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Voting Rights of Felons

A felony conviction may result in the loss of voting rights in Texas… But not forever.

A person who is convicted of a felony in the State of Texas is not eligible to register to vote—or to vote in an election if already registered—until he or she has successfully completed his or her felony sentence.

This includes any term of incarceration, parole, supervision, period of probation, or pardon.1 He or she must also register to vote at least 30 days prior to an election date to be eligible.2 Voting illegally in Texas is a second-degree felony punishable by up to 20 years in prison.3

Can some persons adjudicated of or charged with a felony vote?

Yes. A qualified registered voter without a “final felony conviction” or adjudication of guilt may vote under certain circumstances:

A conviction on appeal is not considered a final felony conviction. A person confined in jail “pending trial or an appeal of a conviction after denial of bail or without bail, or where release on bail before election day is unlikely” may apply for a ballot by mail.4

“Deferred adjudication” is not considered a final felony conviction.5

“Mere prosecution, indictment, or other criminal procedures leading up to, but not yet resulting in the final conviction, are not final felony convictions.”6

In 1997, George W. Bush, as Governor of Texas, also restored voting rights to ex-offenders upon completing their felony sentences when he signed legislation that eliminated the two-year waiting period for felons, after conclusion of their parole, to vote.

DWI Jury Punishment

Overview

This article is primarily about jury punishment for DWI first offense misdemeanors. Some of the information applies to other jury punishment situations as well, but please keep the scope of this material in mind as you consider these suggestions and strategies.

DWI defendants, in general, are some of the nicest criminal defendants you will ever represent. If your DWI defendant is a nice person, the jury will reward them with a minimum-type punishment if you prepare and present the case properly.

I’ve done jury punishment in probably 120 misdemeanor jury trials, most of them in Dallas County. I’ve also done jury pun­ishment in Collin, Denton, Tarrant, and Rockwall counties. In my experience, you should almost always go to the jury for punishment if it’s a DWI first offense, there were no injuries, and your client was reasonably cooperative with the police. And as you surely must know, it is also beneficial if your client is attractive, and young. A light jury punishment is almost a slam dunk if your client is in the “helping” professions (teacher, firefighter, nurse), has a reasonable excuse for the DWI (I had just left my mother’s funeral three hours earlier), or is a single parent of a young child.

Don’t worry about super high BAC levels, open containers, accidents, or admissions about being drunk. If it’s a first offense, no injuries, and a cooperative defendant, you should do fine on jury punishment!

Step One: Convince Yourself That It Can Be Done

Before you try a jury punishment case, do some preparation, and do some preliminary research: After every DWI trial you see (whether it’s yours or someone else’s), start asking the jurors what punishment they would have assessed if it was up to them. Make sure you ask them specifically what their punishment would have been if probation wasn’t an option. This will start to give you some idea of what punishments jurors think are appropriate for DWI first offense cases. About half of the DWI jurors I ask this question respond with “I wouldn’t have given any jail time.” And please remember that this is the opinion of these jurors without having been given a well-prepared defense jury punishment presentation. With a good punishment presentation, those verdicts will be even better for your clients.

There is a definite art to jury punishment. But it’s not at all difficult, and anyone can learn how to do it. It is a big mistake, however, to try jury punishment without adequate advanced preparation. It can be a disaster for the unprepared! The system I have developed is based upon logic and common sense, and that’s why it works almost every time (unless you have an irrational jury, which is rare, but it can happen). A good jury punishment presentation can be very frustrating to the prosecutors because there just isn’t much they can do about it.

Step Two: Convincing Your Client to Go to the Jury

Of course, before you’ll ever be able to do a DWI misdemeanor jury punishment, you’ll have to convince your client to do it! This is by far the hardest part of doing jury punishment on a first offense DWI! You really have to convince your clients that it is safe to do. I spend 20 or 30 minutes on the topic, and ex­plain in great detail everything about it, including how I do it, how juries think about it, the types of verdicts I usually see, and especially how much probation actually costs both in time and in money. I explain all of the standard conditions of probation. Then I explain how doing jail time can save them about $2,000 or so in hard dollars and over 100 hours of their time. I explain that in my experience, most DWI first offense jail sentences are one weekend or less.

Procedural Concerns

You must file for jury punishment in writing prior to the start of jury selection. No particular form is needed. You can simply write “The defendant elects the jury to assess his sentence,” and have it signed by the defendant and defense counsel. If your goal is a short jail sentence, do not file a sworn application for probation. TCCP 42.12 Sec. 4(e) prevents a jury from giving probation if the sworn application is not filed before the trial begins, and later proven up.

Be alert to the fact that the judge may always grant probation in a misdemeanor case, even if you go to the jury for punishment, and even if you do not file a sworn application. TCCP 42.12 Sec. 3(a). Some judges don’t know that, and you may not want to tell them! On the other hand, theoretically you could get a three-day sentence from the jury and have the judge probate it for two years, which is not at all a pleasant result for your client!

If a jury goes crazy on you and gives your client 180 days on a first offense DWI, remember that the judge can still come to your rescue because he or she retains the option of probating that sentence for your client.

When I first started doing DWI first offense jury punishment, some judges cautioned that they might probate any jail sentence that they thought was inappropriately short. Now, after dozens of jury sentences of 0 days, 3 days, and 5 days, the judges have come to believe that single-digit sentences reflect the true informed will of the jury community.

Jury Selection

Like most every other thing about a DWI jury trial, jury selection is critical. During jury selection you want to accomplish three things: 1) Get rid of all of the “he could have killed somebody” thinking, 2) establish that every juror could give the minimum punishment if the facts are appropriate (striking for cause every juror who could not), and 3) give the jurors a vivid example of a “bad” first-offense misdemeanor DWI.

Eliminating “He Could Have Killed Someone”

Perhaps the most important part of the whole jury punishment strategy is getting rid of “he could have killed someone” thinking in voir dire. My favorite way to accomplish this is to use a failure to signal a lane change (FSLC) example. An FSLC offense is so common that most jurors probably committed it that day on their way to jury duty. Ask and/or lead the jurors through the following set of questions: Is it possible while you are driving this week that you at least once failed to signal a lane change? <yes> If you fail to signal a lane change, might that cause an accident? <yes> Under the right circumstances, could that accident actually kill someone? <yes> So if you get a ticket tonight on your way home from court for not signaling a lane change, should you be punished as if you killed someone? <no> OK. Why not?

I’ve never had a jury panel not follow the logic. They have always concluded that a defendant shouldn’t be treated like they killed someone when they didn’t. As soon as you get them to acknowledge that point, emphasize it, then quickly move on: “Of course not! In this country we don’t punish people for what didn’t happen in their case. That would be crazy! In this country, we make the punishment fit the actual facts of that case, not the facts of some hypothetical case. Right? OK. Next topic . . .”

I’ve twice had jurors tell me that they actually yelled at other jurors who tried to bring up “he could have killed somebody” in deliberations after I have prepped them properly in jury selection using this approach. It is amazing how well this tactic works.

Making Sure Every Juror Will Consider the Statutory Minimum

Next, you want to make sure that every juror can assess the minimum punishment. DO NOT simply ask them if they could consider the full range of punishment! You don’t want six people who can consider the full range of punishment! You want six people who will consider 0 days and $0! If they can’t, you get to strike them for cause! This is so important that I generally ask at least the first 18 jurors individually if they could consider the minimum of 0/0 (or 72 hours/$0 for the Class B offenses).

If you ask the entire panel as a whole, “Can you all consider the full range of punishment,” maybe one or two will disqualify themselves, but more likely than not, nobody will. If you ask the panel as a whole, “Could you consider 0 days/$0?” maybe 2 or 3 will disqualify themselves. But if you ask 30 panel members individually, you might disqualify 8 or 10 of them! Then you’ll end up with 20 jurors who have all specifically told you that they can consider assessing 0 days and $0! (And that’s exactly what they are likely to do after you follow the rest of the strategy!)

Introducing an Example of a Really Bad DWI First Offense

The last thing to do in jury selection is provide an example of a bad DWI first offense (no SBI) misdemeanor. Why? Because your guy is then going to look like a saint in comparison! Your jurors aren’t going to want to punish him; they are going to want to pin a merit badge on him!

Here is one way to introduce a DWI with really bad facts: “Jurors, I’ve heard some people say ‘A DWI is a DWI, and they should all be punished the same for a first offense.’ Does anyone here feel that way? OK, well, I’d like to ask you if anything in the following two examples would make you feel any differently.

“Defendant number one: Instead of stopping for the police immediately, he led them on a 20-minute high-speed chase. He was driving over 120 mph the wrong way on I-35E. Several vehicles had minor accidents avoiding him. He didn’t stop until he finally wrecked out. There was an open container of Jack Daniels on the seat next to him. He was foul-mouthed and abusive to the arresting officers. His BAC was over four times the legal limit. His criminal record ran over three pages long (but he had no prior DWI cases!)

“Defendant number two was stopped for a taillight being out. He pulled over immediately and was fully cooperative. His BAC was just barely over the legal limit. And he had no criminal record whatsoever. Does anyone think these two cases should be punished exactly the same?”

Introducing Collateral Consequences During July Selection

Consider using questions like this if you don’t plan on having your client testify during punishment:

Could a DWI cost someone their job? Could it cost someone their driver’s license? With no license and no job, could someone lose their home? Could it prevent them from entering a prestigious college or med school? Could it cost somebody in a child custody dispute? “Sure! There must be a thousand ways a DWI conviction can hurt you in life besides just a fine of $2,000 and 180 days in jail. The fine and jail time are only the tip of the iceberg!”

Arresting Officer Cross-Examination

In cross-examination of the arresting officer, you want to get him to acknowledge that your client was polite and cooperative, if possible. You also want the officer to acknowledge that some DWI defendants do everything you mentioned in your “bad DWI” example (20-minute police chase, 120 mph, wrong way on a freeway, open container, etc.).

Should Your Client Testify at Punishment?

You don’t have to put your client on the stand for jury punishment, but if they are decent communicators and comfortable with it, it can really help. The idea is to expose the jury to how horrible the entire DWI experience is, from initial stop, to arrest, to spending the night in jail, to posting bond, to hiring a lawyer, to going to court, etc. If you present it properly, the jury will generally decide that your client has already suffered enough and doesn’t need any additional punishment.

If possible, I like my client to testify along the following lines: “It was stupid. I know better than to drink and drive. It will never happen again.” I also like to ask: “How many days of work could you miss without losing your job?” Most people can answer “I’m not sure, but probably seven days.” Chances are you will get a sentence shorter than that, because most right thinking jurors will not want someone to lose their job over a misdemeanor DWI.

If your client is not going to testify at punishment, you can cover some of the same topics in jury selection, or try to sneak them in during punishment argument.

Punishment Argument

My punishment argument usually goes something like this:

“Jimmy (my client) and I are very disappointed to have reached the punishment stage of this case. To be honest, we had very much hoped for an acquittal. But we knew that a guilty verdict was a possibility. Having found Jimmy guilty, you are now obligated to sentence him appropriately. You must sentence him to jail time, and assess a fine. The jail time can be 0 days (or 72 hours for a class B), and the fine can be $0. In case it is unclear, the jury may not assess probation in this case.

“As far as the jail time, well, there is a reason that we have jails. Jails are where we keep dangerous people. Jails are very costly, of course, and we taxpayers have to pay to construct them, to maintain them, and to feed and house the inmates inside of them. I have heard that it costs over $2,000 a month to house an inmate. That’s a lot of money. If you believe that the State has proven that Jimmy poses a danger to you, your family, your neighbors, or the other citizens of Dallas County, it would make good sense to lock Jimmy up for a couple of weeks or so. But if you don’t think he is a danger, you’d just be wasting taxpayer money by sending him to jail. And it probably wouldn’t accomplish anything except perhaps costing Jimmy his job.

“As far as a fine, you have already heard that this DWI has already cost Jimmy well over $10,000, and that he will have to pay surcharges and increased auto insurance premiums in the future. Simply put, Jimmy has already paid enough financially, and emotionally. He has been put through the ringer.

“I’m asking you to set Jimmy’s jail sentence at five days or less. That is a very reasonable jail sentence under the facts of this particular case. Please don’t set his sentence as a number of hours because that seems to confuse people at the jail. I don’t want you to sentence him to 72 hours and have the jail people think that you meant 72 days. I’ve seen stranger things happen at that jail. And I’m asking that you don’t take any more money out of Jimmy’s pocket. He has paid enough. Hopefully, he won’t lose his job over this.

“Thank you so much for your time and close attention to this case.

“By your guilty verdict you have already shown that you can be tough. Now it’s time to show that you can also be fair.”

The Roles of Forensic Mental Health Experts in the Legal System: What Practitioners of Law May Need to Know

Abstract

Forensic mental health is the crossroads that lies between the criminal justice system and the science of mental health. It requires the forensic practitioner not only to understand complex human behaviors, cognitions, psychopharmacology, brain science, and psychology, but also how to deal with critical legal aspects as those human dimensions intermingle with the law and the legal system as a whole. When seeking a mental health expert witness, it is the foremost important objective for law professionals, then, to fully understand the sought-after expert’s role(s), abilities, and skills when engaging her or him in court or other type of legal and civil cases. It is also crucial to have basic knowledge of the psychometric tools used by those experts, what forensic evaluation(s) are needed for different legal cases and matters, and who of the various forensic mental health experts is actually able to render desirable services—efficiently and effectively. This article aims to help law professionals, and those involved, understand the mental health role(s) of experts, their diverse abilities and skills, and then how to select the most fitting expertise for the case on hand.

The field of forensic mental health has grown considerably during the past two decades, impacted by a growing body of research, literature, a changing health care system, communication technologies, and interests in understanding human behaviors, brain functions, and psychological dysfunctions. Forensic mental health is an intertwined junction between the fields of psychology, psychiatry, counseling, social sciences, and the justice system. It deals with the legal aspects of human behavior and its application of psychological principles and knowledge to a range of legal activities such as custody disputes, child abuse, competency to stand trial, sanity defense, personal injuries, mental capacity and guardianship, and much more. Broadly speaking, forensic mental health is the application of the aforementioned fields and expertise (psychology, psychiatry, behavioral sciences, or social sciences) within a legal context (Alison, L. 2008; Coupland, R. A. & Kurtenbach, T. E. 2013).

Other labels used in the field might be legal psychology, law and psychiatry, or law and mental health where a forensic psychologist, for example, is a licensed psychologist who specializes in applying psychological knowledge (e.g., psychological and personality theories, psychiatric or psychological evaluations, psychometrics, and the like) to legal matters, both in the criminal and civil arenas (Heilbrun, Marczyk, and Dematteo, 2002; Tolou-Shams, 2011; Kitaeff, 2011).

The expert testimony of psychologists can play a profound role in the outcome of cases in many courts. Psychological research and testimony, for example, have influenced the practice and ruling of the court of appeals for England and Wales and Northern Ireland (Leslie, Young, Valentine, & Gudjonsson, 2007). Testimonies of mental health professionals can be devastating to the outcome of a case. For example, in Sechrest v. Ignacio, 549 F.3d 789 (9th Cir. 2008), the U.S. Court of Appeals for the Ninth Circuit affirmed that allowing the prosecution access to a psychiatrist’s report retained for the defense and allowing that mental health professional to testify in the penalty phase of a death penalty case represents ineffective counsel.

In May 1983, Ricky Sechrest kidnapped and murdered 10-year-old Maggie Weaver and 9-year-old Carly Villa. In June 1983, he was arrested. While waiting to be booked for an unrelated charge, he confessed to the murder of both girls. Dr. Lynn M. Gerow evaluated Sechrest at defense counsel’s request to determine whether he was fit to stand trial and to evaluate the possibility of an insanity defense. Ultimately, after reviewing Dr. Gerow’s report, defense counsel decided not to call him as a witness and not to pursue an insanity defense (American Academy of Psychiatry and the Law, 2010; Boyer, Martinez, & Wortzel, 2010).

The prosecution asked defense counsel to permit the use of Dr. Gerow’s report and to permit him to be called as a prosecution witness during the penalty phase of Sechrest’s trial. At the penalty phase, Dr. Gerow testified that Sechrest “was an ‘incurable sociopath’ with an extensive criminal record and a history of drug abuse.” In September 1983, Sechrest was sentenced to death for each of the two murders. He was also sentenced to two terms of life in prison without the possibility of parole for each of the two kidnappings. Sechrest appealed his convictions and sentences throughout the 1990s, and in December 2004, the district court granted certiorari for his appeal. He presented several claims in his appeal, including that his Miranda rights were violated; that his Sixth and Fourteenth amendment rights were violated by the prosecution’s statements regarding the likelihood of his release from prison; and that his defense counsel provided ineffective counsel by allowing the prosecution to call Dr. Gerow as a witness. In summary, Sechrest’s lawyers failed to protect his constitutional right, and Dr. Gerow failed to inform him that his opinion generated from the evaluation was being used in the penalty phase.

While one might observe the lawyer’s failure to protect a client’s constitutional right, but for the sake of this article, it serves as an important reminder of the forensic mental health expert’s role—and the ethics-related responsibilities inherent in a forensic practice. Informed disclosure, consents, and as-related documents must be encompassed in all forensic evaluations. Even when examinations are court-ordered, evaluees are entitled to know the nature of the examination, for what reasons the examiner is conducting those assessments, and the potential outcomes of those tests.

Practitioners of this science—comprised of shaded gray areas, complexity, and uncertainties—are usually licensed professionals with specialized training that allows the expert to operate within the criminal and/or civil justice system. For over six decades, for example, psychologists provided expert testimony in both criminal and civil courts of law. The goal expected when engaging an expert is to promote not hinder justice. Hence, an expert should be able to help the judge, jury, or attorneys reach a more valid conclusion than would be possible without the expert’s testimony. Forensic mental health experts have to answer questions that are relevant both to the courts and the field. He or she should be able to respond to mental health and related forensic questions with reasonable accuracy, reliability, and validity to help those involved in the legal matter (judges, juries, attorneys, and the like) reach more precise conclusions than would otherwise be possible (Faust and Ziskin, 1988; Nedopil, 2009).

Topics of expert testimonies have included the following: psychiatric assessment, psychological evaluations, malingering, neuropsychological evaluation, psychotherapy, counseling and psychotherapy, criminal and adjudicative responsibility, child custody, brain injury, post-traumatic stress disorder, eyewitness testimony, jury selection, recovered memories, sexual harassment, child neglect and abuse, domestic violence, psychological damage, sanity evaluation, false confessions, depression and suicide, and many more topics as related to mental health issues (Kitaeff, 2011; Terr, 1991). Hence, it is the ability of the mental health professional to render opinions, reach conclusions, and produce findings (usually in a report) in the language of the courtroom that makes the field of forensic mental health desirable and invaluable to the legal system. It is the aim of the science that dictates the professional’s work to reach a conclusion as close to the truth as possible, to investigate what is, or what will be, considering available data, information, facts, collateral information, and possibilities.

For example, the mental health expert may administer a comprehensive psychological evaluation to answer a number of questions: “Is the defendant insane as she claims?” “How severe was the neuropsychological damage or impairment when the client endured a traumatic brain injury due to a moving vehicle accident two years ago?” “Is the sexually accused stepfather a predator, does he possess danger to the society, and how severe or significant is his dangerous behaviors?” “Will the act of violence most likely than not be repeated, how dangerous or severe is his or her aggression and violence?” “Will psychotherapy help this parent be a better parent to her children?” “Will medication stabilize this defendant’s behaviors and psychosis?” “Will the continuation of Cognitive Behavior therapy be more effective than using Applied Behavior Therapeutic Techniques?” “Is this defendant competent to stand trial-why or why not?” “Is she incompetent to manage her 100-million-dollar estate, or should her children that appear to have not been interested in her until now have guardianship rights, and has any bias for either party been considered in this process?”

The expert’s goal is to answer many intertwined truths or fallacies. In the aforementioned questions, different experts will be able to answer the questions. The expert might be a therapist, a psychologist, or a psychiatrist or a combination of all. Was the defendant sane at the time he allegedly committed the crime, what was he thinking and what mental status did he endure at the time the crime was committed, what was his psychiatric history and did it have an implicit or unseen impact on his behaviors? Is she able to comprehend a court procedures, understand her attorney’s decisions and reasoning, or is she mentally and physically competent to manage his financial affairs? Is psychotherapy necessary to maintain desirable behaviors or are medications necessary, why was the defendant not been treated for his psychopathology for over a year? Should the defendant be on both—psychotherapy and psychotropics—and did that impact his behavior on the alleged offense? In all of this, the expert is reaching conclusions by assessing, examining, researching, interviewing, discovering, and reporting results to the legal referral entity. His or her goal is to inside the “black box” (human psyche, cognitions, behaviors, and state of mental health) and see as clearly as possible.

