Editor’s Comment: A Little Death Penalty Math – By Greg Westfall

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I watch presidential debates for the same reason I suspect some others watch NASCAR races—to see the crashes. And so it was as I settled in to watch the September 7, 2011, debate between the current Republican presidential hopefuls moderated by Brian Williams. I knew, of course, that unless he backed out or otherwise refused, Rick Perry would be in this debate, so I thought my chances were good. I had not been watching for long when this exchange occurred:

williams: Governor Perry, a question about Texas. Your state has executed 234 death row inmates, more than any other governor in modern times. Have you . . .

[Interrupted by vigorous applause from the audience]

Have you struggled to sleep at night with the idea that any one of those might have been innocent?

perry: No, sir. I’ve never struggled with that at all. The state of Texas has a very thoughtful, a very clear process in place of which—when someone commits the most heinous of crimes against our citizens, they get a fair hearing, they go through an appellate process, they go up to the Supreme Court of the United States, if that’s required. But in the state of Texas, if you come into our state and you kill one of our children, you kill a police officer, you’re involved with another crime and you kill one of our citizens, you will face the ultimate justice in the state of Texas, and that is, you will be executed.

williams: What do you make of . . .

[Interrupted again by applause from the audience]

What do you make of that dynamic that just happened here, the mention of the execution of 234 people drew applause?

perry: I think Americans understand justice. I think Americans are clearly, in the vast majority of—of cases, supportive of capital punishment. When you have committed heinous crimes against our citizens—and it’s a state-by-state issue, but in the state of Texas, our citizens have made that decision, and they made it clear, and they don’t want you to commit those crimes against our citizens. And if you do, you will face the ultimate justice.

http://historymusings.wordpress.com/2011/09/07/campaign-buzz-september-7-2011-full-text-transcript-republican-presidential-debate-ronald-reagan-library-rick-perry-mitt-romney-steal-show/

While I wasn’t just floored—after all, you have to consider the audience might not perfectly represent the public at large—I was a little taken aback. I mean, Perry just about got a standing ovation for essentially proclaiming that capital punishment—of which he shares ultimate administrative control—does not even appear on his moral radar. Never has he questioned a decision he has made. And he’s proud of it. And a lot of people in the audience agreed.

Intrigued as I was baffled and slightly nauseous, I started to look around for the real state of opinions about the death penalty today. Along the way, I found some interesting data.

A Gallup Poll from October 2010 of 1,025 adults nationwide found 64% favored the death penalty for a person convicted of murder, 29% opposed, and 6% were unsure (for some reason, this all adds up to 99%). Sixty-four% support for capital punishment is the lowest level ever demonstrated in the poll, although it has gone that low several times since 1991, when the poll was first conducted. At the other extreme, the level of support has gone as high as 80%. (All of these polls may be viewed at http://www.pollingreport.com/crime.htm and have margins of between 4% and 5%.)

A question Gallup didn’t ask in 2010 (but had asked in 2003, 2005, 2006, and 2009) was:

“How often do you think that a person has been executed under the death penalty who was, in fact, innocent of the crime he or she was charged with? Do you think this has happened in the past five years, or not?”

In 2009, 59% believe that it indeed had. In years past, the%age believing we had executed an innocent man has run as high as 73%.

Thus, the numbers shake out like this: As of last October, 64% of Americans favor the death penalty. At the same time, and using data from 2009, 59% of Americans believe we have executed an innocent man in the last five years. Now. Let’s do some math.

If we take 1,000 people (a valid sample for polling purposes), we can assume that roughly 640 (64%) will support the death penalty. In those same thousand people will be 590 (59%) who believe we have executed an innocent person in the last five years. The question is to what extent these two populations overlap, thus giving us people who (1) believe in the death penalty, and (2) believe we have executed an innocent man in the last five years. The populations would look like this:

(a)640 (64%) of people are for the death penalty, 360 (36%) of people are against or unsure;

(b)590 (59%) of people believe we have killed an innocent person in last 5 years.

Let’s assume that concern about killing an innocent person actually caused the 360 people who do not support the death penalty to be against it or unsure. Then, subtract all of them from the 590 who believe we have executed an innocent in the last five years. That would leave 230 people who support the death penalty while at the same time believing that we have executed an innocent person within the last 5 years.

Folks, that’s 23% of our population. Nearly one juror in four begins from the position of believing that our capital punishment system kills innocent people but doesn’t care.

That should give us something to talk about in voir dire.

Ethics and the Law: Professionalism

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The newly formed ethics hotline has been hot. We have received numerous calls, and the hotline has turned into a helpline for lawyers with ethical and procedural questions. All the co-chairs have been invaluable. Many lawyers never had training on how to handle a criminal case and how to get cases in an ethical manner. Times have changed and now lawyers run wild ads on television, which are reminiscent of Cal Worthington, the California car dealer who would appear on commercials riding elephants trying to sell cars. Mary Flood, a Harvard-educated lawyer who does public relations work for Androvett Legal Media & Marketing, says over 90 percent of websites are misleading. Get your website approved by the State Bar before putting it up. The quality of your representation is what counts most. When I first met lawyer legend Percy Foreman, he said if you are being a lawyer for the money, do something else. He said if you do a good job as a lawyer, you will always make money. He made plenty.

Follow these simple tips that will help you on your cases:

  1. Get a contract or letter of acknowledgement;
  2. Build your file with a copy of the relevant statutes, punishment ranges, and lesser included offenses;
  3. Be, look, and act professional;
  4. Have file in shape so if another lawyer has to take it over, it will be organized in case you drop dead or get shot by an angry client;
  5. Be available to your client throughout all times of the day and night. If you want an 8 am–5 pm job, go work for the government;
  6. Read books on famous lawyers like Earl Rogers, Gerry Spence, and Clarence Darrow. They became famous for a reason;
  7. Get help from TCDLA members or utilize hotlines;
  8. In case of punishment or to aid in plea-bargaining, get a complete social history of your client. It will explain and not excuse what your client has been accused of;
  9. Improve weaknesses by attending seminars and staying awake through them;
  10. Ask questions. Lawyers are always willing to help comrades;
  11. Build relationships with court personnel. One bailiff was my friend and he would always give the jury charge to the person I thought should be the foreman;
  12. Carry a copy of the penal code and/or code of criminal procedure with you. I also highly recommend reading books written by Ray Moses, who tells you how to do everything from what to wear to what to say and how to handle cases. Jim Skelton’s search and seizure workbook is another great resource. Look up the Criminal Law Institute for the search and seizure information.

