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General Information on Immigration Issues During the COVID-19 Pandemic

Is Immigration and Customs Enforcement (ICE) still enforcing immigration holds and moving detainees into ICE custody?

Yes. ICE is still enforcing all current immigration holds. There is currently no direct relief due to the COVID-19 pandemic. However, in March ICE identified over 550 detainees over 60 years of age or pregnant but only released 160 individuals after a lengthy evaluation of their immigration histories, criminal records, potential threat to public safety, flight risk, and national security concerns.

All new detainees will be screened upon entering the facilities and those who meet the CDC’s criteria for epidemiologic risk of exposure to COVID-19. ICE Health Service Corp. (IHSC) will isolate detainees with fever and/or respiratory symptoms to observe them for a specified time period.

Please call an immigration attorney for more information and refer to ICE March 27, 2020, memo (below Resource #1) for further details.

Is Immigration Court still proceeding with removal hearings?

Yes–on a limited basis. All immigration courts located in detention facilities are open and adjudicating removal proceedings. To enter the detention courtrooms, persons will be screened by answering a questionnaire about travel, health, and other various indicators of exposure to COVID-19, as well as having his/her temperature taken. Additional safety measures, such as eyeglasses, mask, and gloves may be provided or required. Please check with the local facility in your area and refer to ICE April 10, 2020 response (below Resource #2) for further details.

 **In Houston, the Conroe facility is conducting telephonic hearings with the approval of the court on a limited basis.

Non-detained hearings, status dockets, and USCIS fingerprinting, swearing ceremonies, and field office visits will be suspended until further notice. Please call an immigration attorney for more information and refer to USCIS Response site (below Resource #3) for further details.

Is ICE still accepting bonds?

Yes. ICE will limit the acceptance of bonds to locations with “bond windows” or other appropriate barriers. Only the individual appearing to post the bonds will be permitted to enter the office. Please contact your local immigration court for further details or call an immigration attorney for more information and refer to ICE Guidance to COVID-19 site (below Resource #4) for further details.

Is ICE allowing visitations of persons in detention facilities?

Yes–to legal representatives. Detention facilities are working on video or teleconference options for lawyers but will allow person-to-person contact if declared essential by the legal representative.

No to family or social visitors. ICE has suspended social in-person visitation until further notice. ICE is “requesting” detention facilities to utilize teleconferencing, video visitation (e.g., Skype, Facetime), email, and/or tablets, with extended hours where possible. Detention facilities should identify indigent detainees to be afforded the same telephone access and related privileges as other detainees. Each facility must ensure all detainees are able to make calls to the ICE-provided list of free legal service providers and consulates at no charge to the detainee or the receiving party, and that indigent detainees may request a call to immediate family or others in personal or family emergencies or on an as-needed basis to maintain community ties. A detainee is considered “indigent” if he/she has less than $15 in his/her account for 10 days.

Please call an immigration attorney for more information and refer to ICE March 27, 2020 memo (below Resource #1) for further details.

RESOURCES:

1)  Memorandum to ALL DETENTION WARDENS on COVID-19 Action Plan, Revision I, (March 27, 2020)

2)  ICE COVID-19 PANDEMIC RESPONSE REQUIREMENTS (April 10, 2020)

3)  USCIS Response to COVID-19

4)  ICE Guidance to COVID-19 website

Memories of TCDLA’s 1st President

March 10, 2020

This is a Veteran’s Day story. When I was a young guy just out of law school, I went to work as an assistant district attorney for Les Proctor here in Travis County, Texas.

One of the first cases I tried before a jury along with John Allen, first assistant, who became ill during the trial and had to be put to bed, resulted in a loss. Proctor was furious and called me into his office. He asked for an explanation, and I had none. He stated to me that the reason the case was lost was because, “You look funny.”

I had been shot up in Korea, and my facial countenance was not the best in the West.

“I want you to wear one of your medals as an explanation,” he said.

“No, sir,” said I, ready to resign.

Bob Smith, chief trial attorney, joined in: “Next case we’ll try it together and I’ll wear one of mine.”

Proctor ordered it, and after a lot of discussion, I agreed. So, Bob and I wearing a medal button in our suit lapels, tried an enhanced theft case before a jury, and we promptly lost. Proctor, being a veteran Marine, Smith being veteran Air Force, and I were then in agreement that medals were not the answer and I went on looking funny… probably should have become a personal injury lawyer.

March 19, 2020

Another story about the sleepy town-city Austin, Texas, in the late 1950s. Mostly university, government, and stores along Congress Ave. and East 6th St. But with three whore houses nestled in the South Congress area – one of them run by herself, the great Mrs. Hattie Valdez. The population of Austin as time moved forward increased as did its moral and religious awareness and pressure was brought through various grand juries to do justice and padlock them. Proctor, the DA, assigned this to me, and I promptly did justice through injunctive action, closing them down. During this operation, I learned that Hattie operated several houses throughout the state and treated her girls who rode the circuit as her daughters. When I later became an assistant attorney general, public pressure, then at its zenith, demanded the attorney general take action and close down the whore houses throughout the state. This really fell within the jurisdiction of the various district and county Attorneys, but for some reason most of them were reluctant to do so. So, armed with the Texas Rangers in the various venues, I charged. Reenter Hattie Valdez. On the day I was to appear in district court in one of the east central counties, to padlock one of her houses, I received a phone call from Hattie asking if she could bum a ride with me to the county since she was to appear in court. She said that we would only have to make one stop to pick up the linens in the house to be padlocked, and that is another story…

March 20, 2020

The Criminal Bar of Austin Travis County in the middle ‘50s was relatively small – Paul Holt, Perry Jones, Roy Martin, Bill Yelderman Vic Rogers, John Brady, Wright Stubbs, Arthur Mitchel, Jack Darrouzette, and a few others. The civil lawyers, with rare exception, seldom ventured into the criminal courts. There were only three district courts: 53rd, 98th, and126th. Judge Jack Roberts, a prior DA, presided over the 126th. Charles Betts the 98th and J. Harris Gardner the 53rd. The defense lawyer seldom won a jury case. The great Warren Court decisions Miranda, Escobedo, Mapp, Malloy v. Hogan, Murphy v. Waterfront, and Massiah had yet to be decided. The poor defense lawyer went into battle blind, no discovery, not entitled to see his client’s confession or rap sheet. Such was the case when Roy Martin, one of the better lawyers in the system, appeared before Judge Roberts and a jury defending some poor devil charged with the inglorious offense of theft of edible meat (a chicken) carrying a possible punishment of two years to life if convicted.

Now, Roy was not known for his quiet demeanor nor his acceptance of what he considered to be an out-and-out deception by others. When he talked to you in what he considered a normal voice, he could be heard for at least 200 feet around him. Thus was the case when a police officer was testifying for the state. Roy’s client had insisted and again told Roy that he had no prior police arrest record except for minor traffic cases. A defendant’s prior arrest record, unless he took the stand and testified or put his character in issue, was not admissible before the jury. Roy, when it was time for cross examination, said, “Now, Officer, you know my client has no criminal record. You have the police report on that. Read it if you will.”

The officer looked astounded, and putting on his glasses began reading, “Theft, theft, burglary, theft, burglary.”

Roy turned to his client and said in what he assumed was a whisper, but could be heard in the next courtroom, “You son of a bitch.”

March 24, 2020

Just before the 1900s, there were more Sheltons in Travis and Williamson Counties than most large families. Born to that clan were Polk, Emmett, and Earl Shelton who, according to Emmet, became lawyers for their own protection. Practicing law in the 1950’s, Polk was known for his success in the criminal and domestic Courts, Emmet was a leader in Texas politics, and Earl was the scholar. In 1956, the district attorney’s office along with the grand jury room, the jury dormitory, and the court library were on the fifth floor of the Travis County Courthouse. The courthouse, built in the 1930’s, was crowded, and my office (cubicle) was open and abutted the library where Earl kind of lived, researching the law and regaling me with the most interesting stories of the practice of law by the Shelton family in early Texas. Being a Yankee, and new to Texas – having been here for only the last seven years – I could not get enough of his colorful and educational stories. I remember him saying, “Back in the old days , when the Sheltons were so numerous you couldn’t count them and some you weren’t even sure you were related to, one was falsely accused and convicted in Williamson County of some type of offense despite the efforts of a distant Shelton lawyer. On the day of the hanging, about 50 well-armed Shelton men arrived on horseback and presented themselves before the gallows outside the Williamson County Courthouse. The hanging was called off, the defendant was freed, and justice was done. I told Earl he should write a book, but he never did. Emmet, however, presented me with about 10 tapes recording much of his experiences in Texas politics, particularly those involving the state and county conventions during the Shivers and Daniel years, but that is another Texas lawyer story…

March 25, 2020

There were not any woman lawyers in the district attorney’s office until very late in the 20th century. In fact, there were very few woman lawyers in Travis County. I recall that in one of our courts in 1960, a woman lawyer appeared at docket call wearing long pants and was summarily ordered by the judge to leave the court until she properly dressed. However, this did not mean that women did not have influence or make substantial contributions to the running of the Travis County District Attorney’s Office. In 1956, there were four male Assistant DAs and one woman secretary. All of the lawyers worked weekends and late hours. Proctor, the DA, was a bachelor, the rest of us had families and it was hard to be absent husbands and parents. This was particularly true on change-of-venue cases since we had jurisdiction to prosecute state officers and were called upon to try cases in counties far away from Austin. Finally, in 1958, we went from four assistants to six and four woman secretaries.

I say secretaries but the first to be hired was an Austin debutant member of the Junior League, beautiful and single and very proper. She had much influence on the selection of the other three ladies Proctor hired. All debutants, all Junior League, all UT graduates with varying degrees from art to history, all beautiful and proper and, as it became evident, all dedicated to the success of the Office of District Attorney. They were in effect better at running the office than we were. But this was not to last. One of them became a successful lawyer, married an astrophysicist, and traveled all over the world where he lectured in various colleges on mathematics. One married a renowned Hollywood actor who excelled in his profession and is still doing so. One married a lawyer who played a great part in changing world affairs in Washington, and one married a young man who with her became an outstanding entrepreneur. All four of them at different times effected the decisional process of the DA’s office, but that’ another lawyer story….

March 27, 2020

As a Massachusetts Yankee, Korean War transplant, then a University of Texas undergraduate and law school alumnus exposed to quiet sophisticated beautiful Austin in the 1950’s, I soon learned that there was a strong belief in Austin that Sam Houston was right that Texas should not have seceded from the union in the 1860s. Most of the people who lived in Austin in the ‘50s were born there or at least in Texas and had a strong pride in the fact that they were Americans, and most certainly Texans. The strength of that pride was evident in how they lived, governed, and interacted with each other…which brings me to the law of the west or maybe of East Texas as it existed in some counties in the 1960s. Texas was governed by the 1925 Penal Code. This was not to change until the Supreme Court decisions, the amendments to the procedural code in the ‘60s, and the enactment of a completely new penal code in 1974. In 1962, the Billy Sol Estes Case was tried on-change-of venue from Pecos County several hundred miles away to Smith County (Tyler).

The prosecutors were R.B. McGowan, district attorney of Pecos, and Weldon Holcomb, district attorney of Smith County. I was there as chief of law enforcement division assistant attorney general assisting them. John and Hume Cofer of Austin were defending. The case ultimately became the seminal case before the U.S. Supreme Court on television in the courtroom. Estes was charged in a three-count indictment under the 1925 Penal Code with various types of theft involving anhydrous ammonium tanks and financial institutions, a simple and boring prosecution complicated by the intrusion of multiple television cameras, coaxial cables, and shotgun mikes in the Smith County courtroom, which of course brought forth numerous objections by the defense. John Cofer: “Your Honor, we object. These cameras along with their created pre-trial publicity violate the defendant’s rights to a fair trial guaranteed to him by the Sixth and Fourteenth amendments to the Constitution of the United States.”

The judge: “Overruled….We are trying this case under the Texas Constitution, not the United States Constitution.”

Whoops, the Supreme Court of the United State agreed of course with the Cofers. And the law of the west (or east) did not prevail. I should have agreed with the Cofers, but when asked by the judge what the state’s position was, I said cowardly, “Whatever the court desires” – words of infamy to be regretted throughout my lawyer career but that’ s another Texas lawyer story…

March 28, 2019

I wish that I could say, like many of my friends, that I had since childhood always wanted to be a lawyer. Fact is, my wish was to be a soldier but my service in the Korean War made this impossible, and when the Army kicked me out, I began searching for another profession. The doctors at Brooke Army Hospital advised me against becoming a doctor, saying that if I lost the remaining eye, I would not be able to even diagnose measles. They suggested the law.

“There’re plenty of blind lawyers.”

At that time, although I was a captain and close to five years in the Army, I was still only a high school graduate. The lawyers I knew about in Worcester were highly respected and well-educated people. While on leave in Worcester, waiting for severance, I told my dad I didn’t think I was smart enough to be a lawyer. He suggested I visit with Judge Meagher, a newly appointed superior court judge and a family friend. The judge was very kind and invited me to sit in and watch one of the great Boston lawyers, Paul Smith, defend three armed-robbery defendants to be tried in his court the following day.

This was in 1951 supposedly in advanced Massachusetts. I arrived, and after sitting at the back of this very large majestic courtroom, saw the three defendants – young 17-year-olds – handcuffed sitting in a cage in the middle of the courtroom. The jury had previously been picked, the opening statements were made, and the district attorney began questioning his first witness, a big police sergeant. sitting in the witness chair. At some point during the cross examination of the officer, things got hot, and before anyone knew what was happening, Mr. Smith picked up a chair and threw it at the witness. The courtroom was cleared, and I found out later that all three defendants were acquitted. This obviously had some effect on my decision to become a lawyer and to be licensed not only in Texas but also in Massachusetts.

Years later, Paul and I became good friends through our association in NACDL and in trying a case in the Commonwealth of Massachusetts but that’s another lawyer story…

March 28, 2020

One of the great things about Texas is its politics, particularly as it relates to prosecutorial or judicial office. You don’t need the permission of any political machine or appointive authority, you just announce, pay the filing fee, and run in the primary of one of the two political parties. You of course have to have the legal qualifications to do so. In 1961, Les Proctor decided not to seek re-election as District Attorney of Travis County but instead to run for attorney general. Tom Blackwell, then county attorney, immediately announced for the office of district attorney, leaving the office of county attorney up for grabs.

I had been prosecuting and doing the so-called Lord’s work, away from home, all over the state and now I felt it was time to reap the harvest. But should I leave this cushiony $13,000-a-year job with the attorney general? Two hours before the deadline, I filed in the Democratic Party primary for the office of county attorney. Three others had already filed: CJ Taylor, a highly respected Austin assistant city attorney, Frank Hoagland, a wealthy well-known private lawyer, and Wally Shropshire, ex-FBI now a lawyer in private practice. Two of us ended in a runoff, Wally and myself. It was obvious from the start that I was the underdog, an outsider. All of the liberal coalitions endorsed Wally. I had the newspaper endorsement and some of West Austin. Wally’s slogan was, “We don’t need anybody from Boston telling us who to prosecute in Austin.” He had two other powers going for him: his lovely wife Doris Shropshire, a true hard-working campaigner, who several years later was elected to the office of county clerk; and his beautiful 10-year-old son who appeared on TV with his dad, saying, “I want to help,” and playing his guitar singing, “Oh where have all the flowers gone.” The election was over before it began. “Where have all the votes gone?” For every two votes that I got, Wally got three. So began Frank Maloney, Attorney at Law – $50 a month office on the sixth floor of the Capital National Bank Building in Austin. I did not know it then but losing that election was the best thing that could have happened to me . Here I was, in 1962, the Warren Supreme Court, and a broke lawyer, but that’s another lawyer story…

PS: Proctor, having made his reputation by prosecuting many state officials, was beaten by past speaker of the house Waggoner Carr and Austin lawyer Tom Reaveley. Carr won in the runoff and Reaveley later became a 5th Circuit federal judge. Proctor became a member of the new Austin law firm of Proctor, Maloney, and Fullerton.