When answering these important questions, the expert seeks to examine, research, analyze, and reach rational conclusions regarding the legal case by attempting to open a window to the partially known or completely unknown, to uncover and analyze the “black box” to shed light that will allow him or her to reveal what is and what is not, to come as close as possible to the truth, and then report results to the court. The expert is allowing those that sit in judgment of the accused to gaze through a conceptual window, to see what have been overlooked, uncovered, revealed with reason, accuracy that is constructed on two important and essential foundations: validity and reliability. The expert looks into the accused’s black box to better understand issues on hand to promote justice—and reach many steps closer to the truth. This is a task that not only relies on field knowledge, professionals, skills, and abilities, but also on strong ethics and sense of purpose that will lead the expert’s direction in any given case.

Unlike other practicing mental health professionals, the forensic mental health expert is not an advocate on behalf of the client, or defendant, and there is no confidentiality guaranties implied or otherwise agreed upon. He or she is also not permitted to have a dual relationship with that client or defendant (e.g., the expert is not permitted to examine and perform therapy to the same client). He or she is able to do both if the referral is a medical referral—and the person is a patient of the treating mental health provider, for example. The mental health expert is just as likely to be testifying for the defense as he/she is for the prosecution. He or she is impartial, neutral, objective, powered by his or her board and mental health law ethics, rules, and regulations.

The goal is to conduct impartial assessment and evaluations of the client or defendant. Their role is to remain neutral and to report just the facts as they are presented. They are seekers of the truth(s), and producers of findings based on facts and results of their evaluations. The role of evaluating a client is challenging, however, because the information obtained by the neutral expert may not always work to the advantage of the accused and/or client. The expert’s code of ethics, his or her own ethics and professionalism, must dictate the responsibility of performing an unbiased and fair evaluation, with a neutral stand and view of the case and all those involved.

Still, it is of utmost importance that one decides the type of expert best suited for a case—and that the legal professional (e.g., attorney, judge, or a legal entity) selects the most suitable mental health expertise for the best fitting of the case in question. It is imperative to recognize that not all mental health professionals possess the same education, degrees, abilities, skills, and licensures—that not all of them do fit for the same purpose you are seeking when appointing to a case. Holding an MD or a PhD does not qualify any expert to be an expert in all areas. Having served a legal entity for a long period of time should not guarantee an expert a continuous hire for all types of cases. Educational background, professional experience, content specific knowledge, skills, character, and abilities should be the identifiers or the deciding factors. The legal entity or professional must do his or her homework and find out if the expert is going to be the right required expert for the case on hand.

Personal liking of the expert, friendships, and connections should be ignored when evaluating an expert. Overlooking those identifiers are common errors some legal professionals make inadvertently. For example, if you wish to assess a client’s cognitive and mental status to see if the defendant is competent to stand trial, mentally competent, and evaluate for sanity, then it is best to select a psychologist/neuropsychologist with strong behavioral and brain science experience. If the expert happens to be an academician (researcher) in addition to being a practitioner, then you have both worlds to serve you as an expert for the cost of one! If you wish to investigate the impact of psychotropic medications on a client that suddenly snapped (had a meltdown) and started shooting in the courthouse, you need to engage a psychiatrist in your legal matters. The psychiatrist will assess the impact of combining alcohol, muscle relaxers, pain killers, acetaminophen and diphenhydramine, and insomnia on defendant’s behaviors and psychological state during the offense.

Most well-trained psychologists and neuropsychologists will be able to advise and make recommendations on this issue, as well. However, if you wish to question why therapy might not have had any impact on your client who abused his 12-year-old son, then you need a licensed clinical social worker (LCSW) or a professional counselor (LPC) to answer the important question of therapy efficacy. Therefore, the following information (a simple guide) can help the legal professional effectively select an expert for the purpose of accuracy and efficiency:

1.     Forensic Psychiatrist: A qualified mental health expert, a medical doctor, with three to four years of medical residency in the areas of psychiatry and/or forensic psychiatry.

Best suited for: clinical interviews with clients/patients, clini­cal diagnoses and psychopharmacological (Psych medications) treatment. Psychiatrists use clinical interview and medical/medication expertise in any given case. Diagnosis and treatment of psychiatric disorders (e.g., major depression, psychosis, and the related). Clinical interviews and psychiatric assessment usually take anywhere between .5–2 hours.

Limitations: not qualified and/or lack of training to administer and interpret neuropsychological and psychological assessments and evaluations. Report is based mostly on a clinical interview, professional opinion, and screeners (e.g., Mini Mental Status Exam).

  2.   Forensic Neurologist: A qualified medical expert, a medical doctor, expert on the nervous system, and diagnoses of neurological disorders. Three to four years of medical resi­dency in the areas of neurology and/or forensics.

Best suited for: to rule out neurological disorders and impairments (e.g., seizures), clinical interviews with clients/patients, clinical diagnoses and treatment using clinical interview, neurological exams, and medical/medication expertise (neurological disorders medications; psychopharmacology).

Limitations: not qualified and/or lack of training to administer and interpret neuropsychological and psychological assessments. Report is based mostly on a clinical interview, professional opinion, and mental health screener (e.g., Mini Mental Status Exam). Clinical interview and examination time depends on type and number of neurological assessments conducted.

  3.   Forensic Clinical Psychologist/Neuropsychologist: A qualified mental health expert, a PhD or a PsyD professional who studies brain-behavior relationship and the field of mental health. Can be specialized in the area of neuropsychology (an intersect between psychology, medicine, and neuroscience), with two to three years of internship for pre- and post-PhD training in a specialized area (e.g., neuropsychology, psychotherapy, forensics, or mental health).

Best suited for: clinical interviews with clients/patients, testing and evaluation using psychological and neuropsychological batteries, clinical diagnoses and treatment is based on thorough psychological and neuropsychological as­sess­ments, analysis, and interpretations. Diagnosis and treatment (using psychotherapy) of psychiatric disorders (e.g., bipolar). A comprehensive evaluation might take anywhere between 2–10+ hours of assessments.

Limitations: inability to prescribe psychotropic medications (only the U.S. military and two states allow psychologists to prescribe medications: New Mexico and Louisiana).

  4.   Licensed Professional Counselor (LPC)/Licensed Clinical Social Worker (LCSW): Usually a master’s level professional, MS, MA, or a PhD in counseling or social work. A licensed professional counselor, LPC (or in some states, “licensed clinical professional counselors” or “licensed mental health counselors”), or a licensed clinical social worker, LCSW, is qualified to provide individual, marital, couple, family, and group counseling to clients.

Best suited for: Counseling, clinical interviews, clinical diagnoses, and treatment as related to psychotherapy. They focus on problem-solving, setting goals, and reaching those goals utilizing psychotherapeutic techniques.

Limitations: In most states, they are only suited for therapy but not diagnosing, assessing, or treating utilizing psychological, neuropsychological, or psychiatric tools and assessments unless under the supervision of a psychologist or neuropsychologist. They can use educational and social assessments. Inability to prescribe psychotropic medications.

Hence, based on the above information, a legal professional should do his or her best in selecting the right skills and abilities of a mental health professional—to better suite the case on hand. Here are some examples for clarity:

A.   John is a 40-year-old Asian American male. He suffers cognitive decline and emotional disturbance since his moving vehicle accident six months ago. You, the legal expert, should do the following:

1.  Request a neurological evaluation of your client to rule out any neurological disorders or impairments;

2.  Request a neuropsychological evaluation of the client. Usually, neurologists refer their patients to neuropsychologists for assessment of neurocognitive impairments (e.g., dementia, Alzheimer’s, traumatic brain injury, and the related), and for a psychological assessment to establish a (baseline) or to distinguish which type of neurocognitive impairment the patient or client has, and its severity the impairment (neuropsychologists’ reports will indicate if the damage is mild, moderate, severe, or profound)—and also to decide if the psychological prob­lems John seem to suffer are due to the accident or other reasons.

Here is another example:

B.   James, a 35-year-old white male, was charged with Indecency with a Child. James was in special education classes K–12. The attorney requests a competency to stand trial, and an evaluation for his anger issues.

Well, in this case, you need to involve a psychologist to conduct a comprehensive psychological or neuropsychological evaluation, as well as a competency evaluation. In addition, if the defendant is on medications or has a psychiatric history (which will be determined by the psychological evaluation), you need to have a psychiatrist review the client’s medications and make recommendations. By doing so, you are able to get inside the “black box” of the defendant and see light at the end of the tunnel, hopefully.

To the reader, a question might surface at the point: “What is involved when psychologically assessing a client?” In psychological testing, the psychologist evaluates the following areas (Heilbrun, K, Marczyk, G. R., and Dematteo, D., 2002, Gregory, R. J. 2011):

1.   Background of the client (educational, social, criminal, psychological, legal, and the related);
2.   Observing and assessing behaviors;
3.   Assessing the personality for psychopathology;
4.   Assessing general intellect and mental abilities;
5.   Assessing the overall psychological status of the client to rule out any mental, psychiatric, or learning disorders and impairments;
6.   Producing a clear report of the findings.

Should a comprehensive neuropsychological assessment be conducted (strongly recommended to help the court and those involved see the full picture by getting into the black box), in addition to the above items, the following should also be assessed:

A.   Comprehensive executive functioning assessment of the higher level executive skills (e.g., sequencing, reasoning, problem solving);
B.   Attention and concentration;
C.   Learning and memory;
D.   Language;
E.   Visual–spatial skills (e.g., perception);
F.   Motor and sensory skills;
G.   Mood and personality sensory skills.

What about malingering?

Malingering is a complicated subject that is—at times and based on case in question—of significant concern to legal professionals, the court, and to most forensic psychologists. The expert will determine if there is a mental illness, or a deceitfulness to accomplish secondary material gain, for example. Your expert witness must be skilled enough to recognize malingering.

A defendant, client, or a patient may be faking a mental illness or exaggerating the degree of the symptoms to avoid or escape prosecution or gain monetary benefits. A concern might rise during the evaluation process, or a legal professional might have a concern, or expect the malingering question to surface in the trial. If so, then the importance of a comprehensive assessment cannot be overstated—which will include assessing the defendant for malingering as he or she is being psychologically evaluated.

Nevertheless, it must be noted that clinical interviews, and mere screeners, will not do the job. Cost is another factor that will minimize comprehensive evaluations and additional well-needed testing. Professional opinions can easily be discarded as personal opinions if not backed up and supported by the two aforementioned foundations: validity and reliability. For example, if the opposing attorney asks a psychiatrist the following: “So, Dr. Akbar, your results of your psychiatric evaluation is based on your clinical interview and a mental exam screener?” Or: “Isn’t that what you call a professional opinion?” “Isn’t that limited since you have no data, no reliable or valid data to support your opinion?” The psychiatrist here failed to perform psychological evaluation or neuropsychological evaluation. At fault also is the attorney who failed to select the right mental health expert if he or she was seeking a comprehensive assessment backed up by data that is reliable and valid! Are the data, numbers, and results you have generated regarding a client suspected of malingering, for example, valid and reliable or are they just based on the expert’s opinion—professional or not?

This question is one of the most critical questions to ask your mental health expert during trial. This applies to almost any evaluation sought by the legal professional (e.g., risk of re-offending, sexual violence, substance abuse, anger and aggression, or future risk of violence). If you do your homework as a legal professional, you will make the right selection, and your expert witness will be knowledgeable, credible, confident, competent, and prepared to answer the toughest, most brilliant, or silliest of asked questions. They will be able to provide clear reports, opinions, insights, decisions, up-to-date jargon-free assessments, objective information, and conclusions that are valid and reliable, as well as directly addressing the issues at hand. They will offer information that will assist with the decision-making of the trier-of-fact, but not make that decision themselves (Darani, 2006; Holmes, R. 1990; Ramsland, 2009; Steel, J. 2010).

Conclusion

Forensic psychology is the intertwining of the law and psychology. This article discussed the process and rendered a guideline for how to select a mental health expert. One of the most important functions of a forensic mental health expert is to be able to come as close to the truth of answering the forensic question on hand as is professionally and knowledgeably possible—to formulate psychological findings in a clear forensic report that is accurate, reliable, valid, ethical, acceptable, and understandable to all involved parties. It involves the expert testimony of a forensic psychologist in a way the courts, legal professionals, and other non-mental health experts can appreciate and comprehend. Hence, for a forensic psychologist to be a credible and competent witness for the courts, he or she must first understand the law and the legal workings of the courtroom, how it relates to his or her field of expertise, and then produce reports that answer forensic questions on hand in a straight and forthcoming manner. However, equally important is the selection by the legal professional of the right expert for the case. A crucial and vital task for the misinformed or uninformed legal professional as he or she selects expert witnesses for the case on hand. The expert testimony of a mental health expert can impact the outcome of a case, greatly making the use of his or her expertise in a trial very important to the entire process.

References

Alison, L. (2008). Forward. Issues in Forensic Psychology, (8), 7–9.

Journal of American Academy, Psychiatry and Law 38:3:427–429 (September 2010).

Anderson, C. A., & Bushman, B. J. (2001). Effects of violent video games on aggressive behavior, aggressive cognition, aggressive affect, physiological arousal, and prosocial behavior: A meta-analytic review of the scientific literature. Psychological Science, 12, 353–359

Bartol, C. & Bartol, A. (2004). Introduction to forensic psychology. Thousand Oaks, CA: Sage.

Heilbrun, K, Marczyk, G. R., and Dematteo, D. (2002). Forensic Mental Health Assessment. A case book. Oxford University Press. New York, NY.

Faust, D., & Ziskin, J. (1988). The expert witness in psychology and psychiatry. Science, New Series, Volume 241, issue 4861 (Jul. 1, 1988), 31–35.

Boyer, J., MD, Martinez, R., MD, & Wortzel H. S., MD (2010). Ineffective Counsel in a Death Penalty Case. Journal of the American Academy of Psychiatry and the Law online, 38, 427-429

Coupland, R. A., & Kurtenbach, T. E. (2013). Introduction into forensic psychology: Court, law en­forcement, and correctional practices. British Jour­nal of Psychology, 104(2), 298-299. doi:10.1111/bjop.12027.

Darani, S. (2006). Behavior of the Defendant in a Competency-to-Stand-Trial Evaluation Becomes an Issue in Sentencing. Journal of the American Academy of Psychiatry and the Law, 34, 126–128.

Gregory, R. J. (2011). Psychological testing, history, principles, and applications. (6th ed., vol. 11). Pearson College Div.

Holmes, R. (1990). Profiling Violent Crimes: An Investigative Tool. Newbury Park, CA: Sage.

Leslie, O., Young, S., Valentine,T., & Gudjonsson, G. (2007). Criminal barristers’ opinions and perceptions of mental health expert witnesses. The Journal of Forensic Psychiatry & Psychology, 18, 394–410.

Nedopil, N. (2009).The role of forensic psychiatry in mental health system Europe. Criminal Behavior and Mental Health, 19, 224–234.

Price, M. (2011), American Psychological Association. Supreme Court hears psychologists on prison, video game cases, 42, p.10. Retrieved from http://apa.org/monitor/2011/09supreme-court.aspx.

Ramsland, K. (2009). The facts about fiction: What Grissom could learn about forensic psychology. The Journal of Psychiatry & Law, 37, 37–50.

Rogers, R. (1997). Clinical Assessment of Malingering and Deception. Guilford Press.

Steel, J. (2010). Forensic psychology. Research, clinical practice, and applications. Journal of Forensic Psychiatry & Psychology, 21(2), 317–319. Doi:10.1080/14789940903244981.

Tolou-Shams, M. (2010). The role of the forensic psychologist in child mental health (cover story). Brown University Child & Adolescent Behavior Letter, 26(5), 1–7.

Terr, L. (1991). Childhood trauma: An outline and overview. American Journal of Psychiatry, 148,10–20.

Suppressing Evidence Obtained From Proactive Drug Interdiction Speeding Stops

On November 4, 2016, the government timely filed a Petition for Discretionary Review in Ramirez-Tamayo v. State, No. 07-15-00419-CR, 2016 WL 5874327 (Tex. App.—Amarillo, October 5, 2016, pet. filed), a 2–1 decision. At issue is whether there was sufficient reasonable suspicion to make an arrest following a speed limit violation.

Testimony indicated the initial speeding detention was likely a pretext to investigate a suspected drug smuggler. This as­pect was not questioned. It should have been, because exceeding the speed limit is not reasonable suspicion as a matter of law. Ramirez-Tamayo was driving only 78 mph in a 75 mph zone on an interstate highway. Exceeding the speed limit in Texas is not prohibited conduct. Tollett v. State, 219 S.W. 3d 593, 599 (Tex. App.—Texarkana 2007, pet. ref’d). Texas does not have a “per se” or absolute speed limit law like most other states. Instead, a speed limit violation is merely presumptive of illegal speeding. See also Sieffert v. State, 290 S.W.3d 478, 487–488 (Tex. App.—Amarillo, 2009, no pet.)(an admitted pretext stop for 5 mph over the speed limit that was not challenged).

The principles discussed in this article apply to all statutory presumptions. Other crimes with presumptions lurking within Texas criminal statutes include aggravated assault of a public servant, forgery, and theft. But the speed limit presumption is pivotal because as presently construed, law enforcement has virtual carte blanche to stop whoever it wants whenever it wants.1 It is simply human nature for motorists to exceed speed limits when higher speeds are reasonable. This is almost a certainty when conditions are normal and the speed is only marginally over the limit.2 The Texas Department of Transportation writes about the burden upon the system when reasonable drivers are ticketed.3 This is why most experienced traffic control officers as a general rule of thumb do not ticket motorists for less than 10 mph over the limit in average traffic conditions. Speed traps where limits are set too low for average conditions exacerbate the problem, justifiably engendering anger towards sometimes corrupt city officials for funding themselves on the backs of reasonable drivers.

Critical to the analysis are the particular jury instructions mandated by the Penal Code for speeding trials and for all other statutory presumptions. Judge Cochran noticed that “[m]ost of the time, jury charges present presumptions incorrectly. . . .” Hollander v. State, 414 S.W.3d 746, 753 (Tex.Crim.App. 2013) (Cochran, J., concurring). There is no crime where more Texans are directly affected by presumption charge error than speeding. Trials occur daily in scores of municipal and justice of the peace courts all across the state. As will be discussed, the typical speeding jury charge is unconstitutional, and by extension, so are those for the more serious crimes containing presumptions. Curative instructions are suggested below.

Nature of Presumptions

Among the constellation of potential circumstances that might combine to prove an element of a crime, sometimes a legislature selects one or two commonly recurring fact patterns to assist the state in proving its case. The legal device is a statutory presumption. A presumption is a rule of evidence supplying “an inference as to the existence of a fact not actually known, arising from its usual connection with another which is known.” Insurance Co. v. Weide, 78 U.S. 438, 441–442 (1870).

Like certain other jury instructions, they provide guidance for jurors’ thinking in considering the evidence laid before them. Once in the jury room, jurors necessarily draw inferences from the evidence—both direct and circumstantial. Through the use of presumptions, certain inferences are commended to the attention of jurors by legislatures or courts.

Ulster Cnty. Ct. v. Allen, 442 U.S. 140, 168–169 (1979), Powell, J., Brennan, J., Stewart, J., Marshall, J., dissenting). A presumption is “an evidentiary tool that enables the factfinder to proceed by inferential reasoning from one fact to another.” Commonwealth v. MacPherson, 752 A.2d 384, 389 (Pa. 2000). Note it is a tool or a rule. It is not evidence itself nor is it a supplier of evidence. Guzman v. State, 188 S.W.3d 185, 193 (Tex.Crim.App. 2006). The basic evidentiary fact or facts that support a presumption are known as predicate facts; the ultimate conclusory element inferred by a presumption is known as the ultimate or elemental fact. See Ulster Cnty at 156.

As mentioned, Texas juries are required to be guided by specific instructions when a crime contains a presumption. Tex. Penal Code Ann. § 2.05 (herein PC 2.05). PC 2.05 was added to the Penal Code in 1974 in response to a line of cases from the Supreme Court of the United States striking down conclusive and mandatory presumptions because they reduce the state’s burden to prove its case beyond a reasonable doubt and infringe on the Fifth Amendment right not to testify. Willis v. State, 790 S.W.2d 307, 310 (Tex.Crim.App. 1990). PC 2.05 guarantees presumptions of all stripe are converted into permissive presumptions. Id. Permissive presumptions authorize but do not require a particular inference. Id.

The Constitutional Problem with Permissive Presumptions

A presumption cannot operate to invade the fact-finding function of the jury or deprive a defendant of his constitutional right to make the state prove every element beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 523 (1979).

A presumption which would permit but not require the jury to assume [an elemental fact] from an isolated fact would prejudge a conclusion which the jury should reach on its own volition. A presumption which would permit the jury to make an assumption which all the evidence considered together does not logically establish would give to a proven fact an artificial and fictional effect. In either case, this presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime.