Learn to be in charge of the courtroom. Percy and Racehorse Haynes have been called the Kings of the Courtroom because they took control. Judges or district attorneys do not respect those who give in. Sometimes not giving in will result in an allegation of contempt against you, so carry a motion for a personal recognizance bond in your briefcase just in case—it will allow for your immediate release. You never know when you will need it. See § 21.002(d) of the Texas Government Code regarding the personal recognizance bond. Also carry a motion to prevent ex-parte communications between judges and assistant district attorneys. It is unethical for a judge to discuss cases ex-parte. Your oath is to your client, not to be friends with the judge. Let them know you are aware of those rules. The Commission on Judicial Conduct is there for a reason.

Sometimes it may be in your best interest to record conversations with clients. In Texas, the recording of phone calls and other electronic communications is allowed when one party to the conversation consents to it. The following is an article—entitled “May a Lawyer Electronically Record a Telephone Conversation?—written by co-chair Greg Velasquez of the El Paso County Public Defender’s Office regarding tape-recording calls.

May a Lawyer Electronically Record a Telephone Conversation?

Federal law

Federal law allows recording of phone calls and other electronic communications with the consent of at least one party to the conversation.1 This is called a one-party consent law. With the consent of one person or party to the conversation, recording the conversation is not a violation of the law.

“One-Party Consent” Statutes

Thirty-eight states and the District of Columbia have adopted “one-party consent” laws and permit individuals to record phone calls and conversations to which they are a party or when one party to the communication consents.2

“Two-Party Consent” Statutes

Twelve states require the consent of every party to a phone call or conversation in order to make the recording lawful. These “two-party consent” laws have been adopted in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. Consent must be obtained from every party to a phone call or conversation if it involves more than two people.3

Texas Law

Texas’ wiretapping law is a “one-party consent” law. Texas makes it a crime to intercept or record any “wire, oral, or electronic communication” unless one party to the conversation consents.4 But, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties.5

The law does not cover oral communications when the speakers do not have an “expectation that such communication is not subject to interception under circumstances justifying such expectation.”6 Therefore, you may be able to record in-person conversations occurring in a public place—such as a street or a restaurant—without consent.

Also, a recording device in plain view is presumed to be used with the consent of all persons who can see it.

Texas Lawyer and the Professional Ethics Committee for the State Bar of Texas

May a lawyer electronically record a telephone conversation between the lawyer and a client or third party without first informing the other party to the call that the conversation is being recorded?

In November 2006, the Professional Ethics Committee for the State Bar of Texas issued Ethics opinion No. 575 and answered the question.7 The Committee stated the following:

It is recognized that there are legitimate reasons a lawyer would electronically record conversations with a client or third party. Among the legitimate reasons are to aid memory and keep an accurate record, to gather information from potential witnesses, and to protect the lawyer from false accusations.

Ethics opinion No. 575 p.2.

The Committee also stated “No provision of the Texas Disciplinary Rules of Professional Conduct specifically prohibits a lawyer’s unannounced recording of telephone conversations in which the lawyer participates.”8

The Committee was of the opinion that the Texas Disciplinary Rules of Professional Conduct did not generally prohibit a lawyer from making undisclosed recordings of telephone conversations in which the lawyer is a party, provided that certain requirements are complied with.

The Committee cited Rule 8.04(a)(3) of the Texas Disciplinary Rules of Professional Conduct: “(a) A lawyer shall not: (3) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation,” and the Committee stated that it did not believe that an undisclosed recording of a telephone conversation by a party to the conversation could be termed to involve “dishonesty, fraud, deceit or misrepresentation” within the meaning of Rule 8.04(a)(3). Thus, a Texas lawyer’s undisclosed recording of his telephone conversation with another person should not be held to violate Rule 8.04(a)(3).

The Committee concluded that the Texas Disciplinary Rules of Professional Conduct did not prohibit a Texas lawyer from making an undisclosed recording of the lawyer’s telephone conversations provided that (1) recordings of conversations involving a client are made to further a legitimate purpose of the lawyer or the client, (2) confidential client information contained in any recording is appropriately protected by the lawyer in accordance with Rule 1.05, (3) the undisclosed recording does not constitute a serious criminal violation under the laws of any jurisdiction applicable to the telephone conversation recorded, and (4) the recording is not contrary to a representation made by the lawyer to any person.

Federal Corner: The Bureau of Prisons’ Very Exclusive Residential Drug Abuse Treatment Program – By F. R. Buck Files Jr.

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On August 10, 2011, Steven Standifer received bad news. He was not going to be permitted to participate in the Bureau of Prisons’ Residential Drug Abuse Program [RDAP]. A panel of the United States Court of Appeals for the Tenth Circuit [Circuit Judges O’Brein, McKay, and Tymkovich] sent that message to him. Standifer v. Ledzema, ___ F.3d___, 2011 WL 3487074 (10th Cir. 2011).

What makes this case interesting to me is that it hightlights the form-over-substance approach that the Bureau of Prisons follows in determining who is eligible to participate in this program. An inmate must have a verifiable, documented drug abuse problem that occurred within 12 months of his federal arrest. That is the hurdle every inmate has to clear when applying. It is an exclusive rather than an inclusive program.

What is ironic is that the Bureau of Prisons touts the success of its substance abuse treatment program in general and of the Residential Drug Abuse Program in particular:

Drug treatment studies for in-prison populations have found that when programs are well-designed using effective program elements and implemented carefully, these programs:

    • reduce relapse,
    • reduce criminality,
    • reduce recidivism,
    • reduce inmate misconduct,
    • reduce mental illness,
    • reduce behavioral disorders,
    • increase the level of the inmate’s stake in societal norms,
    • increase levels of education and employment upon return to the community,
    • improve health and mental health symptoms and conditions, and
    • improve relationships.

