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Strike Force is Not Just For Young Lawyers

I am fortunate. I’m not headed to jail right now. Given a trial date of November 30, and firmly believing we could not receive a fair trial under present circumstances, we filed an edited version of TCDLA’s COVID-19 continuance motion. It was summarily denied without discussion, and a second emergency motion was filed raising the issues that an expert witness was unavailable and that my co-counsel on the case is a severe asthmatic who could not and would not participate until he’d be able to get a vaccine for this virus.

The trial was moved to December 7. I knew that, if ordered to go to trial under COVID restrictions, I could not do my job up to my own standards, and I would not agree to go forward. I would have to commit contempt of court and risk jail, because I could not allow my client to be convicted due to my reluctance to anger the court. With some trepidation, I started to prepare myself for being convicted of contempt.

I contacted the Task Force, and several stellar members—Mark Thiessen, president of the Harris County Criminal Lawyers Association, Nichole Hochglaube, and Mark Bennett all stepped up. Mark Thiessen and Nicole both appeared via Zoom at the emergency continuance hearing, and made their presence known. Knowing lawyers of this caliber had my back was critical in my going forward and insisting that this case could not be tried, and a jury simply could not be selected, under circumstances in which the face of every venire member and witness was concealed. The trial was continued—until April 2021—in the belief that a vaccine can be provided by that time.

I’ve been doing this for more than 30 years now, and I still find the Strike Force to be an essential resource when the going gets tough. None of us can do this work without, occasionally, having to take a stand that risks our becoming the defendant, instead of the defender. And when that occurs, knowing that we’re not alone is invaluable.

Free Speech in Texas

What is speech? What makes a restriction content based? What is substantial overbreadth? Can a substantially overbroad content-based restriction on speech ever satisfy strict scrutiny?

The answers to these questions may become clearer any Wednesday now. The Court of Criminal Appeals is currently considering four overbreadth challenges to the constitutionality of different penal statutes. These challenges may, before this article is published, change the face of free-speech law in Texas.

Meanwhile, this article will provide a broad overview of challenges to content-based restrictions on speech.

Vagueness vs. Overbreadth

First Amendment challenges to content-based restrictions come in two forms: vagueness and overbreadth.

Vagueness

A statute is void for vagueness under the First Amendment if:

  • A person of ordinary intelligence cannot know what is forbidden;
  • There are no determinate guidelines for law enforcement; or
  • The law is not sufficiently definite to avoid chilling protected expression.

Take, for example, Texas’s harassment statute, section 42.07 of the Texas Penal Code. The harassment statute forbids certain speech intended to “harass, annoy, alarm, abuse, torment, or embarrass” another. Expression is chilled not only by the statute’s threat of conviction (because a jury might find that the defendant intended to harass, annoy, alarm, abuse, torment, or embarrass) but also by the threat of arrest (because a police officer might think the defendant intended to harass, annoy, alarm, abuse, torment, or embarrass) and the threat of prosecution (because a prosecutor might think the defendant intended to harass, annoy, alarm, abuse, torment, or embarrass).

Courts assume that when dealing with statutes such as sexual assault of a child, which restrict non-speech conduct based on the actor’s intent, a jury can reliably read an actor’s mind.

But speech is special—the Free Speech Clause itself is proof of that. Society does not have the same interest in preventing the chilling of non-speech conduct that it has in ensuring that protected speech is not chilled.

Even assuming that a jury can reliably read a speaker’s mind, section 42.07 risks chilling speech because whether a person will be arrested or prosecuted for his speech depends not on a jury’s mindreading, but on a police officer’s and/or a prosecutor’s.

A person might beat the rap and not the ride, but the ride is expensive and no fun and for the ordinary speaker, both the threat of the ride and the threat of the rap can chill speech. A restriction criminalizing speech based on the speaker’s intent “…blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim.” See Thomas v. Collins, 323 U.S. 516, 535 (1945). Under Texas Penal Code section 42.07, it is the threat of prosecution, and not only the threat of conviction, that will likely cause a speaker to hedge and trim.

The speaker who does not intend to annoy has no way to know that his words will not be misinterpreted. He is at the mercy of the inferences of others who might not wish him well. A distinction based on the intent of the speaker or the speech’s effect on its listeners “…offers no security for free discussion.” See Fed. Election Com’n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 468 (2007) (external citation omitted).

Overbreadth

The First Amendment overbreadth doctrine is also intended to prevent restrictions chilling protected speech, but it is not dependent on a lack of clarity. While vagueness is about the person knowing what a statute forbids; overbreadth is about what the statute actually forbids. When it comes to speech, the vagueness argument is basically that speakers can’t determine whether  constitutionally protected communications are prosecutable under the statute at issue. The overbreadth argument is that protected communications are, in fact, prosecutable under the statute but should not be.

Lawyers often confuse vagueness with overbreadth. If a statute seems to restrict protected speech—if it could be used to restrict a real and substantial amount of protected speech—it is not vague, but overbroad.

The Court of Criminal Appeals itself has shown a lack of clarity regarding the difference between vagueness and overbreadth: “[The defendant’s] argument, as we understand it, is that § 42.07 is overbroad on its face because its inherent vagueness makes it unclear whether it prohibits a substantial amount of protected speech.” See Scott v. State, 322 S.W.3d 662, 665 fn.3 (Tex. Crim. App. 2010) (abrogated on other grounds by Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014)). That is not the argument; that is not what overbroad means.

A content-based restriction that clearly restricts only unprotected speech is valid. A content-based restriction that leaves in doubt whether protected speech is punishable or not is vague. A content-based restriction that clearly restricts a real and substantial amount of protected speech (in relation to its legitimate sweep, the unprotected speech it restricts) is overbroad.

Protected speech is speech outside all recognized categories of historically unprotected speech. States are not free to invent new categories of unprotected speech; they must provide evidence of a longstanding tradition of restricting speech in that category.

So, the overbreadth argument is that the statute, regardless of how ambiguous it might be, forbids speech that is not unprotected.

Returning to the example of Texas Penal Code section 42.07 harassment, while the vagueness argument is that speakers can’t determine whether their speech will be construed as intended to harass, the overbreadth argument is that even speech that is intended to harass (not to mention “annoy, alarm, abuse, torment, or embarrass”) is not unprotected speech, so that the statute by its terms restricts a real and substantial amount of protected speech.

You can see how there might be interplay between these two arguments: one approach courts have taken to save overbroad statutes from overbreadth is to interpret them narrowly—to impose on the Legislature’s words a narrower meaning than the common or legal definition gives them.

Whether rewriting the statute thus is legitimate or not, doing so can convert a statute that was overbroad into one that is vague. While speakers are expected to be familiar with the words of a statute, they are not likewise expected to have read the cases interpreting a statute. So, the fact that the words of the statute alone do not limit the statute’s reach can make the statute itself vague.

Moreover, in Texas, a charging instrument is drafted and a criminal trial jury is instructed according to the language of the statute; there is no mechanism for incorporating narrowing definitions into an indictment, much less a jury charge. Even a defendant who is familiar with the narrowing of an overbroad statute has no guarantee that he will not still be prosecuted and even convicted for his protected speech.

Facial Overbreadth vs. As-Applied Overbreadth

First Amendment overbreadth challenges to statutes can themselves be divided into facial (or as-written) and as-applied challenges.

An as-written challenge makes the argument that, regardless of whether the speaker’s own speech is protected, the statute restricts (based on its content) a real and substantial amount of speech that is protected. An as-applied challenge to a statute is that the speech for which the speaker is being prosecuted (based on its content) is itself protected (that is, not in a recognized category of historically unprotected speech).

As an illustration, defamatory speech is unprotected. If a person is being prosecuted under a facially overbroad or vague statute, but their speech is for some reason unprotected, they might have an as-written but not an as-applied challenge. If a person is being prosecuted under a valid statute, but their speech is protected, he has an as-applied but not an as-written challenge. And if a person is being prosecuted under an overbroad or vague statute for protected speech, they have both an as-written and an as-applied challenge.

As-written challenges can be made pretrial, through either an application for writ of habeas corpus (which can be appealed pretrial) or through a motion to quash (which can only be appealed after a judgment).

Historically, as-applied challenges could only be made in trial because the facts that must be developed to determine whether speech is protected are the same as the facts that must be developed to determine whether the speech violates the statute. Generally, as-applied unconstitutionality challenges were not cognizable in pretrial habeas.

In the Rick Perry case, however, the Texas Court of Criminal Appeals considered the appeal of the then-Governor’s pretrial habeas as-applied challenge to the Abuse of Official Capacity statute. See Ex parte Perry, 483 S.W.3d 884 (2016). The Perry opinion offers two justifications for the cognizability of Perry’s pretrial as-applied challenge. Presiding Judge Keller’s opinion held that Perry’s challenge was cognizable because Perry’s rights would be “effectively undermined if not vindicated prior to trial.” Id. at 895 (footnote omitted).

It is unclear what rights, other than a governor’s right to exercise his veto power, would be cognizable under this rule. For example, intermediate courts have held that the right to free speech is not a right effectively undermined if not vindicated before trial, but it is not obvious that the chilling effect of a pending criminal prosecution on the accused’s right to speak freely does not effectively undermine that right.

Judge Newell, joined by Judges Keasler and Hervey, suggested a different test for pretrial cognizability—a test that might allow a defendant to terminate the chilling effect of a content-based prosecution without the cost and expense of trial. In Judge Newell’s view, “addressing the constitutional claim because the violation is apparent from the pleadings resolves the matter much more cleanly.” Id. at 924.

The Perry split on this issue appears to be the following: Presiding Judge Keller and Judges Yeary and Alcala for the “effectively undermined” rule; Judges Newell, Keasler, and Hervey for the “apparent from the pleadings” rule; Judge Meyers against cognizability for either reason; and Judges Johnson and Richardson not weighing in on the question.