Morissette v. United States, 342 U.S. 246, 274–275 (1952).

Permissive presumptions are problematical because they “permit juries to avoid assessing the myriad facts which make specific cases unique.” Charles R. Nesson, Reasonable Doubt and Permissive Inferences: The Value of Complexity, 92 Harv. L. Rev. 1187, 1192 (1979). Permissive presumptions are therefore constitutional only when “instructions plainly [direct] the jury to consider all the circumstances tending to support or contradict the inference. . . .” Ulster Cnty at 162. As shown below, this also holds true in assessing reasonable suspicion, which of course must always take into consideration the totality of the circumstances.

Speeding

Concerning speeding, the elemental fact is a speed greater than is reasonable and prudent under the circumstances then existing. Tex. Transp. Code Ann. § 545.351(a). The predicate facts are the speed and the speed limit. A speed “in excess of the limits . . . is prima facie evidence that the speed is not reasonable and prudent and that the speed is unlawful.” Tex. Transp. Code Ann. § 545.352(a). Prima facie evidence in this criminal context has long been understood to describe a rebuttable permissive presumption. Floeck v. State, 30 S.W. 794, 797 (Tex.Crim.App. 1895). The prima facie evidence presumption is

. . . by no means a conclusive presumption. Such is not the meaning of the term “prima facie.” It is merely proof of the case, upon which the jury may find a verdict, unless rebutted by other evidence . . . [emphasis added].

Thomas v. State, 474 S.W.2d 692, 695 (Tex.Crim.App. 1972)(a speeding case quoting Floeck).

Lest we forget, as juries so often do in speeding trials, the ultimate issue is the elemental fact, not the predicate facts. Exculpatory or rebuttal evidence of a reasonable speed usually in­cludes combinations and permutations of the following: a mar­ginal difference between the speed and speed limit,4 lack of vehicular traffic in the area, fair weather, adequate lighting, safe roadway design (such as flat terrain with unobstructed sight lines and low risk of foot, cross, or merging traffic), good vehicle handling characteristics, and driver ability.

Do not forget that undue delay is the other side of the coin. Tex. Transp. Code Ann. § 545.363(a) prohibits an operator of a vehicle from driving “so slowly as to impede the normal and reasonable movement of traffic.” This can occur above or below the speed limit. This is because reasonable speeds are not finite and static like the stark number on a speed limit sign. Instead, they plot a “bell curve” continuum, sliding up and down based on dynamically changing conditions, irrespective of the speed limit.

This is how the Massachusetts Supreme Court expressed it over a hundred years ago in construing its prima facie evidence speed limit statute:

The real question in all these cases is whether the speed is greater than was reasonable and proper . . . The jury are to give due weight . . . in connection with the other circumstances disclosed by the testimony whether coming from witnesses called by the government or by the defendant, and if they are satisfied that the speed is greater than was rea­sonable and proper, having regard to traffic, and the use of the way and safety of the public, they should convict the defendant; otherwise they should acquit him.

Commonwealth v. Cassidy, 95 N.E. 214, 215–216 (Mass. 1911).

Texas Jury Instructions Are Unconstitutional

All jury instructions previously in use for presumptions were modified by PC 2.05 commencing with its January 1,1974, effective date:

When this code or another penal law establishes a presumption with respect to any fact, [the jury is to be instructed as follows: if] the facts giving rise to the presumption [are] proven beyond a reasonable doubt, the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find.

PC 2.05(a)(A)(B). This permits the jury to ignore or apply a presumption in all circumstances, including when other evidence demonstrates the presumption to be irrational under the facts of the case. Prosecutors routinely take advantage of this. Trial judges do have a the safety valve power to direct a verdict of Not Guilty

if the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact.

PC 2.05(a)(1). Few judges, however, are willing to take a case out of the hands of a jury for fear of reversal.

To the jury itself, the Court of Criminal Appeals provided similar guidance when it remanded a case that failed to instruct the jury that

it is free to reject the presumption should it find that the circumstances presented by the State’s case as a whole impugn the inference the presumption authorizes it to convict upon. . . .

Bellamy v. State, 742 S.W.2d 677, 684 (Tex.Crim.App. 1987) (en banc)(Miller, J., concurring). But being free to reject the presumption is not the same as “must reject” the presumption. In sum, since absolutely nothing in PC 2.05 forbids the judge from submitting a case to a jury or forbids the jury from applying the presumption when the circumstances as a whole contradict the inference, there is fertile ground for false convictions when other evidence casts doubt on whether the speed was greater than was reasonable and prudent at the same time the speed and the speed limit are proven beyond a reasonable doubt. PC 2.05 instructions are therefore unconstitutional under Morissette because they allow irrational outcomes.5

Curative Instructions

These constitutional concerns are consistent with the pithy metaphors articulated over the years. For instance, presumptions “may be looked on as the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts.” Mockowik v. Kansas City, St. J. & C. B. R.R., 94 S. W. 256 (Mo. 1906). Also,
“[p]resumptions are indulged to supply the place of facts; they are never allowed against ascertained and established facts. When these appear, presumptions disappear.” Lincoln v. French, 105 U.S. 614, 617 (1882). Finally,

a presumption is an artificial thing, a mere house of cards, which one moment stands with sufficient force to determine an issue, but at the next, by reason of the slightest rebutting evidence, topples utterly out of consideration of the trier of facts.

Combined Am. Ins. Co. v. Blanton, 353 S.W.2d 847, 849 (Tex. 1962), citing Jones on Evidence § 32 (2d ed.).

A correct instruction will fully implement PC 2.05 and at the same time prevent the presumption from operating when reasonable inferences from actual evidentiary facts conflict with what the legislature predicted would prove the elemental fact. The instructions should plainly explain the mechanism for independently reaching conclusions from all of the direct and circumstantial evidence, including whatever weight the jury wants to put on the predicate facts.

Whether [the elemental fact] existed, the jury must determine, not only from the [predicate facts], but from that together with defendant’s testimony and all of the surrounding circumstances.

Morissette at 276.

This begs the question: How do we get this esoteric idea across to the average juror? One approach comes from PC 2.05(a)(1) verbiage bearing on the judge’s duty to submit the case to the jury “unless . . . satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact.” Pennsylvania uses a presumption for intoxication, and the Supreme Court of Pennsylvania said this:

The jury should be instructed that the [blood] test results are evidence that the defendant was under the influence of intoxicating liquor, and permit a finding to that effect, but that such a finding is not mandatory; that the test should be considered together with all the other evidence in the case; and that if there is a reasonable doubt in the minds of the jurors as to whether the defendant was under the in­flu­ence of intoxicating liquor, they should return a verdict of “not guilty.”

Commonwealth v. DiFrancesco, 329 A.2d 204, 211 (Pa. 1974). An excellent alternative comes from two different Tenth Circuit three-judge panels handed down unanimously nine years apart: “[A] better instruction would have told the jury to draw the inference ‘only if in light of all of the other evidence, . . . [the predicate facts] convinced the jury beyond a reasonable doubt of the elemental fact.’” United States v. Berry, 717 F.3d 823, 832 (10th Cir. 2013), citing and reiterating United States v. Cota-Meza, 367 F.3d 1218, 1222–1223 (10th Cir. 2004).

The supplemental jury instruction suggested below is taken from the Tenth Circuit’s approach. It clearly, succinctly, and constitutionally reconciles the reasonable inferences reached from direct and circumstantial exculpatory evidence at the same time predicate facts are proven to the requisite level of certainty.

You may find the defendant guilty only if in light of all of the other evidence you are convinced beyond a reasonable doubt that the defendant’s speed was greater than was reasonable and prudent under the circumstances then existing.

Proof of Predicate Facts Does Not Confer Reasonable Suspicion as a Matter of Law

Just as facts that do not amount to probable cause in isolation can do so when combined with other facts, Loesch v. State, 958 S.W.2d 830, 832 (Tex.Crim.App. 1997), the corollary is also true. Isolating the predicate facts to the exclusion of the rest of the evi­dence is improper reasonable suspicion analysis. See Thomas v. City of Galveston, 800 F. Supp. 2d 826 (S.D. Tex. 2011), with its exhaustive review of cases holding that additional facts objectively supporting an affirmative defense negate reasonable sus­picion that would otherwise exist. See also United States v. Pena-Montes, 589 F. 3d 1048 (10th Cir. 2009), where an officer at first possesses reasonable suspicion of an illegal temporary license plate mounted on a passing car, then loses it upon closer inspection as he approached the vehicle but before he gets close enough to the driver to make personal contact. The discussion of the various clues of drug possession in the majority’s Ramirez-Tamayo Amarillo Court of Appeals opinion is also instructive: “[T]hat they may be useful in initially capturing the officer’s attention is beyond doubt. But, the appearance of those characteristics in a particular situation do not ipso facto authorize a temporary detention.” RamirezTamayo at 2.

When monitoring traffic for speeding, the officer might have momentary reasonable suspicion when observing the radar or laser returning a number above the speed limit. But that suspicion can just as quickly vanish dependent upon other objective circumstances known to the officer. This analysis may seem novel, but it is simply another manifestation of the axiomatic Fourth Amendment totality of the circumstances. The overriding consideration is the specific facts as they objectively relate to the elemental fact. See Castro v. State, 227 S.W. 3d 737, 742 (Tex.Crim.App. 2007), listing speeding as an example of a subjective crime requiring underpinning specifics. It jibes with the jury instructions analysis above. When the circumstances as a whole rebut the inference, the presumption does not come into play for purposes of reasonable suspicion the same as it disappears from jury deliberations.

Existing Texas Fourth Amendment Jurisprudence Concerning Speeding

Many opinions are like Ramirez-Tamayo in the sense that a speed over the speed limit is simply assumed reasonable suspicion. The reason for the initial detention is mentioned only in passing as part of the procedural history preceding the discussion of the substantive issue on appeal. Typically, when there is a contested reasonable suspicion issue concerning speeding, it is based on a credibility contest between the stopping officer and the defendant over whether the defendant exceeded the speed limit. Sometimes there is a dispute as to the reliability of the instrument measuring the speed. These opinions rarely if ever distinguish the elemental fact of a reasonable and prudent speed. As a result, they often contain less than precise language. It is easy to read them to support a per se reasonable suspicion rule when they don’t. E.g., Madden v. State, 242 S.W.3d 504, 511 (Tex.Crim.App. 2007).

There are only four unpublished opinions to date where the defense argued for suppressing evidence due to a reasonable speed: United States v. Castanon, No. 06-40642, 2007 WL 1560127, 229 Fed. Appx. 312 (5th Cir. 2007)(not designated for publication); Warren v. State, 05-08-01431-CR (Tex.App.—Dallas 2009, no pet.)(not designated for publication); Fluharty v Texas, 05-08-01470-CR (Tex. App.—Dallas 2009, no pet.)(not designated for publication); and Bland v. Texas Dept. of Public Safety, (Tex. App. 14-12-01057-CV—Houston [14th Dist.], delivered July 23, 2013, pet. denied). In the main, the rationales miss the mark. The opinions often rely on inapposite cases or cir­cular reasoning, as illustrated by the per curiam Fifth Circuit Castanon opinion, the first of the four cases.

Police stopped Castanon for speeding. Castanon argues that his conduct was not a traffic violation, however, because the investigating officer agreed with defense counsel on cross-examination that his speed was not unreasonable. It is undisputed that Castanon was driving 71 miles per hour and that the speed limit was either 65 or 70 miles per hour. By driving above the posted speed limit, Castanon’s conduct constituted prima facie evidence of a traffic violation.

Castanon at 313. This superficially implies prima facie evidence is actual evidence sufficient to make a prima facie case. There is no mention of a presumption or Section 2.05.6

Conclusion

Presumptions have been called “the slipperiest member of the family of legal terms. . . .” McCormick on Evidence (3d ed., Cleary, ed.), p. 965 (1984). To the extent we fail to force their constitutional implementation, we fail the system in our role as advocates. Today, the Texas Municipal Court Education Center publishes an exemplar speeding jury charge for use by all traffic judges.7 It does not incorporate PC 2.05 at all. Plus, it is replete with confusing legalese that implies prima facie evidence is the same as a prima facie case. It virtually guarantees a conviction. Likewise, the definition of prima facie evidence used by many municipalities does not integrate PC 2.05. Instead, such instructions say it is “evidence that stands proved unless rebutted by other evidence.” This is an unconstitutional mandatory presumption. See Guzman at 193, n. 17. Even the recently published 2015 Texas Criminal Pattern Jury Charges–General, Evidentiary and Ancillary Instructions does not provide the necessary guidance for handling rebuttal evidence. The jury charge should explain the presumption in the specific terms of the crime, “the clear mandate” of PC 2.05(a)(1). Bellamy at 686.

Jury instructions must not only comply with PC 2.05 in terms of the particular crime, but they must also guarantee that the jury assess the credibility and weight of the evidence as a whole, unencumbered by undue influence of a presumption. The in­struction suggested above causes the presumption to vanish when credible rebuttal evidence is introduced. This satisfies due process by preventing false convictions when actual facts ex­pose a presumption to be a fiction.

As for reasonable suspicion based on nothing more than predicate facts and a presumption, the analysis ends there only if the defense fails to appreciate its significance or if there is no exculpatory evidence. The totality of the circumstances known to the officer must be elicited, not ignored. When other evidence objectively rebuts the presumption, the presumption disappears, as does reasonable suspicion.

Notes

1. Anecdotally, interdiction efforts in the Panhandle use speeding as a pretext strategy. Using a clearly marked patrol unit, they drive below the speed limit on known drug smuggling routes. Any vehicle that comes up from behind but does not pass is profiled. The marked car exits the freeway and radios ahead the identifiers for the profiled vehicle. Enter an unmarked car, which promptly pulls the profiled car over once there is any nominal speed over limit.

2. http://www.motorists.org/issues/speed-limits/studies/ (last visited Nov. 8, 2016).

3. “If reasonable drivers see an unreasonably low speed limit without seeing a need to drive that slowly, they tend to ignore the signs and develop a disrespect for speed limits in general. When a speed limit is set below the 85th percentile, law enforcement officials must deal with reasonable people being ticketed for exceeding the posted speed limit. . . .” http://www.txdot.gov/government/enforcement/speed-limits/studies.html (last visited September 14, 2016).

4. There is also the argument that when the speed only slightly exceeds the speed limit, the speed limit presumption itself is unconstitutional. There must be “a reasonably tight logical fit between the basic facts proved and the ultimate fact inferred.” Brown v. State, 122 S.W.3d 794, 79 (Tex.Crim.App. 2003), citing Leary v. United States, 395 U.S. 6, 36 (1969). Presumptions are evaluated for constitutionality “as applied in the record before the court,” not on their face. Gersh v. State, 714 S.W.2d 80, 81 (Tex.App.—Dallas 1986, pet. ref’d), 738 S.W.2d 287 (Tex.Crim.App. 1987), citing Ulster Cnty. For example, the speed limit was recently raised from 70 mph to 75 mph on many Texas highways. It is not likely that 75 mph or less in a 70 mph zone is greater than would be reasonable in normal circumstances.

5. The general rule is that only elements of a crime need be proven beyond a reasonable doubt. Berry at 831–832. Individual evidentiary facts usually do not require this level of confidence. Id. See Ulster at 167. Speeding is an exception, however, even without PC 2.05. In order to prosecute a speeding case, both the ticket and the charging instrument in a speeding trial must allege the speed and the speed limit. Tex. Transp. Code Ann. § 543.010. Thus the speed and speed limit are two of the elements for the crime of speeding. If there is a reasonable doubt as to either the speed or the speed limit, the prosecution has failed to meet its burden of proof and the defendant is not guilty.

6. This is not all that surprising. Intermediate appellate courts have both civil and criminal jurisdiction. The term of art prima facie evidence is inherently ambiguous, with a different meaning in a civil context. Coward v. Gateway Nat. Bank of Beaumont, 525 S.W.2d 857, 859 (Tex. 1975). It is also easily confused with prima facie case, an entirely different civil concept. See Evans v. State, 623 S.W.2d 924 (Tex.Crim.App. 1981), where the trial judge conflated PC 2.05, prima facie evidence, and prima facie case. Finally, because it contains the word “evidence,” it is counter-intuitive.

7. http://www.tmcec.com/resources/jury-charges/ (last visited October 5, 2016).

Receipt of Incriminating Evidence and the Need for Protection

Texas criminal defense lawyers who have received physical evidence incriminating their clients are in an ethical no-man’s-land and vulnerable to prosecution. There is currently no clear ethical rule to guide the defense lawyer and no real protection from being used as a law enforcement tool against your own client. This article explores some of the dimensions of counsel’s dilemma and ultimately recommends that TCDLA undertake a determined effort to amend the Texas Disciplinary Rules of Professional Conduct (and get a new Code provision) with a specific rule that informs defense counsel about what course of action he or she should take. I also recommend putting the “Special Rule” regarding the attorney-client privilege back into the Code of Criminal Procedure and a new rule giving lawyers due process and protection to discourage targeting defense lawyers and their law offices.

Cold Comfort

The Texas criminal defense lawyer who possesses evidence that incriminates his client may find comfort regarding the crime of tampering with physical evidence. Section 37.09 of the Penal Code provides that a person commits an offense when “knowing that an investigation or official proceeding is pending or in progress, he . . . alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding[.]” Unless your client has appeared in your office with no “pending” investigation, your receipt of incriminating physical evidence can subject you to prosecution. However, none of these criminal provisions apply under Section 37.09’s subsection (b) “if the record, document, or thing concealed is privileged or is the work product of the parties to the investigation or official proceeding.” In light of statutory law, how well-protected are you under Texas law against prosecution, even as a sort of academic exercise?

If Subsection (b) is read as an exception, the prosecution will have to allege and then prove beyond a reasonable doubt that the “record, document, or thing” is not privileged and not work product.1 Assuming this is an exception, the question then becomes what exactly is being excepted, and at least as im­portantly, how hard it will be for the prosecution to meet its presumably formidable burden.

Ordinarily, the attorney-client privilege applies only to con­fidential communications under Rule 503 of the Rules of Evidence, which would take the receipt of physical evidence out of its protective purview. But there is a “special rule” within the Rule literally called “Special Rule in a Criminal Case”2 that renders confidential “any other fact that came to the knowledge of the lawyer” by reason of the attorney-client relationship. Assuming that you can be said to be “concealing” the pen and meth at your office, the existence and location of the evidence are “facts” which came to you in the context of your representation. Your failure or refusal to disclose these facts would therefore ap­pear to be privileged, and thus you should not be said to be committing the offense of concealing evidence.

But the Court of Criminal Appeals still requires the privilege to be “strictly construed,”3 which means it will be read against you and your client. With strict construction in mind, the special rule only applies to facts discovered by reason of the attorney-client relationship. But that relationship only arises when the client and lawyer have engaged in confidential communications for the purpose of rendering “professional legal services.” A prosecutor could easily argue that Greta simply used the attorney to stash her meth and conceal evidence, and thus her email and the items were outside a legitimate attorney-client relationship.

More straightforwardly, the prosecutor could cite the exception to the privilege. There is no privilege if the lawyer’s services were sought or obtained to help or enable anyone to commit a crime. You are in possession of contraband and you are helping Greta conceal evidence. Under this rationale, the privilege would arguably not apply and you can be prosecuted for concealing evidence (and for possession of the meth as well).

Before there was Section 37.09 of the Penal Code, the Court of Criminal Appeals decided the attorney could not use the privilege as a shield for criminal conduct in this memorable recorded conversation as reflected in the infamous case cited below:

Client: Hello, Jimmy, I went to the extremes.
Defense Attorney: What did you do?
Client: I just went to the extremes.
Defense Attorney: You got to tell me what you did before I can help.
Client: Well, I killed her.
Defense Attorney: Who did you kill—the driver?
Client: No, I killed her.
Defense Attorney: Did you get rid of the weapon?
Client: No, I still got the weapon.
Defense Attorney: Get rid of the weapon and sit tight and don’t talk to anyone, and I will fly down in the morning.

The Court decided the attorney-client privilege did not apply because it was “not within the realm of legitimate professional counsel and employment,” but rather advice “on how he can safely commit a crime.” Clark v. State, 261 S.W.2d 339 (Tex.Crim.App. 1953).

Section 37.09(b) also includes “work product” as a shield against prosecution. But it refers to the work product of the “parties.” When you received the meth and the pen, you were not a party. Once that indictment is filed, your client is a party (the defendant) and the State of Texas is a party, but the lawyers, state and defense, are not. Presumably, this reference in Section 37.09(b) is to you, the accused lawyer, the defendant in your prosecution for concealing evidence.

