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A Practical Guide for Reviewing Evidence in DWI/DUI Cases

When evaluating drug testing evidence in any case, there are two important questions for the judge and jury to address. The first question is, “Was the drug test does correctly? Is it valid?” The second question is, “Is the drug test relevant?” In the State of Texas, DUID laws require that a per se opinion of intoxication must be supported by a scientific opinion.

It is important to understand that not all laboratories across the state have the same procedures or qualified staff. Many laboratories have technicians who are trained in chemistry but may not have any knowledge of pharmacology or toxicology. Thus, just because the state has evidence of a “positive” test does not necessarily mean there is proof that someone was intoxicated.

It is thus important to request a detailed list of documents from the laboratory in the discovery request; the request should contain the following:

  • Chain of custody documentation
  • Any video of the arrest or biological sample draw or collection
  • All data printouts from the laboratory test
  • All standard operating procedures
  • All calibration records

In my experience reviewing cases over the last 15 years, chain of custody is the most common area where I have found gaps. Often, there is poor documentation from the officer or health care professional who draws and collects a sample to the transportation of that sample to the laboratory. Samples are often in storage for weeks, or even months, before they are tested. Proper chain of custody documents support that a sample has been properly handled and managed during the time it was in custody. Any gap in documentation creates a foundational question of whether, beyond a reasonable doubt, the evidence is valid. There should be clear documentation that connects the laboratory’s report from the technician that ran the initial test to the supervisor or lab director that signs off on the final report or decision. In labs handling large volumes, these are often different people.

Focus on Marijuana and THC Evidence – Checklist for a Case Involving THC

With several counties and the State of Texas effectively decriminalizing small amounts of marijuana, the prevalence of THC use in cannabis or electronic vaporizing devices continues to grow. It is challenging to set policy for a specific level of intoxication for marijuana intoxication for several reasons. One reason is that we have natural cannabidiol signaling in our bodies, with cannabidiol receptors, that are linked to the muscular, skeletal, and nervous systems. This is one of the reasons why CBD products are popular; people use them for relief of chronic ailments. Another reason is that the body can adjust to responses from THC use. An occasional user of THC may likely respond differently to THC than a habitual user. Several states have attempted to create levels of per se intoxication for THC, ranging from 1 ng, 2 ng, or 5 ng. Texas currently has no specific number.

If you have a case involving THC evidence, make use of the checklist below for your file in order to help you better understand the issues in the case. Organizing this evidence will assist you in evaluating the strengths and weaknesses of the case being made by the State.

Back to Basics: Attack SFSTs, Not the Officer

In the heat of trial, all trial attorneys fight vigorously for their DWI clients. In that fight, it’s understandable that you want to destroy the officer, destroy the Standard Field Sobriety Tests (SFSTs), and vindicate your client. Oftentimes, however, juries end up feeling sorry for the bumbling police officer and will hold it against the client if the attorney berates or embarrasses the officer. This article will explore a trial-tested, proven method that educates a jury on the complexities and meticulous grading system of the SFSTs rather than attacking the officer. Attack the system, not the officer. In the end, if done properly, the jury will empathize with the client. This empathy will assist the jury in finding the client not guilty—without leaving jurors feeling guilty for voting against law enforcement.

The Officer Is a Human Being

We can all agree there are good and bad officers. Just like attorneys. And contrary to popular belief, even “bad” officers are people too. Just because officers may be “bad” or incompetent at their jobs doesn’t mean they are evil. Somewhere, to someone, they are human with all the emotions, positive attributes, negative attributes, good days, bad days, highs and lows that we all enjoy and suffer. Someone out there loves them. They are someone’s family member. Once upon a time, they took an oath to protect and serve the community we live in. Most of the time, they may still be trying to do their best, but their best is sub-par. Remember this—seriously.

You must think like an average juror. How many clients are shocked that the officer “is bold-faced lying” on the stand? We can’t let our daily experiences jade and warp us. Put yourself in the shoes of your family or friends who have minimal police contact. Most respect police and admire their sacrifice. Growing up we were all probably taught to respect and trust the police. And honestly, most of us still do, for the most part. Hell, even criminal defense lawyers introduce their kids to their police friends and teach their kids to respect and honor the police. Most of our jurors were raised the same and probably raise their own kids this way.

Only in roughly the last seven years did police misconduct and abuse of power really start making the news. In the past couple years, the pendulum has swung—giving jurors cause to be wary or even scared of the police in certain situations. The world is slowly recognizing the magnitude of the problem and the catastrophic consequences when police lie, hide or destroy evidence, collude, or make “honest” mistakes.

To conclude this paean to the humanity of police officers, just try your best to remember the jury starts out thinking they are good cops. Being one of the biggest offenders of the scorched-earth cross-examination, we understand the eye rolls. But it’s not about what we know, it’s how we convey it to the jury. In the famous words of Dalton from “Road House”: “Be nice. I want you to be nice, until it’s time not to be nice.”

Standard Field Sobriety Test Hard Truths

The Standard Field Sobriety tests were developed around 1975 when National Highway Traffic and Safety Administration (NHTSA) performed research with South California Research Institute (SCRI) to determine which roadside field sobriety tests were the most accurate.1 SCRI published three reports:

  1. California 1977 (Lab);
  2. California 1981 (Lab and Field); and
  3. Maryland, D.C., V.A., N.C. 1983 (Field).

SCRI originally travelled around the United States with six tests, but narrowed it to the three tests we know today: Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT), and the One Leg Stand (OLS).

Twenty years later, three validation tests were undertaken between 1995 and 1998:

  1. Colorado 1995;
  2. Florida 1997;
  3. San Diego 1998.2

Many other articles examine the pitfalls and biases of these validation studies. Concocted in the ’70s and validated in the ’90s, these tests are now 40+ years old and haven’t been revalidated in the last 20 years. SFSTs are not a law of physics or science—meaning they are not indisputable. These are simply coordination exercises created by police and “scientists” in the ’70s.3

How the Officer Is Trained to Administer the SFSTs

Before we dive into the actual SFSTs, it’s important to educate the jury on just how this officer was trained and who trained them. Set the stage to illustrate the difference between how they were graded on their SFST proficiency test and how they now grade people on the SFSTs. “Before we get into the tests, can we just explore how you learned to give these tests?” Officers are usually happy to boast about their training. Start by establishing when the officer was first certified to administer the tests. It’s usually in the academy.4

  • And how long was your course (usually 24–40 hours, around a week)?
  • Who trained you (other officers)?
  • When you were trained, did your teacher tell you how to administer the tests and then just grade you on administering them?
  • No, you were provided a textbook— the SFST manual? You still have it? Did you bring it today?

At this point, if not done prior, establish that the NHTSA student SFST manual is a learned treatise under Texas Rules of Evidence 803(18). Rule 803(18) clearly states that a learned treatise may be read into evidence, but not received as an exhibit.

Be ready for the State’s objections when you begin reading from the manual. Many untrained prosecutors will try to prohibit you from reading a document not in evidence or try to admit the manual. “Your honor, I would love to admit this manual, but unfortunately under TRE 803(18) it’s specifically prohibited.” The prosecutor may also object to defense counsel reading it into evidence and not the officer. Nowhere in 803(18) does it say who is allowed to read the learned treatise. And who do you think puts more inflection and importance in reading the necessary language? The defense attorney should read it and is absolutely allowed to—once it’s established as a learned treatise.

  • Officer, you were trained according to the NHTSA student manual? And you agree it’s authoritative on how to administer these tests? BAM! 803(18)

If the officer gets shifty with what year manual, all of the manuals can be found online and you can find most on the TCDLA app. Prior to trial, it helps to establish either with the State or the officer on which edition of the manual they were trained and on whether they accept that it is authoritative. If the officer is really difficult and wants to use his manual, ask for a continuance so the officer can go get his manual—or send the officer a subpoena duces tecum to bring their SFST manual prior to trial. Most judges are very familiar with the NHTSA SFST manual and will not tolerate the officer’s games.

Back to examining their training:

  • When you were trained, you got to practice administering these tests?
  • You were allowed to study the entire week? You were allowed to practice the entire week?
  • You knew at the end of the week you would be tested?
  • You knew that you would be tested on the clues, the definitions, and administration?
  • And you had to get a 70, 75, 80% grade to pass? (Most don’t know the actual passing percentage.)
  • Now when graded, you got credit for the answers you got right?
  • Just like in school and every test you’ve ever taken?
  • On a 100-question multiple-choice test, you miss 6, what’s your grade (94)?
  • That’s because you get credit for every answer you got right?
  • If your kid came home from school, missed six, and had an F written next to that 94, what would you do? (Most say march down to that school. Agree. And welcome the sidebar objection.)

“Officer, I’m Not Here to Bust Your Chops”

Say it 10 times during your cross. Do not attack the officer—attack the tests. “Officer, I know these aren’t your tests. You didn’t design them. You are just following what you were trained to do. So, I’m not busting your chops.” Repeat this over and over. Let the jury know we are not attacking this officer. We are not complaining about the officer. We don’t hate the player; we hate the game.

“But, Officer, if someone admits to drinking or you think they might be intoxicated, you are going to give them these tests in this same standard way.” Start putting the jurors’ minds in the shoes of the client. Many times, I’ve even gestured around the entire courtroom and stated: “So everyone in this entire courtroom, as long as they are not intoxicated, should be able to pass these tests? Judge, reporter, bailiffs, people in the gallery, everyone in this whole courtroom?”

Purposefully leave out the jurors to avoid any potential objection. Some officers may pause because they know there are certain limitations on the SFSTs. “Well, I mean there are certain people that may have difficulty with these tests naturally, right? Those over 65 years old, 50 pounds or more overweight, leg, back, or neck injuries, head injuries or trauma, and lots of other ailments?”

Remind the jury the officer has no medical training and wasn’t trained by any doctors or nurses. Most officers were told to just take the client’s age, weight, or injuries “into consideration” when determining intoxication. Yeah, right! “But again, officer, I’m not here to bust your chops. Let’s examine these tests so that if anyone wanted to try them out, they could know what to look for and how to grade them.” What’s the officer going to say?

Before examining the SFSTs, it’s helpful for the jury to visually understand the tests and clues. Whether you bring an easel and butcher paper, your tablet on the screen, or even a dry-erase board, make sure it’s a large and colorful demonstration. Imagine a CLE with no PowerPoint versus one with colorful displays. Like us, jurors appreciate, learn better from, and remember colorful presentations.

Horizontal Gaze Nystagmus (HGN)

Most jurors have seen some sort of advertisement or illustration of an officer waiving a pen in front of the eyes. Before getting into the HGN, dive a little deeper into their training. Explore their range of knowledge. “Officer, you know there are many different types of nystagmus—88 actually?” It’s unimportant how many types of nystagmus the officer knows, but he will always agree there are many. Only a few are listed in the NHTSA student manual. Most officers have only read about these other types, or maybe seen them on video. Very few have actually seen them in person or done testing and seen these. It’s important to educate the jury that there are so many different ways the eyes can jerk and for a variety of medical, environmental, or natural conditions. Additionally, the jury needs to know who trained the police officer to distinguish the minute jerks of the eye.

