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Getting Your Wings Back: How Pilots Charged with DWI Can Get Back to Flying

The job of the Aviation Medical Examiner (AME) in the aviator “Fitness for Flight” medical examination process is to coordinate the flow of information to the Federal Aviation Agency (FAA) so it may make an informed and safe decision regarding the aviator’s flying status. When an aviator has their flight physical, and there is a Driving While Intoxicated (DWI) charge or conviction noted in the history section of the medical application (Form 8700-2; Question 18), the AME will ask the applicant questions about that event. Regardless of the level of alcohol at the time of the event, the AME cannot certify the applicant and must defer that decision to FAA.  A DWI type charge can have many different names such as DUI (Driving Under the Influence), OWI (Operating While Intoxicated), and OUI (Operating Under the Influence, but for FAA purposes, they are all treated the same and mean that a driver was charged with or convicted of being intoxicated or impaired while driving. If there is a driving type intoxication offense noted, the FAA does not distinguish between intoxication or impairment that is caused by alcohol, a legal or illegal drug, a controlled substance (even if prescribed by a physician), or a combination thereof.

Here, it must be acknowledged that the FAA is not known for its rapid speed decision-making process. Knowing that, how can the AME accelerate this process for the aviator? First, he or she can make sure that the aviator has timely notified the FAA Security and Hazardous Materials Safety Office (SHMSO) in Oklahoma City, Oklahoma, of the DWI conviction and/or license suspension event, as the aviator has 60 days after the event to notify the SHMSO. Should that 60-day window be missed, it is still better to report the event late then not at all. Normally, if late but still reported, the FAA response is to keep a memo in your file about the failure to report, and thereafter expunge it.  Second, the AME will remind the aviator to request their driving record from their Department of Motor Vehicles. The AME will further request the aviator to obtain from his DWI lawyer all records from the DWI and license suspension cases so that they, too, can be given to the AME for review. By doing so, the AME can make a judgment about how serious the event was and inform the FAA of that opinion. Indeed, the AME may pre-furnish those documents to the FAA to try to speed the medical application along.  Here, in rare circumstances, the end result may be that the AME, having pre-furnished the documents to the FAA, may be able to receive telephone approval for the issuance of the medical certificate without a deferment. However, this is rare, but it has happened, and it is certainly worth trying.

A Senior AME, and especially a Human Interventional Motivational Study (HIMS) qualified AME (These AME’s have additional training and certification relating to a study that clinically and scientifically showed that aviators were very motivated to return to flying and could remain abstinent from drugs and/or alcohol.  Such aviators will not let the matter rest with mere submission of the flight physical exam.) These AMEs will contact the FAA and try to determine what the FAA’s decisions are regarding the specific applicant and what will be the rehabilitation requirements to get the pilot back flying. That conversation will likely be with the FAA’s HIMS qualified AME.

Regarding proving sobriety to fly, the aviator should prepare themselves for frequent and random drug/alcohol tests, and, at least quarterly visits to their AME of record. Here, it is presumed that the aviator will hire the AME to represent and guide through this FAA reapplication process. Of course, the aviator should be sure they have a comfortable and trusting working relationship with their AME because the process will likely take at least one year or more. Note, this process is fluid, and there are no guarantees that it will be successful. Accordingly, it is often the case that the aviator will become frustrated with the process.  Notwithstanding, with unceasing dedication and hard work by the aviator and the AME, success may be achieved.

Focusing on whether there will be a medical deferment because of a DWI arrest, it does not matter what BAC level resulted from a breath test or blood test, a deferment is the default FAA position.  Moreover, any result at, or above 0.15%, is a red flag presumption to the FAA that the aviator has a substance abuse and/or addiction problem.  Understanding this, the aviator can expect that the FAA will want, in addition to the above, evaluations showing that there is no dependence on drugs and/or alcohol.  In this instance, the aviator will be counseled that the cause would be better served if a licensed professional counselor (LPC) is hired to make that determination. Better yet the hiring of a psychiatrist or an addiction medicine specialist will make the aviator’s case to get back flying more persuasive.  If money is not an object, or if the aviator wants to increase the chances of success, the aviator can create a team by hiring the licensed professional counselor, a psychiatrist, an addiction medicine specialist, and an attorney who is very experienced in FAA matters. From the FAA’s view, the more qualified the medical evaluators are, the more weight will be given to their opinions.  Also, in almost all cases, the FAA will require that the aviator participate an out-patient sobriety program such as Alcoholics Anonymous (AA) meetings.  Here, it is important that the aviator have a log which can be signed by the individual running each meeting to prove their attendance.  Also, it is a good idea for the aviator to keep a journal of what was discussed and learned at each meeting so both the log and the journal can be produced to the FAA as part of its evaluation.  It is here, by gathering, organizing, and assembling your sobriety and low risk to aviation safety proof, that the experienced aviation lawyer can be of great assistance.

Turning now to the type of medical application sought, if the aviator is a applying for a First or Second Class Medical Certificate, and the applicant is flying for an airline that has its own HIMS Program (generally these are national or international airlines that have their own regulations and specifications that have been HIMS approved. (https://himsprogram.com/Pilot-Referrals/). Nevertheless, all First or Second Class Medical Certificates are certified in Washington DC. History has shown that in some cases the process takes 14-16 months just to make the initial decision.  That being the case, if the aviator is not flying for one of these large commercial airlines or not flying commercially, many Senior AMEs will recommend that the aviator apply only for a Third Class Medical Certificate because that decision will not be made in Washington DC, but rather, the FAA in Oklahoma City makes that “okay to return to flying” decision and does so with much less delay—about a year or more.  Here, it must be remembered that a deferment only means that the pilot can no longer act as pilot in command.  The pilot can still fly with a certified flight instructor. 

So, what advice do Senior AMEs give to their pilot applicants?  To be blunt, never drink and drive.  Being charged with a DWI, even if you are innocent, is not worth the risk of losing your flying privileges, and from a commercial pilot’s perspective, your career, and your future. While it is legal in some states to drink and drive while not intoxicated, it is far safer to use a designated driver, ride-share vendor or taxi.  If none are available show good judgment, and simply don’t drive after drinking or don’t drink if you must drive. Thinking in terms of a defense team, it is important to remember that the FAA Medical Certification Division decision-makers will only speak to physicians. To be clear, we are not talking about the enforcement process where your lawyer would be speaking to the FAA, but medical fitness, which is solely the jurisdiction of the Medical Certification Division.

Here are just two examples of the collateral dangers of drinking and driving to the aviator. In the first example, there was an aviator who was erratically driving in a church parking lot and was arrested for DWI.  It took five years of sobriety proof for that aviator to be returned to a flying status. The second example involved an aviator who was speeding to escape the threat of a sexual assault and was arrested for DWI. Her reinstatement took over a year of sobriety proof before she could be returned to flying status. These two examples hopefully clearly show that an aviator should not drink and drive no matter what the reason.  Incidentally, even where the aviator is found to be not guilty of a DWI, the FAA still takes a presumptive guilt position until there is substantial proof of continued sobriety.

From an aviation medical perspective, the AME is critical in knowing where the aviator’s case stands with the FAA.  Having this knowledge, allows the AME to guide you and your sobriety team to the best path to have your flying privileges reinstated. In closing, the best defense against losing your flying privileges is by pre-deciding to NEVER drink and drive.  However, if you do, the best medicine to overcome a medical deferment is to hire both an AME who is experienced and cares, and, a lawyer experienced in FAA matters!

Balancing the Scales: A Closer Look at Ake v. Oklahoma

In October of 1979, Glen Burton Ake quit his job as an oil field worker. He and a co-worker, Steven Keith Hatch, borrowed a car and drove to the home of Reverend and Mrs. Richard Douglass. Ake and Hatch held the Douglass’s and their two children, Brooks and Leslie, at gunpoint. They bound and gagged the mother, father, and son and attempted to rape twelve year old Leslie. They then shot all four of the Douglass family. Reverend and Mrs. Douglass died, but the children survived.

This horrible, life shattering evening was the predicate to the United States Supreme Court case that leveled the playing field in criminal law more than any cases since Gideon v. Wainwright. Prior to Ake v. Oklahoma in 1985, there was no constitutional guarantee of funding for indigent defendants to obtain experts to mount a defense. Ake, and its progeny, recognized that “justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.” 1

This paper is going to take a closer look at Ake, its background and the Supreme Court’s holding. Next, we’ll take a look at how the law developed to its current state and its application in Texas. Finally, we’re going to look at some practical application points for obtaining funding for your indigent, or sometimes even retained clients to be able to participate meaningfully when their liberty is at stake.

 A Closer Look At Ake

From the introduction to this paper we can see that the facts of The State of Oklahoma vs. Glen Burton Ake are horrific. Two parents murdered and a family devastated. The judicial process afforded to Glenn Ake leading up to his Supreme Court appeal was almost as bad. During arraignment on two counts of murder in the first degree and two counts of shooting with the intent to kill, Ake’s behavior was so bizarre that the trial judge, sua sponte, ordered Ake examined for competency.  2 Ake was diagnosed with paranoid schizophrenia, and transferred to a state hospital with respect to his “present sanity”. 3 

Six weeks after his transfer to the state hospital, Ake was declared competent to stand trial: as long as he had three daily doses of 200 milligrams each of Thorzine. For comparison, the current recommended dosage according to drugs.com is about 1/10th of that amount for the most severe cases of psychosis in an outpatient setting. Even the Oklahoma Court of Criminal Appeals acknowledged that Ake “stared vacantly ahead through the trial.” 4

In June of 1980 at a pretrial conference, Ake’s attorney informed the trial court that he intended to raise insanity as a defense to the charges against Ake. Ake’s attorney requested that the court either arrange for a psychiatrist to examine Mr. Ake for trial, or provide the funds for the tests to be arranged. The request was denied. 5

At trial the defense called each of the psychiatrists who had examined Mr. Ake at the state hospital to address his sanity at the time of the offense. However, none of those doctors examined Ake in regards to his sanity at the time of the offense. The State hammered that point on cross examination. The jury was instructed that Ake was presumed sane at the time of the offense unless he provided sufficient evidence to raise a reasonable doubt about his sanity at the time. 6 Ake had no expert witness to testify to his sanity. The jury rejected Ake’s defense of insanity and found him guilty on all counts.

At the sentencing proceeding no new evidence was presented. The State relied heavily on the testimony of the psychiatrists who all testified during the guilt phase that Ake was dangerous. Ake had no expert to rebut that testimony. He was sentenced to death on each of the murder counts and five hundred years imprisonment on the two counts of shooting with intent to kill. 7

Ake appealed to the Oklahoma Court of Criminal Appeals. He argued, among other issues, that as an indigent defendant he should have been provided the services of a court-appointed psychiatrist. His argument was rejected. The Oklahoma Court of Criminal Appeals held that even when attempting to impose the death penalty, “the State does not have a responsibility of providing such services to indigents charged with capital crimes.” 8

The Supreme Court granted certiorari and ultimately reversed the convictions. Relying on the Fifth and Fourteenth Amendments of the United States’ Constitution the Court determined that “mere access to the courthouse doors does not by itself assure” a fair trial. 9  Defendants needed “access to the raw materials integral to the building of an effective defense.” 10 The court applied a three part balancing test to determine when additional protections validated providing those raw materials: 1) the private interest that will be affected by the action of the State; 2) the governmental interest that will be affected if the safeguard is to be provided; and 3) the probable value of the addition or substitute procedural safeguards that are sought and the risk of deprivation of the interest if the safeguards are not provided. 11

In Ake’s case, the first factor, the private interest, was clear: the State wanted to kill him. On the second factor, the State’s interest, the Supreme Court noted the minimal financial burden in providing expert assistance and that “a State may not legitimately assert an interest in maintenance of a strategic advantage over the defense, if the result of that advantage is to cause a pall on the accuracy of the verdict obtained.” 12 Finally, the court recognized the necessity of psychiatric assistance crucial to mounting a defense. The three factors weighed heavily in Ake’s favor and his convictions were reversed.

In 1986 Glen Burton Ake was retried on two counts of First Degree Murder and two counts of Shooting with Intent to Kill. He was found guilty and sentenced to life imprisonment for each of the First Degree Murder charges and two hundred years imprisonment for each of the Shooting with Intent to Kill. 13 He died in a prison hospital April 23, 2011, at age 55.  

The Aftermath of Ake

Ake v. Oklahoma provided a new foundation for obtaining expert assistance for indigent defendants. The specific holding, though, was narrow. The Supreme Court only ruled that “when a defendant makes a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist’s assistance on the issue if a defendant cannot otherwise afford one.” 14

How is this applicable in non-capital cases? Can we obtain funds for experts for non-psychiatric issues? Does this type of assistance apply to pre-trial hearings? Is it a neutral expert, or one specifically provided for the defense? How can this standard affect other grounds for which a defendant should be entitled to expert assistance? Can this apply to a non-criminal case? We will address each of these critical questions in turn.

 The Scope of Ake

As noted above, the holding in Ake was fairly limited.  One of the first questions was if the right to expert assistance goes beyond psychiatric assistance. There were some early attempts by various States to limit Ake’s holding to psychiatric assistance only. 15

However, the general consensus among the states, including Texas, is that upon a showing of need, the court must provide an indigent defendant an expert, “regardless of the field.” 16 17 (“There is no principled way to distinguish between psychiatric and nonpsychiatric experts. The question in each case must be not what field of science or expert knowledge is involved, but rather how important the scientific issue is in the case, and how much help a defense expert could have given.”). The same conclusion was reached on whether Ake applied to non-capital cases, and is accepted by most courts. 18 (“We [do not] draw a decisive line for due process purposes between capital and noncapital cases.”) 19

What about a non-criminal or quasi-criminal proceeding? Interestingly, a case pre Ake established the scope of expert assistance beyond that of only the criminal defendant. Little v. Streater was a paternity action that the Supreme Court labeled as “quasi-criminal”. 20 There an indigent defendant in a paternity suit had a right to a blood grouping test to determine paternity. 21

For non-criminal proceedings where indigent individuals are seeking court funded assistance, the Due Process analysis used in Ake is the same; weigh the private right balanced against the State’s interest and the probable value of the additional safeguard. Due process protections have been found to apply in a number of non-criminal proceedings. 22

 Whose Expert Is It?

