Ethics and the Law: Spill the Beans

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Lawyer, client, and prosecutor were in front of judge on an agreed plea. Client entered a plea of guilty for ten years in prison. Judge was asked to give client credit for back time. Defendant announced that he has been in custody since March 19, 2019. Defense lawyer agreed. Judge sentenced client, gave all requested credit and away they all go.

Shortly afterwards, defense lawyer realized the client should have given credit from jailing on March 19, 2020, not 2019, and told the client. Client responds “No, I did not say March 19, 2019.” The Defense lawyer promptly obtained a copy of the reporter’s record and confirmed the mistake and presented it to the client.

Under Texas Rules of Disciplinary Conduct 1.05(f) and 3.03(a), (b) & ( c) and their commentaries, the rule is that if something is material, it must be revealed. 

The above misrepresentation is material and those ethical rules apply. Defense counsel needs to ask that client for permission to spill the beans and clean up the mess. It is best to put the request for permission to the client in writing so there is record in case client later files a grievance claiming a privilege violation.

Then if the client refuses to agree to correct the misrepresentation, defense counsel is obligated to inform the presiding judge and prosecutor of the mistake in requesting and obtaining an extra year of jail credit.

Since defense counsel is acting in good faith, the judge may just leave it alone.

Chapter & Verse: Duties of District Attorneys

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Well, here it is. We’ve made it through the first chapter in this behemoth of a cursed code. It’s just the beginning, and I’m feeling like Lawrence Sterne’s character, poor old Tristram Shandy, trying to write his wretched memoirs but each day he recalls takes him two days to write down, the insurmountable stack of memories piling up behind him as the stack of papers in front of him fails to keep up the pace. Sterne’s novel – in nine mind-numbing volumes – was once the talk of the 1760’s, with Shandy weighting in on everything from definitions of honor to how to best make button-holes. But now, it is relegated largely to the halls of academia where bored graduate students are forced to push through it at the behest of tenured faculty and their insistence on the importance of proper buttonholing.

Today, though… today we make some real headway, and we start an all-new chapter. TCCP Art. 2.01 “Duties of District Attorneys.” Please read along if you can, but the pertinent part is the part I will quote here, “It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” You see that, “progressive” prosecutors? You see that, Chief of Capital Misdemeanors? You see that, sleeping intake DA? PRIMARY. That means first. Your FIRST duty is to make sure justice is done. Tell me the last person at the DAO who was promoted because of their compassion, high dismissal and alternative diversion rate, and ability to see and solve problems that are creating continued interactions with the criminal courts. That’s not the rubric for promotion, of course.

Art. 2.01 is the statutory version of Brady for us. It doesn’t give us quite as much – notice that the language is “capable of establishing the innocence…” – as Brady’s more generous, “tends to establish.” (Emphasis added). See:  Brady v. Maryland, 373 U.S. 83 (1963). That said, it’s not the definition of the evidence that I think is the biggest chasm here between defense and State. It’s the definition of the word “justice.” 

I am sick of banging my head against this Article. Sick of listening to ADA’s with little life or legal experience tell me what my client “deserves” with no awareness of what the State can actually prove. Sick of ADA’s, casually pleading away people’s lives, negotiating years like dollars, like a kid’s poker game for candy.

The Texas defense bar has long let political infighting and competition for appointments prevent them from wielding the power that the defense bar should have in matters of how our clients are treated and how we are treated, but that needs to end.  No matter how many cases a beleaguered defense attorney, public or private, carries, an ADA will always carry more. We have the power to set things for trial, to give them motion sickness, to challenge and claw and fight each step of the way if we don’t get what we want. TCDLA does a great job of organizing, supporting, and connecting us, but we need to utilize our resources better. Let’s actually pull stuff out of the motions bank, contribute our own motions, and push for more and better discovery earlier and harder. Don’t get bogged down in local custom that exists just because it always has, even though it’s not in our clients’ interest.

I know it’s a slog. I know you’re busy. I know you think you don’t have time. But really, I’m not talking about inefficiency – I’m talking about extreme efficiency. Learning the law, learning the things we can do for our clients and how we can do them in a way that is heard, that is effective, and that is not just waiting until the next setting to try and ask the DA for discovery again and then getting a reset. We all have something to offer the defense bar and the other people in it. Part of the reason prosecutors handle things the way they do is because we let them. We are a legion of skilled, educated professionals with a lot of unique experience among us, and we need to demand what they are obligated to give our community but often refuse to: Justice. We can’t let the buttonholes at the DAO get in our way.

Love Always, Allison

Federal Corner: United States v. Robinson

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United States v. Robinson
Court is required to evaluate 18 U.S.C. § 3553(a) factors.

In United States v. Robinson, 741 F.3d 588 (5th Cir. 2014), a defendant received a re-sentencing for a district court’s failure to consider his cooperation under 18 U.S.C. § 3553(a). This case’s reasoning is important not only to the 5K departure that was requested, but also generally to any departure or variance that is requested.