March 29, 2020

It is embarrassing and hurtful remembering those times when super ego controlled your life.

Such was the time when I appeared as an assistant DA against a classmate who did not practice criminal law and who was appointed to defend a man charged with theft of an auto enhanced in the charge with two prior felony theft convictions, making a life sentence mandatory if convicted. I will not name my classmate as he wants to forget that he ever appeared as a defense lawyer in a criminal case. He was one of the cleverest men I ever knew and became a great Texas philanthropist, leaving millions to a Texas town and to the college in that area many years later. This was his first trial in any court and about my 10th as a prosecutor. During the voir dire of the jury panel, he told them about the defendant’s two prior convictions. This was a surprise, because the jury was not allowed to know about those priors unless the defendant was convicted by them of the primary offense and only then at the punishment phase of the trial. Both the judge and I thought my classmate had made a terrible mistake and the judge cautioned him and asked if he wanted a mistrial. No, he wanted to continue. After selection of the jury during recess, I immediately offered a plea deal of 10 years waiving the enhancement count. I was afraid any conviction would be overturned on Sixth Amendment grounds, inadequate counsel. No deal, he said.

The evidence produced by me clearly and without question showed that the defendant stole the 1960 Ford in a wealthy neighborhood in north Austin and wrapped it around a tree near the courthouse where he was then arrested. Adding insult to injury, he testified that the reason he stole the car was that he was late reporting to his parole officer on the day of his arrest. There was no evidence to support this assertion by the defense, other than the fact that he was late for his appointment by a month. After the case was received by the jury, my classmate and I left the court and went downstairs to Nellies for a cup of coffee. Before she could take our order, the court bailiff appeared and advised that the jury had reached a verdict and the judge was waiting for us. I felt sorry for my classmate and tried to comfort him, telling him he should not take this to heart.

A verdict after 10 minutes. Unheard of. They couldn’t have even selected a foreman in that time. We arrived back in court, the sheriff brought the defendant in, and the jury was seated and asked by the court if they had reached a verdict. “We have, Your Honor,” and handed the verdict form to the bailiff to be delivered to the judge. After the judge had studied the verdict form, he handed it to the bailiff to be redelivered to the foreman. “The defendant will please rise. The foreman will read the verdict.”

The foreman stood and with a commanding voice read: “We the jury find the defendant… NOT GUILTY.”

March 30, 2020

The general public of Texas and elsewhere, those who consider themselves in the know, feel that the Attorney General of Texas is in control of all of the district attorneys, the prosecutors, and has criminal jurisdiction throughout the state, i.e., a super, super DA. Nothing could be further from the truth. In fact, the AG has no criminal jurisdiction, and absolutely no control of the district attorneys. Why this is a belief is explained by perhaps a comparison with the federal AG office and its control over the United States attorneys. The fact is that the people of Texas have a strong belief in local government, without any interference or control by Austin. Enter Will Wilson, a powerful, courageous, successful prior district attorney of Dallas County in the late ‘40s, a Supreme Court of Texas Justice in the ‘50s, and soon to be Attorney General of Texas in the late ‘50s and early ‘60s. Seeking the office of attorney general, he ran on the platform that he could curb crime and punish criminals severely. He was elected overwhelmingly. The situation involving crime in Texas had changed, effected by the Vietnam War, the use of drugs by young people, the sexual revolution, and other forces, all of which brought about a change of living and views of many Texans and the rest of the country. Wilson headed an AG office of over 100 lawyers but few were trained in the field of criminal law.

His office was organized to advise and represent the various divisions of state government and take on the massive job of condemnation for highway growth. The condemnation lawyers comprised most of his office. Without criminal jurisdiction, all he could do was offer assistance to the various district attorneys around the state but with what? He had a division which he inherited from his predecessor euphemistically called the criminal division. It had one chief, Riley Fletcher, a competent prior district attorney who had in his division seven lawyers, none of whom had ever been in criminal court and all of who had worked as house counsel in various state offices like game and fish, liquor control, comptroller’s office, etc.

Wilson’s first assistant strongly disagreed with his boss on the duties of the attorney general, Leonard Passmore, a remarkable lawyer in all phases of law, politically knowledgeable, savvy about the ways of Texans, a rural Texan along with Byron Fullerton, the number-two man in the AG’s office and another rural Texan, both with uncommon good sense, placated their boss and convinced him to relieve poor overworked Riley Fletcher and assign him elsewhere, thus allowing the office to do its job as the legal representative of state agencies. For a short time at least. But too much was happening and Wilson felt he was needed rightly or wrongly to get involved. Billy Saul Estes, deviational drilling in the East Texas field, gambling and the slot machine, Maceo Brothers in Galveston, removal of the sheriff and prosecution in Jefferson County, investigation of the District Attorney of Bexar County. Enter Frank Maloney from the Travis County District Attorney’s Office, newly appointed assistant attorney general and now super new chief of the law enforcement division. But..that’s another story, or many other stories, about lawyers in Texas…

March 30, 2020

There existed some highly respected lawyers in Austin in the ‘50s. The law firms were small and excelled in the various fields of civil law. Perhaps the most powerful politically was the Clark Thomas firm. Mr. Ed, as he was referred to, was Lyndon B. Johnson’s mentor and lawyer from the time L.B.J. was elected representative of the 10th Congressional District in the ‘40s all the way through L.B.J.’s presidency. There were other law firms in Austin, excellent ones representing clients from all over the world, but none of the big law firms from Houston. Rumor had it that Mr. Ed just wouldn’t allow it, but that was the civil law bar.

The criminal bar was another animal altogether, barely getting by in some instances, but independent – one or two small firms, but usually in competition with each other for the few clients who needed representation in the courts. Paul Holt and Perry Jones had the majority of cases, half of them non-paying clients. You might say they were, along with the other criminal bar members, the unofficial public defenders long before Gideon v. Wainwright. In the ‘50s, only the poor were prosecuted for the property crimes and the drug offenses, i.e., “only the poor, the minorities, committed crimes.”

The Vietnam War, university student disruptions, youthful drug use, LSD, speed, marihuana, the sexual revolution – all of this changed the practice of criminal law. The criminal lawyer became a desirable commodity, the better ones sought after by disappointed parents of their offspring.

And the court system changed, too. Additional courts were created throughout the state; Travis County received a new criminal district court, relieving the three district courts of their criminal jurisdiction . The judge, his Honor Mace B. Thurman.

As crime increased, the criminal bar exponentially increased. The new firm of Proctor, Maloney, and Fullerton always ready to “inherit the wind,” reaped the harvest primarily because of its “vast experience.” Ah, that is another lawyer story…

March 31, 2020

There were some great district attorneys of Travis County over the years, all different from each other, influenced by the law of the time, the assets they had, the people they served, and the political desires of the community. Some were more effective or less effective than others in different requirements of the office. The ones most familiar to me are people I had dealings with during my practice. Governor Dan Moody, who as district attorney of both Travis and Williamson Counties, convicted and cleared the state of the Ku Klux Klan, is probably the most famous. My dealings with him came long after when I was third chair as assistant DA and he was defending the son of a person who had been of great help to him as a young lawyer. This was a rare thing for him at an advanced time in his career as a prominent civil lawyer. He was impressive even then in the courtroom.

Jack Roberts, later a district judge and then a federal district judge, gave me hell every time he could while I was working for Proctor and then again when I was in private practice before him in federal court. Proctor respected him and valued his advice. There is a story about him that when he was the district attorney prosecuting in the old two-story-high ceiling 126th District Courtroom on the west side of the courthouse, he timed his closing arguments before the jury to be at around three p.m. just as the sun came through the upper window, spotlighting him. He would intone, “Give this jury a sign, oh Lord.” Both he and Paul Holt served together as Army investigators arresting deserters and draft dodgers during the war.

I really know very little about Bob Long. Les Proctor defeated him in a hotly contested race. I do know that Sam Kimberlain, an ex-Marine and fine lawyer, was one of his assistants and thought very highly of him.

I suspect that I probably am prejudiced about Proctor. He hired me right out of law school and taught me how to practice law ethically and correctly. His belief was that each case depended on fact and law and its disposition should be governed by that and not personality. He believed that if a prosecutor followed the law, he could not be correctly criticized. He tolerated no infraction of the law by his people; if that occurred, it brought about immediate dismissal, no excuse. He was highly respected and often honored by the district attorneys around the state. In my 60 years of practice, I know of very few who could approach his excellence as a lawyer.

Robert O Smith. What can I say. I cut my teeth as a defense lawyer against him, defending numerous kids, drug cases, killings, defendants charged with multiple student killings, politicians, Muslims, and numerous others. He was a Proctor clone, honest, efficient, and fair…one of the best.

Tom Blackwell was the last of the full time in-court prosecutors. He was tough and had some pretty good assistant DAs – people like Phill Nelson and others. Ronnie Earl, Emile Limberg, the first woman district attorney, and Margaret Moore each presented Travis County with new and different directions. The office became metropolitan in size. Victims’ rights became a serious factor, and more emphasis on office administration rather than court room ability, but that is another lawyer story…

March 31, 2020

I graduated from law school in 1956. I was not a great student but passed the bar exam along with two of my friends taking it as a preparation for the future exam, thinking we would not come close to passing since we still had a semester left in law school. Because of this fortunate event, I was able to volunteer time to the Travis County District Attorney’s Office during my senior year, which ultimately led to my being hired at graduation. Which brings me to the question, “What happened to a law school graduate in the ‘50s? How did he start off and try to become successful?”

First, not all graduates of law schools want to become lawyers; my classmate Chauncey Depew Leake was one person who had come to law school from Wall Street and wanted to return there, which he did, making his millions in venture capital. Secondly, those who did become lawyers, if their grades were in the top 10 percent, went to the large law firms and if they put in enough billable hours, made partner and ultimately retired rich like several of my classmates. Some of my classmates went to work for the state and never left. Some, like another classmate Harry McPherson, went to Washington, became a senior adviser to the president, wrote a book, and ultimately became successful in a Washington practice. But the majority of us in 1956 went home and hoped for the best as sole practitioners or with another lawyer in some type of law.

I think it was as it is today. Unfortunately law school graduates, even after passing the bar, are not really capable to act as lawyers. We learn from casebooks and texts how to think like lawyers and some have some experience, but are we ready? Some states like New Jersey require a one-year internship before you can do lawyering on your own.

It was not until 1977, in Bates v. St Bar of Arizona that the Supreme Court of the United States held the prohibition against advertising by lawyers was unconstitutional. So, in 1950, how did the sole practitioner in criminal law get proficient and attract clients?

There was never any type of law that I wanted to practice except criminal law. I was told that in order to learn, I should become a prosecutor; make my mistakes on the state’s time, not while defending some poor devil. I learned that a legitimate way to advertise was to run in an election for a lawyer’s job. Charlie Tessmer, a successful criminal lawyer in Dallas, told me to lecture on law wherever and whenever I could and to write papers and a book, which I did. The best thing though was teaching at the University of Texas as an adjunct professor from 1962 to l980, the required 4-hour course initially until my practice would not allow me the time and then a seminar every other semester on state or federal criminal law. This was really fortuitous, because in the early ‘60s, the Earl Warren Supreme Court began a new era in the field of constitutional criminal law with its decisions on the Fourth, Fifth, Sixth and Fourteenth Amendments a subject that had to be taught in the law schools and was very important in the defense of criminal cases, particularly in search and seizure and confession cases. Soon, I was overwhelmed with new cases since I was teaching the subject.

An additional method of getting known was difficult and time-consuming – becoming active in state, local, or specialized bar work, interacting with your fellow lawyers. This I did by reluctantly becoming president of the Texas Criminal Defense Lawyers Association in 1971 and happily becoming president of the National Association of Criminal Lawyers in the late ‘80s. Referrals from other lawyers is an important source of clients.

Of course, this was all good, but to put food on the table, you had to try cases and have some type of success in the courtroom. Some of my classmates became great trial lawyers, also some of the great trial lawyers in Texas – Percy Foreman, Warren Burnett, Richard Racehorse Haynes, Emmet Colvin were all sole practitioners. But that is another lawyer story…hopefully about someone else…

PS: No one gets to be successful in this field without a hell of a lot of help from others and sometimes we hog the credit…

April 1, 2020

It seems like I should be driving my 1993 Jeep out of my garage at Cape Cod today as I did last year. My sailboat Defiance is already back in the water at its mooring ready to sail the seas of Nantucket Sound. At age 92 I can have these happy-day thoughts, hoping that there will be more soon, yet realizing that we are now experiencing a different world presenting severe challenges and heartbreaking events.

There was a minister, Carl Marney, in Austin who had a TV show in the ‘60s called These Things Too Will Soon Pass. He often lectured to the police during their training; some believed him, some were not too happy and more cynical about the future.

Those were happy times in Austin in the ‘50s; before the turmoils of the ‘60s; before the horrors of the Vietnam War, the riots and marches of students, the strong counter measures against them by the police and authorities, the War on Drugs, and young people being caught up in all of this.

The City of Austin, with more pedestrians than automobiles parading along the “drag,” presented kind of an undisturbed laconic atmosphere with a kind and considerate people a happy place to practice law. On the downside, there were underlying race problems, but they had yet to be exposed. The Civil Rights movements, Jack and Bobby Kennedy, Martin Luther King, were to bring us to new horizons in the ‘60s. But in the ‘50s, the Korean War, the Cold War seemed to be problems not of too much concern and like Miss Scarlet , “We’ll think about that tomorrow.”

In the district attorney’s office, outside of a few murders on the east side, some small pot possessions, and a few misdirected politicians, our biggest problems seemed to be out-of-wedlock pregnancies and child support complaints. The out-of-wedlock pregnancy seduction complaints usually were solved by grand jury marriages where the grieving mother of her pregnant daughter complained to the district attorney, who then presented the matter to the grand jury who subpoenaed the miscreant offender, gave him a choice of prosecution for seduction or marriage, and then marched him and the new bride-to-be to the justice of the peace, who waived the license and performed the short version marriage ceremony (free of charge). Being very Catholic about this, because I was the designee to present these cases to the grand jury, the secretaries in the office soon dubbed me “Marrying Sam.” Child Support was a different matter and because the law at that time put jurisdiction enforcement of failure to pay crimes in the various district attorneys’ offices along with maintaining the collection trust fund, it consumed much of the time and efforts of the office. It was a political nightmare, but that’s another lawyer story…

April 1, 2020

“Yesterday is dead and gone and tomorrow’s out of sight, and it’s sad to be alone. Help me make it through the night.” Kris Kristopher’s wonderful song, “Help Me Make It Through the Night.”

I am not necessarily a gregarious person, and I enjoy being alone…sometimes. This period of hibernation is presenting me with a lot of time to be alone and in order to get through it, I have decided to drag up some of my memories of old lawyer friends or stories about them, with the hope that neither they nor their estates will bring suit against me.

