Features - Page 2

Waco, McLennon County: But what a different country we could have created! What a more universally prosperous society we could have advanced. What a better existence for all our people could have been established. And here is how it could have happened.

In his original draft of the Declaration of Independence presented to the convention, Thomas Jefferson listed the King’s abuses. He saved the worst for last. I venture to say you never heard of it or were taught about it.

It said: “He has waged a cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him; captivating and carrying them into slavery in another hemisphere, or to incur miserable death in their transportation hither.”

At the insistence of South Carolina and Georgia, this Article condemning slavery was stricken.

For 246 years we have reaped the bitter harvest of this original sin of slavery. So let us resolve to breathe life into the Declaration and the Bill of Rights as we continue the great experiment called America. Ladies and gentlemen, our Declaration of Independence.

—David Bass

Bastrop, Bastrop County: I enjoy reading the Declaration of Independence in the Texas July heat in Bastrop, Texas. I meant to memorize the Declaration after reading each year. Maybe next year will be the time. Each July, reading at the courthouse is a reminder to me of how important our rights are. My only spectator this year, aside from an occasional passerby, was a silent robotic lawnmower. That does not make my reading experience any less significant to me. People are dying to get to our country and enjoy the opportunities that this document protects. Reading the Declaration of Independence aloud is a great way to honor it.

—Eric Toberson

Reading of Declaration of Independence Reminds Community of Freedoms

Harrison County: Defense lawyers performed the annual recitation of the Declaration of Independence on Friday for Harrison County community members.

“The Texas Criminal Defense Lawyers Association, which is the statewide criminal defense bar association, puts this on. I’ve read the Declaration probably almost 8 times,” said Kyle Dansby, a local criminal defense attorney, and coordinator of the celebration. “And even though you’ve read it multiple, multiple times, when you read certain parts of it, in particular the big bold language that we know about, it’s still important, it still affects me.”

This is the tenth year the Declaration of Independence has been read in downtown Marshall during the Fourth of July weekend.

Harrison County can count on its local defense attorneys to uphold citizens’ freedoms and honor the Declaration of Independence. This holiday event served as a reminder to the public of the responsibilities and rights that all Americans share. “I’ll still get a feeling, still a little chill because we deal with these things every single day,” Dansby said, “As defense attorneys, the reason we read the Declaration of Independence around the fourth of July is to remind the public that we are here actually helping to enforce those rights on behalf of people who are accused by the State of Texas of committing crimes.”

Bonnie and Bob of Marshall gave a declaration of their enjoyment of Dansby’s recitation, feeling especially proud of the complete and correct pronunciation of such difficult words as those found in the historical document. “He did a wonderful job. He pronounces every word perfectly and some of those words are really difficult,” Bonnie said, noting the solace defense attorney Dansby provided throughout the celebration.

—Sadiq King, The Marshall News Messenger

Coldspring, San Jacinto County: I read the Declaration of Independence this morning (July 1, 2022) in Coldspring, Texas—the seat of San Jacinto County. Rain threatened. One guy yelled at me in code. Could have been Ku Klux Klan, QAnon, or something else. We must keep carrying the light to the dark forests. It has been done before.

—Bobby Scott Maybry

Olney, Montana: After attending the (excellent) Lubbock County Declaration reading, I drove 24 hours, 1745 miles to northwest Montana with my dog Penny. On July 4th in Olney—human population 191—I read members. County community in front of the Ranger station as a few fascinated squirrels, deer, moose and bear watched. Then I was off to Polebridge, population 100. I could not take the short‑ cut across Red Mountain because snow still blocked the road, but I arrived in time for the Independence Day festivities. The guy in the parade wearing a pink tutu and huge man breasts got more attention than me reading the Declaration. Understandable, I suppose.

—Danny Hurley

Lockhart,  Caldwell County: There were eight of us in Lockhart today, representing three law offices. Our “lead” reader was 13‑year‑old Ethan Garza, son of my long‑time investigator, Joe Angel Garza. Although he got away before we were able to get a name or his agency, there was a “press” photographer taking photos. The only newspaper out there is the “Lockhart Post Register.” We have tipped them off in the past but, presuming this fellow is from that agency, this year was the first time they’ve ever appeared. We all gathered at Black’s for great barbeque following the reading.