Ake was vague on the question of what role the expert to be appointed would have in the case. It was not clear if a ‘neutral’ expert reporting to the court would satisfy due process protections, or if a Defendant was entitled to their own expert. Justice Rehnquist’s dissent in Ake even noted in the opinion that “I see no reason why the defendant should be entitled to an opposing view, or to a ‘defense’ advocate” 23

Courts are split on the question. The Fifth Circuit has held that “a court-appointed psychiatrist, whose opinion and testimony is available to both sides, satisfies [the accused’s] rights” 24

The Texas Court of Criminal Appeals, however, has ruled that a ‘disinterested’ expert witness does not satisfy the due process protections of Ake. 25 The court recognized that a neutral examination could not provide technical assistance, evaluate strengths of a defense, identify weaknesses in the State’s case or witnesses, or be able to testify at trial for the defense if favorable. 26 A defendant requires their own expert to help prepare and present their defense.

This does not mean that a defendant is entitled to an expert of their choosing. 27 30 Simply put, if you cannot afford to hire the expert you love, love the expert you can afford.

 Implications to Effective Representation

Now that our clients have the right to the assistance of an expert, what is our duty as attorneys to ask for that assistance? Does the failure to obtain an expert equate to a finding of ineffective assistance of counsel?

It may. If an attorney’s performance falls below “an objective standard of reasonableness under prevailing professional norms” that representation is ineffective.” 31

Briggs is a great case to review for appointed and retained attorneys alike. Ms. Briggs attorney was retained, and recognized that an expert was necessary to review medical records in a case involving the death of his client’s child. However she could not afford to retain experts. Ms. Briggs ultimately plead guilty to a lesser charge of injury to a child and was sentenced to seventeen years in prison.  Her case was overturned on a writ of actual innocence and ineffective assistance of counsel. The court found that her attorney was ineffective in not procuring the necessary experts to investigate and assist in the case. 32  The court, quoting Wiggins and Strickland remind us that while “strategic choices… are virtually unchallengeable” we, as attorneys, “have a duty to make reasonable investigations” to make those strategic choices possible. 33

What is an objective standard of reasonableness when it comes to seeking out and obtaining expert assistance? “Prevailing norms of practice as reflected in the American Bar Association standards and the like…are guides to determining what is reasonable.” 34

The State Bar of Texas has adopted “Performance Guidelines for Non–Capital Criminal Defense Representation.” 35  Specifically:

“Counsel should consider whether expert of investigative assistance, including consultation and testimony, is necessary and appropriate. Counsel should utilize ex parte and in camera procedures to secure the assistance of expert when it is necessary or appropriate to:

  1. The preparation of the defense;
  2. Adequate understanding of the prosecution’s case;
  3. Rebut the prosecution’s case or provide evidence to establish any defense;
  4. Investigate the client’s competence to proceed, mental state at the time of the offense, or capacity to make a knowing and intelligent waiver of constitutional rights; and
  5. Mitigate any punishment that may be assessed after a verdict or plea of guilty to the alleged offense.”
36

The test for effectiveness is the thoroughness of counsel’s investigation. “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable…” 37 If an expert is consulted, and not used, or a theory investigated and not pursued, that is not ineffective. It’s when we don’t look or we don’t ask that our representation falls short.

 Practical Applications

With the boundaries of Ake better defined, where does the rubber meet the road? How do we get the expert assistance we need to defend our clients? What if my client can pay me, but cannot afford to hire the expert we need? What can I do when the Judge says “no”?

 The Motion

There is no specific format that any motion must be in. There are however some central points to include in your motion, as well as times where requests for assistance have failed because these things were not there.

 Ex Parte

The first thing to note is that your motion for assistance should be ex parte. The foundation for this application comes from Ake itself. 38 Texas courts, following the due process principles that Ake used reached the same conclusion. 39

If, however the State wants to stick its nose in your request for assistance do not limit your argument for the ex parte aspect of your motion just to due process analysis. An attorney’s ability to retain an expert without the State’s input or even knowledge triggers equal protection, effective assistance of counsel, and due course constitutional arguments as well.

 Statement of Indigence

The central issues in Ake are that you need some expert assistance, and your client cannot afford it. Your motion must include some showing that your client is indigent and the reasons why you are asking the court to pay, i.e. why is the expert necessary.

Standards to determine indigence are found in the Texas Code of Criminal Procedure section 26.04(m). In determining indigence a court may consider: a defendant’s income; sources of income; assets; property owned; outstanding obligations; necessary expenses; number and ages of dependents; and spousal income that is available to the defendant. 40  The code specifically excludes a defendant’s ability to make bond, except that it reflects on their financial circumstances. 41

Additionally, Texas courts have held that it is the financial condition of the client, “not his parents or other relatives” that is relevant. 42 Indigence cannot be denied just because a defendant’s counsel is retained. 43  The question of indigence is at the time of the application, not the arrest or even based on previous findings of indigence. 44 Your motion does not have to lay out all of the arguments for indigence, but it must at least make the suggestion.

Centrality, Importance, and Complexity of the Issue to the Case

Just because you can get an expert does not mean that you will get an expert. “The state does not need to ‘purchase for the indigent defendant all the assistance that his wealthier counterpart might buy…” 45  “The burden is on the defendant to provide concrete reasons for why the expert should be appointed.” 46

In Ehrke, an indigent defendant wanted an expert appointed to retest the methamphetamines he was charged with. The Court of Criminal Appeals held that the application was appropriately denied because his motion failed to make a preliminary showing of significance, or why there was any reason to doubt the first analysis. 47 The court noted that motions which are denied tend to lack support for the request, such as affidavits or other evidence in support of the defensive theory, explanation of the defensive theory, or how an expert will help establish that theory. 48

This doesn’t mean not to request the help to challenge what has been accepted as established expert or scientific evidence. Eyewitness ID, bite mark evidence, arson investigation, and even finger print analysis have been called into question and even debunked. Just make sure to give the court the reason why you need the help.

State all of your legal grounds

If you want to make your appellate counsel happy remember this one phrase: if you haven’t raised it, you’ve waived it.

Appellate courts have no latitude to reverse a trial court’s decision on new theories of law not previously presented to the trial court for its consideration. 49 This means too that if you’re only ever making a due process argument your appellate counsel will never be able to argue your equal protection, right to counsel, due course of law, confrontation clause and due course of law arguments on appeal. An objection stating one legal theory at trial cannot be used to support a different legal theory on appeal. 50

Some judges may grant your Ake motion without any real analysis or argument. Some may fight you tooth and nail to open the purse strings and you’re going to need to develop your record with affidavits and potentially even testimony to show what you need and why. At the very least, your motion should have in it every conceivable constitutional ground as a foundation for your request for assistance. Ake was decided on due process, but it is not the only leg the argument has to stand on.

 What can you do when the Judge says “No”?

You’ve filed your motion and argued ex parte. You’ve shown a need and the centrality to your defensive theory, and supplemented with affidavits. You’ve urged and re-urged for your client and every time you hear “Denied counsel.” Or even better the judge gives you $250 for the DNA analysis central to your defense. Thanks…

What do you do? First you come to a hard realization: there is nothing we can do to make a judge do the right thing. They are not the judge because they are always right, they are always right because they are the judge… until they get overturned on appeal.

Most of the practical tips for what to do when you’re told “no” have already been addressed above. File your motion. Supplement and make your record. Make sure you’ve given your appellate counsel everything they need to develop a great argument on appeal if it’s needed. But also do all you can do. In Ex parte Briggs, discussed above, the Court of Criminal Appeals points out that if Ms. Briggs’ attorney had been denied the expert assistance he never sought he should have subpoenaed every doctor that ever made a note on the child’s health, introduce the medical records, and elicit their expert testimony. 51 If you’re denied the tools you need, use the tools you have.

Fighting the good fight does not hurt your client on appeal. In De Freece, the Court of Appeals attempted to explain away any harm of denying an expert because of defense counsel’s “admirable” cross-examination of the state’s psychological witness that succeeded in impeaching her without the benefit of expert assistance. 52 In response, the Court of Criminal Appeals pointed out that it “does not mean that he could not have done an even more effective job with the aid of an expert…” 53

That is the point; to do a better job for our clients. Before 1984 our scales of justice had a notable tip. Indigent Defendant’s had no right to the very basic of resources for their defense. Unless they were independently wealthy they didn’t have the vast resources which are available to the State.  Often those with significant resources got a better shake than those without. It goes without saying that the State will almost always possess significantly more resources than the accused. Ake v. Oklahoma put a thumb on that scale to help balance out the scales of justice. It’s up to you to use the tools that the Supreme Court has now provided.

Rethinking Article 38.23(a) Jury Instructions

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

Tex. Code Crim. Proc. Ann. art. 38.23(a)

Defense counsel have struggled with the question of how a jury views an Article 38.23(a) jury instruction. Will the jury  be able to provide the necessary system of checks and balances on a denial by a trial judge of a motion to suppress? Will the jury use their life experiences, including their history of encounters with law enforcement, while considering a 38.23(a) jury instruction? The frustrating reality is, we rarely hear of a jury agreeing with a 38.23(a) instruction. With juries rarely acting favorably on 38.23(a) instructions, the frequency of requests for such instructions tends to diminish over time.

The case law regarding obtaining these types of jury instructions is not exactly friendly toward defense counsel. In Serrano v. State, 464 S.W.3d 1 (Tex. App. – Houston [1st Dist.] 2015, pet. ref’d), the officer claimed the defendant was speeding, conducted a traffic stop, claimed he smelled the odor of alcohol from the car, and suspected the defendant was intoxicated given the defendant’s bloodshot eyes and slurred speech. At the police station, the officer met with the breath test operator (BTO). The officer agreed with defense counsel that the BTO first came in contact with the defendant when they entered the intoxilyzer room where breath testing is conducted. In the intoxilyzer room, the BTO turned on a video recording device, read the defendant the statutory warning, and requested a breath sample. The video recorded for approximately six minutes before the BTO turned it off to conduct the breath test. The officer testified that there was no time lapse from when the video ended until the time the defendant provided his breath sample. The BTO testified that the BTO “has to make sure that the suspect is watched over for 15 minutes” before taking a breath test. The defense claimed the 15-minute period was not met so the breath test was inadmissible. The trial judge admitted the breath test into evidence, and the defense requested a 38.23(a) instruction which the trial judge denied. The defense claimed it raised the factual issue of whether the BTO waited 15 minutes before taking the breath sample. The court of appeals held that the defendant “failed to raise a fact issue about whether [the BTO] complied with Texas Administrative Code section 19.4(c)(1) and that Serrano therefore was not entitled to the submission of an article 38.23 instruction.”

In Villalobos v. State, 550 S.W.3d 364 (Tex. App. – Houston [14th Dist.] 2018, pet. ref’d), the court of appeals found that the trial judge reasonably concluded that the defendant was temporarily detained for a DWI investigation, was not in custody, Miranda did not apply, and the area where the defendant was found was a suspicious place. The defendant requested a 38.23(a) instruction on the issue of “suspicious place” which was denied by the trial judge. The court of appeals found no authority for the claim that a defendant is entitled to a jury question regarding the legality of an arrest based on whether the defendant was found in a suspicious place. The court of appeals held that Article 38.23 applies only to illegally obtained evidence and does not address the legality of warrantless arrests.

In the recent published case of Sanchez v. State, No. 04-18-00302-CR (Tex. App. – San Antonio, April 17, 2019), an officer saw a defendant allegedly commit two distinct traffic violations: (1) failure to drive on the right side of the road in violation of Tex. Transp. Code Ann. § 545.051(a)(2); and (2) failure to signal a lane change in violation of Tex. Transp. Code Ann. § 545.104(a). Defense counsel requested a 38.23(a) instruction on these two issues which was denied by the trial judge. In affirming, the court of appeals began by stating Article 38.23(a) provides that illegally obtained evidence is inadmissible. The court of appeals stated that a 38.23(a) jury instruction is limited to disputed issues of fact material to a defendant’s claim that a constitutional or statutory violation renders certain evidence inadmissible. Three requirements must be met before a defendant is entitled to a 38.23(a) instruction: (1) evidence before the jury must raise an issue of fact; (2) evidence on that issue of fact must be affirmatively contested; and (3) that contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. Merely raising the contested factual issue during cross-examination is insufficient to create a factual dispute warranting a 38.23(a) instruction. Defense counsel must dispute the contested factual issue, otherwise the legality of the conduct is determined by the trial judge alone, as a question of law. Defense counsel must further dispute all other facts which are sufficient to support the lawfulness of the challenged conduct. Absent such contesting of all factual issues by defense counsel, “the disputed fact issue is not submitted to the jury because it is not material to the ultimate admissibility of the evidence.” The court of appeals held that defense counsel failed to produce any evidence supporting an issue of fact that was affirmatively contested regarding whether the defendant turned left without signaling. Without such evidence, the defendant was not entitled to a 38.23(a) instruction.

In the recent published case of Olsen v. State, No. 01-18-00281-CR (Tex. App. – Houston [1st Dist.], April 14, 2020, no pet. h.), the defendant was convicted of felony DWI with a child passenger. The defendant requested a 38.23(a) instruction which was denied by the trial judge. The court of appeals affirmed and concluded that the defense did not contest the fact that the defendant allegedly exhibited clues on the SFST’s that were consistent with intoxication. The court of appeals stated that the defendant’s results on the HGN, WAT, and OLS were consistent with intoxication. The court of appeals noted that the officer’s subjective perception of the defendant’s physical and mental faculties was not a fact supporting probable cause, but the defendant’s performance on the SFST’s was a material fact supporting probable cause for the defendant’s arrest. The defense, however, did not contest this at trial. Because the defendant “did not challenge the administration of any of the field sobriety tests or her performance on those tests, particularly the HGN, she failed to contest all facts material to the probable-cause determination.” The court of appeals then concluded that because the defendant “failed to contest all facts material to the lawfulness of her arrest in this case, we conclude that [the defendant] has not raised a fact issue essential to the determination of probable cause. Therefore, the trial court did not err by denying [the defendant’s] request to submit an Article 38.23 instruction to the jury.”

If you plan on seeking a 38.23(a) instruction in your case, be sure to adhere to the rationale of the foregoing case law, such that you are able to convince the trial judge to give you a 38.23(a) instruction. Additionally, during voir dire be sure to address 38.23(a) instructions with the venire panel. If argue and follow the rationale of the above case law and properly dispute the contested factual issue and obtain a 38.23(a) instruction, will the jury be sympathetic to your argument? You should voir dire the panel about their thoughts and feelings on your contested factual issue in general, before you decide which panel members would be acceptable jurors for your case. We all know you cannot talk about the facts of your case during voir dire and that you cannot commit a potential juror. Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001). You may, however, inquire into the venire member’s philosophical thoughts about the criminal justice system. Davis v. State, 349 S.W.3d 517 (Tex. Crim. App. 2011). Also, you may voir dire on the different standards of proof. Contreras v. State, 440 S.W.3d 85 (Tex. App. – Waco 2012, pet. dism’d). These are two powerful tools of inquiry, which can help you better determine which potential jurors may be receptive to your contested factual issue.