Facts of the Case

This case reads like many other suppression cases-in 2010, investigators determined that there were images of child pornography in a suspect’s possession. The investigators obtained subscriber information and the Internet Protocol “IP” logs and traced them to a particular IP address assigned to the office of Accurate Roofing Company, Inc.

The investigators determined that the owner’s son appeared in one of the images and obtained a search warrant for both Robinson’s residence and his office. Robinson gave a statement initially but stopped when he was asked how pictures of his son ended up on another computer. The next day, after receiving his rights, he gave a full recorded confession.

Suppression and Conditional Plea

Robinson moved to suppress the evidence as well as the statement. He argued that the affidavit “failed to establish a nexus between the place to be searched and the evidence sought.” The district court denied the suppression motions after an evidentiary hearing. Robison obtained a conditional plea agreement and pled guilty to one count of production of child pornography, one count of distribution of child pornography, and one count of possession of child pornography.

Cooperation & Sentencing

Robinson filed a sentencing memorandum which, in relevant part, requested a lower sentence based on his cooperation with investigators in at least two other cases. At sentencing, Robinson urged the Court to consider a reduction under 18 U.S.C. § 3553(a)(2) of his sentence based on cooperation. The district court, however, stated, “it does you no good for the purposes of sentencing in that the Court does not have before it a U.S.S.G. §5K1.1 motion to consider.” The district court further stated that it was a “moot question” whether Robinson would have received a reduction under §5K1.1 because the Government had chosen not to file such a motion. There’s no reason given why they withheld the motion.

As an additional thought, the opinion discusses how Courts need to be specific when making findings. Ask the Court to specify why your client is not getting what you’re advocating for.

Appeal to the 5th Circuit

This case is not about the search and the Court of Appeals made short work of the suppression argument. However, it did provide help in the sentencing realm. The discussion started with outlining that the Court must conduct a two-step process at sentencing – first, calculate the sentence with the “now-advisory Sentencing Guidelines;” secondly, apply an individualized assessment.

Robinson made a winning argument that the Court must consider his cooperation in the individualized examination of his assessment under § 3553(a). The Court of Appeals held that the 5th Circuit was joining its sister circuits in expressly holding that a sentencing court has the power to consider a defendant’s cooperation under § 3553(a), irrespective of whether the Government files a § 5K1.1 motion. We further join our sister circuits in holding that a sentencing court’s failure to recognize its discretion to consider a defendant’s cooperation under § 3553(a)(1) is a significant procedural error.

Non-Harmless Procedural Error

In deciding that the Court committed a procedural error, the most significant point the Court of Appeals addressed was that the trial court appeared to believe its hands were tied and it could not depart.

The § 5K1.1 motion is certainly within the Government’s prerogative to file. They did not in this case. And, so, it’s a moot question as to whether or not you have—would have received a departure from the 720 months had the Government filed that motion. It’s simply not before the Court.

Robinson managed to avoid the dreaded “harmless error”-The Government argued that the error, if any, was harmless. The Court disagreed and discussed its reasoning in United States v. Burns, 526 F.3d 852, 862 (5th Cir. 2008) (holding that defendant was “entitled to have his sentence set by a judge aware of the discretion”) with the current scenario. In Burns, the defendant in a pre- Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558, 169 L. Ed. 2d 481 (2007) (crack mandatory and minimums were the only required parts under statute, not the 100:1 disparity) had argued that the Court should grant a departure, but the Court had believed it could not.

However, Burns had an additional quirk where the Court stated that it would have imposed the same sentence if it would have considered the impermissible pre-Kimbrough disparity stating that “the Court [Burns district court] finds it has no—limited discretion, if any. And if I do have discretion, I exercise my discretion not to downward depart on that basis.” The Court of Appeals in that scenario reversed and remanded for another sentencing.

The Court of Appeals in Robinson found that it had even stronger reasons in the instant case, because the Court did not say that it would have given the same sentence if it had considered the assistance in the other two cases by Robinson. Unfortunately for Robinson, it appears from the re-sentencing that the Court did give the same sentence. That sentence was upheld on reasonableness grounds.

Practical Applications

I only knew one defense attorney who never felt the sirens call of the 5K. Unlike her, most of us, especially Criminal Justice Attorneys, will have to deal with cases like Robinson where our client decides to sell his soul and participate in a part of the process that is deeply baked into the federal system. Simply because a court has the discretion does not mean that it will exercise its discretion.

Going forward, what can the practitioner do to ensure that if his client decides to cooperate, that their cooperation has the best chance of being rewarded- either by the United States, which makes the matter straightforward, or by the Court’s 3553(a) analysis?

We need to look back at the pre-Booker case United States v. White, 71 F.3d 920, (DC Cir. 1995). In White, the defendant obtained a plea agreement to a regular (18 U.S.C. 371) conspiracy with a drug basis, but that plea agreement did not have a provision for cooperation. The Court there discussed that there was no “fairness” or “bad faith” review available under the Constitution. This would have been available to him if he had a plea agreement with a cooperation provision. It cited to United States v. Jones, 313 U.S. App. D.C. 128, 58 F.3d 688, 692 (D.C. Cir.) (noting that a plea agreement with substantial assistance provision “provides additional protection” because “like all contracts, it includes an implied obligation of good faith and fair dealing”). This brings us to a practice in the Western District where a defendant many times is faced with a sealed plea addendum in any case where there is a plea agreement. There may be a benefit to the inclusion in that plea agreement of 5K or cooperation language as you may be receiving “additional” protections.