Collectively, these outcomes represent enormous safety and economic benefits to the public [emphasis added].

RDAP is the Bureau’s most intensive treatment program. It too follows the CBT (cognitive behavioral therapy) model of treatment wrapped into a modified therapeutic community model in which inmates learn what it is like living in a pro-social community. Inmates live in a unit separate from general population, participate in half-day programming and half-day work, school, or vocational activities. RDAP is typically nine months in duration. The Bureau and National Institute on Drug Abuse combined funding and expertise to conduct a rigorous analysis of the Bureau’s RDAP. Research findings demonstrated that RDAP participants are significantly less likely to recidivate and less likely to relapse to drug use than non-participants. The studies also suggest that the Bureau’s RDAPs make a significant difference in the lives of inmates following their release from custody and return to the community [emphasis added] (www.bop.gov/inmate_programs/substance.jsp).

And now back to Standifer. Judge Tymkovich authored the opinion of the Court which includes the following:

[An Overview]

Steve Standifer, a federal prisoner proceeding pro se, challenges a Bureau of Prisons’ (BOP’s) regulation that denies him eligibility to participate in its Residential Drug Abuse Program (RDAP). He is ineligible for the program because his last-reported date of drug use was more than three years before his arrest on federal charges. Standifer contends the BOP’s policy requiring that it consider only his substance-abuse history for the 12 months preceding his arrest is based on an unreasonable interpretation of authorizing statutes. This claim fails because the BOP’s eligibility requirement is based on a reasonable interpretation of the governing provisions, 18 U.S.C. §§ 3621(b) and (e)(1). Standifer’s assertion that the BOP was deliberately indifferent to his medical needs is similarly unavailing.

[The Facts]

In 2005, Standifer was imprisoned in Oklahoma state prison for distributing and cultivating marijuana. Almost two years later, while serving this sentence, Standifer was indicted on federal charges for possessing marijuana with intent to distribute, in violation of 21 U.S.C. §841(a)(1). He pleaded guilty and was sentenced to 60 months’ imprisonment in a federal penitentiary. He is currently serving his federal sentence.

While in federal prison, Standifer sought admission to RDAP, the BOP’s residential drug-treatment program. The BOP found, however, that Standifer did not meet the RDAP enrollment criteria because he did not have a documented incident of drug abuse within a 12-month period preceding his arrest. See BOP Program Statement 5330.11 § 2.5.8(d)(2). Standifer concedes he last used drugs in January 2004—more than three years before his arrest on federal charges (and more than a year before his arrest on state charges).

[The Proceeding Is in the District Court]

In May 2010, Standifer filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241, arguing the 12-month-period eligibility criterion exceeded the BOP’s statutory authority, under 5 U.S.C. § 706(2)(C) of the Administrative Procedure Act (APA). The district court referred the matter to a magistrate judge, who issued a well reasoned Report and Recommendation concluding Standifer’s claims lacked merit. For substantially the same reasons as set forth in the Report and Recommendation, the district court dismissed Standifer’s petition and granted the BOP’s motion for summary judgment.

[The History and Requirements of RDAP]

RDAP spawned from 18 U.S.C. § 3621(b), which directed the BOP to “make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse.” Under BOP regulations, to be eligible for RDAP, an inmate must have a verifiable, documented drug abuse problem that occurred within 12 months of his arrest. 28 C.F.R. § 550.53(b)(1) (explaining that “a verifiable substance abuse disorder” is a prerequisite to enrollment in RDAP); BOP Program Statement 5330.11 § 2.5.8(d)(2) (BOP may verify an inmate’s substance abuse disorder by consulting “[d]ocumentation to support a substance use disorder within the 12-month period before the inmate’s arrest on his or her current offense”). The BOP has discretion to grant early release of up to one year to inmates who successfully complete RDAP. § 3621(e)(2)(B). Because the BOP’s 12-month-window requirement is codified in a program statement rather than formal regulation, we must give the language “some deference” if it involves a “permissible construction of the statute.” Reno v. Koray, 515 U.S. 50, 61, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995) (quotation omitted) [emphasis added].

[Standifer’s Position and the Court’s Reply]

Standifer concedes he did not have a verifiable substance abuse disorder within one year of his arrest. He told the district court that in 2003, he “stopped using all substances on his own volition,” and that after a January 2004 relapse, he successfully completed an Oklahoma Department of Corrections rehabilitation program. Standifer has been drug free ever since. Given these facts, Standifer does not dispute he was ineligible for RDAP under BOP regulations. Rather, he argues the BOP exceeded statutory authority, under the APA, when it conditioned participation in RDAP on an inmate having a documented drug-abuse problem within 12 months of his arrest. This argument is unavailing.

[The Eligibility Requirements]

The BOP’s 12-month-period eligibility requirement for participation in RDAP accords with authorizing statutes. Pursuant to statute, RDAP is open only to prisoners who “have a substance abuse problem.” § 3621(e)(5)(B) [emphasis added]. The word “have” is in the present tense; the statute does not require the BOP to offer any treatment for inmates who suffered from drug abuse in the past. See United States v. Wilson, 503 U.S. 329, 333, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) (“Congress’ use of a verb tense is significant in construing statutes.”). This language reflects Congress’ intention that RDAP be made available only to prisoners with current drug-abuse problems. Accordingly, the BOP’s interpretation—which limits RDAP to inmates with current or recent drug-abuse problems—is reasonable, infringes no constitutional right, and merits deference. See, e.g., Mora-Meraz v. Thomas, 601 F.3d 933, 942–43 (9th Cir.2010) (holding the BOP’s 12-month eligibility requirement was a reasonable interpretation of the statute); Laws v. Barron, 348 F.Supp.2d 795, 805–06 (E.D.Ky.2004) (“[C]ommon sense would dictate that entry into [RDAP] would be restricted to those prisoners having a recent history of abuse, rather than one who can demonstrate that he had a substance abuse problem 4 to 9 years prior to arrest and 7 to 12 years prior to incarceration.”)

