Editor’s Comment: Is the Risk Worth it?

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The Voice has always been an important benefit of this organization. Back in 2007, I submitted my first article for publication to the Voice. It addressed the presentment requirement of search warrants as applied to search for blood.1

Now, 13 years after my first article – and along with many other Americans, I’m certain – I find myself contemplating more and more another topic related to search warrants: no-knock warrants. The requirement has long been a part of history even before Justice Thomas authored the opinion for a unanimous SCOTUS in Wilson wherein he wrote: “At the time of the framing, the common law of search and seizure recognized a law enforcement officer’s authority to break open the doors of a dwelling, but generally indicated that he first ought to announce his presence and authority. In this case, we hold that this common-law ‘knock and announce’ principle forms a part of the reasonableness inquiry under the Fourth Amendment.”

Wilson v. Arkansas, 514 U.S. 927, 929 (1995). The case involved a search warrant based on information from a confidential informant. Police had information that the target had previously been convicted of arson and firebombing and also that he had threatened the confidential informant with a semiautomatic weapon. Police officers announced entry contemporaneous with, rather than prior to, entry in this case. The SCOTUS ultimately reversed and remanded the case to the Arkansas Supreme Court to address whether evidence of potential danger to law enforcement and destruction of evidence justified the failure of law enforcement to announce their presence prior to breaching the door.

Thus, since 1995, the knock and announce requirement is part of the reasonableness inquiry of a Fourth Amendment analysis. But now, especially given all the recent events, the question is: does the ever-increasing cost of no-knock warrants outweigh their potential benefits?

The scene in executing these no-knock warrants is often the same – an arsenal of police in military-type tactical gear (versus typical patrol uniforms that we are all used to) load up under the cover of darkness and surround the target house often giving hand signals to communicate. To anyone watching, they appear ready for war. Then, when the signal is given, they breach entry with some sort of battering ram, again under the cover of darkness, throw flashbangs while simultaneously screaming commands, and storm the location with guns drawn and shields up. The occupants are often sleeping, and there are frequently noninvolved people – sometimes kids and/or elderly – present at the location. They are awoken or interrupted suddenly by the sounds of flashbangs and screaming. Through an open interior door, the occupants may see smoke and guns pointed at them. Predictably, panic and chaos often ensue, and gunfire is often exchanged.

In my experience and reading, these no-knock warrants are typically employed in drug raids. Certainly, the same concerns that existed in Wilson as justifications for the failure of the police to announce their presence will exist in the execution of a warrant in virtually every drug (and every other criminal) case. The consideration, then, has to be is it worth the risk. Is it worth the risk to any one law enforcement life? Is it worth the risk of life to the sometimes completely innocent occupant? Importantly, to answer the question, we must acknowledge that “it” is most frequently a covert drug bust. The problem is further compounded by the fact that Texas is a proud “stand your ground” state. Gunfire, or the sound of gunfire, will often predictably be met with the return of gunfire. Is the risk of harm really worth it? Not a chance.

Just search “no-knock warrants” and you will find that many police departments in Texas are now suspending or severely limiting the use of no-knock warrants for precisely this reason. And, in June, Kentucky Senator Rand Paul introduced the Justice for Breonna Taylor Act to prohibit no-knock warrants at the federal level and for states or any local law enforcement agency that receives funding from the Department of Justice.2 What harm will it actually do to eliminate or severely restrict the use of no-knock warrants like many police departments and legislation propose? None. The warrants will still be executed, police will still come prepared, and people will still be arrested. The risk isn’t worth it.

And finally, although our country is clearly divided, let us not become so. Let us embrace the differences in each other and let us remember that whatever our differences may be, we stand united because we all are criminal defense lawyers.

Peace on earth and goodwill to all.

P.S. – A huge thank you to all those committees and individuals who have committed to contribute to the Voice. Your thoughtful contributions are what continue to propel the success of this publication.

Ethics and the Law: How Much Discovery Does a Client Get?

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There continues to be confusion about discovery duties and what information defense counsel can share with her/his client.

Texas Code of C Procedure Article 39.14 (f) READS:

The attorney representing the defendant, or an investigator, expert, consulting legal counsel, or agent for the attorney representing the defendant, may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness’s own statement.

