retrieve contained any drugs at all, testifying instead that she told Crittenden to ‘just grab a bag.’  The evidence shows only that Crittenden complied with Dominguez’s request by bringing her a bag. Nothing more. (emphasis added)

Some FBI agents testified that Crittenden told them that he ‘believed’—incorrectly, as it turned out—that ‘the bags contained marijuana.’  That is why he ‘removed them … from his home and family’ by putting them in the Byway Drive house. But, as previously explained, the district court properly concluded that testimony ‘showing, if anything, that Mr. Crittenden believed the bags contained marijuana’ is insufficient to prove knowledge. As a result, it was not an abuse of discretion for the district court to grant Crittenden a new trial on the basis of insufficient evidence of knowledge. (emphasis added)

The Law of the Circuit

…we are bound by the law of this circuit, which has long afforded district courts ‘considerable discretion with respect to Rule 33 motions.’ United States v. Jordan, 958 F.3d 331, 338 (5th Cir. 2020) (quoting United States v. Simmons, 714 F.2d 29, 31 (5th Cir. 1983)). Indeed, this court has stated that a district court may grant a new trial even where ‘the evidence is sufficient to support a conviction,’ if, upon ‘cautiously reweighing it,’ the district court concludes that the evidence ‘preponderates heavily against the guilty verdict.’ United States v. Herrera, 559 F.3d 296, 302 (5th Cir. 2009).

Preventing A Miscarriage of Justice

Here, the district ‘court did not simply disregard the jury’s verdict in favor of one it felt was more reasonable.’ Robertson, 110 F.3d at 1119. Instead, ‘it cautiously reweighed the evidence implicating Crittenden and determined that a mistake had been committed. On this basis, having given full respect to the jury’s findings, and to prevent a miscarriage of justice, it granted a new trial.’ Id. at 1119–20. 

For the forgoing reasons, the district court’s order granting a new trial is affirmed. 

Judge Costa’s, dissenting opinion reads, in part, as follows:

The Constitution twice says that juries decide criminal cases. U.S. CONST. art. III, § 2, cl. 3; id. amend. VI.

The jury’s constitutional role in deciding criminal trials leaves little room for judicial second-guessing. Our review of verdicts is therefore quite limited. See, e.g., Burks v. United States, 437 U.S. 1, 16–17, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Likewise, the authority to grant a new trial when there is enough evidence to support the verdict, but the judge would weigh the evidence differently, is in some tension with Article III and the Sixth Amendment. As a result, although we review the grant of a new trial only for abuse of discretion, we have repeatedly warned that its discretion is not unbridled. United States v. Arnold, 416 F.3d 349, 360 (5th Cir. 2005);…

… The district court granted the new-trial motion in a one-page order that said an opinion would follow. That order did not mention anything about weak evidence of knowledge. And despite the fact that the evidence presented at trial would have been freshest in the court’s mind when it granted the motion, it took five months to give a reason for doing so.

At a status conference after it finally issued the order explaining the new-trial grant, the court added:

I think if it was up to the Fifth Circuit I’m going to get reversed, quite frankly, but I went over the PSR this morning. Mr. Crittenden is facing 292 to 365 months and I think that’s the reason I considered … granting a new trial because I was very reluctant to issue that type of sentence. (emphasis included in the opinion)

The district court doubled down at Dominguez’s sentencing:

Counsel, as I informed you sometime back, maybe last week, I’m going to grant a new trial for Mr. Crittenden.

I am—his guideline range is 292 to 365 months and he’s facing a 20-year mandatory minimum. I can’t … even go the 20-year mandatory minimum on him and I’m certainly not going to go 292 months.

He had a limited role in what his wife was doing and she got him into this. Very limited role.

Ultimately, this case pits the deference we owe district judges on discretionary matters against the deference judges owe juries. Both the district judge and the jury saw and heard the evidence. … Between the two, the choice is easy given the overwhelming evidence of Crittenden’s guilt. I go with the citizens who missed work and had to rearrange family responsibilities because they showed up to do their civic duty. When it comes to commonsense questions like the ones this trial posed, the perspective of a single judge is no match for the collective wisdom that a jury of varied backgrounds and experiences brings to bear.

Yet the district court—now with our court’s blessing—concluded that the cross-section of the El Paso community that found Crittenden guilty committed a miscarriage of justice. (I guess I too would have been party to that miscarriage of justice as I think the jury got it right.) This judicial override of the jury’s verdict disrespects their service.

My Thoughts

  • What a great case.  Judge Elrod’s opinion gives us a roadmap for the urging of a motion for new trial and Judge Costa’s opinion gives us a preview of the Government’s anticipated response.
  • I’ve given you a taste.  Please read the entire opinion.