[The Court’s Conclusion]

Because the BOP’s 12-month-period eligibility requirement is a reasonable implementation of Congress’s mandate, we defer to the BOP’s rule and deny Standifer’s claim.

My Thoughts

  • Yes, there is another benefit to successfully completing the RDAP that, I’m certain, has more appeal to the average inmate than the treatment component. BOP can reduce the inmate’s sentence by up to one year and every inmate knows that.

  • The lesson from Standifer is that a lawyer must make certain that the PSR documents a verifiable drug abuse problem within a 12-month period proceeding his or her client’s federal arrest—if that is possible. Otherwise, the client has no possibility of entering the RDAP.

Said & Done

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Kudos

Gary Trichter sent along this note: As President of TCDLA, I want to applaud the 26 Collin County defense lawyers who publicly provided written statements that a specific trial court judge had a DWI videotape policy that denied all Defendants a fair trial. These brave warriors showed no fear of reprisal. They couragously signed off on the evidentiary statements knowing that they still had to regularly practice before this judge. The court of appeals, in reversing the trial judge for his unconstitutional policy, took special note of this fact. That said, you 26 bring great honor to the defense bar and to TCDLA. Thank you for standing together and backing up the trial lawyers.

Kudos to the Dallas Criminal Defense Lawyers Association, who presented cash and checks totaling $4,740 to Zach Thompson at Dallas County Health and Human Services to purchase air conditioners for those elderly and young in need. Deandra Grant reports that the city had run out of money for the humanitarian effort. Brad Lollar set up a table and collected donations. A deal with Lowe’s on a discounted rate of $100–125 for each unit meant that 38–48 units were provided. Additional donations can be sent to Zach at Dallas County Health and Human Services, 2377 N. Stemmons Freeway, Dallas 75207. Great work, guys.

Keith Hampton won writs in the district court forcing the Austin State Hospital to accept his mentally ill clients. The clients had already been found incompetent to stand trial and ordered to the hospital but had languished in jail for weeks and even months. Keith is happy to share his writ with anyone who has similar problems in getting incompetent clients into a mental health facility instead of the county jail. Good work, Keith.

Paul B. Love represented an army recruiter charged with Aggravated Assault, Aggravated Sexual Assault, and Retaliation in the 122nd Judicial District Court of Galveston County. The jury returned not guilty verdicts on all three charges. Nice work, Paul.

Craig Henry obtained reversal of a murder conviction based on ineffective assistance of counsel in improperly advising client that he would be eligible for probation from a jury if convicted of murder.

Mark Griffith’s client was charged with Aggravated Assault/Serious Bodily Injury, arising from a fight outside a bar. A friend was being jumped by two people, and the accused heard him scream for help and ran up and punched one of the attackers in the face. Mark’s client was a very large man, and his punch broke the “victim’s” jaw and nose, necessitating multiple plastic surgeries. Mark’s investigation included obtaining witness statements from people at the scene. He spent a substantial amount of time talking to client and other witnesses regarding dangers of testifying at grand jury. Mark told the prosecutor that his client would testify, but he also requested that the prosecutor give the statements he had obtained to the jury, and the statements were passed out to each member. His client testified for 30 minutes, and the grand jury no-billed his client. Monica Bishop, Mark’s associate, played a huge role in getting this case ready.

Dustin Nimz, assisted by Scott Stillson from the Wichita County Public Defender’s Office, recently won a “not guilty” in a DWI trial. When arrested after a wreck on the highway, the defendant told the officer and an ambulance driver that he was intoxicated. The defendant testified that the wreck occurred in one fashion and the prosecution pursued an alternate theory for the wreck—even though the State’s expert agreed that the wreck could have occurred as the accused claimed. The jury remained unconvinced, and after a long and spirited debate came back with the not guilty. Dustin also tried a 5-count in­dictment including aggravated assault on a peace officer x 2, attempted aggravated assault on a peace officer, escape, and deadly weapon in a penal institution. The jury found the defendant not guilty of the attempt and found a lesser included offense of attempted aggravated assault on a peace officer on the second agg assault charge. The jury only gave 75 years even after hearing evidence of two separate incidences of stabbing guards occurring after the trial.

Fred Stangl tried a 25-to-life Injury to a Child case in Terry County recently. His client also had two other 25-to-life Domestic Assaults by Strangulation pending.The plea offer was 10 years in TDC on two cases (to run CC), dismissing the other case. Client was acquitted in an hour. Thereafter, Stangl pled him to time served on the remaining cases (LIO Class A Domestic Assault).

Michael Robbins, Bexar County Assistant Public Defender, assisted by Micah Mason, a St. Mary’s student intern, had a case reversed and remanded on appeal. Robbins’ client was stopped late at night because the car he was driving vaguely fit the description of another involved in a hit-and-run. An officer saw some loose pills in the car and removed him. Thereafter, another officer saw a pair of brass knuckles in the car. Client was arrested for possession of a dangerous drug and a prohibited weapon. Defense counsel Frank Dickson filed a motion to suppress, which was denied. The client pled to the knuckles case, and got deferred. The dangerous drug case was taken into consideration. On appeal, the Fourth Court reversed and remanded because the officer who stopped D did not have specific articulable facts sufficient to raise a reasonable suspicion that client was involved in illegal activities.

Charles Soechting had a client—a “very deserving and sweet woman”—no-billed by a Dallas County Grand Jury in a Negligent Homicide case. She was charged with the crime because of a motorcyclist died on a Dallas highway during a car accident. Two and a half years went by without citation or charge. The family of the deceased pushed on and on, and she was arrested by the Mesquite PD. The PD couldn’t identify the criminal act but arrested her nonetheless. Soechting made a presentation to the grand jury regarding the lack of criminal conduct and secured a No Bill. Truly a sweet, sweet victory.