Essentially, you can share the discovery with your client by letting them read it, but you cannot give copies to the client unless you have permission from judge or th prosecutor. Many bad things happen when discovery is found in a client’s jail cell or his gang leader’s home after a search warrant’s execution.

While prosecutors make up their own minds and give what they think is discoverable and material, you have an obligation to your client to ensure the prosecutors follow all the rules. You should report prosecutorial non-compliance to the trial court and seek aid there.  Additionally, you have an obligation to report prosecutorial non-compliance to the State Bar’s Office of Chief Disciplinary Counsel.

The State Bar’s Professional Ethics Committee’s Opinion No. 657, May 2016 presented these questions:

  1. What documents and information must be delivered by a lawyer to a former client convicted of a criminal offense when requested by that former client?
  2. Who bears the costs of delivering the documents and information to the former client?
  3. In what form must the documents and information be delivered?

Read this opinion to get the answers. The opinion can be found online at http://law.uh.edu/libraries/ethics/Opinions/601-700/EO657.pdf. If you have questions, please call the Ethics Hotline at 512-646-2734.

Chapter and Verse: The History of the Bail System

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Dear and Beloved Colleagues,

I am not sure how it is that the Code knows just what I need to hear. This fat, new baby of mine falls right into the sections that are most applicable right when I need them, it seems. As I turned through the sections we’ve already covered and came across the next section in our read-along, boom, right there, in the middle of page 13: Art. 1.07 Right To Bail.

Any recognizable form of a bail system started with the Anglo Saxons, somewhere around 600 AD. Stay with me, beloved friends. This isn’t as boring as you think it’s going to be. The Anglo Saxons, you’ll remember, were the people who lived about where England is now (Angle-land, get it?) and they left us a lot of their language and some of their culture, and they farmed and fished in relative harmony until about 1066 or so, when something terrible happened, but that’s not what we’re talking about now. The Anglo Saxons developed a system of were-gild. “Were” means “man,” like in “were-wolf,” and “gild” means “gold,” or more generally “money.” So they developed this Man-Money system. There was a whole list of crimes and the corresponding restitution payments: if you cut off someone’s index finger, that was punished by a set amount. If you cut off someone’s pinky finger, there was a lower amount. There were things we might think of as enhancements (You stole a pig? That’s $50. Oh, it was the King’s pig? That’s $100). Then there were things that were mitigating (You stole a wife? That’s $200. You stole her from her second husband? That’s $100 and you have to keep her).  There was an idea that people generally aren’t dangerous to the community as a whole, so expending massive resources to confine someone, or wasting manpower by executing or mutilating people for small offenses, was probably not good for anybody. I tend to agree with them on this point.

Though the law was clear about what the restitution amounts were, trials still had to take place in front of factfinders, and sometimes that took a while. This is where the bail system emerged. People who were charged with a crime had to find someone who would stand as their surety, and if they absconded pre-trial, the surety would agree to pay the were-gild in full. Everyone was satisfied.

But then, as time went on, things changed. The horrible events of 1066 unfurled. Later, Martin Luther would drive a stake into the heart (and door) of the church, and the rift that followed would both lead to the colonization of the US and the rise of capitalism, both of which have everything to do with the current ridiculous money-bail situation we find ourselves in today, my dear coworkers. Now bail amounts are arbitrary and almost entirely discretionary. This is made worse by the predatory practices of commercial bondsmen, and the misinterpretation by judges of how those bondsmen work.

What’s the point of all of this history? I’m not sure. Something about how we can learn from the past, from even older, dead-er white guys who made the law before this current iteration, how the barbarians 1,500 years ago were more humane, somehow, than these barbarians in expensive haircuts and tailored suits who make the law now. Oh, friends who are still with me, I am at a loss this month. How weird it is to write about bail when one has been sheltering in one’s home for months on end.

 But what I will say about this section of this giant tome of sections is that it is short–blessedly, powerfully, impactfully so. In the same vein as “Jesus wept.”

“ALL PRISONERS ARE BAILABLE.” Of course, there’s an asterisk to that–the “death is different” asterisk. But for us, that is all we have to remember, that single promise reaching out to us through history and cronyism and viruses and uncertain futures: All prisoners are bailable. Some are more bailable than others.

Love always.