An as-applied challenge under the Free Speech Clause is appropriate when the statute is not facially overbroad, but the defendant’s own speech is constitutionally protected (that is, not in an unprotected category)—in other words, when the statute restricts some protected speech, as exemplified by the defendant’s, but not a real and substantial amount of protected speech. The lesson of Perry’s uncertainty is that, where the constitutional violation is clear from the pleadings (for example, where the sworn Complaint gives enough detail that the court can tell that the accused’s speech is not in fact within any unprotected category), the accused may be able to pursue an as-applied challenge before trial.

Or maybe not. But what does the accused have to lose?

Plenty to Gain

A continuance can be as good as an acquittal for as long as it lasts. If you file a pretrial application for writ of habeas corpus challenging a content-based restriction either as written or as applied to the speech of the accused and the trial court denies relief, you can appeal to the intermediate court of appeals, and from there to the Texas Court of Criminal Appeals. But what happens to the trial-court case in the interim?

As a practical matter, most trial courts want to see legitimate constitutional questions answered before trial and so will not proceed to trial while a habeas appeal is pending. Whether the trial court may proceed to trial while the habeas appeal is pending is an unanswered question.

There have been recent cases from Austin and Beaumont supporting the proposition that a trial court may proceed, but neither case addressed section 11.32 of the Texas Code of Criminal Procedure which provides that once the defendant has appeared in court on the habeas, “he is no longer detained on the original warrant or process, but under the authority of the habeas corpus” until the habeas has been finally determined. See Tex. Code Crim. Proc. § 11.32. If the “original process” is the indictment or information  and a person can only be tried on an indictment or information, if the person is no longer detained on the original process, it stands to reason that he cannot be tried until the habeas is resolved.

It’s an open question, though, and it’s going to have to be litigated in mandamus when a trial court attempts to put a defendant to trial while a viable free-speech challenge is pending, and then possibly taken up to the Texas Court of Criminal Appeals on a Petition for Discretionary Review (PDR).

Is it Time to Defund TJJD’s State Schools?

“There can be no keener revelation of a society’s soul than the way in which it treats its children.”

Nelson Mandela

Adults can’t be trusted to take care of children placed in their custody in an institutional setting.  At least it seems that way in Texas.  It’s not just the recent problems the Texas Juvenile Justice Department’s (TJJD) state school system, it’s the long and sordid history in this State vis-à-vis delinquent children committed to those state schools.

From its inception in 1949, Texas’ state school system for juvenile delinquents (Texas Youth Development Council, Texas Youth Council, Texas Youth Commission, and now, Texas Juvenile Justice Department) has been fraught with scandal and secrecy regarding the abuse of children it its charge.

In the early 1950s for example, allegations of abuse surfaced at the Gainesville school for girls.  During a habeas corpus hearing, one girl testified about how one man beat her with a leather strap while two other men held her.  The 1960s, under the leadership of TYC director James Turman, saw an FBI investigation of the Gatesville school for physical abuse and denial of routine medical care, another investigation of a guard beating a resident into a coma, and a legislative surprise inspection of a state school where the legislators observed residents with bruises, black eyes and swollen faces.

The 1960s also ushered in a golden era of juvenile rights, with the U.S. Supreme Court deciding cases like Kent v. United States, 383 U.S. 541 (1966) and In re Winship, 697 U.S. 358 (1970).  The seminal U.S. Supreme Court case regarding juvenile rights, In re Gault, 387 U.S. 1 (1967), was published in 1967.h, Gault made it clear that children in the juvenile justice system have basic due process rights under the U.S. Constitution.  Among those rights, which we seem to take for granted today, are the right to counsel and the right to have a hearing.   Despite Gault, juvenile courts in Texas were slow to recognize these rights. 

Morales v. Turman

In 1970, 15-year-old Alicia Morales was working and earning $70 per week.  And like clockwork, her father took all but $5 of it each week.  When Alicia got tired of this and refused to cooperate with her father, he decided to punish her by involving the state.  Alicia’s father, El Paso County’s Chief Juvenile Probation Officer, and the County Judge signed an “agreed judgment” committing Alicia to TYC (Texas Youth Council).  The commitment was done without a hearing and without counsel, contrary to Gault’s mandates.  The reason for Alicia’s commitment: she was deemed to be an incorrigible child.

Because that kind of procedure-less commitment was still common in Texas, a class-action a federal class-action lawsuit was filed, with Alicia being one of the named plaintiffs.  The lawsuit was expanded to include abuse occurring at several of the state schools.  What the investigation uncovered was horrific. 

After a six-week trial, Judge William Wayne Justice entered an emergency interim order granting preliminary injunctive relief.  The injunctive relief included such matters as physical force and solitary confinement.  The order contained 32 findings of fact, including:

  1. Correctional officers at Mountain View presently administer, or have in the past administered, various forms of physical abuse, including slapping, punching, and kicking. One form of this physical abuse, referred to as “racking,” consists of requiring the inmate to stand against the wall with his hands in his pockets while he is struck a number of times by blows from the fists of correctional officers. Other abuse consists of correctional officers administering blows to the face with both open and closed hands.
  2. Tear gas and similar chemical substances have been used by agents or employees of the defendants on Mountain View inmates in situations in which no riot or other disturbance was imminent. One inmate, for example, was tear-gassed while locked in his cell for failure to work; another was gassed for fleeing from a beating he was receiving; and another was gassed by a correctional officer supervisor while he was being held by two 200-pound correctional officers. 17. Most or all of these security facilities contain single rooms or cells in which juveniles are, or have been in the past, locked for periods of time as long as a month or more, with no opportunity to leave the cell except for daily bathing, hygiene, and eating. Many juveniles so confined have little or no contact with casework, medical, or psychological staff during the period of their confinement. 20. Inmates in some security facilities have been forced to perform repetitive, make-work tasks, such as pulling up grass without bending their knees or buffing a floor for hours with a rag. During the pendency of this lawsuit, inmates were permitted to adopt a kneeling posture, rather than a bending posture with unbent knees, for the performance of the grass-pulling.

 Morales v. Turman, 364 F. Supp. 166, 170-172 (E.D.Tex. 1973).-172

Fortunately, major reforms came out of this litigation.  The centerpiece of the reforms came in 1973 with the creation of Title 3 of the Family Code, the Juvenile Justice Code.  Professor Robert O. Dawson was the primary draftsman, and many of the concepts and provisions from then are still found in the code today. 

TYC Scandal 2007

During a Texas Senate Finance Committee hearing on February 1st, 2007, Senator Juan Hinojosa asked TYC’s executive director, Dwight Harris, about sex-abuse allegations at the west Texas state school in Pyote.  There were rumors about sex abuse at Pyote, but this was the first time it was spoken of out loud in a public forum.  This was the beginning of another scandal at TYC.

From December 2003, and continuing through February 2005, Pyote’s assistant superintendent used his position over the juveniles to extract sexual favors from them.  He had the authority to shorten or lengthen a juvenile’s indeterminate sentence at the school.  The superintendent would bring juveniles into his office late at night, at times continuing into the early morning, where he would engage in sex acts with them.  Because of the power imbalance, the juveniles had little choice but to acquiesce, lest their stay at Pyote be extended.

These allegations were bad.  The cover-up of and dismissiveness toward these allegations may have been worse.  Although knowledge of the unusual nighttime visits and general unease about the assistant superintendent’s activities made it up the chain of command, the concerns remained inside the Pyote State School’s administration.  It took two juveniles confiding in a volunteer tutor, who in turn reported it to a Texas Ranger, to get law enforcement involved.

Despite the report to the Texas Ranger, nothing happened for the next two years.  Although there was sufficient evidence to press forward with charges, neither the local county prosecutor nor the U.S. Attorney had any interest in prosecuting.  It wasn’t until the story broke two years later, following Senator Hinojosa’s questions in the Senate Finance Committee, that the allegations were treated seriously.

While the Pyote scandal was unfolding, the U.S. Department of Justice was investigating Evins Regional Juvenile Justice Center in Edinburg for violence occurring at that school.  On March 15, 2007, the DOJ wrote a letter to then-governor Rick Perry to report its findings.  In addition to making findings about juvenile on juvenile violence, the DOJ found “an unacceptably high degree of physical abuse of youths by staff at Evins. We also found a disturbing consistency in the youths’ accounts of the use of unnecessary physical restraint and excessive force by many Evins’ staff.”

Other problems at other facilities soon came to light, such as the superintendent at Ayers halfway house in San Antonio shredding files and Coke County Juvenile Justice Center hiring a registered sex offender as a guard.

In response to these problems at TYC, the Texas legislature passed, and the governor signed SB 103 during that very legislative session.  Additional reforms in subsequent legislative sessions were also enacted.  Those reforms were designed to reduce the number of juveniles committed to TYC and provide for improved safety procedures.

Post TYC Scandal 2007

More than a decade after the Pyote and Evins scandals broke and legislative changes putatively fixed the problems, problems still exist within the state school system.  Headlines like “Gov. Greg Abbott ask Texas Rangers to investigate sexual abuse at youth lockups,” “Juvenile Justice Department employee arrested for having sex with inmate at Brownwood” and “Texas juvenile prison officer charged with sexually assaulting teenage inmate in his cell” are still all too commonplace.

The DOJ’s Bureau of Justice Statistics, within the last year, released a report on sexual victimization reported by youth in juvenile facilities.  While nationally, an estimated 7.1% of juveniles reported being sexually victimized, three of Texas’ five state schools, McLennan County State Juvenile Correctional Facility, Gainesville State School, and Ron Jackson State Juvenile Correctional Facility, were ranked among the worst in the country.

After seven decades of existence, is the TJJD state school system working?  Or does a radical change need to happen?  Should Texas take a bold step like California governor Gavin Newsome did this summer when he announced he was defunding California’s juvenile prison system?  The funds that would normally have paid for California’s juvenile prisons will instead be redirected back to the local counties.

Physical and sexual abuse of juveniles seem to be woven into the fabric of TJJD state school system.  The past seven decades have shown that. 

Randal Chance, a retired inspector general for TYC, said during the 2007 scandal “TYC has established a dynasty of corruption that condones the mistreatment of youth in its care.”  State Senator John Whitmire, quoted in a December 13, 2019, article from the Texas Observer: “I think the campuses are out of control, the system’s dysfunctional and very dangerous.  I’m frustrated; I don’t know what it’s going to take. My worst fear is that it’s going to take a loss of life or lives to change it.”