During the current period of acute awareness of social inequality, potential jurors should be open to express their views regarding such key issues as reasonable suspicion to detain a person and probable cause to arrest a person. We know that these standards of proof are covered during voir dire to help distinguish between the highest standard of beyond a reasonable doubt with the lesser known standards of proof. A potential juror with certain views on these issues may be, depending on the issues in your case, an excellent juror on the particular contested factual issue, in your case.

A reading of the 2020 article “The Supreme Court Built America’s Broken Policing System And It’s Working Just As Intended” by Paul Blumenthal in Huffpost provides particularly good thoughts on these issues for use by defense counsel during voir dire. As of July 26, 2020, this article may be found at https://www.huffpost.com/entry/police-george-floyd-supreme-court_n_5f175371c5b6cac5b7330b29?ncid=APPLENEWS00001. Mr. Blumenthal reminds us that Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), involved two Black men repeatedly looking into a store window during the daytime and an officer finding that suspicious but the officer was unable to articulate why he found that suspicious. The two Black men refused to provide their names to the officer which further aroused the officer’s suspicion, so the officer grabbed the men, pushed them against a wall, and searched their bodies and pockets. This case involved the highly contentious stop-and-frisk of suspicious persons (mostly minorities) by police based upon reasonable suspicion and how stop-and-frisk is condoned by the courts. Mr. Blumenthal reminds us to hear again the prophetic warnings by the lone Terry dissenter, Justice William Douglas:

We hold today that the police have greater authority to make a “seizure” and conduct a “search” than a judge has to authorize such action . . . To give the police greater power than a magistrate is to take a long step down the totalitarian path . . . Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.

Terry v. Ohio, supra (Douglas, J., dissenting).

It has always been extremely difficult to find venire members who care about any of these issues,  let alone someone on the trial or appellate bench who would voice the warnings voiced by Justice Douglas in Terry. Today, with the heightened concerns regarding  social inequality, and specifically that of racial inequality, raise the question of what would your venire panel think, when asked about how much evidence an officer needs, before that officer could grab two Black men while they were repeatedly looking into a store window during the daytime, shove them against a wall, and search them? What should we brothers and sisters of the criminal defense bar think about this situation? I suggest that these issues should cause us to rethink Article 38.23(a) jury instructions and how we attempt to ensure that the people who are sworn in as jurors in our cases are best suited to be open to consider the contested factual issues which are present and argued. These issues should also cause us to rethink how our profession and the criminal justice system is viewed by venire and by the public at large. Good luck on your cases.

Cold Texting: The New Wave of Barratry

Recently, Harris County and other counties around that state have increased Personal Recognizance bonds. This bond paperwork then becomes public record. In this paperwork, people are requested to list their cell phone numbers, and some marketing companies and lawyers have started using this information to solicit new clients via text messages.

Rapidly evolving technology coupled with aggressive marketing tactics have created a new minefield for the uninformed lawyer. It’s been well settled that attorneys are not allowed to “cold call” potential new clients, whether it be for personal injury actions, criminal cases, or other legal work.  Often referred to as “ambulance chasing,” which has been rampant in the personal injury world for years, we are faced with a new similar threat in the criminal world. Welcome to the world of cold calling or cold texting clients on their cell based off public information received from the district clerk or bond documents. 

Unsolicited Text Messages Can Be Illegal

Texas Penal Code § 38.12(a) makes it a third-degree felony “if, with the intent to obtain an economic benefit the person…solicits employment, either in person or by telephone, for himself or another.” It is also a third-degree felony if a person “knowingly finances” or “invests funds the person believes are intended to further the commission” of act of barratry. Tex. Pen. Code § 38.12(b)(1-2). The Penal Code further prohibits a lawyer from knowingly accepting “employment within the scope of the person’s license … that results from the solicitation of employment in violation of [the barratry statute].” Tex. Pen. Code § 38.12(b)(3).1

A person convicted of barratry faces severe penalties from the State Bar because a “[f]inal conviction of felony barratry is a serious crime for all purposes and acts, specifically including the State Bar Rules and the Texas Rules of Disciplinary Procedure.” Tex. Pen. Code § 38.12(i). 

Depending on the facts surrounding the particular situation, a creative and aggressive prosecutor could even try to throw in a Money Laundering charge (Tex. Pen. Code § 34.01) for the amount of the fee that the client paid the lawyer who committed barratry.

The Texas Disciplinary Rules of Professional Conduct Frown Upon Unsolicited Text Messages

The Texas Disciplinary Rules of Professional Conduct recognize that “[i]n many situations, in-person, telephone, or other prohibited electronic solicitations by lawyers involve well-known opportunities for abuse of prospective clients.” Tex. Disc. R. of Prof. Cond. 7.03, com. 1. The “principal concerns presented by such contacts are that they can overbear the prospective client’s will, lead to hasty and ill-advised decisions concerning choice of counsel, and be very difficult to police.” Id.

Texas Disciplinary Rule of Professional Conduct 7.03(a) says that a “lawyer shall not by in-person contact, or by regulated telephone contact or other electronic contact…seek professional employment concerning a matter arising out of a particular occurrence or event…from a prospective client or nonclient who has not sought the lawyer’s advice regarding employment…” 

This same rule defines “regulated telephone contact” as “any electronic communication initiated by a lawyer or by any person acting on behalf of the lawyer…that will result in the person contacted communicating in a live, interactive manner with any other person by telephone or other electronic means.” Tex. Disc. R. of Prof. Cond. 7.03(f). Clearly, text messages fall under this definition.

Follow State Bar Rules for Advertisements

From the outset, when in doubt, follow the requirements of the State Bar of Texas Advertising Review Committee.  Submit your advertisement or plan of attack to the Bar and ask for permission.  Note: the Bar will never give a lawyer clearance over the phone. All advertisements must be submitted in writing, and if approved, will be approved by letter with a green stamp on it. Failure to have this written approval subjects the lawyer to defending their marketing tactic before the Bar. Rule of thumb if you have a “clever” new marketing idea: get it formally approved. Texas Disciplinary Rule of Professional Conduct 7.07 lays out the requirements for submitting your marketing idea to the State Bar for approval.

The State Bar has set very specific rules regarding unsolicited direct mail outs. See Tex. Disc. R. of Prof. Cond. 7.05. The font, color, and material must all be pre-approved by the State Bar. This is widely known and has been the case for over 20 years. However, with evolving technology, one could hypothetically reach potential clients faster than mail, by text, or direct phone call. The same rule that governs mail outs also governs electronic or digital solicitations. Id.

We are aware of only a single lawyer who received an approval letter from the State Bar of Texas Advertising Review Committee for the use of sending a text message to potential clients. It is important to note, however, that this opinion expressly stated that “[i]t does not address any unauthorized practice of law or ethics issues that may be present, which are beyond the scope of an advertising opinion.” Therefore, even if you get an approval from the State Bar of Texas Advertising Review Committee, you still face potential ethics issues, as discussed above, and liability issues, which are discussed in more detail below.

It should also be noted that the text message that received this approval stated “*ADVERTISEMENT*” in all capital letters at the top of the message and ended with “PLS DO NOT REPLY TO THIS MESSAGE. REPLIES ARE NOT RECEIVED NOR [sic] RETURNED.” Also, this text message only asks the recipient to call the number listed if the recipient did not already have an attorney. The fact that this was an automated message that lacked the ability for the lawyer to directly start a conversation with the potential client could have been an important factor that distinguishes this kind of message from interactive direct texting.

Be Careful with Lawyer Referral Services

Both the Texas Penal Code and the Texas Disciplinary Rules of Professional Conduct make it clear that a lawyer can get in trouble if that lawyer knowingly uses a lawyer referral service that breaks the rules. These services are regulated by the Texas Occupations Code, which defines a “lawyer referral service” as “a person or the service provided by the person that refers potential clients to lawyers regardless of whether the person uses the term ‘referral service’ to describe the service provided.” Tex. Occ. Code. § 952.003(1).

Many of the people operating lawyer referral services do not realize that a “person may not operate a lawyer referral service in this state unless the person holds a certificate issued” under the Occupations Code. Tex. Occ. Code § 952.101. Also, applicants for these certificates must be operated by a governmental entity, or a nonprofit entity. Tex. Occ. Code § 952.102. 

So, be weary when your email box gets flooded with various lawyer referral services trying to get you to pay them for client referrals. Many of these businesses are not operating legally. If your marketing company directly texts potential clients on your behalf, you are the one who faces the legal consequences.

Unsolicited Text Messages Seeking Clients is Illegal and Subjects the Sender to Civil Liability

There are several civil penalties that exist for directly soliciting clients via text message. Tex. Gov’t Code § 82.0651, for example, creates an aggressive civil penalty for barratry where the offending party must forfeit their attorney’s fees, pay a $10,000 fine, and pay the attorney’s fees of the party bringing an action.

Additionally, the Telephone Consumer protection Agency (TCPA) and Federal Communications Commission (FCC) regulations make it illegal for a company to send a text message unless the person receiving the text message gave consent to receive it, or if the message was sent for emergency purposes. While we all agree that getting new business is important, it falls well short of being an “emergency” under these regulations.

The bottom line is that any lawyer who directly or through a third party sends unsolicited text messages to people charged with a crime to solicit that person’s business risks significant criminal and civil liability. Lawyers should not cold call any number. The first contact, whether directly or through a legitimate lawyer referral service, needs to come from the potential client.

Duty to Report

As attorneys we have an affirmative ethical duty to report barratry. Tex. Disc. R. of Prof. Cond. 8.03.

However, if a text message mimics the requirements established in the Rules, would it be ethical? As of the date of this writing, we have found no ethics opinion or court opinion that authorizes such conduct. Any lawyer who wishes to engage in this unscrupulous tactic should first seek State Bar Advertising Review Committee approval, but even that will not necessarily shield you from ethical consequences or civil or criminal liability. 

While no lawyer wishes to “snitch” on a fellow lawyer, this affects us all and cheapens our profession. If we do not take action against this conduct, then we risk having a criminal bar that goes the way of the personal injury bar – where significant numbers of cases are illegally “run” by the criminal law version of the ambulance chaser in a cheap suit. This illegal and unethical conduct makes all of us look bad in a world where people already have a hard time trusting lawyers. 

Some might suggest that an unsolicited text message is no different from mailouts, which have been approved and have been happening for years. Unsolicited texts messages are distinguished from mailouts for several reasons:

  1. Direct mailouts don’t cost the client anything. The United States Postal Service is a free service for receivers unlike cell phone or even landlines. Many subscribers must pay for call minutes or data used for texting. Many calls or texts are not free to a potential new client. Some clients work extremely hard just to pay to keep their phone on; imagine if that client was then inundated with hundreds of unsolicited calls or texts from lawyers. The fees would become an extreme hardship and they should not have to pay them just because their information was placed on a bond or cross referenced via public data.
  2. As stated above, lawyer marketing must be submitted to the State Bar for approval. If the marketing is approved, the State Bar will then send you a letter with its verification. This is a crucial step that must be taken by any lawyer who wishes to tread in these ethically murky waters.
  3. A person’s cell phone is a greater invasion of privacy than a land line. In the past, municipalities provided phone books which gave specific addresses or names for landline numbers. Cell phone numbers are not freely given for a good reason. Cell phones are also no longer publicly attached to an address. Spam calling, and telemarketing are all allowed to be blocked for the protection of privacy. Attorneys should not be allowed to circumvent this privacy in the hopes of gaining a new client.
  4. There is a delay with mailouts that provides a “cooling off” period for the potential client to avoid making a “hasty and ill-advised decision.” See Tex. Disc. R. of Prof. Cond. 7.03, comm. 1. An unsolicited text message can reach a prospective client literally the minute after they get out of jail when that client is particularly vulnerable.
  5. Citizens are used to junk mail. While it is not unusual to get many pieces of junk mail in your mailbox, it is not as common to get direct calls or text messages. These texts or calls are personal and come with more physical, psychological, and legal pressure than direct mail outs. Calling or texting prospective clients the moment they are released from jail on potentially the most life-changing day of their lives creates alarmism that could cause that person to make rash decisions.  Indeed, the Texas Penal Code creates a 30 day “no solicitation” period for personal injury or wrongful death cases. See Tex. Penal Code § 38.12(d)(2)(A). Shouldn’t people accused of crimes, with all the safeguards afforded by the constitution, be entitled to the same grace period?

No one likes to snitch on friends. However, the practice of unsolicited text messaging is unethical and illegal unless specifically allowed by the State Bar. This article is not intended to encourage grievances, prosecution, or civil lawsuits; rather, it is intended to educate those attorneys who think they or the company they hired found a cutting age way to market for new clients. Technology may be evolving, but the basics of law remain the same. Remember, pigs get fat, hogs get slaughtered. If you have a new way to market, get it approved. The State Bar will not tell your competitors, but this approval will vindicate you when your competitors take offense.

Law in the Time of Coronavirus

This is the first installment in a planned series of personal stories from TCDLA members on how the coronavirus has affected their daily lives.

Editor’s note: We are all in this pandemic together as humans and criminal defense lawyers, but we each have our own experiences both personally and professionally. It’s clear this pandemic isn’t going anywhere anytime soon, and we are all continuing to adapt to a new normal. Thank you to some of our members and Judge Birmingham for sharing your own experiences. Please continue to share with us.

Juan Aguirre
Houston

I miss “normal” life. I miss going to work at the courthouse and seeing my friends and colleagues. I miss interacting with them on a daily basis. The Criminal Justice Center (CJC) has long been ill-equipped to handle the large daily dockets of bond and jail defendants—there is no way to operate a “normal” docket given the Centers for Disease Control’s social distancing regulations. On average, there are 70-80 bond cases and 15-20 jail cases every day for each of the 16 misdemeanor courts; and 40-50 bond cases and 15-20 jail cases every day for each of the 22 felony courts. Bail reform and compassionate judges and prosecutors have helped to relieve some of the jail population, but the tight living conditions and poor hygiene of jail has made it a hotbed for the coronavirus to spread.