—David Schulman

Brady, McCollough County: Daughter Lindsey Craig and grandson Rocky and I trekked south through the hinterlands to read the Declaration in Post, Sweetwater and Brady. It’s become a tradition. In 2016, we did the same thing in Big Spring, Gail and Garden City. The three of us have participated in Lubbock Criminal Defense Lawyers readings as well. Trust me, ten‑year‑old Rocky can tell you the true meaning of Independence Day better than 95 per cent of the population. What a wonderful patriotic family experience!

—Chuck Lanehart

Weatherford, Parker County: Tom Vick and Dan Carney report: Mission Accomplished. My granddaughter Ashtyn Carney Sweatt, Senior Texas A & M Executive Officer Squadron 23, stood alongside me. She has participated in years past as well. She intends to enter law school after graduating TAMU next spring. So Proud.

—Dan Carney

San Diego, CA: Today we read in San Diego. This year, we also commemorated Juneteenth by reading General Order 3, the order issued at Galveston, Texas that began Juneteenth. We read General Order 3 before we read the Declaration, acknowledging that the Declaration was an aspiration, a hope for the future. As was General Order 3. And we can acknowledge that the journey from the Declaration to General Order 3 continues on to today, and what we do as defense attorneys continues that quest to affirm that all people are created equal and equally de‑ serving of justice. That kept the ceremony to a short time frame (one of its beauties).

—Knut Johnson

Rockport, Aransas County: I read in the front entry of Aransas County’s makeshift lo‑ cation for court and other county offices. We lost the old court‑house in late August of 2017 (Hurricane Harvey). It is always a reminder of the hardships and sufferings that led our forefathers to break away from the rule of England. It is easy to forget.

—James E. Teague

Paint Rock, Concho County: The Concho County District Clerk, JP, and Sheriff ’s Deputy were more interested in the Revolutionary War rifled musket I brought than the reading! The court‑ house cat was missing this year, probably off on a trophy mouse hunt.

—Tip Hargrove

Declaration of Independence Reading to Happen Friday

June 28, 2022—The Texas Criminal Defense Lawyers Association announces that the United States Declaration of Independence will be read aloud on the front steps of the county courthouses of Texas counties prior to July 4, 2022.

In Shelby County, the Declaration will be read by local lawyers, Deck Jones, Jeff Adams, Stephen Shires and April Prince. The reading will take place at the main entrance to the historic Shelby County Courthouse at 1pm, Friday, July 1, 2022.

—Shelby County News

Cameron, Milam County: Unprompted, my intern Makenzie Mays set up pocket Constitution pamphlets on the prosecutor’s table. This was after of our TCDLA Declaration Celebration. Clearly, she has learned a few things this from fearful men.

The signers of the Declaration refused to be ruled by tyrannical kings and aristocrats and instead replaced them with servant representatives—and placed us in charge.

We are not descended from fearful men, so let us remember that our leaders are not kings—they are our servants and we must promptly rid ourselves of any representatives, at the local, State, and national level, who choose to act like rulers—rather than our humble servants. summer. (The State moved the pamphlets to an area for defendants.)

—Matthew Wright

Gilmer, Upsher County: This morning I read the Declaration of Independence within the cool confines of the Upshur County Commissioners Court meeting. The County Judge asked that we not do it outside as it was hot, so instead I performed my reading inside prior to the adjournment of the meeting.

My completion was greeted with a standing ovation, and I received many hearty handshakes (no laurels) during my exit from the Commissioners Courtroom, and departure from the building.

What an amazing experience! I suffered a few chills down my spine during my reading, as the words were so amazingly powerful.

I was also able to plug TCDLA and specifically the reading to be held in Gregg County during my interview with KLTV.

Happy Independence Day to all my fellow warriors.