  • Now, officer, I’m not busting your chops, but were you trained by an ophthalmologist?
  • Optometrist?
  • Nurse?
  • Person who worked for Lens Crafters?
  • Anyone wearing a white lab coat?
  • The police officer that trained you, he didn’t show you the other types?
  • Have you ever heard of Bruns, latent, pendular, vestibulo ocular, spasmus, or rebound nystagmus?
  • Has anyone showed you the difference between those and horizontal gaze nystagmus?
  • In your manual, you have optokinetic, rotational, post rotational, caloric, and positional alcohol?
  • Have you ever even seen those?
  • And those look just like horizontal gaze, but for non-intoxicated reasons?

Now start demonstrating the HGN main points for the jury to see. Write HGN in black on the top of the pad on your easel. “How far do the eyes have to jerk in order to be counted as a jerk?” Most officers get confused and hesitate. “If we wanted to put a ruler underneath the human eye, the jerk of the eye is millimeters, right? Maybe a centimeter? Maybe 1/32 of an inch? So how far does the NHTSA manual say the eye must jerk in order to be counted as a jerk? How many millimeters?” If the officer continues to hesitate, rescue him: “Sorry, Officer, I’m not busting your chops. There is no definition, right?” Write: No Def. of How Far Jerk (mm).

“How many times does the NHTSA manual say the eye must jerk in order to be counted as a clue of intoxication?” Write: No Def # of Jerks. Some officers may get cheeky and say it just has to be distinct and sustained. Break it down for the officer, gently. “Distinct means you clearly see it. And sustained means it must be continual. And that’s just for the second pass when you are holding it out for at least four seconds. What about in the first clue—lack of smooth pursuit? How many times does it have to jerk when you are just going side to side? And then in the third clue—onset prior to 45 degrees—how many times does it have to jerk before 45 degrees for you to stop your pen before you get to their shoulder?” Most officers will state just once. If they are still being evasive, refer back to the learned treatise NHTSA manual. “Show me in this manual where it says once, twice, three times a lady that it had to jerk?” Even writing this type of evasive answering makes me want to destroy this officer. Repeat to yourself: This officer is human, he is loved by someone, somewhere. Get back to your center. “Officer, I’m not trying to bust your chops, this is not your test, you did not design these tests. Nowhere in this manual did anyone ever state how far or how many times the eyes had to jerk?”

Most prosecutors have already bored the judge and jury to death with the timing of the HGN. Usually the officer has been properly woodshedded by the state and knows the HGN timing. If he doesn’t, or did it grossly wrong on the video, you may want to show the jury the difference between NHTSA standards and how the officer administered it.

But this article suggests a different tactic in attacking the HGN, one that is not based on breaking down the timing. The HGN is not a divided-attention test like the Walk and Turn (WAT) or the One Leg Stand (OLS). The officer will agree. If not, the NHTSA manual defines the WAT and OLS as divided-attention tests. The manual defines HGN as an involuntary jerking of the eyes as they gaze toward the side. Nothing about HGN or Nystagmus says divided attention. Remember to be careful with your words here: “Nystagmus does not measure mental or physical faculties?” No, it doesn’t. Inexperienced officers will try to argue that it does. To combat this, simply illustrate that nystagmus is an “involuntary” jerking and cannot be controlled by our eye muscles, as much as we may want to. And we cannot make our brains, through the neurons, control this involuntary jerking, as much as we want to. Some persistent officers will continue to argue, at which point you may need to distinguish where the loss of mental or physical faculties comes into the WAT and OLS, and how that’s not possible in the HGN. Nowhere in the NHTSA manual does it say loss of mental or physical faculties for HGN. Depending on the remarks in the video, if the officer just will not agree nystagmus doesn’t measure mental or physical, ask them about the client’s performance, like this:

  • He had no problem following your stimulus?
  • You never had to tell him not to move his head?
  • So, he displayed good mental faculties in following your instructions?
  • He displayed good physical faculties in watching your stimulus and not moving his head?

The jury will be turned off and the officer will damage credibility by continuing to argue.

Under your HGN heading, write: Does Not Measure Mental or Physical Faculties. After this amount of cross, the officer has already established a reputation with the jury. Discuss the findings on the HGN. “You found six out of six clues on my client? That’s all of them, maxed out?” Write: 6/6 on the board in the top left in red. We will come back to this at the end of all the SFSTs.5

“There is no way that I can prove you didn’t see those little jerks? Stimulus is 12–15 inches from their face, your face is about another 12–15 inches from your hand. That’s 24–30 inches from his eye, at night, looking for millimeters of jerks.” The jury gets it.

“You never stated out loud when you saw these clues on camera? You never said lack of smooth pursuit, maximum, onset into your mic while you were doing them? In fact, you wrote down how many clues you saw when writing you report? You wrote your report after you had determined he was intoxicated? After you had arrested him? After you towed his car?”

Some officers may say they are prohibited from stating the clues on the video by law, which is correct under Fischer. “Well you could have said them and then we just would have muted it. But it could serve to remind you which clues you actually saw? But you remembered later, you saw all of them? We just have to trust you?” Write: Trust Me in big red letters on the top right of the board.

“You didn’t arrest him after the HGN test, did you? Even though you got all six out of six clues? The next test you administered was the Walk and Turn?”6

The Walk and Turn (WAT)

The WAT is a divided-attention test meaning that it is supposed to measure your mental and physical faculties. In plain English, they want to see how well you can listen to instructions (mental) and then perform what you just heard (physical). The WAT is a test where the video will actually show us the client’s performance. There is no “trust me” in the WAT. The overall intent in dissecting this test is honestly for the jury to go home, try it, and realize how absolutely ridiculous this test is and how strictly it’s graded. Slowly break down this test to the jury using the officer and the NHTSA manual.

Turn to a new page on your easel and write WAT in big black letters at the top of your display. Then lay out the eight clues of intoxication NHTSA established. Know them by heart; it’s your profession. Start writing them down on the board as you recite them. “The first two clues come in the Instruction Phase, meaning they have to stand like this while you give the instructions and demonstrate. 1. Can’t Maintain Balance; 2. Starts Too Soon. The next six come during the Walking Phase. 3. Steps Off Line. 4. Misses Heel to Toe. 5. Raises Arms. 6. Stops While Walking. 7. Incorrect Number of Steps. 8. Improper Turn.” Now the jury can clearly see what the test is graded on.7

Next, show the jury how the test is really administered. Ask the judge to stand up and demonstrate portions.

  • “Officer, this test has 18 unique instructions? Don’t worry, I’m not quizzing you. Let’s go through them together (count these out on your fingers as you go so that the jury can follow along):
      1. Place your feet on a line
      2. In a heel-to-toe manner
      3. Left foot behind right foot
      4. With arms at sides and give a demonstration, tell subject
      5. Not to begin until instructed to so do and ask if subject understands. Tell subject to take
      6. Nine
      7. Heel-to-toe steps
      8. On the line and demonstrates. Explain and demonstrate the turning procedure:
      9. Lead foot planted
      10. Take a series of small steps
      11. To the left direction. Tell the subject to
      12. Return on the line
      13. Taking nine
      14. Heel-to-toe steps
      15. Count out loud
      16. Look at feet while walking
      17. Don’t raise arms from sides. And
      18. Do not stop once they have started. Do they understand?8

Write: 18 Instructions on the board top left in red. “How many times did you demonstrate the test?” Write: 1x Demo or whatever they say. “How many times did you allow him to practice this test before grading him?” Write: 0 Practice. “Did you tell him the clues you would be grading him on?” Write: 0 Clues Given. “Did you give him credit for all the good stuff he did right?” Some may argue or be confused. Circle back to their training and their testing and how they were given credit for all the answers they got right. Hell, every test anyone has ever taken they got credit for the stuff done right! “You agree age, weight, leg, back, or neck injuries may affect an individual’s performance on this test?” Write: [whatever issue your client has]. “Now tell the jury how many clues equals failure or the decision point?” Write: 2 = Intox.

Next show the jury how meticulous the test is scored. Go through each of the clues and define them. When you get to heel-to-toe, ask the officer to show the jury with his fingers just how far someone has to miss heel-to-toe in order to be counted as a clue of intoxication. And make sure to ask if that half inch is between his fingernails or finger beds, on just one step. Write: the measurements of ½ inch and >6 inches next to heel-to-toe and raises arms. Be sure to put green check marks next to all the clues your client didn’t exhibit. When you get to improper turn, you should slow down and explain to the jury that there are three ways you can get that clue: series of small steps, leave the lead foot planted, and turn to the left. Let the jury see all of the ways there are to get a clue of intoxication.9

Bring it home for the jury. Ask the officer how many clues your client exhibited. Write 4/8 or whatever it was. “So, you’re telling me that every single sober person in here has to get a zero or one on this test? Because two equals intoxication?” Look at the jury after the officer admits this. Share that common ground with them. “So you’re telling me, if someone were to go home and try this test, not that anyone would, but now knowing all of the clues and how it’s graded [optional sidebar: which is something my client didn’t know], they should be able to get a zero or a one on it?” You have to love the zealous officer who will not only agree but add that the tests are easy, or that he sees plenty of people pass them.

Finish off the cross with a final blow. “Officer, is this a normal or abnormal way to walk?” Most officers will never admit it’s “abnormal.” Ask them: “Who else walks like that?” Most either can’t think of it or don’t want to say it—gymnasts on a balance beam (but they get to balance with their arms to the side) and tight rope walkers (but they get that long bar). Write: Abnormal in the top left in red. “Now, I’m not busting your chops, these aren’t your tests, but you’re supposed to judge whether someone has lost the normal use of their mental and physical faculties on an abnormal test? And you still didn’t arrest my client after this test?”

The One Leg Stand (OLS)

Very similar to the WAT, lay out the OLS. Start with the clues: 1. Sways; 2. Hops; 3. Drops; and 4. Raises Arms. Count out the instructions: 1. Stand straight; 2. Place feet together; 3. Hold arms at sides; 4. Tell subject not to begin until instructed to do so and ask if they understand; 5. Raise one leg, either leg; 6. Approximately 6 inches off the ground; 7. Keeping the raised foot parallel to the ground (and give a demonstration), tell subject: 8. Keep both legs straight; and 9. Look at the elevated foot; 10. Count out loud, in the following manner: 11. One thousand and one, one thousand and two, one thousand and three 12. Until told to stop. And give demonstration.

Follow the pattern in the WAT and write: 12 instructions, 1x demo, 0 practice, 0 clues given, 0 credit given, age, weight, back, leg, or neck injuries may affect, 2 = intoxicated.

When examining each clue, be sure to establish there is no distance for sway as defined by NHTSA.10 No definition of how many inches or how long someone must sway. Write: ? You don’t need to save the abnormal surprise; the jury gets it. “Is this a normal or abnormal way to stand? Even the Karate Kid got to raise his arms for balance.” And then bring it home: “So everyone in this room better be able to get a zero or one on this test? And all humans have a natural sway when standing on one leg? So that’s one clue already with no definition of how far or how long one must sway? That means everyone should be able to stand on one leg for 30 seconds without dropping it, and not raise their arms or hop the entire time? Not that anyone would ever try that at home.”