Work product is either absolutely protected “core” product (the lawyer’s own mental processes) or “other” product.4 This “other” product—i.e., documents and materials gathered in the course of the preparation of the defense—gets only qualified immunity. This state of affairs leaves the defense lawyer’s work product as either a sanctuary or a safari park. But under this pretrial scenario, this case falls outside either category of the lawyer’s work product immunity, leaving you no protection from disclosure.

The exception in 37.09 is not an impervious legal cocoon into which the defense lawyer can slip himself, confident that he is safe from prosecution. Even at this theoretical level, it appears on closer examination to be a professional coffin instead. Reading the exception most favorably to the hapless defense lawyer, it vanishes like a mirage when exposed to the real world.

The Search of Your Office and Your Subsequent Prosecutions

Assume the police execute a search warrant on your law office (Bud went to the police). The police find the meth and you get arrested for possession of it. A hard-working homicide detective, aware that you are defending Greta, assists in the search. He notices the pen on your desk and matches it to various photographs of it (the victim loved his pen).

You are forced to appear at Greta’s murder trial and, over your strenuous objection, testify about everything you know about that pen. The pen is introduced as evidence over equally vigorous objection. Greta, of course, is convicted, and yes, she feels betrayed: That supposedly protected “special” relationship is irrevocably over, if it can ever have existed in the first place.

But you were also charged for concealing the pen. The prosecution relies heavily on jurors’ belief that criminal defense lawyers will do anything for their clients, most especially hide evidence. And now, the prosecution argues:

Lawyers cling to privileges they only give themselves. As a prosecutor, I believe in rules that govern us as a civil society. Above all else, I care about the rules meant to find truth so that justice may be served.

He may have a bar card, but people, he is nothing more than an accomplice. A bar card is not a license to commit crimes. The fact that Greta—his beloved client—committed murder with the pen obviously meant nothing to him. It is a reasonable inference that the pen remained on his desk long enough for this lawyer to fully understand what it was. Perhaps he rolled it around in his fingers. Perhaps he simply laid the pen openly for his amusement and pleasure. It was a trophy.

You weren’t just concealing a murder weapon. You were using your power as a lawyer to help a killer escape jus­tice. Maybe she will. But you won’t.

Don’t let this lawyer hide behind his privilege. Send a message to all criminal defense lawyers that you care more about truth and justice than technicalities. If you do, then maybe the next time a killer hides his knife or gun or bomb-making supplies with his lawyer, law enforcement can act far more quickly and we can all be safer, lessen crime and achieve justice—even to self-appointed members of the privileged class.

You are convicted and your sentence is partially probated. You appeal. How will you fare?

You may not fare well. Under Henderson v. State,5 the Court of Criminal Appeals has cast the privilege as pliable as a plastic mold. It bends according to the facts of the case. If the attorney-client privilege is said to be a shield against disclosure, it is a paper shield.

The Henderson Case

Cathy Lynn Henderson was the babysitter for an infant. When the parents returned, she and the baby were missing. Less than two weeks later, the FBI found Ms. Henderson in another state, but without the child. She eventually said that she accidentally killed the baby and buried the child in a wooded area near Waco.

Henderson then invoked her right to counsel. At this point, all law enforcement knew was that the dead infant was somewhere “near” Waco, a description of little help in locating the grave, or to be stated more precisely and legalistically, the site of crucial evidence to support a prosecution for capital murder.

Having invoked her Sixth Amendment right, her federal public defender entered the picture. The police testified he (the PD) revealed to them that his client had drawn a detailed map revealing the location of the child. The public defender denied ever making this disclosure. When asked about a map, he told them that “all materials” would be forwarded to Henderson’s Austin lawyer.

Unsurprisingly, the local police sought the map from the Austin attorney. When the lawyer refused, prosecutors obtained a grand jury subpoena duces tecum. The lawyer refused to appear. The local sheriff then obtained an arrest warrant for the lawyer and a search warrant for her car and office. They found no maps.

The attorney, meanwhile, was represented by a large swarm of other Austin lawyers. They very clearly asserted the attorney-client privilege. The prosecution, in turn, filed a motion to compel production of the map.

The matter was now squarely joined before the trial court. Was the map Henderson drew protected from disclosure under the attorney-client privilege, the oldest privilege in Anglo-American law? If so, what would a local judge do, facing a barrage of intense public attention and the desperation of grieving parents?

The trial court compelled Henderson’s attorney to turn over the map under the fiction that it was intended to be disclosed to law enforcement and “not made for the purpose of facilitating the rendition of professional legal services.” The police found the body and a jury sentenced Henderson to death.

The Court of Criminal Appeals, per (not yet Presiding) Judge Keller, affirmed the death sentence and removed the map’s protection from the attorney-client privilege.6 The State had argued that the privilege did not apply; that if it did, the exceptions applied; and if there were no exceptions, the exclusionary rule would not apply.

The Court agreed the privilege applied. It rejected the State’s argument that the illegally obtained map fell within any crime-fraud exception to the privilege. The Court also agreed that the exclusionary rule applied. Under the law at the time, then, the fruits of the map should have been suppressed and Henderson’s conviction reversed.

Instead, the Court decided to create a new balancing test against the privilege and held that “the privilege must yield” . . . “to the extent necessary to satisfy the policy interest in question,” such as to prevent a death or serious bodily injury. In such a case, the attorney “must disclose” the evidence to law enforcement. The Court praised its new law because it “gives effect to the privilege while taking into account strong policy interests in favor of disclosure. In many ways this reasoning is similar to cases in other states that require an attorney to release physical evidence in his possession to the authorities but prevent the government from disclosing to a trier of fact that the evidence came from the defendant’s attorney.” The similarity noted by the Court morphed just a few paragraphs later into Texas law.7

Where Henderson Leaves the Criminal Defense Lawyer (and Greta)

The Post-Henderson Conversation

Client: Hey, Darla, thanks for taking my call.
Defense Attorney: What’s up?
Client: I need some advice.
Defense Attorney: Sure.
Client: I kidnapped this kid from middle school.
Defense Attorney: Oh, no. That is very bad.
Client: Here’s the situation—
Defense Attorney: Stop. I need to warn you. Whatever you’re going to say, I have to go and tell the police.
Client: You’ve represented me before. I thought you were on my side. I need and want you to be my lawyer.
Defense Attorney: I am. That’s why I’m telling you to not tell me anything. It’s the only way I can guarantee my undivided loyalty to you as your lawyer.
Client: Well, I’m concerned about the kid because—
Defense Attorney: I’m sorry, you tell me, I tell the police.
Client: (Long Pause) This seems f****d up.
Defense Attorney: You’re telling me.

Implicit in the Court’s reasoning is that the defense attorney will feel no obligation to tell his client that if he gives him certain information, he—his own lawyer—will be transformed into the government’s most important informant. The Henderson judges assumed the defense lawyer would keep this secret so that he might gather the very information that could lead to his client’s execution. Were Henderson the law at the time the federal public defender met with his client, he would most certainly have told her not to draw a map and not to tell him where the child’s body was located.

The present rule spares the lawyer for his betrayal while employing his assistance to convict and punish, even win a verdict of death against, his own client. From the client’s point of view, this solution seems a bit tailor-made for members of the criminal justice system. How might Greta react when, as that pen is offered into evidence, the source of the evidence—her own lawyer—is scrupulously hidden from the jurors? So much for full disclosure, she might wryly observe. And so much for confidence in your own lawyer’s loyalty.

What might the lawyer herself think? Perhaps she reflects about how, as the Supreme Court has trumpeted, “a defense lawyer best serves the public, not acting on behalf of the state or in concert with it, but rather by advancing ‘the undivided interests of his client.’”8 Or maybe she laments ever having taken the case in the first place.

Six months later, in Swidler & Berlin v. United States,9 the Supreme Court of the United States considered whether the attorney-client privilege should be balanced against the sort of strong feelings the judges of the Court of Criminal Appeals experienced in Henderson. Specifically, the District of Columbia Court of Appeals invented a test to determine whether the privilege should yield to other interests after the client dies. The Supreme Court decided in favor of the privilege.

Unlike the Court of Criminal Appeals, the Supreme Court recognized that “the loss of evidence admittedly caused by the privilege is justified in part by the fact that without the privilege, the client may not have made such communications in the first place.” Most importantly, the Supreme Court rejected the balancing test created by the Court of Criminal Appeals:

[A] client may not know at the time he discloses information to his attorney whether it will later be relevant to a civil or a criminal matter, let alone whether it will be of substantial importance. Balancing ex post the importance of the information against client interests, even limited to criminal cases, introduces substantial uncertainty into the privilege’s application. For just that reason, we have rejected use of a balancing test in defining the contours of the privilege.10

The Texas defense lawyer remains in the crossfire of Henderson and Swidler & Berlin. Where the defense lawyer most needs clarity, the current state of the law leaves an intolerable level of uncertainty. Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct relies on the meaning of the privilege in the state and federal rules of evidence. Consequently, the lawyer’s license is just as jeopardized as the lawyer himself.

I lack full confidence that the lawyer can depend upon the courage of the courts. The attorney’s crisis will not occur in a case involving an invalid license or shoplifting. The contro­versy will arise in the notorious case. It will involve a crime en­veloped by political considerations and an emotionality so strong it can influence judges to bend the privilege or “balance” it on a rigged scale. As the Henderson case demonstrates, the courts surrendered the privilege at the very moment it most needed vindication. We need to replace the paper protection with something more cast-iron.11

The Value of the Attorney-Client Privilege and Its Fulfillment

I have concluded that criminal defense lawyers have no choice but to offer to the State Bar and to the Legislature language that is robust and clear enough to fulfill the very important other in­terests the privilege evolved to undertake. In an era in which obtaining “truth,” i.e., factual material, is a virtue eclipsing all others, the value of contrary interests needs reminding.

The attorney-client privilege fosters an environment conducive to full disclosure by the client. The more the attorney learns of the case, the better he can fulfill his Sixth Amendment role.12 Unlike any other area of the law, honesty from the client is most fleeting in criminal cases. The shoplifter doesn’t want to talk about the reality of the camera. The guilty capital client doesn’t wag his tongue about the crime or about the usual horrors leading to it. The driver who sped assumes he exceeded the speed limit. These are the facts vital to the ultimate aspirations of truth and justice because while they seem incriminating, they may—under the law—be exculpatory.

Maybe the confessed shoplifter actually didn’t commit a crime, but he thought he had. Perhaps the execution-centered and fully guilty client is in fact not eligible for the death penalty. The driver was fast, but what did the instruments read? It is the defense lawyer under the benefit of the attorney-client privilege who can more reliably make those determinations.

The seasoned defense lawyer has experienced falsities from clients, but truth as well. Law must give us space. With the space that the privilege provides, we can separate the innocent far more quickly and justly than anyone else.

The law must enforce the privilege not as an accommodation in criminal cases, but as a special and emphatic necessity. Lawmakers and judges both must value the privilege because it fulfills the ultimate aspirations we have as a civil society.

The attorney-client privilege is more than just a vehicle for ensuring the competing interests of the criminal justice system. Like any privilege, it constitutes a private zone of individual autonomy which the government cannot reach. Privileges do more than serve narrow legal interests. They are zones of privacy and autonomy. Without them, there would be no counterweight for the individual’s rights when they collide against the government’s powers. They are more than rules of evidence; they are in practice vital to a liberal democracy.

With these sentiments in mind, I looked at the two competing approaches to the problem of the receipt of incriminating physical evidence. One approach is what I call the deliver-it-to-the-cops solution. The other is what I call the give-it-back rule. The first is favored by some states. The latter is the rule expressed by the ABA Criminal Justice Standard 4-4.6. What I’ve written is largely a sort of rearrangement of the ABA’s standard.

Lawyer Duties upon Receipt of Criminal Evidence

(a) A lawyer who receives a physical item under circumstances implicating a client in criminal conduct shall disclose the location of or shall deliver that item to law enforcement au­thorities, including prosecutors, only if:

(1) such is required by specific court order or required as an express duty under law or;
(2) the item received is plainly contraband or;
(3) in the lawyer’s professional judgment the lawyer cannot retain the item in a way that does not pose an unreasonable risk of physical harm to anyone.

(b) Unless required to disclose under subsection (a), the law­yer shall return the item to the source from whom the law­yer receives it, except as provided in paragraph (c).

(c) A lawyer may receive the item for a period of time during which the lawyer: (1) intends to return it to the owner; (2) reasonably fears that return of the item to the source will result in destruction of the item; (3) reasonably fears that return of the item to the source will result in physical harm to anyone; (4) intends to test, examine, inspect, or use the item in any way as part of the lawyer’s representation of the client; or (5) cannot return it to the source. If the lawyer retains the item, the lawyer shall do so in a man­ner that does not impede the lawful ability of law en­force­ment to obtain the item. The lawyer shall retain the item in the lawyer’s law office and, other than locations for testing, inspection or use, no other place except under (a)(3).

(d) After testing or examining physical evidence pursuant to paragraph (c)(4), defense counsel should return it to the person from whom it was obtained, unless there is reason to believe that the evidence might be destroyed or used to harm another.

Under this rule, the defense lawyer can either have Greta come get her pen, or keep it safely at the attorney’s law office. Either decision is ethically defensible. The lawyer’s choice would be heavily dependent on the peculiar facts and circumstances of the case.

The lawyer has to get the meth to law enforcement. The rule does not explain how to accomplish that task. It seems in­advisable to stroll into the police station and plop it down. One solution is for the lawyer to deliver the meth to another location, then have someone else alert the authorities, perhaps an anonymous tip. Greta may be unhappy, but you’ll have to explain that you are bound by the ethical code and keeping her meth is not an option.

In light of the current judicial hostility toward the attorney-client privilege, I also think we need to put back into the Code the language that had been there since 1856. It was repealed when the Court of Criminal Appeals was enabled to write the rules of evidence in 1986. Then the Court tried to wipe out the rule in 2008. In the meantime, the Court had decided Henderson, leaving the privilege subject to the unobstructed winds of judicial whim. Reenacting that language does not advance the concerns expressed herein. But it does remove the argument that the attorney-client privilege is an evidentiary toy that can be moved and removed as easily as it currently can be.

Art. 38.09. Attorney-Client Privilege. An attorney at law shall not disclose a communication made to him by his client during the existence of that relationship, nor disclose any other fact which comes to the knowledge of such attorney by reason of such relationship.

But perhaps we need an additional statute:

Art. (New). No subpoena, warrant or order may issue for items or documents in the office of an attorney in a criminal case pursuant to the attorney-client relationship unless (1) the attorney is given notice before the subpoena issues and (2) the State proves at a hearing by clear and convincing evidence that:

(a) the items or documents were obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;
(b) the attorney has an express duty under law to deliver the item or document to law enforcement;
(c)
the item received is plainly contraband;
(d) the retention of the item or document is conducted in a manner that will impede the lawful ability of law enforcement to obtain the item; or
(e) the retention of the item or document is in violation of the rules regarding receipt of incriminating evidence.

This language is meant only as a draft that I hope instigates thoughtful discussion and vetting before TCDLA interfaces with lawmakers and/or the State Bar, if it decides to do so. I do not recommend that we wait for the next crisis to hit. In the meantime, maybe publication will help the defense lawyer thoughtfully wondering what to do with her own “Greta.”

If you have a “Greta experience” or anything similar, call both the Ethics Committee (Robert Pelton, chair), at 512-646-2734, and the Strike Force (Nicole DeBorde, at 713-536-6300, or Reagan Wynn, at 817-336-5600).

Notes

1. Section 2.02 of the Texas Penal Code

2. Eight years ago, the Court of Criminal Appeals sought to abolish the rule, led by Judge Cathy Cochran and law professor Steven Goode. Craig Jett, Tim Evans, and myself (and others) opposed the suggested abolition. Richard Anderson wrote a persuasive letter in opposition. After a spirited public debate on the blog Grits for Breakfast, we won retention of this provision.

3. Strong v. State, 773 S.W.2d 543 (Tex.Crim.App. 1989).

4. Pope v. State, 207 S.W.3d 352, 357–58 (Tex.Crim.App. 2006).

5. Henderson v. State, 962 S.W.2d 544, 556–558 (Tex.Crim.App. 1997).

6. I was the attorney on direct appeal.

7. Henderson, 962 S.W.2d at 556–558.

8. Polk County v. Dodson, 454 U.S. 312, 318–19 (1981)(quoting Ferri v. Ackerman, 444 U.S. 193, 204 (1979).

9. 524 U.S. 399 (1998).

10. Swidler & Berlin v. United States, 524 U.S. at 409. See Note 2.

11. It also does not inspire confidence that the Court of Criminal Appeals a decade later sought the abolition of the very “Special Rule” which was Henderson’s only and ultimately failed line of defense.

12. “As a practical matter, if the client knows that damaging information could more readily be obtained from the attorney following disclosure than from himself in the absence of disclosure, the client would be reluctant to confide in his lawyer and it would be difficult to obtain fully informed legal advice.” Fisher v. United States, 425 U.S. 391, 403 (1976).

Avoiding the One-Eyed Expert and Handling the Others

In the early 1990s, when I was a law student, I worked on an appeal from the re-sentencing trial of a Travis County capital murder case, that of David Lee Powell. That case had previously gone to the United States Supreme Court twice, before being reversed, as the Texas and federal courts grappled with questions of the admissibility of psychiatric predictions of “future dangerousness” in death penalty cases.1 Some of the predictions of violence in Powell’s case had been made by Austin psychiatrist Dr. Richard Coons. Coons testified at Powell’s 1991 re-sentencing, just as he had done at Powell’s original 1978 trial, that Powell would commit criminal acts of violence in the future.

Reading the record of both trials, I was repeatedly struck by the fact that Coons seemed to have no real basis for his opinions other than, well, his own opinion. It also dawned on me that even though I personally thought that Coons’ opinion was ridiculous, given Powell’s many years of exemplary behavior on death row, I had absolutely no idea how one could effectively challenge such questionable expert testimony. That awareness of my own ignorance sparked my long-standing interest in issues concerning the integrity and admissibility of expert testimony. Alas, it was only many years later—and after Powell’s execution—that I finally succeeded in making an effective challenge to Dr. Coons’ testimony—in Coble v. State, 330 S.W.3d 253 (Tex. Crim. App. 2010). Coble was represented on appeal by Walter M. Reaves Jr., but I contributed the appellate briefing on the specific issue of whether Dr. Coons’ testimony had been properly admitted under Tex. R. Evid. 702. The Court of Criminal Appeals agreed, finding that no scientific basis had been demonstrated to support Dr. Coons’ predictions of future dangerousness.2

Judging by the number of queries about hiring, funding, and challenging experts that are posted on the TCDLA listserve, it seems that the current generation of new attorneys are emerging from law school, as I did, with little training in how to challenge the State’s experts—or how to hire and use their own. I hope this lightning tour of some of the relevant areas and rules will help new colleagues to gain traction in this area faster than I did, as well as being useful to more seasoned members:

I. Selecting Your Expert and Investigating Their Expert

Choosing the right expert is something that will depend on the facts of each individual case. There is no single way to find an expert. It takes diligence, effort, and persistence often times. You can find an expert by reading relevant cases, asking for recommendations from the TCDLA listserve and colleagues, and researching the scientific literature using Google Scholar. Bear in mind that your expert must be able to address the “very matter” raised in the case in question, since the burden will be on you to prove that they are qualified under Tex. R. Evid. 104(a). See Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). Do enough background reading, and question your potential expert(s), to be certain that you are hiring someone with precisely the right expertise—a psychologist is not much good to you if you need a pharmacologist, for example.

If you are not familiar with the process of hiring and using experts, be warned that it is a slow process. Finding the right person, obtaining the funds with which to hire them, briefing them, allowing them to do their work, and consulting with them and preparing them to testify always takes far longer than seems reasonable. If you think your case calls for expert input, you are well-advised to start the process early in the life of the case.

Be sure to investigate your own experts as well as the State’s potential experts. Some experts have top-flight credentials and unimpeachable private lives. Some don’t. Google them, check their listings on professional licensing authority websites for disciplinary problems, consider running the same record checks on them that you would for the state’s lay witnesses. Ask them if they have ever not been permitted to give expert testimony. Ask about prior courtroom experience, and for the names of the attorneys involved. Then ask those attorneys for transcripts. Question your potential experts about any facts you uncover that give you pause. If they have published journal articles, look at those articles and run them through your “common-sense-o-meter.” Ask them what they are generally cross-examined about. While some experts are doing truly cutting-edge work in their field, others are simply oddballs. Even if an expert swears that their unique theory will help your client, consider whether really marginal scientific evidence will even be admissible.

Consider whether an expert who aggressively markets him or herself as an expert is someone you actually want to use. One such character has popped up from time to time on different lists, promoting himself as a “medical-legal consultant.” A little “googling” shows him to have a record of drug convictions, licensure problems, allegations of domestic violence, and other “baggage” in his background. See In re. Application of Elliot B. Oppenheim, 159 P.3d 245 (N.M. 2007).