—Brandon Winn

Childress, Childers County: Edward R . Murrow said, “We are not descended from fearful men.” The signers of the Declaration of Independence showed tremendous courage and bravery by signing a document that they knew could result in their deaths, but they signed anyway. They signed because liberty and honor are worth more than life and fortune.

Today we must remember that we are not descended from fearful men.

The signers of the Declaration refused to be ruled by tyrannical kings and aristocrats and instead replaced them with servant representatives—and placed us in charge. We are not descended from fearful men, so let us remember that our leaders are not kings—they are our servants and we must promptly rid ourselves of any representatives, at the local, State, and national level, who choose to act like rulers—rather than our humble servants.

Today, as we read the Declaration of Independence and the Bill of Rights, let the words wash over you as though you are hearing them for the first time. Really absorb them because this was a revolutionary document that led to a revolutionary war that led to this great nation. Because we are not descended from fearful men.

—Bethany S. Stephens

Grosebeck Limestone County: We had a HUGE crowd at the Groesbeck 4th of July parade in Limestone County. I was standing one block from the courthouse at the parade announcer’s stand. We had lots of support from the crowd. Seemed appropriate for this criminal defense attorney to pose in front of a police car. I tear up every time I start and end the reading. It’s just one of my favorite times of the year!

—Michelle Latray

Fort Worth, Tarrant County: The reading gives me goosebumps every year, such a moving experience. And I was honored to organize it this year.

—Emily LaChance

Local attorneys to read Declaration of Independence

In anticipation of Independence Day, local attorneys will take time next week to read the words that hailed the birth of a new nation.

Members of the Hunt County Bar Association, along with judges from the county’s state district courts and county courts‑at‑law, intend to participate in the reading of the Declaration of Independence on the steps of the Hunt County Courthouse at noon Friday, July 1.

About a dozen attorneys participated during the event last year, held during a few falling raindrops. Each attorney took a turn at one or more sections of the document. A small crowd gathered to watch the reading and then joined in the Pledge of Allegiance.

The event has been held seven times in the past eight years. It was canceled in 2020 due to the COVID‑19 pandemic.

The event is sponsored by the Texas Criminal Defense Lawyers Association, which has been presenting readings of the Declaration since 2010. During 2016, for the first time, the readings were conducted outside of courthouses in each of the state’s 254 counties.

—Brad Kellar, Greenville Herald‑Banner

Levelland, Hockley County:

July 4th, 2022, We lawyers knew what to do.
We traveled Texas county to county,
With flags and readings and patriotic bounty.
Aloud we recited our forefathers idea of great sense,
Our American Declaration of Independence.
Five counties we did see,
Starting with Cochran and Hockley.
Then around West Texas the words we did carry,
Out to county Yoakum and on to Terry.
On final reading with our work fam,
Was up north to county Lamb.
We shared the day with judges and local friends,
Artists and singers and hot summer winds.
We sweated a bit and shook lots of hands,
Clapped each other’s backs and prayed for these lands.
I’m so proud of the freedoms we’ve fought for and won,
And those who carry on what our forefathers have done.

Happy July 4, 2022!

—Anna and Philip Ricker

Houston, Harris County: Friends: I view the Declaration of Independence as an imperfect document, at least in large part because it was written by a slave owner talking about liberty. It also bothers me that Native Americans are referred to as “savages.”

Even with its inherent flaws the Declaration is fundamental as to who we are. We are people who reject tyranny no matter the source. The Declaration was the beginning in our national struggle for liberty. It’s part of a continuum. It was followed by the Constitution, Bill of Rights, Emancipation Proclamation, 13th Amendment, Civil Rights Movement, the Women’s Movement, the fight for Gay Rights and most recently Black Lives Matter.

I think as criminal defense lawyers we are part of the continuum. We are the natural heirs to our Founding Fathers, as we are the only people who daily fight to protect our neighbor’s liberty.

There will always be tyrants, some in robes. There will always be those who stand up to fight the tyrants. That’s us.