The other issue that was raised by Robinson is why did the Government choose not to file a 5K? The Court “acknowledge[d]” the cooperation, but was it just not complete enough for the Government? White was illustrative on this point as well- it cited to United States v. Drown, 942 F.2d 55, 59 n.7 (1st Cir. 1991), that discussed a temporal limitation on passing the 5K cooperation from sentencing to a post-sentencing Fed. R. Crim. Proc. 35(b) motion. In Drown, the Court recognized a temporal stricture of 5K1.1 and rule 35(b), stating that a prosecutor must make a good faith evaluation of the assistance rendered before sentencing without considering the possibility of a later rule 35(b) motion. The Drown Court stated that failure to do so touches on a criminal defendant’s due process rights, but it unfortunately did not further explain or justify how.

Final Thoughts

  • Conditional plea agreements are rare in some jurisdictions, but vital as they are your only way to not waive pre-trial motions if a plea will be entered.
  • Consider taking that plea agreement with cooperation language.
  • Watch out for AUSAs who want to massage your cooperation past the sentencing date.

From the Front Porch: The Fear & Future of Remote Jury Proceedings

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When COVID-19 shuttered the state’s courthouses in March 2020, the Texas Supreme Court responded by authorizing Texas courts to hold court proceedings remotely, by video conference. The emergency orders prohibited all in-person jury trials, and the Governor promptly suspended the 90-day mandatory release of incarcerated defendants awaiting trial.1 Initially, Texas judges and lawyers overwhelmingly opposed the shift online. However, as infections continued to rise with no viable options on the horizon, most Texas courts grudgingly moved their operations to Zoom.

Over the next twelve months, Texas courts held over 1.2 million remote proceedings, including evidentiary hearings and trials of all types, save one – felony criminal jury trials.

As cases moved forward online, many attorneys came to appreciate the benefits of virtual court proceedings.2 But while courts could compel remote jury trials in civil cases, the emergency orders forbade courts from doing so in criminal cases. The parties must agree for a remote criminal jury trial to take place, and simply put – defense attorneys won’t do it.

TCDLA has taken a strong and vocal stance against remote jury trials in felony criminal cases, and as of the writing of this article, not one has been conducted in Texas. Due to widespread initial (and justifiable) concerns about the efficacy and equity of online trials, criminal defense attorneys employed a wait-and-see approach. During that year-long wait, over fifty remote jury proceedings took place in Texas courts. We now see that remote jury proceedings present a viable and valuable option for criminal defendants, and an opportunity to improve the equitable administration of justice in a system many see as inherently and historically inequitable for minority defendants. The wait is over. It’s time to take what we’ve learned and consider anew whether and when remote jury trials should be undertaken in criminal cases.

The Fears

When remote court proceedings first began in Texas, a cacophony of voices decried a long list of fears and anticipated flaws. Among them was that a “digital divide” would exclude minorities and economically disadvantaged persons from the process, resulting in White,3 older, affluent juries, thus negatively impact minority criminal defendants.

Each of us has at some point in our legal career been advised to, “Never ask a question if you don’t know the answer.” After years in the courtroom, most seasoned litigators try to avoid, but feel generally able to handle, the unexpected. At some point, you feel as if you’ve seen it all. But this confidence does not carry over into the virtual world, and as we’ve seen repeatedly over the last year – from nudity to surgery to lawyercat – with remote hearings you have never seen it all. Although almost all litigators now report being technologically competent in remote proceedings,4 many lawyers candidly admit that they oppose virtual proceedings partly out of fear of looking foolish or inept, or embarrassing themselves on YouTube. After all, professional reputations take a lifetime to build and only one foolish moment to damage, especially if that moment goes viral.

What we must determine as a profession is whether the benefits of remote proceedings eclipse the risks associated with the fears of moving online.

The Facts

When remote jury trials were first contemplated, a primary concern was that a “digital divide” – meaning a technological gap between segments of the community – would exclude minority and lower-income residents from jury pools. While seemingly a logical concern, reports from the more-than 50 remote jury proceedings held in Texas between June 2020 and April 2021 show otherwise.5 Not only did the digital divide fail to materialize as feared, the digital divide is far smaller than the pre-COVID financial or transportation divide.

Dire predictions of widespread technological exclusion from remote jury proceedings often rely upon the fallacy of comparing a dystopian worst-case scenario that never materialized with a utopian pre-pandemic system that never existed – one where all summoned potential jurors were able to attend court, in person. This idyllic view of the pre-COVID era is far from reality. In many counties, historic jury response rates hover in the teens, and some have never exceeded 50% for in-person trials.