Shout Outs

/

Not many lawyers have mastered the art of spitting a razor blade from their mouth, but Megan Rue has. A rising star at Cofer & Connelly, PLLC, in Austin, Texas, Megan focuses on ferocious courtroom advocacy and complex motion practice. This month, Megan and partner Rick Cofer represented a young man accused of shooting a crack dealer in the thigh outside the downtown homeless shelter. The “victim” had started the altercation by pulling a razor blade from his mouth and slashing the client’s face in a fight. Megan researched the practices and habits of local crack dealers and discovered how many safely store a razor blade inside the cheek of the mouth. Megan was able to perform the demonstrative in front of the Court and the State to rave reviews. Ultimately, the case resolved on the day of trial, with the accused agreeing to a lesser included state jail felony deferred adjudication and back-time on an unrelated felony evading charge. Great result when he was looking at 30 years stacked! Megan’s willingness to risk bodily injury to represent her client is commendable, and her nickname henceforth shall be Megan “The Blade” Rue.

Kudos to Bryan Cantrell of Huntsville, Texas for his recent win in a Cruelty to Nonlivestock Animals case in Houston County.  The jury came back with a NOT GUILTY verdict in less than nine minutes!

Allen Place as lead counsel, with Shea Place as second chair, successfully obtained parole for Bobby Moore who was formerly on death row. Bobby Moore was originally sentenced to death in Harris County and his conviction was eventually commuted to life by the Texas Court of Criminal Appeals,following two decisions by the U.S. Supreme Court focused on the issue of intellectual disability-586 U.S. (2019)/470 S.W.3d 481. In a reversal of roles, Shea Place was lead counsel and assisted by Allen Place in obtaining parole for Joe Bryan who was assessed a life sentence for a Central Texas murder conviction. Both men are now at home with their respective families.

Current Issue: September 2020

/

DOWNLOAD PDF VERSION

Features

17 | Practical Handgun Laws and Defenses in Texas – By Ronnie Yeates
21 | Chapter and Verse: A Deep Dive into the CCP – By Allison Mathis
23 | Getting Your Wings Back: How Pilots Charged with DWI Can Get Back to Flying – By Dr. Arthur T. Hadley & J. Gary Trichter
25 | Balancing the Scales: A Closer Look at Ake vs. Oklahoma – By Clifford Duke
29 | Rethinking Article 38.23(a) Jury Instructions – By Michael C. Gross

Columns

6 | President’s Message
7 | Shout Outs
8 | Chief Executive Officer’s Perspective
9 | Editor’s Comment
10 | Staff Spotlight
11 | Ethics and the Law
13 | Federal Corner

Departments

5 | CLE Seminars and Meetings
32 | Significant Decisions Report

President’s Message: A Slippery Slope Usually Begins with a Delicate First Step

/

On August 6, 2020, a Travis County Justice of the Peace named Nicholas Chu took a perilous stride down an icy constitutional declivity when he announced — in a press release! — his plan to preside over the nation’s first “binding” criminal jury trial via videoconference. (Or, at least as binding as any other Class “C” misdemeanor in a court with no reporter and in which the defendant has the right of appeal de novo.)

But still.

The accused would be tried for the offense of Speeding in a Construction Zone. Importantly, for reasons only the defense attorney can explain (which he did, of course, to the press), the defendant consented to this ill-advised experiment. So did the prosecutor. Most notably so did the Office of Court Administration — the government agency charged with approving all Texas trials during the pandemic until October 1, 2020.

The “Zoom trial” took place on August 11, 2020. It was beset with technical glitches ranging from muted audio and choppy video, to venire members being excused because they couldn’t login, to an empaneled juror being excused because his screen froze. (Good thing they had an alternate.) But while some of the technical challenges in Zoom trials can be addressed with public education and faster, more reliable internet connections, what can’t be fixed are the constitutional violations that arise from the denial of an accused’s rights to effective assistance of counsel and confronting the witnesses and evidence against him.

In but one example, the jurors who served in the speeding ticket trial were unable to observe the body language (or what the United States Supreme Court has called “demeanor”) of the police officer who testified. Maryland v. Craig, 497 U.S. 836, 837 (1990). In a trial of greater consequence — for example, when an accused is facing jail or prison time — a person’s liberty cannot be left to the best guesswork of jurors who can’t see anything more than a two-dimensional view of a witness’ face. Every experienced cross-examiner can tell you about trials won and lost because jurors observed a key witness physically “squirming on the stand.” Additionally, the accused and her lawyers in the speeding ticket case couldn’t see the body language of the jurors. Oftentimes that’s crucial in knowing whether a message is getting through to them. (For whatever it’s worth, prosecutors usually sit closest to the jury. Losing their ability to study jurors up close would be a major blow.) Two-dimensional Zoom faces and an inability of jurors, lawyers and the accused to fully observe demeanor are a poor substitute for some of the cherished constitutional rights that Americans have fought and died for on battlefields all over the world.

In the speeding ticket trial, as YouTube viewers stared into jurors’ homes, took note of their eclectic furnishings and hoped no children would come strolling by, Judge Chu prepared to read the verdict. He paused for what seemed like a long time. It turned out that the defense attorney was somehow locked out of the virtual trial and in a different Zoom “room” (which is probably the technological equivalent of getting trapped in a courthouse restroom). Eventually, Judge Chu pronounced that the defendant had been found not guilty of the charge or Speeding in a Construction Zone, but guilty of the lesser charge of speeding. At least we can be confident the jurors didn’t reach a split verdict because they wanted to beat the traffic home.