Federal Corner: There is a Limit to the Power of Federal Probation Officers

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On October 27, 2020, a panel1 of the United States Court of Appeals for the Fifth Circuit, held as a matter of first impression, that the district court abused its discretion by giving the defendant’s probation officer the option to choose between inpatient and outpatient drug treatment; and, that when substance abuse treatment is a condition of supervised release, the decision to restrict the defendant’s liberty during the course of substance abuse treatment must remain with the judge, as opposed to the defendant’s probation officerUnited States v. Martinez, ___F.3d___, 2020 WL 6281738 (5th Cir., 2020)

Over the years, we have had a number of instances where a federal probation officer, we believed, was overstepping his authority; however, we have been able to resolve these issues without the necessity of a hearing or an appeal.  Martinez gives us something of a road map of where to go if we cannot do this.  Judge Elrod’s opinion reads, in part, as follows:

Martinez Has Continuing Drug Issues at His Halfway House

Martinez pleaded guilty to unlawful escape after he failed to return to a halfway house at the end of a workday. Martinez began serving the supervised-release portion of his sentence for that offense in August of 2018. In November 2018, Martinez’s probation officer petitioned the district court to modify the conditions of Martinez’s supervised release because Martinez tested positive for cocaine use. The modification required Martinez to ‘participate in a program of testing and treatment for drug abuse.’

Martinez’s probation officer once more petitioned the court for a modification in August of 2019 because Martinez continued to engage in drug use. At the revocation hearing for this petition, Martinez’s counsel said that Martinez ‘would be the first to admit there are times that he struggles with substance abuse.’ Martinez’s substance-abuse struggles sparked the following dialogue between the district court and Martinez:

The Dialogue Between the Court and Martinez

[THE COURT:] It seems to me—you know, I may be off base, or maybe not—that you’re your own worst enemy. You walked away from a halfway house; that got you the escape charge. You failed to report. You’ve done, you know, cocaine on a number of occasions. And I understand how hard sometimes those habits are to break.

But, you know, as a judge, we can order drug treatment, we can order all these different things to try to help, but you’re the only one that can make that decision for yourself. You need to really take it to heart….

I’m going to sentence you, but I’m also going to recommend to the Bureau of Prisons that you participate in the drug treatment program. When you get out, I want you to participate in the drug treatment program.

All right. The Court hereby revokes the term of supervised release in 17-CR-34 and sentences the defendant Abran Martinez to 10 months in the custody of Bureau of Prisons with the reimposition of supervised release under the same terms and conditions of one year….

Mr. Martinez, as I said, I can order things until I’m blue in the face. It only works if you really put your heart into it.

THE DEFENDANT: By continuing on this release, it just—I mean, I’ve tried it. I’ve tried it several times. I don’t know what it is. I just can’t—I can’t do it. I mean, I’ll try. I’ll try again.

THE COURT: I want you to try again. I know that the probation department didn’t recommend it. And that is one of the reasons I only put you back on for a year. If I can help you make that step, I want to help you, but try it one more time.

Our goal is to get you off drugs. I don’t want to run your life. I have enough trouble running my life. But I want to give you a chance to break this drug habit. (emphasis added)

The Written Conditions of Supervised Release

After the hearing, the district court imposed the following written condition:  You must participate in an inpatient or outpatient substance-abuse treatment program and follow the rules and regulations of that program. The probation officer will supervise your participation in the program, including the provider, location, modality, duration, and intensity. You must pay the costs of the program, if financially able. (emphasis added)

Martinez’s Arguments on Appeal

Martinez appealed the written condition, challenging particularly the words ‘inpatient or outpatient.’ Martinez argues first that he did not have an opportunity to object to these words because he encountered them for the first time in the written judgment. Thus, according to Martinez, our review should be for abuse of discretion. Martinez then argues that the words ‘inpatient or outpatient’ impermissibly delegate judicial sentencing authority to Martinez’s probation officer because inpatient drug-treatment involves a significant deprivation of liberty.  (emphasis added)

The Government’s Response

The government, conversely, asserts that we should review for plain error because Martinez failed to object to the condition of supervised release in the district court. According to the government, Martinez did have the opportunity to object because the district court stated it was imposing a term of supervised release ‘under the same terms and conditions’ as the 2018 modification to Martinez’s supervised release. On the government’s theory, although the 2018 modification did not contain the words ‘inpatient or outpatient,’ it implicitly contained those options; ‘by leaving those terms unstated, the 2018 condition necessarily contains both.’