Before you wrap up your cross, come back around to the HGN. “My client got 4/8 on the WAT and 2/4 on the OLS, right? Never maxed out any of these tests as we can clearly see on video. But after you arrested him, towed his car, and got to write your report, you wrote 6/6 on the HGN?” The jury sees where you are going. The officer sees where you are going. It’s a rhetorical question. Let the jury ask and answer it in their heads. “So, we just have to trust you that he failed that miserably, but on the video, he looked good (we probably are not in trial if he doesn’t look good)?”

Lastly, bring the fear home. “Not to bust your chops officer, because these aren’t your tests, but if someone is pulled over on the way home from dinner and smells like alcohol or admits to drinking at dinner, they could have to do these tests? And then if they do these tests, you will have to administer it in the standardized manner only and grade it just like we saw? Zero or one to go home?”

This will resonate with everyone. As you can tell from breaking down these tests, they are next-to impossible. We as defense lawyers know these tests, and on any given day with the weather, nerves, and our conditioning, we couldn’t pass these. To assume regular, everyday people who don’t know these tests are capable of passing . . . Let’s be honest: It’s whether the officer wants to arrest you or not. They are purely subjective.

Conclusion

This article is not suggesting that no tests should be given to suspected drunk drivers. Rather, it breaks down the simple reality of how stringently and subjectively these tests are graded. Unfortunately, many people who “fail” these tests will not have the ability to fight these tests—be it for financial reasons, time constraints, or by hiring an attorney who doesn’t want or care to fight it.

We as trial lawyers must know these tests better than the officers. Only once you truly understand these tests can you simplify their basic elements and effectively communicate their unfairness to a jury. Many times, at the end of a trial, jurors will remark how they are never drinking and driving again because there is no way they can pass these tests. These are normal people, just like our clients. And it’s not about the officer; don’t bust his chops. It’s an unfair testing system. Jurors can feel confident in a not-guilty verdict for standing up for natural human error in coordination exercises. Break the SFSTs down to the basics—make it about the tests, not the officer. Jurors can still respect law enforcement while finding the client not guilty, even after “failing” these unfair “tests.”

Coercive Interrogation and the Vulnerable Population

[A] system of criminal law enforcement which comes to depend on the “confession” will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.” Escobedo v. Illinois, 378 U.S. 478, 488-89 (1964).

“[F]alse confessions are [a] leading cause of wrongful convictions[.]” State v. Lawrence, 920 A.2d 236, 266–67 (2007)(Katz, J., dissenting)(citing R. Leo, S. Drizin & P. Neufeld et al., Bringing Reliability Back In: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 Wis.L.Rev. 512 (2006). “False confessions are most common among the most vulnerable groups of defendants—juveniles and people with mental disabilities. Id. “Individuals who are deaf are especially susceptible to offering false confessions. When they fail to understand what is asked of them, they often accede to what they do not understand, especially when confronted by a person in authority.” “Individuals with Disabilities and the Issue of False Confessions,” 26 Champion 34, 38 (July 2012).

Coercive Interrogation

“Just Want to Get Your Side of the Story”

“[C]ontemporary interrogation strategies . . . are based on the manipulation and betrayal of trust.” Richard A. Leo, Miranda’s Revenge: Police Interrogation as a Confidence Game, 30 L. & Soc’y Rev. 259, 259–60 (1996)(studying five hundred hours of police interrogations). “The purpose of interrogation is therefore not to discern the truth, determine if the suspect committed the crime, or evaluate his or her denials . . . [T]he single-minded purpose of interrogation is to elicit incriminating statements, admissions, and perhaps a full confession in an effort to secure the conviction of offenders.” Fred E. Inbau et. al., Criminal Interrogation and Confessions 8 (4th ed. 2001). This reality is at least recognized, if not enforced, by the Supreme Court of the United States. Miranda v. Arizona, 384 U.S. 436, 449–55 (1966)(police “persuade, trick, or cajole him out of exercising his constitutional rights”). Welcome to the accepted Texas method of interrogation commonly referred to as the “Reid Technique.”

If you are the police, it is easy to exercise. First isolate the person, then assert with certainty his guilt (“we already know, we’ve got witnesses, we’ve got the crime scene evidence, we’ve got the DNA”). Next, make a sympathetic offer of blame-shifting (“I believe you. I really do. So, he was doing most of it?”) or minimization (“You hardly had anything to do with the offense. She did it to you. I feel for you”). When the person still protests his innocence, reject them with confidence and finality (“Hey, we’re past that. You’ve already admitted. We both agree we’ve got the evidence. You’re guilty. Sorry, but under the law, you just are—wish I could change it. It’s no longer open for debate”). After psychological domination is complete, have the person endorse the narrative with his own signature or affirmation. The technique is so effective that ordinary people, even those who know the technique is being employed against them, will endorse false confessions. But some people are more vulnerable than others.

Supreme Court Recognition

This reality is no revelation at this late date, as the Supreme Court long ago reviewed:

The officers are told by the manuals that the “principal psychological factor contributing successful interrogation is privacy—being alone with the person under interrogation.” The efficacy of this tactic has been explained as follows:

 “If at all practicable, the interrogation should take place in the investigator’s office or at least in a room of his own choice. The subject should be deprived of every psychological advantage. In his own home he may be confident, indignant, or recalcitrant. He is more keenly aware of his rights and more reluctant to tell of his indiscretions or criminal behavior within the walls of his home. Moreover, his family and other friends are nearby, their presence lending moral support. In his own office, the investigator possesses all the advantages. The atmosphere suggests the invincibility of the forces of the law.”

        To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect’s guilt and from outward appearance to maintain only an interest in confirming certain details. The guilt of the subject is to be posited as a fact. The interrogator should direct his comments toward the reasons why the subject committed the act, rather than court failure by asking the subject whether he did it. Like other men, perhaps the subject has had a bad family life, had an unhappy childhood, had too much to drink, had an unrequited desire for women. The officers are instructed to minimize the moral seriousness of the offense, to cast blame on the victim or on society. These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already—that he is guilty. Explanations to the contrary are dismissed and discouraged.

The texts thus stress that the major qualities an interrogator should possess are patience and perseverance. One writer describes the efficacy of these characteristics in this manner:

In the preceding paragraphs emphasis has been placed on kindness and stratagems. The investigator will, however, encounter many situations where the sheer weight of his personality will be the deciding factor. Where emotional appeals and tricks are employed to no avail, he must rely on an oppressive atmosphere of dogged persistence. He must interrogate steadily and without relent, leaving the subject no prospect of surcease. He must dominate his subject and overwhelm him with his inexorable will to obtain the truth. He should interrogate for a spell of several hours pausing only for the subject’s necessities in acknowledgment of the need to avoid a charge of duress that can be technically substantiated. In a serious case, the interrogation may continue for days, with the required intervals for food and sleep, but with no respite from the atmosphere of domination. It is possible in this way to induce the subject to talk without resorting to duress or coercion. The method should be used only when the guilt of the subject appears highly probable.

The manuals suggest that the suspect be offered legal excuses for his actions in order to obtain an initial admission of guilt. Where there is a suspected revenge-killing, for example, the interrogator may say:

“Joe, you probably didn’t go out looking for this fellow with the purpose of shooting him. My guess is, however, that you expected something from him and that’s why you carried a gun—for your own protection. You knew him for what he was, no good. Then when you met him he probably started using foul, abusive language and he gave some indication that he was about to pull a gun on you, and that’s when you had to act to save your own life. That’s about it, isn’t it, Joe?”

Before the Mutt-Jeff routine, the Supreme Court noted the effectiveness of developing “inconsistencies” which “serve to deprive” the defendant of a defense. As any practitioner knows, this technique is employed in most roadside investigations, whatever the pretense of enforcement of Transportation Code infractions. Miranda v. Arizona, 384 U.S. 436, 449–63 (1966).

Involuntary Confessions

A confession is deemed voluntary if it is “the product of an essentially free and unconstrained choice,” but “if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” Schneckloth v. Bustamonte, 412 U.S. 218, 225–26 (1973). See also Culombe v. Connecticut, 367 U.S. 568, 602 (1961)(confession must be “product of an essentially free and unconstrained choice” to be voluntary); Rogers v. Richmond, 365 U.S. 534, 544 (1961)(decision to confess must be “freely self-determined”); Blackburn v. Alabama, 361 U.S. 199, 208 (1960)(“product of a rational intellect and a free will”). “[C]oercion can be mental as well as physical, and . . . the blood of the accused is not the only hallmark of an unconstitutional inquisition.” Blackburn v. Alabama, supra at 206. See also Reck v. Pate, 367 U.S. 433, 440–441 (1961); Watts v. Indiana, 338 U.S. 49, 52 (1949).

When the issue is raised, the State bears the burden of proving a statement deemed incriminating was voluntarily given. See Alabama v. Beecher, 389 U.S. 35 (1967); Clewis v. Texas, 386 U.S. 707 (1967); Blackburn v. Alabama, supra. “The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.” Lisenba v. California, 314 U.S. 219, 236 (1941).

Vulnerable Populations

The Need for Defense Counsel Alertness and Protection

People are more vulnerable than ever before, due to the weakening of constitutional protections against coerced confessions. In 2010, the Supreme Court of the United States held that it is not enough for a person to remain silent after having been informed of his Miranda right to do so. He must affirmatively invoke his right to silence. Otherwise the police are free to interrogate. Berghuis v. Thompkins, 560 U.S. 370 (2010). The same year, the Court created a 14-day period for police to have another go at a defendant who has previously invoked his right to silence to do so again. Maryland v. Shatzer, 559 U.S. 98 (2010).

People with disabilities are even more vulnerable than the general population, as studies have shown.

In the group of sixty-six false confessions, twenty-three were juveniles, and at least twenty-two had an intellectual disability or were mentally ill . . . This tracks the pattern among the first forty such false confessions, in which fourteen had an intellectual disability, three were mentally ill, and thirteen were juveniles . . . Still others among these exonerees, while not diagnosed with such a disability at the time of trial, may have been quite suggestible or may have not been diagnosed because the defense did not retain experts.

Brandon L. Garrett, Contaminated Confessions Revisited, 101 Va. L. Rev. 395, 399–400 and n.18 (2015). In another study of 125 confessions later proven false, almost 30% came from a person with at least one mental disability. Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891, 970–73 (2004). In another, 43% of people exonerated by DNA and who gave false confessions had some form of disabilities. Brandon L. Garrett, The Substance of False Confessions, 62 Stan. L. Rev. 1051, 1095 (2010).

Deaf Persons

The consensus of those who serve the deaf community appears to be that the mean reading level of deaf persons in the United States is approximately fourth grade[.] Having a high-school diploma may or may not indicate an adequate ability to read and understand written documents, nor may possession of a driver’s license so indicate, as the licensing test may have been interpreted for the deaf person.

Linton v. State, 275 S.W.3d 493, 510 n.2
(Tex.Crim.App. 2009)(Johnson, J., concurring).