Deconstructing State’s experts’ resumes can be enlightening. In In the Matter of West Virginia State Police Crime Lab, 438 S.E.2d 501 (W.Va. 1993), “expert” serologist Fred Zain, who later worked in Texas, had claimed to have a minor in chemistry that was not reflected on his academic transcript, and had only 10 hours of chemistry courses in which he received a grade of “C” or above. Similarly, when I was preparing to cross-examine Dr. Coons in a capital case, Public Information Act requests revealed that although Dr. Coons claimed in his C.V. to have provided “consultation” services for various state agencies such as the Medical Board, those agencies could provide no documents to support most of those assertions. Also, look carefully at any professional organizations of which the expert claims to be a member—do they actually even exist? Can anyone buy their way in?

There have been cases where the experts have not even been experts. In a Harris County capital murder case, a witness falsely claimed to be a psychologist—Ex parte Matthews, 933 S.W.2d 134 (Tex. Crim. App. 1996)—but subsequently turned out only to have a degree in music.3 In Drake v. Portuondo, 553 F.3d 230 (2nd Cir. 2009), the prosecution “psychologist” had hugely exaggerated his qualifications and previous experience, and testified concerning a fictional syndrome of sexual dysfunction, dubbed “picquerism,” in which the perpetrator realizes sexual satisfaction from penetrating a victim by sniper activity or by stab or bite wounds. In that case, the prosecution’s belated notice to the defense prevented counsel from investigating evidence that turned out to be nonsense. Id. at 245.

When selecting a forensic expert, beware of hiring someone whose testimony will not be admissible because of Tex. Code Crim. Proc. Art. 38.35, which governs the admissibility of evidence of forensic analysis of evidence—meaning “a medical, chemical, toxicologic, ballistic, or other expert examination or test performed on physical evidence, including DNA evidence, for the purpose of determining the connection of the evidence to a criminal action.” The term includes an examination or test requested by a “law enforcement agency, prosecutor, criminal suspect or defendant, or court,” but there are some exceptions, including latent print examinations, tests of a specimen of breath, digital evidence, presumptive tests performed as part of community supervision or parole, or an “expert examination or test conducted principally for the purpose of scientific research, medical practice, civil or administrative litigation, or other purpose unrelated to determining the connection of physical evidence to a criminal action.”

The testing or analysis covered by Art. 38.35 is only admissible if it is performed by a crime laboratory which, at the time of the analysis, was accredited by the Texas Forensic Science Com­mission or was eligible for accreditation and subsequently became accredited. Considering the sweep of Art. 38.35, there is remarkably little case law concerning its use, although in one gratifying case—at least from the defense point of view—a revocation of community supervision was reversed because the defendant’s urine sample had been tested by an unaccredited lab. Hargett v. State, 472 S.W.3d 931 (Tex. App.—Texarkana 2015, no pet. h.).

A further consideration when hiring an expert is licensure. Out-of-state experts are not automatically licensed to perform their professional function in-state. For each licensed profession, it is necessary to check what the requirements are for the out-of-state individual to get a temporary Texas license, if required by law. The rules governing each profession may differ: In preparing for a recent case, I was informed that the Texas Board of Examiners of Psychologists requires a temporary Texas li­cense if an out-of-state expert is testifying, whereas the Texas Medical Board apparently only requires a psychiatrist to have a temporary license for the actual examination of the patient, but not for testifying. Bear in mind that practicing a profession without a license can be a criminal offense. Tedious and time-consuming as it is to sort out such details, it’s better than handing the State a great impeachment tool.

II. Paying Your Expert

An attorney who fails to know the relevant law concerning the hiring and use of experts is likely to render ineffective assistance of counsel. With luck, few of us will manage as spectacular a failure as the attorney in Hinton v. Alabama, 134 S. Ct. 1081 (2014), who neglected to read the up-to-date Alabama fund­ing statute and operated under the mistaken belief that he could pay an expert no more than $1,000. The attorney hired a firearms expert who had graduated more than half a century previously—in civil engineering—and had to be helped by the state’s expert in operating a microscope at the state laboratory. That may have been unsurprising given the following fact that came out on cross-examination:

Prosecutor: Mr. [Expert], do you have some problem with your vision?
Expert: Why, yes.
Prosecutor: How many eyes do you have?
Expert: One.

Counsel was held to have been ineffective and the case was reversed. Hinton was subsequently released, after three decades on death row, when the prosecution dropped all charges against him. Abby Phillip, “Alabama inmate free after three decades on death row. How the case against him unraveled,” Washington Post, April 3, 2015.

Fortunately, the law concern funding for experts and investigators in a criminal case is not complicated. An indigent client is entitled to necessary expert assistance under Ake v. Oklahoma, 470 U.S. 68 (1985)(failure to provide indigent petitioner with psy­chiatric assistance to prepare his insanity defense and to assist in sentencing was a violation of due process). It is worth quot­ing the language of Ake to all judges every time, since Ake restates the “elementary principle” that every criminal defendant, indigent or otherwise, must have “a fair opportunity to present his defense.” Ake, 470 U.S. at 76. The Court spoke in terms of the “basic tools of an adequate defense” and the “raw materials integral to the building of an effective defense” in concluding that a defense expert may be such an element. The Court also emphasized that the accuracy of the jury’s determination, a substantial interest common to both parties, may be “dramatically enhanced” with the appointment of an expert. 470 U.S. at 83.

The right to assistance is not limited to mental health experts, but extends to any type of expert. Rey v. State, 897 S.W.2d 333, 338–39 (Tex. Crim. App. 1995). Rey reversed a capital murder conviction where the trial court had denied a defense request for a pathologist expert, holding that “the necessity for the appointment under Ake will depend upon whether the defendant has made a sufficient threshold showing of need for the expertise of [the specific type of expert] in that particular case.” Id. at 339. It is therefore necessary to ensure that your motion states what type of expert you are seeking to engage, how they will be useful in challenging the State’s case or putting forward a defense or mitigation evidence, and why their evidence will be important in the context of the case.

If you have time and are working with a cooperative expert, it can be very helpful to obtain an affidavit from the expert stating his/her background and qualifications, initial understanding of the case, and explaining what he/she would do, if hired. At a minimum, obtain an up-to-date copy of the expert’s C.V. and attach it to your motion, along with any other relevant materials such as police reports or medical records that help demonstrate why an expert is needed. If it is reasonably expected that the state will rely on expert testimony or opinions, then state as much in your motion for funding. Remind the judge that you are a lawyer, not a doctor, psychologist, pathologist, etc. As such, we, as lawyers, are not required to possess the expertise of any other profession and cannot be expected to do so. Upon an adequate showing of need, you are entitled to the assistance of your own defense expert, and should not be required to rely on the work of a “neutral” expert, let alone the State’s expert’s work. De Freece v. State, 848 S.W.2d 150 (Tex. Crim. App. 1993)(appellant was entitled to appointment of his own psychiatrist in order to assist in preparing and presenting insanity defense).

Even if you have been retained by your client—or their family members—it is possible to obtain funding for a necessary expert if the client has insufficient funds remaining to pay for a necessary expert. In fact, counsel may render ineffective assistance if they fail to move for expert assistance in such circumstances. See Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005)(reversing conviction where counsel had made economic decision, unsupported by strategic purpose, not to investigate or seek expert assistance, and failed to move for funding).

Expert and investigator funding requests are governed by Tex. Code Crim. Proc. Art. 26.05(d):

A counsel in a noncapital case, other than an attorney with a public defender’s office, appointed to represent a defendant under this code shall be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts. Expenses incurred with prior court approval shall be reimbursed in the same manner provided for capital cases by Articles 26.052(f) and (g), and expenses incurred without prior court approval shall be reimbursed in the manner provided for capital cases by Article 26.052(h).

Tex. Code Crim. Proc. Art. 26.052 (f)–(h) reads:

(f) Appointed counsel may file with the trial court a pretrial ex parte confidential request for advance payment of expenses to investigate potential defenses. The request for expenses must state:

(1) the type of investigation to be conducted;
(2) specific facts that suggest the investigation will re­sult in admissible evidence; and
(3) an itemized list of anticipated expenses for each investigation.4

(g) The court shall grant the request for advance payment of expenses in whole or in part if the request is reasonable. If the court denies in whole or in part the request for expenses, the court shall:

(1) state the reasons for the denial in writing;
(2) attach the denial to the confidential request; and
(3) submit the request and denial as a sealed exhibit to the record.

(h) Counsel may incur expenses without prior approval of the court. On presentation of a claim for reimbursement, the court shall order reimbursement of counsel for the expenses, if the expenses are reasonably necessary and reasonably incurred.

Thus, the law provides that your application for funding is confidential. Both your requests, and the trial court’s responses, should therefore be made ex parte under seal. This provides a rare opportunity—which must of course be within the boundaries of what is ethical—to give the trial court a sympathetic preview of your client’s case without the State having input or distracting the judge.

III. What They Don’t Teach You at Law School: Filing under Seal

Documents filed under seal in the court record are not available to the general public or your opposing counsel. No Texas statute or court rule that I have ever discovered explains the mechanics of filing under seal, and judging by some of the appellate records I have seen, many court clerks and trial attorneys do not grasp how to do it:

1) Make sure that every motion or proposed order that you file under seal bears language to the effect of: “Ex Parte Motion [Or Order] to Be Filed and Kept under Seal and Disclosed Only to the Trial Court and Counsel for Defendant. Disclosure to the Public or to the State of Texas is Prohibited.”
2) If filing under seal in a jurisdiction that still accepts pa-­ per filing, provide your motion and proposed order to the clerk, and make sure that you get a file stamped copy of what you file so that you have a full record of your own requests—not all clerks understand the process, and I have more than once had a case where ex parte filings were not recorded on the docket sheet, in accordance with Tex. Code Crim. Proc. Art. 33.07.
3) It is wise to write a cover letter to the clerk and file it in the public record indicating that you are filing something under seal that should be provided to your judge and no one else.
4) It is also a wise practice to provide the clerk with large envelopes to use when placing the sealed document in the case file, with a cover sheet securely taped to the front indicating the style of the case, the court, and that the contents are a document filed under seal (using the language above). I provide two envelopes—one for the Motion and one for the Order—and hole punch the tops to go into the court file, so that the clerk can file the doc­u­ments under seal with minimal effort.
5) In an electronic filing jurisdiction, check with the rele­vant clerk about the local procedure—the State’s electronic filing system does not seem to be set up to accommodate ex parte/sealed pleadings or orders. The usual methodology seems to be to “e-file” a cover sheet to in­di­cate that the filing is being made, and then to email the relevant documents to the clerk, or send them by U.S. mail or Fedex.5

IV. Working with Your Expert

When working with an expert, it is good practice to send them a detailed retainer letter, covering the following:

1) The purpose for which they have been hired, and what exactly their role is intended to be;6
2) The agreed/authorized fee, and what it does and does not cover (I had to admire the nerve of the expert who claimed that a public defender office I was working for should be liable for paying the taxes on his fee . . . !);
3) Make it clear that the expert must inform you if they appear likely to run over the agreed fee amount, and that you are not automatically agreeing to pay excess fees;
4) Explain if the expert is expected to testify or not, or whether you will need to move for additional hours of funding to cover that function;
5) Give clear deadlines for their work—e.g., date by which you need a report or when testimony is expected to be needed;
6) Even if the expert is experienced, explain the scope of the attorney-client privilege, and remind them that they are bound by it—i.e., no discussion of the case outside the defense team, or in locations which are not private, and no provision of documents to another expert, or anyone else, except with prior approval from the defense;
7) Explain, and list in an index, what materials you are pro­viding to them, and ask them not to destroy those materials, ever, without checking with the client’s legal representatives at that time. The purpose of the index—which should be supplemented if you provide additional materials—is to make sure that questions on cross-ex­am­ination about what materials were provided can be answered clearly and correctly, as well as to ensure you have a clear picture of what the expert has received;7 and
8) Explain whether you want a written report to be prepared. Even if you think you do, ask the expert to discuss their findings before they are committed to paper.

One of the most common things I have heard from experts—and which comes up time and again in ineffective assistance cases—is the failure of counsel to provide the expert with sufficient information to enable them to really do the best they can for the client. For example, if asking an expert to work on a case involving mental health issues, the expert cannot be expected to form a complete picture and make an accurate diagnosis without copious background material such as medical records and input from people who have known the client for a long time and can give accurate information about him/her, even if s/he cannot her/himself. Do not assume that an expert will ask you for additional material: They may similarly assume that you know what they need and have provided whatever you can.

Even if the subject matter that the expert has been hired to review seems esoteric, and one is tempted to just hand over to the expert and abdicate responsibility, it’s essential to acquire some familiarity with what the expert is doing in order to be able to make informed decisions. That need was demonstrated in Richey v. Bradshaw, 498 F.3d 344 (6th Cir. 2007), where trial counsel retained an arson expert late in the case and simply deferred to his conclusion, which agreed with the State’s experts without ques­tion. In reversing Richey’s conviction, which had kept him on death row for 21 years, because of counsel’s mishandling of the scientific evidence, the Court said:

[I]t is inconceivable that a reasonably competent attorney would have failed to know what his expert was doing to test the State arson conclusion, would have failed to work with the expert to understand the basics of the science involved, at least for purposes of cross-examining the State’s experts, and would have failed to inquire about why his expert agreed with the State. A lawyer cannot be deemed effective where he hires an expert consultant and then either willfully or negligently keeps himself in the dark about what that expert is doing, and what the basis for the expert’s opinion is. . . . The point is not that [counsel] had a duty to shop around for another expert who would refute the conclusions of [the defense expert] and the State’s experts. The point is that [counsel] had a duty to know enough to make a reasoned determination about whether he should abandon a possible defense based on his expert’s opinion. . .

Thus, one should aim for an informed dialog with the expert about the strengths and weaknesses on both sides of the case. That can include picking the expert’s brain about the state’s experts, discussion of the most effective ways to present their evidence, anticipation of difficult prosecution questions or potential for jury confusion.

It is also advisable to place your testifying experts under subpoena. That way, if they fail to show up at court for some reason, you are in a stronger position to argue that you have been diligent in trying to obtain their presence if you have to file a motion for a continuance, Tex. Code Crim. Proc. Art. 29.06. You can also argue that your client has been denied the right to compulsory process and a fair trial if the court will not issue an attachment and allow enough time for your expert to get to court.

V. Discovery

Under Tex. Code Crim. Proc. Art. 39.14 (b), if the State has made a request 30 days in advance of jury selection or the presentation of evidence in a non-jury trial, you must notify them of the name and address of any expert you intend to call. You should similarly make an early request for the state’s expert’s contact information. The notification to the other side of expert witnesses is a critical step, not only because failure to timely designate the experts called to testify may result in the exclusion of their testimony—see Osbourn v. State, 59 S.W.3d 809, 815 (Tex. App. – Austin 2001, aff’d after review on other grounds, 92 S.W.3d 531 (Tex. Crim. App. 2002)—but because “once a party designates a particular person as an expert that he may use as a witness at trial, that person is no longer a ‘consulting’ expert, he is a ‘testifying’ expert, and the opposing party, whether the State or the defendant, may seek further information from or about him for use at trial.” Pope v. State, 207 S.W.3d 352, 360 (Tex. Crim. App. 2006). The critical distinction between a “consulting” and a “testifying” expert is that a consulting expert assists the defense in developing strategies and theories, and “is protected by the work-product doctrine when that material reflects the expert’s thoughts regarding the strength and weaknesses of a defense theory.” Thus, the consulting expert’s mental impressions and opinions are not discoverable until and unless they are designated to testify, and unhelpful expert opinions can legitimately be withheld from the State.

VI. Admissibility of Expert Testimony

I’m going to leave the question of how best to present testimony from your expert, and how to cross-examine the State’s experts, for one of my trial-attorney colleagues to discuss some other time. However, before the jury gets to hear expert testimony, the trial court has to address the question of admissibility. The trial court is supposed to perform a “gatekeeper” role, and indeed must do so if requested. Daubert v. Merrell Dow Pharms., 509 U.S. 579, 596–97 (1993)(emphasizing that scientific evidence must be reliable and that trial court has responsibility to screen proposed evidence for reliability); Jordan v. State, 928 S.W.2d 550 (Tex. Crim. App. 1996)(trial court, in gatekeeper role, can weed out “junk science”). The trial court cannot be expected to act spontaneously, however, and normally one of the parties must start the ball rolling if they are to challenge their opponent’s evidence. In addition to preparing to challenge the state’s experts, defense counsel needs to be ready to meet the state’s challenges to defense witnesses. There are four separate rules of evidence that need to be considered, covering the expert’s qualifications, the reliability of their proposed evidence, the facts and data underpinning the expert’s opinion(s), and whether the evidence is relevant.

1) Qualification

As mentioned above, the proponent of the evidence bears the burden of proving that a witness is qualified pursuant to Tex. R. Evid. 104(a): “The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.” Consider asking the court to conduct any hearing on witness qualification outside the presence of the jury, Tex. R. Evid. 104(c), and to allow enough time for that hearing, perhaps by allowing the jury to arrive at court later in the morning, by scheduling hearings on witness qualification and admissibility of evidence for earlier in the day or on day earlier than trial.

Qualifying a witness necessitates proving that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the court that would qualify the expert to give an opinion on that particular subject. For example, in Vela, the defense wanted to use a sexual assault nurse examiner who, drawing on her general nursing experience, opined that no sexual assault had occurred. Her testimony was excluded, and the Court of Criminal Appeals subsequently affirmed, pointing out that the intermediate court of appeals had “made no meaningful inquiry into [the witness] qualifications in that specific area of expertise,” namely the physical indicia of rape. Id. at 133. The Court emphasized that “possessing knowledge and skill not possessed by people generally . . . does not in and of itself mean that such expertise will assist the trier of fact regarding the issue before the court.” Vela, 209 S.W.3d at 131 n. 12, quoting Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996).

So, be prepared to articulate precisely to the court, if your expert is challenged, why she or he satisfies the Rule 104(a) standard. Likewise, consider challenging a prosecution expert who appears not to have sufficiently specific knowledge to give the proposed testimony.

2) Relevance

As with all evidence, the proponent must be able to prove that proposed expert testimony tends “to make a fact more or less probable than it would be without the evidence,” and that the fact in question is “is of consequence in determining the action.” Tex. R. Evid. 401. Very general background testimony that does not contribute to the jury’s understanding of the specific facts of the case is therefore ripe for challenge.

3) Adequate Support for the Expert’s Opinion

One of the least-appreciated gifts given to defense attorneys is Tex. R. Evid. 705. Tex. R. Evid. 705(b) gives the right to a voir dire examination directed to the “underlying facts or data” upon which the expert’s opinion is based. Rule 705(c) further provides for the exclusion of the expert’s opinion if the underlying facts or data do not provide a sufficient basis for the expert’s opinion to be admissible under Tex. R. Evid. 702.

Affording a defendant the chance to voir dire the State’s expert witnesses gives defense counsel the opportunity to determine the foundation of the expert’s opinion without fear of eliciting damaging hearsay or other inadmissible evidence in the jury’s presence. Goss v. State, 826 S.W.2d 162, 168 (Tex. Crim. App. 1992). A Rule 705(b) hearing may also supply defense counsel “with sufficient ammunition to make a timely objection to the expert’s testimony on the ground that it lacks a sufficient basis for admissibility. Because Rule 705(b) is mandatory, a trial judge’s denial of a timely and proper motion for such hearing would constitute error.” Alba v. State, 905 S.W.2d 581, 588 (Tex. Crim. App. 1995).

Thus, if mounting a serious challenge to a state expert’s testimony, consider issuing a subpoena duces tecum to the state’s expert for production of the material they are relying on as a basis for their opinion. If they are likely to rely on past training, department manuals, statistical data, and so on, ask to receive those within sufficient time for you to review them and, ideally, consult with your own expert in order to establish reasons why the material does not support the expert’s opinion.8 Then demand the hearing, which is yours as of right under the rule, but please note that this is an area where it is necessary to be prepared to “drill down” and really engage with what the expert is saying in order to be able to explain to the trial court why the expert’s opinion is not sufficiently supported. All too often, appellate records reveal expert witnesses being questioned about the facts they are relying on and simply responding with conclusory answers—e.g., “I learned about that in my post-graduate training”—without being asked to explain further about the training in question, texts relied on, countervailing theories, and so on.