Percy Foreman: One of the best with national stature, impressive. In a crowded room, all 6’4” of him, with his huge head, would command the attention of all. Proctor and I were retained by the wife and the brothers of a cardiovascular surgeon from Boston who was in Austin to become a partner in the practice of surgery with an Austin surgeon. Apparently, the Boston doctor became violent and suffered a nervous breakdown upon arriving in Austin.

I arranged to have him arrested on a sheriff’s warrant and conveyed to the Austin State Hospital for examination. Under the law at that time, if two psychiatrists certified he was mentally ill and a danger to himself or others, he could be detained for treatment. However, absent consent he was entitled to a jury trial in county court within seven days. On the day of trial, in walked Percy Foreman with two beautiful women, one on each arm. The case went on for three weeks before a jury and County Judge Watson, who was not a lawyer. That produced a strange situation: The lawyers would make evidentiary objections and then decide between themselves how to rule. The jury found that the doctor was mentally ill but not dangerous to himself or others. The case produced national press and a picture of Percy and myself in the New York Times, where Percy is calling me the dumbest lawyer in the country. A week after the trial, Percy called me on the phone asking me to please get the good doctor out of his office where he had been camped since his release. Percy and I tried several cases after that on referrals to and from each other. I was always impressed by his abilities.

Other great lawyers: Richard Racehorse Haynes, Warren Burnett, and many more who I tried cases with, but that’s another lawyer story…

April 2, 2020

The poor prosecutors in Texas and elsewhere during the ‘60s and early ‘70s had it tough. Not only did the Supreme Court unload on them with the decisions of Mapp, Miranda, Escobedo, et al, but the Fred Erisman State Bar committee successfully got the legislature to enact a new code of criminal procedure, which encompassed all of the case law of the Supreme Court and more. In the late ‘60s, they had had enough. The Keaton Committee was eagerly preparing a penal code based on the very liberal MPC of the American Law Institute as Florida, Indiana, New York, and California had already enacted, and that coupled with drug use and the rise in crime throughout the state, brought forth a cry of pain and injury by the various district attorneys and their need for help.

The district and county attorneys association, the sheriffs association, and other state and local law enforcement groups massed together to form a powerful lobby and as a thunderous herd descended upon an already citizen-plagued legislature swamping them with draconian-type law enforcement legislation. Enter the about-to-be-newly-formed Texas Criminal Defense Lawyers Association, organized in Dallas during the State Bar Association Convention in 1971 through the efforts of Tony Friloux of Houston and Phil Burleson of Dallas, both of whom had a large group of followers at this hastily called organizational meeting at the Dallas Petroleum Club and both of whom felt rightly that he should be president. Since most of the outstanding criminal law lawyers of the state were there, you could say the place was overloaded with egos all with their own ideas and strongly backing either Friloux of Houston or Burleson of Dallas. Soon both came to the realization that neither could be president at that time and they wanted the association to exist, so they agreed that they should elect an interim president now, Friloux becoming president the next year in Houston, and Burleson assuming the presidency the following year at the bar convention in Dallas. But who should we vote in as president now? We all looked about the room in search of the most innocuous person….Ah, Frank Maloney. No, said I. I was already saddled with too much. The trial of a state senator scheduled next month, the trial of the speaker of the house the following month, and other trials piling up. Yes, you will, said Emmet Colvin, Tony Friloux, and Phil Burleson, and my overwhelming ego said yes. Wow, to be a president of something. I went back to Austin, expecting the association dues to start, hired a young Harvard Law graduate Bill Reed to be executive director, rented an office in the Brown Building for him, and I resumed practicing law. The association became a great success with over 300 dues-paying highly selected lawyers in the first year. More about this later and the hard-working lawyer presidents who followed…

PS: The association was not meant to be a good-old-boys’ group as NACDL was at that time, nor was its purpose just to protect against draconian enactments. This was part of it, but its purpose was also education through seminars, helping each other in practice, amicus assistance, and interaction with each other throughout the state. Its first board drafted bylaws and the corporate charter to be filed with the secretary of state. The board membership was composed of a who’s who of predominant lawyers throughout the state: Foreman, Haynes, Colvin, Tessmer, Semaan, Burleson, and Friloux just to name a few.

April 2, 2020

There are times when it is complete agony in the trial of a case because of the counsel representing a co-defendant, but there are also times when it is a joy, not only because of their astute handling of the matter at hand, but because of their affability. Several lawyers whose personality provided that joy and who I tried cases with come to mind, but the one who stands out above all the rest is Richard “Racehorse” Haynes. I say this because I was forced to share the same motel suite with him in Abilene for a month defending the speaker of the house and two others on an accusation of conspiracy to accept a bribe, which had been transferred on change-of-venue motion by the state from Austin (the so called “Sharps Town Case”).


The case resulted in convictions, but probation and subsequently dismissals. The case was highly publicized both before during and after the trial. The state’s theory was that Frank Sharp had arranged for loans to the speaker, the lieutenant governor, and the governor from the Sharps Town Bank (loans that were not to be repaid), so that they could buy stock in National Bankers Life Insurance Co. at a low rate, a corporation he owned, and he did this in order to get legislation increasing the amount of the insured capacity of his bank. Neither the governor nor the lieutenant governor were indicted, there was never any legislation introduced in the senate, and the governor never agreed to the purchase of the stock. Had the case been tried in Travis County, and if a fair jury was acquired, it might have resulted in an acquittal, but not in Abilene.

The real issue was whether there was an agreement that the loans were not to be repaid. There was no credible proof offered of this or whether Sharp convinced them that the value of stock would increase as it was doing and that the legislation was sound. (In later years, the legislation sought was enacted and became law.) The case required the lawyers being in close contact. One morning at breakfast, I was disturbed by a suggestion of tactics by counsel of one of the co-defendants and proceeded to criticize him. This prompted Richard to say, “Kindly old professor, you take yourself too seriously.” Words and advice I try but seldom am successful in remembering. Haynes was memorable. He kept me laughing each morning and night and probably sane. After the trial, we spent a couple of days crying over the conviction, sailing on my boat and getting drunk. Richard and I shared the lead in the case. This was a mistake. It should have been Haynes all the way. But I had just won the Senator Bates case before a jury in Corpus Christi and had convinced myself that I was “hot stuff.”

PS: We lawyers could tell numerous laughable stories about “Race.” He was one of the most successful trial lawyers of his day and until his recent death…

 

April 3, 2020

Warren Burnett was the epitome of a defiant tiger, a smart one at that. Emmett Colvin, who knew him well, said the guy was born with a book and always had one in his hand thereafter. He was born and raised in Virginia, moved to Texas where he became rich in Midland-Odessa practicing primarily personal injury law, but – and here is what made him the lawyer to go to – he never turned away from a just cause regardless of the money, the strength of the opposition, or the belief that it just couldn’t be won. The problems of the ‘60s and ‘70s, the underdog student activists, the Vietnam War, the fight against what he believed to be a top-heavy state bar unfair and uninterested in activist endeavors of the bar for improvements in the law for the poor, the under privileged, this is what made him famous. Where there was a rebellious meeting to correct a wrong, Warren would be there. He never took a note during trial but was totally ready for his cross examination of witnesses, which was always brilliant.

My first but not last contact with Warren was at the San Antonio Bar Convention or rather outside of the building where it was being held where Warren, at about age 40, was leading a riotously large group of law students who were demonstrating against the state bar on the commons before the Alamo. It was quite a show reminiscent of the great Texas struggle for independence. In the ‘70s I had tried to get him to be more active in the TCDLA production of the new penal code but he said he was too busy in his practice and would probably dislike it anyway. He was right in some ways because, among other things, the 1974 code did away with the requirement of strict construction of its meaning. The legislature in 1970 had rejected the Keaton Committee Code, thus allowing more participation by the prosecutors in the new version enacted as the 1974 Code. Warren never forgave me for this, blaming that “academic Maloney” for this grievous error.

Tony Friloux referred a case to me that he felt needed multiple counsel, finally convincing Burnett to join the defense, allowing Friloux to withdraw. Trying a case with Warren was an experience, a surprise every minute. Warren and I, together with Gerry Goldstein, a well-known San Antonio attorney who represented one of the conspirators, were together for several weeks in federal court before newly appointed federal Judge William Sessions. The case involved several murders in Mexico, fraud, and a so-called “soldier of fortune,” a government witnesses. The jury had a strange but attractive woman as one of its members and she kept pulling her skirt above her knees during the time Warren was cross examining the “soldier of fortune.” This and other conduct by her caused the foreman to seek audience with Judge William Sessions who, with our consent, offered to excuse her. Warren objected and so she was retained, fortunately or unfortunately depending on how you looked at it. During their deliberations, EMS appeared: Apparently, she had broken the foreman’s finger. The jury convicted Goldstein’s client but hung on our client 11 to 1 for conviction. We were told it was the attractive woman who was the holdout for acquittal all because she could never convict a client of that “handsome Warren Burnett.” Sessions was furious with us and ordered the case to the Waco division to be retried the following Monday…

PS: I was then fired by the wife of the defendant for reasons left unsaid, but Sessions would not release me until Warren, who was intentionally late, finally appeared, having flown in his own piper cub through a snowstorm, and resumed the defense. The case after a one-day trial resulted in a conviction and a sentence of what amounted to life.

April 4, 2020

Several months ago, I attended the funeral of one of the better judges who had served on the Texas Court of Criminal Appeals, our Supreme Court for criminal matters. Although we had never been close colleagues on the court, I respected him not only for his keen mind but for his ability to be correct in his decisions. Many of the people who spoke at his funeral remembered him as a strong law enforcement attorney in the prosecutorial division of the attorney general’s office helping various district attorneys around the state. He had been a district attorney before going to the attorney general’s office and before being elected to the court some 12 years before. I was struck by these comments and, in my feelings for him, wanted to correct the impression that was being, what I thought, erroneously given but I didn’t speak and I am thankful I did not disturb those thoughts of the people who spoke as they did. I think they would have misunderstood how hard it is for a judge, as it was for Judge Charles Campbell, to do what all judges have to do, and some never do, and that is put their disciplines of the past on a shelf in order to become impartial and this is particularly true of discretionary review judges, the judges on all supreme courts of each state, and the Supreme Court of the United States.

Judges wrestle with this problem on most of the review cases that come before them because in those cases they are forced to choose between conflicting case law or no case law at all. Judge Campbell and I were from different recent disciplines, and I valued his views and quite often he convinced me to change my view as I caused him to change his. This made us both better in what we did. An example of my respect for him is evidenced by his authorship of Kelly v. State, a case that changed the whole law on the admissibility or lack thereof of so-called expert testimony. True, it was fostered by two Supreme Court decisions, but there was need to also reinterpret a Texas statute and enlarge on the Supreme Court mandates. Judge Campbell showed by that opinion and other opinions by him what a true judge is. He was impartial and correct. I have other stories about judges, but that’s for the future…

PS: President Nixon coined the phrase, “We want judges who will follow the law, not make it.” If every certiorari Judge, every discretionary review judge followed that mandate, few if any reviews would be granted, and there would be no interpretation of conflict or of non-existent law, every issue needed to be decided would remain undecided or sent back to the executive branch, or legislative (congress) branch, contrary to Marbury v. Maddison or McCullough v. Md., leading to the destruction of the separation of powers doctrine. It would be an interesting question of which would grasp the power first; a tug of war between the legislative and executive branches of government…

April 4, 2020

Every Friday night at a local bistro in Dallas County, two famous lawyers would hold court and entertain an enraptured audience of lawyers eager to soak up the wisdom of these two while imbibing in a touch of the bitters. Charlie Tessmer and Emmet Colvin were the two and deserving of this admiration would be an understatement of their abilities and successes both in state and federal Court. (As an aside, in my opinion, if either had defended Jack Ruby, Ruby probably would have been acquitted.) Emmet, from Arkansas, first came in contact with Charlie when Emmet was an assistant district attorney for Henry Wade of Dallas County. Wade set the paradigm for zealous prosecution throughout the State of Texas. His office had promulgated several rules for successful prosecution that were removed because they violated every rule of due process you could think of, particularly in jury selection. Although Emmet and Wade remained friends, he soon realized that heavy prosecution was not his bag and that he should resume defending in federal court. Charlie and Emmet formed a partnership with Charlie handling state defense, and Emmet federal, and were soon accomplishing outstanding professional and ethical work that was recognized by others. After several years though, the partnership dissolved in a friendly way with each continuing their successful practice – in state for Charlie and federal court for Emmett. He felt he was overly successful, until, he said, “The Feds discovered the law of conspiracy.”

In the ‘60s and early ‘70s, Emmet and I and our families developed a strong relationship that would go on until his death in Fairfax, Virgnia, where he had retired. He should have received more recognition for helping TCDLA get going because he was instrumental in helping Phil Burleson in its organization in Dallas. It was there that we began our association in helping each other in the trial of several federal cases including the first RICO conspiracy case tried in Texas. That case involved a kickback scheme with purchases of IBM equipment by Southwestern Bell. Along with employees of Bell, several lawyers and two ex-FBI agents were indicted and all tried in one gigantic trial before Sarah Hughes, the famous judge who had sworn in L.B.J. as president directly after Jack Kennedy’s assassination in Dallas. Judge Hughes was not a happy camper and treated the defense lawyers, her clerk, and the jury harshly, at one point holding a juror in contempt for being late. At the time of trial, a young lawyer, David Botsford, was in the employ of Emmet and played an important part in the trial. We represented a lawyer who previously had been a law student of mine who had unwittingly been caught up in the scheme. Suffice it to say our client, primarily due to the efforts of Emmet and David, was acquitted. Several side events: Besides the heavy drinking at the Playboy Club, which kept us sane, there was an event which involved the good Judge Sarah who, along with Emmett (between marriages), was a bachelor. One morning, halfway during the trial, Judge Hughes scheduled an in-chambers conference for the following day at eight a.m. At the conference, she announced with a twinkle in her eye, “Emmet, today is bachelor’s day.” The conference then ended without any other business as does this story but with many to follow about the great Emmet Colvin…

April 5, 2020

In 1982, a jury in Washington, D.C., under D.C. law as opposed to federal law, found John Hinckley not guilty by reason of insanity of the attempted assassination of President Ronald Reagan. The District of Columbia law contained a volitional incapacity test as opposed to a pure right and wrong test on the issue. The verdict of the jury created a national outrage resulting in hearings before the United States Senate Judiciary Committee where the jurors in that case were subpoenaed to testify and various so-called experts on the insanity law and me also testified on some 10 bills offered to modify or do away with the insanity defense, I guess because I had tried several insanity defense cases or because I had published as an adjunct professor on the issue, or because NACDL asked me to, but probably because my ego insisted that I do so. I appeared representing NACDL. At any rate, having written out my opening statement, I traveled to Washington at my own expense, I testified before Senators Spector, Heflin, and Thurmond. During my testimony, I was interrupted by a quorum call, asked if I should wait, was told by Senator Heflin, “Sure if you want to flap your lips some more?” The only positive thing that I liked about my testimony was that I gave them hell for subpoenaing the jurors and questioning them on their verdict. What a waste of time.