In 2010, when we stood with our backs to the Courthouse, we sought no permission. We just did it. We were fighting lots of abusive judges then. When we read it, when I heard “king,” I thought judge. To me it’s an annual opportunity to remind the tyrants in the courthouse and elsewhere that we don’t accept their tyranny and we will fight them for as long as takes.

—Robert Fickman

TCDLA and statewide Declaration coordinators Robert Fickman of Houston and Chuck Lanehart of Lubbock thank the following folks who organized Declaration readings in some 144 places in Texas, California, Louisiana, Peru and elsewhere this year.

This 13‑year‑old tradition continues to inspire the public, the media and most importantly those who participate in these patriotic celebrations of liberty. The Great Document probably means something different to each person who reads. However, regardless of our political and social backgrounds, we all read to protect the rights and liberties that we hold dear and that we fight to defend every day.

Robb expressed his personal opinion in his introductory remarks to the Houston reading, “To me it’s an annual opportunity to remind the tyrants In the court‑ house and elsewhere that we don’t accept their tyranny and we will fight them for as long as takes.”

These intrepid Declaration organizers are to be congratulated:

City , County and Name:

Abilene, Taylor Co., Jenny Henley
Amarillo, Potter Co., Joe Marr Wilson, & Vaavia Rudd
Anson, Jones Co., Jenny Henley
Archer City, Archer Co., Dustin Nimz
Athens, Henderson Co., Shana Stein Faulhaber
Austin, Travis Co., Bradley Hargis
Ballinger, Runnels Co., Karl Vancil
Bandera, Bandera Co., Gary Trichter
Bastrop, Bastrop Co., Eric Torberson
Beaumont, Jefferson Co., Dustin Galmor
Bellville, Austin Co., David Moody
Belton, Bell Co., James Stapler
Benjamin, Knox Co., Dustin Nimz
Big Lake, Reagan Co., Stephen Dodd
Big Spring, Howard Co., Reina Cisneros
Bonham, Fannin Co., Myles Porter
Boston, Bowie Co., Brent McQueen & Mac Cobb
Brady, McCulloch Co., Chuck Lanehart & Lindsey Craig
Brenham, Washington Co., Robbie Charette
Brownfield, Terry County, TX, Anna Ricker & Phil Ricker
Brownsville, Cameron Co., TX, Sheldon Weisfeld
Brownwood, Brown Co., TX, Judson Woodley & Todd Steele
Bryan, Brazos Co., TX, Sarah Wilkinson
Burnet, Burnet Co., TX, Michelle Moore
Caldwell, Burleson Co., TX, Shelly Megan Shaw
Cameron, Milam Co., TX, Matthew Wright
Canton, Van Zandt Co., TX, Jeff White
Canyon, Randall Co., TX, Joe Marr Wilson & Vaavia Rudd
Carrizo Springs, Dimmit Co. TX, Ted Rodriguez
Center, Shelby Co., TX, Deck Jones
Centerville, Leon Co., TX, Michelle Latray
Channing, Hartley Co. TX, Rick Russwurm
Childress, Childress Co., TX, Bethany Stephens
Clarksville, Red River Co., TX, Laura McCoy
Cleburne, Johnson Co., TX, Don Bonner
Coldspring , San Jacinto Co. , Bob Mabry
Comanche, Comanche Co., TX, Judson Woodley
Conroe, Montgomery Co., TX, Amanda Webb & Josh Zeintek
Cooper, Delta Co. TX, Brent McQueen
Corpus Christi, Nueces Co., TX, Lisa Greenberg
Corsicana, Navarro Co., TX, Kerri Donica