They have not released new numbers in over a week, but at last count, almost 800 inmates and almost 300 jail staff had tested positive for the coronavirus. I am working as indigent counsel for one of the misdemeanor courts and take felony appointed cases as well. In misdemeanor court, most of the detained are because they have some kind of hold, whether it’s a felony, parole, immigration, or some other order.

I like to prepare in advance of having to physically go to the CJC—I will email or call the prosecutor and court and asked to be attached to a case so that I can look at the charge, allegations, bond, hold, available discovery, and see what needs to be addressed. A good number of judges will address this remotely via Zoom, emails, or phone calls. I will communicate with my clients via mail, phone, Zoom or secures. But sometimes I have to go down to the courthouse, so I mask up, glove up, take sanitizer, disinfectant wipes, and Lysol.

I don’t know when jury trials will resume because I really don’t know how many people will show up if sent a jury summons, knowing they will probably spend hours next to a number of strangers. So many people dodge jury service under normal conditions. This adds a huge wild card into the mix.

I miss going to mass with my family and friends. I know that churches have opened up with limited capacity; however, I don’t feel safe being around crowds of people. Some people may, but we don’t—just yet. Our family last went to mass on March 14, 2020, but we have participated in virtual mass every Sunday, some daily masses, even a number of Pope Francis masses from the Vatican. We have continued online contributions to our church. We also pray the Rosary every day. I have even started to read a book on the history of the apostles. I pray daily for good health and protection from the coronavirus for our family, friends, colleagues, first responders, and the inmates in jail.

I miss visiting with the in-laws. My wife’s family is big on getting together to celebrate birthdays, holidays, and just any regular occasion. My mother-in-law often cooks for all—she usually says next time someone else can cook, but she mostly wants to do the cooking. My mother-in-law quit her job and has helped to look after my son Mateo since the day he was born. She absolutely adores him and I know he adores her too. We have seen them three times since mid-March—in their backyard, keeping our distance. I know she wants to hug her only daughter and her grandson.

I miss going out to eat. My wife, Ivonne, and I both work long days, so we often pick up something or go eat at a restaurant. But we have saved a lot and have had a lot of homecooked meals and sit down to eat at the dinner table. Before, it was grabbing something on the way out the door in the morning or while watching TV in the evening. Now, we know what’s in our meals and even Mateo has taken on some cooking and baking.

I miss going to the movies. But I don’t miss paying high prices for tickets, snacks, and drinks. Now some of the new releases are being streamed online. Most are $19.99 or cheaper; and the popcorn, snacks, and drinks are cheaper at home. Plus, you get to pause the movie when you get up to go get more snacks or go to restroom.

I miss traveling. Those who know the Aguirres, even from just Facebook, know that we love to travel. If there was a cheap flight somewhere, we were right on that fare. Often people would say to me, “Can you take me with you? I’ll fit in your luggage!” or “Does Mateo need a nanny for this trip?” On average, we travelled five weeks per year. We have been blessed to have seen 21 of the 30 MLB stadiums; 34 of the 50 states; many places in Mexico; Cuba; and last year we were able to spend three weeks in Spain, Portugal, France, and England.

This March we were supposed to return to Rome with our son; but Italy was a hotbed for coronavirus. Right now, we are scheduled to go in August, but I really don’t see that happening. When we cancelled Rome, we booked Puerto Rico, but then the pandemic was declared and we cancelled that trip—at least United will keep our credit for future travel. We did take a brief trip to the Gulf Coast last week, but that was only for a few hours and we stayed away from people. Right now, I can’t see us getting on a plane with so many people, not knowing our exposure.

I miss going to Astros games with my family and friends. This year, we even splurged on getting season tickets, but coronavirus had other plans. However, I get to keep up with my friends via texts, phone calls, and Facebook memories. Plus, saving on not buying beer, food, and souvenirs at Minute Maid Park is an extra incentive. Sounds like we need to have a watch party with some of the Astros games that are available. Beer and snacks are cheaper at home too.

I see people out and about in normal routines, some with masks, some without. Some socially distance, others crowd together. As for me and my family, we will continue to work from home as much as we can; cook our meals at home; order curbside groceries; some takeout; “attend” mass online; pray the Rosary daily; watch movies online; and pray that doctors and scientists develop a vaccine/cure/treatment for the coronavirus. We will continue to wear masks and gloves in public and sanitize often.

Matthew Allen
San Antonio

I was content working endless hours each week to defend our clients and to uphold the Constitution. Looking at my calendar and seeing a different trial case every few days was the new normal. Running around the courthouse in the mornings, sometimes looking like I had no head, was my exercise routine. I heard about COVID-19 but wasn’t too concerned for my health or my business.

Then things got a little worse and I became obsessed with reading about the disease. I became part of the hysteria, wondering how 18 rolls of toilet paper was going to last us. How much toilet paper do we use? Why is everyone buying it? Do I need to buy more? I was still going into work and then my son’s daycare shut down. Suddenly I was “working” from home with a three-year-old coworker. I missed work and started worrying about where money would come from. My wife became the new breadwinner, which she was quick to point out (jokingly and lovingly, of course). I became worried about money, the health and well-being of our son (is watching Frozen six times a day bad for kids?), and we had recently found out that my wife was pregnant! My sleepless nights worrying about cases turned into sleepless nights for other reasons.

But then I thought back to those crazy days of working all day and how I wished I had more time to do other things. I had to take advantage of this free time that I may never get again: We started exercising as a family and found out my son is more in shape than me; we started cooking dinner together again; and we were spending more quality time together as a family. We were playing Hot Wheels together and Zingo (like Bingo but with objects). My dad would come over a few times a week to play catch in the backyard. My wife, my dad, and I had time to teach Max how to play baseball and run the bases. I was getting to do all those things that were being neglected the past few months or even years.

As things seem to start to get back to normal and these stressors turn back into our old stressors, I hope that we remember some of these new routines and incorporate them in our daily lives. I know that these times have been trying for many people, financially and emotionally, and I do not mean to say that I hope things stay the same. Many people have lost their lives and there is no greater tragedy. I only have my experience to speak from, and I know others have different thoughts. I know our clients, especially those incarcerated, have struggled and continue to struggle. I am saddened, yet inspired, by the persistence I see from defense attorneys. Even in a difficult situation, they have continued to fight for their clients and what is right. My dream is not for COVID-19 to continue to threaten lives and livelihoods or to stay at home for the rest of my life.

My dream is that we find a vaccine for COVID-19, the murder hornets go away, and everyone gets back to doing what they love to do. I know this dream probably isn’t a reality, but I’m a criminal defense attorney—we dream big and do everything we can to make it a reality. I hope all of you, your families, your friends, and your clients are safe during this trying time.

Hon. Brandon Birmingham
Dallas

The rules in place to help end the COVID-19 pandemic have had profound impacts on our lives. We’ve learned new phrases like “shelter-in-place” and “social distancing.” Businesses are closed, causing many to lose their jobs. Restaurants are fighting for survival selling take-out, and retail shops are drying up. While the extent of the exact damage is nearly impossible to predict, we are surrounded by constant reminders that our economy is in significant distress. 

It’s not just the necessities, either. There are the life experiences we’ll miss. We had to cancel my son’s 10th birthday party with his friends. High school seniors won’t be making lifelong memories at graduation or prom. If you’re like me, Sunday family dinners are now meals we share on FaceTime. 

I’ll say something now I never thought I’d say: Professional sports have been canceled, too. All of them. Looks like we’ll all miss seeing Luka lead the Mavs to the first of at least a dozen NBA titles.

In the meantime, we are taking some significant steps toward modernizing the aging infrastructure of the criminal justice system in Dallas County. You deserve to know what’s happening in your courthouses, so I write today to bring you up to speed on some of the changes we are working on in Dallas County and the legacy they will leave.

Hearings like plea bargains and bond reviews must now be accomplished remotely so that all necessary parties––the prosecutor, the defense, the judge, the court reporter, the clerk, and the citizen accused––can be present, be heard, and be safe. The solution? Video conferencing. Courts are using video platforms like Microsoft Teams or Zoom, and all parties are calling in. Incarcerated individuals are brought into the calls in one of two ways: through computers and cameras set up in certain areas within the jail or in some of the empty courtrooms. Courtrooms today consist of home offices, garages, kitchens, and dining room tables. We are also using Adobe Sign to validate and authenticate virtual signatures.

Our Constitution demands that proceedings in courtrooms like mine be accessible to the public. The problem is that our courthouse is not open. The solution? Programs like Teams and Zoom broadcast the proceedings on YouTube for anybody to view. You’ll find the YouTube channels for all courts at the Texas Judicial Branch homepage. They span the entire state. 

I am very hopeful that these solutions become permanent, outlasting this pandemic, for three reasons: systemic transparency, democratic accountability, and economic efficiency

I encourage you to peruse these courts’ YouTube channels and see for yourself how things are done across Texas. Would you like to see what’s happening in a divorce court in Houston? Watch an oral argument in an appeals court in Austin? Watch a trial in Palo Pinto County? By viewing these courts, you can get an idea for how the system actually operates on a daily basis in real-time, unfiltered. 

Perhaps you, the voter, would like to see how some of the people you elected in Dallas County, or your respective county, are doing in the job you gave them. Do they handle their business like you expect them to? Are they fulfilling their campaign promises? It’s all just a click away. 

And if they aren’t, hold them accountable in the ballot box. 

Finally, from an economic standpoint, the new systems are way too efficient and cost-effective to be temporary. Travel time to and from court takes time and money. Witnesses that might not have been otherwise available to spend all day away from work waiting on their turn to testify are now virtually available in a moment’s notice. Faraway friends, family, and supporters of loved ones involved in cases––whether the accused or the victim––can now be a part of the process. 

We’re still at the beginning, but remote hearings have great potential. We’ve come a long way since mid-March and a time when I’d never heard of Microsoft Teams, or ever considered livestreaming my court. Though technology is changing the way we experience criminal cases, the logistical adaptations we’ve made in court leave us all better off than before. 

This article originally appeared in the May 8 editorial section of The Dallas Examiner.

Cliff Duke
Dallas

I occasionally leave Post-It notes for my family when I head out in the morning for work. The one still hanging on our cabinet today reads, “Who is ready for some spring break!” We were headed to the lake that night for a week off work and some recharging. Due to COVID-19, that was the last time I left early in the morning to head into the courthouse. That was the middle of March, almost four months ago. 

I’ve been lucky. The Dallas County Public Defender’s Office has the infrastructure and leadership that allowed us to shift to remote representation almost immediately. I work in a court with a progressive-thinking judge who started making the shift immediately, too. The district attorney’s office worked with me to PR Bond, or find alternate release options, for almost all of my clients to avoid the pandemic spread in the jail.

That’s not to say it was easy. I have been amazed finding out how many spinning wheels and cogs there are in our machine of criminal justice––substantially more than I recognized until they were all painfully brought to light. What was sad was how territorial and protective those wheels and cogs have been when they’re asked to do something even just a little different, let alone a little harder. That spring break at the lake I was looking forward to instead ended up being long hours figuring out new processes and converting documents to fillable PDFs. Remote work has ended up being a lot of hard work. And more often than not, it’s to find a workaround due to someone refusing to adapt “because we’ve always done it this way.”

Demanding adaptation is going to need to be part of representation in this brave new world. Our machine of justice needs to adapt and join the 21st Century. It’s going to be our fight to demand concessions and procedures that work for our clients. There is probably a lot of debate on what the right way to do things looks like. What I do know is that demanding our citizens accused to shoulder the complications is not acceptable. We must stay vigilant so that the core rights we are all entitled to aren’t eroded and should probably be expanded in a time of change. 

And that means we cannot be one of those sticky cogs. Don’t get me wrong, I miss the court and the people that we work with. I miss the ease of being able to go from court to clerk without 16 emails to get things done. Remote hearings and procedures are not right for every situation, but they can be better in a lot of situations, too. I hear as many defense attorneys not wanting to embrace change as I hear clerks, probation officers, judges, and DAs complaining about some change. Like it or not, change is here.

So yes, it can be harder. Yes, it’s going to take some experimentation. But I’m excited about new options for our clients that may alleviate the burdens our criminal proceedings frequently put on them. Not taking days off every two weeks to pass a case means a lot to an hourly employee. Having judges up to speed with remote technology means more of my character witnesses may be able to be there. And until we can get our act together and get this pandemic under control, we need to protect our clients and protect each other by changing where we can. 

And I can always look forward to spring break next year.

Joseph Hoelscher
San Antonio

The COVID-19 pandemic and associated chaos has been a mixed bag for me. I like that when I run to the neighborhood HEB in my “comfy clothes,” I can wear a mask and avoid being recognized. I dislike that the rules keep changing, forcing me to constantly change plans. On the whole, the biggest impact COVID has had on me is reminding me of the human side of the law and lawyering in dealing with colleagues, clients, and my family.

Before COVID, I used to see colleagues in court. There were plenty of chances to chitchat and catch up. Now, I know more about what their homes and offices look like from Zoom, but less about how they’re doing. I feel disconnected from folks I’ve known for years. I feel that disconnection even from the folks in my firm because we’re trying to work from home or socially distance. At first, I didn’t realize how that was affecting me. Over time, I realized that I was losing track of people I care about. Recently, I’ve been making an effort to reach out to friends just to check in. COVID has been a big reminder not to take people and relationships for granted.

In my office, before COVID, we worked hard to maintain good communication with our clients through office and jail visits. Now, communication is a struggle. Discovery review, in particular, is harder. We can’t get into many jails and detention facilities to share electronic discovery in a 39.14 compliant manner. We can’t have clients come to the office to sit down for hours going over discovery in complex criminal or family-law cases. As communication has become more difficult, the need has become greater, as we have to help clients use new technologies, such as Zoom. The normal stress of the legal process is compounded by the fact that our clients are isolated from their social-support systems and relying on us even more for emotional support. I feel, every day, my clients’ need for answers while feeling frustrated at our reduced ability to meet that need during this time of uncertainty. But I’ve also been surprised by how much concern our clients show for our wellbeing, too.

My family feels all the same strain that I feel. My wife, Melissa, and my kids have had their lives disrupted as much as anyone else. I feel like I’m in a ‘50s sitcom every time I come home and hear shouts of “Daddy’s home!” while getting swarmed for hugs. Unlike the ‘50s TV idyllic view of family, I have to tell my kids to hold off until I can wash my hands. Nevertheless, we’re spending more time together and finding ways to enjoy that time. Never before have my kids begged to come to my office on the weekends, just to get out of the house. As a result, I have homemade cards and drawings everywhere in my office, reminding me constantly why we, as criminal defense lawyers, fight for a better world.