Jerry Gold of Cleveland, Ohio, a past president of NACDL, and an attorney of national repute, a guy who I traveled with all over Europe in the ‘80s, along with some great lawyers on a people-to-people tour, was the legal hero in a book written about the “Mad Murderess of Shaker Heights” by one William L. Tabac because Jerry successfully defended her on an insanity defense. The case was in 1965 and Ohio law was much like the D.C. law was in 1982, but different from Texas law. All three laws encompassed a test dealing with right or wrong but D.C. and Ohio had the volitional incapacity test also. The book was not published until 2018, but Jerry’s accomplishments were widely known. He rather than I should have been the guy testifying. I considered myself an expert on the insanity defense, being the designated authority in the DA’s office in the ‘50s, and having never lost a case involving that defense. The reason was that all defendants who were considered insane by the state psychiatrist were by agreement found insane. No Texas lawyer including myself knew how to try an insanity defense case at that time.

However, when I became a defense lawyer and having observed others in the ‘60s, I utilized the insanity defense in every case I could, in all capital cases, and even in a federal conspiracy-to-kidnap case and several others. I can say that unfortunately none of my defendants were found insane , but none of them were executed all because the evidence offered on the insanity issue explained what made them tick and as my good friend Racehorse Haynes would teach, “You gotta humanize the defendant.”

April 6, 2020

Every middle-size town has at least one or more lawyers who are so universally liked, politically active, and extremely able , that they can occasionally push the envelope in their desire to help their clients, with conduct not particularly important or necessary, or which does not matter anyway..or is just plain laughable. To be this kind of lawyer , and have a successful practice, you’ve got to be loved and respected, but more importantly, you have to be just damn good. Such was Roy Q. Minton of Austin. A fighter pilot during the Korean War, he attended and graduated from the University of Texas Law School in 1961, spent a year with his friend Charlie Burton as an assistant DA in the Travis County District Attorney’s Office, working for Tom Blackwell, and ultimately was recognized as having outstanding abilities by Perry Jones , leading to the formation of the Austin firm of Jones Minton and Burton in 1963.


Anyone who is charged with a crime wants a lawyer who believes in them , a lawyer who will fight for them and win. Perry Jones was that type of lawyer, as were Minton and Burton . Together they had a large and successful practice representing people from all environs charged with every type of crime, creating a very large following.
As the years went by, the young lawyers involved in criminal law, anxious to emulate them in the practice, would gather in “the little red brick school house,” as their office at 1000 Guadalupe was called, for a beer or two on Friday evenings after court to gather pearls of wisdom from Roy and Charlie.
Since the firm of Proctor Maloney and Fullerton was also engaged in the practice of law at that time , Roy and I became vocal competitors. As Roy would much later say, we had a love-hate relationship. I think, and I am sure Roy would agree , it probably was more hate than love. I knew Roy was a fighter and we sometimes ended up with each other’s clients fostering the belief that the two firms were at each other’s throats. It is also true that each time Roy had a speaking engagement, he would spend an inordinate amount of time saying something about Frank Maloney, but what was not known was that there was some cooperation and one or two referrals between us.
There are a lot of stories that are told about Roy; he was the type of lawyer by his actions or imagined actions stories followed and were memorialized. But here is one true story.

He could pick a jury and convince them about as well as any lawyer I ever knew.


PS: Roy is at home today with his lovely wife Barbara, having taken early retirement. His firm with Sam Bassett and Perry and David Minton along with others are there in the “little red brick schoolhouse “at 1000 Guadalupe still as active and productive as though Roy was still at the helm…

April 8, 2020

This is a difficult time for families, a season usually culminating in the happiness of Easter Sunday, and without the fear of this Easter week.
I am reminded of how the military celebrates all of the various religious holidays for those who are on post or in combat areas and of how conscientious the military is in protecting and fostering those religious beliefs.
This is a soldier story about a 23-year-old lieutenant who graduated West Point in 1948 and also of a Catholic chaplin, and their friend, another lieutenant…all of whom had been in Japan in the 1st Cavalry for a year just preceding the invasion of South Korea, and who were then sent to Korea in June of 1950 to defend at the Nactong River defense line.


Just before that, in April or May at Camp Drake, Japan, the Easter and Passover season was celebrated by each company of the Regiment, 7th Cavalary, with Protestant, Catholic, and Jewish services, followed by wonderful feasts in greatly decorated mess halls.
The young lieutenant and the chaplin had, for several months, been carrying on a dialogue about religion, the lieutenant not necessarily being convinced and seriously doubting his own faith. This doubt was to change two months after being in Korea. But the young lieutenant, wanting to believe, was killed while leading his unit during an assault. His body had to be abandoned, leaving him the only casualty there. The chaplin insisted that the lieutenant’s body be recovered. Three volunteers and the lieutenant’s friend went up into the hills and recovered his body. The chaplin and friend then took the lieutenant to grave registration a few miles away in Teague.
At that time in Teague, at the top of a hill was a beautiful and serene-looking Catholic church whose pastor was Korean and could only converse with the chaplin in Latin. They agreed and the church bells rang, the people came, and Charles Frederick McGee, class of 1948, on that afternoon, had his Catholic mass.

April 9, 2020

When as now I have an inordinate amount of time to sit at my favorite place and think back on the events that channeled the direction of my life in the legal world, my thoughts are of the people who I owe so much to. Lawyers, nonlawyers, assistants, and others. The people I worked with in my profession.
In the district attorney’s office, Les Proctor, Bob Smith, Bob Towery, David McAngus, Phil Sanders, Jo Betsy Llewallen, Carol Corley, Ann Swenson. Neilyn Griggs Maloney.
In the attorney general’s office, Will Wilson, Lenorad Passmore, Harry Nass, and Byron Fullerton.
In private practice, Mary Ann Barton, Gwen Montgomery, Rose Snyder ,Ken Houp, David Botsford, Phil Nelson, David Reynolds, John Yaeger, Belinda Wright, Mary Golder Robinson, Sarah Wolk, Tom Black, Doug Hearne, Jack Stayton, Charlie Babb, Neilyn Griggs Maloney, Phil Joseph.
At the Court of Criminal Appeals, Judges Sam Clinton, Charles Campbell, Marvin Teague, John Onion, Leon Douglas, Charlie Baird, Morris Overstreet, Truman Roberts, Mike Mc Cormick. Assistants there Carolyn Denero, Belinda Wright, and of course Valarie Strauss. (The research attorneys of all the judges)
At the law school, Dean Page Keaton, Professors George Stumberg, Fred Cohen, Corwin Johnson, Millard Rudd, Joe Witherspoon, T.J. Gibson, Bob Dawson, Dean Charlotte.
In professional organizations, TCDLA: Bill Reed, Phil Burleson, Tony Friloux, Jo Keagan, Richard Haynes, Warren Burnett, Emmet Colvin; NACDL: Paul Smith, Morris Schenka, Al Kriger, Mike Bender, Terry McCarthy, Bruce Lyons, Emmett Colvin(help in everything I did).
There most certainly were others but these fill my thoughts when I venture in to my legal world activities. There are stories that could fill several books about them and help I received from each one of them..

April 12, 2020

I want to say something about judges.
First of all, not all judges have the same job. Some are “trial judges”and some are “appellate” or “ Supreme Court Justices (discretionary review)”.
Secondly, not all are elected in either partisan or nonpartisan elections; most in this country are appointed by various methods by the governors or in the federal system by the president confirmed by the Senate.


Thirdly, being a judge does not mean that we are fungible.
Fourthly, a basic tenant of any judiciary is its independence from political pressures.
Is there a problem in Texas? Are we getting the best judges? Are elections the best method of selection?
With the exception of municipal judges, Texas elects all of its judges statewide and locally but with obvious problems. This long history has produced the factual ammunition mandating change.
Over the years, several state bar committees headed by the various chief justices of this state , composed not only of lawyers but including journalists , business people, academicians, and members of other professions, have recommended a different method of selection.

Bills have been introduced in the legislature but all have been defeated primarily because of special interest groups.
A common belief is that it would not be democratic if we didn’t elect our judiciary.
But most, including lawyers who should know, do not have the slightest idea who they are voting for either in the primary or the general election. How many of us can name one judge of the nine-member Supreme Court or the nine-member Court of Criminal Appeals or of the 14 Courts of Appeals , or of any of the trial courts, county or district ?
Campaigns cost money, TV, communication media, traveling in this huge state; where does it come from?

Mostly from lawyers. The public is shaken as they should be by this. It almost sounds like bribery. In the general election, people vote for judges by their party. History shows us that by this method, we have elected some terrible judges and it takes four or six years to get rid of them if we ever do.
What is the solution?
At the very least, take us out of partisan elections. If we have to be elected, let us run as independents.
We cannot endorse a party platform, we have no business saying we can.
The justices of the Supreme Court, the Court of Criminal Appeals, and the intermediate appellate courts should be appointed by the governor from a council recommended number of the best, confirmed by the Senate, who will then run against themselves after six years, i.e., “Should X be retained”


The trial judges, since they would be running in county local elections and therefore screened and known, could run as independents and, if elected, after four years run against themselves, i.e., “Should X be retained?” If no, then a new election is held.
The above is the recommended solution of the various research committees and is utilized by many states.It is not a perfect solution, but it is better than what we have.


I ran for an open seat on the nine-member Court of Criminal Appeals in the Democratic primary, runoff, and against a Republican judge from Dallas in the the general election in 1989. I was elected to a six-year term. At that time, Texas was a Democrat-oriented state as it had been since theCivil War.
This changed so that in 1996 when I ran, against my better judgment and the advice of others including my friend Ann Richards, for re-election and as the only in-office statewide Democrat, I along with most Democrats suffered ignominious defeat by the Republican takeover of the state. (I was endorsed by every newspaper in the state except the Lubbock Avalanche Journal, had a 10-to-1 vote in the bar poll, and even some Republican help. I campaigned all over the state. My Republican opponent never left his office, did not campaign, did nothing except announce as a Republican.)

PS: I have to admit that after my defeat, I was not too unhappy. I sat as a visiting Judge in most of the 14 Courts of Appeals for a couple of years by assignment of the Supreme Court, and then by assignment to the various trial courts in Dallas, Houston, San Antonio, El Paso, Austin, etc., all very enjoyable. During this time I continued to teach at the law school and was of-counsel to a great Houston-Dallas-Austin law firm that allowed me to do this, retiring in 2012.
The Republican Party during those years captured the judiciary. If you wanted to be a judge, you ran against a Democrat. The Republicans elected several people who became embarrassments to them and fought hard to get rid of them with partial success in the next election cycle. Conversely in some Democrat areas where appointments were made of excellent Republican judges , they were defeated in the next election cycle because they were Republicans.
I wish that I could add a little humor to this, but there is nothing funny about an inadequate method of selecting the third branch of government .

April 12, 2020

Another story about Percy Foreman.
When oil controlled rough and tough Houston, and the authorities were trying, in some instances illegally, to put a lid on the crime rate, the best lawyer in the state was Percy Foreman and he ruled the roost.

Recognized throughout the country for his flamboyant behavior and success before juries, he was literally hated by every law enforcement agency within the state including the Texas Rangers. Particularly the Texas Rangers. And he had a mutual feeling for them and did everything he could to defeat their efforts.
Houston was a boom town in the ‘50s and ‘60s and geographically was spreading out all over the place. The newly built Glen McCarthy Shamrock Hotel seemed to attract celebrities and Percy quite often was seen having breakfast in its beautiful dining room because at that time he held possession of a suite of rooms there.


The rangers during one of their important statewide investigations suspected Percy of having secreted evidence of one of his clients, who was the subject of their investigation, in his suite of rooms. Three of the rangers went to his suite, pounded on his door, and tried to gain entrance.

“No search warrant, entrance denied!” roared Percy.

This was before Mapp v. Ohio and the rangers were not accustomed to being denied. In fact the sound of their boots brought fear to the hearts of their suspects. The rangers stood in the doorway perplexed. Percy turned his back to them, dropped his pants, and mooned them, whereupon one of the rangers hit Percy, breaking his nose.
The press took pictures of Percy with an exaggerated splint and bandaged
nose with captions: “Foreman fights rangers on illegal search.”


A million dollars’ worth of publicity on the fight against tyranny, claimed Percy to his acquaintances..

April 14, 2020

Another story about Racehorse Haynes. Although I have no empirical proof, most of the lawyers in the field of criminal law do not like to appear in federal court as opposed to appearing in state court. The reasons vary: The federal system is too hard, too formal, too complex in law and procedure, too nonnegotiable. The overriding reasons: too powerful and not controllable.

The American Bar Association has as one of its stated purposes the job of educating its members in the field of federal practice, no easy job.
The ABA, at one of its annual meetings, created a program where four different lawyers out of the presence of each other conducted a live cros-examination of a federal tax agent in a mock federal tax-evasion case , Agent Tadowitz from Baltimore. The judge presiding over the seminar was Judge James Nowlin, Western District of Texas. The U.S. attorney from Chicago representing the government. The four attorneys cross- examining individually: one from Washington, one from San Francisco, Bob Richie from Tennessee, and Albert Krieger from New York and Miami. I was the moderator. Richie and Krieger were outstanding , the other two were adequate but not stars.
It was then that I realized I should have invited the greatest cross-examiner of all time to participate: Richard Racehorse Haynes..

Sometime in the ‘70s, Race was defending some poor citizen charged with a federal crime in Judge John Singleton’s federal district court in Houston. He had agreed to defend this person at the request of Jim Kronzer, one of the leading trial lawyers in Houston and a close personal friend of both Judge Singleton and Race. The case ended in a rare conviction for Race and he requested that I handle the appeal, so I got to read the record and from Kronzer got the rest of the story.
Each successful cross-examiner has his or her own method of emphasis in cross-examination depending on a myriad of factors.

Race’s method was detail, detail, and detail regardless of the case. He was usually successful in getting what he wanted from the witness, particularly in state court, but this case was before a jury in Judge Singleton’s federal court. During his cross of the principle government witness, an FBI agent, concerning the agent’s entry into the defendant’s home , the agent having testified on direct that there was a key in the door, the following occurred:

Race: You say you had a key.


Agent: Yes


Race: What did you do with the key?

Agent: I put it into the keyhole in the lock.


Race: Where was keyhole?


Agent: In the door.


Race: Was there a knob on the door?


Agent: Yes.


Race: Was the keyhole above the knob?


Agent: How do I know? I don’t know.


Race: Was the keyhole below the knob?


At which point, without objection from the government–

Judge Singleton: Stop, enough is enough. Move on.


Race: Where was the keyhole?


Judge Singleton excused the jury, held Race in contempt, and stated he would assess the proper punishment at the end of the day.The jury was then brought back and Race resumed his cross examination.


Race: Where was the keyhole?


The judge excused the jury, ordered the marshall to take Race into custody, and instructed Race that trial would resume the following day and that a night in jail would do him good.
The following morning, resuming his cross-examination–

Race: Where was the keyhole?


The trial somehow went to verdict with Race spending three nights in jail and with Kronzer appealing to Judge Singleton to release Race at the end of the trial, which the judge agreed to do, providing Race apologize to the court.
Race never did apologize until a chance meeting in front of the Rice Hotel months later. There were other ramifications, but Race’s view was he didn’t like federal court anyway. The fact of the matter is that Race was very, very successful in federal court and always victorious. He and Judge Singleton much later became fast friends and were honored together as leading law octogenarians…

To be continued.

Padilla at 10: Myths, Facts, and Tools for Immigration Consequences of Conviction

1On March 31st, Padilla v. Kentucky turned ten. The United States Supreme Court held in Padilla that criminal defense attorneys must advise their clients of the immigration consequences of conviction.2 Despite a clear mandate, Padilla compliance and resources remain low while Padilla litigation—including ineffectiveness claims—continues to rise. In this article, we dispel three myths about Padilla and share with you a new tool that may help Texas defense attorneys.