Additionally, if you are preparing to call an expert witness, it is necessary to be ready to meet a challenge by the State to your witness’ facts and data. Failure to do so can result in the testimony being excluded, as well as creating the risk of allegations of ineffective assistance of counsel. See, e.g., Ex parte Ard, No. AP-75,704, 2009 Tex. Crim. App. Unpub. LEXIS 181 (Tex. Crim. App. 2009), where trial counsel in a child sexual abuse case failed to elicit sufficient information from an expert on scientific theories concerning the implantation of false memories by repetition and suggestion, and “neither questioned [the expert] in front of the jury about the research supporting his tes­timony, nor offered any exhibits into evidence, despite the fact that [the expert] had brought to trial most of the articles and studies offered into evidence at the writ hearing.”

4) Reliability

The reliability of expert testimony is governed by Tex. R. Evid. 702, which states: “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s sci­entific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”

Discussing the requirement of “helpfulness” in Rule 702, the Court of Criminal Appeals, in Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), adopted three criteria for assessing the need for reliability of scientific evidence admitted under the rule: “(a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question.” Kelly then set out a further non-exclusive list of factors that could affect a trial court’s determination of reliability: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the experts testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question. Kelly, 824 S.W.2d at 573.

Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), later modified the Kelly criteria for assessing the reliability of expert testimony in cases involving “soft” sciences such as psychology—as opposed to, e.g., physics or chemistry: (1) whether the field of expertise is a legitimate one; (2) whether the subject matter of the expert’s testimony is within the scope of that field; and (3) whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field.

Given the close relationship between the subject matter of Rules 702 and 705, you should have little trouble persuading the trial court that it makes sense for you to have a hearing on the admissibility of the State’s expert testimony under both rules outside the presence of the jury, even though that hearing is mandatory only for Rule 705 inquiries.

When preparing to litigate the admissibility of expert testimony, decide which of the two approaches—Kelly or Nenno—applies in your case, and examine which of the three relevant criteria need to be attacked (if you are dealing with a State expert) or proved. An overly broad challenge that fails to home in on specific areas is unlikely to succeed. See, e.g., Coble v. State, 330 S.W.3d 253, 274, 279 (Tex. Crim. App. 2010)(only third prong of Nenno inquiry, whether Dr. Richard Coons’ methodology properly relied upon the accepted principles of forensic psychiatry, was at issue, and Court concluded “the prosecution did not satisfy its burden of showing the scientific reliability of Dr. Coon’s methodology for predicting future dangerousness”); compare Brewer v. State, No. AP 76,378; 2011 Tex. Crim. App. Unpub. LEXIS 888 *24 (Tex. Crim. App. 2011)(broad-based attack on all psychiatric and psychological testimony on future dangerousness did not preserve a contention that a particular methodology was unreliable).

If you can come up with some additional factor, beyond those articulated in Kelly, for the court to consider in deciding admissibility, you should feel free to do so. If your judge is reluctant to allow a challenge, or to rule evidence to be inadmissible because the expert is a “regular” in that court, bear in mind that as Coble confirmed, id. at 275 n. 56, expert testimony cannot be “grandfathered” in simply because courts have admitted testimony by the same witness in the past. See also Hernandez v. State, 116 S.W.3d 26, 30 (Tex. Crim. App. 2003).

Coble confirmed that it is the proponent of the evidence in question who has the burden of establishing its admissibility in every case, id. at 275–76, citing Hernandez v. State, 116 S.W.3d 26, 30 (Tex. Crim. App. 2003), and that burden is only satisfied by clear and convincing evidence that the testimony is sufficiently relevant and reliable to assist the jury. Id. at 279; Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). Remind the court of this heightened evidentiary standard, which should be used to exclude marginal expert testimony.

Don’t forget that the State can challenge the admissibility of your expert’s testimony, and that you and your expert need to be prepared to meet such a challenge. Get any experts that you are proposing to call to review the criteria they are likely to have to meet, and have them explain in detail and to your satisfaction how their testimony fulfills each of those criteria.

Finally, after conducting a Rule 702 or Rule 705 hearing, do not forget to make a full objection to the State’s expert’s reliability and testimony. Even if you filed a motion in order to obtain the hearing, and explained why the hearing was sought, error still needs to be preserved for appellate purposes. Brewer v. State, No. AP 76,378; 2011 Tex. Crim. App. Unpub. LEXIS 888 *24 (Tex. Crim. App. 2011); Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim. App. 2008).

Notes

1. Powell v. Texas, 492 U.S. 680 (1989); Powell v. Texas, 487 U.S. 1230 (1988).

2. To my knowledge, since the 2010 Coble opinion, Dr. Coons has never been called to testify in a capital case, and is now in retirement. He had testified in over 40 capital murder cases, and at least 14 of those defendants have been executed.

3. See also Edward Lazarus, Closed Chambers, Times Books 1998, pp. 49–73, for an account of the same case. It turned out that the “psychologist” only had a degree in music.

4. You may wish to include the fact that a trial court’s improper denial of funding for experts is a structural error which cannot be evaluated for harm and therefore requires reversal on appeal. Rey, 897 S.W.2d at 245.

5. The funding provisions in federal court are somewhat similar to those in state court. For those unfamiliar with the process in federal court, the Criminal Justice Act (CJA) Guidelines are invaluable, see http://www.uscourts.gov/rules-policies/judiciary-policies/criminal-justice-act-cja-guidelines (last accessed September 5, 2016), and the local CJA representative can also provide guidance. In federal court, 18 U.S.C.§ 3599 covers fees for expert and investigators for capital cases, and 18 U.S.C. § 3006(A) controls such matters in non-capital cases. And, as with state court, every federal court seems to have a slightly different regimen for filing sealed or ex parte documents using the PACER/ECF system, the details of which should be checked in advance.

6. Unless you are 100% sure that they are familiar with the law, send the expert a copy of any statute or relevant cases governing the relevant legal standards that their testimony is designed to meet—their testimony must, after all, be relevant to a question that the finder of fact has to answer.

7. I find it convenient to keep an “identical twin” of the file of material provided to the expert.

8. It should also be kept in mind that Crawford v. Washington, 541 U.S. 36, 68 (2004), forbids the State from introducing testimonial hearsay at trial unless the declarant testifies or the Confrontation Clause of the Sixth Amendment is otherwise sufficiently honored. Crawford therefore allows challenges to be made to expert testimony which relies on the substance of a non-testifying witnesses’ testimonial statements. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).

The Long Hot Summer—Dilley Style

Careful observers of the criminal justice scene in my part of the world note that Federal prosecutors file and pursue a lot more conspiracy prosecutions than do their State court counterparts. Many assume, I believe, that this is because conspiracy prosecutions require special investigative talents found only in the Justice Department and the various Federal investigative agencies.

“It ain’t so.”

A Texas prosecutor cannot convict anyone on the uncorroborated testimony of an accomplice; Federal prosecutors can. That’s the difference.

The rule followed in Federal Court allows a jury to convict solely on the testimony of a person who was himself a part of the criminal enterprise—if the jury believes the testimony. The jury is instructed that they should weigh such testimony very carefully, but they may believe it and base their verdict on the accomplice testimony alone. In a Texas court, on the other hand, the jury is instructed that it may not convict on the testimony of an accomplice, standing alone. They must find that there is other, additional evidence independent of the testimony of any accomplice that tends to connect the defendant to the commission of the offense.

The Federal court rule assumes that the jury will be able to sort it out, while the State rule emphasizes the fact that a good liar could not only shift his own blame to his associates, but could also involve entirely innocent persons for reasons of his own.

The Federal rule better enables the prosecutor to ferret out crime, while the State rule better protects innocent citizens from criminals who would implicate them in order to gain some advantage for themselves.

In another story published in the Voice for the Defense, a situation in which a murderer and the man who hired him to commit the murder were able to obtain substantial benefits to themselves by offering testimony implicating jail guards in the killing is described in detail. That case exemplifies what is wrong with the Federal rule, in my opinion.

The occasional case in which only an accomplice knows of a criminal’s complicity in a serious crime illustrates what’s wrong with the State rule.

The State rule ends up requiring better police work than the Federal one. The State law enforcement officer who wants to prosecute a criminal conspiracy must penetrate the circle of criminal confidants with a non-criminal witness who will not require corroboration. A DEA agent who can turn one member of a drug cartel, or an FBI agent who can turn one member of a computer fraud conspiracy or an interstate auto theft ring, can obtain indictments, and the U.S. Attorney can obtain convictions, on the testimony of that one witness. Moreover, once the prosecutor is able to prove that any overt act was committed in furtherance of the alleged conspiracy, all statements in furtherance of the conspiracy alleged to have been made by any member of the conspiracy become admissible against all other alleged conspirators, as an exception to the hearsay rule. (The overt act can be as simple as making a phone call, and need not in itself involve illegality.)

The State prosecutor—who must get past the threshold requirement of showing that there was a conspiracy and the defendant was part of it in order to take advantage of this rule—must do so with non-accomplice testimony.

I have dilated a bit on the subject of corroboration of accomplices so that you can more readily understand why a Texas peace officer would have done what my client did in the case I’m about to describe.

Without further ado, then, the story of Will Flowers.

Milt Musgrave spent some of the ’50s, virtually all of the ’60s, and a good portion of the ’70s in California prisons. I lost track of him after the trial I’m about to describe and can’t tell you how he spent his time since (though both of us could guess with a high degree of probable accuracy). He drifted into Dilley, Texas, a dusty little Texas town just south of San Antonio, one day in the late ’70s. He was headed to Mexico, but came up about 100 miles short because he ran out of bus fare.

He hung around Dilley looking for some sort of work. He made no bones about having just been paroled, and told everybody he just wanted to pick up a little money and get back on the bus as soon as possible.

Now, Dilley didn’t have any other parolees in residence, much less ones from California, so Milt became a focal point of every local conversation within two or three hours. Dilley had a three-man police force, and the Frio County Sheriff was up the road a piece in Pearsall, so the constable, Will Flowers, and his brother-in-law, the highway patrolman, played no small part in the maintenance of law and order in and around Dilley. Musgrave came to Will Flowers’ attention within an hour of his arrival.

A constable’s jurisdiction covers the same geographical area as a justice of the peace (usually no more than one quarter of a county), and his primary function is serving papers for proceedings in the justice court. He is a peace officer, however, and in areas like Dilley, where the policeman’s authority ends at the city limits and the deputy sheriff may be 30 minutes or more away, the constable plays a significant role in maintaining the peace.

Will Flowers had an abiding interest in law enforcement. Not only had he obtained a two-year degree in law enforcement studies at Uvalde Junior College; he now taught a course in that same curriculum. He took being a lawman very seriously. When he heard about Musgrave, he decided he’d better go have a talk with him, just to feel him out and see what he was up to. It couldn’t hurt.

Will didn’t wear a uniform, and his boots and Stetson wouldn’t have told Musgrave anything, since every other man in town was dressed pretty much the same way. It’s not hard to guess that his eyes must have been drawn to the six-pointed star Will displayed prominently on his shirt pocket. The two men looked each over carefully, mentally circling and sniffing like two dogs on first meeting.

Finally, Will spoke: “What brings you to Dilley? Anything I can do for you?”

Musgrave told him how he’d run out of bus fare and was just looking for temporary work to earn enough to catch the first available bus on to Mexico.

“I don’t mean to stay, officer. I’ll be on my way just as soon as I can find a few hours work and earn the money to keep traveling.”

What Will Flowers should have done was to buy Milt Musgrave a $2.00 hamburger and a $6.00 bus ticket to Piedras Negras, across the river from Eagle Pass. What he actually did was to help him find a two-bit job for the next day and a four-bit room for the night and then take him home for some home cooking.

At supper that night, Will’s Martha was a little peeved at him and more than a little afraid of Milt Musgrave, particularly when his entire conversation consisted of recounting his prison experiences over the last 20 years and more. She was shocked to learn that her “guest” had spent 21 of the previous 23 years as a guest of the California state prison system.

Will, for his part, was absolutely fascinated by Musgrave. That’s why he’d brought him home. He’d studied about guys like Milt Musgrave, of course, but he’d never had a chance to get to know one up close like this.

Musgrave was a magical storyteller, and kept both his hosts on the edge of their seats as he recounted his prison experiences all evening, until well past midnight.

By the time Will drove him into town (Will and Martha lived in a mobile home on a little acreage outside town), Milt and Will were talking about how wasted Milt’s life to that point had been, and how he’d really like to find a little place like Dilley to settle down and live a normal life.

The job Will found him lasted for several days, and on each of those days he picked up Musgrave and took him home to supper. Martha came not to mind, as Musgrave had a never-ending supply of stories, and both she and her husband had become interested in helping him turn his life around and become a productive citizen.

One evening while Martha was washing the dishes and the two men were alone, Musgrave (whose favorite pastime was saying things for the shock value) told Will that the local bank was just a little crackerbox, and that he, or any other experienced robber, could knock it over and get away clean. Will didn’t like even discussing the subject, and worried, fleetingly, that Musgrave might be considering doing just that. He just laughed it off, though, and changed the subject.

However, the subject came up again and again in their conversation over the next few days, and it became plain to Flowers that Musgrave actually wanted to rob the local bank. Musgrave mentioned knowing “some boys in Chicago” who could help rob that two-bit bank and be gone before sleepy little Dilley knew what hit her.

Musgrave would later testify in Federal Court that he began to believe that Will Flowers wanted to rob his hometown bank with the help of Musgrave, and that he found it scandalous (I’m not making this up) because the constable had a lovely wife and everything going for him.

To teach Will a lesson, he said, he contacted the FBI in San Antonio at that point. He explained the situation as he saw it, and it was agreed that he would tell the constable that his Chicago connection would be calling and they could talk about knocking over the bank.

Pursuant to that scheme, an FBI officer called Will Flowers on the phone, pretending to be “Chicago,” to see if he could get the young officer to make any incriminating statements on the telephone.

A simple code was devised and relayed through Musgrave, whereby language common to the local oil-and-gas industry could be used to discuss robbing the bank while ostensibly discussing drilling a well.

Two taped telephone conversations ensued, in each of which the young constable could be heard quite clearly discussing (via the prearranged code words) robbing the Dilley bank. The constable’s assigned duty was to start a brush fire south and west of town that would divert not only all law enforcement but virtually all able-bodied men in the area away from town during the robbery.

Chicago would go in and com­mit the actual robbery, while Musgrave manned the getaway car. They would drive north and east out of Dilley and meet up with Flowers on a dirt road and give him his share of the take.

In order to assure synchronization of efforts, the conspirators were to meet at a restaurant/motel outside Pearsall on the way to San Antonio. Flowers was instructed to bring a roll of electrical tape, which the robber would use to tie up the employees in the bank before making his getaway.

At the appointed hour on the selected day, something on the order of a dozen or so FBI agents and Captain John Wood of the Texas Rangers were hiding in vans outside the restaurant when Flowers drove up. Will parked in the agreed place and, trying to be nonchalant, waited for Musgrave and Chicago.

On a prearranged signal, Captain Wood, located in a van on Flowers’ blind side, lifted his lanky frame out of the van and quickly approached the driver’s side of Will’s car, drawing his .357 magnum just before reaching the driver’s door.

“You’re under arrest,” said Captain Wood. “Keep your hands in sight and step out of that car.”

“Wait a minute,”  said Constable Will Flowers. “This is my bust!”

There was a trial in Federal Court in San Antonio. He testified, and several local law enforcement officers confirmed his testimony that local officers just don’t think in terms of conspiracy prosecutions.

Will was going to follow Musgrave and Chicago to town and arrest them when Chicago entered the bank. The jury, thankfully, believed his testimony.

Several other things were almost as interesting as the trial itself. Captain Wood of the Rangers told us, for example, that in his entire career (which was a long and distinguished one), this was the only case in which he was involved that went to trial and resulted in a not guilty verdict. That says more than a little about the quality of his investigative work.

Immediately after the trial, an FBI agent who had been very much involved in putting the case together for the government and had personally taken custody of Will Flower’s service revolver when he was arrested, demonstrated a great deal of class when he walked up to Will outside the Federal courthouse, handed him his sidearm and holster, and said: “Here, officer. This belongs to you.”

The single most interesting moments came in cross-examination of Musgrave at the trial.

Will Flowers had originally approached Nick Rothe, a damned good criminal defense lawyer and my good friend, about representing him. Because Nick did not practice in Federal court at that time, he referred the client to me.

As a result, Musgrave knew his name, but not mine. He began calling Nick every time he was in his cups (Musgrave, not Nick, but that’s another story) to talk about the case. Nick, of course, taped the conversations.

We thus went to trial armed not only with the seven best words ever spoken by a defendant who had just been arrested, but with transcripts of a couple of hours of taped conversations with Milt Musgrave.

In those tapes, Musgrave claimed to have killed two men in the California penitentiary and beaten both raps by claiming to be a victim of psychomotor epilepsy and hence not responsible for his actions. He said he’d represented himself in court and was so quick a study that he had been called “brilliant in the courtroom.”

The tapes were entertaining, and demonstrated Musgrave at his most gregarious. Most entertaining from my perspective was the opportunity the transcripts gave me to ask 42 straight questions concerning devastatingly damaging admissions made by the witness—to which the witness’ unwavering response was “I have no present recollection.”

Defending Child Injury Cases

Introduction

Kid cases—whether they be allegations of physical or sexual abuse—are the hardest cases to defend. Jurors, understandably, come in with an inherent prejudice against our client and wanting to save the child. It is an uphill battle from the start. However, it’s not impossible to win child injury cases when you know what to get, how to get it, and how to use it.

I. The Law

A. Injury to a Child—PC 22.04

Injury to a child is codified in Section 22.04 of the Penal Code, which provides:

(a)   A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual:

(1) serious bodily injury;
(2) serious mental deficiency, impairment, or injury; or
(3) bodily injury.

It is an essential element of the felony offense of injury to a child that the child is “14 years of age or younger.” Lang v. State, 586 S.W.2d 532 (Tex. Crim. App. [Panel No. 2] 1979). The statute provides for different penalties depending on the applicable mens rea. As an additional matter, injury to a child is a result-oriented crime because the focus of the mens rea is on the result of the conduct, not the conduct itself. Banks v. State, 819 S.W.2d 676, 678 (Tex.App.—San Antonio 1991, pet. ref’d). “What matters is that the conduct (whatever it may be) is done with the required culpability to effect the result.Alvarado v. State, 704 S.W.2d 36, 39 (Tex.Crim.App.1985). The offense of injury to a child can also be the underlying felony for a felony murder indictment.

There are affirmative defenses embedded in the statute itself. Subsection (k) provides what is commonly referred to as the “Good Samaritan” defense:

That the act or omission consisted of:

(1)   Reasonable medical care occurring under the direction of or by a licensed physician; or
(2)   Emergency medical care administered in good faith and with reasonable care by a person not licensed in the healing arts.

The “Good Samaritan” defense is what is commonly referred to as a confession and avoidance or justification type of defense. The accused cannot deny the act or omission or the associated mental state in order to be entitled to this defense. See Shaw v. State, 243 S.W.3d 647 (Tex. Crim. App. 2007, reh’g denied) (holding that in order to obtain an instruction on the “Good Samaritan” defense embodied in Section 22.04(k) of the Penal Code, the appellant must show that the record contains evidence sufficient to support a rational finding—not that she lacked the requisite mental state necessary to commit the offense, but that she in fact harbored the requisite mental state but nevertheless engaged in the conduct under emergency circumstances, in good faith, and with reasonable care).

Subsection (l) provides a defense

(1)   That the act or omission was based on treatment in accordance with the tenets and practices of a recognized religious method of healing with a generally accepted record of efficacy;
(2)   For a person charged with an act of omission causing to a child . . . a condition described [herein].

Beggs v. State, 597 S.W.3d 375 (Tex. Crim. App. 1980)(involving mistake of fact defense), and Sparks v. State, 68 S.W.3d 6 (Tex.App.—Dallas 2001, pet. ref’d)(involving involuntarily conduct defense), are two cases that must be in every defense lawyer’s arsenal for child injury cases. Both are fact specific and should be read in their entirety. In Beggs, the testimony of the defendant, who assisted in giving the child a bath for punishment (according to the defendant, the child so hated to bathe that a normal bath was punishment), that she mistakenly believed the temperature, which scalded the child, was normal, was sufficient to entitle her to a defensive instruction on mistake of fact. In Sparks, the defendant’s testimony that injuries to his 10-month-old child occurred when he accidentally struck the child with his elbow after tripping and falling onto the child while walking across the floor of a very cluttered apartment supported an instruction on involuntary conduct.

B. Abandoning or Endangering a Child—PC 22.041

As with injury to a child, section 22.041 applies to children who are younger than 15 years of age. As the title to the statue sug­gests, there are two ways to commit an offense under 22.041:

(a) A person commits an offense if, having custody, care, or con­trol of a child younger than 15 years, he intentionally aban­dons the child in any place under cir­cum­­stances that expose the child to an unreasonable risk of harm.
(b) A person commits an offense if he in­­ten­tionally, knowingly, recklessly, or with crim­inal negligence, by act or omission, engages in con­duct that places a child younger than 15 years in im­mi­nent danger of death, bodily injury, or physical or mental impairment.