Obviously, considerations other than access to technology often influence summoned jurors’ ability to attend court, such as lack of reliable transportation or day care. While courts cannot provide free transportation for an in-person appearance, many courts (with the help of the Office of Court Administration) can and in fact have provided free use of equipment for remote proceedings, thus eliminating the transportation gap and closing the technology gap among potential jurors. And daycare became less of a concern when most parents did not need to leave their homes in order to answer a summons (certainly not the initial response, which consists of filling out a form online, rather than driving to a courthouse for half a day or more).

The ubiquity of smart phones, tablets, and personal computers, coupled with the efforts of the OCA, have resulted in fewer summoned jurors failing to appear remotely than failed to appear in-person. Courts report that response rates for remote jury trials are significantly, and often dramatically, higher than in pre-pandemic in-person jury calls.6 And as discussed below, these larger response rates have yielded jury panels that constitute broader and more representative cross-sections of the community.

Conventional wisdom posits that younger, more diverse jury panels are better for criminal defendants than older, all-White panels. This is not controversial, and for good reason – the numbers bear it out.

A Duke University study published in 2012 concluded that minority defendants in criminal jury trials fare significantly better when the jury pool contains members of their own race.7 The study found that conviction rates of Black defendants decrease by 10% when the jury pool includes at least one Black member.8 This is especially significant in Texas, where roughly two-thirds of incarcerated adults are Black or Hispanic.

A direct correlation is also seen between average jury age and conviction rate.9 Conviction rates decrease by roughly one percentage point for each year decrease in the average age of the jury; juries with an average age under 50 convict an average of 11% less often than juries with an average age over 50.10 Simply put, younger juries result in lower conviction rates.11

Lawyers customarily rely on such conventional wisdom in choosing jury or bench trials, and in exercising peremptory challenges.12 It is understandable, then, that given the common fear of a “digital divide,” defense attorneys would resist any change that could exclude minorities and younger jurors. But after more than fifty remote jury proceedings in Texas, and countless others across the country, we are confident that the opposite is true.

Fears of a racially disparate impact are allayed by Texas judges who’ve presided over remote jury proceedings, who overwhelmingly report that minority participation in such proceedings is significantly higher than in pre-pandemic in-person proceedings. Taking Presidio County as an example, the most recent in-person jury panel included no Black or Asian participants, while the most recent remote panel included both. As shown above, this simple difference can have a significant impact on the jury selection process, and ultimately the outcome of the trial.

Data also shows that the average age of remote jury pools trends lower than in-person jury pools. Young adults are more comfortable online and enjoy digital interactions more than seniors, and thus seem more likely to respond. Retirees who might have foregone the over-70 exemption for an in-person trial may be more likely to claim such exemption for a remote proceeding. Whatever the reason, courts report that remote jury panels are on average younger than in-person panels. By way of example, the average age of the most recent Presidio County in-person jury panel was 51.3 years, while the most recent remote panel averaged 48.7. Other courts report even more dramatic drops in average jury age in remote proceedings, by as much as 7 years. And the larger the drop, the greater the impact on conviction rates.

The Personal and Professional Challenge

Lawyers do not become litigators to sit in their offices in front of a computer. Litigators are often showmen and women; they want to be in the courtroom, where they “own the room.” Some trial lawyers are concerned that the remote setting does not fully showcase their skills and charisma. While understandable, the Texas Supreme Court expects lawyers to rise above such personal interests when it benefits their clients.

“A lawyer shall employ all appropriate means to protect and advance the client’s legitimate rights, claims, and objectives. A lawyer shall not be deterred by a real or imagined fear of judicial disfavor or public unpopularity, nor be influenced by mere self-interest.” Texas Lawyer’s Creed, Sec. II.

This expectation goes hand-in-hand with the lawyer’s duty of technological competence, requiring all to become proficient in legal software, and know the benefits and risks associated with using relevant technology.13

It is the lawyer’s duty as advocate to seek the best possible outcome for his or her client. Our experiences over the last year indicate that, by giving in to fear of the unknown, criminal defense attorneys may be missing out on a historic opportunity to help their clients. Admittedly, all other things are not equal between the two types of proceedings. As with all important choices, there are benefits and detriments to each option, and no one knows how they will ultimately come into play. No one is suggesting that remote jury proceedings are right for every client and every criminal case. But given what we now know, there are undoubtedly cases where criminal defendants would be better served in remote proceedings than in-person proceedings. The challenge is not in avoiding remote jury trials – that part is easy. The challenge is in knowing when your clients’ interests, and your ethical obligations, require them.

Jury selection is largely an exercise in playing the odds – in trying to determine which juror is more likely to favor the defense or the prosecution. Lawyers cannot read minds, so we rely in large part on questionnaires, demographics, guesswork, and intuition to determine as best we can the biases and predilections of potential jurors. What we know is that more diverse juries produce significantly lower conviction rates for minority defendants, and that younger juries produce lower conviction rates for all defendants. And we know that jury panels in remote trials during the pandemic are younger and more diverse than were in-person pre-pandemic jury panels. While it is yet to be determined whether or to what extent these statistical correlations will carry over into remote jury trials, we owe it to defendants across the state who are languishing in jail awaiting jury trials to pursue these opportunities, if we are to fulfill our moral, ethical and professional obligations to them, and be prepared for the future.