Skip Davis represented a couple of Iraq/Afghanistan war veterans in a public intoxication case occurring on Christmas night 2009. The vets were detained after the driver asked one cop if he could spare some M-16 ammunition, flummoxing the cop. The cop claimed reasonable suspicion and stopped the car. Investigation revealed nothing, but client and male friend were both mouthy. The single video in this multi-car response captured the initial minute after the client was pulled from car, though there was no audio on the recording. Client ambulated fine, looked clean cut—all good. Cop cussed client out on screen and then shoved client in the chest, as if instigating a fight! The rest of the detention/arrest was off camera, but with audio. Client and friend were verbally disrespectful to cop, and the client was arrested for Public Intoxication. Skip argued that his client was arrested for being In Contempt of Cop. He proved, with the initial video snippet, that client looked stone cold sober, and using audio from the off-camera interaction, proved that client was not drunk, was no danger to anybody, and, more importantly, that cops knew all along they had no case. Skip felt that in a case of Contempt of Cop, you might beat the rap, but you’re not gonna beat the ride!

July/August 2011 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION


Features

22 | Reading the Declaration of Independence – By Robb Fickman
24 | Big Changes to the Texas Rules of Appellate Procedure – By Cynthia L. Hampton
30 | Depositions in Criminal Cases – By William R. Copeland
43 | Defendant’s Motion for Recall of Capias Pro Fine Warrant Issued for Non-Payment of Indigent Court Costs – By Sarah Roland

Columns
8 | President’s Message
10 | Executive Director’s Perspective
12 | Editor’s Comment
14 | Ethics and the Law
16 | Federal Corner
20 | Said & Done

Departments
5 | TCDLA Member Benefits
6 | Staff Directory
7 | CLE Seminars and Events
34 | Significant Decisions Report

President’s Message: President’s Page No. 1 – By J. Gary Trichter

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TCDLA Brothers and Sisters:

I have been writing and rewriting this first President’s page for one year. Many thoughts as to what I wanted to say have come and gone, but many have stayed. I now begin with those that have remained. First, I want to especially thank our outgoing President, Bill Harris, for being an insightful, dedicated, and effective leader. His boot will be difficult to fill.

Second, I am humbled, honored, and thankful that a majority of you voted me your President. I am equally appreciative to those who voted against me, because by doing so, you validated and gave meaning to our Association’s election process.

Clearly, this presidency is a change from those of the recent past because we have not had a truly elected president since 1966–97. It was then that David Botsford was so honored by an earlier majority that wanted change. That said, I acknowledge that being elected does not make this presidency better than those of the intervening periods, but in the same way, it does it make it any less. All that it means is that a majority of those who voted were ready for a change and that I am part of that change. At 60 years of age and with 31 years of practice experience behind me, I accept this challenge to explore changes that will leave TCDLA in a better position that I found it.

It has now been one year since that election ended. During that time, I have worked hard to not disappoint those who voted for me and to convince those who did not that I am their president, too. I remain committed to the principles that, as your president, each member is just as important as the next, that TCDLA is not me, nor the officers or board, and nor is it the staff. Rather, TCDLA is the membership and that we, who you put in charge, ought to be working for and with you! The Lakota, a Great Sioux Native American Nation, have a saying—“mitahuye oyasin.” It translates “all our relatives” and means “we are all related.” As a criminal defense lawyer and your president, I believe that mitahuye oyasin applies to our Association, for all of us within TCDLA are related in both spirit and purpose. If anything can be said of our membership, it is that we police the police and defend “life, liberty and the pursuit of happiness” every day!

Some have suggested that an incoming president having an agenda is a bad thing. Indeed, I believe that as your President, it would be a bad thing if I did not. In a larger sense, my plan is to carry out and further the successes made by my predecessors. It cannot be a bad thing to build on past legacies and accomplishments of our Association’s earlier leaders.

My plan includes you, the membership, to work on separate and distinct committees. Your committees presently are made up of 33 women and 116 men who have volunteered to give their time, effort, and good will to you. All of these committees and their mission statements are listed online and will be listed in our membership directory too. In regard to new committees, the Judicial Integrity, Prosecution Integrity, Minority/Diversity, and List Serve Committees will be of particular import for each of our members.

Being mindful of fortunate opportunities, I am happy to announce that our Association is strengthening its ties to our State Bar of Texas. President-Elect Buck Files has already been very helpful to us in that he committed to have the State Bar share its online voting and video conferencing technology with TCDLA. These advances will allow all our committees to video conference and to give each of our members a meaningful and convenient vote. We are also pleased to announce our continued partnership with the National College for DUI Defense in presenting MSE and in certifying our DWI program hours for use by college members. Finally, I am especially pleased to announce our new alliance with Gerry Spence’s Trial Lawyer College. We are bringing psychodrama to Texas Here; credit needs to be given to board member and vice chair of the Criminal Defense Lawyers Project, John Ackerman, for making this happen.

The list serve committee has made part of its mission to get a majority of our membership online. Today, fewer than one-third of our members can be reached online. Our goal is to get at least 95 percent of our membership online. Our legislative committee, led by Allan Place, was successful in getting a courthouse access bill passed, and our courthouse access lawyer badge committee, led by Chairperson Lori Botello, will be working hard at getting us one badge for access to every courthouse in the state. Incidentally, this was an item I had promised to pursue when I ran for president elect. Finally, our new ethics committee, led by Robert Pelton, will be accessible 24/7 through our “ethics hot line” (512-646-2734).

My hope is to be a good president for you, and, as God allows me to see what is right, I will always strive to do right by you. Thank you for giving me the privilege of serving with you.

J. Gary Trichter,

Your President

Executive Director’s Perspective: Summer Breeze – By Joseph A. Martinez

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Very special thanks to TCLDA outgoing president, Bill Harris (Fort Worth). Because of Bill, TCLDA is a stronger, more active, and robust organization. Thanks to his leadership, TCDLA ‘s current membership is 3,100 and growing, he has successfully provided high quality CLE to over 5,000 lawyers in the past 12 months, and lobbied for a successful Texas Legislative Session. TCDLA wished Bill the best as he now moves into his new role as a past president.

Special thanks to our course directors, Jeanette Kinard (Austin), Bobby Lerma (Brownsville), Mark Snodgrass (Lubbock), Sheldon Weisfeld (Brownsville), and David Moore (Longview) for Trial Tactics: The Art of War seminar held in South Padre Island. Thanks to our speakers, most of whom had spoken in cities across Texas for the Trial Tactics: Art of War seminar. These speakers were Mark Snodgrass, Sam Bassett, Jani Maselli, Michael Gross, Oscar Pena, Susan Anderson, Kelly Pace, and Mark Thiessen.