COVID hasn’t been a happy time, but it has reminded me of the importance and strength of the three most important communities in my life: my colleagues, my clients, and my family. For that, I am immensely grateful. Their support makes it a lot easier to throw on a coat and tie over my pajama pants and go to court.

The Beginning of Lawyer-Assistance Programs

“My name’s Rick and I’m an alcoholic.” These words were the key to my first involvement with the Texas Lawyers Assistance Program, TLAP. By the time I said them at a TLAP function, I had become used to doing so at Alcoholics Anonymous meetings in and around Lubbock. I had a lawyer friend, though, who knew there were a group of lawyers in Texas who did what they could to support one another’s recovery and to help colleagues deal with the stress of the practice of law in pro-social ways in order to avoid the need for a program of recovery. Mike B. told me about a convention in Austin that combined training for TLAP volunteers, of which I was unaware, and meetings for Lawyers Concerned for Lawyers, a group very loosely related to TLAP but not part of the State Bar, who were in recovery from mental illnesses, alcoholism, addiction to substances, and suicidal ideation.

Those of you who know me know I felt right at home immediately! As it turned out, Mike wasn’t able to make it to the convention, so I was on my own to a greater or lesser degree. I met people there who had histories like mine and who were living lives happy, joyous and free, even in the practice of law. In fact, even if they weren’t practicing law right then due to grievance issues. I met people who had been disbarred and earned their way back into the profession, people who had voluntarily left the profession but kept active in the recovery of other lawyers, and those who weren’t sure whether or where they might fit in.

At the first convention, there were yoga classes in the morning, AA-type meetings of LCL members throughout the day, and speaker meetings a couple times a day. There was also training designed to help us help our brothers and sisters who struggled with the issues that got us there. This was the first time I realized what Quinn Bracket, a truly venerable Lubbock lawyer, had done for me a little over a year before. He knew what I needed to do and who I needed to know in order to survive the death spiral I had put my law practice into. He had a patience and depth of understanding that I had only seen in a counselor whom I had paid for years to listen to me lie to her about my issues. Quinn was a stabilizing force in Lubbock for many lawyers who were trying to lose their way.

The Texas Lawyers’ Assistance Program (TLAP) has been an active program of the State Bar since 1989. Chris Ritter is the third director to head up the program. What follows is Chris’ compilation of the history of TLAP, edited for length.

Early Years

A flurry of articles and research in the late 1980s and early 1990s documented the secret that some already knew: the high incidence of substance abuse and mental health disorders in the legal profession. While generally accepted figures at that time estimated that 10 to 11 percent of the general population in this country suffered from the disease of substance dependence, surveys in Arizona, Washington, and Maryland indicated that the illness affected 15 to 18 percent of lawyers. A study by the Johns Hopkins University School of Medicine in 1990 found that, of all the professions surveyed, lawyers had the highest rate of clinical depression. A 1992 study by the National Institute for Occupational Safety and Health indicated that male lawyers in the United States were twice as likely to commit suicide than men in the general population. Unfortunately, many involved with lawyer assistance programs across the country anecdotally echoed that fact: suicide among lawyers was all too common.

Establishment of Lawyer Assistance Programs

Lawyer assistance programs in some form or another have been around for a long time. Many states report that independent, grassroots lawyers-concerned-for-lawyers groups have been  operating discretely and effectively for 20 years. Grounded in the principles of service work and anonymity from Alcoholics Anonymous and other 12-step programs, these programs fashioned responses to the crisis of lawyers and colleagues in trouble with alcohol and drugs. TLAP credits the lawyer-support groups in Dallas and Houston as two of the longest-running grassroots organizations in the state. Both groups report a history of meetings dating back to the early 1980s. No doubt there were other such support groups in existence throughout the state.

In 1989, as part of the national movement toward instituting employee- and peer-assistance programs, the State Bar of Texas institutionalized outreach to lawyers by creating and funding TLAP. Mindful that the goal of the organization was to provide a safe and confidential place for lawyers to seek help for addiction and other disorders, TLAP was authorized as the approved peer-assistance program for lawyers in Texas; as such, it benefits from the statutory confidentiality and immunity protections afforded peer-assistance programs under the Texas Health and Safety Code. Texas was one of a handful of similar formal programs in the nation. In 1988, when the American Bar Association (ABA) created the Commission on Impaired Attorneys (it was renamed the Commission on Lawyer Assistance Programs in 1996), there were only four states that had formal statewide lawyer-assistance programs. Today, all 50 states, the Canadian provinces, and Great Britain have comprehensive assistance programs, most with paid directors and staff.

At their core, lawyer-assistance programs seek to provide outreach, support, peer assistance, and confidentiality for communications and information relating to actions taken by staff, volunteers, and participating lawyers, judges, and law students. Separation from the discipline authority for lawyers was identified as an early prerequisite for many lawyer-assistance programs and the Texas program was no exception. Agreements between the Texas disciplinary system and TLAP were hammered out long ago: TLAP staff and volunteers remain independent of the disciplinary process and do not advocate for or against a lawyer who finds him or herself in that system. The discipline system, in turn, respects and appreciates the confidentiality of all communications and actions of TLAP.

Attorney-Discipline Issues

The issue of alcoholism, drug addiction, and mental health disorders within the legal profession gets the most attention when juxtaposed against and within the disciplinary system. In 1987, as lawyer peer-assistance programs were being put in place in different jurisdictions across the United States, controversy raged over whether alcoholism was a disease or simply a character flaw. In the midst of these arguments came a U.S. Court of Appeals for the District of Columbia decision, In re Kersey, 520 A.2d 321 (1987), which stated that a lawyer’s alcoholism could be considered in mitigation for disciplinary offenses. This was a watershed moment for all concerned as it was estimated at the time that a majority of attorney-discipline cases involved alcoholism or substance dependency. Balancing the system’s need to protect the public, deter future unethical conduct, and maintain the integrity of the profession with the need to acknowledge and address the underlying causes of the conduct became the fulcrum on which the decisions of courts and disciplinary systems would rest. Eventually, an acknowledgment of the scope and the validity of the issues required that all jurisdictions take some measure to help with the identification, treatment, and disposition of cases involving impairment.

The disciplinary system in Texas was particularly responsive to developments in the understanding of alcoholism and the addiction process and the fact that they comprised illnesses and not moral failings. In 1992, the State Bar of Texas provided that an attorney’s demonstration of his or her good-faith recovery from these disorders may be considered as a mitigating factor when imposing sanctions for disciplinary adjudications. The disciplinary system in Texas also established a unique avenue for disposition of cases involving impairment that rose to the level of a disability. Monitoring, diversion, and education became the watchwords for this time period and the development of the Texas Professionalism Enhancement Program and, more recently, the Client Attorney Assistance Program further demonstrate the state bar’s commitment to the human issues underlying the rules violations in disciplinary cases.

The Future of Lawyer-Assistance Programs

The nature of lawyer-assistance programs is changing. The 2002 ABA Commission on Lawyer Assistance Programs survey of lawyer-assistance programs indicates that a majority of  lawyer-assistance programs have moved to provide outreach services for lawyers with mental health issues as well as the traditional outreach to those dealing with alcohol, drugs, or other addictions.

Texas has been at the forefront of this challenge. Since the mid 1990s, TLAP has offered its services to lawyers, judges, and law students who are challenged by mental health and substance abuse disorders. TLAP statistics indicate that once TLAP advertised that its outreach included mental health issues, the number of these cases increased to a 50/50 split between substance abuse disorders and mental health concerns. Today, a lawyer with complex, poly-substance abuse and mental health disorders is more the norm than the exception. While the number of cases increases yearly, pure addiction cases and pure mental health cases make up a smaller portion of the TLAP caseload. The response remains the same: crisis assistance and counseling, education, peer assistance, intervention, referral, and outreach.

If the future holds anything, it holds the promise of continued success, collaboration, and innovation. Here are a few noteworthy developments:

  • The ABA has adopted a 2004 Model Lawyer Assistance Program that speaks to the issues of concern: addictions, mental health disorders, and quality-of-life issues.
  • More and more lawyer assistance programs are being asked to directly monitor lawyers or develop monitor programs for law firms, disciplinary systems, and boards of law examiners.
  • The State Bar of California has produced an innovative outreach system that, in the words of Deputy Trial Counsel for the State Bar of California Cydney Batchelor, “has produced astonishing changes in the lawyers’ professional and personal lives.”
  • In 2003, the ABA Standing Committee on Ethics and Professional Responsibility issued two ethics opinions regarding a lawyer’s duty to report the misconduct of another lawyer and in doing so recognized the assistance of lawyer-assistance programs throughout the United States.
  • The ABA National Legal Malpractice Conference has developed and presented a series of seminars related to law firms and impaired lawyers.

Until very recently, I attended the TLAP/LCL Convention every summer, only missing because of conflicting responsibilities. Until my last child moved out of the house, the kids accompanied me on the trip each year. It was a great way for me to celebrate recovery, share it and a trip with my children, and enjoy the friends I’d made among whom I trudge the road to happy destiny. Maybe the single most personally changing thing that ever happened to me at these celebrations was meeting and getting to know Kelly Pace at depth. He was committed to the cause of TLAP and LCL, serving on both the State Bar Committee and the LCL Board of Directors. His example of a lawyer with a busy trial practice and the associated stresses and strains who stays above the fray with an eye always open for the colleague who is in need challenges me and informs me today. Kelly was honored with the Ralph Mock Award, the highest award given by TLAP and LCL, signifying incredible service to recovering lawyers for significant periods of time, and I now have the honor of serving on the State Bar Committee for Lawyers Assistance and the Board of Directors for LCL. I hope to share with others what Kelly and many at TLAP and LCL have freely given me.

Lubbock’s LCL group hosts a hybrid meeting each Friday during lunch. Our fearless leader, Bob N., has arranged for us to use a state bar conference line to include call-ins with those of us who can meet in person at his office. It is a weekly home for eight to 12 practicing lawyers, law students, and lawyers working to earn their licenses back, who share their experiences, strength, and hope with one another. There are very real reasons to be proud of our state bar, its Lawyers Assistance Program, and the grassroots LCL groups around the state!

The Impact of Criminal (Mis)Behavior on Country Music

Before country music lost its soul and moved to the suburbs, there existed a sub-genre of country music consisting of “prison songs” based on a myriad of bad decisions primarily having to do with whiskey, drugs, and women. These songs convey the pathos, hopelessness, and what Merle Haggard has called “the mental Hell that is jail.” There is an unbreakable bond between criminal misbehavior and “real” country music.

Johnny Cash and Merle Haggard are the most well-known of prison song troubadours, but before Cash and Haggard there was Vernon Dalhart, who took his name from two towns in Texas. In 1925, he recorded one of the most enduring prison tracks, “The Prisoner’s Song.”

I’ll be carried to the new jail tomorrow
Leaving my poor darling all alone
With the cold prison bars all around me
And my head on a pillow of stone.1

Jimmie Rogers, the man many consider the father of country music, wrote his version of the traditional folk song “He’s in the Jailhouse Now” in 1928. A cautionary tale to a friend, the song was most famously covered by Webb Pierce in the 1950s.

I had a friend named Campbell
Who liked to drink, gamble and ramble,
Well I told him once or twice
To quit playing cards and shooting dice
He’s in the jailhouse now.2

Hank Williams, Sr., was the first superstar of country music. While a master of heartbroken misery, Williams recorded few or no prison songs except “A Picture from Life’s Other Side.”

Just a picture from life’s other side
Someone has fell by the way
A life has gone out with the tide
That might have been happy someday.3

Among the most enduring of prison songs is “The Long Black Veil,” with the most famous version sung by Corsicana native Lefty Frizzell. (Corsicana is also the birthplace of Billy Joe Shaver, who was successfully defended by Dick DeGuerin in an aggravated assault trial in Waco a few years back. “I’m A Wacko from Waco” is a song Billie Joe wrote about his Waco experience.)

Frizzell’s “Veil” has been covered by well over 100 artists and continues to be the leading exponent of the tearjerker ballad of a man betrayed by a faithless woman.

Now the judge said son, what is your alibi
If you were somewhere else, then you won’t have to die
But I said not a word, although it meant my life,
Cause I’d been laying in the arms of my best friend’s wife.
Now the scaffold is high and eternity near
She stood there in the crowd and shed not one tear
But some sometimes at night, when the cold wind blows
In a long black veil, she cries o’er my bones.4

No discussion of prison songs would be complete without inclusion of the real deal—the late, great Johnny Paycheck. He had an arrest record ranging from aggravated assault to murder and knew much more than the average rap star about spending time in prison. Paycheck died penniless in 2003, his headstone having been paid for by country music legend George Jones.

Paycheck weighs in with the haunting and hair-raising “Pardon Me, I’ve Got Someone to Kill.”

I know you’ll excuse me if I say goodnight
I’ve got a promise to fulfill
Thank you for listening to my troubles
Pardon me, I’ve got someone to kill.
I warned him not to try and take her from me
He laughed and said if I can, you know I will
So tonight when they get home I’ll be waiting
Pardon me, I’ve got someone to kill.5

You know his life just took a wrong turn, perhaps because—as Paycheck advises in another song—he failed to “Stay off the Cocaine Train.”

Yeah, the old white train costs a lot to ride
And it’ll damn sure forevermore please your brain
Take a little advice, stay away from the cocaine train.6

While on the subject of drugs and their effect on prison songs, “Cocaine Blues,” written by T.J. “Red” Arnall and recorded by Johnny Cash on Live at San Quentin in 1969, is perhaps one of the prime examples of drug abuse and bad behavior.

Early one morning while making my rounds
I took a shot of cocaine and I shot my woman down
I went back home and I went to bed
And stuck that lovin’ .44 beneath my head
Early next morning I picked up my gun
I took a shot of cocaine and away I run
I made a good run but I ran too slow
They caught up with me down in Juárez, Mexico.

Of course, they drag our hero back home, where he is held by 12 honest men and of course, as with many jury trials, it does not work out so well.

In about five minutes in walked a man
Holding the verdict in his right hand
The verdict said in the first degree
I shouted lordy, lordy have mercy on me
The judge he smiled as he picked up his pen
99 years in that San Quentin pen
99 years there beneath that ground
I can’t forget the day I shot that bad bitch down.
Come on you rounders and listen to me
Lay off that whiskey and let that cocaine be.7

Cash had many jail songs—a lot of good ones—but in my opinion the best of the best is a short, relatively obscure song called “The Wall,” which tells the story of a prisoner who spends his time trying to figure a way to escape and finally tries to escape from the walls of prison.