If the accused is a deaf person, the accused’s statement under Section 2 or Section 3(a) of this article is not admissible against the accused unless the warning in Section 2 of this article is interpreted to the deaf person by an interpreter who is qualified and sworn as provided in Article 38.31 of this code.

Tex. Code Crim. Pro. art. 38.22, Sec. 3(d).

Constitutional Right to an Interpreter

The right to an interpreter is based in part on the Sixth Amendment’s Confrontation Clause. Garcia v. State, 149 S.W.3d 135, 142 (Tex.Crim.App. 2004)(reversing conviction of defendant who did not understand English and had no translator on basis of Sixth Amendment). But the right is also based on the Fourteenth Amendment’s Due Process Clause as well. “Considerations of fairness, the integrity of the fact-finding process, and the potency of our adversary system of justice forbid that the state should prosecute a defendant who is not present at his own trial[.]” United States ex rel. Negron v. New York, 434 F.2d 386, 389 (2nd Cir. 1970). Prince v. Beto, 426 F.2d 875, 875 (5th Cir. 1970)(appointment of husband of deaf wife as interpreter violated the Due Process Clause).

Interpreter Qualifications: Licenses and Certifications

Section 57.002 of the Government Code and article 38.30 of the Code of Criminal Procedure govern the appointment of interpreters. Article 38.31 specifically governs deaf interpreters.

The interpreter must be licensed by the Department of Assistive and Rehabilitative Services. A deaf interpreter must be certified by the Department of Assistive and Rehabilitative Services. An interpreter for the deaf is qualified if she holds a current legal certificate issued by the National Registry of Interpreters for the Deaf or a current court-interpreter certificate issued by the Board for Evaluation of Interpreters at the Department of Assistive and Rehabilitative Services.

The court in small counties (less than 50,000) or counties that border Mexico may appoint an unlicensed or uncertified spoken-language court interpreter if the language is other than Spanish and there is no licensed court interpreter within 75 miles. Under these circumstances, the interpreter must be at least 18 years old, not a party, and must be qualified by the court as an expert under the Texas Rules of Evidence.

The Health and Human Services Commission creates the rules for the qualifications, training/education, certification, and compensation of certified court interpreters. A violation of the Commission’s rules is a Class A misdemeanor.

No proceeding involving a deaf person may commence “until the appointed interpreter is in a position not exceeding ten feet from and in full view of the deaf person.” Tex. Code Crim. Pro. art. 38.31(d).

“The interpreter may not disclose a communication between the defendant and defense counsel or a fact that came to the attention of the interpreter while interpreting those communications if defense counsel may not disclose that communication or fact.” Tex. Code Crim. Pro. art. 38.31(d).

Competency of Interpreters

The competency of an individual to act as an interpreter is a question for the trial court, and the trial court’s determination of the individual’s competency is reviewed on appeal under an abuse of discretion standard. Martins v. State, 52 S.W.3d 459, 470 (Tex. App.—Corpus Christi 2001, no pet.); Kan v. State, 4 S.W.3d 38, 41 (Tex. App.—San Antonio 1999, pet. ref’d). The accuracy of an interpreter’s translation is a question of fact for the factfinder and not reviewable by an appellate court. Kan, 4 S.W.3d at 43. An unqualified interpreter can result in reversible error. Watson v. State, 596 S.W.2d 867 (Tex.Crim.App. 1980).

Trial Court and Defense Duties Regarding Interpreters

A judge who knows a witness cannot understand English must appoint an interpreter unless the defendant affirmatively waives the appointment. Garcia v. State, 429 S.W.3d 604, 606–07 (Tex.Crim.App. 2014). Similarly, if a motion for appointment of an interpreter is filed by the State or defendant or requested by a witness, the trial court must appoint an interpreter. Consequently, the defendant does not need to do anything else to preserve the issue for appeal. Id.  “Courts have found the absence of an interpreter violated due process where the defendant’s inability to understand the proceeding or an element of the proceeding resulted in the denial of a fundamental right.” State v. Calderon, 13 P.3d 871, 876 (Kan. 2000).

The defense must make an objection regarding a complaint regarding the competency of an interpreter appointed by the trial court or the issue is waived. Montoya v. State, 811 S.W.2d 671, 673 (Tex.App—Corpus Christi 1991, no pet.).

Questions for Interpreters

  • Are you licensed or certified?
  • What agency licensed or certified you?
  • When was the last time you were certified?
  • How many times have you been certified?
  • Has your license ever been suspended?

Juveniles

Juveniles are recognized as a group that requires specific safeguards against the perils of custodial interrogation. Tex.Family Code Ann. § 151.003 and § 262.104; Juvenile Justice Code, § 54.03 and § 51.09. In one study, over 30% of 103 juveniles proven innocent through DNA had falsely confessed, and over half of the eleven- to fourteen-year-old group had confessed falsely. Joshua A. Tepfer, Laura H. Nirider & Lynda M. Tricarico, Arresting Development: Convictions of Innocent Youth, 62 Rutgers L. Rev. 887, 904–05 (2010).

The Court of Criminal Appeals has said:

In deciding whether a particular interrogation was custodial, courts must consider numerous factors[.] . . . The subjective intent of the police officer is one such factor, but courts will disregard an officer’s testimony that a defendant was not a suspect and not in custody if the testimony is belied by the facts of the case. . . . “The courts cannot be expected to decide cases solely on the basis of self-serving statements by the defendant or the interrogating officer.” .Ê.Ê. Among the other factors which may be considered, one which “has consistently impressed our court [is] whether or not the focus of the investigation has finally centered on the defendant.” . . . Another factor which may be considered is whether there was probable cause to arrest.

Ruth v. State, 645 S.W.2d 432, 435 (Tex.Crim.App. 1979)(internal citations omitted). The Court of Criminal Appeals outlined at least four general situations which constitute custody:

(1) when the suspect is significantly deprived of his freedom of action in any significant way; (2) when a law enforcement officer tells a suspect that he cannot leave; (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to go.

Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App. 1996).

Some courts have found it appropriate to “apply a wider definition of custody for Miranda purposes” where juveniles are concerned. See, e.g., In re Joshua David C., 116 Md. App. 580, 698 A.2d 1155 (Md.App. 1997). The voluntariness of juvenile confessions is gauged according to the totality of circumstances. Fare v. Michael C., 442 U.S. 707, 725 (1979). Accordingly, a defendant’s age should be included in any legal analysis of whether she was in custody for purposes of her entitlement to constitutional and statutory protections against coerced statements.

[W]hen . . . a mere child—an easy victim of the law—is before us, special care in scrutinizing the record must be used.

***

        He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a [child] in his early teens. This is the period of instability which the crisis of adolescence produces. A 15-year-old . . . is a ready victim of the inquisition. Mature men might possibly withstand the ordeal. . . . But we cannot believe that a [child] of tender years is a match for police in such a contest.

Haley v. Ohio, 332 U.S. 596, 599–600 (1948)(reviewing confession of a 15-year-old interrogated for 15 hours by police relay teams). Due process accordingly requires that “the greatest care must be taken to assure that the admission was voluntary, on the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of right or of adolescent fantasy.” Matter of Gault, 387 U.S. 1 (1967). See also Gallegos v. Colorado, 370 U.S. 49, 53–55 (1962)(five days of isolating 14-year-old from mother or other adult, deemed coercive).

Intellectually Disabled

“[W]e cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated. As two recent high-profile cases demonstrate, these exonerations include mentally retarded persons who unwittingly confessed to crimes that they did not commit.” Atkins v. Virginia, 536 U.S. 304, 320 n.25 (2002)(citations omitted).

Previously identified with the stigmatizing term “mentally retarded,” the preferred term used today is “intellectually disabled” or “intellectual developmental disorder.” The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), defines the terms as a disorder with onset during person’s developmental period that features “intellectual functioning deficits” (i.e., difficulties in school and learning from experience, reasoning and problem solving, abstract thinking, and judgment) and “adaptive functioning deficits” (i.e., “failure to meet developmental and sociocultural standards for personal independence and social responsibility”).

There are four levels of intellectual disability severity: profound, severe, moderate and mild. Three of these categories—profound, severe, and moderate—are so bad, the people in them are the least likely to ever have contact with the criminal justice system. If these people are ever arrested and accused, there are issues of incompetency to stand trial, among others, that result in a treatment not easily traceable. They are the minority of people who are so disabled.

People with a profound intellectual disability (1–2%) fall below an IQ of 20–25. It hardly takes an expert to perceive this level of disability, as they can hardly express themselves verbally, among other very extreme deficits. People at the “severe” level (3–4%) have a slightly higher IQ range (between 20 and 40) than the “profound.” Like their even more disabled counterparts, they don’t understand numbers, can’t tell time or count money. They have limited language and must be helped with bathing, eating, and dressing themselves. A greater number (10%) fall within the “moderate” range with IQs at 35–55. Those in the moderate range can actually become independent on basic household chores and with personal care. With great support from family coworkers and other helpers, they can even work and manage money.

But the vast majority—about 85%—fall within the “mild” range (50–70). These are exactly the people who will be crushed by the criminal justice system because they don’t look like the character “Lennie’ from John Steinbeck’s Of Mice and Men. It is easy to believe the person is “just playing dumb.” Police and prosecutors who believe it have little difficulty convincing juries. As the “Making a Murderer” shows, it convinces judges as well.

“Making a Murderer”—Interrogation of Brendan Dassey

The Netflix documentary showed the repeated interrogation of a 16-year-old special education student, Brendan Dassey, with an IQ between 74 and 81 and described as “highly suggestible, docile, withdrawn, with extreme social anxiety and social avoidant characteristics, and more suggestible than 95% of the population.” Dassey v. Dittmann, 860 F.3d 933, 938–39 (7th Cir.), reversed, 877 F.3d 297 (7th Cir. 2017)(en banc). It is better observed on the videotape.

[Police Interrogators]: What else did he do to her? We know something else was done. Tell us, and what else did you do? Come on. Something with the head. Brendan?
Brendan: Huh? . . .
[Police Interrogators]: What else did you guys do, come on. . . .
[Police Interrogators]: We have the evidence, Brendan, we just need you ta, ta be honest with us.
Brendan: That he cut off her hair.
[Police Interrogators]: He cut off her hair? In the house?
Brendan: mm-huh. . . .
[Police Interrogators]: OK, what else?
[Police Interrogators]: What else was done to her head?
Brendan: That he punched her.
[Police Interrogators]: What else? [pause] What else? . . .
[Police Interrogators]: What did he make you do, Brendan? It’s okay. What did he make you do?
Brendan: Cut her.
[Police Interrogators]: Cut her where?
Brendan: On her throat. . . .
[Police Interrogators]:: What else happens to her in her head? . . .
[Police Interrogators]: Come on, Brendan, what else?
[pause] [Police Interrogators]: We know, we just need you to tell us.
Brendan: That’s all I can remember.
[Police Interrogators]: All right, I’m just gonna come out and ask you. Who shot her in the head?
Brendan: He did.
[Police Interrogators]: Then why didn’t you tell us that?
Brendan: Cuz I couldn’t think of it.
[Police Interrogators]:: Now you remember it? [Brendan nods “yes”]. Tell us about that then.

