Editor’s Comment: 250 Seems Like a Good Number

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I am saddened to inform you that after 250 articles (yes, 250!) Buck Files has decided to put his pen down/close down his computer. As you know, Buck has been a consistent and prolific author of the Federal Corner column for a long time – probably for about as long as you can remember, in fact. Those of you who have had the benefit of reading his articles every month know we have a treasure in Buck. But, as Buck told me, “250 seems like a good number.” No doubt. It’s a record that will undoubtedly stand for years to come.

As the editor for the past five years, Buck’s articles were a dream. They came in on time, with superb content, and in great shape every month. I couldn’t have asked for more.

Buck’s Federal Corner column would never tell you about him and his accomplishments. However, I think it’s important that we all acknowledge the giant who has been amongst us and indeed led us for all these years.

Buck is a charter member of TCDLA and has consistently and continually strived to uphold the culmination of our mission statement – “…to promote justice and the common good.” Buck is a Marine. He has been married to his wife, Robyn, over 50 years. Buck served as president of the State Bar of Texas for 2012‑2013. He has been an active leader in both TCDLA and SBOT for many years. In 1975, he was part of the charter class to be certified as a specialist in criminal law. In 2011, Buck was inducted into TCDLA’s Hall of Fame. The next year, Buck received the Lifetime Achievement Award from the Criminal Justice Section of the State Bar of Texas. You should all know, if you don’t already, that in addition to all the above‑earned accolades Buck is a genuinely polite and kind person. I will miss him. Buck, we are all thankful for you and your contributions that have made us all better, and we wish you the very best.

The Federal Corner column is an important part of the Voice, and we will continue to bring it to you without interruption with rotating columnists.


The Voice’s New Assistant Editor!

The Voice for the Defense is excited to announce San Antonio‑based lawyer Amanda I. Hernandez has joined as an associate editor!

Amanda is an associate at the Flanary Law Firm, PLLC, and has jury trial experience with misdemeanor, felony, and federal cases.

Amanda currently serves as a board member for the Texas Criminal Defense Lawyer’s Association (TCDLA) and the San Antonio Criminal Defense Lawyers Association (SACDLA). She is also on the board of directors for the Texas Coalition to Abolish the Death Penalty (TCADP). Amanda is a zealous advocate and has been recognized by her peers as SACDLA’s “2019 Young Lawyer of the Year” and as a 2020 Top Attorney featured in San Antonio Magazine’s November 2020 issue.

She is also a 2017 graduate of the Tim Evans Trial College, an intensive program run by TCLDA in which new lawyers learn trial strategy from some of the best criminal attorneys in Texas.

Amanda earned her degree in International Business from the University of Texas at San Antonio in 2011 and went on to attend St. Mary’s University School of Law, graduating in May of 2016. After graduation, Don Flanary started the Flanary Law Firm, PLLC, and quickly promoted her from being his long‑time law clerk to the first associate attorney in his practice, where she remains today.

From the Front Porch: Is Opening Up the Courts Good for the Rural Practitioner?

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After Governor Abbot announced that he was lifting regulations involving mask‑wearing and social distancing, it was not long before the OCA put their two cents in on the issue. Their recent opinion can be summarized by the lyrics of that old Mamas and Papas song. Now courts can go where they want to go and do what they want to do. The OCA left it up to each county to be restrictive or not, continue Zoom hearings or not, or go back to 2019 procedurally speaking. The question is, is opening up the court system good for the rural practitioner? The answer is… it depends!

Positives:

COVID rules put the brakes on jury trials. This can be good. If you have someone out on bond, time usually works on the Defendant’s side. The backlog makes more minor state jail felony cases and third‑degrees look even smaller to the judges and DAs. When there is a huge backlog, do you really want to go to court on a mandatory probation state jail felony case, or give them a 12.44 (b) and move it down the road? Opening up the court system to the good old days may lurch the criminal justice machine back to the days when these cases were taken much more seriously.

COVID made courts shift to Zoom hearings. This can be also good for the criminal practitioner. You can do court hearings and jail visits in your pajamas and slippers. Just wearing a dress shirt and tie over them, or move the camera, so it only shows your face! This makes these standard time‑wasting activities a snap. This has allowed the rural criminal defense attorney to be much more efficient, sometimes allowing them to be working on one case while in the Zoom waiting room on another. This is especially so when you practice in numerous counties. Opening up the court system could make our jobs move from being a quasi stay‑cation to having to dress up and go to court again like the old days.

Negatives:

COVID rules put the brakes on jury trials. This can be very bad. If you have some languishing in jail, the possibility of a jury trial looks very remote. Your client will probably wait years, if they have not already been, to have their day in court. The most heartbreaking scenario is a person accused of serious crime, has a high bond that they can’t make, and claim to be innocent. If the powers that be wont lower the bond, they’re stuck. If they genuinely are innocent, that’s an enormous injustice. Hopefully, you have gotten a good investigator to get some exculpatory information to grease the wheels of justice somehow. But if not, this is a horrible nightmare. Opening up the court system could really help these people get their day in court.