Very special thanks to Bobby Lerma (Brownsville) and Bill Trantham (Denton) who coordinated and cooked for the 7th Annual Island Beach Bar-B-Que. We had over 70 attendees. Also helping out were Rick Wardroup and John Cantu.

Special thanks to Jay Norton, President of the San Antonio Criminal Defense Lawyers Association, for allowing TCDLA to co-sponsor the DWI—No Means No: How to Scientifically Defend the No Refusal Case seminar held in San Antonio on July 8. Over 150 attendees heard an outstanding lineup of speakers.

Lydia Clay Jackson, President Elect and chair of the TCDLA Nominating Committee, has selected the 2011 Nominating Committee. She is encouraging TCDLA members to submit their applications for the TCLDA board. The application can be downloaded from the TCDLA website or please call the Home Office and a copy will be sent to the member. Members can also contact the nominating committee member from their district for an application. TCDLA will be sending the application to the presidents of all local criminal defense bars and Public Defender offices as well as all TCDLA members.

There are a total of 15 board and 16 associate board slots that need to be reappointed or filled. There is also the position of secretary of the board that will need to be filled. The deadline for submitting an application is 12:00 pm on Tuesday, November 1, 2011. The nominating committee will meet on Saturday, December 3, 2011, in Houston to determine who will be the 2012–2013 nominees. The TCDLA members present will vote on the nominees at the TCDLA Annual Board Meeting on Saturday, June 9, 2012, in San Antonio.

TCLDA wants to recognize David Moore (Longview), who for the last year has served as Chair of the Criminal Defense Lawyers Project (CDLP). David was chair of the committee who had responsibility for oversight of the more than $1 million in grants from the Court of Criminal Appeals. David oversaw the coordination of course directors, speakers, topics, and more than 28 seminars and close to 3,000 lawyers trained in the past year. David was invaluable in his commitment to training excellence. David will remain on the CDLP Committee.

TCDLA has received notice from the Court of Criminal Appeals of its FY 2012 awards of $926,628.00 for CDLP and $28,334.00 for the Public Defenders Travel Stipends. The announcement on the grant awards for the Innocence grant should be announced by late August 2011. TCDLA is appreciative of the trust and confidence the Court has in our association shown by its significant financial commitment.

The TCDLA Executive Committee approved a special recognition of Justin McShane (Pennsylvania). Gary Trichter, President of TCDLA, presented the resolution to Justin at the 9th Annual Top Gun seminar in Houston.

Special acknowledgement to Brian Wice, who spoke at the 9th Annual Top Gun seminar on August 11 and then spoke at the “Innocence Work” in the Real World for Real Lawyers: A Practical Seminar on Representing the Innocent After Conviction seminar on August 12. TCLDA thanks Brian for his commitment to justice.

Joseph Martinez attended the biannual meeting of the Executive Director of Criminal Defense Lawyer State Associations. This year the meeting was held in Denver in conjunction with NACDL’s summer seminar and board meeting.

All TCDLA members are cordially invited to attend the next TCDLA Board of Directors Meeting to be held in Austin on Saturday, September 24, at 10:00 am at the Wyndham Hotel on South I-35 and Woodward St., across from the IRS.

Please save the date to join us at the 25th Annual Rusty Duncan Advanced Criminal Law Course June 7–9, 2012. Our course directors will be Troy McKinney, Stephanie Stevens, and Doug Murphy, with associate course directors Sharon Curtis, Sarah Roland, and Marjorie Bachman.

Good verdicts to all.

Editor’s Comment: It’s Sausage Time! – By Greg Westfall

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Well, as September 1 rapidly approaches, carrying with it the product of our duly elected representatives, I am reminded of some words by Grant Gilmore:

Law reflects but in no sense determines the moral worth of a society. The values of a reasonably just society will reflect themselves in a reasonably just law. The better the society, the less law there will be. In Heaven, there will be no law and the lion will lie down with the lamb. The values of an unjust society will reflect themselves in an unjust law. 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.

Gilmore, The Ages of American Law, 110–11 (1977)

Ethics and the Law: Introducing…

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Robert Pelton, the former President of the Harris County Criminal Lawyer’s Association (HCCLA), Associate Di­rec­tor for TCDLA, and Feature Articles Editor of the Voice, will be writing a regular column on ethics and the law.

Texas Criminal Defense Lawyers Association (TCDLA) President Gary Trichter has recognized the need for an ethics committee to help members. One of the top priorities for the committee was to establish an ethics hotline for criminal defense lawyers. Protocol is as follows: Call the hotline at 512-646-2734 and leave a message. It will then be routed to me, or to a co-chair. You will get a call or several calls within 24 hours. If it is an emergency, you can call me at my office at 713-524-8471 or on my cell at 713-829-0678. The hotline has already received numerous calls and all questions have been answered. The job of a lawyer is serious business, and the committee’s goal is to help members if they have ethical questions. We are in the job of enforcing the U.S. Constitution and Texas law. It is important for a lawyer to know the law and how to ethically practice the law. Having a grievance filed or a writ for ineffective assistance can be a disastrous event.

It is very important to set up a file properly with copies of the complaint, information, indictment, statute, punishment range, and all notes or reports. Keep a log of each time you talk with the client. When you first get hired, remember the attorney-client privilege. Do not discuss the case with any of the client’s family or friends without a waiver. Always get the waiver in writing, even if it is something as short as “I waive attorney-client privilege as to _______. I fully understand the consequences” (signed by client). Many times the client’s wife, husband, or best friend can turn out to be the worst enemy.