Shout Outs

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Congratulations to Sarah Roland for receiving the Lubbock Area Bar Association’s President’s Award, as she just finished her term. Great work, Sarah!

Kudos to Carlo D’Angelo for receiving an acquittal on a big drug case last week in Federal Court. Congrats on your hard fought victory, Carlo!

We will miss Lisa Gonzalez, who will leave the TCDLA Board and served as Vice Chair of the New Lawyers Committee due to being appointed as the 268th Associate District Court Judge. Congratulations, Lisa!

Kudos to Stephanie Alvarado, whose client was released from jail. His children were so excited to be reunited with their Daddy, they ran down the sidewalk to leap into his arms. Continuous Sexual Assault of a Child under 14 dismissed!

Jessica Canter, Claire Profilet, Lynnette DeBault, and Victoria Saxe obtained a directed verdict for their client in a jury trial on a misdemeanor assault – family violence case. Before getting a complete dismissal of the charges for their client by pointing out to the judge that the State had failed to produce any evidence of two elements of the charge, they vigorously fought the case, challenging the jury array and getting two potential jurors to admit on Voir Dire they would be biased against their client because of his race. Great job, ladies!

Congratulations to Nnamdi Ekeh whose client’s 2019 DWI Speedy trial motion was granted/dismissed. He thought he’d made a losing argument, as the government argued that the pandemic prevented a trial. The judge thought otherwise. Big reminder to keep shooting your shot no matter what!

Kudos to Tyler Flood, whose first jury (DWI) trial since the pandemic lasted 9 minutes and resulted in a not guilty verdict. Tyler’s client drove his industrial water truck though a guardrail and off the freeway into a ditch at 10:30 a.m… cooler in the truck and bottle caps in his pockets. He then hid a beer bottle in his pants… but not very well. The police found the bottle in his pants, after seeing him shove said bottle in through the fly.

Thuy Le fought against a case of infant abuse after a caseworker accused parents of not believing in western medicine – falling back on stereotypes of Asian parents. Thuy argued that medical records show the baby was premature at birth. The judge ruled no evidence of abuse and the baby was returned home just in time to celebrate their first birthday. Great job, Thuy!

When Daniel H. Wannamaker was assigned to a federal conspiracy indictment case, he was cool, confident and reassuring from the beginning, stated his client. After Daniel was a successful advocate, his client decided to return the favor, saying “He worked his magic and the case was dismissed! He truly fights for his clients and kept in constant communication with me. He always treated me kindly and with respect even though I didn’t actually spend any money on him. I highly recommend Dan. God forbid I get another federal case, but if I do, I will be calling on him again!” Kudos, Daniel!

Kudos to Josh Tetens and Michel Simer – whose client was found not guilty after serving 818 days in jail. They argued that the state failed to prove its case, as no weapon was seen by witnesses in the stabbing accusation. Their client cried tears of joy as he left the courthouse after being found not guilty of aggravated assault.

May 9th marked three years since Stan Schneider and David Schulman presented an argument to the court of appeals in Waco on the Michael Morton Act. The appearance was David’s first before the Waco Court, meaning he had, after 32 years, finally appeared in front of all of Texas’ fourteen Courts of Appeals. Congratulations, David!

Congratulations to Ryan Kreck! He received his second not guilty in a row on Continuous SXAB of a child in Collin County. Great work, Ryan!

Congratulations to Michelle Simpson Tuegel, Russell David Hunt Sr., and criminal appellate attorney, Walter Reaves! The Texas Court of Criminal appeals vacated the death sentence of a client they represented at trial. The death sentence was vacated based on evidence of intellectual disability which they fought hard to prepare and present evidence on at trial. Sometimes they work comes through, years later…7 years to be exact. Great work!

Don’t be shy, brag on a colleague! E-mail your shout-out to to be featured in our next issue.


Staff Highlights:

TCDLA’s Executive Assistant: Keri Steen

Keri is the glue that holds our office together, helping to keep us organize & on track! -Melissa Schank

Title: Executive Assistant
Native State: Wisconsin
Zodiac Sign: Scorpio
Favorite Color: Purple
Loves to: Play board games
Fun Fact: She’s a Green Bay Packers fan!

Keri was a stay-at-home mom for 15 years before she joined TCDLA five years ago. Her household has twin daughters and one son; along with two dogs, a cat, a bearded dragon, a hognose snake, a green iguana, and their newest edition – an Uromastyx. When she is not working, she loves to watch movies and play board games with her family.