Myths and Facts

Myth 1: A Padilla “cheat sheet” can tell me the immigration consequences of any offense in the Texas Penal Code.

Fact: Immigration consequences depend not only on the offense, but also on a client’s criminal history, immigration status, and available options. An immigration consequences cheat sheet—e.g., this offense is a “crime involving moral turpitude” (CIMT) and could trigger immigration consequences—doesn’t suffice.

Let’s take an example.3 If your client is Mario, a Legal Permanent Resident (LPR) with no priors, who first entered the U.S. as an LPR 2 years ago, now charged with a State Jail Felony (SJF) theft: Mario will be rendered deportable by a “conviction for immigration purposes”—let’s assume deferred adjudication4— of this offense.5

But if your client is Maria, who is like Mario in all respects except that before becoming an LPR, she entered on a tourist visa 6 years ago: Maria won’t be rendered deportable by taking deferred adjudication for this offense6, but the final result will make her inadmissible7—meaning ineligible to return as an LPR from a trip home to see her family—and you’d need to advise her of that.

Now, let’s assume that, instead of an SJF theft, it’s a Class B. Mario won’t lose his green card as a result of that plea.8 But Martin, who is similar to Mario in all respects except that he had a prior theft conviction last year, will.9

And what about Mario’s eligibility for bond from immigration detention? Maria’s eligibility to naturalize (become a citizen)? Martin’s ability to apply for relief from removal in immigration proceedings?

We quickly see that a cheat sheet doesn’t cut it.

Accurately advising your client10 about how an offense will affect them—as to deportability, inadmissibility, eligibility for bond, and eligibility for relief from removal11— will depend not just on how immigration law categorizes the offense, but also on your client’s immigration status and prior criminal history.

Myth 2: I don’t need a Padilla consult for certain offenses.

Reality: Immigration law changes rapidly. What’s an immigration-safe plea one day may not be the next. We’ve seen the following major recent changes to crimmigration:

  • Major overhaul in the way the Fifth Circuit interprets 18 U.S.C. § 16(a) and thus the “crime of violence” aggravated felony ground and “crime of domestic violence” deportability ground12
  • Some pretrial diversion agreements considered convictions for immigration purposes13 and continuing litigation about the scope of that decision
  • Subsequent DWI conviction as a presumptive bar to “good moral character,” which is relevant for certain immigration purposes14
  • Manufacture/delivery conviction considered a “particularly serious crime” despite not being a drug trafficking aggravated felony15
  • Significant flip-flopping about whether Texas burglary is federal burglary16
  • A proposed rule by DOJ/DHS which would make individuals ineligible for asylum if convicted of a DWI, a controlled substance offense, a domestic violence offense, any felony, and more17

And we are awaiting two Supreme Court decisions argued this term: one on the future of the DACA program18; the other on whether certain crimes affect an LPR’s eligibility for cancellation of removal.19

Because this area of the law is dynamic, any time you represent a client who is not a U.S. citizen, you need a Padilla consult.

Myth 3: I don’t need to consult a Padilla attorney. I can just read the Immigration and Nationality Act.

Reality: This is akin to cracking open the Internal Revenue Code to file your taxes. You might get it right, but it’s smarter, cheaper, and less painful to consult an expert.

Crimmigration is one of the thorniest areas of the law. Courts have described the INA as “second only to the Internal Revenue Code in complexity”20 and “dizzying,”21 likening it to “King Minos’s labyrinth in ancient Crete.”22 A Supreme Court Justice has described voluntarily reading the statute as “masochistic,”23 and the Fifth Circuit bemoans that the law “yield[s] up meaning only grudgingly.”24

The Texas Court of Criminal Appeals agrees:

[Because] criminal law attorneys are generally not knowledgeable of specialized immigration law and may not understand the effect of a criminal conviction on a noncitizen . . . we [ ] expect [ ] that criminal law attorneys will rely on their immigration-law counterparts when representing noncitizens.25

Courts don’t expect you to be an immigration law expert. But they do expect you to contact one.

Tools

So, you need to consult a Padilla attorney. Where can you turn?

Many of Texas’s urban areas—including Dallas, Harris, Fort Bend, Webb, and Travis Counties—have Padilla attorneys within public defender and managed assigned counsel offices available to assist often for free. If you need help contacting them, feel free to reach either of the authors directly.

But what about Texas’s other 200+ counties? Until recently, there were few options available for criminal defense attorneys in rural or midsized counties.

Today, if you’re in the 3rd Administrative Judicial Region, you can use a tool called myPadilla. Available online at myPadilla.com, this tool allows defense attorneys to interview clients, submit secure intake forms, and receive individualized, written Padilla advice that ensures Sixth Amendment compliance.

If you represent an indigent client in any of the included counties, your access to the service is free through a pilot program grant from TIDC in partnership with Hays County. While this service is free through the pilot program for indigent cases in the 3rd Administrative Judicial Region, we hope the program can be expanded beyond the 3rd AJR in the future.  For now, feel free to reach out to myPadilla at to discuss your needs and how we can help.  For retained cases, whether in the 3rd Administrative Judicial Region or not, you may access myPadilla for a fee.  

Defense attorney feedback for myPadilla has been extremely positive:

  • “It’s the gold standard; the Rosetta Stone. It’s free to the indigent. Got to be nuts not to use it.”
  • “I can’t imagine not wanting to continue to use it once you try it. It was thorough and easy to use with my client.”
  • “myPadilla is a valuable user friendly tool that provides critical information in a comprehensive report to assist both attorneys and clients in making informed decisions regarding pending cases and immigration matters affecting the client.”
  • “myPadilla helped me feel confident giving my clients information about their criminal case and the consequences it could have on their immigration status.”
  • “It’s fast, accurate, and covers all contingencies.”
  • “It makes a very complex and important legal issue understandable for both the client and defense attorney.”

We invite you to visit myPadilla.com to take advantage of this program or reach out to with questions. We hope you find it a useful resource for representing immigrant clients.

Opinion: Many Texas Judges Acting Inhumanely

Our nation and the world are engaged in an awful battle with a deadly pandemic. Over a million people are already sick and many thousands will die. Officials have urged us to stay at home. They have called on courts to cease operating in all but the most essential situations.

Have all the criminal courts in Texas heeded the official admonishments?

No.

Many of our judges are still requiring the presumptively innocent accused on bond to attend court. These dockets are most often unnecessary. The accused who do not appear risk revocation of their bond and incarceration.

To needlessly require an individual charged with a crime to choose between risking the loss of their liberty or the loss of their life is nothing short of cruel.

People define themselves, particularly in times of crisis. Lincoln said if you wanted to test a person’s character, you need only give them power.

Unfortunately, at this critical time, too many of our Texas criminal court judges have chosen an inhumane path. In so doing, they have failed Lincoln’s character test.

These judges who have abused their authority and needlessly require court appearances have disgraced themselves, the bench on which they sit, and our criminal justice system.

Let these judges who have so acted be remembered for the poor and inhumane judgment they showed when it counted most.

WE WILL NOT BE DETERRED: Reading of the Declaration of Independence 2020

TCDLA is committed to celebrating our freedoms by organizing local readings of the Declaration of Independence throughout Texas every year. This year, perhaps more than ever, our annual patriotic project is especially warranted.

Criminal defense lawyers are at the point of the spear against despots, unreasonable laws, and misguided regulations. We therefore must remind the public how America’s founding document is relevant even in the face of a worldwide pandemic.

State Declaration reading co-organizer Robert Fickman and I invite all members to celebrate the Declaration of Independence on or about July 3 in a reasonable fashion depending on health risk circumstances. We hope you will follow whatever social distancing measures are recommended in your community. It may mean just one TCDLA member will read the Declaration on the courthouse steps without inviting an audience. It may mean a ZOOM reading. Whatever works best in your town is okay, as long as the Declaration gets read. As always, your event should be properly memorialized, so please send TCDLA your best photos/selfies of the reading, and please post the pix on social media.

We will not be deterred by the pandemic. Our commitment to the principles enunciated in the Declaration has never been stronger.

Supreme Court of Texas and Gray v. Skelton: Look Out, Criminal Defense Attorneys

After the Supreme Court decision in Peeler v. Hughes & Luce, criminal defense lawyers felt that they had immunity from malpractice. Ms. Peeler was convicted of tax fraud and sentenced to five years. She sued her criminal defense counsel for malpractice because he had failed to communicate a plea-bargain to her under which she was offered immunity. The Supreme Court dismissed her lawsuit, ruling that a criminal defendant could not sue for malpractice unless and until they had been exonerated, through direct appeal or post-conviction habeas corpus relief.

In its recent decision of Gray v. Skelton, No. 18-0386, 2020 WL 868122 (Tex. Feb. 21, 2020), the Supreme Court modified its holding in Peeler and its prior holding in Hughes v. Mahoney & Higgins, which tolls limitations on legal malpractice claims during appeals on the underlying case. Both modifications make it easier to prosecute legal malpractice claims against criminal defense attorneys.

Ms. Skelton, herself an attorney, was convicted of forging a will. Her story is compelling, and it is hard to understand why she was prosecuted at all, but she was—and convicted. She appealed, alleging, among other things, that her trial counsel rendered ineffective assistance in violation of the Sixth Amendment. The Court of Appeals upheld her conviction and the Court of Criminal Appeals refused her petition for review. Thereafter, she filed a habeas petition, again alleging ineffective assistance. The district court denied the writ, but the Court of Appeals agreed with her and vacated her conviction. The State then dismissed the charges without a second trial. And Ms. Skelton sued her original attorney for malpractice.

The first issue presented by these facts is how a criminal defendant establishes the “exoneration” or “actual innocence” requirement of the Peeler decision. Ms. Skelton argued that having her conviction vacated and all charges dismissed was enough, particularly when she is entitled to a presumption of innocence. Her former lawyer sought dismissal of the claims against him, arguing that her habeas petition may have established his ineffective assistance, but it did not establish her innocence and therefore, under Peeler, she could not sue him.

The court rejected Ms. Skelton’s “presumption of innocence” argument, observing that the presumption is merely a burden of proof rule and Ms. Skelton might actually be guilty of the crime even if she had been acquitted. Had the court stopped there, the only criminal defendants who would ever be allowed to pursue a malpractice claim would be ones who secured a finding of actual innocence in a subsequent habeas corpus proceeding. Securing a reversal and a second trial and an acquittal wouldn’t even be enough because that only establishes that the prosecution failed to carry its burden.

Rather than denying the right to pursue a malpractice claim to all such criminal defendants, the court adopted a modified procedure and a change to the law of professional negligence. For a criminal defendant, the court added to the four original elements of a malpractice claim (duty and a breach of the duty that proximately causes damage) a fifth requirement. Once the conviction is vacated, the plaintiff must obtain a jury finding of actual innocence in the malpractice case itself. The first question the jury will be asked is whether the plaintiff was innocent of the charge and, upon an affirmative answer to that question, the traditional legal malpractice jury issues would be submitted. The plaintiff’s burden of proof on the innocence question is the same as on all other questions: a preponderance of the evidence.

The second issue the court decided deals with the calculation of limitations for a criminal defendant’s legal malpractice claim. The Hughes tolling rule tolls limitations during direct appeals for the criminal defendant the same way it tolls limitations for the civil litigant. The ineffective lawyer representing Ms. Skelton argued, however, that the Hughes tolling rule should not apply to habeas corpus proceedings since they may not be initiated until years after the conviction and since there can be multiple habeas proceedings, one after the other. To solve this problem, the court extended the Hughes tolling rule to toll limitations for the time a habeas corpus proceeding is pending, but there would be no tolling during any gaps between direct appeals and habeas corpus. Thus, a criminal defendant who initiates a habeas corpus proceeding less than two years after the conclusion of all direct appeals would still be able to pursue a timely legal malpractice claim if the habeas proceeding is successful.

The first and most obvious lesson for the criminal defense lawyer from the Skelton case is that they may now be sued for malpractice if they provide ineffective assistance to a criminal defendant client. If you don’t have insurance, it might be worthwhile to consider it. A second related lesson is that criminal defense attorneys should keep track of their clients’ post-conviction activity and track their appeals and habeas proceedings before they discard files. Getting sued without the file cannot only deprive you of the ability to defend yourself, it can also result in a spoliation instruction for destroying evidence.

Inspire Your Clients to Get the Best Results

About five years ago, I started sending my misdemeanor clients a sequence of “life coach” emails that weren’t related to their cases. Each client would receive the first email a week after hiring me, then an email every 10 days or so (currently there are 15 total). The emails offered general life strategies as a way of dealing with the stress of being arrested. I recently received this email in response: 

Hi Charlie,

You represented me in 2017 for a DWI case, and as with most in this situation, it was probably the lowest point in my life. Well, things are definitely better now! I wanted to let you know that I was just accepted for spring admission in the Master’s of Legal Studies. I credit your help not only in making my legal situation better, but also the weekly emails you sent to help make better life decisions, self-care tips, and the reassurances that everything will be OK. Those emails really put me on this journey to go back to school and get out of that life that resulted in a DWI.    

Before I started the email program, I got some pushback from my staff, who thought that I was crossing a boundary and that our clients would consider the emails inappropriate. While I knew this was certainly a possibility, luckily the response has been overwhelmingly positive. Of course, many of my clients ignore the emails; there is nothing I can do about that. But many of them respond with enthusiasm—which prompts a short parable that I’m sure we’re all familiar with:

One day, an old man walked along the beach with thousands of stranded starfish in the sand. A young boy was picking up the starfish and putting them back in the water. The old man said, “There are too many, and only one of you. What difference can you make?” The young boy put another starfish in the water and said, “I made a difference to that one!” 

Of course, my clients didn’t hire me to be a life coach. They did, however, hire me to get the best result on their case. And as any experienced criminal defense attorney knows, clients who accomplish ambitious goals while the case is pending (and can provide documents that prove it) will usually get a better result on their case. 

It is powerful mitigation to show a prosecutor that a defendant has received a promotion, been accepted into college, started seeing a therapist, or completed a marathon. These types of accomplishments often “loosen up” a prosecutor during negotiations, especially if you can convince them that the life improvements were a direct response to the arrest. Occasionally, these documented accomplishments will result in some form of dismissal; other times, just a reduction in the terms of the punishment. But even if the prosecutor is unimpressed, clients who have made significant life improvements are often more accepting of the consequences and more successful during their probation because they’re in a better mental state. Either way, it’s a win/win situation.

The emails that I send include a combination of inspirational advice, practical health suggestions, offers to purchase audiobooks, and questionnaires about their goals. Each email includes links to articles I think are helpful, podcasts, or videos about the topic, and begins with: “This email is part of a series of practical advice on how to deal with the stress of being arrested. It is not specifically related to your case.”  This is the sequence I currently use:

  1. Introductory Message: The arrest is an opportunity to accomplish new goals.
  2. Questions: What goals are they working toward? What are the next (small) steps? Link to online questionnaire
  3. Introduction: Mind Maps (a graphic way to organize thoughts)
  4. Offer: To buy them the audiobook Sober Curious by Ruby Warrington. I use audiobooksnow.com (so they don’t have to use a credit card to open an account).
  5. Advice: Start exercising—running, swimming, etc.—and a request that they provide a photo of themselves doing the new activity
  6. Discussion: Non-alcoholic beers and wine are better than you think! Try them.
  7. Offer: To buy them Recovery (audiobook) by Russell Brand. This is an amazing book that will change people’s lives.
  8. Progress Report Follow-up: Link to online questionnaire
  9. Advice: Discover new online financial resources (budgeting software)
  10. Advice: Declutter and organize their home. Discuss The Life-Changing Magic of Tidying Up by Marie Kondo 
  11. Discussion: Getting audiobooks for free from the library
  12. Introduction: Massive online open courses, free online classes 
  13. Discussion: Local meetings for new interests on meetup.com
  14. Discussion: The Value of Sleep
  15. Suggestion: The power and importance of forgiveness. Link to podcast by Tony Robbins.