The true danger in Class “C” Zoom trials is not that speeding defendants will get clobbered in greater numbers (although, that’s part of it). It’s that there really are some appealing characteristics in virtual trials. They are cheaper, require less security, save jurors and witnesses from having to show up at the courthouse and probably move trial dockets faster because there are fewer continuances. It is these attractive features that may one day convince judges to lobby for virtual Class “C” misdemeanor trials without consent of the parties. Then, of course, some public officials will wonder why we can’t just have Zoom trials in all misdemeanor cases. Perhaps Classes “A” and “B” misdemeanor Zoom trials will start as consent only. But then judges may complain — as they did in convincing the Texas Supreme Court to abandon the consent-of-the-parties clause from its Emergency Orders governing trials during the pandemic — that litigants shouldn’t get to decide whether, when and how to go to trial. Only judges should.

Judge Chu’s Zoom trial is exactly how slippery slopes begin. A delicate first step, followed by another, and then an irreversible momentum toward a really bad policy for accused citizens and everyone connected to the Texas criminal justice system.

When something is cheap and easy it eventually becomes irresistible to those in power. We are absolutely kidding ourselves if we believe that Zoom trials will never happen without consent of the parties or that they won’t be seriously considered in criminal cases punishable by jail or prison.

Mark my words on this.

Chief Executive Officer’s Perspective: The Value of Friendship

/

“Make new friends but keep the old. One is silver and the other is gold.”

                                                                                       –Joseph Parry

We often have friends that we don’t see every day, yet when we do, we are able to pick up right where we left off – as if it was only yesterday. Friends like that are treasures, more valuable and precious than gold.

With all the stress, tragedy, and uncertainty of our world (which are only compounded by the nature of our profession), it is at times a real struggle to maintain a sense of normalcy. Sometimes it is all we can do to maintain our sanity. Then you throw the pandemic into the mix… We need those dear old friends now more than ever.

Now is the time for us to band together and rely on each other for support and tools to make it through this unprecedented time. While you are at it, why don’t you try to expand your sphere of close friends. TCDLA is the perfect place to both stay connected with old friends, as well as being fertile grounds to reach out and develop new relationships.

With an upcoming election, a seemingly unending pandemic, and the uncertainty of what the new normal will be in our practices, there will be many opportunities for us to share our positions and thoughts. We all have biases no matter what race, religion, or gender you are – these are facts. I encourage everyone to make new friends and take a moment to remind ourselves that it is OK to think differently. Share your thoughts, explain to someone while starting a healthy conversation where you both listen and hear each other – respectful debates are okay. This last month, I have learned so many things and realized I have biases and am learning how to acknowledge them to strip them away. I am also focusing on my personal growth and understanding the effects the pandemic is having on my mental health and taking stress to another level.

I recently talked with my mother about everything that was going on, and she made several comments that made me take a step back and process what she said. Mom has always had a narrow view of how things should be. The responses and opinions she gave surprised me because I never thought she would be open to change, or open to considering the positions of people who think differently than her. It was not only encouraging, it was heartwarming: We could have a discussion that would not end in an argument or hurt feelings.

At the end of the day, especially during these times, we all need friendship and a place we can go to talk, vent, and commiserate – especially with people who should understand us like nobody else can. We are all struggling with the lack of interaction and the challenges of today’s new norm. More than ever, we need to be kinder, hear the pleas for attention, and reach out to a friend, family member, or colleague. I challenge you to check in with someone each day, start your morning off by doing something for somebody else. Surround yourself with positivity, and those will be the gold and silver of old and new TCDLA provides!

Editor’s Comment: Agree to Disagree

/

As criminal defense attorneys, each day we strive to advocate for and protect the rights of the accused, one citizen at a time. We do not punch a timeclock or have an eight-to-five job, and our work does not slow down or stop, even in the middle of a worldwide pandemic. We worry, obsess, and overcompensate while advocating for and defending our clients, often sacrificing time with family, friends, and loved ones. It is our belief and mission that we stand between the government and our clients, defending their liberty and protecting their rights, regardless of the circumstances. We are united in our belief that every defendant has a right to be heard and their constitutional rights protected at any cost. It is this belief system, which is engrained in us as defense lawyers, which has its origin and roots in the actions and deeds of our founding fathers, that we use as our mantra every day to protect those who cannot protect themselves.

Between all our members, we obviously have differences in our opinions regarding politics, social and economic policy, and other personally held beliefs and convictions. We all have a right to express those personal opinions and beliefs, but we should be tolerant and mindful of those who disagree with us. It is a healthy debate for our democracy, to agree to disagree on issues of social and cultural policy, politics, or other personal beliefs and convictions, which we hold as individuals in a democratic society. However, from time to time, we should be reminded that, as criminal defense attorneys, there is more that binds us than divides us, as we fight the common enemy to protect and advocate on behalf of the accused.