Which begs the question: is it time to defund TJJD’s state schools?

A Better Kind of Wake-up Call

This morning I woke up to happy children, a freshly brewed coffee waiting for me and no bedhead.  And then my alarm went off.  I quickly realized I overslept, the kids were extra cranky and no surprise, my car needs gas.  The truth is my mornings begin with some variation of that quite regularly.  Despite the morning rush, I have found that there is one thing that I can do to get myself back on track and set my day up to be a productive one.  It does not cost anything and fits in your pocket. 

At the height of a particularly stressful part of 2018 (I laugh now as it pales in comparison to 2020), I stumbled across an article touting the importance of starting the morning on a positive note.  With just enough free space on my iPhone, I downloaded the free version of “Unique Daily Affirmations,” on the App Store.  It had a little tie-dye vibe to it and the text and fonts are simple and straightforward.  Certainly, this app would be the first to go once storage got tight, but nevertheless I set up my account and decided to give it a shot for a week.  The concept is simple, every morning a positive message appears by holding down a button.  Then you record yourself repeating the affirmation and play it back.  At first, I laughed at the sound of my morning voice which was less than inspiring and bordered on manly.  But, if we are being honest, by the third time I heard myself saying “I have the power to rise above what is expected of me,” I almost believed it.  And then I saw the time and realized the kids would be eating granola bars because we were now extra late to school. 

Day 2: I avoided playing with the settings and ignored my scary morning voice and told myself, “my possibilities are endless,” three times.   

Day 3: Forgot all about the app and remembered midday, right about the time I was looking for a good excuse to stop working on discovery responses.  What do you know, had to tell myself “I challenge, I work hard, I persevere,” three times?  Discovery responses (mostly) completed. 

And so, it has been since.  Most mornings, right after I curse the alarm, I reach for my phone and go to the affirmations app.  It takes me less than a minute to read the short phrase and play it back.  When it is a particularly inspiring phrase, I save it to the favorites tab and hope it will find its way back to me when I most need it.  There have been days when I feel like I am failing at just about everything and I question if I am capable of being a good advocate for my clients.  On these days, I have found that returning to my morning routine can be quite helpful.  I sit at my desk, close my door, and repeat the words of the day to myself three times.  Pro tip: a few deep breaths at the end really drive it home. 

On a particularly damaging day of testimony during my last trial, I skipped the restroom break and pulled out my phone for some words of encouragement.  I ignored all the text messages waiting for me, umpteen emails screaming about the work I was behind on, and went straight for the affirmations app.  “Today I will be proud of who I am,” popped up on my screen.  In that moment, I was most definitely not proud of who I was.  I felt like I was failing my client and his punishment would be life in prison.  I had missed some good shots with the last witness and my cross failed to produce anything helpful to our defense.  I was tired and hungry.  And now, I had skipped my bathroom break to tell myself something I did not believe in that moment.  I put my phone down and slumped into my chair, defeated and with a full bladder.  A few seconds ticked by painfully slow and then I compulsively reached for the phone again.  The app was still open, and the words stared back at me: Today I will be proud of who I am.  In the empty courtroom, I whispered the words to myself three times.  Then another three just for good luck. 

The Bailiff returned, asked if I was ready and then sent for my client and the jurors.  The next witness took the stand and then another.  I can not say that I had a brilliant cross examination or that the State’s witnesses were slaughtered for being self-serving hypocrites, but I did get in a few zingers.  I had gotten into my own head and convinced myself that I was not good enough, but with a few simple words, I had found just enough something in the privacy of my phone to pull me through and get back to defending my guy. 

It sounds cheesy, I know.  And if you are still reading this article, it is probably because you forgot to bring your phone into the restroom.  But hear me out, the loudest voice you will hear is your own.  It is the one that tells us we are either good enough or not.  Too many times, we use our words to undermine ourselves.  How often do you make a careless mistake and then proceed to follow up with, “I’m such an idiot”?  I spilled some coffee on my shirt right before Zoom court today and then called myself a dumbass.  Salt, meet Wound.  These mishaps are human.  Missing a deadline is bound to happen.  The point is that hearing yourself say hurtful things afterwards only magnifies the mistake and makes it harder to get back on track.  We are often very quick to criticize ourselves but slow to praise. 

There are lots of free apps available that promote mindfulness and positive thinking.  Whether you start your day with repeating an affirmation, or repeat a phrase as needed, reminding yourself that you believe in you can have a lasting effect.  Taking a few minutes to say something positive to myself has changed the way I approach my inner conversations.  I find it harder to say, “I’m so stupid,” after making a mistake now.  I am more aware of my own voice.   

I encourage you to turn up the volume on your own voice and speak kinder to yourself.  In the courtroom and in life, you are capable and worthy.  Now say it three times.

Get Back to Where You Once Belonged: TCDLA Declaration Readings July 2, 2021

It is early July. The morning is crisp and cool in the Texas town. Just before 9 o’clock, people converge from all directions, mingling on the shady west lawn of the courthouse square. Nearby, a historic whitewashed gazebo is the meeting place for a dozen or so well-dressed local attorneys.

A young lawyer curls her baby in her arms as an older lawyer shoos his toddler grandson from the makeshift stage. Children seem to be everywhere, running across the expansive grassy space with little American flags. Clerks, judges, and prosecutors file out from the courthouse to join the multitude for the familiar annual patriotic ceremony.

A man stands tall before the gazebo and proudly announces the reason for the gathering. He leads the crowd in the Pledge of Allegiance. “God Bless America” follows, performed by a talented young lawyer in a dazzling blue dress. A few tears are dabbed away.

The lawyers take turns reading the paragraphs of the great document. Some readers are talented orators, powerful advocates familiar to all. Others have lesser voices, but even the small children are silent, spellbound by the majesty of the message.

Another lawyer in a blue dress belts out a rousing rendition of “This Land is Your Land,” with everyone joining the chorus and clapping hands. Kids dance. There are hugs and group photos, interviews from the local media and salutations all around. Everyone is excited to do it all over again next year.

But next year is 2020. The pandemic hamstrings TCDLA’s great tradition of sponsoring local readings of the Declaration of Independence. Many local criminal defense lawyers are able to stage modified readings, mindful of health concerns. It is certainly not the same.

Meanwhile, the pandemic kills more than half a million Americans. What it can never kill is the American quest for liberty. The principles enunciated in the Declaration of Independence are eternal for all Americans.

By July 2021, it seems likely the TCDLA Declaration readings will return to normal. It is a chance for Texas criminal defense lawyers to publicly champion liberty and individual rights.

The founder of this wonderful tradition—Robert Fickman of Houston—will join me in coordinating statewide readings again this year. Those of you who have been involved in the past—you know who you are—will soon be contacted with information about the 2021 readings.

Visit TCDLA.com to see county coordinators. Email  to be added. Watch the 2020 TCDLA Declaration Video.

Please join us in honoring our nation’s most sacred document in the spirit of independence.

COVID-19 and the End of DWI Breath Testing

Think about the ways our society has changed since the onset of the COVID-19 pandemic. What kind of messages do you hear? What do you see? Do you hum “happy birthday” as you wash your hands a hundred times a day? Many people are now wearing masks and gloves for protection from the virus and some even do so when they are alone in their own cars. The Center for Disease Control and Prevention (CDC) has laid out guidelines that recommend us to practice “social distancing” by staying at least six feet away from other people while in public; and we’ve all become familiar with the taped lines in the middle of grocery store checkout lanes that indicate proper spacing. COVID-19 has changed the way our everyday lives look, but I cannot help but think about how all these changes, particularly, are going to impact DWI breath testing.

Our clients have two options when it comes to consenting to the government’s quest to obtain evidence of ethanol in the client’s system: blow or bleed. Many people, me included, are deathly afraid of needles and would opt for the less invasive and much quicker approach of providing a breath sample. For some people, providing a breath sample feels much safer than providing a blood sample, or at least it did in the past. Now, all I can think about is how dangerous the process of taking a sample of a person’s breath has become during COVID – for both the person blowing into the breathalyzer and the officer taking the sample.

Who is our Client?

As we always do with this type of work, must consider whether our clients are immunocompromised, whether our clients are on certain types of medications that may suppress their immune system, and our clients’ lifestyles. Some researchers have found that COVID-19 could be disproportionately affecting people from black, Asian, and minority ethnic communities.1 We also know that the criminal justice system seems to disproportionally target low-income people and black and minority ethnic communities. Many of our clients have little access to healthcare, masks, or gloves. Many of them are not able to work from home or keep their children out of childcare facilities. Some of our clients have recently been forced to be in unsafe settings like hospitals, jails, halfway houses, or homeless camps where they could easily have been exposed to COVID-19 or picked up other diseases that could compromise their immune systems. We know that our clients are living in a fluid, changing world and that many of them are high-risk for COVID-19 exposure, and worse, COVID-19 complications. 

COVID-19

The CDC suggests COVID-19 will infect the human body through the nose, throat, and lungs. These are exactly the areas used to submit a sample into the breath machine. The CDC reports COVID-19 can spread from one infected person to another by respiratory droplets from a person sneezing or coughing. The CDC also reports that aerosolized droplets exhaled by an infected person’s breath may also transfer the disease. Touching or shaking hands with someone who is infected, and touching your mouth, nose, or eyes without properly washing your hands or using a disinfectant will increase the probability of COVID-19 spread.

Breath Testing

Considering how COVID-19 is transmitted between people, how can we possibly justify breath testing at this time? To highlight just how dangerous breath testing is during the current pandemic, let’s walk through the standard process of breath testing.

Breath tests are often administered in a small room with very little ventilation inside of a jail. By design, the officer who administers the test must stand within six feet of the subject providing the specimen. The breath test machine is equipped with an attached tube that has a disposable mouthpiece for each person who will blow into the device. The officer will either hold the tube to the subject’s mouth while the subject blows for a required amount of time, or the officer will instruct the subject to hold the tube themselves.