Setting up the email sequence can be easily done with any email automation software (Mailchimp, Constant Contact, etc.). There are dozens of options and many are free. I use Contactually.com.

One of the principles of my approach is that people’s likelihood to follow advice is often based on when they receive the advice. It is possible that the trauma of the arrest, combined with relevant advice from their attorney, plus the possibility that following the advice could help their case, will finally get them to make a significant life improvement/change. 

There is a chart that I use to share this concept with clients, and if possible, their families. I first establish the “Life/ Happiness/ Success” line, which shows the moderate ups and downs of everyday life. Then comes the precipitous drop caused by an arrest, which establishes the “awfulness” of the ordeal. 

First, I draw a line that shows the inadequate degree of recovery that is expected by “pessimistic” clients. In other words, pessimistic clients expect the arrest and potential conviction to guarantee that their life will be worse in the future and stay that way in perpetuity. Next, I draw a line that shows what “optimistic” clients think: They can recover and get back to normal. This is where most of my clients think I will conclude my presentation.

However, I continue by drawing a line that goes much higher than the original “Life/Happiness/Success” line—and I emphasize that this is our shared goal—indicating a drastic improvement over their original (pre-arrest) status. The questions for the client then become: What needs to be improved while the case is pending to reach this new level? And how are we going to document the improvements so that I can show them to the prosecutor? 

I understand that not every attorney has the time (or inclination) to send life-coach-type advice to their clients, but at the minimum, all attorneys should make sure that their clients know this important fact: A client’s life accomplishments while the case is pending, if documented, can improve the chances of getting a better result on the case. This message can be communicated in the initial consultation, a subsequent meeting, or described in a paragraph of the legal services agreement. And who knows? Some of your clients will surprise you with what they accomplish.  

There are three important steps toward encouraging your clients to achieve such accomplishments while the case is pending: 

The first step is making sure that each client knows that documented life improvements can affect the outcome of a misdemeanor case. There are no guarantees, but it is likely that at least some of the punishment can be reduced if we can prove to the prosecutor that the accused made some real progress toward an ambitious goal. 

The second step is to encourage (or help) the client identify an ambitious goal. It should impress the prosecutor while also helping the client: getting a GED, applying to college, finding a new job, improving their living situation, starting a business, etc. This strategy is effective because, in general, prosecutors will agree that people working toward an ambitious goal are less likely to be reckless in the future.

The third step is to describe how easy it is to document the progress that is made. Many clients don’t realize that screenshots, photos taken on their phone, receipts, and emails are often sufficient to convince a prosecutor that the progress is legitimate. In other words, the documents don’t have to be original, formal, or notarized in most cases. 

An arrest brings a unique type of pressure. In many cases, our clients have never run up against a system as inflexible as the American justice system. And while some of our clients just retreat into anger and cynicism (refusing to cooperate), some accept the reality of their predicament and follow our advice. When we encourage them to reach for a goal that both improves the outcome of their case and helps them lead a more successful and happier life, everybody wins.

News from the Trenches: SR-22 Requirement Confusion

Hello, my name is Jay Freeman. In addition to being a proud affiliate member of the Texas Criminal Defense Lawyers Association, I have spent the last 40 years or so of my life as an insurance agent specializing in the issuance of the Texas SR-22. As a practice, my agency makes it a point to personally speak to every SR-22 client in order to answer any questions they might have. This often puts us in a unique position to identify procedural changes before they become common knowledge. Recently, we have begun to see a greatly enhanced enforcement by the Texas Department of Public Safety of a requirement that has been around for at least 16 years, but was rarely enforced in the past.

If you have a client who has been convicted of a driving-while-license-is-invalid charge, a driving-while-intoxicated charge, or a drug-possession charge, they are required to maintain an SR-22 for two years from the date of the conviction or their driver’s license will be administratively suspended. The authority for this requirement can be found at 37 Texas Administrative Code, § 25.6 (d)(2)(2004). This requirement is mentioned in the Order of Suspension Letter that the Texas Department of Public Safety mails to the client, in addition to being published on the TDPS website and in their Frequently Asked Questions document.

Although this two-year requirement has been around since at least 2004, in the past it was seldom enforced (and then primarily on drug or DWLI cases). Recently there has been a spike in enforcement of this requirement in DWI cases, so it would be prudent to advise your client of its existence and suggest that they maintain the SR-22 for the two years following conviction. In the past, if TDPS determined that a driver was not in compliance with a requirement needed to maintain their driving privileges, they would send the driver a warning letter giving them 21 days to meet that requirement. None of the people we have spoken with have received a warning letter, so apparently that procedure has changed. It now seems that if the Texas Department of Public Safety determines that your client does not have an SR-22 on file, they will immediately suspend the license without any additional notice to your client. My personal suspicion is that this is occurring because if the client’s driver’s license is suspended, they will be required to pay another reinstatement fee to the department before they can legally drive.

Sadly, the lucky people discover that their driver’s license has been suspended while doing something like registering their vehicle or renewing their license. The unfortunate ones find out about the suspension when they get pulled over for some other reason and suddenly find themselves facing an entirely new set of problems ranging from arrest, impoundment, possible revocation of probation, or a driving-while-license-is-invalid charge (which would start the whole two-year requirement all over again).

While the wording in the Administrative Code seems a bit confusing, there is absolutely no confusion as to the intent on the TDPS website or their FAQ page. The information is, however, quite difficult to find–it has been moved three times in just the last few years. From the TDPS homepage, you must first click on the Driver License tab on the left side of the page. Under the Driver Information & Resources section on this page, there is a column titled Suspensions & Reinstatements. There, you click on the Suspension Notifications link. Under the paragraph titled Suspensions & Withdrawals, there are three tabs labeled:

  • Driving While License is Invalid (DWLI) Suspension
  • Alcohol-Related Offences
  • Drug-Related Offences

Each of these three links contain exactly the same wording:

Obtain a Financial Responsibility Insurance Certificate (SR-22) from an authorized insurance company (an SR-22 must be maintained for two years from the date of conviction).

All of these tabs also contain links to the Frequently Asked Questions page, where this requirement is covered in Section 9.

Perhaps the most disturbing aspect to this situation is that it appears that many of the clerks at TDPS are completely unaware of this requirement. I have personally had a clerk argue with me that this requirement does not exist even after I explained that it is clearly stated on the TDPS website. I have also had several clients tell me that a DPS clerk advised them to cancel their SR-22 because it was no longer required after they reinstated their driver’s license, even though they were still within the two-year window on their conviction. I believe that part of this confusion is due to the way a driver’s status is displayed on the DPS website. For example, if a driver is required to maintain an SR-22 and has the form on file with DPS, the website will show that there are no requirements (while it should show that the requirement has been met). This leads the driver to the false conclusion that they have met all areas of compliance, so they cancel the SR-22. But then the requirement pops back up on their status again and their license is suspended. If your client’s license is suspended solely under this requirement, they will not need to obtain another Occupational Driver license; they will be able to reinstate their license by filing the SR-22 and paying any required fees to the department.

Because very few people at the Department of Public Safety seem to be aware that this situation is even occurring, it is impossible at this point to determine how many drivers are being affected. What I can say with complete confidence is this: Two years ago we very rarely dealt with clients needing an SR-22 to meet this two-year requirement, while today we are seeing it on a weekly (if not daily) basis. And we are only one of the many SR-22 providers in Texas. My fear is that somewhere in the future, DPS might follow the same path in these cases as they did a few years ago with those people convicted in drug-possession cases. They contacted those who had received and pled to traffic violations during the period of suspension following their drug conviction and assessed the surcharges and penalties for DWLI.

In conclusion, my suggestion at this point is to at least make your clients aware of this requirement and explain to them the seriousness of a DWLI charge. One of the common statements we hear from our SR-22 clients in this situation is: “Why didn’t my attorney warn me about this?”

Author’s Note:

While on the subject of SR-22s, I recently wrote an article titled “A Consumer’s Guide to the Texas SR-22.” This is not an advertisement for myself or my company; it is simply a guide to assist those clients in need of an SR-22 and give them the tools to make the proper decisions for their unique circumstance. The guide is divided into five parts:

  • What is a Texas SR-22 and why do I need it?
  • Should I tell my insurance company about the SR-22?
  • I don’t want to get the SR-22 from my company, now what do I do?
  • Will my insurance company know about the SR-22?
  • Should I get the SR-22 through the State Pool?

Many of my friends have made this guide part of their client packets and if you would like to see it, I will be happy to send you a copy. Just drop me a line to and I’ll get one to you.

Jury Selection in Sexual Assault Cases

I. Introduction

There is a certain stigma that permeates sexual assault allegations.  It’s an undefinable icky-ness factor.  This is amongst the few categories of criminal allegations that even some criminal defense lawyers won’t touch.  We all know, though, that not every sexual assault allegation is true and not every accused person is found guilty.  The question, then, is how can we overcome the inherent stigma in sexual assault cases? It starts early.  It starts with framing the issue of the case correctly.  It starts with jury selection.

II. First Things First: The Law

Before any strategic discussion of jury selection particular to a sexual assault case can occur, it is imperative that we be familiar with the law governing jury selection, in general.  Chapter 35 of the Code of Criminal Procedure governs jury selection.   While it is prudent to read the whole chapter, the following articles are the most noteworthy:

A. Excuses – CCP 35.03

Sec. 1.  Except as provided by Sections 2 and 3 of this article, the court shall then hear and determine excuses offered for not serving as a juror, including any claim of an exemption or a lack of qualification, and if the court considers the excuse sufficient, the court shall discharge the prospective juror or postpone the prospective juror’s service to a date specified by the court, as appropriate.

Sec. 2.  Under a plan approved by the commissioners court of the county in the same manner as a plan is approved for jury selection under Section 62.011, Government Code, in a case other than a capital felony case, the court’s designee may hear and determine an excuse offered for not serving as a juror, including any claim of an exemption or a lack of qualification.  The court’s designee may discharge the prospective juror or postpone the prospective juror’s service to a date specified by the court’s designee, as appropriate, if:

(1)  the court’s designee considers the excuse sufficient;  and

(2)  the juror submits to the court’s designee a statement of the ground of the exemption or lack of qualification or other excuse.

Sec. 3. A court or a court’s designee may discharge a juror or postpone the juror’s service on the basis of the juror’s observation of a religious holy day or religious beliefs only if the juror provides an affidavit as required by Article 29.012(c) of this code.

B. Excused by Consent – CCP 35.05

One summoned upon a special venire may by consent of both parties be excused from attendance by the court at any time before he is impaneled.

C. Number of Challenges – CCP 35.15

(a)  In capital cases in which the State seeks the death penalty both the State and defendant shall be entitled to fifteen peremptory challenges.  Where two or more defendants are tried together, the State shall be entitled to eight peremptory challenges for each defendant;  and each defendant shall be entitled to eight peremptory challenges.

(b) In non-capital felony cases and in capital cases in which the State does not seek the death penalty, the State and defendant shall each be entitled to ten peremptory challenges.  If two or more defendants are tried together each defendant shall be entitled to six peremptory challenges and the State to six for each defendant.

(c) The State and the defendant shall each be entitled to five peremptory challenges in a misdemeanor tried in the district court and to three in the county court, or county court at law.  If two or more defendants are tried together, each defendant shall be entitled to three such challenges and the State to three for each defendant in either court.

(d) The State and the defendant shall each be entitled to one peremptory challenge in addition to those otherwise allowed by law if one or two alternate jurors are to be impaneled and two peremptory challenges if three or four alternate jurors are to be impaneled.  The additional peremptory challenges provided by this subsection may be used against an alternate juror only, and the other peremptory challenges allowed by law may not be used against an alternate juror.

D. Reasons for Challenge for Cause – CCP 35.16

(a)  A challenge for cause is an objection made to a particular juror, alleging some fact which renders the juror incapable or unfit to serve on the jury.  A challenge for cause may be made by either the state or the defense for any one of the following reasons:

    1. That the juror is not a qualified voter in the state and county under the Constitution and laws of the state; provided, however, the failure to register to vote shall not be a disqualification;
    2. That the juror has been convicted of misdemeanor theft or a felony;
    3. That the juror is under indictment or other legal accusation for misdemeanor theft or a felony;
    4. That the juror is insane;
    5. That the juror has such defect in the organs of feeling or hearing, or such bodily or mental defect or disease as to render the juror unfit for jury service, or that the juror is legally blind and the court in its discretion is not satisfied that the juror is fit for jury service in that particular case;
    6. That the juror is a witness in the case;
    7. That the juror served on the grand jury which found the indictment;
    8. That the juror served on a petit jury in a former trial of the same case;
    9. That the juror has a bias or prejudice in favor of or against the defendant;
    10. That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence the juror in finding a verdict. To ascertain whether this cause of challenge exists, the juror shall first be asked whether, in the juror’s opinion, the conclusion so established will influence the juror’s verdict.  If the juror answers in the affirmative, the juror shall be discharged without further interrogation by either party or the court.  If the juror answers in the negative, the juror shall be further examined as to how the juror’s conclusion was formed, and the extent to which it will affect the juror’s action; and, if it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states that the juror feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that the juror is impartial and will render such verdict, may, in its discretion, admit the juror as competent to serve in such case.  If the court, in its discretion, is not satisfied that the juror is impartial, the juror shall be discharged;
    11. That the juror cannot read or write.

No juror shall be impaneled when it appears that the juror is subject to the second, third or fourth grounds of challenge for cause set forth above, although both parties may consent.  All other grounds for challenge may be waived by the party or parties in whose favor such grounds of challenge exist.

In this subsection “legally blind” shall mean having not more than 20/200 of visual acuity in the better eye with correcting lenses, or visual acuity greater than 20/200 but with a limitation in the field of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees.

(b) A challenge for cause may be made by the State for any of the following reasons:

    1. That the juror has conscientious scruples in regard to the infliction of the punishment of death for crime, in a capital case, where the State is seeking the death penalty;
    2. That he is related within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the defendant; and
    3. That he has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment.

(c) A challenge for cause may be made by the defense for any of the following reasons:

    1. That he is related within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the person injured by the commission of the offense, or to any prosecutor in the case; and
    2. That he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefore.

Be careful about using a peremptory strike outside of the strike zone, as a defendant who does so may not then complain about the harm of a juror within the strike zone who could have been removed instead.  Comeaux v. State, 445 S.W.3d 745, 752 (Tex. Crim. App. 2014). 

“To preserve error for a trial court’s denial of a valid challenge for cause, it must be demonstrated on the record that [defendant] asserted a clear and specific challenge for cause, that he used a peremptory challenge on that juror, that all his peremptory challenges were exhausted, that his request for additional strikes was denied, and that an objectionable juror sat on the jury.”  Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996); Sells v. State, 121 S.W.3d 748, 758 (Tex. Crim. App. 2003).  The procedure for preserving error on challenges for cause during the selection of an alternate juror should be the same.  See Cooks v. State, 844 S.W. 2d 697, 721 (Tex. Crim. App. 1992).  The erroneous excusing of a venire-member will call for reversal only if the record shows that the error deprived the defendant of an unlawfully constituted jury.  Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998).  To say this is exceedingly difficult to do is a huge understatement.