The Court Agrees With Martinez

We agree with Martinez. He had no opportunity to object, and so we review for abuse of discretion. In United States v. Franklin, we reviewed an appeal of a condition of supervised release for abuse of discretion because the defendant had no opportunity to object to the discretion given to a probation officer to require mental-health treatment. 838 F.3d 564, 567 (5th Cir. 2016). The district court’s oral pronouncement at the sentencing hearing did not mention or define the probation officer’s role in the recommended mental-health treatment. Id. Similarly, in this case the district court’s oral statements at the sentencing hearing did not mention or define the discretion the court would give to the probation officer to choose between inpatient and outpatient treatment.

The District Court Abused Its Discretion

The district court abused its discretion by giving Martinez’s probation officer the option to choose between inpatient and outpatient drug treatment. While probation officers may ‘manage aspects of sentences’ and oversee the conditions of supervised release, a probation officer may not exercise the ‘ “core judicial function” of imposing a sentence, “including the terms and conditions of supervised release.”United States v. Barber, 865 F.3d 837, 839 (5th Cir. 2017) (quoting Franklin, 838 F.3d at 568). This duty belongs to the court and may not be delegated. Id. We have previously vacated special conditions that delegate judicial authority to the probation officer by allowing the probation officer to decide whether mental-health or substance-abuse treatment should be required. United States v. Simpson, 788 F. App’x 991, 992 (5th Cir. 2020); United States v. Griffin, 780 F. App’x 103, 106–07 (5th Cir. 2019); United States v. Moreno, 697 F. App’x 384, 384–85 (5th Cir. 2017); Franklin, 838 F.3d at 568. We have not yet, however, decided whether giving a probation officer the option to require inpatient treatment impermissibly delegates a core judicial function.  (emphasis added)

The Second, Ninth and Tenth Circuits Have Addressed This Issue

Three of our sister circuits have addressed this question in published opinions, and each has decided that the court may not delegate the decision to require inpatient treatment to a probation officer because of the significant liberty interests at stake in confinement during inpatient treatmentSee United States v. Matta, 777 F.3d 116, 122–23 (2d Cir. 2015); United States v. Mike, 632 F.3d 686, 695–96 (10th Cir. 2011); United States v. Esparza, 552 F.3d 1088, 1091 (9th Cir. 2009). Inpatient treatment differs from outpatient treatment because the patient cannot leave; the patient must remain at the hospital or facility day and night throughout the duration of the treatment. Matta, 777 F.3d at 122. ‘Conditions that that touch on significant liberty interests are qualitatively different from those that do not.’ Mike, 632 F.3d at 695. (emphasis added)

The Court Agrees With the Second Circuit

Mike is right. The decision to place a defendant in inpatient treatment cannot be characterized as one of the managerial details that may be entrusted to probation officers. See Barber, 865 F.3d at 839. The decision to restrict a defendant’s liberty during the course of treatment must remain with the judge. That said, our decision should not be construed to prevent a defendant from electing inpatient treatment in the absence of a court order. Instead, we hold today that the judge may not delegate to the probation officer the decision to require inpatient, rather than outpatient, treatment because of the liberty interests at stake.  (emphasis added) 

Conclusion

 The condition allowing Martinez’s probation officer to elect between inpatient or outpatient treatment is vacated, and the case is remanded for further proceedings consistent with this opinion.

My Thoughts

  • In most opinions, the judge of the court below is mentioned by name in the opinion; however, Judge Elrod did not tell us who the judge was in Martinez’s case.  During his colloquy with Martinez, the judge showed both patience and kindness in his comments.  I want him to hear my next drug case.

From the Front Porch: Be a Participant and Not a Spectator

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As I write this column, the number of coronavirus cases is on the rise in Texas. Some hospitals are nearing capacity and health care resources are being stretched thin. To our colleagues and their families in some of the hardest hit areas of Texas, you are in our thoughts and prayers and we stand ready to help. We miss the courtroom and socializing with our colleagues. We are tired of wearing a mask and talking thru plexi-glass.  Zoom has been a lifesaver, but we are now Zoomed out. As cases rise, we may have to deal with another statewide shutdown in some form. Our anxiety has not subsided, as we just do not know what the future holds for us or what practicing in the courtroom will look like in six months. This uncertainty is nerve-racking and stressful and continues to take a toll on our professional and personal lives.