The TCDLA Ethics Committee is made up of the following members:

Robert Pelton, Chairman, , 713-524-8471, 713-829-0678 cell

Jack Zimmerman—Houston, www.texasdefenselawyers.com, 713-552-0300

Robyn Harlin—Houston, , 713-697-5900

Ray Fuchs—San Antonio, , 210-226-5757

David Sheppard—Austin, , 512-478-9483

David Zavoda—Odessa, 432-580-8266

Joe Pelton—Abilene, , 325-676-9100

Greg Velasquez—El Paso, , 915-546-8185

Joseph Connors—McAllen, , 956-687-8217

Don Davidson—Bedford, , 817-355-1285

Doug Barlow—Beaumont, , 409-838-4259

No one is immune from client complaints. Sooner or later, no matter what you do, a client may claim you have done something wrong. If that happens, be prepared to defend yourself. Many lawyers have been accused of misconduct. F. Lee Bailey, part of the O. J. Simpson Dream Team and one of the most famous lawyers in America, wrote a book, The Defense Never Rests. Bailey was disbarred for misconduct while defending one of his clients. At last account he finally rested and is living in Florida.

Future topics will include the following:

  1. How to get business ethically
  2. How to set and collect fees
  3. Contracts or letter of acknowledgment
  4. Contempt
  5. Conflict of interest
  6. Attorney/client privilege
  7. Gifts to judiciary
  8. Ex-parte communications
  9. Grievance process
  10. How to set up a file
  11. Investigators, polygraph operators
  12. Tape-recording rules
  13. Motions to withdraw
  14. Pretrial publicity
  15. What to say and not say to the media
  16. Personal habits—alcohol-drug problems
  17. How to act like a lawyer
  18. Books that will help
  19. Seminars
  20. Board Certification
  21. College of State Bar
  22. Advertising
  23. Closing practice
  24. Selling your practice
  25. Social networking, Facebook, Twitter
  26. Blogs
  27. Website

Federal Corner: Who Are The People? – By F. R. Buck Files Jr.

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We all know those first words of the Constitution of the United States: “We the people of the United States . . .” But who are the people? Would the people—or a group of the people—be entitled to the same constitutional guarantees under the Second Amendment and/or Fourth Amendment and/or the Fifth Amendment?

Just recently, a panel of the United States Court of Appeals for the Fifth Circuit was confronted with this issue on a Second Amendment analysis and could not agree as to the meaning of the people. United States v. Portillo-Munoz, ___F.3d___, 2011 WL 2306248 (5th Cir. 2011) [Panel: Circuit Judges Garwood, Garza, and Dennis (dissenting)]. This is a case of first impression—not only in the Fifth Circuit but in all the Circuits.

The Facts in Portillo

Portillo was an illegal alien who was arrested by a city police officer in Dimmit, Texas, for unlawfully carrying a weapon and for possession of a controlled substance (cocaine). The weapon was a .22-caliber pistol Portillo said that he used to protect the chickens from coyotes at the ranch where he worked. He had been employed at this ranch for six months.

What Occurred in the District Court

This must have appeared to be a “fish-in-the-barrel” case to the government. Portillo was indicted for one count of an alien, illegally and unlawfully present in the United States, being in possession of a firearm [18 U.S.C. § 922 (g)(5)]. Portillo’s attorneys viewed the case in a different light. They filed a motion to dismiss, alleging that a conviction under the statute would violate Portillo’s rights under the Second Amendment and the Fifth Amendment (Due Process Clause). United States District Judge Mary Lou Robinson of the Northern District of Texas denied relief.

Portillo then entered a conditional guilty plea. During the plea hearing, he admitted that he was a Mexican citizen who was illegally present in the United States, and that he had knowingly possessed a firearm in or affecting commerce which had been shipped or transported in interstate commerce. Judge Robinson sentenced Portillo to ten months imprisonment to be followed by three years of supervised release. He timely appealed.

What Occurred at the Court of Appeals

A divided panel affirmed the judgment of the District Court. [Note: All the judges agreed that Portillo was not entitled to relief on his Fifth Amendment claim, and I have omitted those portions of the Court’s opinion and the dissenting opinion having to do with that issue.] Judge Garwood authored the opinion for the Court, which reads, in part, as follows:

[The Statute]

Under the laws of the United States, “[i]t shall be unlawful for any person . . . who, being an alien . . . illegally or unlawfully in the United States . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(5). There is no question that Portillo’s conduct violated this statute.

[The Issue Before the Court]

We are only asked to decide if Portillo’s conviction un­der this statute violates the United States Constitution. Whether the protections contained in the Second Amendment extend to aliens illegally present in this country is a matter of first impression in this circuit. Sev­eral district courts have previously considered the constitutionality of this statute, but none of our sister circuits have done so.

[The Second Amendment]

The text of the Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” [Emphasis added.]

[The Court’s Reasoning Under Heller]

In 2008, the Supreme Court held in District of Columbia v. Heller that the Second Amendment guarantees an individual right to possess and carry weapons. 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). The individual laying claim to the Second Amendment’s protections in Heller was a United States citizen, so the question of whether an alien, illegal or legal, has a right to bear arms was not presented, and the Court took care to note that it was not purporting to “clarify the entire field” of the Second Amendment. Id. at 2821. However, the Court’s language does provide some guidance as to the meaning of the term “the people” as it is used in the Second Amendment. The Court held the Second Amendment “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. Furthermore, the Court noted that “in all six other provisions of the Constitution that mention ‘the people,’ the term unambiguously refers to all members of the political community, not an unspecified subset” before going on to say that “[w]e start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.” Id. at 2790–91. The Court’s language in Heller invalidates Portillo’s attempt to extend the protections of the Second Amendment to illegal aliens. Illegal aliens are not “law-abiding citizens” or “members of the political community,” and aliens who enter or remain in this country illegally and without authorization are not Americans as that word is commonly understood.

[The Court’s Reasoning Under Verdugo-Urquidez]

Prior to its decision in Heller, the Supreme Court interpreted the meaning of the phrase “the people” in the context of the Fourth Amendment and indicated that the same analysis would extend to the text of the Second Amendment. In United States v. Verdugo-Urquidez, the Court held that its analysis of the Constitution “suggests that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, . . . refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” 494 U.S. 259, 110 S.Ct. 1056, 1061, 108 L.Ed.2d 222 (1990). Portillo relies on Verdugo-Urquidez and argues that he has sufficient connections with the United States to be included in this definition of “the people,” but neither this court nor the Supreme Court has held that the Fourth Amendment extends to a native and citizen of another nation who entered and remained in the United States illegally.