Before a potential juror may be excused on the basis of bias or prejudice, the law must be explained to them, and they must be asked whether they can follow that law regardless of their own personal views.  See Thomas v. State, 470 S.W.3d 577, 594 (Tex. App. – Houston [1st Dist.] 2015, aff’d, 505 S.W.3d 916 (Tex. Crim. App. 2016).

E. Absolute Disqualification – CCP 35.19

No juror shall be impaneled when it appears that he is subject to the second, third or fourth cause of challenge in Article 35.16, though both parties may consent.

“The list of enumerated reasons in the statute are not exclusive…and a prospective juror may be successfully challenged if the facts show that the juror is incapable or unfit to serve on the jury.  A juror’s failure to truthfully answer questions put to him by the court may support a challenge for cause.”  Matthews v. State, 960 S.W.2d 750, 753 (Tex. App. – Tyler 1997, no pet.).

III. Starting Early: Getting the Story

You can’t properly pick a jury in a sexual assault case without knowing your client.  While there are some aspects of the law and sexual assault cases that will exist in every case, jury selection in sexual assault cases should be tailored to the particular facts and issues of the case, and to your client.  So, preparing for jury selection in a sexual assault case starts the minute we first meet the client.  As we listen to the client’s story, we need to begin thinking about the questions a juror would have so that we can be fully prepared to answer these questions later in the arena of the courtroom.

The very first thing defense counsel should do is interview the client and get the story.  Find out who the witnesses are.  Begin a timeline.  Find out what (explicit or implicit) admissions or denials the client may have made to law enforcement or anyone else.  Regardless of what admissions your client may have already made to law enforcement or others, we still have a duty to get the full story from the client and should.  Getting the story from your client will also help you develop a list of witnesses.  It is important to get the full story from your client, not just what happened in the minutes preceding the allegation.  Who had been with or seen the client or accuser that day?  In the days before?  In all probability, law enforcement will not have talked to all the important witnesses in the case.  Likewise, law enforcement may not have seen all the communications between the client and the accuser.  Often, there is useful information in reviewing all the messages and/or posts available.  What is the relationship between the client and the accuser? Attention to these questions, at the very least, lets you know and prepare for any traps ahead. Additionally, it might bring possible defenses to light.

The key is this: think early on about topics for jury selection.  While there are topics of discussion that apply in every jury selection, no jury selection should be “canned.”  This is even more true for sexual assault cases.

IV. Practical Considerations

In any discussion about jury selection, it is important to take into account certain practical considerations.  For example:

  • How does the judge handle challenges for cause? Does the judge require challenges to be made during voir dire at the time the challenge arises (which is really awkward but can often end up being beneficial) or are all challenges taken up at the end of voir dire outside the presence of the jury? 
  • Is the courtroom equipped with technology necessary for your devices? Do you know how to use the technology available in the courtroom?
  • Will the judge allow questionnaires and/or do you want to use a questionnaire?
  • Does the judge intend on seating an alternate juror?
  • Will the judge impose any sort of time limit on jury selection? A note here: Sometimes there is discussion about judges impermissibly restricting jury selection.  While judges cannot impermissibly restrict jury selection, this type of error is reviewed for abuse of discretion.  Unless you are trying the case for appeal and/or you are absolutely certain you can preserve error correctly and get the case reversed for impermissibly restrictive jury selection, prepare to operate at least generally within any time limits imposed by the trial court.   

V. First Impressions

Before stepping into the courtroom to pick a jury in sexual assault case, or any case for that matter, understand and appreciate that everyone makes first impressions, whether calculated or unintentionally, and we at the defense table are being judged and sized up from the start.  It’s hard to shake a first impression but it can be done.

Here’s where it’s worth it to have a female on the team of lawyers.  Often, the accused in sexual assault cases are males and the complainants are females.  From an amateur psychology point of view, this author has observed that if jurors see a female defense lawyer genuinely getting along with the accused and advocating for the accused it makes him more likeable and acceptable, and any defense more palatable.  Regardless of whether there is female lawyer on the team, be acutely aware of your body language and interactions with the accused.  They are being scrutinized throughout and are as important as most evidence in the case.

VI. No One is For It

No one is “for” sexual assault or any criminal offense. It seems such an obvious thing that it shouldn’t even have to be said, but I find it’s worth saying and it’s worth saying in almost every kind of case – especially sexual assault cases.  We are living in the #MeToo Movement.  First thing, let the jury panel know that no one at the defense table – not me, not co-counsel, not our client – no one is supportive of, or okay with, sexual assault.  It’s an obvious thing but the jury must be reminded and explicitly told especially after the State’s voir dire.  Tell the potential jurors that sexual assault allegations should always be taken seriously and investigated thoroughly.  However, when the evidence just isn’t there, or when it’s clear a sexual assault did not occur, the case should stop, and the accused should be cleared.  That’s why we are here.  Because client didn’t sexually assault the complainant.

VII. Embrace the Bad Answers

Prepare to hear bad answers.  And by bad answers, I mean really bad answers—hateful, spontaneous comments.  It’s a sexual assault trial after all.  As much as some of potential jurors’ comments may make us cringe, remember the comment is from a potential juror.  Take the comment or question as a gift.  First, thank the potential juror for being honest.  Second, make sure you question the potential juror (presumably about a bias or prejudice) so that they are properly challengeable for cause pursuant to Article 35.16(a)(10) of the Code of Criminal Procedure.  See supra.  Then, and most importantly, find out if there are other potential jurors who agree with the (outrageous) comment and challenge those jurors for cause, too.  The bad answers are gifts.  Thankfully, in a group of +/-70 there is usually another potential juror who will come to your rescue.  If not, once you have identified and challenged all those unfavorable jurors, be prepared to pivot to another issue.

And importantly, prepare your client before jury selection that there will be bad, hateful comments made during the course of jury selection.  Explain to your client that it is vitally important that you hear these comments and get these potential jurors excluded.  Better they speak up than be sleeping lions on the jury.

VIII. Theme Begins Here

It is imperative that the theme of the case be woven seamlessly throughout the trial beginning in jury selection.  Whether it’s a false allegation, a revenge allegation, or a bad investigation, the theme of your case should be apparent in jury selection through your statements and questions.  This is where we first frame the issue for the jury. 

For instance, the first question to reframe the issue after an hour of the State’s presentation could be “how does an innocent man get accused of sexual assault?”  There may be silence for a few seconds.  Do not be afraid of the silence.  In a room of 70, someone will speak.  Someone will come up with a real answer to that question.  Then, loop that answer until the steam runs out.  After all, our client is the innocent man.  Then, in discussing the Fifth Amendment, perhaps ask “why might an innocent person decide not to testify?”  Consider also asking: “how would an innocent person respond to an allegation of sexual assault?”  Make the theme clear and carry it throughout jury selection.

IX. Answering the “Why” Question

In any sexual assault case—particularly child sexual assault cases—answering the “why” question is always an issue even though it’s a question that will never appear in the court’s charge to the jury.  Why would a complainant make up an allegation of sexual assault against the client?  It must be answered satisfactorily to win in a sexual assault case.  Sometimes that’s an easy question to answer based on the evidence; sometimes it’s not quite so easy.  However, it is always a good idea to ask the jury panel why a complainant—child or adult—would make an allegation of sexual assault that wasn’t true.  Sometimes, the panel will give you something you hadn’t thought of before.  Most often, though, the panel will hit on your theme.  When it’s an idea from another juror rather than the defense lawyer, it’s more readily accepted.  And, if the juror uses wording that’s a little different than what you have prepared in opening or questioning, rephrase to parrot the juror’s words back.  Even if the potential juror doesn’t end up serving on the jury, the other jurors will recall that another of their own had come up with that reason therefore it must be reasonable.  Make sure you ask the panel the “why” question.

X. Talking about Particulars

It’s easy to get caught up in the legalese of these kinds of cases.  However, it’s important to remember what happens in real life.  It’s important to reflect on your own experiences and those of your friends and family to have any barometer on what happens in real life.  Understand, whether they speak about them or not, as they evaluate evidence, jurors will recall their own personal experiences. 

For instance, if you know that the now-seventeen-year-old complainant will testify that she has been sexually abused since she was 12 years old and she has never before told anyone, it is important to ask the panel about teenage girls.  Draw on your own observations and personal experience to think of questions.  Do they [young teenage girls] talk to each other?  What do they talk to each other about?  Do they talk about personal things?  Are they exposed to sex at school, on the internet, in song lyrics, and on TV?  Do they talk with other teenagers about sexual experiences? 

Or, in a delayed outcry of sexual assault in young adults, what’s it like to be in love so young?  Is it an all-consuming, jealous kind of relationship?  Has anyone ever had a bad break up or know of anyone who has?  The last part of the question is important because a juror may not want to self-disclose but might want to talk about the experience.  Has anyone ever been ashamed of something they have done or how they have acted when they were a teenager?      

XI. Evidence

Prepare the jury for the insanity of circular reasoning that will inevitably occur when the SANE testifies.  Sexual assault by history means that sexual assault occurred regardless of any physical findings.  Both the presence and absence of medical findings indicate sexual abuse when there is sexual abuse by history.  Ask the jurors why type of physical evidence they would expect to see in a sexual assault case.  The panel will give you answers.  They will expect to see something.  Perhaps someone will say that there may be no physical findings. 

XII. Impact of the Blasey-Ford and Kavanaugh Hearings

Many who watched the questioning of now Supreme Court Justice Brett Kavanaugh were disgusted by what they saw and heard. Regardless, something very good happened for defense lawyers in sexual assault cases as a result of those very public hearings.  Anytime someone is acquitted of sexual assault—in a courtroom or in the media—it reminds the public that false allegations of sexual assault do occur.  It reminds the public—especially in the he-said-she-said cases—why the presumption of innocence is so important.  The accused is not required to prove that he or she did not engage in wrongdoing; in most cases it’s impossible to do.  And, more is required to condemn than just a bare allegation, albeit one that is emotional.  That’s certainly helpful to defense lawyers, and the Kavanaugh confirmation hearings brought that conversation to the forefront in a very public way.

XIII. Understand We Have the Edge, Then Listen and Be Prepared to Respond

We always lament that the State gets to go first and last in closing arguments.  However, we have the distinct advantage in both jury selection and opening statement.  We get to go last; we have the last word.  And we should capitalize on this opportunity.  These are early opportunities that shape the course of the trial.  Confirmation bias is a real phenomenon (?) in psychology and cognitive science.  Confirmation bias is the tendency to search for or interpret information in a way that conforms to, and confirms, one’s preconceptions.  In trials, we often accuse law enforcement of engaging in confirmation bias or tunnel vision.  Let’s not forget that, despite our best efforts, we all engage in confirmation bias.  That means jurors do, too.  The more compelling presentation or story, the more likely jurors are to accept it and thereafter subconsciously interpret evidence that confirms the story, while ignoring or rejecting evidence that casts doubt on it.  That’s why it is vital to make the better jury selection presentation and better opening statement.

Also, while it is imperative that we be focused on our theme and presentation and even remembering the names of the potential jurors, it is even more important to listen when the State gives its presentation.  It’s obvious (but not so easy) that we should listen – really listen – to the answers from potential jurors.  It’s often more difficult to listen to what the State says.  It can be easy to tune them out and focus on and refine our own presentations during that 45 minutes or so.  However, to do so misses a prime opportunity.  We should listen to the State and object when required, of course (i.e., commitment questions, etc.).  But we should also be listening for things the State says that we can use later.  Then, we must respond whether in jury selection, opening, questioning, or closing to what the State has said during voir dire.  For instance, when the State uses the CSI example (trials aren’t like CSI; we don’t have the capabilities they have on CSI) to water down jury expectations, we can directly respond to that in jury selection and throughout trial about a real discussion about what evidence is available or would be available if the accusation were true.

XIV. Conclusion

Sexual assault cases are some of the most challenging and time-consuming cases.  They are also some of the most daunting.  But when you start early and frame the issue correctly, jury selection can set the stage for a successful result.

Health and Safety Code Chapter 81

Chapter 81 of the Health and Safety Code is not a common reference in many of our daily practices.  Most of us have never had the occasion to read the Communicable Disease Prevention and Control Act before. However, amid this pandemic, it is worth knowing and reviewing Chapter 81.  Here are a few sections to know:

Sec. 81.002.  RESPONSIBILITY OF STATE AND PUBLIC.  The state has a duty to protect the public health.  Each person shall act responsibly to prevent and control communicable disease.

Sec. 81.003

(1) “Communicable disease” means an illness that occurs through the transmission of an infectious agent or its toxic products from a reservoir to a susceptible host, either directly, as from an infected person or animal, or indirectly through an intermediate plant or animal host, a vector, or the inanimate environment.

(1-a)  “Emergency response employee or volunteer” means an individual acting in the course and scope of employment or service as a volunteer as emergency medical service personnel, a peace officer, a detention officer, a county jailer, or a fire fighter.

(1-b)  “Designated infection control officer” means the person serving as an entity’s designated infection control officer under Section 81.012.

(2)  “Health authority” means:

(A)  a physician appointed as a health authority under Chapter 121 (Local Public Health Reorganization Act) or the health authority’s designee;  or

(B)  a physician appointed as a regional director under Chapter 121 (Local Public Health Reorganization Act) who performs the duties of a health authority or the regional director’s designee.

(7)  “Public health disaster” means:

(A)  a declaration by the governor of a state of disaster;  and

(B)  a determination by the commissioner that there exists an immediate threat from a communicable disease that:

(i)  poses a high risk of death or serious long-term disability to a large number of people;  and

(ii)  creates a substantial risk of public exposure because of the disease’s high level of contagion or the method by which the disease is transmitted.

Sec. 81.021.  PROTECTION OF PUBLIC HEALTH.  The executive commissioner and department shall exercise their powers in matters relating to protecting the public health to prevent the introduction of disease into the state.

Sec. 81.081.  DEPARTMENT’S DUTY.  The department shall impose control measures to prevent the spread of disease in the exercise of its power to protect the public health.

Tex. Health & Safety Code § 81.085.  AREA QUARANTINE;  CRIMINAL PENALTY. 

(a)  If an outbreak of communicable disease occurs in this state, the commissioner or one or more health authorities may impose an area quarantine coextensive with the area affected.  The commissioner may impose an area quarantine, if the commissioner has reasonable cause to believe that individuals or property in the area may be infected or contaminated with a communicable disease, for the period necessary to determine whether an outbreak of communicable disease has occurred.  A health authority may impose the quarantine only within the boundaries of the health authority’s jurisdiction.

(b)  A health authority may not impose an area quarantine until the authority consults with the department.  A health authority that imposes an area quarantine shall give written notice to and shall consult with the governing body of each county and municipality in the health authority’s jurisdiction that has territory in the affected area as soon as practicable.

(c)  The department may impose additional disease control measures in a quarantine area that the department considers necessary and most appropriate to arrest, control, and eradicate the threat to the public health.  Absent preemptive action by the department under this chapter or by the governor under Chapter 418, Government Code (Texas Disaster Act of 1975), a health authority may impose in a quarantine area under the authority’s jurisdiction additional disease control measures that the health authority considers necessary and most appropriate to arrest, control, and eradicate the threat to the public health.