There is good news, as there may be a vaccine available soon. Hopefully, we can get back to normal sooner rather than later. In the meantime, what can we do to get our practice back in order? I will give you my thoughts on that question next month.

On November 11, 2020, the Texas Supreme Court ordered that no in-person jury trials could be held prior to February 1, 2021, extending the previous deadline of December 1, 2020. The exception continues to be that a judge can seek to have an in-person jury trial by submitting their operating plan to the local administrative district judge for that county and the regional presiding judge for approval. Specifically, there have been some judges in rural areas throughout the State that have obtained this approval and conducted in-person jury trials. My understanding is that jury selection was held at large venues and not at the courthouse, with restrictions in place for social distancing, and the wearing of a face shield or mask, etc. While I have not been personally involved in any of those jury trials, I believe the success of those proceedings has been mixed. I suspect that this perception of success is likely based upon your role in the proceedings. I do believe the courts and the Office of Court Administration should be applauded for their efforts to address the problems presented by the pandemic, but we all need to be mindful of the fact that there continues to be real health concerns and risks which must be safeguarded and taken into account when making these decisions.

It appears that judges and prosecutors are having conversations on how to resume in-person proceedings at the courthouse. I do not believe that local criminal defense attorneys have been included in those conversations, and this concerns me as it should all of us. We are required to be a zealous advocate, but how can we do that when we have serious concerns of the health risks that would necessarily exist during a live jury trial proceeding. Now, how do we, as rural criminal defense attorneys, inject ourselves into that conversation? While we may be friends with the judges and prosecutors in our rural areas, our duty is to our clients, and keeping them and ourselves safe for the sake of our families and loved ones. Our health and safety concerns must be part of that conversation. In some of the surrounding counties that I practice in we have received information that there have been positive Covid-19 test results in several of the county courthouses. In rural areas this can lead to serious concerns because the local county courthouse is not only the hub of all legal matters, but a centralized point of contact for all county sponsored services. That is why it is important to make calls to the judges and prosecutors and invite ourselves into that conversation for developing a safe return plan to the courtroom. Staying in touch with our local community leaders and courthouse personnel is critical to us keeping ourselves safe and healthy. It has been over eight months since the pandemic creeped into my community, and it is easy to slip into a routine of self-isolation and start binge watching on Netflix. In reflecting back on the last eight months, I know I can do better in making sure my clients, friends, and colleagues are doing well and staying safe.

A friend of mine had concerns about his and his client’s safety and health with regards to a scheduled November jury trial setting. He utilized TCDLA’s resources and successfully argued for and had his request for a continuance granted. He may have to file it again as this problem is not going away anytime soon. This is a situation many of us are having to confront as the pandemic rages. While this is not an easy conversation to have with the court, it is necessary. When pressing this issue with the court, make sure your client agrees with you regarding the continuance, and they are aware that they are likely waiving a speedy trial complaint. My suspicions are that some of the courts seeking permission to proceed with a jury trial at this time involve cases where the client has demanded their right to a speedy trial.

Practicing law in a rural area during this pandemic has led me to rethink my practice and I have some thoughts to share with you:

  1. Remember where you come from;
  2. Know where you are going;
  3. Check in on friends and colleagues;
  4. Stay in regular contact with your clients;
  5. Remain accessible via Zoom, by telephone or in-person;
  6. Stay in regular contact with your local judges, prosecutors, court clerks and personnel;
  7. Protect your client;
  8. Protect your family;
  9. Remember you cannot protect anyone if you do not protect yourself; and
  10. Be thankful for what you have and do not obsess about the rest.

The Rural Practice Committee continues to meet monthly. We are developing helpful hints and a checklist for use when we return to the courtroom. This information will be posted on the TCDLA Rural Practice list serve. Each member on this committee is dedicated to making themselves available to assist you and address any of your concerns. If something unusual or exciting happens in your neck of the woods, please let us know how we can help.