COVID has made courts shift to Zoom hearings. This can also be very bad. As we all know, getting into court, meeting the prosecutor face to face, seeing your client face to face, and having the judge pressure both parties to get things done can help resolve or get cases dismissed. When dealing with everyone in an impersonal zoom hearing, the immediacy and intimacy of in‑person contact are lost. These intangibles fuel the process. Opening up the court system can make innocent defendants get off the hook, and guilty ones gain a better result. Opening up the court system, in this case, would be positive.

In conclusion, COVID has been a double‑edged sword for the rural practitioner. Guilty folks on bond have enjoyed a long continuance, perhaps using the time to gain employment, get help for their addictions, and build a resume for a better resolution down the road. Zoom hearings have allowed the criminal practitioner to be more efficient, and it has made it easier logistically to practice in other counties. On the flip side, COVID has caused innocent folks may be languishing in jails for months or years before a trial. The lack of in‑person hearings has caused an enormous backlog, which hurts anyone trying to resolve a case.

Long story short, we will have to roll with whatever happens, just like we did a year ago when the system was upended.

Note: In the March edition, From the Front Porch was actually written by Dean Watts, not Clay Steadman. The appropriate person has been properly flogged.

Ethics and the Law: April Fools

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Assume lawyers are representing a client in an Article 11.07 of the Texas Code of Criminal Procedure post‑conviction writ. A contract was signed providing for a fee of $20,000 for a writ investigation plus expenses and an additional $10,000 fee was to be paid for the preparation and filing of a writ. The investigation fee has been paid including expenses. The fee for preparing and filing of a writ has not been paid. Client and lawyers cannot agree on the basis for a writ. Lawyers believe the best issue to proceed on is the failure to call witnesses in the punishment phase of trial. Client wants to claim actual innocence. Lawyers’ opinion is that there is no evidentiary basis for the claim of actual innocence.

Question number 1: Are the lawyers obligated to file a writ when they have not been paid to do so?

Question number 2: Are the lawyers obligated to file a writ claiming actual innocence if, in their opinion, there is no evidentiary basis for the claim of actual innocence?

Answer 1 provided by attorney Joe A. Connors, III.:

Q. 1: No. Client is entitled to the fruits of the investigation, which has been paid for, and a formal letter of withdrawal.

Q. 2: No. Client is entitled to a written discussion detailing why the attorneys will not pursue an actual innocence claim. Ineffective assistance of counsel for the “failure to call witnesses” requires a sworn statement from the witness detailing what the witness would have said plus compliance with both prongs of Strickland v. Washington, 466 U.S. 668 (1984). Of course, there is a duty to obtain a statement from the trial defense counsel on why they did not call that witness.

Answer 2 provided by attorney Laura Popps:

Although the client has a say in the overall objectives of a case, it is the lawyer who assumes responsibility for the legal tactics and strategies in reaching those objectives. Moreover, a lawyer is violating the disciplinary rules if he files a frivolous legal pleading or one with no basis in fact/law. If the client and lawyer cannot agree on this issue, it may be appropriate for the lawyer to withdraw.

Further, a lawyer has a right to be paid according to his agreement with the client. If the client refuses to abide by that agreement and pay the lawyer for his services, it may be appropriate to withdraw.

See Texas Disciplinary Rule of Professional Conduct 1.15 (b)(4) & (5), as well as comment 7.

The author would like to send a special thanks to Betty Blackwell, Sharon Bass, Laura Popps, Joe Connors, and Bobby Mims.

Chapter & Verse: Become an Outlaw

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Dear and Beloved Colleagues,

Last we spoke, we talked about double jeopardy. Today, we move on to maybe my favorite word in the English language: the Outlaw. Article 1.18 of this fat, miserable companion of mine specifies, “No citizen shall be outlawed, nor shall any person be transported out of the State for any offense committed within the same.”

“Ok, Allison,” you’re saying, “what on earth does that matter?”

And I ask you, in return, does Jesse James matter? Does Wild Bill Hickock matter? Does absolute freedom from tyranny and injustice matter?

The purpose of outlawry is basically banishment. You, as a person, have been deemed to illegally exist in our jurisdiction. You have no legal rights anymore.

It’s interesting because, in a former life in a different country, we frequently resolved cases by making the sole condition of probation that the defendant would “leave the jurisdiction and not return during the pendency of the probated sentence.” It worked pretty well, and I remember recounting this to a salty old DA in New Mexico once. He laughed.

“You know, when I used to practice in Oklahoma, we would kind of do the same thing,” he said. “I’d tell repeat misdemeanor defendants to just not show up to court and we’d bench warrant them. Since misdemeanors weren’t extraditable, it basically meant if they left the county, they’d never have to face charges for it.”

Not in Texas, you wouldn’t, my Salty DA.

Smarter lawyers than I have argued that the outlawry provision effectively prohibits sex offender registration requirements, which I think is a pretty interesting way of turning things. Unfortunately, the 14th COA slapped that down pretty handily in Velez v. State, 2002 Tex. App. LEXIS 1153 at 15, basically saying that registrants don’t give up all their legal rights, and registration is not a punishment, technically, so nyah.

But I just need to tell you, dear friends, that there’s a legal definition of outlawry, which I don’t really care for, and a true definition of outlawry, which I aspire to.