Current Issue: May 2021

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Features

9 | Strike Force is Not Just For Young Lawyers – By Paul C. Looney
16 | Free Speech in Texas – By Mark Bennett
19 | Is it Time to Defund TJJD’s State Schools? – By Rubén V. Castañeda
24 | A Better Kind of Wake-up Call – By Savannah Gonzalez
26 | Get Back to Where You Once Belonged: TCDLA Declaration Readings July 2, 2021 – By Chuck Lanehart
27 | COVID-19 and the End of DWI Breath Testing – By Jason Sosa
29 | A Memorial: Roy Minton, 1931-2021 – By Sam Bassett
33 | Attorney-Client Disagreements: Who’s the Decider? – By Matthew Hefti

Columns

5 | My Personal Thoughts
7 | Executive Officer’s Perspective
8 | Editor’s Comment
10 | Ethics and the Law
11 | Chapter & Verse
12 | Federal Corner
32 | Shout Outs

Departments

4 | CLE Seminars and Meetings
36 | Significant Decisions Report

My Personal Thoughts: My Map Beats Senator Huffman’s Map

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Texas appellate court justices, state and local lawyer organizations, minority interest groups, rural lawyers, and elected officials from across the political spectrum breathed a sigh of relief when Senator Joan Huffman (R-Houston) quietly pulled from consideration on Friday afternoon, April 9, 2021, her legislative proposal to blow up the intermediate appellate court system and cut the number of districts from 14 to seven.

But if my sources are correct, Sen. Huffman, Lt. Gov. Dan Patrick, “Texans for Lawsuit Reform,” and others are angling for a special legislative session later this year, which may (among other things) reintroduce some version of an appellate court redistricting map that has drawn sharp rebuke from Republicans and Democrats alike. 

During a livestream hearing before the Senate Committee on Criminal Jurisprudence on April 1st, dozens of respected, high-profile witnesses testified that Huffman’s SB 11 was expensive, unnecessary, created instability in the intermediate appellate system at a time when a tsunami of backlogged cases requires stability, and threatened to substantially reduce the number of minorities who will serve as justices. Past TCDLA President David Botsford vigorously argued that if certain appellate districts have too many cases, it would be easier and far less expensive to give the overburdened courts more resources. (A recent cost-analysis from the non-partisan Office of Court Administration revealed that Huffman’s proposal would cost taxpayers nearly $40 million in the first two years for courthouse construction, etc., and would save less than $3 million per year after that.)

Meanwhile, lurking in the background of the SB 11 debate like that shadowy, hat-wearing Benny Watts character in The Queens Gambit, were the political implications of a redrawn appellate map. Senator Nathan Johnson (D-Dallas) observed that Huffman’s redistricting plan — which the bill’s supporters insist is actually a “restructuring” plan — would likely result in five Republican districts and two Democratic. 

For her part, Huffman claimed she was completely unaware of and had not even considered the partisan breakdown of the proposed map. Rather, it was merely about efficiency and mandating a more even distribution of appellate cases.

At least for now, I think we should take Senator Huffman at her word. Let’s assume this isn’t about politics or as several witnesses derided, “a solution in search of a problem.” Let’s assume this is about efficiency and evening out judicial workload. Preferably without spending too much money. 

Unfortunately, a careful review of Huffman’s map shows that it fails to accomplish its purported goals. It also absurdly combines Dallas and Austin into a single district, silences El Paso culturally and politically by combining it with Midland/Odessa and roughly one third of the rural Republican counties in west Texas, and bizarrely sets aside the same number of districts — one! — for Greater Houston as it does the far-less populated Texas Panhandle. 

When I saw Huffman’s map and watched the committee debate on livestream, I (perhaps in a state of delusion) thought, “I bet I could draw a better map.” So, I powered up seasons one and two of Fauda on Netflix (10/10, by the way) and constructed my own version during breaks. In the interest of transparency, I must say I believe appellate redistricting is ill-conceived, poorly timed, wasteful, and looks suspiciously like a power-grab at a time when Texas’ political landscape may be slowly shifting. 

Nevertheless, if we were to draw a fair appellate map with an even case distribution — and for some crazy ridiculous reason we had to have exactly seven districts — then I submit my own version is clearly better than the one Senator Huffman offered. 

Methodology and Analysis

In order to ensure a balanced distribution of cases across the seven new appellate districts, the Scheiner Plan would divide the total number of filed appeals by seven. According to the Annual Statistical Report for the Texas Judiciary for Fiscal Year 2019, available at www.txcourts.gov/statistics/annual-statistical-reports/, there were 9,401 civil and criminal appeals in the last non-pandemic year. So, unless you want to artificially adjust the numbers to keep current justices perpetually employed, this means each of the seven new proposed districts should handle an average of 1,343 cases. Each district should employ 11 justices. (There are currently 80 intermediate appellate justices in Texas; my plan calls for 77.)

“Houston” (purple) – With a 2019 appellate caseload of 1,492, Harris County would be the most active district. Unfortunately, there is no way to shrink the case load without transferring cases to another district or cutting up Harris County. Note: This is precisely why Harris County and its surrounding area have two appellate districts in the current system.

“Gulf Coast/Border” (pink) – This district would give voice to Latinx voters and, as with Districts 1, 3 and 6, likely ensure justice positions for people of color. The Main Court could be in the existing structure in Corpus Christi (with some office expansion) and a Satellite Court could be in the existing structure for the El Paso Court of Appeals. Unlike the Huffman Map, the Scheiner Map’s Gulf Coast/Border District would connect El Paso with communities that are more culturally and politically similar than the conservative rural areas of west Texas. 