Interrogated with Intellectual Disabilities: The Risks of False Confession, 70 Stan. L. Rev. 643, 669–680 (2018).

Memories of a Christmas in Vietnam

After 44 months as a Marine and 158 weeks as a prosecutor for Smith County, I became a Texas criminal defense lawyer on September 15, 1970, at the age of 32. Three months later, Christmas was approaching and the Vietnam war was escalating. By the end of the year, there would be 184,314 American troops in country and 1,928 Americans would have died there. Memories of the Christmas Day that I spent in Vietnam in 1965 were still fresh in my mind—as they are even today.

We lawyers had our living tents, office tents, and a courtroom tent on the side of Hill 323 near Danang. The monsoon season was almost over, but the mud and dampness were always with us. Christmas morning was dreary, and that matched my mood. Two of my best friends had just rotated back to the Land of the Big PX, and I missed their camaraderie. Most importantly, though, was that I missed my wife, Robyn, and my parents. This was the first time that I had been away from family on a Christmas Day, and I learned what loneliness during the holiday season was all about.

And so it was that I began a tradition in 1970 that has continued. Each Christmas Day, I go to the jails here in Tyler and visit with all of my clients—33 is the record. Some of them will have other visitors; some will not. Most, if not all, will be surprised to see me. I spend enough time with each client for them to know that I understand what it is to be away from family and friends on Christmas Day, and that I am concerned about each of them. Some will become serious and reflect on the changes they intend to make in their lives to avoid being in confinement next year. For others, there will be a quiet resignation that this is yet another Christmas to be locked up. Often, I listen more than I talk.

Over the years, I’ve had former clients tell me how pleased they were to see me on a Christmas Day and conversations with parents who expressed their appreciation for my visits with their sons or daughters. I know that most of us will be celebrating Christmas or Hanukkah or just relaxing with our families on December 25th this year and may not be enthusiastic about having a visitation with clients as I am suggesting. If you give it a try, though, you’ll understand why it has been so rewarding for me for 50 Christmases.

Buck Files joined the 3rd Battalion, 4th Marine Regiment at Phu Bai, Vietnam, in June 1965, and was one of the first Marine lawyers in country. In August, he prosecuted the first general court-martial convened by the Marine Corps in Vietnam at the old French compound in Danang and spent another eight months trying cases and providing legal assistance for the Marines of the 1st and 3rd Marine Divisions, FMF.

Small-Town Advice for the Big-City Lawyer

As a solo practitioner in Nacogdoches, I always enjoy seeing fellow criminal defense lawyers from out of town travel to the courthouse and defend the innocent accused (and occasionally a few guilty ones). It can also be quite entertaining to see how they handle practicing in a small town. In the twenty-odd years I’ve been practicing here, I’ve noticed that many make the same mistakes over and over, which although entertaining to us locals, do not serve their clients well. With that in mind, I wanted to share with you six common mistakes I see when city attorneys come to smaller towns.

Mistake #1: They overdress. While it’s good to dress for success, I often see attorneys from big cities wearing custom-made suits, matching socks, handkerchief, and tie, Rolexes, fancy briefcases, etc. The local prosecutor understands you are successful because your client must be paying a big fee to have you come up here. But looking dressed to the nines will often be counterproductive, as I’ve seen what are normally reasonable prosecutors dig in their heels against someone they think is trying to visually intimidate them.

Mistake #2: Don’t talk down to prosecutors. This is very common. An out-of-town lawyer treating a small-town prosecutor like an idiot will not get the desired result. A case that might ordinarily be dismissed because of a bad stop may need a few more settings so that the local prosecutor can casually “look up” all that complicated law so haughtily thrust upon them. They live here, but you have to drive here. Sometimes, over and over again . . . You don’t need to be a kiss-ass; just don’t be a smart ass.

Mistake #3: Don’t threaten prosecutors. This is closely associated with Mistake #2—especially when combined with Mistake #1. Threatening to file a suppression hearing, threatening to go to trial after the first setting, etc., will probably result in you coming back up here many more times than if you’d just acted like a rational human being. When threatening a prosecutor, you will just motivate them to figure out how to hammer you and your client. If you have a good case and the state has a bad one, great. Point it out in a non-threatening way and see what happens. Your result will usually be better than aggressively firing an opening legal salvo right off the bat.

Mistake #4: Don’t aggravate the court staff. If you tick off the prosecutor, that’s bad enough. But you really don’t want to make the court staff mad. They live nearby and go to that courthouse daily. You may have made your point that you want a jury trial, but you could be at the bottom of the list for many dates down the road. And, you may find yourself angrily driving back and forth indefinitely if you make the wrong court coordinator mad.

Mistake #5: Don’t pick a jury without consulting local counsel. This one may be obvious, but it’s worth noting. The smaller the jurisdiction, the more likely local counsel is going to know a lot about the folks on the jury panel. They may have kids that go to school with jurors’ kids or may have gotten one of their family members out of trouble. If you don’t have the resources to hire local counsel as a jury consultant, at least ask a fellow TCDLA member to give a once-over on the jury list.

Mistake #6: Don’t go to the judge for important issues without consulting local counsel. Every judge is different, and some judges are good with probation and some generally are not. Local counsel is going to know which ones are good about that, as well as suppression hearings, continuances, etc. They will probably have some entertaining war stories to punctuate their opinion.

I hope this will help you the next time you practice in smaller towns. You can always consult the TCDLA directory and find fellow members to help you fill in the gaps if you find yourself in over your head. Good luck and have fun!

Voir Dire: Method Follows Model

Imagine you are repairing a car. How you perform the task depends on your understanding of how the car works. If you think internal combustion is powered by magic hamsters, you’re going to do the job differently than if you understand the suck-squeeze-bang-blow of a four-stroke engine. And, because there are no hamsters, feeding the hamsters is not going to work as well as making sure that the fuel, air, compression, spark, combustion, and exhaust necessary to make an internal-combustion engine work are all present.

Or imagine you are writing a song. If you understand music theory, you’re going to write a better song than if you think dissonance is more pleasant to the ear than consonance and make up your own scales.

You may be a natural-born mechanic or songwriter, with an intuitive or even subconscious understanding of your subject, but most people don’t have that sort of talent. Most mechanics and songwriters study their subject matter, and do their work according to their understanding—their model—of how it works. Method follows model.

Because method follows model, a better—closer to the truth—model leads to better—more successful—methods. You don’t have to understand music theory perfectly, but the better you understand it the better your songs might be.

This is no less true of trying cases than of tuning V8s. Trying a case to a jury is about getting jurors to adopt the beliefs that you want them to adopt. Unless we are naturally talented (and almost none of us are), we need to form a model of how people adopt beliefs and develop our trial skills to work with this model.

How jurors decide cases determines how you try cases. If your model of how jurors decide cases is more accurate, your method will be better. If your understanding is closer to the truth, your results are going to be better.

Voir dire1 is our first contact with the jury. I contend, for reasons that I’ll lay out below, that it is our most important contact with the jury. To have a method of voir dire, we first have to have a model of how jurors decide cases—that is, of how people adopt beliefs. The less accurate the model of how people adopt beliefs—the less it reflects reality—the less effective your voir dire will be.

So. We want a good method for causing people to adopt beliefs that are helpful to our clients. We need a good model. How do people adopt beliefs?

Our jury trial system is based on one model we can read in the instructions given to the jury by the court: Jurors are instructed to wait until they have heard all the evidence to begin deliberating, and then to decide the case based only on the evidence and not on emotion or sympathy. In this model, people withhold judgment until the facts are in, then adopt beliefs by weighing those facts and rationally deciding what is most likely correct.

This is a nice way to look at the decision-making process. It gives people a lot of credit for rationality and gives comfort that the world can be a safe and predictable place. Its only shortcoming is that it is laughably wrong.2

As evidence of its wrongness, I offer cognitive biases. Cognitive biases are unconscious mental processes, ingrained systems to save our brain’s decision-making work. The cognitive bias of confirmation bias, which is our tendency to filter information in a way that confirms our preexisting beliefs, is one such example. Due to confirmation bias, we seek out information that confirms our beliefs, and we discard information that refutes them.

Or consider the cognitive bias of fundamental attribution error, which causes us to attribute others’ failings (as we see them) to their character and choices and our own failings to external factors.

Another cognitive bias is affinity bias, which is our tendency to be biased toward people who we perceive to be like us.3

We are not aware of these cognitive biases in our day-to-day decision-making. What their existence tells us is that we aren’t the rational decision-making machines that we imagine ourselves to be.4

And neither are jurors.

So how do we—and jurors—adopt beliefs? If the classic rational-decision-making model is less than perfectly accurate, what model can we adopt that is more accurate and so will guide us to a better way to try cases?

The existence of cognitive biases suggests that we adopt beliefs irrationally, based on things like affinity, and then resist changing them and rationalize—find plausible rational justifications for—them. This model better reflects real-world observation and predicts real-world behavior than the classic model.5 It is, in other words, a better model.

The better model will lead us to better methods. And as long as we have a better model, we don’t need a perfect model. If we have a better model and therefore better methods than our adversary, we are at an advantage.6

Our next step in developing those better methods is to apply this better model, which is very general (“how people adopt beliefs”), specifically to trial (“how jurors, in trial, adopt beliefs”).

Consider the life of a juror. Pulled out of her usual routine, she comes to an unfamiliar environment—the courthouse—where she sits on an uncomfortable pew, and people talk at her about things she doesn’t understand. Worse, they try to make her talk. There’s a judge and there’s a prosecutor—she’s watched “Law and Order,” so she knows that’s the good guy—and a defense lawyer (bad guy!) with the defendant, who’s probably guilty.

Given the better model, at what point does this juror reach a belief about whether our client is guilty?7 The answer is disheartening: She has reached a belief before anyone starts talking. But there’s nothing we can do about that since that’s the first time we even see her, so let’s concentrate on what we can do something about. At what point does a juror reach a belief about whether our client is guilty that we can do something about?

So that we don’t lose heart—and we needn’t lose heart, because our method is better than our adversary’s—let’s treat the beliefs that the juror reaches before we get up to talk as tentative beliefs. Assume that we can change them and instill our own beliefs. Our first opportunity to do so is when we begin our voir dire. Our second opportunity is when we give our opening statement.

By tradition—this is not a written rule—we cannot talk about the facts of the case in voir dire. This unwritten rule probably arises from the proscription against improper commitment questions: If we tell the jurors what the facts of our case are, we are close to committing them to acting on those facts.

But if we can’t talk about the facts, then the prosecutor hasn’t talked about the facts. The jurors’ tentative beliefs, when we begin our voir dire, are based on the prosecutor’s framing of the issue and the prosecutor’s credibility. In our voir dire, our objectives (aside from and superior to the mechanics of eliminating unfavorable jurors) are to reframe the issue and to build credibility with the jury.