Please turn, if you are able, to one of my favorite authors of all time, Tom Robbins, who is still alive in LaConner, Washington, where I once worked and frequented the same coffee shop (the only coffee shop) in the hopes of catching a glimpse of the Outlaw King himself. My icy, outlaw‑wannabe heart skips a beat when I read this passage from Still Life With Woodpecker:

The difference between a criminal and an outlaw is that while criminals frequently are victims, outlaws never are. Indeed, the first step toward becoming a true outlaw is the refusal to be victimized. All people who live subject to other people’s laws are victims. People who break laws out of greed, frustration, or vengeance are victims. We outlaws, however, live beyond the law. We don’t merely live beyond the letter of the law–many businessmen, most politicians, and all cops do that–we live beyond the spirit of the law. In a sense, then, we live beyond society.

When war turns whole populations into sleepwalkers, outlaws don’t join forces with alarm clocks. Outlaws, like poets, rearrange the nightmare.

The trite mythos of the outlaw; the self-conscious romanticism of the outlaw; the black wardrobe of the outlaw; the fey smile of the outlaw; the tequila of the outlaw and the beans of the outlaw; respectable men sneer and say ‘outlaw’; young women palpitate and say ‘outlaw’. All outlaws are photogenic. ‘When freedom is outlawed, only outlaws will be free.’ Unwilling to wait for mankind to improve, the outlaw lives as if that day were here. Outlaws are can openers in the supermarket of life.

Dear friends, I so encourage you to find your inner outlaw. The outlaw doesn’t listen to the definitions or branding of the State. The outlaw creates the world he wants to live in. But still, you know, wash your hands.

Love always, AJM

Federal Corner: Six Days in a Texas Prison Hell

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For nearly a quarter of a century, I have been writing for The Voice about federal criminal cases. For my 250th – and last – column, I found a federal civil rights case with facts that are so beyond the pale that I wanted to bring them to your attention. On November 2, 2020, the Supreme Court, in a case from the United States Court of Appeals for the Fifth Circuit, held, per curiam and without oral argument, that

(1) The Court of Appeals properly ruled that the conditions of confinement alleged by Mr. Taylor, whereby for six full days he was confined in a pair of shockingly unsanitary cells, the first of which was covered nearly floor to ceiling in “massive amounts” of feces and the second of which was frigidly cold and equipped with only a clogged floor drain to dispose of bodily wastes, violated the Eighth Amendment’s prohibition on cruel and unusual punishments; but

(2) The prison officials responsible for Taylor’s confinement had fair warning that their specific acts were unconstitutional and, thus, the Court of Appeals erred in granting the official qualified immunity with respect to Mr. Taylor’s claims.
Taylor v. Riojas 1

We are accustomed to the horrible fact situations that we find in some of our criminal cases. It just goes with the territory. Taylor, though, is concerned with the abuse that an inmate in a Texas prison suffered at the hands of his prison guards. We should all hope that nothing like this ever happens to one of our clients.

In their Petition for a Writ of Certiorari, Mr. Taylor’s lawyers included this Statement of the Case:

At the time of the events giving rise to this suit, Petitioner Trent Taylor was incarcerated in the John T. Montford Unit of the Texas Department of Criminal Justice (Montford). Pet. App. 3a. Respondents Robert Riojas, Ricardo Cortez, Stephen Hunter, Larry Davidson, Shane Swaney, and Joe Martinez were officials at Montford during that period.  Id.

Taylor was transferred to Montford, a psychiatric prison unit, for mental health treatment following a suicide attempt. Electronic Record on Appeal (R.O.A.) 49 Instead of providing that treatment, Respondents stripped Taylor of his clothing, including his underwear, and placed him in a cell where almost every surface— including the floor, ceiling, windows, and walls—was covered in “massive amounts” of human feces belonging to previous occupants. Pet. App. 7a-8a;

R.O.A. 50. The smell was overpowering and could be discerned from the hallway. Pet. App. 8a; R.O.A. 50. Taylor was unable to eat because he feared that any food in the cell would become contaminated. Pet. App. 8a. Feces “packed inside the water faucet” prevented him from drinking water for days. Id. Respondents were aware the cell was coated in excrement:   One Respondent asked several others whether Taylor’s cell was the one covered in feces; another answered, “Yes, he’s going to have a long weekend,” and the officials laughed. Id.; R.O.A. 50. Taylor asked numerous prison staff members to clean the cell, but they refused. Pet. App. 8a n.8. When Taylor complained of the conditions, Respondent Swaney responded, “Dude, this is Montford, there is s*** in all these cells from years of psych patients,” Pet. App. 8a (brackets omitted).

Four days later, Respondents removed Taylor from the first cell; they then transferred him, still naked, to a different “seclusion cell.” Pet. App. 8a, 12a. Montford inmates referred to this cell as “the cold room” because of its frigid temperature; Swaney told Taylor he hoped Taylor would “f***ing freeze” there. Pet. App. 8a n.9. This cell had no toilet, water fountain, or furniture.   Pet. App. 8a. It contained only a drain on the floor, which was clogged, leaving a standing pool of raw sewage in the cell. Pet. App. 8a. Because the cell lacked a bunk, Taylor had to sleep on the floor, naked and soaked in sewage, with only a suicide blanket for warmth. Pet. App. 8a-9a, 33a.