“South Central” (Blue) – If we must put Austin together with another large city in order to balance the case numbers, it makes far more sense to pair it with nearby San Antonio than Huffman’s suggestion of Dallas. You could have a Main Court in San Antonio and a Satellite Court in Austin, using existing structures. 

“Northwest” (green) – This district would be insanely large. But it illustrates just how heavy the caseload is in urban jurisdictions versus rural. Tiny Harris County, all by itself, has a larger caseload than the entire green area in the Scheiner Map. In fact many of the counties in the Northwest district had zero or only a handful of appellate cases in 2019. I would suggest a Main Court at the existing structure in Amarillo (with expanded offices) and a Satellite Court in Midland. These courts should make frequent use of Zoom for oral arguments, in order to cut down on lawyer travel expenses. 

“Ft. Worth/Waco” (orange) – Ft. Worth would be the biggest fish in this pond. It could house the Main Court in an existing structure. Perhaps Waco could use an existing structure for a Satellite Court. 

“Dallas/Tyler” (purple) – I would have loved to put Dallas together with Ft. Worth, but the total caseload would be too high. (Sorry, Tyler, you’re going with Dallas and perhaps you can have a Satellite Court.)

“East Texas” (yellow) – Main Office would be at the existing structure in Beaumont. To save money, this district could share a Satellite Office with District 6 in Tyler. 

Obviously, anyone can draw a map. In fact, it doesn’t take much effort to draw an appellate court redistricting map that is fair, efficient, politically balanced, and provides for an even distribution of cases. While it’s still highly questionable whether appellate redistricting is necessary or advisable, we know that Senator Huffman, Lt. Governor Patrick, and others can do much better in attempting to meet their stated goals. 

If they come back with a map that’s even remotely similar to the one Senator Huffman pulled from consideration, we’ll know their intention is something other than what they’ve told us.

Executive Officer’s Perspective: Connecting

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“As the world becomes a more digital place, we cannot forget about the human connection.”

-Adam Neumann

It has been more than a year that we have been separated. The staff has worked remotely in shifts, venturing into the office as needed. But now we are all back in the office, working hard to ensure we have everything in place for our upcoming seminars, as well as providing the best possible service for our members and support for our legislative team.

Work at the legislature started slowly, as lobbyists didn’t even know if they would be able to meet in person with representatives. The legislative team, under the leadership of Bill Harris, has nevertheless visited the Capitol repeatedly, with many of our members testifying into the early hours of the morning.

Otherwise, life begins to return to normal. We recently held our first in-person program of 2021 in McKinney, and we will travel to Galveston next week for the Resistance theme seminar. On May 7 in Dallas, things really begin to pick up with the popular 14th-annual DWI Defense. And you know we’re busy gearing up for Rusty Duncan. Please note that we’re providing virtual options for both the DWI Defense and Rusty Duncan.

In-person Rusty will reflect the times we live in now. We will be following current CDC guidelines (though they may change at any time). We will require attendees to wear a mask, seated one person per six-foot table. Several additional rooms will allow you to view the event remotely, separated from the main ballroom.

We have also limited social and other events typically held at Rusty due to existing health concerns. But we will host an Awards Banquet Dinner to honor all our 2020 and 2021 award recipients. Congratulations to these honorees:

TCDLA Hall of Fame

Bill Wischkaemper (2020)
Jim Darnell (2020)
Mark Stevens (2021)
Mark G. Daniel (2021)

TCDLA Percy Foreman Lawyers of the Year

Michael Ware (2020)
Robert Callahan (2020)
Clay Steadman (2021)
Allen D. Place Jr. (2021)

TCDLA Charlie Butts Pro Bono Award

Allison Clayton (2021)

TCDLA Rodney Ellis Award

Jay Freeman (2020)
Jessica Priest (2021)

Friday evening, the Annual Membership Party sports a TCDLA 5-0 theme: Wear your fanciest beach duds. Be advised that a party precludes maintaining six feet of separation or any basic monitoring of CDC protocol that evening. That said, only about half our regular number can be accommodated under those guidelines. If you can’t attend in person, choose the virtual option. Either way, you will have the opportunity to go back and view a recording of the entire seminar.

You won’t want to miss the speakers scheduled for Saturday. And after the last presentation, of course, TCDLA will hold our annual members meeting, which you can attend in person or watch live on Facebook. There we’ll swear in our new president, Michael Gross, officers, and new and renewing board members. We hope you will stay connected, one way or another, with TCDLA and all our members!

Editor’s Comment: It’s Been an Honor

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It’s been one of my greatest pleasures to serve TCDLA as editor since Michael Gross entered the officer chain as secretary 5 years ago. The time has come, however, for me to step aside and allow new, fresh ideas and perspectives be involved. I have submitted my resignation as Editor of the Voice effective June 25, 2021. I will remain in an advisory capacity and will continue to serve TCDLA, but will be passing along the torch. This is certainly a bittersweet moment for me.