Where are the safeguards to prevent the spread of COVID-19? Is disposing of the mouthpiece between subjects sufficient to prevent infection? It is likely not. A closer analysis of the process illustrates the ability of the virus to live in the hose of the breath machine and within its chamber. To obtain a “valid” breath sample, each subject is required to blow into the hose of the machine for approximately seven seconds. In these seven seconds, the aerosolized particles of breath and droplets of saliva will enter the tube and stay there. To prevent transmitting the disease from one subject to another, the breath test technician would have to dismantle the machine to completely disinfect it. Considering the number of DWI arrests made on any given day, this does not seem feasible and the spread of COVID-19 could become rampant from only one source of equipment within a community.

In the process of collecting a breath specimen, the breath test operator is at risk for COVID-19 infection just as much as our clients. The more times the operator touches the machine, the more they increase their chances in becoming infected and the potential chain reaction of transmitting the disease to others becomes significant. 

Conclusion

The intent of this short piece was to highlight that an area of evidence collection that has already become technologically obsolete (did you know all they’re really measuring is how much light is passed through when someone breathes into the machine?) is now also extremely dangerous.  Yes, this may mean we will have more blood cases. Yes, I am still afraid of needles. That being said, as a defense attorney, I would rather make the government actually prove a defendant’s blood alcohol content (BAC) through scientifically validated lab testing than allow them to continue pushing cheaper, less accurate, and now dangerous breath tests. I hope this article highlighted the need for reform in this area of the law. Be well out there, and don’t blow.

A Memorial: Roy Minton, 1931-2021

I was an outsider to the Red Brick House when I was asked to join in late 2000. Randy Leavitt and Martha Dickie had inquired and I jumped at the opportunity. Soon thereafter, I was trying a murder case in Georgetown with Roy and realized I had been invited to work with one of the very best to advocate in a courtroom. We succeeded in getting a lesser manslaughter verdict much to the chagrin of John Bradley who took a little steam out of us with a 20 year sentence from the jury. That is one of many predictable stories you might hear from many lawyers who worked with him over the years. He was awesome to watch preparing for trial as much as performing at trial.

Some of the less publicized qualities of Roy Q. Minton: He detested profanity (though he threw in an occasional “god dammit”); He was very liberal politically and he didn’t hesitate to tell the Republicans he represented (often saying, “You need to know, I’m a Democrat – A LIBERAL Democrat!); He adored Barbara – always stopping whatever meeting or phone call to walk her to the car when she came by the office; He doted over his 5 children and loved working with sons in the practice; He was not a fan of organized religion but was a “spiritualist” – often talking to me about those moments where “the invisibles” gave him a helping hand – in and out of the courtroom; He set fees too low – especially in his latter years (Often joking – “There is a point in your career where your rate should go DOWN!”); He and Charlie Burton would sleep on courthouse benches to hustle court appointments in the 60s, when a fee was difficult to get in Austin; He adored his pets – one time stopping a meeting with a high profile client because Barbara was out of town and he had to go feed the dog;  He loved to fly – a former military pilot, he truly enjoyed flying his twin engine Baron;  He had an awesome sense of humor (sometimes, in the middle of trial – he’d look at my worried face and say “You just want to try the easy ones?”); and – despite his reputation as a ruthless litigator/defender – I observed him to be kind and warm hearted, very accepting of people from all walks of life.

For me, this is a moment to pause and be grateful to have worked with him. More importantly, it is a moment to be remember that he taught me more about life than about law.

Attorney-Client Disagreements: Who’s the Decider?

Against the vast resources and authority of the State in an asymmetric adversarial process, it’s easy for a criminal defense lawyer to feel powerless sometimes. But criminal defense lawyers hold enormous power over our clients’ lives. By the time citizens accused engage a criminal defense lawyer or have one appointed, most have already lost a substantial amount of liberty and autonomy. If they aren’t incarcerated, they’re likely on bond or under other restrictions. They’re on the hook to appear for court dates that they didn’t choose. We speak for them in court and in other communications, and we counsel and advise them on what choices and decisions to make in some of the most important situations they will ever face.

There exists a very real risk that we wield our power according to what we believe is in our clients’ best interests, not what our client believes is best. Our duty is to learn and advance the objectives of our clients using the general methods decided by the clients. Tempered by other duties under the law and with our consciences as the touchstone, the law says our clients remain the deciders in all fundamental decisions related to the representation.

As a matter of ethics, the Texas Disciplinary Rules of Professional Conduct outline the categories of decisions on which the client is the ultimate authority in Rule 1.02: “[A] lawyer shall abide by a client’s decisions: (1) concerning the objectives and general methods of representation; (2) whether to accept an offer of settlement of a matter, except as otherwise authorized by law; [and] (3) in a criminal case, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.”

The rules establish a floor, not a ceiling. Merely because these rights are explicitly listed, it does not follow that the remaining decisions are reserved for the attorney alone. The specific client decisions fundamental to liberty and protected under the Constitution are more expansive, and they may be wildly different from case to case.

Criminal lawyers often think of the objectives of representation in terms of distributive justice, that is, the result—the verdicts and sentences handed down. The client’s autonomy interest, however, extends far beyond the realm of distributive justice and may, in fact, have nothing to do with distributive justice at all. Violation of that autonomy violates substantive rights, to be sure, but it also violates core tenets of procedural justice and undermines the key to maintaining the legitimacy of the legal system.

Being mindful not to impose or infringe upon a client’s autonomy to decide the objectives and methods of representation is even more important for appointed counsel representing people who are indigent. Without the freedom to contract or choose their own attorney, people who are indigent already lack the autonomy of their wealthier counterparts. Telling an indigent citizen accused of a crime “that his lawyer has the power to decide the theory of the defense, and that his lawyer has the power to concede his guilt to lesser-included offenses ‘can only lead [the defendant] to believe that the law contrives against him.’”

When given the sacred duty of protecting one of our fellow citizen’s freedom, we’ll serve them best when we understand freedom entails far more than a trial result or number of years on a sentence. As Lawrence v. Texas explains, “Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” Another case out of Texas, Roe v. Wade, makes clear that some decisions are so personal that the right to make those decisions is Constitutionally protected by the right to privacy, which is fundamental and “implicit in the concept of ordered liberty,” and the Constitution protects as a fundamental right the ability to make unimpeded decisions about personal matters related to marriage, procreation, contraception, family relationships, and child rearing and education.

The nature of choices belonging to the client without infringing on their fundamental liberties are broad and sometimes abstract. “The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.”

Practice Principle: Know your role (at any given time). We wear many hats, each requiring different considerations.

All of this does not mean that a criminal defense lawyer has no power over representation decisions. In the role of advocate, the lawyer controls trial management matters. The Supreme Court recognizes that ceding some power to the trial lawyer is “a practical necessity.” “The adversary process could not function effectively if every tactical decision required client approval.” In addition to Texas rules in accord, the ABA Criminal Justice Standards for the Defense Function also make clear, “Defense counsel is the client’s professional representative, not the client’s alter-ego. Defense counsel should act zealously within the bounds of the law and standards on behalf of their clients, but have no duty to, and may not, execute any directive of the client which violates the law or such standards.”

The big decisions, however, belong to the client. At the time the Constitution was drafted, “The right to counsel, far from being seen as a means for undermining defendant autonomy, instead was intended, like the other trial guarantees in the Constitution, to provide defendants themselves with a necessary tool for making and acting upon the most well-informed decisions.”

Avoiding conflict in the attorney-client relationship when it comes to the allocation of decision-making authority isn’t always easy; but taking a client-centered approach with a healthy dose of humility can go a long way toward easing tensions with the highly-involved and highly-autonomous client. Taking an approach that recognizes the clients as more than the facts of their case builds trust, which can often lead to the fruitful kind of working relationship that prevents conflict from arising. 

Practice Principle: Be a patient teacher. If you’re having trouble getting through to a client, bring in help from someone who might be able to reach them. It might be family, a colleague, a counselor, clergy, or another trusted agent; but make every effort to make the client’s concerns heard and make every effort to help the client obtain complete and accurate information in a way that they can accept and understand it.

Though criminal defense lawyers are called upon to be zealous advocates for our clients, we also have a duty to fill various other roles in service to our clients. Providing the effective assistance of counsel that the Constitution demands requires it. For even the busiest of trial lawyers, some of the most important work a criminal defense lawyer ever does is entirely off the record, confidential, and never subject to scrutiny by any oversight authority except the lawyer’s own client. While much attention is given to our role as advocate, the role of counselor and advisor to our clients is integral to the guarantees of the Sixth Amendment. This private role gives us the unique task of protecting our clients’ fundamental right to secured autonomy.

A client’s objectives are often placed into conflict with one another. Similarly, a client’s objectives may be tempered and limited by the methods they’re willing to employ to accomplish the objective. The “lifeblood of the law” is respect for the individual. Every individual client is going to have hopes, dreams, aspirations, and a sense of who they are and who they want to be that is unique to the individual. And just as lawyers must use their own consciences as the touchstone for guiding their actions, so too must clients use their own consciences as their touchstones. As counselors, it’s our duty in our role as counselors to help them through the process in ways that exceed mere advocacy.

Practice Principle: A client may have more than one objective of the representation. Objectives of representation are not often as simple as “win at all costs” or “get the lowest sentence possible.”

To use just one example of how competing objectives might present themselves in a concrete way, consider the following hypothetical:

The client refuses to admit guilt to a heinous crime, even though he’s certainly facing a conviction and 25 years if he goes to a jury. If he takes a plea, he’s out on time served with probation. The client’s lawyer informs him of all the risks, shares a candid assessment of the likelihood of going to a jury, and educates the client about the reality of coercive plea-bargaining tactics and about the realities of the trial penalty designed to deprive him of his day in court. But the client simply cannot say he did something he didn’t do. The prosecutor continues to take a hard line and won’t budge with the coercive plea bargaining. The client’s preference is to avoid a trial if at all possible because he doesn’t want the public spectacle and humiliation, and the client is risk averse and is seriously tempted to take the offer regardless of the facts.

Many clients simultaneously desire the objective to maintain innocence and the objective to secure the benefit of a plea bargain in the face of overwhelming evidence or in the face of coercive plea practices. It would be a challenge to find a criminal defense lawyer who was unfamiliar with clients pleading guilty simply to get out of jail, regardless of guilt or innocence.