When we rang in the New Year, welcoming in 2020 on January 1st of this year, I don’t know that any of us would have thought this is where we would find ourselves in September, amid the worst worldwide pandemic since the Spanish Flu. The ability to practice law, specifically criminal defense work, has changed dramatically in the last six months and morphed into something no one could have imagined such a short time ago. It has taken the resiliency of our criminal defense bar statewide to ensure that the rights of the accused have been and continue to be protected as we adjust to this new normal.

Then George Floyd died, and those who are alleged to have been responsible for his death have been charged and arrested. As we had commented on previously, those individuals are entitled to and will have their day in court, as should all who stand accused of criminal conduct, however detestable or abhorrent it may be. Civil unrest grew and festered as it does, but this time the result was an outpouring of protests nationwide calling for police reform and social change, which has been long overdue.

I am sure everyone has a different opinion on how and why these protests occurred, and to what degree they were peaceful or ended up being non-peaceful. However, what has happened as these events have unfolded is the issues have become polarized, both politically and socially, and when we can’t agree, we sometimes label those we disagree with on the very issues and social change we are fighting for. Labels are a dangerous thing and far too easy to throw around, especially in our new digital age where a tweet or a Facebook post can be seen and ultimately heard instantaneously. As criminal defense attorneys, we fight every day in courts throughout the nation and this state, to prevent our clients from being labeled and discarded because of that label. Just because we do not agree with one another about certain issues does not mean we cannot have a civil disagreement regarding those issues, and at no time should our disagreements result in name-calling and labeling of those who oppose our beliefs or viewpoint.

John Lewis, in his last speech to America, stated, “Ordinary people with extraordinary vision can redeem the soul of America by getting in what I call good, necessary trouble.” Ladies and gentlemen, he is speaking to us. As criminal defense attorneys, we are at the forefront of getting into good and necessary trouble and fighting for the rights of the accused, which all too frequently are threatened, often involving components of racial injustice. We are on the same team, and we can agree to disagree, but should always be courteous to our fellow brothers and sisters who are in this fight with us, and always conduct ourselves as professionals.

Given the current state of the practice of law, specifically as it concerns the criminal defense bar, it is now more important than ever that we stay TCDLA Strong, and we fight for those who cannot fight for themselves. The pandemic has not yet run its course. Racism, sexism, hatred, and bigotry are unfortunately alive and well. There are constant attacks upon our freedoms and liberty, and continuous attempts to erode the very underpinnings of our constitution and the rule of law. Rest assured there will be other hurdles ahead, but, as the largest and strongest statewide criminal defense organization in the nation, we will and must face these together.

We draw upon and from each other, and it is our collective life experiences, diverse as they are, that enable us to grow and shape our lives and careers. It is this collective experience and diversity that makes us better advocates and stronger as an organization. Let us remember who we are, and what our mission statement is, by conducting ourselves with the dignity deserving of our life’s work while being respectful of each member’s beliefs and their right to hold those beliefs. Be safe, be strong, and always fight the good fight.

This editorial column is dedicated to Sarah Roland, who has given so much time and personal sacrifice in making the Voice the great resource and publication that it is today.

Ethics & The Law: Caught in a Trap

/

The following query was submitted to the Ethics Committee, whose hotline can be reached at 512-646-2734.

Here’s the background of my case:

The father of a 20-year-old son calls my office to represent the son on aggravated sexual assault allegation from six to seven years ago involving a female cousin. The cousin would have been about five or six at the time of the alleged offense and my PNC would have been 12 to 14. 

Female cousin “outcrys” in May of this year by giving a note to her sister describing the allegation. Her sister gives the note to their mom and Mom either gives the note or describes it to a counselor/therapist during a session.  Counselor/therapist tells Mom to report it to law enforcement or counselor/therapist would report under mandatory reporting duty.  

My PNC’s dad is the uncle of the mom of the complaining witness. Apparently, the family is pretty close-knit and everyone spends lots of time at Grandma’s house (PNC’s dad’s mother).

In our conversation, my PNC’s dad tells me he found an old computer at Grandma’s house. The computer belongs to the mom of the complaining witness. 

My PNC’s dad decides to go through the computer and tells me he finds several images of child pornography and bestiality. My PNC’s dad told me the images were actually named “9 year old,” “11 year old,” and so on. My PNC’s dad also finds videos/images of the complaining witness’ mom engaged in sexual activity with an adult male.

My PNC’s dad believes this computer can help his son.     

The computer is old, probably 2000-model desktop. Grandma did not complain about it being taken out of the house. Sounds like multiple people have had access to the computer, including the complaining witness and my PNC. My PNC is the person who told Dad he found the images on the computer. Dad took the computer and told Grandma (his mother) that he was taking it to law enforcement. Dad took possession of the computer sometime this week.

The complaining witness does not live there now, but did live there when she was in high school and the computer has been there ever since. Dad tells me that the images he found were dated 2002 and 2003.