Two cases that are still good for the defense and worth having in the trial notebook for defending abandoning/endangering cases are Millslagle v. State, 81 S.W.3d 895 (Tex.App.—Austin 2002), and Garcia v. State, 367 S.W.3d 683 (Tex. Crim. App. 2012). Both are sufficiency cases, and both are must-reads. In Millslagle, the evidence was held to be insufficient to prove that the defendant placed his child in imminent danger of death, bod­ily injury, or physical or mental impairment when he left the child alone in the vehicle in order to ingest drugs in a nearby restaurant restroom. Similarly, the evidence was held to be insufficient in Garcia where when the police found the defendant she was sitting inside a car holding her child—who was wearing only a wet diaper in 58-degree weather, was shivering, and had blue lips—up against her body for warmth, the child did not cry until the police took the child from her, and the child did not exhibit any signs of pain or impairment.

The statute itself also has two affirmative defenses provided therein:

(g)   It is a defense to prosecution under subsection (c) that the act or omission enables the child to practice for or participate in an organized athletic event and that appropriate safety equipment and procedures are employed in the event.
(h)    It is an exception to the application of this section that the actor voluntarily delivered the child to a designated emergency infant care provider under Section 262.302, Family Code.

C. Leaving a Child Unattended in a Vehicle

Summertime in Texas often garners much media attention for leaving children unattended in vehicles. There are social media campaigns designed to raise awareness and prevent child deaths in hot cars. The unfortunate news stories seem endless. It is not surprising that there is a specific criminal offense called “Leaving a Child in a Vehicle.” What may be surprising, however, is that the offense is only a Class C misdemeanor offense.

(a)   A person commits an offense if he intentionally or knowingly leaves a child in a motor vehicle for longer than five minutes, knowing that the child is:

(1)   Younger than seven years of age; and
(2)   Not attended by an individual in the vehicle who is 14 years of age or older.

It is important to note that Section 22.10 is broader than abandoning/endangering a child because 22.10 does not require a special relationship between the accused and the child. It is equally important to note that the two statutes are not in pari materia. See Fernandez v. State, 269 S.W.3d 63 (Tex.App.—Texarkana 2008, no pet.).

D. Justifications

An important defense for injury to a child cases is contained in Section 9.61 of the Penal Code. While it is not an affirmative defense, it is a justification for the act. Section 9.61 that

(a)   The use of force, but not deadly force, against a child younger than 18 years is justified:

(1)   If the actor is the child’s parent or stepparent or is acting in loco parentis to the child; and
(2)   When and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.

(b)   For purposes of this section, “in loco parentis” includes grandparent and guardian, any person acting by, through, or under the direction of a court with jurisdiction over the child, and anyone who has express or implied consent of the parent or parents.

It should go without saying that this justification does not permit a teacher to use physical violence because a child is unable to perform, either academically or athletically, at a desired level of ability. See Hogenson v. Williams, 542 S.W.2d 456 (Tex.App.—Texarkana 1976, no pet.)

II. The Duty to Investigate

As criminal defense lawyers, we have an inherent duty to fully investigate every case no matter how bad or clear a case may ap­pear (and indeed may be). That duty is also required by case law, the American Bar Association, and the State Bar of Texas Guidelines. A proper pretrial investigation will help you develop your theory of the case and win, whether a win is a lesser included offense, lesser punishment, or an outright acquittal.

A. Case Law

The Court of Criminal Appeals has recognized the duty of counsel to fully investigate a case:

Counsel’s function is to make the adversarial testing process  work in the particular case. Accordingly, competent advice  requires that an attorney conduct independent legal and factual investigations sufficient to enable him to have a firm command of the case and relationship between the facts and each element of the offense.

Ex Parte Niswanger, 335 S.W.3d 611 (Tex. Crim. App. 2011) (citing Strickland v. Washington) [emphasis added].

Furthermore,

[C]ounsel also has a responsibility to seek out and interview potential witnesses and failure to do so is to be ineffective, if not incompetent, where the result is that any viable defense available to the accused is not advanced.

Ex Parte Lilly, 656 S.W.2d 490 (Tex. Crim. App. 1983) [emphasis added].

It is important to note that it is incumbent upon us to conduct our own independent investigation. This means not relying solely on the information provided in discovery from the State.

B. Guidelines

It should be no surprise that the national and state guidelines for the duties of criminal defense lawyers mirror what is required by case law on the subject. While these nation and state guidelines are not disciplinary rules nor black letter law, they provide a bench­mark for our performance. As such, we should all be aware of these guidelines. Furthermore, in addition to case law we can and should use these guidelines to our advantage when making requests of the court. For example, when requesting monies from the court for a defense investigator and/or defense expert, it is helpful to cite these guidelines. A court will be hard pressed to deny a reasonable request for such funding if case law and the following guidelines are cited in the request.

        a. American Bar Association

The duty to investigate is embodied in the American Bar Association Standards on Criminal Justice. Specifically,

Defense counsel should . . . explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to defense counsel of facts constituting guilt or the accused’s stated desire to plead guilty.

Section 4-4.1(a).

The last sentence of the standard is of particular importance. Regardless of how bad the case appears and/or what heinousness our client has confessed to, we still have an independent duty to investigate. After all, we are the line of defense. This becomes a delicate balance when a client is wanting to expedite his/her case. However, in child injury cases, where potential prison sentences are for life, clients are appreciative of a defense lawyer wanting to fully investigate on their behalf—not accepting every accusation at face value.

        b. State Bar of Texas

The State Bar Performance Guidelines for Non-Capital Criminal Defense Representation, which were adopted in January 2011, mirror those of the ABA and case law. “The Guidelines were drafted by the State Bar Committee on Legal Service to the Poor in Criminal Matters to encourage defense attorneys to perform to a high standard of representation and to promote professionalism in the representation of citizens accused of crime. They represent an effort to ‘hold the line’ for criminal defense practitioners against a host of financial and political pressures.” Blackburn and Marsh, “The New Performance Guidelines in Criminal Cases: A Step Forward for Texas Criminal Justice,” Texas Bar Journal, July 2011.

Guideline 4.1 specifically addresses pretrial investigations and, like the ABA guideline, states:

Counsel has a duty to conduct, or secure the resources to con­duct, an independent case review and investigation as promptly as possible. Counsel should, regardless of the client’s wish to admit guilt, determine whether the charges and disposition are factually and legally correct and inform the client of potential defenses to the charges. Counsel should explore all avenues leading to facts relevant both to the merits and to the penalty in the event of conviction. In no case should counsel delay a punishment phase investigation based on the belief that the client will be found not guilty or that the charges against the client will otherwise be dismissed.

Guideline 4.1 specifically recognizes ten areas that defense counsel should investigate in order to effectively fulfill our role:

1.   Charging documents, statues & case law
2.   Client
3.   Potential witnesses
4.   Police & prosecution
5.   Courts
6.   Information from third parties
7.   Physical evidence
8.   The scene
9.   Expert assistance
10.  Mental health records

The good news is that these are all areas that we have probably already been investigating, perhaps even automatically and without realizing they are suggested.

III. What You Need and How to Get It for Child Injury Cases

While it is important to fully investigate each of the above areas in every case, it is of utmost importance in child injury cases. Further, in child injury cases, there are specific witnesses to speak to and specific records that must to be obtained in order to be an effective advocate.

A. The Story

In a child injury case, the first thing defense counsel should do is interview the client and get the story.

As an initial matter, it is important to understand who the client is and what the client has likely been experiencing before your first meeting. Often, the client is either the parent or a care­giver—a person who loves and cares for the child. And often, it is the client who has called 911 for help. The client usually goes to the hospital or emergency room behind the ambulance in a panic, only to be prohibited from seeing the child. The concern at this point is only for the welfare of the child. Then, the client is told by doctors or medical staff that the child has been abused. The client is met by law enforcement detectives and CPS investigators, who immediately and unrelentingly place blame for the child’s injuries squarely on the client, who most of the time was the last person with the child. The client is told that the doctors and professionals know it is abuse. The client, not being a medical professional, often begins to believe that he/she must have done something to have caused the injury. Then, of course, the client is arrested. It is at this point that the criminal defense lawyer enters the narrative, and in this state the defense lawyer receives the client. Be sure to appreciate the gravity of what your client has just been through.

When you talk to your client, find out who the witnesses are. Begin a timeline. Regardless of what admissions your client may have already made to law enforcement or others, we still have a duty to get the full story from the client. Oftentimes, you will find that the client felt like he/she had to tell police, doctors, CPS something specific regardless of its veracity. For instance, if police, medical personnel, and CPS are all insistent that the client “shook” the baby, the client may unknowingly adopt that terminology in spite of the fact that he/she actually bounced the baby in attempt to calm.

This scenario occurs with some degree of regularity, and it makes sense. It is typically a parent or caregiver who is the accused. It is typically a panicked situation where the parent or caregiver is very emotional and worried about the state of the child. The first thing on the parent’s mind is the child, not how to answer interrogation questions. Therefore, in child injury cases it is not uncommon to have what the State will often call a “confession” though in reality it is hardly such.

Notice and make note of how your client emotes when telling the story. In all likelihood, you are not the first person he/she has talked to about what happened, as previously discussed. If your client is sincerely emotional when telling you what happened, it is a safe bet that he/she was sincerely emotional when talking to the doctors, police, and CPS. In child injury cases, your client’s emotional state at the time of the incident will be a factor—and likely a major factor—at trial.

Getting the story from your client will also help you develop a list of witnesses. It is important to get the full story from your client, not just what happened in the minutes preceding the 911 call. Who had been with or seen the child earlier that day? In the days before? In all probability, law enforcement and CPS will not have talked to all of the important witnesses in the case.

B. Medical Records

The importance of obtaining all of the medical records in a child injury case simply cannot be understated. This is an area where it is especially important to do your own independent in­ves­ti­ga­tion. Regardless of whether the State has provided you with the child’s medical records, still obtain them on your own. The State just has what the hospital or doctor’s office has given to them. There are two options to obtaining the medical records: 1) subpoena duces tecum, or 2) through the child’s parent. In any event, be certain to get an original business records affidavit along with the medical records.

In your request be sure to ask for all nurses’ and doctors’ notes as well as all dictated and electronic medical records. Often, you will find that you will get more records than the State has been provided. That always makes for an interesting argument to the court when the State seeks to admit the medical rec­ords of a particular child by affidavit, especially a deceased child for which there would be no possibility of follow-up or aftercare records. Remember, trustworthiness is the touchstone of admitting business records by affidavit, and if there is something inherently untrustworthy about the records or the way they were compiled, then you have a good argument as to why the records should not be admitted.

Additionally, in child injury cases it is important to get all of the child’s medical records, not just the records from the injury. This is especially true if the child is an infant. In that case you need prenatal records, birth records, and both well and sick visit records. Ordinarily, there is some golden nugget hidden in these records. Do not depend on the State to get these records, and do not wait until your case is set for trial to get these records. These records must be obtained early on for optimal use.

Call the hospital, doctor’s office, or medical examiner’s office before you request the records. Find out in what format the records are kept. Find out if the records need to be requested from multiple departments. For instance, if the child had imaging done, then a separate subpoena may need to be served on the radiology records department.

In child death cases you must know which records to request from the medical examiner’s office. Again, do not depend on the State to provide these records to you. That simply cannot be overstated. Request the autopsy report via subpoena or through a public information act request. To that end, be aware of Article 49.25 of the Code of Criminal Procedure, which provides that

[t]he full report and detailed findings of [an autopsy performed by the medical examiner] shall be part of the record . . . [and t]he records may not be withheld, subject to discretionary exception under Chapter 552 Government Code [emphasis added].

Additionally, under Garcia v. State, 868 S.W.2d 337 (Tex. Crim. App. 1993), Denoso v. State, 156 S.W.3d 166 (Tex. App.—Corpus Christi 2005), and Texas Attorney General Opinion OR-2001845, an autopsy report is a public record. It is helpful to include the aforementioned references in your request for the autopsy.

In addition to the autopsy report, also subpoena all of the autopsy photographs, the medical examiner investigator’s report, and all toxicology reports. The photographs will either come in full color photographs, digital images, or both.

Perhaps most importantly, be aware that the biological sam­ples taken at autopsy are retained for a relatively short period of time before they are purged. It is good practice to request that all of the samples taken be preserved so that your expert can review the same or perform additional testing if need be.

As a practice point, it is worth noting that oftentimes many doctors contribute to a final autopsy report. This can create a con­frontation issue if only one of the doctors appears at trial. For instance, once the eyes are removed they may be sent to an ophthalmologist for evaluation, and he in turn would write a report. In that instance, it is likely that the ophthalmologist’s report regarding the eyes has been cut and pasted into the final autopsy under the appropriate heading. If you suspect this is the case, then make the proper confrontation objections at trial if the ophthalmologist is not present to testify.

C. Evidence

Always, always go and inspect the physical evidence. Pictures of the evidence provided by the State will not suffice. You must see and inspect the physical evidence in person before trial. You have to see, in person, what the jury will be seeing. Take your investigator with you when you go see the evidence. Be sure to document what you see.

In the same vein, always, always go to the scene. It is not sufficient to view the location on a computer program. Go there. And go during the same time of day when the incident was alleged to have happened. Stand where your client stood. Take note of the smells, the sounds, the sights. How far is the scene from the nearest help? Is there anyone nearby who could have seen or heard what happened? Have your investigator take pictures.

D. Mitigation

In any case, it is too late to think about punishment once trial has begun, and it is certainly too late to think about it after a one-word verdict. Early mitigation and preparation for any po­te­ntial punishment trial or hearing is absolutely necessary. After all, as criminal defense lawyers, we know that a success isn’t always a “not guilty” verdict. Sometimes it may mean probation or a tolerable prison sentence.

This is especially true when it comes to child injury cases. Begin thinking about mitigation as soon as you get the case. We have an ethical and legal duty to conduct a thorough investigation when it comes to punishment. See Williams v. Taylor, 120 S.Ct. 1495 (2000); Wiggins v. Smith, 539 U.S. 510 (2003)(decision of counsel not to expand investigation of petitioner’s life history for mitigating evidence beyond presentence investigation report and department of social services records fell short of prevailing professional standards and prejudiced petitioner); ABA 4-4.1(a); SBOT Performance Guidelines for Non-Capital Criminal Defense Representation 4.1. To be successful in a punishment trial, we have to convince a jury that neither they nor the community have to be scared of our client.

Set the stage for your client early on. Help your client understand what a trial is like in a child injury case. Potential jurors walk into jury service believing that injury to a child is one of the worst, if not the worst, crime imaginable. The subject matter alone provokes revulsion and repugnance. That revulsion and re­pugnance is bound to be reflected in the ultimate punishment absent compelling intercession from us.

In child injury cases, the relationship between the accused and the child matters hugely in relation to the alleged incident. Was this a parent who had always been an active part of the child’s life? Who was excited about the pregnancy? Attended the child’s school events? Find witnesses who can tell you about the relationship between the accused and the child. Get pictures of the accused and the child together to use during trial. If you can paint a picture of a loving parent or caregiver from the beginning, then it will be a harder sell for the State to convince a group of 12 that the act was intentional or knowing or that the injury was even caused by the parent or caregiver.

E. Experts

You cannot go to trial defending a child injury case without the assistance of an expert. These cases center on expert testimony. That is not to say that your expert will necessarily testify or that your case will wind up in a jury trial. At a base level, you need an expert to help you understand the medical records so you can counsel your client to make intelligent and informed decisions about his case. Lawyers are not doctors nor should we be expected to be. There is always at least something helpful in the medical records.

With that said, do not rely solely on the expert. Do as much reading and research into the specific medical issue as possible. Get a library card from a medical school library. Check out books. Check out the books and articles written by the State’s expert. Know what the publications say; there is likely something helpful from the defense perspective. Take the books to trial. Know the applicable medical jargon. Know the differential diagnoses. Know what is normal and what is not normal for the specific medical finding(s) in the case. Know enough to know what does not seem right about the State’s theory. If we, as defense lawyers, are unable to explain the medical findings in a common sense way to the jury, then we will certainly lose to the State’s expert explanation every time. A defense expert can certainly help explain and point us in the right direction.

In order to get optimal use out of your expert, the expert needs the benefit of all of the medical records. It is good practice to always send the whole case file to the expert so that you can receive a credible opinion and your expert will not be blindsided. The expert has to know the worst thing about the case.

If you are retained and your client subsequently runs out of money to hire an expert, it is incumbent upon you to petition the court for funding. Failing to do so has been determined to be ineffective assistance. Ex Parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005)(injury to a child case).

Always request pretrial expert hearings to test the experts’ qualifications and basis of knowledge and to find out what ultimate opinions they plan on offering. Never assume that the expert is qualified. As a practice point, if you are afforded a pretrial qualification hearing as opposed to a hearing outside the presence of the jury, then request a transcript of the hearing prior to trial for use during trial. Always request a pretrial qualification hearing in child injury cases, as the medical testimony is key and there are typically several experts. The basis for your request is one of judicial efficacy—there is no need for the jury to go back and forth over and over in the middle of trial versus having a day of qualifications hearings prior to trial. As further basis for this request, consider that you will not be able to be as effective if forced to do the expert hearing midtrial.

IV. Putting It All Together

So you know the law, have a pile of medical records, a list of witnesses, and pictures of the accused and child now. You have the information. You have knowledge. What do you do with all of this information once it’s been organized? You tell your story. In your voice. Your way.

In order to successfully defend child injury cases, we must know every aspect of the case better than the State. That means getting all of the aforementioned information, then processing and understanding it. That means a significant investment of time for every case. That investment of time naturally evolves into a passion. And in the end, that knowledge and passion translates to credibility with the jury.

V. Conclusion

Child injury cases are the most challenging and time consuming cases. They are some of the most daunting. But when you know what to get, how to get it, and how to use it, you will be in the best position possible to be successful in your defense.

Ethical Problems with Giving Free Legal Advice

Q: Hey, are you really a lawyer? Can I ask you a couple of questions?

How many times have we been approached by someone with those questions? Is this person now a client or just a minor irritation? Do we have ethical obligations in that situation? What are they? Are we going to get sued?1 Whether it is for a friend or for a stranger, giving someone off-the-cuff advice can have consequences.

Q: Is there even an attorney client relationship?

The Texas Disciplinary Rule of Professional Conduct (The Rules) 1.182 and its comments define when an attorney-client relationship exists and outline the resulting duties. “A person who consults with a lawyer about the possibility of forming a cli­ent lawyer relationship with respect to a matter is a prospective client.” Rule 1.18(a). Duties are owed whether it is a prospective or an actual client.

The legal relationship of attorney and client is purely contractual. It may be implied from the conduct of the parties if the parties explicitly or by their conduct manifest an intention to create the attorney-client relationship. Parker v. Carnahan, 772 S. W. 2d 151, 156 (Tex.App.—Texarkana 1989, writ denied). An attorney can be negligent in failing to advise that he is not representing someone where the circumstances lead that party to believe that the attorney is representing them. In the Parker case, a client’s wife signed documents in a lawyer’s office and therefore assumed that he was representing her and sued him. Parker v. Carnahan at p. 157. That lawsuit might have been avoided if the attorney had specifically told his client’s wife that he did not represent her.

If there is a written agreement specifying that the parties entered into a business deal rather than an attorney-client relationship, it is not dispositive. Rosas v. Commission for Lawyer Discipline, 335 S. W. 3d 311, 317 (Tex.App.—San Antonio 2010, no pet.). Mr. Rosas, the attorney in the above case, had such an agreement yet an attorney-client relationship was found due to the actions he had taken—filing documents and scheduling a hearing.

Whether an attorney-client relationship is created or not is based on objective standards of what the parties said and did and not on their alleged subjective states of mind. Actions and words are examined, as well as the circumstances at the time in question. Terrell v. State, 891 S. W. 2d 307, 313–314 (Tex.App.—El Paso 1994, pet. ref’d). The relationship of attorney and client is not dependent upon the payment of a fee, nor upon the execution of a formal contract. E. F. Hutton v. Brown, 305 F. Supp. 371, 388 (S.D. Tex. 1969).

An implied attorney-client relationship can be established by a request for representation, an engagement or confidentiality agreement, an expression of a belief by the purported client that the individual was acting as his attorney, an agreement or assurances that conversations were privileged or confidential, and/or the provision of legal advice. In re Baytown Nissan, 451 S. W. 3d 140 (Tex.App.—Houston [1st Dist.] 2014.

A: If no legal advice was ever given that indicates there was no attorney-client relationship.

Kiger v. Balestri, 376 S. W. 3d 287, 295 (Tex.App.—Dallas 2012, pet. denied). A client may have more than one lawyer, so the fact that the client already has a lawyer does not defeat the existence of an attorney-client relationship with another attorney. For example, an attorney-client relationship might be established by a friend asking you for a second opinion about his case.

