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President's Message

President’s Message: Balancing the Supreme Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some might grumble that no one wins with a tie.

That’s absolutely true and exactly the point.

President’s Message: Let Us In

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Tex. Code Crim. Pro. Art. 20.011 permits the following people inside a Texas grand jury room during proceedings: grand jurors, bailiffs, prosecutors, witnesses (while being examined or when their presence is necessary to assist the prosecutor), interpreters, stenographers and videographers.

Defense lawyers are not allowed in the room, even when a grand jury wants to hear from us. It’s time to change that.

The simplest way to do this is to amend the statute regarding persons “Who May Be Present in Grand Jury Room.” Tex. Code Crim. Pro. Art. 20.0111 The amended statute should add to the list of eligible people, an “Attorney for Defendant or Target, when requested by Grand Jury.” Target could be defined as any person or entity the Grand Jury believes may be a subject of a criminal prosecution, relating to the matter(s) of the Grand Jury’s investigation. The amendment would not permit the appearance of attorneys for fact witnesses who are neither under investigation nor threat of indictment.

There is an urgent need for grand jury reform in Texas. TCDLA and supporting groups are at the forefront of this movement. Two years ago during the Texas legislative session of 2019, the House and Senate considered versions of bills that would have required all grand jury testimony to be transcribed or video recorded, prevented repeat grand jury considerations after a case has been no-billed and a prosecutor has no new evidence (a.k.a. “grand jury shopping”), allowed witnesses and the accused to have their attorneys present during grand jury questioning, and required prosecutors to share with the grand jury evidence that is favorable to the accused. These were worthy measures, which, unfortunately, did not clear all the necessary hurdles to become law. I anticipate similar bills will be filed again in 2021.

But a bill allowing defense lawyers into the room upon request of a grand jury should be considered as a separate piece of legislation.

When I spoke on behalf of TCDLA to the Texas Judicial Commission (TJC) in February 2020, we discussed several potential reforms to the grand jury system. TJC considered ideas ranging from those contained in the aforementioned House and Senate bills, to my own suggestion of permitting examining trials at any time prior to trial. Our current system only allows examining trials before indictment,2 which means a prosecutor can sidestep a judicial inquiry into probable cause by (literally, in some instances) running to the grand jury room and securing an indictment. See State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 427 (Tex. Crim. App. 1990) (Magistrate has no authority to block or delay a prosecutor from presenting a case to a grand jury.). Because of their unchecked power to skirt examining trials, prosecutors in many Texas counties have rendered nearly all of Chapter 16 of the Code of Criminal Procedure completely useless.

But unlike our discussion of previous, unsuccessful grand jury reform measures, as well as my own call to expand the use of examining trials, I did not detect any concern in allowing defense lawyers into a grand jury room — when a Texas grand jury specifically asks for us to be there. It makes perfect sense to allow a grand jury an opportunity to hear both sides of a story. Practitioners and citizens should also consider that an indictment often has a profound effect on a person’s life. A “true bill” can destroy someone financially and emotionally. Criminal lawyers often see clients lose their jobs and get separated from their families following an indictment. Many clients are saddled with harsh and restrictive conditions of bail. Some spend months or longer in jail, awaiting trial or disposition after a grand jury returns a true bill. The public and even many in the legal profession would be shocked to learn that not only do prosecutors get to pick and choose which evidence they share with grand juries, but prosecutors are under no legal obligation to present exculpatory evidence! U.S. v. Williams, 504 U.S. 36, 45-55 (1992) (A district court may not dismiss an otherwise valid indictment because the Government failed to disclose to the grand jury “substantial exculpatory evidence” in its possession.).

When it comes to grand jury reform, I am confident of several things: First, TJC and our Texas legislators do not want innocent people to get indicted. Nor do they wish to unnecessarily tie the hands of grand jurors. Further, I am certain that our state’s best prosecutors would feel comfortable permitting defense attorneys to share information — and possibly even their entire defensive strategy — with a grand jury, in those rare cases in which a defense attorney and a grand jury want to do exactly that.3 Finally, I am convinced that a minor alteration of the rule regarding who may be present in a grand jury room will neither slow things down nor lead to injustice. If a grand jury refuses to indict a person after hearing from a defense lawyer that’s exactly the kind of information that a good prosecutor will want to know in advance of trial.