How can the criminal defense lawyer help the client best meet the client’s competing objectives when the objectives are so incompatible? Educate the client on the possibility of pursuing an Alford plea. If the client decides that’s the best method to achieving his competing objectives, pursue that method of resolving the case.

And certainly, there is no explicitly stated Constitutional right to an Alford plea (yet), and the court may not be obligated to accept an Alford plea or a plea of nolo (yet), but considering the client has a right to personal autonomy and to choose the objective of his defense, it would follow that a client at least has the right to be made aware of an Alford plea as an option to pursue as a possible means to achieve both of his competing objectives—in other words, even if the court is not required to allow an Alford plea, the client has a right to ask.

In Texas, an Alford plea is implemented through a plea of nolo contendere, which has the legal effect of a guilty plea. Though a plea of nolo contendere in Texas has the same effect in the criminal proceeding as a plea of guilty, it is a plea expressly allowed by statute that carries important distinctions from a plea of guilty. A plea of nolo contendere cannot be used against a party in any potential future civil suits arising out of the same accusations. More importantly, a defendant might be able to obtain the benefit of a guilty plea while maintaining innocence and not admitting guilt, which may best achieve the client’s objectives of representation.

We would all do well to remember that the choice on how to plead is not a binary choice of guilty or not guilty. And the choice to admit guilt or concede guilt is a separate and distinct choice from the decision to plead, and it is no less protected by the Constitution. Justice Ginsberg made clear in McCoy v. Louisiana that when it comes to choices about how to plead and whether to maintain innocence or admit guilt, “These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are.

When it comes to the “more transcendent dimensions” of liberty under our Constitution, our clients depend on us getting to know them in a concrete way on an abstract level. If we can’t do that with our own clients, what hope do we have of helping the prosecutor, judge, or jury do the same?

The New Cannabis Fight: What You Need to Know About Marijuana, THC, and Hemp

INTRODUCTION

Whether you agree with smoking marijuana (a.k.a. weed, bud, grass, dope, herb, reefer, pot, you get the picture) or not, it is easy to see that marijuana has become almost totally acceptable in today’s society. Marijuana is used both medically and recreationally in the United States and is commonly smoked (in joints or blunts, or out of a pipe or bong) but it can also be eaten in edibles, brewed in teas, and more recently, through vaporizers and vape pens. As a defense lawyer, we need to be aware of the different forms marijuana can come in, what it means for our clients, and how we can best defend them.

WHERE DOES IT COME FROM?

Marijuana is derived from the cannabis plant, which is one of mankind’s earliest crops, and has been around for thousands of years. In fact, dating back at least 5,000 years, marijuana has had medicinal, spiritual, and recreational uses. Still, its legality has been a topic of controversy in America, and even the world, for longer than most of us have been alive.

THE MANY FORMS OF MARIJUANA

Marijuana today comes in a variety of different forms and can now be consumed in various ways. We all know that the most common way of consuming marijuana flower is to simply smoke it, however, THC can be ingested in many forms. The most common way you will likely see THC consumed these days, however, is in a “vape” pen containing a cartridge of oil with some concentration of THC. Below are some of the many examples of substances containing THC, the main psychoactive compound in cannabis that produces the high sensation.

Cannabis Concentrates may include products such as Kief or sift, Hash, Rosin, Live Resin, Shatter Wax, Crumble Wax, Honeycomb Wax, Budder or Badder, Pull and Snap, Tinctures, THC Oil, BHOI & CO2 Extract Oil, Rick Simpson Oil, Distillates, Isolates and Crystalline.

Solvent Concentrates include products and variants such as Shatter, Crumble and Honeycomb, Budder and Badder, Wax Products, Live Resin, CO2 Oil, THC Oil, Butane‑Honey Oil, and Rick Simpson Oil.

Dabs may include products such as Shatter, Wax, Resin, and various types of Hash Oil.

Old Definition of Marihuana (Flour), pursuant to HSC 481.002, “Marihuana” means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds. The term does not include: (A) the resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin; (B) the mature stalks of the plant or fiber produced from the stalks; (C) oil or cake made from the seeds of the plant; (D) a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake; or (E) the sterilized seeds of the plant that are incapable of beginning germination.

Now the New Definition of Marijuana (Flour) adds to the list of not included: (F) “hemp”, as that term is defined by Section 121.001, Agricultural Code.

Old definition of “THC”, pursuant to HSC 481.002, was defined as follows: “Controlled substance” means a substance, including a drug, an adulterant, and a dilutant, listed in Schedules I through V or Penalty Group 1, 1‑A, 2, 2‑A, 3, or 4. HSC 481.103, Penalty Group 2, includes THC: Tetrahydrocannabinols, other than marihuana, and synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity.

Now in the New Definition of “THC,” HSC 481.002 does not include “hemp,” as defined by Section 121.001 of the Texas Agricultural code or the tetrahydrocannabinols in hemp. Note that the definition of “THC” leads to a rational conclusion that there is ALWAYS some THC found in Hemp. So, what is Hemp? According to Tx. Agriculture Code Sec. 121.001, “Hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta‑9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

And Cannabidiol (“CBD”), according to HSC 443.201, is defined as a “Consumable hemp product” meaning food, a drug, a device, or a cosmetic, as those terms are defined by Section 431.002, that contains hemp or one or more hemp‑ derived cannabinoids, including cannabidiol.

What does all this mean? It means that the green leafy substance and any odors that an officer or a K‑9 smells may be an illegal substance, or it may not. Now, marijuana is Cannabis sativa L. with a concentration of THC over

0.3 percent THC and hemp is Cannabis sativa L. with a concentration of THC under 0.3 percent THC. These are not scientific definitions. They are legislative ones.

A CHANGE IN ATTITUDE – GUESS WEED ISN’T THAT BAD AFTER ALL

In the past decade or so, there has been a dramatic shift in the attitude toward marijuana consumption, and that shift is starting to be shown in our legal system today. A study by the PEW Research Center in 2019 concluded that two‑thirds (roughly 67%) of Americans say the use of marijuana should be legal, reflecting a steady increase over the past decade. The survey revealed that the share of U.S. adults who oppose legalization has fallen from 52% in 2010 to 32% in 2019.

While marijuana remains federally illegal (but the definition also now excludes hemp), marijuana laws are changing at a rapid pace across all 50 states. On November 6, 2012, Colorado and Washington became the first two states (and the first two places in the world) to legalize marijuana for adult use. Alaska, Oregon, and Washington, D.C. followed suit two years later in 2014. In 2016, voters in four additional states (California, Massachusetts, Maine, and Nevada) also approved ballot measures legalizing marijuana. In January 2018, Vermont became the first state to legalize marijuana through a state legislature. Also, in 2018, Michigan became

the 10th state to legalize recreational marijuana, and Utah, Oklahoma, and Missouri voted to legalize medical marijuana, joining numerous other states that already had such laws on the books. More states are expected to legalize in the near future. As of the date of this publication, 40 states have some sort of legalization of Marijuana in place.

Some states are even doing more than just legalizing marijuana. Last June in Illinois, Governor JB Pritzker signed a legal marijuana bill into law that legalized recreational marijuana use but also contains a sweeping criminal justice component, namely, expunging the records of potentially hundreds of thousands of Illinois residents who have previously been convicted for possessing marijuana under previous laws.

Marijuana is now legal in 11 states for adults over the age of 21, and legal for medical use in 33 states, despite the continuing Schedule I status of marijuana under the Controlled Substances Act (“CSA”). Currently, only 11 states remain with a “fully illegal” approach to Marijuana.

WHAT RECENTLY CHANGED IN THE LAW

Federal Law. Marijuana is federally illegal under the Controlled Substances Act (“CSA”), which was enacted in part to implement the United States’ obligations under the Single Convention on Narcotic Drugs, 1961, and other international conventions designed to establish effective control over international and domestic traffic in controlled substances. See 21 U.S.C. § 801.

Under the CSA, substances are categorized into five schedules, depending on their therapeutic benefit and their potential to result in abuse, diversion, dependency, and addiction. Schedule I is the most restrictive and the substances listed as same are said to have no currently accepted medical use in the United States and a high potential for abuse. Schedule II substances similarly have a high potential for abuse, but they do have a currently accepted medical use. Schedules III–V substances have an accepted medical use and less (relative to each preceding schedule) abuse potential. See 21 U.S.C. 812(b). Marijuana is listed as a Schedule I substance.

In December of 2018, however, the federal landscape for marijuana changed with the passing of House Bill 1325, known commonly as the “Farm Bill.” The Farm Bill was designed to create a legal hemp market and defined “hemp” as the cannabis plant, or any part thereof, including its extracts and cannabinoids, having a THC concentration of not more than 0.3% on a dry weight basis. See 7 U.S.C. § 1639o (emphasis added). Because of this definition, “hemp” is removed from the legal definition of marijuana and it can no longer be considered a controlled substance under the CSA. While not explicitly authorizing interstate commerce of hemp, the Farm Bill likewise does not authorize the interference with the same.

The 2018 Farm Bill requires hemp cultivation to be licensed and regulated pursuant to “state plans” promulgated by a state, which must contain, among other things, provisions for THC testing. It further directed the United States Department of Agriculture (“USDA”) to establish a national regulatory framework for hemp production in the United States. In response, the USDA established the U.S. Domestic Hemp Production Program through an interim final rule. This rule outlines provisions for the USDA to approve plans submitted by States and Indian Tribes for the domestic production of hemp. It also establishes a Federal plan for producers in States or territories of Indian tribes that do not have their own USDA‑approved plan. The USDA has the authority to issue regulations and guidance, but the law explicitly preserves the existing jurisdiction of the FDA.