I have not yet even talked to the Son, whom Dad asked me to represent. In the course of his consultation, I learned Dad has possession of child pornography, which I know are federal and state crimes. I advised Dad of this and the need to address the situation with law enforcement.

Question 1: Who is my client now? I have never given advice to the son, only Dad regarding Dad’s possession of child pornography.

Question 2: How do I keep myself out of “aiding and abetting or a party to” Dad’s continued possession of child pornography in violation of Texas and U.S. criminal law?

Question 3: How can I ethically facilitate the transfer of the child pornography to law enforcement?

Question 4: Can I still ethically represent the son in the underlying sex assault allegation?

ANSWERS

Keith Hampton

I don’t know what PNC means, but here are my answers in your emergency situation:   

As I understand it, the father is the only person you’ve offered legal advice to, so he is your client (Tex.R.Evid. 503).  Son is accused of sexual assault seven years after it allegedly happens.  I’m not seeing an ethical conflict (no opinion on legal conflict), but I also don’t know what the computer reveals.  Are both implicated?  If the father is not, your duty is to him, not the son, even if it means that the child porn hurts the son.  

You also say the father goes through his own mother’s house and finds Mom’s 10-year-old computer with child porn on this old computer that various people had access to.  Father now possesses someone else’s computer with child porn images.  Unless the father is implicated, then you turn it over to law enforcement.  If it does implicate your client – the father – then you take precautions to protect him. 

Joseph Connors

I have a problem with you trying to represent both the dad and the son, since ultimately you will probably have to withdraw from representing either of them.

  1. Get the computer to law enforcement and out of Dad’s possession as soon as possible.
    Tell Dad what he needs to know and get the computer to law enforcement as soon as possible. The best strategy is for YOU to hire another attorney to turn in the computer to local law enforcement; but your lawyer cannot disclose who hired him or where he got the computer from. The financially cheaper strategy is Dad turns in the computer to local law enforcement, who will question him where he got computer from and who downloaded the child pornography. The middle strategy is that you fax the DA a letter that a client has hired you to turn in a computer containing some child pornography, and you are inquiring as to which law enforcement agency you should turn the computer into.

  2. Rule One is get your fee up front and only represent ONE in a criminal affair (two relatives with different crimes are too interconnected – each may be a star witness for the other and each needs separate counsel from DAY ONE, plus DA may offer one a great deal or immunity to testify against the other!), so:
    Inform Dad that he is the only person who can hire you in this affair.  Refer Dad to another marvelous defense lawyer, whom the son can hire on the aggravated sexual assault allegation. Inform Dad that local police or the sheriff will want a statement of the accused admitting to the allegation. Tell Dad to tell his son not to talk at all to any law enforcement.

  3. You ask:

Question 1: Who is my client now? I have never given advice to the son, only Dad regarding Dad’s intentional possession of child pornography to aid son’s case.

Answer 1:  I agree with Keith. Your client is Dad, though Dad will say he does not need an attorney and will personally go turn in the computer to the police. Can you trust Dad to do that?  Or are you unwittingly giving Dad all the info he needs to destroy the computer’s hard drive (which is tampering with evidence, a state and federal felony)?

Question 2: How do I keep myself out of “aiding and abetting or a party to” Dad’s continued possession of child pornography in violation of Texas and U.S. criminal law?

Answer 2: Get the computer from Dad with a written letter signed by Dad asking you to turn the computer over to law enforcement. You keep that letter confidential and safe to cover your ass later on if Dad accuses you of criminal conduct by knowingly possessing child pornography.

Question 3: How can I ethically facilitate the transfer of the child pornography to law enforcement?

Answer 3:  Read A above.

Question 4: Can I still ethically represent the son in the underlying sex assault allegation?

Answer 4:  Read first answer above.

Thanks to Joseph Connors, Keith Hampton, Robyn Harlin, and Sharon Bass for helping with this article.

Federal Corner: The Sixth Amendment Right of Self-Representation

/

On August 6, 2020, a panel of the United States Court of Appeals for the Ninth Circuit held that the trial court’s termination of the defendant’s pro se status – because he asked an impermissible question during the cross-examination of a prosecution witness – violated his Sixth Amendment right of self-representation. United States v. Engel, ___F.3d___, 2020 WL 4519071 (9th Cir. August 6, 2020) Panel:  Circuit Judges William A. Fletcher, Jay S. Bybee and Paul J. Watford.  (Opinion by Bybee)

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

An Overview of the Case

A jury convicted Appellant Todd Engel of obstruction of justice and interstate travel in aid of extortion. He contends that the district court violated the Sixth Amendment during his trial when the court terminated his right to represent himself and appointed standby counsel to represent him instead. We hold that Engel’s conduct was not sufficiently disruptive to justify termination of his right to self-representation. Because this is a structural error, we vacate Engel’s conviction and remand for a new trial.