Well a year’s gone by since he made his try
And I can still recall
How hard he tried and the way he died
But he never made that wall
He never made that wall
There’s never been a man who shook this can
But I know the man that tried
The newspapers said it was a jailbreak plan
But I know it was suicide,
I know it was suicide.8

The late Porter Waggoner, a genuine country music legend, and a true aficionado of the flashy clothes known as “nudie Suits,” had a couple of really nice prison songs, such as “The Green, Green Grass of Home” and “The Cold Hard Facts of Life,” which is the story of a man who comes home from out of town early, stops to buy a bottle of champagne for his wife, and ends up inadvertently following his wife’s lover, also buying party supplies at the liquor store.

I left the store two steps behind the stranger
From there to my house his car stayed in sight
But it wasn’t till he turned into my drive that I learned
I was witnessing the cold hard facts of life.
I drove around the block till I was dizzy
Each time the noise came louder from within
And then I saw the bottle there beside me
And I drank a fifth of courage and walked in
Lord, you should’ve seen their frantic faces
They screamed and cried, please put away that knife
I guess I’ll go to hell or I’ll rot here in this cell
But who taught who the cold hard facts of life.9

Flatt and Scruggs, though primarily bluegrass artists, penned a wonderful song called “99 Years is Almost for Life,” which tells a story of not only bad choices but betrayal by both his woman and the presiding judge.

The courtroom was crowded the judge waited there
My mother was crying when I left my chair
The sentence were sharpful it cut like a knife
For ninety ninety-nine years boy is almost for life
I dreamed of the whistle I heard the bells ring
My sweetheart was coming some good news to bring
I knew that she loved me and that she’d be true
She said she would save me I’m guilty as you
She went for a pardon or else for parole
I know she’ll come back for she’s part of my soul
If she ever fails me I’d be mighty blue

(NOW, WAIT FOR IT.)

I just got a letter from Nashville town
And after I read it, my spirit broke down
It said that my sweetheart and the judge would be wed
And here in this jailhouse I wish I was dead.
No matter how right folks a man he may be
Bad company will sent him to prison like me
So take a good woman and make her your wife
For ninety-nine years boy is almost for life.10

Stonewall Jackson (his real name—no kidding) tells the sad, sad story of a man imprisoned for killing his best friend after a long night of drinking in “Life to Go.”

I went one night where the lights were bright just to see what I could see
I met up with an old friend who just thought the world of me
Well he bought me drinks and he took me to every honky tonk in town
But words were said and now he’s dead I just had to bring him down
Well it’s its been a long, long time now, since I’ve heard from my wife
I know I’d be there with her yet if I hadn’t used the knife
Well I’ll bet that little girl of mine don’t realize or know
That I’ve been here 18 years, and still have life to go
Yes I still have life to go.11

It is impossible to pick only one prison song from the repertoire of Merle Haggard. Haggard, who was in the audience when Cash played San Quentin, was doing time for a burglary of an open cafe. (I kid you not, look it up.) Haggard wrote some of the most iconic prison songs of all time, including “Branded Man,” “I’m A Lonesome Fugitive,” and “Mama Tried.” However, perhaps the most poignant of all his prison songs is “Sing Me Back Home,” which pays homage to a condemned prisoner’s last wish.

The warden led a prisoner, down the hallway to his doom
And I stood up, like all the rest to say goodbye.
And I hear him tell the warden, just before he left my cell
Let my guitar playing friend do my last request
Won’t you sing me back home, to the place I used to be
Make those old memories come alive
Sing me back home where I can hear my mama sing
Sing me back home before I die.12

While prison songs date back to the ‘50s, ‘60s and ‘70s, some notable exceptions to the trend away from real country (defined as “when you play a country record backwards, you get back your dog, your wife, and your trailer”) still exist.

Steve Earle, a passionate anti-death penalty advocate, penned a song for the movie Dead Man Walking, which portrays prison from another side, the guards working at Ellis Unit One, death row in Texas for many years. In “Ellis Unit One,” Earle vividly illustrates the effect death row has on one of the guards working there.

Well I’ve seen’ em fight like lions, boys
I’ve seen ’em go like lambs
And I’ve helped to drag ’em when they could not stand
And I’ve heard their mama’s cryin’, when they heard that big door slam
And I’ve seen the victim’s family holdin’ hands
Last night I dreamed that I woke up with straps across my chest
And something cold and black pullin’ through my lungs
And even Jesus couldn’t save me though I know he did his best
But he don’t live on Ellis Unit One.13

Marty Stuart, a man many consider the savior of traditional country music as well as having the coolest hair in country music, gives a 21st-century shout-out to Haggard in “Branded” and shows the cold, hard fact that a man never truly pays for his crime.

Well I’m branded, wherever I go
Trying to outrun a bad story everybody seems to know
Might as well be wearing a ball and chain
Cause everywhere I travel I see my picture
With a number by my name.14

Last but certainly not least, relative newcomer and another savior of traditional country music Jamey Johnson spins his cautionary tale of drug abuse in “The High Cost of Living.”

My whole life went through my head, layin’ in that motel bed
Watchin’ as the cops kicked in the door
I had a job and a piece of land, my sweet wife was my best friend
But I traded that for cocaine and a whore.
With my new found sobriety, I’ve got the time to sit and think
Of all the things I had, and threw away
This prison is much colder than
The one that I was locked up in just yesterday
My life is just an old routine, every day the same damn thing
Hell I can’t even tell if I’m alive
I tell you, the high cost of livin’
Ain’t nothin’ like the cost of livin’ high.15

Country music is not everyone’s cup of tea, but I feel all of us who defend the citizen accused, the sick and imprisoned, can relate to some extent to the songs listed here. There are many among us who can personally relate to the effects of alcohol and substance abuse on our lives.

I suggest listening to good old-fashioned country music to reflect on your duties and to cure what ails you. If that does not work, the Texas Lawyer’s Assistance Program is a wonderful program that has helped many of us in the trenches.

Competency Hearings

Overview

            Hearings on the competency of a defendant are rare creatures – in part, because a finding of incompetency is not one where either party suffers some loss of position or defeat. If a defendant is found incompetent there is a mandatory commitment for restoration, unless the examiner has opined, and the court found, that the person is unlikely to be restored in the foreseeable future. Such commitments do add some delay to the proceedings which are stayed until the person is restored or, if not restored, is subject to the options of Tex. Code Crim. Proc art. 46B.084(e) or (f), i.e. civil commitment by the criminal court or dismissal. But in the vast number of cases (75%+) a competency evaluation results in a finding of competency. And, if found incompetent, some 84% (in Texas) are restored after commitment for restoration treatment services. Further, a significant number are restored after a period of intensive psychiatric services.

            However, occasionally – and even then more often, in a high-profile case – a finding of incompetency is opposed, by one party or the other, and a hearing ensues. In the following we will explore this issue in greater detail.

Issue:  Basics

            It is fundamental that a person is incompetent to stand trial if they lack either sufficient present ability to consult with their attorney with a reasonable degree of rational understanding; or a rational and factual knowledge of the proceedings against them. Tex. Code Crim. Proc. art. 46B.003(a) (hereinafter, CCP art.xx).

            Competency is presumed until proved incompetent by a preponderance of the evidence. CCP art. 46B.003(b).

            The two-prong competency standard was established by Dusky v. United States, 362 US 402 (1960) and codified in the CCP. Further, Godinez v. Moran, 509 US 389 (1993) holds that the standard for competency is the same at all stages of the proceedings and applies at all stages of the proceedings.

            The issue of competency may be raised by either party or the court on its own motion. CCP art. 46B.004. No longer is a “bona fide doubt” about the competency of the defendant required as a predicate to raise the issue (CCP, art. 46B.004(c-1)); rather, some evidence from any source is sufficient to raise the issue.

            Court-ordered examiners in competency matters may either be psychiatric physicians or psychologists, qualified by board certification, training, and experience.

Procedure:  Obtain an Examiner

            If there is a suggestion of incompetency from any credible source, and the court agrees after an informal inquiry (note that the court may not weigh the evidence, e.g. some evidence of competency vs. some evidence of incompetency, but must order an examination if  there is more than a scintilla of evidence suggestive of incompetency. See Boyett v. State, 545 S.W.3rd 556, 563-64 (Tex. Crim. App. 2018)), the first issue that arises is the choice of an examiner. And by “choice” I do not mean whether to choose a psychiatrist or psychologist since either may statutorily conduct such evaluations. There are occasions when a psychiatric physician, carefully selected, is a helpful choice. I have in mind a case wherein a demented man had murdered his brother and I recommended a psychiatric physician who is nationally known in traumatic brain injury. He conducted the examination and appended a copy of the radiographic image of a large tumor about the size of a ping-pong ball which was clearly visible even to any non-physician viewing the image. As well, he opined that the defendant likely had but a relatively short period in which to live. Both sides agreed upon a dismissal.

            But barring such phenomena, either a psychologist or psychiatric physician can conduct the examination. More important, is the examiner’s knowledge of forensic examinations, and history of having conducted the same, as well as the capacity to handle himself or herself as an expert witness.

            Relatedly, is issue of whether to request an ex parte examination or move for an examiner who is also court-appointed but who would supply the same information to the court and both parties. In Harris County we have a county unit, under the aegis of the courts, that conducts such examinations – at far less expense that would be incurred should the court authorize an ex parte examiner.  To be sure, in an extremely high-profile case, it may be desirable to seek or retain an outside examiner, with national prominence, though this is more relevant to sanity than competency.

Procedure:  Obtain an Order for Competency Evaluation

            The court likely has preferred forms; if not, appended is a generic order for obtaining a competency evaluation. Note that a court’s refusal to grant such a motion is reviewed under an abuse of discretion standard. Timmons v. State, 510 S.W.3d 713, 718 (Tex. App. – El Paso 2016 no pet.). Further, the issue of competency can be raised at any point in the proceedings.  CCP, art. 46B.005.

            Important, however, is that appeals from competency proceedings, and orders issuing therefrom, are interlocutory. “The trial court’s order of competency to stand trial is not a final, appealable judgment.” Lowe v. State, 999 S.W.2d 537, 537 (Tex. App.—Houston [14th Dist.] 1999, no pet.). Neither the state nor the defense is entitled to appeal the decision of the trial court viz. competency. CCP, art. 46B.011.

            Failure to raise the issue of competency could result in an ineffective assistance claim. For example, in Burt v. Uchtman,  422 F.3d 557, 568 (7th Cir. 2005), the Seventh Circuit Court of Appeals found that counsel was ineffective in assisting a defendant in a capital murder case for failing to raise the issue of the defendant’s mental health status by requesting a competency evaluation. At his trial, Burt  originally plead “not guilty” but then changed his plea to “guilty” despite the advice of his attorneys. His attorneys stated that they spoke with him and advised him against pleading guilty but that he insisted on doing it anyway. The defendant, Burt, was subsequently sentenced to death for the murders of two men. The court found that defense counsel’s action in allowing their defendant to plead guilty without first requesting a competency hearing made counsel ineffective because counsel had notice of the defendant’s mental health status. See lengthy discussion in Covarrubias, Rebecca J. Comment: Lives In Defense Counsel’s Hands: The Problems And Responsibilities Of Defense Counsel Representing Mentally Ill Or Mentally Retarded Capital Defendants, 11 Scholar 413.

            Finally, on the topic of the order, ensure that the order is filed and that the court renders a finding thereupon – as Harris County has discovered cases wherein a case was dismissed and the dismissal states that the defendant was found incompetent with no trial record or note, nor report documenting such!

Contesting a Finding of Incompetency:  Request a Hearing

            There are two circumstances wherein competency findings are contested: (a) When the defendant is found incompetent and the state believes the person is competent; and (b) When the defendant is found competent and the defense believes the person is incompetent. Unless it does not matter to the defense, the better procedure is one wherein the state seeks an opinion, which gives the defense the option of either agreeing or disagreeing. It is a little more difficult when the opinion arises from one’s own witness!

            Note that no hearing is required unless you so request one. CCP, art. 46B.005(c).  As well, you are entitled to jury trial upon request. See CCP, art. 46B.051, see also, Thornhill v. State, 910 S.W.2d 653 (Tex. App—Fort Worth 1995 no pet.).  And while the decision of the jury must be unanimous (CCP, art. 46B.052), the standard of evidence to prove incompetence is a preponderance of the evidence. CCP, art. 46B.003(b). Note, however, that should the defendant be found incompetent, he remains in a state exhibiting an unvacated adjudication of competency, until found competent by a court of competent jurisdiction (or allowed to plead on a subsequent matter, which, as a matter of law effectuates restoration). See Manning v. State, 730 S.W.2d 744 (Tex. Crim. App. 1987).

            Though perhaps more appropriate under the topic of witness testimony, it is important that the examiner not comment upon the weight of the evidence. For example, if asked, “Doctor, do you have an opinion as to whether the defendant is incompetent to a preponderance of the evidence?”, the examiner should respond:  “I have an opinion as to the defendant’s competency, but it is the task of the trier of fact to a determine whether the weight of the evidence meets a preponderance standard.” Then, when asked, the examiner may continue to list the statutory elements in support of his/her opinion.

Issue of Presumption of Competency

            Ordinarily, the defendant is presumed to be competent until proven incompetent by a preponderance of the evidence. CCP art. 46B.103. However, the foregoing presumption is not true when a defendant was previously found incompetent and not restored or opined unlikely to be restored in the foreseeable future. In this circumstance, the defendant is in the state of what has been determined to be an “unvacated state of incompetence.” The controlling case which describes in great detail this circumstance and consequences related thereunto, is Manning v. State, 730 S.W.2d 744 (Tex. Crim. App. 1987). Manning holds that when a defendant is in an unvacated state of incompetence – and there has been no intervening plea in a subsequent matter which would restore the person as a matter of law – then there is a presumption shift, and equally important, a burden shift. That is, the person is presumed to be incompetent in all subsequent matters, unless or until, restored. And, in such a circumstance, the State has the burden to prove that the defendant is now competent – to a beyond a reasonable doubt standard.

            The foregoing would also necessitate a rather different competency examination; for the defendant is presumed incompetent so that the examiner, therefore, is not looking for evidence of incompetency – as is most commonly the starting point. Rather, the examiner is seeking to marshal as much evidence as may exist which would tend to support competency. And because any credible information of incompetency, more than a scintilla, would but establish the defendant’s continued incompetency, a conclusion that the defendant is competent is a difficult standard to meet.