We reframe the issue with hypotheticals. Ideally, we will come up with a hypothetical that will allow the jurors to come up with our theory of the case on their own. If the jurors feel that our theory of the case is their idea, they are invested in it and will more readily accept it than if we have to tell them what it is. If the jurors can’t come up with our theory of the case on their own, it’s probably not a good defense.8

Our theory of the case might be “she never intended to meet for sex but was only offering to introduce him to someone his own age,” or “she cried rape when he said he wouldn’t marry her,” or “when his wife found the money missing, he had to claim that it was stolen so that she wouldn’t find out about the affair.”

A hypothetical might be the following: “I’m a criminal-defense lawyer. If I told you, ‘text me if you need a family lawyer,’ what might I mean?” Or: “Why would a woman cry rape after consensual sex?” Or: “If a man gave a woman money, why might he claim that she had stolen it?”9 This will certainly be a different frame than the State has put on the case. Jurors will give several answers; record them all, and don’t commit to any of them yet.10

Before coming in to the courtroom, the jury has started forming a group, and the lawyers are not part of it. An important thing for you to know about groups is that a group feels things that happen to one member as happening to all members.11 Here, if one member of the group comes up with your theory of the case, the rest of the group will treat it as the group’s idea.

The State had the advantage of primacy in its framing, but we have the advantage of recency. We also have the advantage of having trusted the jury to come up with our theory of the case. Not only will they be more committed to the theory for having come up with it themselves, but they will reciprocate the trust we put in them with trust for us.

That—trust—brings us to our other primary voir dire task (other than framing) which is to build credibility with the jury. Other descriptions of what we’re building include:

  • Trust;
  • Liking;
  • Attraction; and
  • Rapport.

Generally: If we like someone, we trust them. If we trust them and like them, we are attracted to them—we are willing to spend time with them and hear what they have to say.12 If we trust and like someone and they trust and like us, we have rapport.

What is more, if we trust someone they are more likely to trust us. If we like someone they are more likely to like us. If we are attracted to someone they are more likely to be attracted to us. These are feedback loops, which you will start noticing everywhere in human relationships.

Most two-way interpersonal communications involve feedback loops. If I smile warmly and sincerely at you, you may feel good and smile warmly and sincerely at me, and I will feel good: a feedback loop. If you scowl at me, I may feel bad and scowl at you, and you will feel bad: also a feedback loop.13

The personal traits that make other people trust, like, be attracted to, and feel rapport with you are charisma. Charisma is in part about opening feedback loops with people that make them feel good. If you make people feel good, they will want to spend time with you and hear what you have to say.

Charisma in jury selection is also about another kind of loop: the Zeigarnik Effect loop. The Zeigarnik Effect is the tendency of our brains to pay attention to unresolved things. If we hear “Once upon a time . . .” our brains pay attention until “. . . happily ever after.” If our audience is curious, they will want to spend time with us and hear what we have to say.

There is a common misconception that charisma is something that we just have or don’t have, and can’t do anything about. Nothing could be further from the truth. We can take concrete actions to increase our charisma. Paying attention to positive feedback loops and Zeigarnik Effect loops is a good start. Beyond that, there are various descriptions of the components of charisma. For example:

  • Power + presence + warmth;14
  • Affability + influence;15 or
  • Makes people feel comfortable, smiles at people often, can get along with anyone, has a presence in a room, has the ability to influence people, knows how to lead a group.16

One researcher has dissected charisma as “both verbal and nonverbal”:

Verbal aspects involve use of metaphor, story, and emotionally appealing language to communicate an inspiring vision and increase self-efficacy. Nonverbal components include paralinguistics (aspects of speech such as variability in volume, rate, pitch, articulation, fluency, and emphasis), kinesics (body involvement such as posture shifts or head movements), gestural fluency, facial expressivity, and eye contact.17

Here, I count fourteen separate competencies—use of story, variability in rate of speech, gestural fluency, and so on—any one of which you could work on to increase your charisma.

By increasing your charisma, you make yourself more credible to the jury. By making yourself more credible to the jury, you improve the chances that they will adopt and act upon your story. And by improving the chances that they will adopt your story, you give your client a fighting chance in a system that is rigged against him. This is all because you were willing to consider that the classic model of how jurors make decisions might be improved upon—that what you learned in law school, and in your practice so far, might be based on assumptions that are simply wrong.

My Welcome Home From Vietnam: Back in the World in One Piece

My ears popped, and the tires screeched as the TransTexas Airways DC-3 touched down at the Airport in Tyler. The stewardess had avoided eye contact, and the other passengers looked away from me. The short flight from Dallas was a replay of the plane ride from San Francisco. It was strange that no one would look at me, and the stewardesses were not friendly. 

Seventy-two hours earlier, I climbed into a chopper in Cu Chi with my orders to go home. Seventy-two hours before that, I was pulling my final patrol with my platoon. The old loud rattling DC-3 reversed props and braked to make the first turn in to the terminal. It seemed like another world from where I’d just left. I had left this same terminal 2 years before with my induction notice and kissed my mom goodbye, tears in her eyes. I was a 18-year-old kid from one of the poorest families in the county and was scared because the war was all over the news. 

 

I had been born in Houston because my mother needed to get away: I was going to come a little early to suit the folks in the community. She ran away with my dad, who was barely 20 years old himself. He had dropped out of school, lied about his age, and joined the Navy at age 15. He was just out of the Navy after serving in the last two years of the Pacific war against Japan. He was the last of a long line of men in my family that had served in the military back to the Revolutionary War. Military service was a duty and rite of passage into manhood. Military service was honorable and expected of every male in my family. 

I was drafted in 1969 as the Vietnam War raged. The Tet Offensive of 1968 was fresh in memories, and every week, 200 or 300 GIs were KIA. Already our hometown had lost 5 men. One man was a fighter pilot shot down and missing over North Vietnam. The draft was what was on everyone’s mind. You could avoid the draft if you had money, if you had parents had a friend on the draft board, had a bad knee, defecated in your pants, had poor eyesight, or if you went to college. Married men with kids got deferments. Soon the draft board eliminated that exemption. They were drafting everyone who could not get a deferment. For me, there was never a question of avoiding the draft or going to Canada like so many were doing during that time. The men in my family served the country. We were patriots. 

The pilot announced that the temperature was 90 degrees, the time was 10:15 a.m. It was Friday in October 1970. He told us that we were in Tyler, Texas, but to keep our seat belts on until we reached the terminal. Two weeks before, I had been sitting in the open door of an Army chopper flying at 5,000 feet—with my boots on the skids, full field pack, an M-16—and no one warned me to put on a seat belt. The stewardess opened the door and thanked everyone for choosing TransTexas. Everyone except me. She was older than me, attractive, especially since I had not been around women for months. However, I was married, anxious to get to my wife as soon as possible. There were no baggage carousels back then. The baggage handler just sat your luggage out by the plane, you picked it up, and walked out.

So I shouldered my duffle bag and looked up at the crystal clear blue sky. The air was fresh and smelled of pine needles and freedom. There was a flock of crows cawing and sparrows chased them away. I saw squirrels in trees scampering around, making ready for the winter. I even saw a flock of geese high up in the sky in the V formation heading south for the winter. October is beautiful in East Texas. As I breathed in deeply, I pleasantly realized something was missing. There was no odor of the dank, dirty smell of rice paddies full of buffalo dung that infiltrated into everything in Vietnam. Instead, it was the smell of East Texas. I was glad to be home. I had plans.

Two years earlier, I was just another 145-pound poor kid from East Texas with an order to appear for induction into the armed services of the United States of America. I was barely 5΄8΄΄and skinny as a river-bottom reed. In the Army, I had grown to 6΄1΄΄and weighed 195 pounds. Interestingly, my feet did not grow. My boot size never changed. Back then, I had stepped forward and took the oath to defend America from all enemies, foreign and domestic, with the full knowledge that I was going to Vietnam. Despite a year of “humping” in Vietnam jungles, burning off leeches with borrowed cigarettes, enduring moments of terror, suffocating heat, or shivering in the freezing cold monsoons, I felt strong. On that day, and in that place, I wore a full dress U.S. Army uniform with the 25thInfantry Division patch on my left shoulder and my ribbons earned in Vietnam; my shoes were spit-shined, my gig line was perfect. I was in excellent physical condition. I felt that I had earned the rights of manhood. I was confident and proud. I had made it out alive, and I was exhilarated.

I got in line with the other passengers. They were chatting with each other, and some knew each other. Some had wives or friends meeting them. They were all civilians. Not one tried to speak to me or acknowledge me. It was strange. I did not care since the only thing on my mind was to get home and find my wife. We got married before I Ieft for Vietnam. I had only seen her for a brief R&R in Hawaii. We had been apart more than together. I wondered if it would be the same as before. My duffle bag had everything I owned in the world, so I just slung it over my shoulder and walked out of the airport. I noticed some of the cars that were picking up passengers, loading and driving out of the airport. It was only about a half-mile from the terminal out to Highway 64 and then another 60 miles to my hometown. It would be no sweat since I could hitchhike all the way home. I was sure that all I had to do was stand on the highway and thumb my way back. I did not think much when the cars leaving the airport passed me up. Surely when I got to the highway, I would catch a ride. 

I wondered what my buddies were doing at the time. I recalled the nights that we sat on the ambush patrol. They were probably in the bush again, setting up the claymores, the tripwires, and getting the flares ready. These were the best guys in the world, and we all swore we would meet up back in “the world,” buy Harleys and ride all over the USA. I found out a few days later that they had been ambushed and taken casualties. Donnie, a kid from Kermit, Texas, was KIA, and several of my guys were wounded and had to be medivacked out to the 12thEvac Field Hospital at Cu Chi. But on that day, I did not know that yet, and so I looked forward to getting my wife and going back to reclaim the job I had before I was drafted. 

Highway 64 is a busy highway linking Tyler to Dallas. Tyler, in 1970, was not large but was the largest city in East Texas. On that morning, the traffic in both directions was reasonably heavy. Pickups, big rigs, passenger cars, and farm vehicles headed east in a hurry to get to wherever they were going. I sat my duffle bag down and stuck out my thumb. This hitchhiking was going to be easy. Eighteen months ago, I had hitchhiked 600 miles to make it to my sister’s wedding and only needed three rides. I never waited more than a minute or two before someone would pick me up. A GI had no problem getting rides in early 1969. 

I was wrong. Car after car after car passed me up without even slowing down. Trucks, big rigs, a farm truck with a load of hay just passed me up. The thumb wasn’t working. It is about six miles to the loop that I needed to get to from the airport. I started walking. I would occasionally take a chance and try to thumb a ride, but no one stopped. This was not going to be the easy trip I thought. I walked and walked and walked the six miles to the loop.

I was in good shape, but after about an hour of walking, I was getting angry and confused. What was the problem? I did not understand that the country had changed. Here I was a 20-year-old kid just back from Vietnam and could not get a ride. Here I was in East Texas, and these people are good people who love the country and the troops. Yet I could not get a ride. I finally made it to the loop, and the sun was now high in the sky, the temperature climbing. But I was used to the heat. I did not unbutton my uniform since I did not want to dishonor it by becoming sloppy despite the heat. I had started to continue around the loop. The loop around Tyler in 1970 was all rural and pasture land. There were no stores, no houses, no businesses. 