Lastly, I take my hat off to all of us that have endured the hardships of this pandemic and continue to advocate on behalf of the accused during these trying times. We have continued, unphased and undaunted, despite impossible circumstances and a myriad of the Governor’s executive and emergency orders, to protect and preserve our client’s rights. Stay strong and vigilant. Remember TCDLA has your back, from west Texas to east Texas and all parts in between. We are TCDLA strong.

Shout Outs

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Michael Heiskell was recently awarded Tarrant County Bar Association’s annual Blackstone award, their highest honor. The award is given to lawyers who have been in practice for 65 years or more and who demonstrate outstanding courage in the pursuit of justice. Mr. Heiskell was the first African-American selected to be “Mr. Navarro College” and his 50-year commemoration recently occurred in Corsicana. Past TCDLA President Mark Daniel said, “Mike Heiskell is a 40-year friend. Such an outstanding lawyer. He has the ability to adjust his style to fit the case. Mike can take on and win the most complicated white-collar federal matter or a straightforward state homicide or felony case. His preparation is only exceeded by his incredible courtroom delivery. Always humble. Always gracious. Always relentless. Always a professional. A lawyer’s lawyer.

Congratulations to Clint Snare, who represented a client in the Beaumont Court of Appeals. The client had been sentenced to 99 years for one count, 19 of a maximum of 20 on another, and the maximum 10 years on the five remaining charges, combined with $10,000 fines in each case ($70,000 total). Thanks to Mr. Snare’s advocacy, the Beaumont Court of Appeals reversed all the punishments and remanded. Awesome work, Clint!

Brian Wice and Dan Cogdell, who have faced off against each other in the never-ending saga of the State of Texas v. Ken Paxton since the Jimmy Carter administration, teamed up to win a 9-0 decision in the Court of Criminal Appeals, setting aside a judgment of direct criminal contempt entered against their client, Wayne Dolcefino, former ABC-TV investigative reporter and owner of Dolcefino Consulting, by Darrell Jordan, presiding judge in Harris County Criminal Court. The client approached Jordan while he was on the bench but not while conducting any official judicial proceeding to ask why the two young, inexperienced, and indolent special prosecutors Jordan had appointed to investigate the client’s four criminal complaints alleging violations of the TPIA had done nothing after 18 months. Jordan took exception to the client asking him questions he had every right to ask in a courtroom where he had every right to be, held him in direct contempt and put the 64-year old asthmatic, MS-suffering client in the COVID-ridden Harris County jail for two days before he made bond. Unbeknownst to Jordan, the client recorded the entire encounter with a video spy pen. The Dallas County DA’s Office, acting as attorneys pro tems appointed, agreed relief was warranted and CCA agreed.

Current Issue: November 2020

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DOWNLOAD PDF VERSION

Features

14 | Report from the Reapportionment/Redistricting Committee – By Tip Hargrove
16 | Blue Matters Matter – By Mitch Adams & Bobby Mims
28 | Veterans and Violence Part 2: Forensic Psychological and Neuropsychological Evaluations of Veterans with PTSD and TBI – By John Matthew Fabian
37 | First! COVID-19 Jury Selection – By Brandon T. Winn

Columns

6 | President’s Message
8 | Chapter and Verse
9 | Federal Corner
12 | From the Front Porch
13 | Shout Outs

Departments

5 | CLE Seminars and Meetings
39 | Significant Decisions Report

President’s Message: Balancing the Supreme Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some might grumble that no one wins with a tie.

That’s absolutely true and exactly the point.

Chapter & Verse: Defending in the Name of Hope

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My Dear and Beloved Defenders,

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

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

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

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

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

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

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

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

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

Love always and wash your hands.

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

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

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

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

Valdez’ Claim of Ineffective Assistance of Counsel

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

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

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

The Background of the Case

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

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

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

The Plea Colloquies

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

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

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

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

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

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

 The Advisory Sentencing Guidelines Range

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

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

Valdez’ Argument at Sentencing and the Court’s Response

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

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

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

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

The District Court’s Ruling

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

Valdez’ Burden at the Fifth Circuit

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

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

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

Valdez Was Aware of What He was Facing

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

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

Be Aware That This Analysis Will Not Apply to Every Case

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

Accordingly, the judgment of the district court is affirmed.

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

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

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

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

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

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

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

These are the reasons why I respectfully dissent.

My Thoughts

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