            The implication of the foregoing is that a specially crafted motion/order for evaluation of competency in Manning cases is necessary.

Pre-trial Motions

            Because the court and the State may not be aware of CCP art. 46B.007, it may be helpful simply to file a notice to the State that the defense intends to proceed pursuant to the requirements of CCP art. 46B.007. Namely, that neither a statement made by the defendant during examination or at trial – nor testimony by an expert on that statement or evidence resulting from that statement – may be used in any subsequent criminal proceeding, other than at the competency trial, or unless the defendant has first introduced any evidence, statement, or testimony into evidence at the proceeding. As well, because a competency hearing is separate and apart from the trial on the crime with which the defendant is charged, “the purpose of a separate hearing is to allow a determination uncluttered by evidence of the offense itself.” Basham v. State, 608 S.W.2d 677, 679 (Tex. Crim. App. 1980). And because the guilt of the defendant is not at issue, introducing evidence as to the nature and details of the alleged offense is improper. Lasiter v. State, 283 S.W.3d (Tex. App. – Beaumont, 2009, pet. ref’d In re Lasiter, 2009 Tex. Crim. App. LEXIS 1154 (Tex. Crim. App., Aug. 19, 2009).

            Given the foregoing, a Motion in Limine should be filed prohibiting introduction of, or reference to, information concerning the underlying charge. Because not every reference to the underlying offense is prejudicial, it must be argued in the motion that “the evidence of the offense presented to the competency jury must be of such a nature as to deny the accused a fair and impartial determination of his competency.” Brandon v. State, 599 S.W.2d 547, 580 (Tex. Crim. App. 1979), vacated on other grounds, 453 U.S. 902 (1981). And, to preserve error, objection must be timely made should the State violate the motion/order.

Voir Dire

            There are three issues – requiring some exploration with veniremen – which need to be communicated to a jury.  The first issue is eliminating any misconception that a determination of competency or incompetence has any relation to exculpating the defendant. The average person would not distinguish between insanity and incompetency and likely entertain the false belief that should the defendant be found incompetent the person may be exculpated.  The second issue is with the period of time the person will be in restoration treatment and the likelihood of restoration, e.g., in Texas, approximately 84% of all defendants sent for restoration are restored within the time frame available to the court. The third issue is to ensure that veniremen are aware of the purpose of restoration, especially the necessity to ensure that a defendant has both a rational and factual knowledge of the proceedings against them. It is an issue of fundamental rights afforded defendants in the American judicial system.

            The foregoing issues can be raised in conversation with the members of the jury panel, but any violations must be met with strenuous objection during the hearing itself. For example, Brandon v. State, 599 S.W.2d 567 (Tex. Crim. App. 1979) was reversed because the prosecutor was found by the court to have repeatedly uttered erroneous and prejudicial comments (which) have no place in a dispassionate resolution of the question (of competency). The prosecutor had stated that incompetency was a way of securing release without court action and the court found his statements to be an “irrelevant diatribe.”

Qualifying the Expert Witness

            While lay witnesses can comment about a defendant’s behavior, it is an inappropriate reliance upon lay testimony when opposing counsel suggests that a defendant is competent because the person has been observed to engage in any specific behaviors, e.g., read a newspaper, fill out a commissary request (or grievance), etc.  Moreover, it would be equally inappropriate, were the suggestion made that because a defendant has been adjudicated incapacitated (i.e. has a guardian), the person is not competent. See discussion in Koehler v. State, 830 S.W.2d 665 (Tex. App. – San Antonio 1992). I recall many years ago when an ADA asked a jailer if the defendant read a newspaper, and the answer was “yes.” However, I had observed the same event and noted that the defendant (an elderly man) held the paper upside down, and could not reasonably be said to be “reading” the newspaper but merely engaging in a task familiar to him and in which he had engaged every morning! The upshot is that the weight of the testimony will fall on the examiner (or examiners if there is more than one). The Rules of Evidence apply. CCP art. 46B.008.

            While it may be simple to qualify the expert solely on the basis of CCP art. 46B.022, i.e., qualified to conduct evaluations by board certification or training, and continuing education, it may be necessary to be more specific, cf. the following:

**************

  1. In cause number ____________, the State of Texas v. ________________, we call Dr. ________________.
  2. Dr. please state your name and occupation for the court.
  3. In what state or states are you licensed to practice (medicine or psychology)?
  4. Are you board eligible or board certified? In what specialty, and by which board? (The American Board of Psychiatry and Neurology, the American Board of Professional Psychology)
  5. Your honor, the Defense is requesting that the State stipulate as to the qualifications of this physician as a specialist in the field of medicine and psychiatry, (or psychology).
  6. (If counsel for the State does not stipulate, qualify the witness.)
    1. Doctor, where did you attend medical school (or graduate school)?
    2. Did you graduate?
    3. What degrees do you possess?
    4. Describe the area of post-graduate education?
    5. What was the duration of your residency or other post-graduate training?
    6. In the years subsequent to completing your post-graduate training or residency, have you held any medical school or other faculty appointments?  At what faculty rank?
    7. Are you board eligible or board certified?
    8. What are the requirements for board certification by the American Board of Psychiatry and Neurology (or by the American Board of Professional Psychology)? 
    9. Describe any publications if you have any.
    10. How long have you been in practice?
    11. Have you examined defendants similar to xxxxx in the past?
    12. Have you testified in proceedings similar to this in the past? On a few, or many, occasions?
    13. Your honor, the Defense offers Dr. xxxxx as an expert in the field of medicine and psychiatry (or psychology).
  1. Dr., tell the court if you are acquainted with the defendant here today.
  2. What is your relationship with _____________________?
  3. When did you examine ____________?
  4. How much time did you spend face-to-face with the defendant?
  5. How much time did you spend in review of records, or conversations with other sources of information?
  6. To a reasonable degree of medical (or psychological) probability, have you arrived at a diagnosis concerning the patient’s  current medical or mental health condition?
  7. What is that diagnosis? 
  8. Dr., please explain in laymen’s terms the diagnosis of _____________________.
  9. Dr. what does it mean to say that a person is not competent to stand trial?
  10. And do you have an opinion as to whether the defendant is incompetent to stand trial in this case?
  11. Dr., is the mere fact that a defendant has a mental condition, in and of itself, sufficient for you to opine that the person is not competent to stand trial?
  12. Are you aware that there are statutory issues which must be addressed in any evaluation of competency?
  13. What are those issues? (CCP art. 46B.024 and .025)
    1. Has a rational understanding of charges and potential consequences
    2. Capacity to disclose to counsel pertinent facts, events and state of mind
    3. Capacity to engage in reasoned choice of legal strategies and options
    4. Understands adversarial nature of criminal proceedings
    5. Has ability to exhibit appropriate courtroom behavior
    6. There is evidence to support that the defendant is a person with mental illness or an intellectual disability
    7. The identified condition has lasted, or is expected to last, continuously for at least one year
    8. The identified condition has impaired, or is impairing, the defendant’s capacity to engage counsel in a reasonable and rational manner
    9. Whether the defendant has been taking psychoactive or other medication, and whether the medication is necessary to effectuate or maintain the defendant’s competency
    10. The effect, if any, of the medication on the defendant’s appearance, demeanor, or ability to participate in the proceedings.
  1. Did you explain to the defendant the purpose of the examination and the limitation on the rules of confidentiality as appertaining to the examination, as well as who would receive your report?
  2. What treatment alternatives are you recommending for this defendant and why?
  3. Could this defendant be safely treated on an outpatient basis? Why or why not?
  4. Is the defendant medication compliant? If not, has an application for forced medications been filed?
  5. Describe the facts upon which you based your opinion.   
  6. In your medical opinion, based upon your observations and your medical training, what medications, if any, constitute the proper course of treatment and are indicated for this defendant?
  7. To what facility are you recommending the patient be committed?
  8. Your honor, I would like to pass this witness subject to possible recall if I may…

****************

                The foregoing should not be construed as an exhaustive list of queries for direct examination of an expert in a competency hearing; however, it may provide some directions for further inquiry, if needed.

Special Populations

                Two populations deserve specific attention in any anticipated competency hearing: (1) persons with an intellectual developmental disorder (IDD), and pro se defendants. The American Association on Intellectual and Developmental Disabilities defines an IDD as a disability arising before the age of eighteen (18), characterized by significant limitations both in intellectual functioning and adaptive behavior. The former term was “mental retardation.” See The Diagnostic and Statistical Manual of Mental Disorders – 5 (DSM-5), published by the American Psychiatric Association.

                Covarrubias, supra, argues, however, that IDD clients often conceal their deficits by a “cloak of competency.” They may not mention that they are unable to read or handle simple calculations and often work in menial jobs that do not require higher level cognitive skills. Moreover, many are not so obviously impaired that counsel – or a jury – would readily identify them as exhibiting a significant deficit in adaptive functioning. The author cites a 2007 Texas case, Hunter v. State, Hunter v. State, 243 S.W.3d 664 (Tex. Crim. App. 2007) where  the testifying psychologist explained how the defendant wore a cloak of competency to mask his symptoms of mental retardation and hide his deficits in adaptive and intellectual functioning. The psychologist pointed out that as part of the defendant’s cloak of competency, the defendant denied ever attending special education classes. The defendant also told the psychologist that “he had learned to use a computer in prison, but he actually had taken only a basic keyboarding class,” and had stated that he could “fix things at home” when in reality all he would do is tighten a loose doorknob!

            The moral is that any evidence from any credible source that the defendant might be incompetent should trigger an evaluation.

            The second special category are pro se defendants, who – in Texas – are often “sovereign citizens”, and whose preoccupations conceal highly crystallized and fixed delusions, such that representation is quite difficult. Such cases should also trigger a Faretta hearing (Faretta v. California, 422 U.S. 806 (1977)) so that the court may determine if the defendant is capable of defending himself.

Restoration Commitments

            In the event the trier of fact concludes that the defendant is incompetent, restoration commitments are mandatory unless the defendant is opined, and found, not likely to be restored in the “foreseeable future.”  Note that although there is no statutory definition of “foreseeable future”, in practical terms this means the period of time available to the court in these matters, i.e., a restoration commitment of sixty days plus a possible sixty-day extension for misdemeanants; or one hundred twenty days with a possible sixty-day extension for felony cases. A review of all the options, inpatient, jail-based and outpatient restoration are beyond the scope of this brief article, though each has statutory requisites, cf. Art. 46B.

            One may remember, as well, that the court is statutorily required to present to the restoration facility or program a host of materials, including a copy of the defendant’s criminal history.  See CCP Art. 46B.076(a)(5).

            In addition, because defendants often wait for extended periods on restoration beds, it is important to be aware of the forced medication statutes which apply to persons during the pendency of a finding of incompetency and transfer to a restoration program or facility.

Summary

            In the foregoing brief article, we have reviewed many – but by no means all – of the issues which arise in competency hearings, as well as tips for representation in these cases, e.g., Motions in Limine, direct or cross examination of experts, the standard of evidence, and the fact that restoration commitments are mandatory. Should further questions arise, please feel free to contact the author.

An Artifact of Times Long Gone

Sometimes when you look through a pile of old papers, you find a jewel hidden under them. COVID-19 boredom put me on a spring-cleaning spree at the office, and what turned up but the “MINIMUM FEE SCHEDULE-CRIMINAL CASES” for Travis County dated October 17, 1969. A fine old lawyer gave it to me back in 1978. The contents of this pamphlet are both hilarious and hard to believe. Can you imagine, in today’s world, a county bar association publishing a minimum fee schedule?

I am not a Travis County lawyer, but Betty Blackwell, our beloved past president, is. Betty has written a short summary of the characters involved in the production of the pamphlet back in 1969. Two of them are our own Frank Maloney and Robert Jones, the first and 14th presidents of TCDLA, respectively. In this difficult time for our country and our profession, we hope you enjoy what follows.

The MINIMUM FEE SCHEDULE put out by the Travis County Bar Association was sold for the exorbitant sum of $1. It was intended to let the local bar know what to charge, and it also included an interesting list of offenses. Back then TCDLA didn’t exist to publish code books, so local groups had to assume that role. How far we have come in providing access to resources for lawyers is astounding.

Take a look at the minimums for retained cases and prepare to be amazed: A jury trial for murder with “m” – meaning malice – was $1,500. Hourly rate was $40. And apparently Travis County was the sex-crime center of the world. Of the 11 felonies listed with suggested fees, six of them were sex related. Shame, Travis County, shame! And look at the difference in the fee for rape at $1,000 and sodomy at $1,250. I don’t have the nerve to attempt to explain that.

Appellate specialists, be prepared to go broke. A brief and argument before the CCA was $1,000. You could expect to get the lavish sum of $1,500 if it was a capital case. If Mowla wasn’t already bald, he surely would get that way with these fees!

Now to pleas: A felony plea fee was $250. Considering what some counties have paid in very recent years for court appointments, that is not bad. Obviously, some counties have come a long way to go in regard to fees, while others apparently are currently using a copy of the pamphlet for a guide.

The Penal Code has never been a great source of pleasure for us, but let’s have some fun using what is in the pamphlet. Some of the offenses listed and the punishments associated with them will definitely make you scratch your head: Fornication was a misdemeanor with $50 the minimum fine – no jail time. On the other hand, running a bawdy house would get you a $200 fine and 20 days in jail for each day the bawdy house was open. I suppose wise advice was not to fornicate in a bawdy house. There was no harassment statute but sending an anonymous letter could get you a $25-$1,000 fine and one to 12 months in the county pokey.

Today we deal with gang violence all the time. It was better for the client back then. The fine for firing into a car was a minimum of $5. But the gang members had better not throw a stench bomb because that was a felony punished by $25-$5,000 and/or one to 25 years in the pen! And then there was castration at five to 25 years in the big house. Disfiguring was only two to five years. I guess you had to think twice about what body part to disfigure.

For those inclined to be a Casanova, beware: Seduction was a two-to-10-year felony. But then wife desertion was only a misdemeanor with up to two years in the county jail. The smart move was to marry anyone you seduced. How that conflicts with fornication was probably a bar exam question. If it wasn’t, it should have been. And finally, in this day of deadly viruses and social distancing, we close with a crime that we are all told to commit every day–wearing a mask in public would get you up to a $500 fine and 12 months in jail.

Tip Hargrove, San Angelo

The producers of the pamphlet included Robert Jones, Dain Whitworth, Paul T. Holt, Wallace Shropshire, Herman Gotcher, Jr., Frank Maloney, Forrest Troutman, and Jon Coffee.