I finally gave up trying to catch a ride and resolved to hump all the way home if that is what it took. I might be able to find a phone and make a collect call home and see if someone would come and pick me up. I had stopped even turning around and looking at the oncoming traffic. After a few minutes, over my shoulder, I heard the sound of a car coming at a very high speed. It was different than the others as this car was traveling fast, loud, and hard. He sped by me without slowing down. The wind blast and dust nearly blew me off the shoulder. It was a shiny black 1970 Chevelle SS 396 with only the driver inside. The car suddenly hit the brakes hard and skidded to a stop, leaving rubber and smoke all over the pavement. The driver put it in reverse and gunned it back to me with the engine at full throttle. I wondered what this was all about, but at least someone had stopped. 

“Where you going, troop?” the driver asked.

I told him that I had just got in from Vietnam was trying to get home to see my wife. He told me to get in and that he would take me. I told him that it was at least 60 miles. He said: “I don’t give a fuck. I’ll take you as far as this thing will go, or we run out of gas first.” 

He asked me what unit I was in, and I told him that I had just been discharged out of Vietnam with the 25thInfantry Division in Cu Chi and Tay Ninh. He said, “Well, son, you need to salute me since I am a first fuckin’ arty lieutenant with the Big Red One.”

I said, “No problem, sir!” giving him my best dress salute.

He then said, “I order you to get into this fuckin’ vehicle and tell me where we’re a-goin’.”

I got in, and he said, “Son, If you’d saluted me in the Nam, I’d have either shot your ass or busted you back to E-1 or both.”

 I said: “I know, sir. We don’t salute in the Nam.” 

He revved up the engine, popped the clutch, and burned out, fish-tailing all over the road, and the first thing we were over 100 mph. This guy was crazy, but I loved it. He told me that he had got shot up bad at a FireBase that had nearly been overrun by the VC during Tet. He explained that he was on a convalescent leave out of Fort Sill. He had just bought the SS 396 and paid cash from the money he had saved. He was on his way to New Orleans to party, get high, and get laid. He asked if I wanted to go with him. He said he had plenty of money and would pay for everything. I told him that I had a wife, but that I appreciated the offer. He laughed, shifted gears again, and floored it. I think he got smoke and rubber in 3rdgear. This lieutenant was probably only 23 or 24 years old. I never asked. To me, he was an old guy who outranked me, so I just went along with whatever he wanted to do so long as he got me closer to home and my wife. 

We swapped some war stories, and before I knew it, we’d gone the 60 miles. We stopped at the courthouse square in the middle of the afternoon. Before I got out, he turned to me and said: “Son, this country has changed. Some people are not going to like you. That uniform you’re wearing there is going to get you in trouble. I advise shuckin’ that military garb as soon as you can. Get you some civvies, and don’t tell anyone that you’ve been to the ‘Nam.’ I’m just sayin’ it to give you some free advice. You are not going to be treated the same as before. You are damaged goods, and people are going to be afraid of you.”

I asked him, “Why do you say that?”

“Trust me!” he replied.

I got out and gave him a salute, which he returned. He burnt out, leaving smoke and rubber all over the downtown street. The townspeople on the square looked up in surprise as this mystery SS 396 roared out of town and this strange GI suddenly appeared in their midst. I never got his name, but I will always remember this first lieutenant as the only person who stopped to pick up a GI who needed a ride. 

Postscript

This mysterious lieutenant was correct warning me about how I would be treated as a Vietnam veteran. These stories about being spat upon or being called “baby killer” never happened to me. It seemed that we were to be ignored, unseen, damaged, crazy, unstable, and unreliable. I had been drafted from a job with a major oil company. When I presented myself to reclaim my job, I was told that they no longer had a job for me.

One of my buddies in my platoon was 25 years old and had a law degree from Ohio State University. He had been drafted but refused to accept a direct commission as an officer. I was always impressed with how he was always able to use his wit and education to quote Army regulations to any offending NCO. I did not intend to be ignored any longer and insisted that I be given my job back. I said something about the Soldiers’ and Sailors’ Civil Relief Act. I was grudgingly hired in the lowest pay  grade the company had. I then went back to visit with my old boss, who was a WWII vet, and told him that I was ready for work. He told me that he was glad that I was back in “one piece.” 

As we talked, one of the engineers came into his office and interrupted our conversation. He looked at me and said, “Hey Bobby, I haven’t seen you in a while. where have you been?”

I replied, “Well, Jim, I’ve been to Vietnam.”

Without so much as an acknowledgment, he turned as if I wasn’t there and ignored me—and never spoke to me again. That one encounter was indicative of how I felt the people back home treated us. It was like a lightning strike and a lesson. 

From then on, I never told another person that I was a Vietnam veteran or even that I had served. In those days, it was a stigma. You were never going to be promoted nor even given a chance in corporate America. While we were serving our country in the jungles of Vietnam, there were those who dodged the draft and stayed home, earning good salaries, getting promoted, marrying, having children, buying homes, and living the American Dream. Then they self-protected each other as they rose in the corporate ranks. If you couldn’t find a way to dodge the draft then you were considered a “sucker.” I have often wondered if there was any small element of shame or embarrassment with these people. 

Because of my lawyer buddy, I had a dream of going to law school and becoming a lawyer. I applied to every law school in Texas, but each, except one, rejected me despite having a good LSAT score and good undergraduate grades. I cannot say they did so because of my military background, but it sure felt that way. I got a call from South Texas College of Law, and they said that Dean Garland Walker was holding 20 spots open for veterans, and that I was being considered for admission. I met personally with Dean Walker, also a WWII veteran, and he advised that he was going to take a chance with a class of Vietnam vets, and that he hoped that I would not disappoint him. That class of veterans was outstanding, and today some of these lawyers are leaders in the bar and in their communities all over the nation. 

It is only very recently I have felt comfortable discussing my Vietnam service. The country has changed, and though the gratitude is late coming, it is appreciated. My son bought me a Vietnam veteran hat recently and has encouraged me to wear it. I have not so far but might soon. 

Now, 50 years later, with most of my career behind me, I am so thankful that I served my country, that I became a criminal defense attorney, that I practiced in the courts of the greatest nation on earth. I am blessed that I have made such close friends and colleagues in the Texas Criminal Defense Lawyers Association and the Harris County Criminal Lawyers Association. If I have accomplished anything in this life, I am most proud to be a criminal defense attorney with brothers and sisters who fight every day for freedom and justice. 

Finally, not one thing that I did in Vietnam compares to what criminal defense lawyers do every day to defend the Constitution of the United States of America. So, be proud of what you do because your country, your state, and your community need you. 

No other institution stands against the overwhelming power of the Government on behalf of freedom except the criminal defense lawyer.

2019’s Need-to-Know Changes to DWI Law

1

Together, House Bills 20482 and 35823 refashioned Texas DWI law and punishment—and finally abolished surcharges. Kind of.

Now, a person “finally convicted” of DWI “shall” pay a fine of $3,000 for a first conviction, $4,500 for a second, and $6,000 for all DWI convictions over 0.15. Presumably, a person is not finally convicted if they receive a newly created “deferred ad­judication” on their DWI. The legislature also slightly altered and expanded nondisclosure eligibility. This paper overviews the changes to the new DWI laws.

New Interlock Bond Requirements

For the following DWI accusations, the judge or magistrate shall order both 1) that defendant’s vehicle be equipped with an interlock device, and 2) that defendant not operate any motor vehicle unless equipped with an interlock device:4

Subsequent offenses under

  • 49.04 [Driving While Intoxicated];
  • 49.05 [Flying While Intoxicated]; or
  • 49.06 [Boating While Intoxicated].

Any offense under

  • 49.045 [DWI w/ Child Passenger],
  • 49.07 [Intoxication Assault], or
  • 49.08 [Intoxication Manslaughter].

If ordered, the defendant must have the interlock installed within 30 days.5

If the magistrate finds, however, that an interlock device is not in the best interest of justice, the magistrate “may not” order one installed.6

“Deferred Adjudication”

Dubbed “DINO” (deferred in name only), HB 3582 creates deferred adjudication for qualifying DWIs. Specifically, it amends Article 42A.102(b) of the Code of Criminal Procedure to allow judges to grant deferred adjudication.7

A person is eligible for deferred unless the person:

(1) is charged with an offense under 49.04 or 49.06 [DWI or BWI], and at the time of the offense either:

  • Held a commercial driver’s license or learner’s permit; or
  • The defendant’s alcohol concentration was 0.15 or more;

(2) is charged with an offense under

  • 49.045 [DWI w/ Child Passenger];
  • 49.05 [Flying While Intoxicated];
  • 49.065 [Assembling/Operating Amusement Ride While Intoxicated];
  • 49.07 [Intoxication Assault]; or
  • 49.08 [Intoxication Manslaughter];

(3) is charged with an offense for which punishment may be in­creased under Section 49.09 [Enhancements for Prior Intoxication Convictions]; or

(4) is charged with an offense for which punishment may be increased under Section 481.134(c), (d), (e), or (f) [School Zone Enhancements], Health and Safety Code, if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any one of those subsections[.]

But, like in family violence cases, this is not a true deferred. Now, under Penal Code section 49.09(g), “a person is considered to have been convicted of [DWI or BWI] if the person was placed on deferred adjudication community supervision for the offense[.]” In other words, the deferred may still be used for enhancement purposes.

Under disqualification three above, a person is not eligible for deferred on a DWI second. But—as some on the listserve have noted—if a prosecutor would be willing, a person could potentially obtain a deferred by pleading a second DWI as another DWI-First—i.e., by striking the enhancement language under Tex. Penal Code § 49.09 at the time of the plea.

Deferred Adjudication Interlock Requirements

HB 3582 also amended Article 42A.408, which requires ignition interlock devices as a condition of supervision.8 The new law makes three additions.

First, new subsection (e-1) makes ignition interlock devices a mandatory condition (subject to a financial exception, discussed below) when the judge grants a defendant deferred adjudication community supervision for an offense under 49.04 or 49.06 [DWI or BWI].

  • The device must be “installed on the motor vehicle owned by . . . or . . . most regularly driven by the defendant”; and
  • “the defendant [must] not operate any motor vehicle that is not equipped with that device.”

Second, (e-1) discounts interlock costs to indigent defendants. Upon a proper showing, the judge may find indigence and reduce interlock costs by:

  • waiving the installation fee; and
  • reducing monthly monitoring fees by half.

These discounts do not apply if your client blows hot. Any additional fees incurred if the device detects alcohol on the breath of the person attempting to operate the vehicle will not be reduced.9

Third, (e-2) provides an exception to the mandatory interlock condition. This exception applies if the judge:

  • based on a controlled substance and alcohol evaluation of the defendant,
  • finds and enters in the record,
  • that restricting the defendant to the use of an interlock is not necessary for the safety of the community.