The Facts of the Case

Engel’s criminal conviction stems from his involvement in an armed standoff between agents of the Bureau of Land Management (BLM) and a group of private militia members rallied behind Nevadan Cliven Bundy.1 In early April 2014, Engel traveled from his home in Idaho to Bunkerville, Nevada, to impede a BLM operation. When Engel and the other militia members confronted the BLM agents, Engel was holding an AR-15, wearing combat gear, and located on a bridge overlooking BLM’s position. Fortunately, no shots were ever fired, and the BLM agents eventually retreated.

The Indictment and the Order of Trial

Engel then became a target of federal criminal prosecution. In March 2016, a grand jury returned a superseding indictment against nineteen defendants. Engel was named in eleven counts. The district court severed the defendants’ trials into three tiers, placed Engel in Tier 3 (the tier containing the defendants alleged to be least culpable), and ordered those defendants to be tried first.

The Defendant Elected to Represent Himself

At the commencement of his trial, Engel asked to represent himself. After conducting a Faretta hearing, the district court granted his request, but appointed standby counsel to be used if necessary. Engel represented himself during the majority of the trial.

The Defendant’s Cross-Examination of a Government Witness

That changed on the twenty-first day of trial. While Engel was cross-examining a government witness, the following exchange occurred:

    1. Was Dan Love the special agent in charge of this operation?
    2. Yes, he was. He was an incident commander.
    3. And in any video or audio do—have you seen anywhere where I had any discussions with him?
    4. No.

GOVERNMENT COUNSEL: Again, found—well—again, foundation if we’re talking about which video and audio.

THE COURT: He’s answered the question.

BY PRO SE ENGEL:

    1. Isn’t it true that Dan Love’s under criminal investigation for—

GOVERNMENT COUNSEL: Objection, Your Honor.

THE COURT: Mr. Engel …

GOVERNMENT COUNSEL: Move to strike.

THE COURT: The jury will disregard Mr. Engel’s—

PRO SE ENGEL: No further questions.

The Strategy Behind the Cross-Examination

To put this incident in context, Dan Love was the BLM agent in charge of the impoundment effort. After the events near the Bundy Ranch, a government report was issued that detailed several breaches of protocol and abuses of power that Love committed during events having nothing to do with Bundy or Engel. Although the report said nothing about Love’s conduct during the confrontation with BLM agents in April 2014, Engel and his co-defendants hoped to get this information before the jury to cast BLM in a negative light. But the district court denied the defendants’ motion to compel Love’s attendance as a witness, finding that questioning Love about the report would be irrelevant. Thus, through the question he asked, Engel presumably sought to introduce the jury to the evidence underlying the government report regarding Love’s misconduct, even though Love was not testifying. Further, no criminal investigation of Love was ever initiated, so Engel’s question about whether Love was under criminal investigation implied a false premise.

The Government Sought a Sanction

After the district court excused the jury following Engel’s question, the government renewed its objection. The government argued that Engel ‘should be sanctioned for it and his pro se status should be revoked.’

The Defendant’s Demeanor

In response, Engel was calm and apologetic. He explained that he asked the question because Love had ‘sworn a Grand Jury testimony against me’ and Engel was frustrated that he was ‘not even going to be able to talk to Love.’ But he concluded his explanation by saying, ‘I apologize for the question’ and asked that he be allowed to continue representing himself.

The District Court Revoked the Defendant’s Right to Represent Himself

The district court ultimately agreed with the government. The court found that Engel’s question was ‘improper,’ and that Engel ‘knew very well that that question could not be asked.’ Accordingly, the district court revoked Engel’s right to represent himself, appointing standby counsel—John George—to represent Engel ‘for the remainder of the day.’ When George objected, arguing that Engel had ‘done a fairly remarkable job’ representing himself thus far and that a less drastic sanction was appropriate, the district court disagreed, finding that Engel’s ‘intentional ’ decision to ask the question ‘indicated that he’s not going … to follow my court order.’ The court also noted that Engel ‘was very smug about it afterwards when he went back and sat down, very proud of himself for sliding it in.’ Ultimately, the court was unwilling ‘to risk any more that Engel was going to say something in front of the jury that is not permitted and that would potentially cause me to call a mistrial.’ After hearing the court’s decision, Engel simply stated, ‘Okay. I’m sorry.’

Stand By Counsel Continued the Cross-Examination

George represented Engel the remainder of the twenty-first day of trial. During the proceedings, George cross-examined several more government witnesses on Engel’s behalf.

The Defendant was Permitted to Present Closing Argument

As the trial was drawing to a close, the district court allowed Engel to represent himself again for the purposes of closing argument.

The Verdict, Sentence and the Appeal

Following trial, the jury convicted Engel on two counts: Obstruction of the Due Administration of Justice in violation of 18 U.S.C. §§ 1503 & 2, and Interstate Travel in Aid of Extortion in violation of 18 U.S.C. §§ 1952(a)(2) & 2. The district court sentenced Engel to 168 months’ imprisonment and ordered him to pay $1,636,790.33 in restitution. An amended judgment against Engel was entered on September 24, 2018, and this appeal followed. 