Taylor spent three days in the seclusion cell, during which Respondents repeatedly told him that if he needed to urinate, he would not be escorted to the restroom but should urinate into the backed up drain. Pet. App. 8a. Taylor refused, not wanting to add to the pool of sewage in which he had to sleep naked. Pet. App. 8a-9a. Instead, Taylor avoided urinating for 24 hours until he involuntarily urinated on himself; he attempted to use the clogged drain as instructed, but Taylor’s urine “mix[ed] with the raw sewage and r[a]n all over [his] feet.” Pet. Appl. 91, 19a (alterations in original). As a result of holding his urine in a bacteria-laden environment for an extended period, Taylor developed a distended bladder required catheterization.2

The Supreme Court’s per curiam opinion reads as follows:

[Background]

Petitioner Trent Taylor is an inmate in the custody of the Texas Department of Criminal Justice. Taylor alleges that, for six full days in September 2013, correctional officers confined him in a pair of shockingly unsanitary cells. The first cell was covered, nearly floor to ceiling, in ‘ “massive amounts” of feces’: all over the floor, the ceiling, the window, the walls, and even ‘ “packed inside the water faucet.” ’ Taylor v. Stevens, 946 F.3d 211, 218 (CA5 2019). Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. Correctional officers then moved Taylor to a second, frigidly cold cell, which was equipped with only a clogged drain in the floor to dispose of bodily wastes. Taylor held his bladder for over 24 hours, but he eventually (and involuntarily) relieved himself, causing the drain to overflow and raw sewage to spill across the floor. Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage.

[The Eighth Amendment]

The Court of Appeals for the Fifth Circuit properly held that such conditions of confinement violate the Eighth Amendment’s prohibition on cruel and unusual punishment.

[The Fifth Circuit Concluded That the Prison Officials Did Not Have Fair Warning]

But, based on its assessment that ‘[t]he law wasn’t clearly established’ that ‘prisoners couldn’t be housed in cells teeming with human waste’ ‘for only six days,’ the court concluded that the prison officials responsible for Taylor’s confinement did not have ‘ “fair warning” that their specific acts were unconstitutional.’ 946 F.3d at 222 (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)).

[The Fifth Circuit Erred in Granting Qualified Immunity]

The Fifth Circuit erred in granting the officers qualified immunity on this basis. ‘Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.’ Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct.

596, 160 L.Ed.2d 583 (2004) (per curiam). But no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time. See Hope, 536 U.S. at 741, 122 S.Ct. 2508 (explaining that ‘ “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question”’ (quoting United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997))); 536 U.S. at 745, 122 S.Ct. 2508 (holding that ‘[t]he obvious cruelty inherent’ in putting inmates in certain wantonly ‘degrading and dangerous’ situations provides officers ‘with some notice that their alleged conduct violate[s]’ the Eighth Amendment). The Fifth Circuit identified no evidence that the conditions of Taylor’s confinement were compelled by necessity or exigency. Nor does the summary-judgment record reveal any reason to suspect that the conditions of Taylor’s confinement could not have been mitigated, either in degree or duration. And although an officer-by-officer analysis will be necessary on remand, the record suggests that at least some officers involved in Taylor’s ordeal were deliberately indifferent to the conditions of his cells. See, e.g., 946 F.3d at 218 (one officer, upon placing Taylor in the first feces-covered cell, remarked to another that Taylor was ‘ “going to have a long weekend” ’); ibid., and n. 9 (another officer, upon placing Taylor in the second cell, told Taylor he hoped Taylor would ‘ “f***ing freeze” ’).

[Conclusion]

Confronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution. We therefore grant Taylor’s petition for a writ of certiorari, vacate the judgment of the Court of Appeals for the Fifth Circuit, and remand the case for further proceedings consistent with this opinion.

[Note: Justice Barrett took no part in the consideration order decision of this case. Justice Thomas dissented, without written opinion. Justice Alito concurred in the judgment, with a written opinion.]

[The Prequel to the Supreme Court’s Opinion in Taylor]

In 2014, Trent Taylor, a Texas inmate who was serving a sentence for robbery, began his journey through the federal courts. He filed, pro se, a civil rights complaint pursuant to 42 USC § 1983 in the United States District Court for the Northern District of Texas. Mr. Taylor named eleven correctional officers and/or prison officials as defendants.

In his complaint, Mr. Taylor raised – among other issues – a cell conditions issue. All of the defendants relied on the affirmative defense of qualified immunity and moved for summary judgment. In the district court’s order are the following two sentences:

The Court finds that although the conditions of Plaintiff’s confinement may have been quite uncomfortable during the days he was held in the two cells in question, the conditions did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Accordingly, Plaintiff has failed to rebut Defendants’ assertion of qualified immunity on his conditions-of-confinement claim, and their Motions for Summary Judgment should be granted.3  (emphasis added)

After the district court granted summary judgment in favor of the defendants, Mr. Taylor appealed, pro se, to the United States Court of Appeals for the Fifth Circuit. On December 20, 2019, a panel of the Circuit held in Taylor v. Stevens, inter alia, that “[1] it had jurisdiction over appeal;… and, [3] correctional officers were entitled to qualified immunity from conditions-of- confinement claim; …”

The Court’s opinion reads, in brief part, as follows:

Taylor repeatedly alleged that the defendants knew that his cells were covered in feces and urine and that he had an overflowing sewage drain in his seclusion cell.