[Second Amendment v. Fourth Amendment
v. Fifth Amendment]

Moreover, even if there were precedent for the proposition that illegal aliens generally are covered by the Fourth Amendment, we do not find that the use of “the people” in both the Second and the Fourth Amendment mandates a holding that the two amendments cover exactly the same groups of people. The purposes of the Second and the Fourth Amendment are different. The Second Amendment grants an affirmative right to keep and bear arms, while the Fourth Amendment is at its core a protective right against abuses by the government. Attempts to precisely analogize the scope of these two amendments is misguided, and we find it reasonable that an affirmative right would be extended to fewer groups than would a protective right. The Second Circuit laid out compelling reasons for why an illegal alien could not claim that a predecessor statute to section 922(g)(5) violated the Fifth Amendment right to equal protection by saying that “illegal aliens are those who . . . are likely to maintain no permanent address in this country, elude detection through an assumed identity, and—already living outside the law—resort to illegal activities to maintain a livelihood.” United States v. Toner, 728 F.2d 115, 128–29 (2d Cir.1984). The court went on to approvingly quote the district court’s statement that “one seeking to arrange an assassination would be especially eager to hire someone who had little commitment to this nation’s political institutions and who could disappear afterwards without a trace . . .” Id. at 129 (internal quotation marks omitted).

[Citizens v. Aliens]

Additionally, the Supreme Court has long held that Con­gress has the authority to make laws governing the con­duct of aliens that would be unconstitutional if made to apply to citizens. In Mathews v. Diaz, the appellees were lawful resident aliens challenging a federal law that limited eligibility to Medicare Part B to aliens who had been admitted for permanent residence and had also resided in the United States for at least five years. 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). The Supreme Court upheld both conditions as constitutional against a challenge under the Due Process Clause. The Court pointed out in its opinion that the crucial question was whether discrimination among different types of aliens was permissible, as contrasted with discrimination between aliens and citizens and held that “[n]either the overnight visitor, the unfriendly agent of a hostile foreign power, the resident diplomat, nor the illegal entrant, can advance even a colorable constitutional claim to a share in the bounty that a conscientious sovereign makes available to its own citizens and some of its guests.” Id. at 1891 (emphasis in original). The Court went on to say that
“[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.” Id.

[Lawful Aliens v. Unlawful Aliens]

The Court, in several cases striking down state laws restricting otherwise lawful activities in which aliens could engage, has emphasized that the rights thus protected were those of aliens who were lawful inhabitants of the states in question. In 1915, the Supreme Court held in Truax v. Raich that the complainant, a native of Austria admitted for residency in the United States, was entitled to equal protection under the 14th Amendment because he was “lawfully an inhabitant of Arizona.” 239 U.S. 33, 36 S.Ct. 7, 9, 60 L.Ed. 131 (1915). See also id. at 10 (states cannot “deny to lawful inhabitants . . . the ordinary means of earning a livelihood.”). See also Kwong Hai Chew v. Colding, 344 U.S. 590, 73 S.Ct. 472, 477 & n. 5, 97 L.Ed. 576 (1953); Torao Takahashi v. Fish and Game Comm’n, 334 U.S. 410, 68 S.Ct. 1138, 1142, 1143, 92 L.Ed. 1478 (1948). This court noted in Lynch v. Cannatella that “the Constitution does not forbid all differences in governmental treatment between citizens and aliens, or between aliens who have been legally admitted to the United States and those who are present illegally.” 810 F.2d 1363, 1373 (5th Cir.1987).

The Rest of the Story

Judge Dennis dissented and his opinion reads, in part, as follows:

[The People]

. . . I respectfully dissent from the majority’s dismissal of Portillo-Munoz’s Second Amendment claim. The majority concludes that Portillo-Munoz, a ranch hand who has lived and worked in the United States for more than 18 months, paid rent, and helped supported a family—but who committed the misdemeanor of illegally crossing the border—is not part of “the people.” Supreme Court and Fifth Circuit precedent recognize that the phrase “the people” has the same meaning in the First, Second, and Fourth Amendments. The majority’s determination that Portillo-Munoz is not part of “the people” effectively means that millions of similarly situated residents of the United States are “non-persons” who have no rights to be free from unjustified searches of their homes and bodies and other abuses, nor to peaceably assemble or petition the government. In my view, Portillo-Munoz clearly satisfies the criteria given by the Supreme Court and our court for determining whether he is part of “the people”: he has come to the United States voluntarily and accepted some societal obligations. See United States v. Verdugo-Urquidez, 494 U.S. 259, 271, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (“[A]liens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country”); Martinez-Aguero v. Gonzalez, 459 F.3d 618, 625 (5th Cir.2006) (“[A]liens with substantial connections are those who are in this country ‘voluntarily and presumably [have] accepted some societal obligations’” (second alteration in original) (quoting Verdugo-Urquidez, 494 U.S. at 273, 110 S.Ct. 1056).

[Suggestion for Remand]

Of course, whether 18 U.S.C. § 922(g)(5) violates the Second Amendment is a separate question from whether Portillo-Munoz is part of “the people” who have First, Second, and Fourth Amendment rights. I would remand for the district court to consider in the first instance the applicable level of scrutiny under the Second Amendment, and whether the provision passes muster under that level of scrutiny.

My Thoughts

I find this case to be very thought provoking. I can appreciate the logic of both the Court’s opinion and the dissenting opinion. The question that I have is whether this case will move to the en banc Court or, possibly, to the Supreme Court. It is certainly one that we will want to watch.

Judge Dennis’ dissenting opinion is worth reading in its entirety. His analysis of Heller differs from that of Judge Garwood. Unfortunately, I only had space for the first two paragraphs of his dissent. Once again, we see a case in which good defense lawyers have looked beyond the obvious, raised issues of Constitutional dimension, and zealously represented their client. These cases are such a joy to read.

 

Buck Files, a charter member of TCDLA, practices in Tyler, Texas, with the law firm Bain, Files, Jarrett, Bain & Harrison, PC.

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