The Standard of Review

We have never definitively articulated the standard of review that applies to a defendant’s claim on direct appeal of a criminal conviction that his Sixth Amendment right to self-representation was violated. Engel argues that we should apply de novo review. The Second, Third, Fifth, Eighth, and Tenth Circuits have taken this position. See United States v. Hausa, 922 F.3d 129, 134 (2d Cir. 2019) (per curiam); United States v. Weast, 811 F.3d 743, 748 (5th Cir. 2016); United States v. Mosley, 607 F.3d 555, 558 (8th Cir. 2010); United States v. Smith, 413 F.3d 1253, 1279 (10th Cir. 2005); United States v. Peppers, 302 F.3d 120, 127 (3d Cir. 2002) (employing ‘plenary review’). And at least one of our prior cases implicitly supports this position. See United States v. Flewitt, 874 F.2d 669, 676 (9th Cir. 1989) (holding that ‘the district court erred by not allowing the defendants to proceed pro se at trial’ (emphasis added)). The government contends that we should apply an abuse-of-discretion standard because the termination of a defendant’s right to self-representation implicates a district court’s management of the courtroom. The Seventh Circuit has taken this position. See United States v. Brock, 159 F.3d 1077, 1079 (7th Cir. 1998). Because we think the result in this case is the same under either standard, we need not resolve this split in authority. See United States v. Smith, 780 F.2d 810, 811 (9th Cir. 1986) (declining to clarify the correct standard of review because the outcome would be the same under any standard). (emphasis added)

The Sixth Amendment and Self-Representation

The Sixth Amendment grants a criminal defendant ‘personally the right to make his defense.’ Faretta, 422 U.S. at 819, 95 S.Ct. 2525. This right guarantees a defendant ‘actual control over the case he chooses to present to the jury,’ and it ‘exists to affirm the accused’s individual dignity and autonomy.’ McKaskle v. Wiggins, 465 U.S. 168, 178, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). As the Supreme Court has recognized, the right to self-representation has a longstanding historical pedigree, having been imported by the Framers from English legal practice. See Faretta, 422 U.S. at 821–32, 95 S.Ct. 2525. Although the Sixth Amendment does not explicitly articulate a right to self-representation, the right is implied by the Sixth Amendment’s language. Under the Amendment, ‘it is the accused, not counsel, who must be “informed of the nature and cause of the accusation,” who must be “confronted with the witnesses against him,” and who must be accorded “compulsory process for obtaining witnesses in his favor.”’ Id. at 819, 95 S.Ct. 2525. In short, ‘the right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.’ Id. at 819–20, 95 S.Ct. 2525.

The Right to Self-Representation is not Absolute

Even so, a defendant’s right to self-representation ‘is not absolute.’ United States v. Johnson, 610 F.3d 1138, 1144 (9th Cir. 2010). A district court ‘may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct,’ Faretta, 422 U.S. at 834 n.46, 95 S.Ct. 2525, or who is unable or unwilling ‘to abide by rules of procedure and courtroom protocol,’ Wiggins, 465 U.S. at 173, 104 S.Ct. 944.

Several cases illustrate this principle at work. For example, the right to self-representation may not be terminated even though a defendant ‘files numerous nonsensical pleadings, is uncooperative at times,’ insists ‘on wearing prison garb in front of the jury,’ and confusingly tells the jury that ‘he wants the jury to “enter a guilty plea”’ during opening statements. Johnson, 610 F.3d at 1143–44. Similarly, a defendant’s self-representation cannot be revoked merely because the defendant lacks familiarity ‘with the rules of evidence or the specifics of criminal procedure.’ United States v. Lopez-Osuna, 242 F.3d 1191, 1200 (9th Cir. 2000); see also Flewitt, 874 F.2d at 674–75 (holding that a defendant does not forfeit the right to represent himself by failing ‘to prepare properly for trial’ or filing ‘continual motions’ that are largely irrelevant). On the other hand, the right to self-representation can be terminated when a defendant engages in ‘heated discussions’ with the judge, threatens a juror such that the juror must be dismissed, and tells the jury something that the district court specifically ordered him not to disclose. United States v. Mack, 362 F.3d 597, 599 (9th Cir. 2004); see also Badger v. Cardwell, 587 F.2d 968, 971–73 (9th Cir. 1978) (affirming the removal of a pro se defendant from the courtroom after he engaged in ‘an increasingly heated dialogue’ with the judge, ‘raised a clenched fist’ at the judge, and ‘taunted the court to expel him’).

The Facts in this Case Do Not Support the District Court’s Termination of the Defendant’s Right of Self-Representation

When viewed in comparison to these cases, the facts here do not support the district court’s termination of Engel’s right to represent himself. Unlike the defendants in Mack and Badger, Engel was not defiant and did not engage in blatantly outrageous conduct, such as threatening a juror or taunting the district judge. To the contrary, Engel merely asked a question prejudicial to the government. When the government objected, Engel remained calm and ultimately acquiesced in the court’s decision to revoke his right to self-representation. He was never removed from the courtroom, nor did he need to be removed.