Deferred Adjudication Nondisclosure Eligibility

HB 3582 amended the nondisclosure statutes to make a separate section governing deferred adjudications for certain intoxication offenses.10 The new statute, Government Code § 411.0726, applies exclusively to DWI and BWI deferred adjudications—without an affirmative finding described in Article 42A.105(f).11

Now, to receive a DWI or BWI nondisclosure, a person must

  • receive a discharge and dismissal under Article 42A.111, Code of Criminal Procedure;
  • satisfy the requirements of Section 411.074 [basic qualifications for all nondisclosures];
  • have zero prior convictions or deferred adjudications (except for traffic offenses punishable by fine only);12
  • wait two years from the date of completion of the deferred adjudication community supervision and the discharge and dismissal of the case;13 and
  • not have evidence presented “sufficient to the court demonstrating that the commission of the offense for which the order is sought resulted in a motor vehicle accident involving another person, including a passenger in a motor vehicle operated by the person seeking the order.”14

Mandatory Fines for Those “Finally Convicted”

Described as a “superfine,” HB 2048 adds new § 709.001 to the Transportation Code (Traffic Fine for Conviction of Certain Intoxicated Driver Offenses), which financially disincentivizes people “finally convicted” of an “offense relating to the operating of a motor vehicle while intoxicated”:15

  • $3,000 for the first conviction within a 36-month period;
  • $4,500 for a second or subsequent conviction within a 36-month period; and
  • $6,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.

What “finally convicted” means is less clear. According to the TCDLA Legislative Committee, both TDCLA and TDCAA agree the superfine only applies to final convictions—adjudicated jail sentences only.

But the actual language of the new statute suggests otherwise. Unlike other sentencing enhancements, simply probated—but not deferred—sentences still mean final convictions.16 Your client will still be assessed the fine on a straight probation. In short, if you plead your client guilty or a jury finds your client guilty of DWI, they could be facing a minimum mandatory fine of $3,000—at least until the “finally convicted” issue is settled.

Interestingly, the counties now responsible for enforcing these impressive fines keep only 4% of the money.17

Upon Showing of Indigence, Court Shall Waive Fines and Costs

Upon a finding of indigence, under § 709.001, the court shall waive all these new fines and costs.18 The statute specifically provides that the following documents can support a finding of indigence:19

  • Most recent federal income tax return showing the person’s household income does not exceed 125 percent of the applicable income level established by federal poverty guidelines;
  • Most recent pay stub showing the person’s household income does not exceed 125 percent of the applicable income level established by federal poverty guidelines; or
  • Proof of state, federal, or school assistance, including:
    • Food stamp program;
    • Special supplemental nutrition program for women, infants, and children;
    • Medical assistance program under Tex. Hum. Res. Code ch. 32;
    • Child health plan program under Tex. Health. Saf. Code ch. 62; and
    • National free or reduced lunch program.

Sayonara Surcharges (and Related Suspensions)

HB 2048 deletes the driver responsibility program from the Transportation Code.20 It both forgives all unpaid surcharges and reinstates licenses suspended due to unpaid sur­charges.

  • The repeal by this Act of Chapter 708, Transportation Code, applies to any surcharge pending on the effective date of this Act, regardless of whether the surcharge was imposed before that date.21
  • The Department of Public Safety shall reinstate any driver’s license that is suspended under Section 708.152, Transportation Code, as of the effective date of this Act if the only reason the driver’s license was suspended is a failure to pay a surcharge under Chapter 708, Transportation Code.22

Effective Dates

Both HB 3582 and 2048 took effect on September 1, 2019.23 The punishment amendments apply only to offenses committed on or after that date.24 Because the nondisclosure amendments are silent about their operation, unfortunately they are “presumed to be prospective in operation.”25

Important Takeaways

  • Interlock now required on all felony DWI-related offenses, and subsequent DWIs, but magistrates may not require if not in the interest of justice;
  • Deferred adjudication available only on DWI-first and under 0.15 offenses (plus numerous other disqualifying factors);
  • Changes to nondisclosure eligibility;
  • Mandatory massive fines upon “final convictions” for DWI; and
  • Surcharges and related suspensions are eliminated.

The Perils of Blowing the Whistle

We have met with many potential new clients who know about a crime or fraud and are interested in blowing the whistle. Sometimes the client is motivated by a genuine desire to right a perceived wrong, sometimes the client is motivated by the desire to collect an award, and sometimes the client is motivated by the desire to “get ahead of the problem.”

A common misconception these clients have is that if they blow the whistle they will be protected from criminal prosecution. The purpose of this article is to briefly explain how some common whistleblower statutes work, what protections they afford, and a suggested framework for protecting those clients who decide to blow the whistle from criminal prosecution.

Please note that this article is written from the perspective of a criminal defense attorney, not a plaintiff’s attorney. Our interest is in making sure our clients don’t receive their monetary award while sitting in a prison cell.

Overview of Whistleblower Laws

At the federal level, Congress has enacted various whistleblower laws. The main programs for whistleblowers are the False Claims Act (FCA), the SEC Whistleblower Program, IRS Whistleblower Program, and the Whistleblower Protection Act. The FCA, SEC Whistleblower Program, and IRS Whistleblower Program reward individuals who expose fraud and abuse and protect them from retaliation by their employers. The Whistleblower Protection Act protects federal employees who report crimes, fraud, or abuse in their agencies.

In Texas, the main whistleblower laws are the Texas Whistleblower Act and the Texas Medicaid Fraud Prevention Act. The Texas Whistleblower Act protects public employees from retaliation if they blow the whistle on the government agency that employs them. The Texas Medicaid Fraud Prevention Act targets Medicaid fraud and has provisions that allow whistleblowers to expose Medicaid fraud by filing qui tam lawsuits. That law protects whistleblowers and rewards them if Medicaid funds are recovered as a result of their information and assistance.

Whistleblowers often face employer retaliation for reporting their concerns. This retaliation can take many forms—demotion, being fired or sidelined, being blackballed, etc. Most whistleblower laws, both state and federal, contain some sort of anti-retaliation provision. Both Congress and our state legislature recognized that whistleblowers need job protection from the subject of their whistleblower complaint as some may lose their jobs, be demoted, or be blackballed from working in their industry.

Sadly, whistleblowers receive no similar protection from prosecution. Our jails are filled with individuals waiting to be released so they can collect their whistleblower awards. Often these same individuals believed that they would be protected, and that if they “got ahead of the problem” they could avoid prosecution.

Obtaining Immunity for Your Client

The only way to protect your clients from getting themselves indicted is to carefully negotiate an immunity agreement with the Government. Immunity agreements both formal and informal can be of two varieties.

First, a prosecutor can promise “use immunity.” “Use and derivative use immunity” protects the witness from the government’s use of the witness’ testimony and any leads or fruits that may be derived from it.

Second, a prosecutor can promise “transactional immunity.” Transactional immunity is broader than use immunity. It gives full immunity from prosecution for the offense to which the testimony relates.

Statutory immunity, also known as formal immunity, should be distinguished from informal immunity. The latter term, often referred to as “pocket immunity” or “letter immunity,” is immunity conferred by agreement with the witness. For example, the government and a cooperating witness might enter into a non-prosecution agreement if the defendant or witness agrees to cooperate. Testimony given under informal immunity is not compelled testimony, but is testimony pursuant to an agreement and thus voluntary. The principles of contract law apply in determining the scope of informal immunity. United States v. Plummer, 941 F.2d 799, 802 (9th Cir. 1991); United States v. Britt, 917 F.2d 353 (8th Cir. 1990), cert. denied, 498 U.S. 1090; United States v. Camp, 72 F.3d 759 (9th Cir. 1996) [replacing 58 F.3d 491 (9th Cir. 1996)].

Grants of informal immunity that do not expressly prohibit the government’s derivative use of the witness’ testimony will be construed to prohibit such derivative use. Plummer, supra. But a grant of informal immunity that expressly provides for derivative use of the testimony by the government will be upheld. United States v. Lyons, 670 F.2d 77, 80 (7th Cir. 1982), cert. denied, 457 U.S. 1136.

An important difference between statutory/formal immunity and informal immunity is that the latter is not binding upon non-signatories. This follows from the fact that the local prosecutor representing the state is normally not a party to the agreement between the witness and the Federal prosecutor, and thus cannot be contractually bound by the Federal prosecutor’s agreements—and vice versa.

The Attorney Proffer

One method we have found to be effective in representing individuals who have knowledge of criminal activity is the attorney proffer. An attorney proffer is nothing more than an off-the-record discussion between the lawyer and the government in which the attorney tells the government what he believes his client would be able to testify to. The point of the discussion is for the government to get some sense of the information being offered and the role played by the client so that it may make an informed choice to grant or withhold immunity. The advantage of the attorney proffer is that the information given to the government by the attorney cannot be used directly against the client as it is the defense attorney’s opinion as to what his client may know. Obviously some level of trust must exist between the criminal defense attorney and the prosecutor for this to work, and this is where the attorney’s previous relationship with the prosecutor becomes very important. But notwithstanding this trust, the defense attorney should consider not identifying his client or speaking in more than hypothetical terms until an agreement is reached.

Stats Show Racial Inequities for Organized Retail Theft Arrests Statewide

Let’s say I wanted to steal an Xbox from Fry’s (or any other retail store). Maybe it’s for a thrill, a dare, voices in my head, or maybe I just want to eat Cheetos all day and play video games on my sofa. Whatever the reason, it is unimportant.

I have committed theft—this is obvious. But, were you aware I also committed Organized Retail Theft (“ORT”)? TEX. PEN. C. 31.16(b) provides:

A person commits an offense if the person intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, stores, barters, sells or disposal of . . . (1) stolen retail merchandise.

Arrests for ORT under these circumstances aren’t theoretical, either. Dr. Michael Braun is a statistics professor from SMU’s Cox School of Business. He recently completed a comprehensive study published in the Journal of Empirical Legal Studies (JELS) which found not only were there thousands and thousands of arrests made for organized retail theft where the amount stolen was consistent with ordinary shoplifting—but also racial minorities are bearing a disproportional share of the arrests.

Dr. Braun studied over 110,000 organized retail theft arrests and ordinary thefts through open records from police agencies around the state. He found an African American is twice as likely as a white person to be arrested for ORT. His research found that African-American females are 160% as likely as a white person to be arrested for ORT. At least 30 police agencies showed racial disparities in their arrests based on Dr. Braun’s statistics and research.

There were unsuccessful attempts made this past session in the Texas House and Senate to make the Penal Code consistent with other states’ treatment of Organized Retail Theft. State Representative Jessica Gonzalez (D–Dallas) and State Senator Royce West (D–Dallas) filed bills in the House and Senate to amend the definition of ORT. However, Lieutenant Governor Patrick did not allow Senator West’s bill to reach the Senate Floor, thereby effectively killing it for this session. The proposed fix would install a $2,500 threshold to ORT amounts and would also require the stolen property to be possessed with the intent for the property to be re-distributed.

The Court of Criminal Appeals has weighed in on the issue, too, holding ordinary shoplifting, in and of itself, cannot be organized retail theft even with the bizarre language under 31.16(b). See Lang v. State, 561 S.W.3d 174 (Tex. Crim. App. 11/22/2018). This opinion expounds the need for the statute to be fixed.

Dr. Braun’s full article can be read at the following link: shorturl.at/iuET5.

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