I wish to emphasize that this proposed change would not convey a new right to defendants or their attorneys. It would merely be an additional option for grand juries in rare but appropriate cases.

It is time to let defense attorneys into the grand jury room. Today I am requesting that TCDLA’s Legislative Committee and our excellent lobbyists draft a very short bill to amend the applicable statute in the manner I have suggested. I ask that the proposed bill remain separate from any other bill to avoid getting it dragged into the larger morass of grand jury reform. Finally, I am sending a copy of this column to our friends at the Texas District and County Attorney’s Association (TDCAA), including TDCAA’s President and its Executive Director. They are intelligent and reasonable people. My hope is that TDCAA will join TCDLA and other stakeholders in this narrowly targeted effort to advance the cause of justice.

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

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

But still.

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

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

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

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

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

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

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

Mark my words on this.

President’s Message: Judges Push Jury Trials During the Pandemic

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Only one group of people seem anxious to re-open courthouses and start criminal trials again. It isn’t us, and it isn’t prosecutors. In conversations with elected District Attorneys all over the state, I have learned that prosecutors don’t want to risk their health, the safety of their communities, or having convictions overturned due to constitutional violations. 

The public isn’t banging down courthouse doors, either. Many prospective jurors are struggling with health concerns, unemployment, and the possibility that schools might partially or fully close this fall. Not to mention a growing unease as COVID-19 numbers bounce back and forth between disturbing and alarming.

It is not even the Texas Supreme Court, whose emergency orders regarding criminal matters reveal a granular misunderstanding of the differences between civil and criminal practice. 

It is Texas trial judges.

True, there are many judges who recognize that the health and constitutional perils of jury trials during the pandemic far outweigh the benefit of appearing to get back to normal. If you see judges and their staffs postponing cases, waiving court appearances and otherwise acting responsibly, be sure to thank them. Good judges and staffs don’t get nearly enough positive feedback when they do the right thing.  

But there is a rather large, vocal group of trial judges who are misreading their constituents and apparently have an inflated sense of self. Here is a harsh truth for them: Most voters don’t know who you are

If you were to walk the voting line on Election Day and ask people to name three judges in their area, most couldn’t do it. Further, if you were to ask voters about the size of a particular judge’s trial docket, most people would have no idea what you were talking about. Too many judges are disconnected from what the public wants or even knows about them. 

Perhaps most troubling is the false narrative that some judges are spreading to justify restarting trials. They claim it’s because their dockets are full of people — especially those languishing in jail — who are demanding trials because they want to have “their day in court.” With exceptions, that is mostly baloney. Prosecutors and defense attorneys agree that criminal cases tend to get weaker, not stronger, with the passage of time. 

But if judges are pushing pandemic trials out of genuine concern for the speedy trial rights of the accused, there is a simple solution. Grant every defense request for a jury trial continuance during the pandemic. Lawyers with clients who really want a fast trial won’t ask for postponements. Also, if a defendant is bondable but trapped in jail due to a high bond or the unconstitutional GA-13 Order from Gov. Greg Abbott, reduce the bond and let the person out.  

If there is a County or District Court judge anywhere in Texas who disagrees with what I’ve written and wants to talk about it, feel free to call my Houston office or the TCDLA home office at 512-478-2514 and ask for my cell number. Text me. 

But to any judge who pushes forward with a pandemic jury trial over a defense lawyer’s objection: If something goes wrong, you will own this. You have the power to avoid disaster, and your constituents look to you for leadership.

President’s Message: New Leadership

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On June 22, 2020, I will be sworn in as the 50th President of the Texas Criminal Defense Lawyers Association (TCDLA). Joining me in service to TCDLA will be 59 board members and officers from across the state. This will include 10 newly elected leaders. I am certainly biased, but I believe this is the most talented, eclectic, and motivated group of lawyers we have ever assembled to lead TCDLA. We will need every ounce of their contributions, as this is perhaps the most challenging period in our history.