The Defendant’s Alleged Disobeying of a Prior Court Order

This conclusion is not undermined by the district court’s suggestion that Engel had disobeyed a ‘prior court order’ by asking whether Love was under criminal investigation. A defendant may forfeit the right to represent himself if he ‘fails to obey the rulings of the court.’ Flewitt, 874 F.2d at 673; see also Wiggins, 465 U.S. at 173, 104 S.Ct. 944 (noting that a self-represented defendant must be ‘able and willing to abide by rules of procedure and court protocol’). But it is not clear that Engel did violate a court order. The order to which the district court appears to be referring is an oral ruling denying a motion to compel Love to appear as a witness because questioning him about the events detailed in the report would be irrelevant. In that oral ruling, the court did not specifically address whether other witnesses could be asked about the investigation of Love. Perhaps it was implied that such questions should not be asked, but the order is not so unambiguous such that Engel’s conduct clearly violated it.

And even if Engel did violate that single order, that is insufficient to justify terminating his right to represent himself. Termination may be appropriate when the defendant has engaged in ‘severely disruptive behavior.’ Lopez-Osuna, 242 F.3d at 1200. Prior to this moment on the twenty-first day of trial, Engel appears to have complied with all the court’s orders. Indeed, the district court never previously had occasion to reprimand Engel for disobedience or threaten to revoke his right to represent himself. Had Engel repeatedly violated the court’s orders, that might be sufficiently disruptive to revoke his pro se status. But a single instance of disobedience that is unaccompanied by open defiance or disruption does not justify the termination of Engel’s constitutional right to self-representation without prior warning. Engel’s single question appears no more disruptive or obstructive than questions sometimes asked by counsel, to which opposing counsel would object. Had Engel’s own counsel asked a similar question, the district court would have sustained the objection and, most likely, admonished counsel. As a result, the district court’s action violated Engel’s Sixth Amendment right.

The District Court’s Error Was Not Cured by Permitting the Defendant to Present Argument

This violation was not cured by the fact that the termination of Engel’s right to represent himself was only for a limited time. The Sixth Amendment right to self-representation ‘applies at all critical stages’ of a criminal prosecution. United States v. Rice, 776 F.3d 1021, 1024 (9th Cir. 2015). George, the standby counsel appointed to represent Engel, cross-examined several of the government’s witnesses. The cross-examination of the prosecution’s witnesses at trial is clearly a critical stage. See United States v. Yamashiro, 788 F.3d 1231, 1234–35 (9th Cir. 2015) (‘A critical stage is any stage of a criminal proceeding where substantial rights of a criminal accused may be affected.’ (internal quotation marks omitted)). Thus, even though the district court reinstated Engel’s right to represent himself before closing arguments, Engel was precluded from cross-examining government witnesses, violating the Sixth Amendment.

Sympathy for the District Judge

We are sympathetic to the situation the district court faced. The risk of declaring a mistrial after twenty-one days of trial in a high-profile case with six co-defendants is a risk that ought to be avoided. But the Sixth Amendment guarantees a defendant’s right to represent himself. And that right can be revoked only when the defendant exhibits clearly defiant or obstructionist misconduct. Engel’s conduct here falls far short of that standard.

The Holding and the Result of the Case

We conclude that the district court’s termination of Engel’s right to represent himself violated the Sixth Amendment. A violation of a defendant’s Sixth Amendment right to self-representation is structural error. See Wiggins, 465 U.S. at 177–79 & n.8, 104 S.Ct. 944; Rice, 776 F.3d at 1025 (‘The Supreme Court has found denial of the right of self-representation to be structural error because it deprives a defendant a fair chance to present his case in his own way.’ (internal quotation marks omitted)). Thus, we must vacate Engel’s criminal conviction and remand for a new trial.

Vacated and remanded.

My Thoughts

  • There are no Fifth Circuit cases after Weast on this issue.
  • From what I have seen over the years, the right to self-representation is most often the right to a speedy verdict of guilty.

Shout Outs

/

Congratulations to Kristin Brown, who got a reverse and render verdict of acquittal in Harper v. State, 05-19-00323-CR (Tex. App.—Dallas, July 16, 2020, no pet. h.). The case revolved around a tampering with evidence charge. Kristin argued there was insufficient evidence to show tampering or attempted tampering. Rather, the evidence showed her client was trying to dispossess himself of a single pill, alleged but not shown to be alprazolam.

Shoutout to Shana Stein, who received a reverse and remand for abuse of discretion in the Tenth Court of Appeals. Way to go!

Kudos to Charles Arnone, who was appointed to an appeal of an assault/family-violence case in which the client received a sentence of 15 years. The state confessed error adjudicating the case as a second-degree offense when it should have been third-degree, making the maximum sentence 10 years. Great work, Charlie!

Excellent work by Shea Place, who represented Joe Bryan before the Board of Pardons & Paroles. Mr. Bryan was wrongfully accused for the murder of his wife and spent more than 30 years in prison. Together with the Innocence Project of Texas and Allen Place, Shea successfully represented Mr. Bryan and got Mr. Bryan paroled. Awesome job!

1 2 3 4 5 15