Q: What are the dangers of establishing an attorney-client relationship?

There is a huge amount of litigation on the issue of whether an attorney-client relationship exists. These cases arise in the context of an attorney defending against: a grievance, a legal malpractice claim, an ineffective assistance of counsel writ, and deceptive trade actions. It takes very little for an attorney who gives legal advice to become a defendant. Sometimes the lawyer wins these cases, and sometimes it is the individual who believes he is a client.

Q: What duties arise from an attorney-client relationship?

Once the attorney-client relationship is established, a lawyer owes numerous duties to the client. Ethically the most important are these:

  • To use utmost good faith in dealings with the client;
  • To maintain the confidences of the client; and
  • To use reasonable care in rendering professional services to the client.3

A) Attorney-client privilege

Any client may refuse to allow disclosure of confidential communications. Tex. R. Crim. Evid. 503 (b) A communication is confidential if it is not intended to be disclosed. This privilege belongs to the client, and only the client can waive it. Carmona v. State, 947 S. W. 2d 661, 663 (Tex.App.—Austin 1997, no pet.)

Rule 1.054 protects the client from disclosure by the attorney of both privileged and unprivileged information. This includes all information relating to a client, or furnished by the client, or acquired by the lawyer during the course of or by reason of the representation of the client. The general rule is that an attorney may not reveal this information. This rule extends to former clients. Rule 1.05 (a), (b). Breaching confidentiality can and has resulted in litigation.

A: Narrow exceptions to the attorney-client privilege

There is an exception to the attorney-client privilege if the services of the lawyer were sought or obtained to enable anyone to commit or plan to commit a crime or fraud. Tex. R. Crim. Evid. 503 (d)(1) “[A] continuing or future crime is not enough; the attorney’s services must be sought or obtained to enable or aid the commission of the crime.” Henderson v. State, 962 S. W. 2d 544, 552 (Tex.Crim.App. 1997).

The lawyer may (but is not required to) reveal confidential information to the detriment of the client when the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a fraudulent or criminal act. Of course, the lawyer may also reveal confidential information to defend himself in a dispute with the client, or when the client consents, or when it is necessary to do so to represent the client (implied authorization), or to clean up a criminal or fraudulent act the client used the lawyer’s services to commit. Rule 1.05(c), (1–8) (d) (1–2).

The lawyer shall reveal confidential information when that confidential information clearly establishes that the client is likely to commit a criminal or fraudulent act that is likely to result in death or serious bodily harm to a person—but only to the extent revelation reasonably appears necessary to prevent the client from committing the criminal or fraudulent act. The Rule 1.05(e).

The comment to this rule reminds us how extremely limited that duty is. This is because the proper functioning of the legal system depends upon the preservation of the attorney-client priv­i­lege. There is a balancing test: that of potential victims against the client’s need to be truthful with the attorney so that the attorney can counsel against the wrongful action. “When the threatened injury is grave the lawyer’s interest in preventing the harm may be more compelling than the interest in preserving the confidentiality of the information.” Henderson v. State, 962 S. W. 2d 544, 554–555 (Tex.Crim.App. 1997). The Henderson court reminds us that the ethical rules require maintaining confidentiality as to past activities.

The grave circumstances requiring disclosure detailed in Henderson are defined by example: a kidnap victim who is tied up, still alive, but will die unless the location is revealed quickly—and the lawyer and the client are the only ones with that information. Henderson at p. 556. The comment to the Model Rules of Professional Conduct gives an example of a client who has discharged toxic waste into the town’s water supply, and the lawyer’s disclosure is necessary to prevent a present and substantial risk that those who drink the water will contract a life-threatening and debilitating disease.5 Texas adopted the Model Rules in 1989.

Disclosing a statement given by a client to the attorney in confidence is deceitful and fraudulent. It also has been treated as a tortuous breach of duty. Damages for mental suffering can be appropriate because this is an invasion of privacy. Perez v. Kirk & Carrigan, 822 S. W. 2d 261, 266–267 (Tex.App.—Corpus Christi 1991, pet. denied).

A: Attorney-client privilege not applicable

Attorneys may release information and even testify against the client when no communication is involved—i.e., when the information is the result of the attorney’s observations. For example, information may be disclosed as to the following: the client’s location, the fact that the lawyer did not forge the client’s name on a document or that that the attorney was not the client’s bondsman, the attorney’s presence during a lineup, and information about the preparation of affidavits. An attorney’s communication to the client of a trial setting is not subject to the attorney-client privilege. Austin v. State, 934 S. W. 2d 672 (Tex.Crim.App. 1996).

B) Conflict of interest

The ethical duty to avoid conflicts of interest with one’s client is most commonly breached in criminal law by the representation of co-defendants.

Rule 1.06(a)6 dictates that a lawyer shall not represent opposing parties to the same litigation on a substantially related matter in which interests are materially and directly adverse. The comment to this rule explains that loyalty is an essential element in the lawyer’s relationship to the client. “Directly adverse” is defined as “if the lawyer’s independent judgment on behalf of a client or the lawyer’s ability or willingness to consider, recommend or carry out a course of action will be or is reasonably likely to be adversely affected by the lawyer’s responsibilities to the other client.” State Bar of Texas v. Dolenz, 3 S.W.3d 260, 270–272 (Tex.App.—Dallas 1999, no pet.).

Client’s consent as an affirmative defense to a conflict

Of course a client can waive the conflict and consent to his attorney’s representation. That can provide a defense to the attorney in grievance proceedings or in defending against a writ. But this defense puts the burden on the attorney to prove: that the attorney reasonably believed the representation of each client (usually co-defendants) would not be materially affected, that there was full disclosure of all relevant facts to each client, and that the client(s) consented. It is a heavy burden the attorney bears to demonstrate that all relevant facts relating to the conflict were disclosed and explained to the client. An attorney breaches an ethical duty to his clients when he represents co-defendants and fails to advise each of them of even a potential conflict of interest. Ex parte Acosta, 672 S. W. 2d 470 (Tex.Crim.App. 1984) In the Acosta case the conflict did not become apparent until the middle of a contested hearing. The attorney was faulted for representing co-defendants and not advising them that a conflict might arise in the future.

C) Competent advice

Rule 2.01 states that “[i]n advising or otherwise representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”

A client is entitled to straightforward advice expressing the lawyer’s honest assessment . . . [A] lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.7

This means that one has to put one’s “people pleasing” traits aside when giving advice and tell the potential client things like “I understand the complainant shot off his mouth and that you felt he needed to be hit, but ‘needing to be hit’ does not actually provide a legal defense.” This can be hard to do in a social setting.

D) Neglect

Rule 1.018 provides that a lawyer shall not accept or continue employment in a legal matter which the lawyer either knows or should know is beyond that lawyer’s competence (un­less the lawyer gets help). Furthermore, attorneys shall not ne­glect a legal matter entrusted to them or fail to carry out obligations owed to the client. Rule 1.15(d)9 provides that upon termination of representation that the lawyer shall continue to protect the client’s interests.

Once an attorney-client relationship is established, an at­tor­ney cannot neglect his client’s defense by failing to give advice upon request, failing to appear for hearings, or failing to represent the client. Hawkins v. Commission for Lawyer Discipline, 988 S.W.2d 927, 937 (Tex.App.—El Paso 1999, pet. denied). Mr. Hawkins was an attorney who did not believe that he represented the client in question. He was a probate lawyer who was court-appointed on a criminal case and believed he was required to with­draw because he was not competent to handle the case. Unfortunately, he chose to quit working on the case once his motion to withdraw was denied by the trial court. He was also grieved and disciplined.

Each attorney is held to the standard of care that would be exercised by a reasonably prudent attorney—an objective ex­ercise of professional judgment, not a subjective belief that his acts are in good faith. If an attorney’s decision is that which a rea­sonably prudent attorney could make in the same or similar circumstances, there is no negligence even if an undesirable result occurs.

E) Fees

Rule 1.04 (a) provides: “A lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or unconscionable fee. A fee is unconscionable if a reasonable lawyer could not form a reasonable belief that the fee is reasonable.”

F) Soliciting employment

Disbarment of an attorney for soliciting employment is not an abuse of discretion even if it is an isolated act. State Bar of Texas v. Kilpatrick, 874 S.W.2d 656 (Tex. 1994)

Conclusion

In a moment of weakness you tell one of your buddies from the gym he just might have a defense to that DWI case he picked up Christmas Eve. Maybe you go on and suggest that the compelled warrantless blood draw probably should get thrown out. If you actually give him advice, he might believe that you represent him. It is possible that the more advice given, the firmer that belief. Certain questions to ask yourself: Should you tell him that you do not represent him? Are you required to keep his secrets now? Can you still represent someone whose interests are adverse to his? Do you have a duty to make sure that you give him good advice and that you have all of the facts necessary to accomplish that? Will he expect you to show up to court? These might be questions to consider. Me, I tell people that I am just there to repair the copier.

Notes

1. The point of this article is to avoid a lawsuit that none of us can afford, not to win a lawsuit.

2. Duties to Prospective Clients.

3. Yaklin v. Glusing, Sharpe & Krueger, 875 S.W.2d 380, 383 (Tex.App.—Corpus Christi 1994, no writ.) ; Rule 1.18.

4. Confidentiality of Information.

5. Model Rules of Professional Conduct Comment on Rule 1.6 Confidentiality of Information.

6. Conflict of Interest: General Rule.

7. Comment to Texas Disciplinary Rule 2.01.

8. Competent and Diligent Representation.

9. Declining or Terminating Representation.

The Leming Opinion Is Not the Silver Bullet Prosecutors Claim

Safe Weaving Is No Basis for a Stop

Those familiar with criminal defense in the state of Texas have likely encountered the issue of weaving within the lane as a basis for a police stop. It’s been referred to numerous ways: “weaving within the lane,” “safe weaving,” “failure to maintain the lane,” etc. What it ultimately boils down to is someone being stopped by an officer for either weaving within the lane they are driving in, or maybe even slightly out of the lane, and subsequently being arrested for a DWI or some other offense. This is fertile ter­ri­tory for Motions to Suppress, as Texas case law has long stated that there needs to be some additional, unsafe element to justify a stop by law enforcement.

However, prosecutors across the state are now rejoicing with release of the Court of Criminal Appeals’ Leming opinion. This case is now being cited by prosecutors as the magic new case that makes suppression matters based on weaving within the lane a moot point, and a cursory glance at the opinion may suggest as much. But this opinion is hardly the super weapon that prosecutors think it is. The purpose of this article is to explore what has long been the practice of this state’s courts in dealing with these issues and interpreting the relevant statutes. It will also look to why the argument relied on by prosecutors based on the Leming opinion is, at best, persuasive dicta, and how to argue against it.

First, a brief discussion of the history of cases that have shaped how the defense approaches this issue is necessary. The statute controlling this matter is Texas Transportation Code Sec. 545.060, titled “Driving on Roadway Laned for Traffic.” In relevant part, it states:

(a)   An operator on a roadway divided into two or more clearly marked lanes for traffic:

(1)   shall drive as nearly as practical entirely within a single lane; and
(2)   may not move from the lane unless that movement can be made safely.

Courts have traditionally held that this means, in the event of a driver not maintaining their lane (weaving lightly outside of the lane, tires touching the lane dividers on either side, etc.), the “and” at the end of subsection (a)(1) makes subsection (a)(2) an additional requirement for there to be suspicion of any actual statutory violation. Therefore, something unsafe must accompany this weaving to justify a stop.

This has been illustrated in numerous cases. First, in State v. Tarvin, 972 S.W.2d 910 (Tex.App.—Waco 1998), a police officer stopped the Appellant after observing Appellant’s car drift two or three times to the right side of a two-lane road, causing his tires to go over the solid white line at the right-hand side of the road. The Court determined that mere weaving in one’s own lane of traffic can justify an investigatory stop only when that weaving is erratic, unsafe, or tends to indicate intoxication or other criminal activity. Since the Court found that there was nothing in the record to show that the officer there believed that to be the case, the stop was not justified. Id. at 912.

The same determination was made in Hernandez v. State, 983 S.W.2d 867 (Tex.App.—Austin 1998). In this case, the Court concluded that a single instance of crossing a lane dividing line by 18 to 24 inches into a lane of traffic traveling the same direction without showing the movement unsafe or dangerous does not give an officer a reasonable basis for suspecting that the defendant had committed a criminal traffic offense. Violations occur only when a vehicle failed to stay within its lane and the movement was not safe or was not made safely.

This can also be seen in State v. Cerney, 28 S.W.3d 796 (Tex.App.—Corpus Christi 2000), wherein the testimony established that Appellant was weaving somewhat within his own lane of traffic. There was no evidence that his actions were unsafe, and the court concluded the evidence did not support a finding that the trooper had a reasonable belief that the defendant had vio­lated Section 545.060 of the Transportation Code. Similar decisions were made in Ehrhart v. State, 9 S.W.3d 929 (Tex.App.—Beaumont 2000, no pet.), Eichler v. State, 117 S.W.3d 897 (Houston, 2003), State v. Palmer, 2005 SW3d LWC 1646 (Tex.App.—Fort Worth 2005), and Fowler v. State, 266 S.W.3d 498 (Tex. App.—Fort Worth 2008).

The Court of Criminal Appeals has looked at this issue regarding a Community Caretaking argument. In Corbin v. State, 85 S.W.3d 272 (Tex.Crim.App. 2002), the Court found that slow driving and crossing into another lane, or onto the shoulder, for a length of 20 feet is not enough to constitute a stop under the Community Caretaking doctrine. The Court found that it was not objectively reasonable for an officer to believe that the Appellant’s driving conduct showed them to be in need of assistance. In short, while many an arresting agency has undoubtedly used weaving within the lane as basis to pull citizens over, ample case law exists to have these stops and any subsequent evidence suppressed.

The Leming Opinion

Leming is the new plurality opinion released by the Court of Criminal Appeals on April 13, 2016 (PD-0072-15, 2016 WL 1458242). At the trial court level, appellant filed a Motion to Suppress the product of the traffic stop by which the offense was discovered. The motion was denied, and later appealed to the Texarkana Court of Appeals, where the trial court’s ruling was reversed in Leming v. State, 454 S.W.3d 78 (Tex.App.—Texarkana 2014). In this case, the established facts were that the arresting officer received a report from a dispatcher that a car was driving erratically. The officer was able to find the vehicle that the citizen was calling in about. Upon following the appellant’s vehicle, the officer observed the vehicle weaving back and forth, from almost touching the curb on the right and back to touching the lane dividing line on the left multiple times. The arresting officer also observed the Appellant driving 13 mph under the posted speed limit, and continuously decelerating further. The plurality opinion analyzed both the relevant statute and what constitutes reasonable suspicion for a stop under said statute—and whether the driving behavior presented in the case was, in and of itself, a reasonable basis for a stop.

The plurality opinion, written by Justice Yeary, joined by Justice Keller (justices Richardson and Meyers concurring), re-analyzes Texas Transportation Code Sec. 545.060. This analysis goes against the aforementioned history of Texas courts’ application of the statue. Primarily, the plurality determined that Texas Transportation Code Sec. 545.060(a)(1) and (2)’s conjunction “and” makes both of these subsections an independent basis for a police stop, not one that requires both a vehicle to weave within the lane and for there to be something fundamentally unsafe about it. Instead, the opinion determines that either of these can be a legal basis for a stop.

First and foremost, a four-judge plurality opinion is not binding, and has questionable precedential value. See Vernon v. State, 841 S.W.2d 407, 410 (Tex.Crim.App.1992). While concurring, Justice Alcala specifically does not concur with the section of the opinion about the interpretation of Texas Transportation Code Sec. 545.060. The dissenting justices Newell, Keasler, Johnson, and Hervey also obviously disagree with the plurality’s statutory interpretation. The dissent of Justice Keasler, which is joined by justices Johnson and Hervey, specifically points to the ridiculousness of interpreting the plain meaning of the word “and” to mean “or.” It additionally distinguishes the other statutes that the opinion of Justice Yeary relies on in the plurality interpretation of the statute. As stated for various reasons by a majority of the Court of Criminal Appeals, this heretofore unheard-of analysis of the statute is not sound, and should not be applied. Justice Newell’s dissent specifically agrees with Keas­ler’s regarding the interpretation of the statute.

Ultimately, a majority of the justices do not agree on this new interpretation of Texas Transportation Code Sec. 545.060, and defense attorneys should be articulating this early and often. The only thing that a majority of the Court may be agreeing on in this case is that failure to maintain the lane—when combined with a confirmed 911 call for erratic driving and driving 13 mph under the speed limit and continuing to decelerate—may be a reasonable cause for an officer to conduct a traffic stop. Fur­ther­more, as of the time of this writing the Leming opinion has not been released for publication in the permanent law re­ports, and while unlikely, it could be subject to revision or withdrawal until it is released. This plurality’s radical departure from established case law and statutory interpretation should not be applied unless or until a majority of the Court determines it should be. Indeed, there is a history of such opinions falling to the wayside in Texas jurisprudence.

The Autran Legacy

Precedent exists of ignoring the reasoning of a three-judge plurality opinion, and one need look no further than history of the Court of Criminal Appeals’ Autran decision for an excellent example. Regarding inventory searches, the Supreme Court of the United States has essentially determined that so long as reasonable police procedure is in place and there is no bad faith, inventory searches, even of closed containers, of a vehicle are allowed. See Colorado v. Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987), and Florida v. Wells, 495 U.S. 1, 110 S. Ct. 1632, 109 L.Ed. 2d (1990). States, however, may offer greater protections of their citizens’ rights than the constitutional minimums, and that is exactly what a plurality of the Court of Criminal Appeals purported to do in Autran v. State, 887 S.W.2d 31 (Tex.Crim.App. 1994).

This case involved a search of closed containers in the trunk of a van incident to arrest. The Appellants argued that while it is technically legal under case law regarding the Fourth Amendment, the Texas Constitution offers broader protections. After in-depth analysis of Texas’ Constitution Art I § 9, the Court held Texas offers broader protection. Specifically:

that art. I, § 9, provides a privacy interest in closed containers which is not overcome by the general policy considerations underlying an inventory. This holding is consistent with the comparable jurisprudence discussed in Part IV, D, of this opinion. Just as those courts found greater protection under their state constitutional provisions concerning searches and seizures, we hold art. I, § 9, provides greater protection than the Fourth Amendment in the context of inventories. The officers’ interest in the protection of appellant’s property, as well as the protection of themselves from danger and the agency from claims of theft, can be satisfied by recording the existence of and describing and/or photographing the closed or locked container. This is not to say that officers may never search a closed or locked container, only that the officers may not rely upon the inventory exception to conduct such a warrantless search. We refuse to presume the search of a closed container reasonable under art. I, § 9, simply because an officer followed established departmental policy.

Id. at 41–42.

However, this was a three-judge plurality opinion, with four of the judges concurring in three separate concurrences, and the presiding judge dissenting. This opinion was applied once, in State v. Lawson, 886 S.W.2d 554 (Tex.App.—Fort Worth 1994), in which the Fort Worth Court of Appeals decided to apply the Autran reasoning to inventory searches, specifically stating: “As an intermediate appellate court, we follow the law as enunciated by the highest courts in this state. Accordingly, the State’s only point of error is overruled.” Id. at 556. However, numerous other appellate cases followed that chose not to apply Autran. In Madison v. State, 922 S.W.2d 610 (Tex.App.—Texarkana 1996), the Court refused to recognize Autran as binding precedent. Furthermore, in Hatcher v State, 916 S.W.2d 643 (Tex.App.—Texarkana 1996), the same court chose to expressly ignore Autran as binding precedent due to its being a plurality opinion. The Texarkana Court of Appeals specifically pointed to other opinions since made that failed to recognize or mention Autran, though it was relevant, and called the plurality opinion “unsound law.”

The Dallas Court of Appeals summed up the issues well in Trullijo v. State, 952 S.W.2d 879 (Tex.App.—Dallas 1997), where it discussed the split between the Fort Worth and Texarkana Court of Appeals application of Autran. The Dallas Court also discussed the fact that a three-judge plurality is not binding precedent—and the Court of Criminal Appeals’ refusal to provide a definitive answer on the issue in the face of conflicting decisions by two courts of appeals—and chose not to apply it either. Even the Fort Worth Court of Appeals later reversed its position in Lawson in Jurdi v. State, 980 S.W.2d 904 (Tex.App.—Fort Worth 1998).

The Takeway

While the Leming opinion creates a new challenge for defense attorneys, one should not allow the prosecution to characterize it as anything more than what it is, which is, at best, persuasive dicta. And with only three of the nine Justices of the Court of Criminal Appeals taking the stance that matters most here, even its persuasiveness is suspect.

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