In order to better serve our members, TCDLA must be unwavering when it comes to the following: When a person in power openly attacks or undermines the Texas or Federal Constitutions, as they relate to the rights of the accused, we must respond quickly and effectively. When one of our members is placed in an untenable situation simply for doing his or her job, we must shield that member with the protection of our Strike Force and 3,300 members in every corner of Texas. We must advocate for laws that will ameliorate the inherent unfairness in our state’s criminal justice system. And we must look for new and creative ways to improve the lives and law practices of our members.

Those who know me, know that I have a strong interest in using technology to enhance the practice of law. I hope that you will see some changes in the coming months that will re-affirm why you became a member of TCDLA. If you like what you see, please let me, your 59 other leaders, and TCDLA staff know. If you have an idea for a new service that you think our fellow members might enjoy, please let us know that, too. I have asked our staff in Austin to provide my cell number and email address to any member, upon request. Text me.

I value your membership and commitment to TCDLA. I ask that you stay a loyal member for at least the next 12 months and see what we can do for you. TCDLA needs you now more than ever. I hope to persuade you that you need us, too. Thank you, dear colleagues.

-Grant Scheiner

President’s Message: A Change for the Better

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On March 27, 2020, my life was forever changed with the birth – in the midst of COVID-19 – of Brooks Alan Donica.  Of course, he is the most beautiful, perfect child God ever placed on the earth.  It was a dazzling spot during one of the most frightening, crazy periods in history.  I’ve included a FEW pictures because I want you to just see that I am not making this up – he is truly perfect!

Speaking of COVID-19 (must I????) – There are so many people who have stepped up for TCDLA to make a real difference for our members.  The foremost, of course, is our COVID-19 Task Force Chair Clay Steadman.  Clay is organized, smart, creative, tenacious, loyal and just quite simply amazing.  Our organizational approach to this virus has been brilliant because of Clay’s leadership.  We formed a task force with vice chairs Jeep Darnell, Nicole DeBorde Hochglaube, and John Hunter Smith, that had a team member in every TCDLA district ready to handle any issue that needed to be addressed.

And let’s talk about three individuals who stepped up under the leadership of the indomitable Betty Blackwell (GA-13 chair): Allison Clayton, Jeep Darnell, and Kyle Therrian.  They drafted responses regarding our GA-13 efforts that were simply intellectually over the head of almost anybody.  Truly three brilliant legal minds who have spent hundreds of hours making sure the rights of our neediest clients were being addressed. They continue to find ways to help our members meet the needs of our clients AND our members.

Take a look at the list of folks who stepped up to serve on our COVID-19 Task Force and ALL the resources available on the TCDLA website.  Each of these individuals is a HERO.  They have given when it was hard and they’ve cared about others when we were all really afraid for ourselves personally.  I’ve never been prouder of TCDLA.

I hope we are close to being set free to enjoy being back together at Rusty Duncan; I will REJOICE if that happens.  If it does not, we will have live streaming available (even if it does happen, that will be an option), so make sure you are signed up for Rusty Duncan.  I hope it will be our coming out party of the century!

I know it’s been a tough couple of months.  I pray it is almost a memory. I hope you never take one single breath for granted; and when life gives you the choice to sit it out or dance, I hope you’ll dance! 

Finally, thank you for the privilege, the honor, the joy of being your President.  Tears run down my face as I write this.  I love TCDLA – which is all of you.  My life is richer, more fulfilled and forever changed because I received the gift of serving all of you. God IS good!  In the words of Dr. Seuss –  “Don’t cry because it’s over, smile because it happened.”

President’s Message: Caring in Frightening Times

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Ah, COVID-19, how you’ve changed our lives. I had just opined that my presidency was on the downhill side and there had been smooth sailing throughout the year. And then God smiled. At TCDLA, our first concern was for the safety of our staff and our membership – our physical, mental, psychological, and financial safety. Just scary times. I pray that by the time you read this, we are on the downhill side of this terrible virus and life as we know it has resumed.