‘The risk’ posed by Taylor’s exposure to bodily waste ‘was obvious.’   And the risk was especially obvious here, as the defendants forced Taylor to sleep naked on a urine-soaked floor. Taylor also alleged that the defendants failed to remedy the paltry conditions, so he has shown factual disputes on deliberate indifference. In sum, Taylor has met his burden at the first QI prong to show that his Eighth Amendment rights were violated. See Arenas, 922 F.3d at 620.

* * *

The second prong of QI asks ‘whether the right was clearly established at the time of the violation.’

* * *

The ‘salient question,’ therefore, is whether the defendants had ‘fair warning’ that their specific actions were unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).

The law wasn’t clearly established. Taylor stayed in his extremely dirty cells for only six days. Though the law was clear that prisoners couldn’t be housed in cells teeming with human waste for months on end, see, e.g., McCord, 927 F.2d at 848, we hadn’t previously held that a time period so short violated the Constitution, e.g., Davis, 157 F.3d at 1005–06 (finding no violation partly because the defendant stayed in the cell for only three days). (emphasis added)

* * *

It was therefore not ‘beyond debate’ that the defendants broke the law. al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074. They weren’t on ‘fair warning’ that their specific acts were unconstitutional. Hope, 536 U.S. at 741, 122 S.Ct. 2508.4

Lawyers to the Rescue

After going 0 for 2 as a pro se litigant, Mr. Taylor’s luck changed for the better. Samuel Weiss, of RIGHTS BEHIND BARS in Washington, D.C., read the Fifth Circuit’s opinion in Taylor and decided to come to Texas and meet with Mr. Taylor. He did so and offered to represent him pro bono to seek relief at the Supreme Court. Mr. Taylor was pleased to become his newest client and accepted Mr. Weiss’ generous offer.

When Mr. Weiss returned to Washington, D.C., he met with his board of directors that included an associate with the Orrick, Herrington and Sutcliffe firm’s Washington, D.C. office. Orrick is a global firm with some 1,100 lawyers in the United States and in at least 12 other countries. At that time, Kelsi Brown Corkran was the head of U.S. Supreme Court practice at Orrick. After a meeting with Mr. Weiss, the decision was made that Orrick lawyers would join with Mr. Weiss in the representation of Mr. Taylor. At the Supreme Court, Ms. Corkran was counsel of record – with three other Orrick lawyers and Mr. Weiss as Mr. Taylor’s appellate team.

Ms. Corkran is now a Pro Bono Senior Fellow at Georgetown University’s Law Center’s Institute for Constitutional Advocacy and Protection. In talking with her about Taylor, she mentioned that this was the first time in 16 years that the Supreme Court has denied qualified immunity to a state official in a § 1983 case. For those representing plaintiffs or defendants in § 1983 cases, it is important to know that Taylor is already being cited in the trials of these cases.

My Thoughts

  • Congratulations to Mr. Taylor’s appellate team for their successful representation of him. It is impressive to see this pooling of talent on behalf of an indigent Texas inmate.
  • Over the years, some of our larger Texas law firms have committed their substantial legal resources to the representation of indigent inmates. It would be wonderful if more of these firms would rise to the challenge. Perhaps Taylor will inspire them to do so. If they do, they should get recognition for their efforts.
  • Man’s Inhumanity to Man were the first words that came to mind as I was reading Taylor.
  • I would have at least these questions:
    • How many, if any, prison employees – in whatever capacity – were disciplined because of the abuse that Mr. Taylor suffered?
    • How many other inmates at the Montford Unit endured the same cell conditions as Taylor?
    • What, if any, remedial action has been taken by prison officials in response to Taylor’s original complaints or to the Supreme Court’s opinion?
    • What, if anything, has the Texas Department of Criminal Justice done to address the issues raised by Mr. Taylor?
  • I am surprised that Taylor has not been picked up by the print media. This is the kind of case that The Dallas Morning News and the Houston Chronicle would have jumped all over 25 or  30 years ago. The days of the investigative reporter may be over.

TCDLA Thanks You, Buck!

All previous installments in “The Federal Corner” series can be found online by logging into your TCDLA member account and visiting voiceforthedefenseonline.com.

Don’t despair–”The Federal Corner” will continue in future issues of the Voice. Our editors are busily compiling a team of authors with federal experience to contribute to this important topic.

If you have federal experience and would like to contribute, please reach out to one of our editors:

Sarah Roland:
Clay Steadman:
Jeep Darnell:
Amanda Hernandez:


Some Reflections and Some Thank Yous

Buck Files

Writing the “Federal Corner” has been both challenging and rewarding. The challenge has been to find a case for each edition of the VOICE that would be of interest to our members and to the judges who also receive a copy of the magazine. The case would have to be recent and not too long or too complex for me to fit it into the space that I was allocated.

The reward was in what I learned. For each column, I would usually review some six to twenty cases. I always found something in this research that I would never have known if I had not been writing this column.