(d)  If an affected area includes territory in an adjacent state, the department may enter into cooperative agreements with the appropriate officials or agencies of that state to:

(1)  exchange morbidity, mortality, and other technical information;

(2)  receive extrajurisdictional inspection reports;

(3)  coordinate disease control measures;

(4)  disseminate instructions to the population of the area, operators of interstate private or common carriers, and private vehicles in transit across state borders;  and

(5)  participate in other public health activities appropriate to arrest, control, and eradicate the threat to the public health.

(e)  The department or health authority may use all reasonable means of communication to inform persons in the quarantine area of the department’s or health authority’s orders and instructions during the period of area quarantine.  The department or health authority shall publish at least once each week during the area quarantine period, in a newspaper of general circulation in the area, a notice of the orders or instructions in force with a brief explanation of their meaning and effect.  Notice by publication is sufficient to inform persons in the area of their rights, duties, and obligations under the orders or instructions.

(f)  The department or, with the department’s consent, a health authority may terminate an area quarantine.

(g)  To provide isolation and quarantine facilities during an area quarantine, the commissioner’s court of a county, the governing body of a municipality, or the governing body of a hospital district may suspend the admission of patients desiring admission for elective care and treatment, except for needy or indigent residents for whom the county, municipality, or district is constitutionally or statutorily required to care.

(h)  A person commits an offense if the person knowingly fails or refuses to obey a rule, order, or instruction of the department or an order or instruction of a health authority issued under a department rule and published during an area quarantine under this section.  An offense under this subsection is a felony of the third degree.

(i)  On request of the department during a public health disaster, an individual shall disclose the individual’s immunization information.  If the individual does not have updated or appropriate immunizations, the department may take appropriate action during a quarantine to protect that individual and the public from the communicable disease.

(j)  A peace officer, including a sheriff or constable, may use reasonable force to:

(1)  secure a quarantine area; and

(2)  except as directed by the department or health authority, prevent an individual from entering or leaving the quarantine area.

SUBCHAPTER G. COURT ORDERS FOR MANAGEMENT OF PERSONS WITH COMMUNICABLE DISEASES

Sec. 81.161.  MOTION FOR ORDER OF PROTECTIVE CUSTODY.

(a)  A motion for an order of protective custody may be filed only in the court in which an application for a court order for the management of a person with a communicable disease is pending.

(b)  The motion may be filed by the municipal, county, or district attorney on behalf of the health authority.  The motion shall be filed by the attorney general at the request of the department.

(c)  The motion must state that:

(1)  the department or health authority has reason to believe and does believe that the person meets the criteria authorizing the court to order protective custody;  and

(2)  the belief is derived from:

(A)  the representations of a credible person;

(B)  the conduct of the person who is the subject of the motion;  or

(C)  the circumstances under which the person is found.

(d)  The motion must be accompanied by an affidavit of medical evaluation.

(e)  The judge of the court in which the application is pending may designate a magistrate to issue protective custody orders in the judge’s absence.

Sec. 81.162.  ISSUANCE OF ORDER.

(a)  The judge or designated magistrate may issue a protective custody order if the judge or magistrate determines:

(1)  that the health authority or department has stated its opinion and the detailed basis for its opinion that the person is infected with or is reasonably suspected of being infected with a communicable disease that presents an immediate threat to the public health;  and

(2)  that the person fails or refuses to comply with the written orders of the health authority or the department under Section 81.083, if applicable.

(b)  Noncompliance with orders issued under Section 81.083 may be demonstrated by the person’s behavior to the extent that the person cannot remain at liberty.

(c)  The judge or magistrate may consider only the application and affidavit in making a determination that the person meets the criteria prescribed by Subsection (a). If only the application and certificate are considered the judge or magistrate must determine that the conclusions of the health authority or department are adequately supported by the information provided.

(d)  The judge or magistrate may take additional evidence if a fair determination of the matter cannot be made from consideration of the application and affidavit only.

(e)  The judge or magistrate may issue a protective custody order for a person who is charged with a criminal offense if the person meets the requirements of this section and the head of the facility designated to detain the person agrees to the detention.

(f)  Notwithstanding Section 81.161 or Subsection (c), a judge or magistrate may issue a temporary protective custody order before the filing of an application for a court order for the management of a person with a communicable disease under Section 81.151 if:

(1)  the judge or magistrate takes testimony that an application under Section 81.151, together with a motion for protective custody under Section 81.161, will be filed with the court on the next business day; and

(2)  the judge or magistrate determines based on evidence taken under Subsection (d) that there is probable cause to believe that the person presents a substantial risk of serious harm to himself or others to the extent that the person cannot be at liberty pending the filing of the application and motion.

(g)  A temporary protective custody order issued under Subsection (f) may continue only until 4 p.m. on the first business day after the date the order is issued unless the application for a court order for the management of a person with a communicable disease and a motion for protective custody, as described by Subsection (f)(1), are filed at or before that time.  If the application and motion are filed at or before 4 p.m. on the first business day after the date the order is issued, the temporary protective custody order may continue for the period reasonably necessary for the court to rule on the motion for protective custody.

(h)  The judge or magistrate may direct a peace officer, including a sheriff or constable, to prevent a person who is the subject of a protective custody order from leaving the facility designated to detain the person if the court finds that a threat to the public health exists because the person may attempt to leave the facility.

Sec. 81.163.  APPREHENSION UNDER ORDER.

(a)  A protective custody order shall direct a peace officer, including a sheriff or constable, to take the person who is the subject of the order into protective custody and transport the person immediately to an appropriate inpatient health facility that has been designated by the commissioner as a suitable place.

(b)  If an appropriate inpatient health facility is not available, the person shall be transported to a facility considered suitable by the health authority.

(c)  The person shall be detained in the facility until a hearing is held under Section 81.165.

(d)  A facility must comply with this section only to the extent that the commissioner determines that the facility has sufficient resources to perform the necessary services.

(e)  A person may not be detained in a private health facility without the consent of the head of the facility.

(f)  A protective custody order issued under Section 81.162 may direct an emergency medical services provider to provide an ambulance and staff to immediately transport the person who is the subject of the order to an appropriate inpatient health facility designated by the order or other suitable facility.  The provider may seek reimbursement for the costs of the transport from any appropriate source.

Sec. 81.164.  APPOINTMENT OF ATTORNEY.

(a)  The judge or designated magistrate shall appoint an attorney to represent a person who is the subject of a protective custody order who does not have an attorney when the order is signed.

(b)  Within a reasonable time before a hearing is held under Section 81.165, the court that ordered the protective custody shall provide the person and the person’s attorney with a written notice that states:

(1)  that the person has been placed under a protective custody order;

(2)  the grounds for the order;  and

(3)  the time and place of the hearing to determine probable cause.

Sec. 81.165.  PROBABLE CAUSE HEARING.

(a)  A hearing must be held to determine if:

(1)  there is probable cause to believe that a person under a protective custody order presents a substantial risk of serious harm to himself or others to the extent that the person cannot be at liberty pending the hearing on a court order for the management of a person with a communicable disease;  and

(2)  the health authority or department has stated its opinion and the detailed basis for its opinion that the person is infected with or is reasonably suspected of being infected with a communicable disease that presents an immediate threat to public health.

(b)  The hearing must be held not later than 72 hours after the time that the person was detained under the protective custody order.  If the period ends on a Saturday, Sunday, or legal holiday, the hearing must be held on the next day that is not a Saturday, Sunday, or legal holiday.  The judge or magistrate may postpone the hearing for an additional 24 hours if the judge or magistrate declares that an extreme emergency exists because of extremely hazardous weather conditions that threaten the safety of the person or another essential party to the hearing.  If the area in which the person is found, or the area where the hearing will be held, is under a public health disaster, the judge or magistrate may postpone the hearing until the period of disaster is ended.

(c)  A magistrate or a master appointed by the presiding judge shall conduct the hearing.  The master is entitled to reasonable compensation.

(d)  The person and his attorney shall have an opportunity at the hearing to appear and present evidence to challenge the allegation that the person presents a substantial risk of serious harm to himself or others.  If the health authority advises the court that the person must remain in isolation or quarantine and that exposure to the judge, jurors, or the public would jeopardize the health and safety of those persons and the public health, a magistrate or a master may order that a person entitled to a hearing for a protective custody order may not appear in person and may appear only by teleconference or another means the magistrate or master finds appropriate to allow the person to speak, to interact with witnesses, and to confer with the person’s attorney.

(e)  The magistrate or master may consider evidence that may not be admissible or sufficient in a subsequent commitment hearing, including letters, affidavits, and other material.

(f)  The state may prove its case on the health authority’s or department’s affidavit of medical evaluation filed in support of the initial motion.

Sec. 81.166. ORDER FOR CONTINUED DETENTION.

(a)  The magistrate or master shall order that a person remain in protective custody if the magistrate or master determines after the hearing that an adequate factual basis exists for probable cause to believe that the person presents a substantial risk of serious harm to himself or others to the extent that the person cannot remain at liberty pending the hearing on the application.

(b)  The magistrate or master shall arrange for the person to be returned to the health facility or other suitable place, along with copies of the affidavits and other material submitted as evidence in the hearing and the notification prepared as prescribed by Subsection (d).

(c)  A copy of the notification of probable cause hearing and the supporting evidence shall be filed with the district court that entered the original order of protective custody.

(d)  The notification of probable cause hearing shall read as follows:

(Style of Case)

NOTIFICATION OF PROBABLE CAUSE HEARING

On this the _____ day of _________________, 20__, the undersigned hearing officer heard evidence concerning the need for protective custody of ___________ (hereinafter referred to as proposed patient).  The proposed patient was given the opportunity to challenge the allegations that the proposed patient presents a substantial risk of serious harm to self or others.

The proposed patient and the proposed patient’s attorney _________________________ have been given written notice that the proposed patient was placed under an order of protective custody and the reasons for such order on ___________ (date of notice).

I have examined the affidavit of medical evaluation and ________________ (other evidence considered).  Based on this evidence, I find that there is probable cause to believe that the proposed patient presents a substantial risk of serious harm to self (yes ____ or no ____) or others (yes ____ or no ____) such that the proposed patient cannot be at liberty pending final hearing because the proposed patient is infected with or is reasonably suspected of being infected with a communicable disease that presents an immediate threat to the public health and the proposed patient has failed or refused to comply with the orders of the health authority or the Department of State Health Services delivered on __________ (date of service) ____________.

Sec. 81.167.  DETENTION IN PROTECTIVE CUSTODY.

(a)  The head of a facility or the facility head’s designee shall detain a person under a protective custody order in the facility pending a court order for the management of a person with a communicable disease or until the person is released or discharged under Section 81.168.

(b)  A person under a protective custody order shall be detained in an appropriate inpatient health facility that has been designated by the commissioner or by a health authority and selected by the health authority under Section 81.159.

(c)  A person under a protective custody order may be detained in a nonmedical facility used to detain persons who are charged with or convicted of a crime only with the consent of the medical director of the facility and only if the facility has respiratory isolation capability for airborne communicable diseases.  The person may not be detained in a nonmedical facility under this subsection for longer than 72 hours, excluding Saturdays, Sundays, legal holidays, the period prescribed by Section 81.165(b) for an extreme weather emergency, and the duration of a public health disaster.  The person must be isolated from any person who is charged with or convicted of a crime.

(d)  The health authority shall ensure that proper isolation methods are used and medical care is made available to a person who is detained in a nonmedical facility under Subsection (c).

Sec. 81.168.  RELEASE FROM DETENTION.

(a)  The magistrate or master shall order the release of a person under a protective custody order if the magistrate or master determines after the hearing under Section 81.165 that no probable cause exists to believe that the person presents a substantial risk of serious harm to himself or others.

Sec. 81.169.  GENERAL PROVISIONS RELATING TO HEARING.

(a)  Except as provided by Subsection (b), the judge may hold a hearing on an application for a court order for the management of a person with a communicable disease at any suitable location in the county.  The hearing should be held in a physical setting that is not likely to have a harmful effect on the public or the person.

(b)  On the request of the person or the person’s attorney, the hearing on the application shall be held in the county courthouse.

(c)  The health authority shall advise the court on appropriate control measures to prevent the transmission of the communicable disease alleged in the application.

(d)  The person is entitled to be present at the hearing.  The person or the person’s attorney may waive this right.

(e)  The hearing must be open to the public unless the person or the person’s attorney requests that the hearing be closed and the judge determines that there is good cause to close the hearing.

(f)  The Texas Rules of Evidence apply to the hearing unless the rules are inconsistent with this chapter.

(g)  The court may consider the testimony of a nonphysician health professional in addition to medical testimony.

(h)  The hearing is on the record, and the state must prove each element of the application criteria by clear and convincing evidence.

(i)  Notwithstanding Subsection (d), if the health authority advises the court that the person must remain in isolation or quarantine and that exposure to the judge, jurors, or the public would jeopardize the health and safety of those persons and the public health, a judge may order that a person entitled to a hearing may not appear in person and may appear only by teleconference or another means that the judge finds appropriate to allow the person to speak, to interact with witnesses, and to confer with the person’s attorney.

Sec. 81.170.  RIGHT TO JURY.

(a)  A hearing for temporary management must be before the court unless the person or the person’s attorney requests a jury.

(b)  A hearing for extended management must be before a jury unless the person or the person’s attorney waives the right to a jury.

(c)  A waiver of the right to a jury must be in writing, under oath, and signed by the person and the person’s attorney.

(d)  The court may permit a waiver of the right to a jury to be withdrawn for good cause shown.  The withdrawal must be made at least seven days before the date on which the hearing is scheduled.

(e)  A court may not require a jury fee.

(f)  The jury shall determine if the person is infected with or is reasonably suspected of being infected with a communicable disease that presents a threat to the public health and, if the application is for inpatient treatment, has refused or failed to follow the orders of the health authority.  The jury may not make a finding about the type of services to be provided to the person.

Sec. 81.171.  RELEASE AFTER HEARING.

(a)  The court shall enter an order denying an application for a court order for temporary or extended management if after a hearing the judge or jury fails to find, from clear and convincing evidence, that the person:

(1)  is infected with or is reasonably suspected of being infected with a communicable disease that presents a threat to the public health;

(2)  has refused or failed to follow the orders of the health authority if the application is for inpatient treatment;  and

(3)  meets the applicable criteria for orders for the management of a person with a communicable disease.

(b)  If the court denies the application, the court shall order the immediate release of a person who is not at liberty.

Sec. 81.172.  ORDER FOR TEMPORARY MANAGEMENT.

(a)  The judge or jury may determine that a person requires court-ordered examination, observation, isolation, or treatment only if the judge or jury finds, from clear and convincing evidence, that:

(1)  the person is infected with or is reasonably suspected of being infected with a communicable disease that presents a threat to the public health and, if the application is for inpatient treatment, has failed or refused to follow the orders of the health authority or department;  and

(2)  as a result of the communicable disease the person:

(A)  is likely to cause serious harm to himself;  or

(B)  will, if not examined, observed, isolated, or treated, continue to endanger public health.

(b)  The judge or jury must specify each criterion listed in Subsection (a)(2) that forms the basis for the decision.

(c)  The person or the person’s attorney, by a written document filed with the court, may waive the right to cross-examine witnesses, and the court may admit, as evidence, the affidavit of medical evaluation.  The affidavit admitted under this subsection constitutes competent medical testimony, and the court may make its findings solely from the affidavit.

(d)  An order for temporary management shall state that examinations, treatment, and surveillance are authorized for a period not longer than 90 days.

(e)  The department, with the cooperation of the head of the facility, shall submit to the court a general program of treatment to be provided.  The program must be submitted not later than the 14th day after the date the order is issued and must be incorporated into the court order.

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