Cannabidiol (“CBD”) is a non‑psychoactive compound of cannabis. CBD was classified in Schedule I of the CSA because it is considered a compound or derivative of cannabis/ marijuana. See 21 U.S.C. § 802. However, as indicated above, the 2018 Farm Bill has de‑scheduled hemp as it is defined under that law. Therefore, commercial activity with hemp (including its extracts and cannabinoids) is now lawful. A DEA registration is no longer required to cultivate hemp or to conduct research with hemp. However, if clinical research, i.e., involving human subjects, is involved, an investigational new drug exemption (IND) must still be opened with FDA, and the investigational product must be manufactured in a facility that complies with good manufacturing practice requirements. Currently, CBD is approved by the Food and Drug Administration (FDA) as a prescription drug. Per federal law, prescription drugs cannot be added to foods, cosmetics, or dietary supplements.

Texas Law. It is still illegal to use or possess marijuana under Texas law and has been since 1931. What changed last year, however, is how the code defines what marijuana is. The Texas Health and Safety Code now defines “marihuana” as follows:

“Marihuana” means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds. The term does not include:

  1. the resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin;
  2. the mature stalks of the plant or fiber produced from the stalks;
  3. oil or cake made from the seeds of the plant;
  4. a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake;
  5. the sterilized seeds of the plant that are incapable of beginning germination; or
  6. hemp, as that term is defined by Section 001, Agriculture Code.

Tex. Health & Safety Code Ann. § 481.002.

As you can see, the 2019 definition of marijuana changed to explicitly remove “hemp”. Like the federal definition, the Texas Agriculture Code defines hemp as the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, with a THC concentration of not more than 0.3 percent on a dry weight basis. See Tex. Agric. Code Ann. § 121.001.

This definition was changed when, in an attempt to bring the state in line with the 2018 Farm Bill, on June 10, 2019, House Bill 1325 was signed into law by Governor Greg Abbott. HB 1325 legalized the production, manufacture, retail sale, and inspection of industrial hemp crops and products in Texas. This also includes products for consumable hemp products that contain CBD as well as other edible parts of the hemp plant.

The Texas Department of Agriculture (“TDA”) submitted the state hemp plan to USDA on December 2, 2019, and it was approved by the USDA on January 27, 2020. Administrative rules were published in January 2020 and became effective March 11, 2020. Now that the TDA plan is approved by USDA and the administrative rules are adopted, industrial hemp can be grown and cultivated legally in the State of Texas. Furthermore, per this plan, the regulation of CBD consumables, including CBD oil, will be handled in accordance with Food and Drug Administration (FDA) guidelines. The state agency with oversight of CBD consumables is the Texas Department of State Health Services (DSHS) and not the TDA.

At its heart, this new law means Texans should no longer face criminal penalties for hemp or any of its derivatives, including CBD.

It is also important to note that medical cannabis is said to be legal in Texas in very limited circumstances. Governor Abbott signed the Texas Compassionate Use Act into law in 2015, allowing people with epilepsy to access cannabis oil with less than 0.5% THC. Last year, he also signed House Bill 3703, which expanded the list of qualifying conditions to include diseases such as multiple sclerosis, Parkinson’s disease, and Lou Gehrig’s disease, or ALS.

PROSECUTIONS IN TEXAS HAVE DECLINED

So, what did the new hemp laws do to marijuana cases? While counties in Texas all treat low‑level marijuana cases differently, one thing has become clear across the board: prosecutions in the State have drastically plummeted since Texas legalized hemp. In January of 2020, the Texas Tribune noted that district and county prosecutors across the state began dropping hundreds of lower‑level marijuana cases since the legalization of hemp, which resulted in marijuana prosecutions dropping by more than half. The article also noted that some district attorneys began requiring agencies to submit lab results proving the suspected drugs had more than .3% THC before the case was accepted for prosecution. In fact, even the good folks at the Texas District and County Attorneys Association issued a press release suggesting to its members that such testing is likely needed to prove in court that the seized marijuana substance is illegal.

In 2019, before the passage of the hemp law, there were about 5,600 misdemeanor marijuana possession cases a month. After the law’s passage, that number got slashed in half, with only around 2,000 cases filed in November.

Since the passing of the hemp law, more and more policies across the state started popping up in favor of marijuana legalization, or at least de‑criminalization for minor amounts of marijuana possession. In July of 2019, Bexar County District Attorney Joe Gonzales joined three other Texas District Attorneys (Fort Bend County, Harris County, and Nueces County) in adopting a policy of not accepting criminal charges for misdemeanor possession of marijuana for amounts of four ounces or less. Later that month, even Texas DPS issued a memo instructing its officers to cite and release suspects in misdemeanor marijuana cases (less than 4 ounces in possession cases) “as appropriate.”

In January of 2020, Austin’s City Council voted unanimously to end most arrests and fines, as well as ban spending city funds on testing, for small‑amount marijuana possession cases. The police chief was obviously not on board with this decision, however, as evidenced by his response a day later that he would still instruct his officers to issue tickets or arrest people for these offenses.

THE TESTING

It seems clear that part of the reason marijuana prosecutions are declining is because labs are struggling to keep up with the THC testing. In February of 2020, Texas DPS announced that “the new THC testing methodology for plant material is expected to be finalized by Sam Houston State University (SHSU) near the end of March.” DPS clarified, however, that they will not be accepting misdemeanor cases, likely due to the high volume of arrests. Likewise, the letter clarified that they will not be testing felony concentrate materials at this time. A downside to DPS not testing, though, is that it leaves agencies in many areas to use costly private labs if they are not inclined to forego pursuing marijuana cases. With new kinds of testing, however, it’s also important for us to remember problems that could also arise with its validity, including the ability of the sponsoring expert to meet Daubert factors in trials.

WHAT THE NEW LAWS MEAN FOR DEFENDING YOUR MARIJUANA CASES

The passage of the 2018 Farm Bill and Texas’s HB 1325 give defense attorneys new ways to challenge Marijuana cases and develop issues that have not yet been decided by the courts. A few tools to use in defending marijuana cases today are outlined below.

Challenging PC. The new laws surrounding hemp have a drastic effect on law enforcement’s ability to assert probable cause to search or continuing detaining a suspect. Since the passage of HB 1325, whether something is legal cannabis (hemp) or illegal cannabis (marijuana) is a legal conclusion. The only way to distinguish between legal or illegal cannabis is to have a lab test done to determine the THC concentration. The two are indistinguishable to the nose. One cannot distinguish between legal or illegal cannabis by

the look or smell. Nor is the odor of burnt marijuana or bunt hemp distinguishable. The two are the same plant. The level of THC does not make the plant appear different. The THC level also does not make the plant smell different. The smell of cannabis is based on the terpenes, not the THC level. The human nose is not smelling marijuana, it is smelling the terpenes of the cannabis plant. This means that all an officer can detect, is the odor of Cannabis sativa L., which is legal unless the THC concentration is over 0.3 percent, but the officer cannot detect the level of THC concentration. Therefore, while the odor of marijuana or burnt marijuana previously could establish probable cause to search in Texas, a detention or search based solely on the smell of cannabis or burning cannabis alone is arguably illegal. For these reasons, detentions based upon smell alone lack reasonable suspicion, and searches based on the smell alone lack probable cause. It should now be argued that no probable cause exists if law enforcement has no reason to believe that the odor they claim they smell is not, in fact, hemp.

Given the similarities of marijuana and hemp, not only does law enforcement lose its ability to form probable cause to search vehicles incident to the vehicle exception or use odor as the basis for probable cause in a search warrant, but arrests of persons and seizures of green leafy substances are also devoid of probable cause absent other articulable facts indicating that the substance is, in fact, illegal marijuana.

It should be noted that smokable hemp containing CBD is widely used as a method of ingesting CBD for its medicinal effects. Many people prefer smoking hemp rather than using a “vape” cartridge given the unknown and often negative effects of “vaping” oils.

It goes without saying that “vape” cartridges containing CBD are indistinguishable from “vape” cartridges containing THC. It is impossible to deduce the concentration levels of either CBD or THC within a cartridge just by looking at them. For this reason, as with the indistinguishability problems of marijuana and hemp, so too are substances containing CBD and THC likewise indistinguishable. For these reasons, the same arguments apply concerning the probable cause to search, arrest, and seize.

Officers aren’t alone in their inability to distinguish illegal marijuana from legal hemp or illegal THC from legal CBD. Narcotics detection dogs are likewise unable to make any meaningful distinctions. Cases involving indications that a “K‑9 alerted to the presence of narcotics” which form the basis of probable cause to search are also ripe for suppression. No K‑9s have ever be trained to distinguish between Hemp and Marijuana, assuming that there is any scientific basis to even do so. And these issues can create even worse problems for cases relying on K‑9 sniffs. Because of this, an “alert” from a K‑9 can now be a false positive. The sniff is therefore no longer reliable probable cause. See People

  1. McKnight, 2019 CO 36, 446 P.3d 397, reh’g denied (July 1, 2019).

In Colorado, where small amounts of marijuana were legalized in 2012, drug dog searches became problematic because the animals would alert officers to a legal amount of marijuana. The Colorado Supreme Court ultimately held that that police had to establish probable cause before using a drug‑sniffing dog, a move that led authorities to roll back the role of dogs in drug cases. See id. As well, there can be no more probable cause for “vape pens” and/or “THC Cartridges” because there is no way to differentiate and spot the difference between a THC‑Pen and a CBD‑Pen.

If there is no probable cause, the arrest should be suppressed. Don’t forget, however, the seizure should be suppressed, too. Without the requisite probable cause, likely, any incriminating post‑arrest statements should also suppressed, as well as any testing to confirm the substance is THC. If argued correctly, this can be a huge tool to use to get your case dismissed. For example, in a possession case involving alleged THC oil, if there is no pre‑arrest admission that the substance in question is THC oil, and not CBD oil, it is virtually impossible for the officer to distinguish between the two. It is also very important to note that field tests cannot give probable cause to arrest in this situation because a substance containing less than 0.3 percent of THC can produce a positive result while remaining a legal substance. What the state has to prove. As noted by DA Joe Gonzales, “[t]he immediate effect of the hemp law is that it requires the state to prove a THC concentration on marijuana cases that cannot be accomplished without lab testing.”