As the turtle who was sitting on top of the fence post said, “I didn’t get here by myself.” I owe a word of thanks to:

  • Our former executive director Joseph Martinez and our current executive director Melissa They supported my efforts enthusiastically. When I turned in my 100th column, Joseph said, “Keep writing.” When I turned in my 200th column or article, Melissa said, “Keep writing.” I listened to each of them, but now it’s time to hang it up. 250 columns or articles is enough for anyone.
  • Sarah Roland, the current editor of the VOICE. It is her responsibility to turn out ten editions of the VOICE each year and she has done a magnificent job in working with others to improve the quality of the magazine. Sarah has been a pleasure to work with and I have no doubt that she will be a leader in our association for many years.
  • The other editors with whom I have worked. I have good memories of each of you and enjoyed working with you.
  • The TCDLA staff, both past and present, with whom I have worked—especially Craig Hattersley.
  • The TCDLA members who have called to mention a case to me that I later wrote about.
  • The TCDLA members who would have a kind word for me about one of my columns or articles. People who write for a publication are like radio announcers. We never know if anyone is paying attention to what we are trying to communicate.

Shout Outs

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Kudos to Jason Cassel, who helped dismiss the murder charge against his client, Deborah Smiley McFadden, for the death of her then‑boyfriend, Edward George, Jr. McFadden was accused of the murder in 2003. On Feb. 17, 2017, she was found guilty and sentenced to 40 years in prison. Cassel contended that the prosecuting attorney suppressed evidence that would have been beneficial for McFadden. Congratulations, Jason!

Kudos to Brent Mayr, who is representing a Eddy, Texas, man who is among those indicted for the January 6 storming of the U.S. Capitol. In a February 11 court filing, Mayr argued that his client “is anything but insurrectionary” and that cell phone footage proves this. It may seem a daunting case to take on, but Brent is handling it with the same ethical professionalism that he uses when assisting lawyers who call the Ethics Hotline. Best of luck, Brent, and kudos for taking the case!

Congratulations to Jason Niehaus and TCDLA’s Amicus Curiae Committee for the work and win in Watkins v. State, PD‑1015‑18 (Tex. Crim. App. 3/3/21).

Congratulations to Josh Zientek, who handled an appeal before the 9th Court of Appeals and was able to get stacked sentences removed from his client’s conviction. Excellent work, Josh!

Congratulations to Eric Torberson, who saved a dog from the death penalty. The dog in question was out for a walk with his owner and was frightened by a jogger coming up behind, and the dog pawed at the jogger but didn’t even break her skin. Paws in the air for Eric!

Congratulations to Nnamdi Ekeh, whose client was no billed on a aggravated sexual assault charge and whose charge for felony assault of breathing impediment was dismissed!

To be featured in our shout outs, email details to Melissa Schank at

Current Issue: March 2021

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Features

17 | Be Sure to Pencil Yourself In – By Shana Stein Faulhaber
18 | Home-Rule City Ordinances vs. Texas Penal Code – By Anne Burnham & Stephanie Stevens
21 | Get What You need for the Indigent Non-Citizen Client with an ICE Hold During COVID-19 – By Suzanne Spencer
24 | What is Computer Vision and How Does Law Enforcement Use It? – By Nicolas Hughes
30 | Combating Y-STR DNA Analysis in Sexual Assault Cases – By Angelica Cogliano
32 | Illuminating Pathways to Criminal Defense Practice: An Update from TCDLA’s Law School Committee – By Anne Burnham & Stephanie Stevens
34 | Kids, Schools, Phones, and Consent – By Ambrósio Silva
37 | Working with Diverse Juries – By Rick Flores

Columns

6 | President’s Message
7 | Executive Officer’s Perspective
8 | Editor’s Comment
10 | Ethics and the Law
12 | Federal Corner
16 | From the Front Porch
29 | Shout Outs

Departments

5 | CLE Seminars and Meetings
43 | Significant Decisions Report

Online-Only Articles

Alcohol Testing in the Age of COVID-19 – By Jan Semenoff
Invest in Secure E-Mail Services – By Lex Johnson

President’s Message: Pandemic Jury Trials

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It has been nearly a year since Texas and the nation’s courts began scaling back in-person operations due to the pandemic. It has been well more than a year since the pandemic became a major problem. This is but an example of a shortcoming with large governmental systems: They often react late to a crisis.

As of February 2021, I would be less than candid if I were to tell you that state and federal jury trials are unsafe and pose an unacceptably high risk of viral transmission. But it would be equally misleading to state that trials and other in-person court proceedings are safe. The truth is, no one really knows.

Here is another stubborn truth I’ve discovered during the past year through consultation with administrators, judges, defense lawyers, prosecutors, and even some scientists: Many of the important stakeholders in the criminal justice system have strong opinions about the “best” path forward and there is little we criminal practitioners — the ones on the front lines of the legal system due to frequent contact with inmates, clients, courthouse personnel, and many others — can do to change their minds.

The time has come to paddle our own boat.

If as a TCDLA member you believe it is unsafe to participate in a court proceeding or that your client’s constitutional rights are not adequately protected, this organization has your back. We have a COVID-19 Committee and a Strike Force to help you with legal and strategic assistance when a judge is dragging you and your client into trial against your will. If you believe there is no reason to postpone a court proceeding and your client has demanded a speedy trial, the same TCDLA people will assist you with the full force and intelligence we’ve assembled. You can reach me personally by text or email 24/7 and I will work for you as well.