On a happy note: I have my first grandbaby due March 27, so I am hopeful that by the time this reaches our readership, I have had the opportunity to love on my precious Brooks Alan Donica and begin the process of making him the most spoiled boy in the entire universe.

Look, I wish we had a magic pill and could make this easy for everyone. I pray you’ve found some of the resources we have shared with our membership to be helpful. We have had incredible help from so many of our members – those who have reached out with resources and with plain old words of encouragement for each other. That is what TCDLA is all about – caring for others; whether it’s an inmate confined to a jail cell, or staff, or each other. We have a chance to learn just how incredible our “tribe” is when we are faced with such a potentially life-changing situation. Keep being there for each other and utilizing ALL our available resources. You matter. You ALL matter.

President’s Message: Great Times in the Caribbean

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“We take photos as a return ticket to a moment otherwise gone.”

-Anonymous

This month I want to share a few photos to allow those of you who were not lucky enough to be with the 98 of us who traveled via Royal Caribbean to… well… to the Caribbean! An amazing time was had by all. From beautiful beaches to fine dining to a Hush Party, we didn’t miss a second of fun!  Two of our members even came in first and second in the ship’s sexiest man contest! I hope you enjoy the photos. TCDLA is truly my family and I can’t wait for our next adventure. Hope everyone plans to join President-Elect Grant Scheiner for his President’s Trip next February to D.C., where we will be sworn in before the U.S. Supreme Court. When we are together, great times follow!

President’s Message: On the Agenda

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As I put pen to paper, it is a cold January day. The saving grace is that I know in just a few days we will be sailing the ocean blue with so many of my favorite people in the universe on my TCDLA President’s Cruise! We will have great CLE, beautiful beaches, and incredible fun!

To make today even better, I attended a 7:00 a.m. Navarro College Martin Luther King Jr. Breakfast. The keynote speaker was none other than our former board member Audrey Moorehead! Audrey now serves as a Dallas County Criminal Court Judge, and she was as amazing as ever. She reminded everyone about the complete relevance of MLK even today and implored them to be a part of civic responsibility—vote, give back, be your best! An incredible (and of course hilarious) presentation from an even more incredible woman!

Speaking of Navarro College—everyone is already obsessed with our junior college of late, thanks to Netflix’s “Cheer” series about the Navarro College cheer program. If you have haven’t watched it—DO! You all know how much I love to share my hometown with everyone, and this is a great example of good things happening in smallish towns across our country!

TCDLA has some extremely good CLE in the near future! DON’T MISS IT! Our Criminal Defense Lawyers Project Chair Laurie Key has forced us to suffer through CLE at the Lajitas Golf Resort on February 28 so we can spend time with our incredible West Texas lawyers. Should be so much fun and educational as well. Then Anatomy of a Trial will be in Austin March 5th & 6th. This is going to be so very good: Our course directors are Betty Blackwell and Clay Steadman, and NOTHING they do is less than stellar! Check out the agenda on our website and make plans to be there.

I’m thankful for each of you, and I can promise I am ready for spring. Keep fighting the good fight! You are a blessing to me, to your clients, and to each other.

President’s Message: A Season for Sharing

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I admit it—I am a summer person. I LOVE the sunshine and the warm weather. Then it gets close to Christmas and I quit complaining about the cold! What a great time of year—spending time with family and friends and celebrating (for me) the birth of Christ!

 I LOVE trying to find the perfect gift for those I love! Don’t you love receiving Christmas cards from people far and near showing their precious families?

This year I hope you will find time to do something for someone who is less fortunate than you, or reach out to someone who might be especially lonely during the holiday season. Sometimes a person just needs to feel needed and valued, or even noticed. Be the outstretched hand to that person you know. Help your city’s social programs feed families who have to make hard choices this time of year.

I hope this Christmas ushers in an incredible 2020 for all of you! Please let me know of anything I or TCDLA can do for you to make the holiday season better for you or someone you know—or how we can help you in 2020.

Merry Christmas & Happy New Year!