It can now be argued in marijuana cases that the State has to prove beyond a reasonable doubt that the substance in question is not legal hemp, but rather a substance containing more than .3% THC. This has proven to be a difficult task for prosecutors, as THC‑level testing is still developing and uncommon. The lack of testing resources to distinguish between Marijuana and Hemp casts too much reasonable doubt over criminal proceedings, which is why, as mentioned above, many counties are either tossing low‑level marijuana cases or holding off on pursuing criminal charges in larger cases. If you have a case where a private lab has determined the level of THC‑concentration in a material, remember to challenge its validity, and remember the Daubert Factors required for expert testimony. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

There currently exist no peer‑reviewed scientific procedures to test THC concentration levels in Cannabis sativa L. While arguably, High Performance Liquid Chromatography (HPLC) could produce concentration levels, no studies have been produced or peer‑reviewed. Even with the limited use of HPLC to obtain concentration levels for commercial marketing reasons in recreational jurisdictions, the experimental nature of those procedures does not meet the necessary Daubert standards and have technical problems of their own.

How we instruct the jury. Because of the new hemp laws, changes are required in how juries are instructed when it comes to alleged marijuana cases. Because the definition of marijuana has changed to exclude material with 0.3 percent THC concentration or less, juries should be instructed

accordingly. Juries should also be instructed that it is the government’s burden to prove beyond a reasonable doubt that the alleged marijuana does in fact have a concentration above 0.3 percent THC. Obviously, since no expert can testify to this fact, your chances of winning greatly improve. Hemp is just back door jury nullification. We already know that the public’s appetite for prosecuting marijuana is virtually gone. Assuming the state could even empanel a jury that could convict or punish someone charged with possession of cannabis in 2020, why would they ever want to. Obviously, in most possession cases of any type of contraband, the only way to win is through suppression. If they caught you red‑handed, what’s your defense? You can’t just argue to the jury, “C’mon, it’s just weed” can’t you?

Maybe now you can?

If you lose that suppression issue, remember you can always put it to a jury with a 38.23 instruction. But more importantly, think about this argument. If you have sufficiently Voir Dired on how many states and how many millions of Americans are making billions of dollars in legal cannabis markets, and how important it is to hold the state accountable to the proper standards of testing and reasonable doubt they should be ready for virtual cannabis nullification. “Sure, we know that it’s weed” but the state never proved beyond a reasonable doubt that the weed had more than 0.3 THC in it. They set the bar at 0.3 percent, they should have to reach that bar, that’s what the legislature wanted. Malum prohibitum laws are technical ones, to begin with. There is nothing inherently evil with that green leafy substance. It’s technically illegal, not actually evil. So, it stands to reason, they must technically prove it’s got more than .03 percent THC.

The same is true in federal court. Obviously, the issues are a lot heavier to contend with when we are in federal court, but these same concepts hold true. Because these concentration distinctions come directly from the federal “Farm Bill,” all the arguments apply equally. In reality, a marijuana case in federal court obviously will have more serious consequences than in state court, so all the more reason to fight.

How we negotiate with Prosecutors. The new hemp laws give us more leverage when negotiating plea agreements with the government. Remember all the arguments discussed in this article and highlight some of them when discussing your marijuana case with prosecuting attorneys. Convince them that if pushed to trial, you will hold them to their burden and will make them prove every element of their case, which may prove difficult concerning the current inability to test THC levels. If you have a good suppression issue, use that to your advantage to try and secure a dismissal.

CONCLUSION

The attitudes surrounding marijuana have drastically changed both in the United States and in Texas and show strong support in favor of legalization. Nationwide and statewide polls reveal a strong pattern in favor of marijuana legalization, evidenced by the fact that 40 states in America have some form of legalization and that it’s fully legal for adults 21 years of age or older in 11 of those states. In Texas, numerous counties are no longer prosecuting small‑amount marijuana possession cases, including Bexar, Harris, and Dallas County. The 2018 Farm Bill and Texas’ House Bill 1325 have changed the landscape of criminal defense for marijuana cases indefinitely and gave criminal defense lawyers new and effective tools to use to beat marijuana cases. So, fight every fight, NEVER plea a misdemeanor marijuana case, and NEVER let anyone become a felon for marijuana. And to quote my homie Dr. Dre, “Smoke [hemp] everyday.”

Endnotes
  1. Newton, D. (2013). Marijuana: A Reference Handbook. ABC-CLIO: Santa Barbara, CA.
  2. Tackett, History of Marijuana. American Addiction Recovery Centers. 31 Oct. 2019. Available at: https://law.uakron.libguides. com/c.php?g=627783&p=6800463.
  3. Daniller, A. Two-thirds of Americans support marijuana legalization. Pew Research 14 Nov. 2019. Available at: https://www.pewresearch. org/fact-tank/2019/11/14/americans-support-marijuana-legalization/.
  4. Mead, A. Legal and Regulatory Issues Governing Cannabis and Cannabis-Derived Products in the United States. Frontiers in plant science, 10, 697. 2019. Available at: https://doi.org/10.3389/fpls.2019.00697.
  5. McCullough, Jolie. Marijuana prosecutions in Texas have dropped by more than half since lawmakers legalized The Texas Tribune. 03 Jan. 2020. Available at: https://www.texastribune.org/2020/01/03/texas-marijuana-prosecution-drop-testing-hemp/.
  6. See id.
  7. See Interim Update: Texas District & County Attorneys Association. 24 June 2019. Available at: https://www.tdcaa.com/legislative/interm-update-hemp/.
  8. See fn. 5.
  9. Statement on hemp/marijuana case filing policy. Bexar County District Attorney’s Office. 03 July 2019. Available at: https://www.bexar. org/CivicAlerts.aspx?AID=513.
  10. Prince, Randall. Department of Public Safety Interoffice Memorandum regarding HB 1325 Enforcement Guidance. Texas Department of Public 10 June 2019. Available at: https://static.texastribune.org/media/ files/6bb887232ae43ab238d88d50d18b196f/DPS-citerelease2019.pdf?_ ga=2.102158146.252285754.1602180849-554138637.1602180849.
  11. Menchaca, M. CBD, hemp, medical marijuana? Here’s what you need to know about Texas’ changing pot laws. KBTX-TV. 28 Jan. 2020. Available at: https://www.kbtx.com/content/news/CBD-hemp-medical-marijuana-Heres-what-you-need-to-know-about-Texas-changing-pot-laws-567357991.html.
  12. See id.
  13. McCraw, Steven. Letter to DPS Laboratory Clients. Texas Dept. of Public Safety. 18 Feb. 2020. Available at: https://www.texasnorml.org/wp-content/uploads/2020/02/thcMethodologyUpdate.pdf.
  14. See Statement on hemp/marijuana case filing policy. Bexar County District Attorney’s Office. 03 July 2019. Available at: https://www.bexar.org/CivicAlerts.aspx?AID=513.

Surviving the Practice of Law

Stress and Resiliency

The adversarial system places litigators in conflict with another lawyer, a judge, and often, a client and his family. This basic nature of law practice is one of the things that makes our profession so different and so much more stressful than other challenging professions. Doubtless, the challenge of “representing” another person and effecting the consequences of the decisions made by a court with our work are as stress‑inducing as any other profession. Doctors certainly have significant stress in administering to the medical needs of their patients, but they don’t face another doctor challenging every decision made in the treatment. Statistics show that lawyers abuse alcohol and other substances more than other professions, suffer from anxiety and depression more often than other professions, and die by suicide more often than other professions.

In order to survive the practice of law, we must realize what stress is, what it does for and to us, how to safely respond to it, and how to respond if we don’t do well when we first face it. Not all stress is bad. Both physical and mental stress can improve our performance so long as the stress is of an appropriate duration and intensity. An appropriate stress response comprises introduction of a stressor, resistance (including mobilizing to withstand the stress), exhaustion (depletion of body’s resources), recovery (return to homeostasis). In their appropriate form the resistance and exhaustion develop strength. When this isn’t the pattern and the stressor continues such that there is stress beyond exhaustion, chronic stress is the result.

Even under chronic physical stress conditions there comes a time that our bodies quit responding and struggling against the resistance. We may develop a cramp in a muscle or run into some other wall that stops the physical activity. This isn’t the case with mental and emotional stress. There is no protective response that stops our attempts to respond to the incoming stress. Human beings are, therefore, capable of “stressing” beyond the breaking point. Chronic stress, not handled appropriately, can result in burnout. The choices, therefore are avoiding stress where we can, limiting stress when we can, taking time to engage in activities that help us recover from stress when it can’t be helped, and avoiding excessive use of substances or processes which might become addictive.

Though there is no universal “right way” to accomplish the results listed above, there are processes which can mitigate stress and accelerate recovery. The first step toward surviving the stress of law practice is recognizing what stress is and being aware when it overtakes us. In order to identify the stress, we become aware of what is likely to cause stress in our life and practice. Thereafter, we learn skills to manage the stress to the degree possible, learn and use skills to recover from stress and learn and practice skills to avoid or recover from burnout.

First Things First

If there are two words that we would choose to live by, we could be far less stressed than we commonly are. SLOW DOWN! That’s all, move slower, and think more. To borrow lyrics from the Hamilton Broadway show, “talk less, smile more. . .” or, for the more mature lawyers, from Simon and Garfunkel, “Slow down, you move too fast.” When we research wellness we regularly read about mindfulness. One can’t be mindful while moving at warp speed like we often do.

Causes of Stress in Lawyers

The sources of stress for lawyers are legion. In addition to the stresses listed above, we have the human challenges common to marital relationships, familial relationships, financial challenges, and health issues. We are confronted by secondary trauma from dealing with anger, frustration, and the emotions of our clients; we usually have a sense of perfectionism, we act as if everything has to be done exactly right or we risk absolute failure; we never feel that our clients are truly pleased with our work; we sometimes act in a way that isn’t aligned with our core values; and, we are often working long hours which aren’t physically, mentally or emotionally sustainable.

Avoidance of Stressors

There are stresses that we have the capacity to avoid or to limit. The most prevalent stressor that we have the opportunity to avoid is anger. Our work often leads to heated discussions about the facts we are dealing with, the law applicable to them or the appropriate disposition of a case. We are likely to feel our blood pressure rise and a throbbing in our temples.