Many among us believe that in-person court proceedings are unwise and possibly unsafe until vaccinations are widely distributed and the population has achieved herd immunity. That’s a reasonable position to take. As a single parent of a small child, I will not permit a judge to bully me into something I don’t think is safe and I wouldn’t ask any of our members to allow it, either.

It is not as though the criminal defense bar isn’t trying to improve the situation. In December I sent a letter on behalf of TCDLA to Governor Greg Abbott and vaccine administrators. We asked them to prioritize criminal practitioners in the vaccination pipeline. Not jump ahead of frontline healthcare workers, nursing home residents, medically vulnerable people, and the elderly. Just put us into a group of essential workers with vaccination priority. While that may indeed happen, the Governor’s Office has yet to respond.

During a State Bar Task Force Zoom meeting on February 8, 2021, I suggested that trial judges give priority to defendants who affirmatively demand a speedy trial, so we could possibly avoid situations in which attorneys, clients, and even some prosecutors are dragged into trial against their will. Several of the judges in the meeting (including two regional presiding judges) made it clear it was a hard no. For judges who are bent on going to trial during the pandemic, it’s not about incrementally shrinking trial dockets or safeguarding the accused’s constitutional right to a speedy trial. It’s about running their courtrooms however they see fit.

Worth noting, the vast majority of judges I’ve encountered in my small pocket of the universe (mostly Greater Houston) are doing the right thing and waiting until conditions are safer and not pushing cases to trial unless all parties are willing. When you see a judge doing the right thing, be sure to thank him or her. They’re under a lot of pressure, too.

Trials are about to ramp up, whether it’s the right path forward or not. My advice to colleagues is to follow your conscience. No matter which path you choose, TCDLA will make sure you do not have to walk it alone.

Executive Officer’s Perspective: Another Historic Event

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The only thing you sometimes have control over is perspective. You don’t have control over your situation. But you have a choice about how you view it.

-Chris Pine

When I first started to write this article, I was going to write about how we have become so reliant on technology since COVID. Everyone has had to learn new programs, change the way we have always done things. Technology is tricky. By the time you buy the most recent device, program, or update, another is available.

How the tables turned this past week during our Texas arctic blast – another historical event to add to the pandemic and share with younger generations. It was tough to realize we had no power, water, and heat for days—the simple things I had taken for granted. The days just all ran into each other. Checking in with family, staff, and friends, I felt so helpless because there was no definite answer to when things would get back to running efficiently – normal? What is that? When the state offices and schools completely shut down, and over four million have no power, you know it is something very wrong. No light at the end of the tunnel, literally.

As with all tragedies, the takeaway is how I could have better prepared for things in my control. I sat here for a while to think about what I could do differently. I was well equipped with food and toilet paper since the start of COVID, candles, and flashlights if the power went out, lots of blankets. I had backups to charge the cell phone and laptop. Staff who had power were on standby to get us through the four live programs scheduled. One staff’s husband went in their 4 x 4 to make sure we didn’t have another busted pipe at the office. Check, check, and check.

I had people come over who needed food since theirs went bad without refrigeration. When I finally got power, others came to shower, and I left my house open. I checked in with co-workers, family, and friends, and they did with me. After several days without heat and water, I felt like a savage, surviving on libations and Girl Scout cookies. There were no patterns to the blackouts. But I am so blessed for my group of friends and family who reached out. TCDLA is the community we’ve built and the one we need.

Together I could see our TCDLA family reaching out to one another in group texts, direct texts, social media, and listserves. The relationships built through TCDLA are irreplaceable and it humbles my heart to be part of this community.

Now back to my original topic: The TCDLA staff along with the Technology Committee have worked really hard to update the How To section. You may think these are basic, but we had staff learn some new tricks to be more efficient with our daily work. If you have not gone through the sections, the videos are short and right to the point with hands-on examples. Many committee members are also working on pages under the members-only section and are reorganizing the video resource library. The COVID resource page has been updated and reorganized as well with new resources. We are working hard to keep up with technology – if only we had control of the power! Keep checking the members-only section for new additions!

Keep safe and warm!

Editor’s Comment: Tattoos Can Be Removed, But Can a “Gang Member” Label?

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It all started simple enough. A question popped up in my inbox from a probation officer. It wasn’t a question about a particular client of mine – just a question from a good probation officer who, seeing beyond the criminal offense, was trying to help one of his young probationers.

“Do you know anything about the process that a probationer could use to be removed from the gang registry?”

And do you know what? I didn’t know, and I felt bad for not knowing. I could tell him all about other legal mechanisms to help restore a person – early release, expunctions, sealing records, and judicial clemency – but nothing about getting off the gang registry. So, I made it a point to find out.

When in doubt about a question like this, turn to the CCP to see if there’s guidance. The answer to the question above is found in Chapter 67. Before answering the question though, it is necessary to understand a little about the gang database.

As an initial matter, it is important to note that Texas is one of a minority of states that have a gang database. In 2005, the FBI established the National Gang Intelligence Center that integrates gang intelligence from across law enforcement agencies at all levels.

Article 67.051 mandates that the State compile and keep a database for the purpose of investigating or prosecuting the criminal activities of combinations or criminal street gangs. Subsection (d) requires local law enforcement to send to the department such information the agency compiles and maintains under Chapter 67. So, first, the database is required at the State level, and local law enforcement agencies are required to participate in providing information to the database.