Robert Jones, the chair of the committee, is a past president of TCDLA. He brought John Boston on as executive director of TCDLA. Robert personally went around to every criminal defense office in Austin asking that we all join TCDLA. In 1984 he was elected, with no opposition, to a criminal district court bench in Travis County and eight years later he was defeated for re-election and then served as a visiting judge for some time.

Dain Whitworth had been in the district attorney’s office before leaving to join the staff of the Texas District and County Attorney’s association. He and John Boston were great friends and for many years, they were the lobbying team at the legislature on all criminal law matters.  They usually agreed on more issues than they disagreed upon. He moved to the coast of Texas and has a small practice there.

Paul T. Holt was a legend in Austin. He has the largest criminal defense practice here for many, many years.  He never hired more attorneys, only more secretaries, at one time carrying three full-time secretaries on his staff.  He would open his office on Saturday morning to do free wills for any police officer. He was the great advertizer before it was legal, handing out glow-in-the-dark key chains with his name and phone number and always the phrase “To a good friend from Paul T. Holt”. My favorite story of Mr. Holt is that during his prime trial years, he had a card file on every person who ever served on a jury in Travis County and how they voted. It gave him an incredible advantage when it came to trials and every opponent knew it.

Wallace Shrosphire had been the county attorney of Travis County and then went into private civil practice as his wife Doris Shrosphire became the long-serving county clerk of Travis County.

Herman Gotcher, Jr., had been a legal aid lawyer before being hired as an assitant district attorney where he made his name as “Maddog Gotcher.” He was vicious in the courtroom and tried a string of drug cases, winning many long prison sentences in the early 1960s, until the criminal defense firm of Minton and Burton came into existance. Charlie Burton was the brillant mind behind that lawfirm with Roy being the  flamboyant one. But it took the two of them to finally start getting some acquittals in drugs cases in the late ‘60s and early ‘70s, to change the DA’s view of those cases.

Frank Maloney was the first president of TCDLA.  He practiced law for many, many years in Austin. The saying in Austin during that time was, “If you are innocent, hire Maloney; if you are guilty, hire Minton and Burton.”  Those offices were the two most prominent criminal defense firms in the state at the time. Frank went onto the Court of Criminal Appeals and upon forced retirement, he taught law at the University of Texas law school before finally completely retiring.

Betty Blackwell, Austin

Many thanks to those wise souls who, in 1969, gave us something we can laugh at in 2020. Keep safe and certainly hope to see you IN PERSON soon.

Memories of TCDLA’s 1st President (Part II)

This is a continuation of “Memories of TCDLA’s 1st President” published in the May 2020 issue of Voice for the Defense. Click here to read the first installment.

April 15, 2020

Knox Jones of the McAllen-Brownsville, Texas, area was not a nationally known lawyer in the ‘70s , but he was famous here in Texas because, first, a very famous case bears his name; In re Knox Jones ex rel grand jury v. U.S.; secondly, he was a past president of TCDLA; and lastly, he was a very good lawyer. Like Racehorse Haynes, he knew how to put things into perspective and had a sense of humor that kept you laughing. But what happened was no laughing matter. This story is about Knox and the other four lawyers colorfully called the “Laredo Five”– five lawyers who went to jail rather than name their clients.

The United States Attorney for the Southern District of Texas was seeking to stem the transportation of marijuana from Mexico and decided that instead of prosecuting the transporters (“mules”) who were being represented by Knox and the other four lawyers individually, he would go after the people who were sending the transporters across the border, collectively known as “Mr. Big,” an idea supported by Judge Connolly and the federal grand jury. But how would they do it? The mules were under indictment and individually represented by the five lawyers. Because of the complexity of the operation, the mules had no knowledge of who was or how many were “Mr. Big.”

Subpoenas were issued for the five lawyers. They each appeared before the grand jury and were asked who “Mr. Big” was and who was paying their legal fees They each refused to answer. They were threatened with contempt. They refused to answer. They were threatened with conspiracy indictments and they refused on Fifth Amendment grounds. Subsequently, they were cited for contempt and ordered to appear before Judge Connolly. Enter me. Representing all of them, I argued that the subject was protected under the Professional Proscription Rule and the Evidence Privileged Rule. Judge Connolly held them in contempt and ordered them jailed. I moved that they be released on their own recognizance, but that request was refused. I moved for an expedited appeal. That was also refused. I asked if we could repair to his Chambers to call Judge Brown, the chief justice of the 5th Circuit in New Orleans. This we did and after a short heated phone conversation, Judge Brown ordered my clients’ immediate release.

The 5th Circuit arguments were not easy, but in a unanimous opinion authored by Judge Homer Thornberry, the court held that the identity of a client paying a legal fee even for others was privileged. Unfortunately, several years later this rule was qualified in the case of Pavlick, in an opinion written by Judge Reavley. When hearing of this, Knox commented: “Does this mean we don’t get to go to Paris?”

PS: Of the four lawyers, one became US attorney for the Southern District of Texas, one became a very famous international lawyer, one became a state district judge, and another became a multi-millionaire personal-injury lawyer. Over the years, I tried several federal jury cases in the valley, including a federal conspiracy-to-commit-kidnappings-with-intent-to-murder case charging a district attorney, and, as always, I utilized my friend Knox Jones as co-counsel. Knox passed away several years ago at a very young age.

April 16, 2020

To conservatively describe Austin as it was in the ‘60s, it was a mess. The Civil Rights Movement, the Vietnam War, racism, drugs, all produced a war-like attitude, particularly in the University of Texas area. The collective attitude among the students was almost like it was them against the rest of the city, while the police, who were not yet trained to handle it, were caught in the middle.

Chief Beverly Laws and Assistant Chief George Phiffer, both reasonable men, were faced with daily demonstrations by students, which, in some instances, amounted to riots. The drug arrests by the APD, DEA, and DPS added to the turmoil. Property damage was extensive; all of which cast a black shadow over tranquil Austin and brought suffering to the families of those involved and to the participants. It also brought about a new and better-trained criminal defense bar. Faced with numerous arrests of participants engaged in all kinds of crimes that were not the usual street crimes that they were used to defending, the lawyers were forced to rise to the occasion. Fortunately, the Supreme Court had handed down numerous Bill of Rights decisions in the early ‘60s which helped protect errant students from being convicted of crimes that were sometimes overcharged by police and prosecutors.

The police, in thwarting what they believed to be unlawful behavior which sometimes got out of hand, used force resulting in severe injury to the participants and even the occasional police officer. The law at that time provided that force against an officer engaged in lawful conduct constituted aggravated assault punishable as a misdemeanor up to one year in the county jail, a fine, or both. Needless to say, there were a lot of aggravated assault cases filed. Which brings us to the Weedon Gasoline Station demonstration on the “drag” in front of the university.

Don Weedon was denounced as a racist by a group of students because he refused to sell gasoline to blacks, refused to hire them, and in fact was accused of mistreating them when they were on his property. These sentiments produced a demonstration of several students, which escalated into more than a hundred students moving onto the station property, resulting in police activity and multiple aggravated-assault charges. GC, a young black girl, a straight-A student, and a member of several honor societies, who happened to be among the demonstrators, was manhandled by a police officer who ended up with a scratch on his arm and who, based on department policy, filed an aggravated-assault complaint against her. At her trial, the state asked for jail time to make an example of her for the edification of the university. With several university professors testifying as to her character, the jury rejected the aggravated-assault charge, settled on disturbance of the peace, and fined her $25.

That same year in a march against the Vietnam War, a severe confrontation occurred with more than a hundred police officers lined up on the north side of East 19th Street (now Martin Luther King Boulevard) and what seemed like the entire student body on the other side. Jeff Friedman, student body president and who would later become mayor of Austin, ran to the center, conversed with Chief Phiffer, and together caused the crowd to disperse. The students, prior to dispersing, had marched up Congress Avenue, through the capitol, and forced the police to back all the way to East 19th Street. Had the confrontation unfolded as everyone expected, there was no question that the police would have used force to prevent further progress. In addition to the above activities, drug use and the resulting arrests, peaceful Austin was not the same. This, however, would pass.

April 16, 2020

It is a compliment to the bar that there are so many women engaged in the practice of law today. Just a few short years ago, if you ran into a woman lawyer, it was an untold experience and hard for some lawyers to accept. Even today it is an experience that some have difficulty accepting. Travis County, for instance, has more women judges than male judges. The district attorney is a woman. One highly successful lawyer told me he was happier in a male-dominated federal practice, and felt Travis County was averse to him because woman lawyers had taken over.

When I was in law school in the ‘50s, there were three women students. One of them, Pat Hines, was a member of the Order of the Coif, the highest honor a person could receive as a student of law. In the ‘60s, I knew of only two women judges in Texas: Mary Lou Robinson, a state district judge who became the first woman federal judge in Texas, and Sarah Hughes, who also became a federal judge. Both women served as district judges in the Northern District of Texas. In the ‘60s, ‘70s, and ‘80s, women became more active in the fields of law and politics, resulting in more women becoming lawyers and Judges.

My law firm had grown and in the ‘70s had one woman lawyer in the civil division and two women law students as research assistants. I had two lawyers, both men, working for me in the criminal division, but we needed an additional lawyer. A good number of law-school students who were about to graduate applied for the position, mostly men and a few women, and after interviewing them, I hired the one I considered the most qualified, Mary Noel Golder. She was perfect for the job, she was a fighter, a brilliant student, and became an excellent trial lawyer. So much so that it was difficult to keep her at the firm. She assisted me in several cases around the state and I relied on her. Unfortunately for me, she was too good to remain my associate. I wanted to make her a partner, but it would have disrupted the order of promotion in the civil divisions, so I lost her to a firm in San Angelo, where she became a very rich and outstanding partner.

Her replacement was Mrs. Belinda Wright, who was also a fighter and brilliant lawyer. I relied heavily on her for her appellate work both in state and in and federal courts. In a murder case out of Perryton, Belinda handled an appeal before the Amarillo Court of Appeals. This Court had the reputation of regularly ruling for the state. The district attorney himself handled the appeal for the state. At oral arguments, the court concluded the arguments and invited Belinda and the district attorney into chambers for coffee to continue discussion and argument about the case, which she won. At a much later time, when I was on the Court of Criminal Appeals, one of the judges who had heard Belinda argue told me the justices had found it necessary for them to hear additional argument by the state because they were so impressed with Belinda’s brief and argument and were ready to rule for her, thus the invitation for coffee.

At another time, in a case in federal court where the jury, after long deliberation, had convicted my client, it became necessary to question the individual jurors and to obtain affidavits from them on jury misconduct, if any there was. Belinda undertook the investigation and the affidavits clearly showed jury misconduct. During arguments on the motion for new trial,  the judge became enraged and accused us of jury tampering. She stood right up to him and, with slight help, he backed down and said that he did not mean to state that. When I was elected to the Court of Criminal Appeals, after much pleading by me, I took Belinda along as my research assistant. I think she was much more influential on the court than I was. 

All of my research assistants and the several briefing assistants over the six-year period were women. One of the best, Valarie Eiben Strauss, was hired by me as a research assistant and is still at the court. My daughter believes that I was rightly prejudiced by each assistant’s abilities and hardworking principles. I think she is right.

PS: All of the men I had working for me were also excellent. They had to be–there was too much feminine competition.

April 19, 2020:

The University of Texas Law School in the ‘50s was perhaps ranked higher among law schools than today, with only about 100 accredited law schools nationwide. Today, there are more than 300 accredited law schools in the nation, with UT ranked 13th. Harvard , Yale, Stanford, NYU, University of Chicago, Northwestern, and Virginia have always been ranked as the highest. The high ranking of Texas in the ‘50s is explainable for the following reasons: It was recognized as the law school to attend in the southwest; there were a declining number of persons studying law in the ‘50s; and, most importantly, its faculty. Dean Page Keaton attracted outstanding people to teach at Texas. He was a nationally recognized authority in tort law, had an unparalleled mind, and held the respect and adoration of the student body and faculty.

Charles T. McCormick was a faculty member at the time and he was also the leading authority in evidence. His books were the primary textbooks on evidence used in every law school in the country and he was cited in most court opinions faced with evidence questions.

Additionally, Dean Leon Green, a past dean of Northwestern Law School, was the national authority on tort law, particularly on proximate cause. George Stumberg, also among the professors, was the leading authority on conflict of laws and criminal law, and just so happened to be my mentor. Judge John Stayton, the leading authority on procedural law, was among those who called UT Law home. Joe Sneed , a leading authority on contract law who later became Dean of Stanford Law School, also taught at UT.

Millard Rudd, Joe Witherspoon, Gus Hodges, and numerous others–too many to name–added to the list of prestigious professors who taught at Texas. There were many applicants to teach there. Some erroneously felt it was a place to start, most correctly felt it was the place to be. The student body numbered about 300. If your grade-point average was in the low 80s or high 70s, you were a star.

Having said all of this, I can truthfully say that because of my antics, I was lucky to graduate. My friends in law school were mostly veterans of the Korean War. We tended to be skeptical, we enjoyed life sometimes too much, particularly so at the Split Rail or Schultz’s Beer Garden. So we were not the best of students, at least in subjects that, although required, we did not enjoy.

Chauncey Depew Leake was the only one of us who successfully raised his average after the first year, the first year being four- or six-hour courses and pretty well setting your average. I think this was Chauncey’s way of pleasing his father, who was the dean of the medical school in Galveston. After we four, by some miracle, passed the bar exam before we graduated, I suffered a detached retina and in the middle of my last semester had to return to Brooke Army Hospital in San Antonio.

Since I was confined to bed, and wanted to graduate from law school, I arranged for readers. Dean Keaton and the professors of four of my classes , in an arrangement with troop information at Brooke, allowed me to take finals courses from the hospital and my answers were returned to the law school for grading. I did well in legal medicine and legislation, but was unable to take the finals in commercial law and Texas land titles. I returned to the law school but did not enroll.

The dean let me sit in in those courses in the summer semester and to take the finals, whereupon I passed, graduated, and went to work for the Travis County District Attorney. But, before that, at the University of Texas Medical Center, during that summer when I was not officially enrolled , an incident occurred that almost caused Jack Proctor, who was associate dean of the law school, to do more than just lecture me. But that is an another almost-lawyer story.

PS: What is even more of a story, I taught at the law school as an adjunct professor teaching the four-hour course in criminal law and a course in federal substantive criminal law from 1962 through the ‘80s and then once again in the 2000s. I even draw a small pension.

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