The Voice is bigger than any individual editor or author, and it always will be. It is a collective effort. Last March, I asked Jeep Darnell and Clay Steadman to join me as assistant editors. They graciously agreed, and I will be forever grateful. You never know what life is going to bring, and as the world was adapting and adjusting to a new normal during COVID-19, my family’s world turned upside down. In July, out of nowhere, my then four-year-old, Sam, suffered devastating medical issues. They have been ongoing but thankfully we are in a much better place now. It was Jeep and Clay who stepped in and picked up the slack with the Voice since my focus was completely on Sam. It was Melissa Schank who reassured me and kept things going. TCDLA has a real treasure in Melissa. And, recently, we added Amanda Hernandez to the fold. She has already exhibited editing prowess. It has been wonderful to have Jeep, Clay, and Amanda as part of this editorial team. We have certainly worked well together. My only regret is that I waited much too long before I recruited their assistance.

I have been blessed to work with giants like Buck Files, to talk to him each month, to read his columns, and to see him through to his 250th article. We all reaped the benefits of Michael Mowla’s SDR’s and are now benefitting equally from Kyle Therrian’s. Robert Pelton has consistently fielded calls and made sure we stay out of hot water ethically. The Chapter and Verse (Allison Mathis) and From the Front Porch (Dean Watts) columns are great additions. I have had the humbling duty of editing feature articles by lawyers much more experienced than me. I learn something new every month. I know we all do. These authors are the people who have tirelessly contributed month after month for the benefit of all of us. They are ones who should be thanked.

Michael Gross, thank you so much for having suggested me to fill this role when you joined the officer chain five years ago. It’s hard to believe it’s been that long now. I would like to think I have made a positive impact on the Voice and will be leaving it better than when I began. That’s always been my goal, at least. I have certainly enjoyed the work and the opportunities this position has provided.

Thank you, George, for brainstorming with me and editing the editor. George is my brother and best trial partner hands down.

Thank you all for reading the Voice and for trusting me to be your editor for so long. Thank you for all your submissions. Thank you for all your feedback – both good and bad. We value it all. Truly. Keep it coming because the goal will always be to continue to make the Voice a better resource for our members, and keep on submitting your articles. Your articles are the lifeblood of the Voice.

You likely know I’m a defense lawyer because of my late dad, George Roland. I’ve mentioned him before in my articles. He was the biggest Willie Nelson fan ever, so it seems appropriate to quote Willie (though somewhat out of context given the rest of the song) –

Turn out the lights, the party’s over
They say that, ‘All good things must end’

Thank you. It has been an honor.

Ethics and the Law: Nuts, the Judge Wants to See You!

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It all starts innocently enough. You are in court (pre-pandemic), doing your usual thing when the court coordinator tells you the Judge wants to see you. For those of you who got in trouble in school (I’ll plead the 5th!), you know it’s never a good sign when an authority figure wants to speak with you. You walk into chambers, and the Judge says, “So what’s going on with the Smith case?” What do you do?

Well, first, here are the rules you as a lawyer must follow: Rule 3.05 of the Texas Rules of Professional Conduct states A lawyer shall not: (a) seek to influence a tribunal concerning a pending matter by means prohibited by law or applicable rules of practice or procedure.

And here are the rules a Judge must follow: Canon 3A of the Texas Code of Judicial Ethics states that a judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications or other communications made to the Judge outside the presence of the parties between the Judge and a party, an attorney, a guardian or attorney ad litem, an alternative dispute resolution neutral, or other court appointee concerning the merits of a pending or impending judicial proceeding. A judge shall require compliance with this subsection by court personnel subject to the Judge’s direction and control. This subsection does not prohibit: (a) all communications concerning uncontested administrative or uncontested procedural matters.

In my experience, 99% of the time a Judge inquires in this fashion, it is a harmless attempt to administratively figure out what is going on in the case; is this going to be a plea or a trial. This is allowed, but you are skating on thin ice. You can fall right through unless you are careful. So what should you do? You really have three options:

You could tell the Judge everything you know about the case, including your strategies, the state’s weaknesses, etc.

You could reprimand the Judge for unethical conduct, explaining that he is on the brink of breaking the law, and if he does, you must report him to the panel judge.

You could use some common sense, don’t break any rules, and gracefully get out of the situation.

Option #1 will lead you to possible sanctions with the state bar. Pursuing Option #1 allows you to play Russian roulette with your law license. This is not a good option. Option #2 doesn’t work either because there is a good chance that you will be dealing with this Judge for many, many years. In my experience, judges have long memories, and you will make an indelible negative imprint on the Judge’s memory for as long as he remains on the bench. This leads us to Option #3: common sense.

As mentioned, 99% of the time, when a Judge asks you this question, it’s a harmless attempt to figure out procedurally where this case is going. That arguably falls under an exception to rules against ex parte communications. Treat it as such. But, to be on the safe side, bring the prosecutor into the discussion. Answers such as “Thanks for asking Judge, let me get my file and the Prosecutor,” “I was just speaking with the DA about this, let me go get him/her,” or “There are two sides to this, so you probably want to hear the DA’s side too. Let me go get him/her”. This way, there is no rule violation, you haven’t pissed anyone off, and you may make some headway on your case.

What happens in the 1% of cases where ex parte communications are not so innocent? We will address that in future articles.

Good luck, and have fun!

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