Article 67.054 outlines the submission criteria for inclusion in the database:

(b)  Criminal information collected under this chapter relating to a criminal street gang must:

(1)  be relevant to the identification of an organization that is reasonably suspected of involvement in criminal activity; and

(2)  consist of:

(A)  a judgment under any law that includes, as a finding or as an element of a criminal offense, participation in a criminal street gang;

(B)  a self-admission by an individual of criminal street gang membership that is made during a judicial proceeding; or

(C)  except as provided by Subsection (c), any two of the following:

(i)  a self-admission by the individual of criminal street gang membership that is not made during a judicial proceeding, including the use of the Internet or other electronic format or medium to post photographs or other documentation identifying the individual as a member of a criminal street gang;

(ii)  an identification of the individual as a criminal street gang member by a reliable informant or other individual;

(iii)  a corroborated identification of the individual as a criminal street gang member by an informant or other individual of unknown reliability;

(iv)  evidence that the individual frequents a documented area of a criminal street gang and associates with known criminal street gang members;

(v)  evidence that the individual uses, in more than an incidental manner, criminal street gang dress, hand signals, tattoos, or symbols, including expressions of letters, numbers, words, or marks, regardless of how or the means by which the symbols are displayed, that are associated with a criminal street gang that operates in an area frequented by the individual and described by Subparagraph (iv);

(vi)  evidence that the individual has been arrested or taken into custody with known criminal street gang members for an offense or conduct consistent with criminal street gang activity;

(vii)  evidence that the individual has visited a known criminal street gang member, other than a family member of the individual, while the gang member is confined in or committed to a penal institution; or

(viii)  evidence of the individual’s use of technology, including the Internet, to recruit new criminal street gang members.

(c)  Evidence described by Subsections (b)(2)(C)(iv) and (vii) is not sufficient to create the eligibility of a person’s information to be included in an intelligence database described by this chapter unless the evidence is combined with information described by another subparagraph of Subsection (b)(2)(C).

So, it is important to recognize and acknowledge that the “gang member” label can be, and likely is, applied without due process and outside the walls of any courthouse. And as becomes obvious from a further read, removing a tattoo is easier than removing a “gang member” label.

The answer to the question of how to remove information from a gang database is contained in Article 67.151 which provides, in relevant part:

(b)  Subject to Subsection (c), information collected under this chapter relating to a criminal street gang must be removed after five years from an intelligence database established under Article 67.051 and the intelligence database maintained by the department under Article 67.052 if:

(1)  the information relates to the investigation or prosecution of criminal activity engaged in by an individual other than a child; and

(2)  the individual who is the subject of the information has not been arrested for criminal activity reported to the department under Chapter 66.

(c)  The five-year period described by Subsection (b) does not include any period during which the individual who is the subject of the information is:

(1)  confined in a correctional facility operated by or under contract with the Texas Department of Criminal Justice;

(2)  committed to a secure correctional facility, as defined by Section 51.02, Family Code, operated by or under contract with the Texas Juvenile Justice Department; or

(3)  confined in a county jail or confined in or committed to a facility operated by a juvenile board in lieu of being confined in a correctional facility described by Subdivision (1) or committed to a secure correctional facility described by Subdivision (2).

Interestingly, the person named in the database does not have to be informed they are named in the database. However, the CCP outlines procedures for determining if a law enforcement agency has collected or is maintaining gang information, requesting a review of criminal information that may have been incorrectly included in a gang database, and also for judicial review of any such determination made. See Art. 67.201- 67.203.

The Texas Department of Criminal Justice calls gangs “security threat groups.” TDCJ recognizes 12 such security threat groups: Aryan Brotherhood of Texas, Aryan Circle, Barrio Azteca, Bloods, Crips, Hermanos De Pistoleros Latinos, Mexican Mafia, Partido Revolucionario Mexicanos, Raza Unida, Texas Chicano Brotherhood, Texas Mafia, and Texas Syndicate. TDCJ has created a process for inmates to renounce their membership in one of these security threat groups (aka “gangs”). And it is a process – a 9-month process with several phases – called the Gang Renouncement and Disassociation (GRAD) Process. Of course, there are myriad considerations, not address herein, that must be evaluated before an inmate embarks on the GRAD Process. To say it is dangerous is an understatement. And the fact that an inmate has completed the GRAD Process doesn’t mean the “security threat group” notation will be forever removed. Rather, it means that the new notation will be “ex-security threat group member.” See www.tdcj.texas/gov/divisions/cid/stgmo_GRAD.html (last visited 2/9/21).

I’m thankful I received that email question. Chapter 67 is worth reading. And it’s worth a visit to the TDCJ website to check out the security threat groups and GRAD Process too. The bottom line is that it seems much easier to remove or cover up a tattoo – even a gang tattoo – than to remove the same label law enforcement has applied.

P.S. – We all weathered the recent winter blast together but experienced it in very different ways. Many of us may have experienced only minor inconveniences for a week while some of us were really hit hard and are still recovering from the damage caused. Please know that your TCDLA family is here for you. If there is anything we can do to help you, please reach out to any of us. Let’s take care of each other.

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