Other changes, which we often don’t notice, include our vision becoming more constricted and our decision‑making becoming “split‑second.” These are the common symptoms of the “fight or flight” response. One of the things these changes signal is that our brain is changing the decision‑ making locus from the pre‑frontal cortex to the amygdala ‑ from the large, advanced, human brain to the reptile brain. This part of the brain is extremely fast and quite narrow in its capability. When it is engaged, it always acts as if we are being threatened with serious injury or death. The reptile brain made us able to evolve from reptiles to the higher species, but it is a dangerous place to be making decisions that will have long‑term consequences.

Hurriedness is another stressor that we have power over. Over the years, thousands of “time saving” applications and devices have been marketed. There is no way to save or create more time; there are only so many hours in a day and only so much can be done in any given hour. Far from giving us more time for ourselves, reliance on the new technology complicates “down time” by providing entertainment or accessibility 24 hours a day. We seldom schedule time to think or to meditate. Since this is a self‑imposed stressor, we can integrate it to the degree and with the effectiveness we commit to. Most of us have considered meditation and the majority of those that have, have quit after a short time because their mind wouldn’t slow down and let them be. It is difficult! The good news is that one needn’t be a “perfect” meditator to benefit from the effort. Research has shown that only minutes a day yield significant benefits. Experience also shows that staying with small successes builds to large successes.

Realize Limitations

Know yourself and listen to your body. J.K. Rowling, of Harry Potter fame, has said, “It is impossible to live without failing at something, unless you live so cautiously that you might as well not have lived at all.” One of my favorite Alcoholics Anonymous speakers pointed out in a recorded talk that “the only thing a perfectionist is ever going to be is a failure.” Research has shown that it is possible to grow from failure. When we reach our limit, we need to learn to stop and either choose a different route or come back when we are in better shape. We can improve our “conditioning” by a course of study in a fashion similar to the way we improve our physical condition by exercise. If the end we reach is a real end, though, we need to recognize it and stop the battle. Chronic stress brings burnout and all the potential bad consequences.

Optimism is the Key

“Deadlines and commitments, what to leave in and what to leave out, against the wind . . .” Bob Seger and the Silver Bullet Band described the plight of the lawyer well in their 1980 hit. For most of us, a positive attitude doesn’t come easily. Part of that is likely because we have to analyze every fact and its probable effect in every case. We end up doing comparisons of everything in our life. We sometimes find ourselves “comparing our insides to someone else’s outsides” in AA parlance. There are times when every other lawyer at the courthouse looks more content, competent, and successful than we feel. We can develop doubts of our skills and our value. Our work is being judged, sometimes fairly and sometimes unfairly by judges, other lawyers, clients, clients’ families, and the reading public if you or your case end up in the news. Our responses, especially when we aren’t successful in our undertaking, make the difference between what one writer calls learned helplessness and resilience. Research has shown that one way we can improve our optimism is to be grateful. Making a gratitude list daily and really digging down to the emotion while we do so can support an outlook of optimism. I have found myself doing a perfunctory gratitude list, just scraping off the top, and my experience is that that type of list is much less effective. We can benefit from taking the time to fully engage our gratitude and realize the gifts we have received in the past 24 hours.

Prioritize

Prioritize and then set reasonable goals. My wife accuses me of thinking that I can arrive at one location at the same time I leave another. I am notorious for working to within five minutes of a meeting and leaving for the meeting, which is a 10‑minute drive, and not believing that I arrived late. This is a small thing, but it moves me from my rational, thinking brain into my fear‑based fight or flight brain. That change narrows my vision and limits alternatives and builds suspected adverse results. If I will take the time to plan and prioritize my day, I can avoid “running around like a chicken with my head cut off.” One of my favorite excuses for not planning and prioritizing is that it takes time. While it is true that planning is work and it does take time, its net result is often that we are more efficient and end up not causing stress for ourselves.

Exercise

Exercise in moderation. This is easily said to an attorney but hard to practice if you are one like me. Competition probably fueled our desire to be admitted to law school. It certainly drove us during law school, and it isn’t likely that it is diminished when we started practice. Often our “driven” nature makes it difficult for people to get near us or understand us when they do. If we take the competitive nature that got us through law school into our exercise program, there is a real likelihood that we will end up injured. This is especially true for the more mature lawyers like me. I was never going to be satisfied that I was a cyclist until I finished the Hotter ‘N Hell Hundred in Wichita Falls. Then one completion of the test wasn’t enough. I hadn’t ridden fast enough, so I did it each year for the next couple. I broke my hip in April of this year when I fell on my bicycle. My most fervent hope is that I can complete the H‘NH next year. I tell you this so you know that I have a hard time following my own suggestions. The truth is that most everything I know about stress management, I learned by doing it wrong. So, do as I say, not as I do! The goal should be activity rather than perfection.

Take Vacations

This is the “smile more” from the Hamilton song. We need to take real vacations, not “working vacations” where we take our computers and check in with the office in the morning and again in the afternoon. Many of the vacations I took with my kids may have been vacations for them but they wouldn’t have qualified as “an extended period of leisure and recreation, especially one spent away from home,” a vacation according to the Oxford Dictionary, for me. Over the years, it has seemed to me that there was always more to do than I had time to do it. In response, I would combine things that seemed to nearly fit together. Time with children and time away from the office were closely related but I fowled both of them by taking work along with me. We need to truly vacate when we take vacation if we want to feel the benefits that they can provide. The benefits aren’t a luxury, they are necessary. Similar to sleep, we can’t do without a break.

Share Feelings with a Trusted Person

It is probably best to have a friend who isn’t a lawyer to talk to. Even when we lawyers understand stress, we accept way more than we should. The problem of venting with a colleague may be that they hear you and either think or say, “I’m having it much tougher than he is. . . ” Sharing with a “civilian” can give another perspective. It is appropriate to consider, too, whether the civilian is a spouse or significant other. It is often a good idea to share with these people but sometimes consider sharing with them after talking with an unrelated person. Spouses are likely to be affected similarly by the consequences of the issue shared as we are so their response may not be much more objective than our own. A member of a church congregation or a social group or, as in my case, another member of Alcoholics Anonymous, is more likely to give the dispassionate consideration of your controversy and bounce more creative responses back to us than another who is affected by the same events which affect us.

Seek Help

I was in therapy for years just before and during my early sobriety. My therapist was fabulous and one thing that she told me that personalized her to me was her belief that any therapist needed to be in counseling with another professional. I didn’t really understand referred trauma and emotional fatigue at that time, but it still made intuitive sense and made me trust her even more. What I know today is that it isn’t crazy people who go to counselors, but it is often the few who stay sane. Life is complex, especially for people who serve the public. In the same fashion that we expect a person who tries to defend himself in a DWI case to crash and burn, we are likely to suffer the same result when we try to diagnose and treat our own stress.

Burnout

You might be burning out if:

  • You end each workday highly stressed;
  • Feel a knot in your stomach on Sunday night;
  • Find yourself disengaging from work, family, friends, and health; or
  • Have ulcers, upset stomach, headaches, backaches, colitis, lack of concentration, rage, and even potentially a heart

Burnout is characterized by physical and emotional exhaustion, feelings of cynicism and detachment, and a sense that nothing you do makes a difference. Mindtool.com suggests 5 responses to burnout: (1) thinking about the “why,” (2) focus on the basics, (3) taking a vacation or leave of absence, (4) say “no,” and (5) practice positive thinking. You can see that some of these are extensions of or more imperative applications of some of the suggestions made above. A couple of these suggestions, though, need further development.

What is the “why?” Are there specifics about your work or your life that leave you with resentments? Sometimes the cause of the resentment is a person and other times they are circumstances or governmental entities (IRS included). When you come to an understanding of what you resent, it becomes possible to address removing it. Sometimes we can remove the object of the resentment and other times, we have to change the way we feel about it. This takes focus and commitment. Vague feelings of “I’ll do better. . .” aren’t going to work, and it may take a therapist’s assistance to dig the right hole.

Nancy Reagan wanted us to “Just say no” in her anti‑drug campaign back in the day. While I have reservations about how successful that campaign was, I absolutely know that a well‑placed “no” goes a long way toward freedom from many resentments. People will make requests of us so long as we agree to take on the burden they offer. Once the challenge is “our problem” the referring party can move on, free from the burden and the responsibility it carried. We have to choose what we can and want to do. We need to reserve a little time in our life in case a new and wonderful opportunity comes. Every time we say no to someone else, we are saying yes to ourselves!

Addiction

The effect of a drink or use of a recreational drug is relatively immediate and the sensation of stress changes. The feeling we end up with may not be any better than the stress we were feeling, but it is different, and sometimes that is enough. Litigators must take note of how and when we drink or use prescription medications. It isn’t unusual to notice a pattern of heavier use in times of stress. Not everyone who drinks is, or is likely to become, an alcoholic, even if they drink more than they should at times. Neither is everyone who uses drugs likely to become addicted. There are other consequences of use though, both physical and emotional. When use becomes addiction, the consequences multiply and become more complicated. Addiction is defined as a chronic, relapsing disease, and recovery may be a long and winding road. Recovery from addiction is supported by the State Bar and the Lawyers Assistance Program. It is also supported by individual counseling and numerous 12‑step meetings. The first step toward recovery is “to quit digging” the hole of despair, fear, and remorse for just long enough to engage another person and then to lean on the other person until we can walk on our own.

The foregoing list of challenges and responses are in no way lists of everything which could populate these categories. Hopefully, they can give a toehold on the challenge you face. The TCDLA Attorney Wellness Committee is composed of a group of criminal defense litigators who have an interest in, and a commitment to, helping other lawyers with issues such as those listed above. These lawyers and their email addresses are listed below. The Texas Lawyers Assistance Program also provides confidential assistance and referral. They can be reached at: tlaphelps.org or (800)343‑TLAP (8527).

Rick Wardroup |
Andrew Herreth |
William Stith |
Coretta Graham |
Savannah Gonzalez |
Amy Blalock |
Mark Griffith |
Amy Boylan |
Shana Stein‑Faulhaber |

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