Crockett, Houston Co. TX, Jody Griffith
Crowell, Foard Co., TX, Dustin Nimz
Cuero, De Witt Co., TX, Joseph Sheppard
Daingerfield, Morris Co., TX, Brent McQueen, Laura McCoy & Mac Cobb
Dalhart, Dallam Co., TX, Rick Russwurm
Dallas, Dallas Co., TX, Deandra Grant
Denton, Denton Co., TX, Haylee Brown
Dumas, Moore Co., TX, Rick Russwurm
Edinburg, Hidalgo Co., TX, Lucia Regalado & Joseph Connors
El Paso, El Paso Co., TX, Jim Darnell, Jeep Darnell, & Cris Estrada
Emory, Rains County, TX, Brent McQueen
Fairfield, Freestone County, TX, Michelle Latray
Fort Stockton, Pecos County, TX, Christiana Valadez
Fort Worth, Tarrant County, TX, Emily LaChance
Franklin, Robertson County, TX, Christopher Smitherman
Fredericksburg, Gillespie County, TX, Tammy Schmidt Keener
Gatesville, Coryell County, TX, Allen Place, Shea Place, Paul Harrell
Georgetown, Williamson Co., TX, Robert Maier
Giddings, Lee County, TX, David Moody
Gilmer, Upshur Co., TX, Brandon Winn
Goldthwaite, Mills Co., TX, Judson Woodley
Greenville, Hunt Co., TX, Katherine Ferguson
Groesbeck, Limestone Co., TX, Michelle Latray
Halletsville, Lavaca Co., TX, James M. Reeves
Hempstead, Waller Co., TX, David Moody
Henrietta, Clay Co., TX, Katie Woods
Hereford, Deaf Smith Co., TX, Vaavia Rudd
Houston, Harris Co., TX, Robb Fickman, Jed Silverman
Huntsville, Walker Co., TX, Wyvonne Hill
Jefferson, Marion Co., TX, Brent McQueen & Mac Cobb
Johnson City, Blanco Co., TX, Michelle Moore
Jourdanton, Atascosa Co., TX, Megan Harkins
Kermit, Winkler Co., TX, Alvaro Martinez
Kerrville, Kerr Co., TX, Gary Trichter
Kingsville, Kleberg Co., TX, Sam Fugate
La Grange, Fayette Co., TX, David Moody
Lampasas, Lampasas Co., TX, Greg Hupp
Laredo, Webb Co., TX, Roberto Balli
Leakey, Real Co., TX, Nathaniel Munier
Levelland, Hockley Co., TX, Anna Ricker, Phil Ricker
Linden, Cass Co., TX, Brent McQueen
Littlefield, Lamb Co., TX, Anna Ricker, Phil Ricker
Lockhart, Caldwell Co., TX, David Schulman & Roger Nichols
Longview, Gregg Co., TX, Lew Dunn & Brandt Thorsen
Lubbock, Lubbock Co., TX, Rusty Gunter & Chuck Lanehart
Madisonville, Madison Co., TX, David Moody
Marfa, Presidio Co., TX, Dick DeGuerin
Marshall, Harrison Co., TX, Kim Ryan, Kyle Dansby
McKinney, Collin Co., TX, Justin Wilson & Mito Gonzales
Meridian, Bosque Co., TX, Matthew Wright
Midland, Midland Co., TX, Latawn White
Morton, Cochran Co., TX, Anna Ricker, Phil Ricker
Mount Pleasant, Titus Co., TX, Laura McCoy
Mount Vernon, Franklin Co., TX, Laura McCoy
Muleshoe, Bailey Co., TX, Matt Morrow
Nacogdoches, Nacogdoches Co., TX, Sean Hightower & Tim James
Odessa, Ector Co., TX, Lane Haygood
Ozona, Crockett Co., TX, Stephen Dodd
Paint Rock, Concho Co., TX, Tip Hargrove
Palestine, Anderson Co., TX, David Moody
Paris, Lamar Co., TX, Jerry Coyle
Pearsall, Frio Co., TX, Katie & Grady Roberts Jr.
Pittsburg, Camp Co., TX, Laura McCoy
Plains, Yoakum Co., TX, Anna Ricker, Phil Ricker
Plainview, Hale Co., TX, Paul Holloway
Port Lavaca, Calhoun Co., TX, Joshua Maseda
Post, Garza Co., TX, Chuck Lanehart, Lindsey Craig
Quitman, Wood Co., TX, Donna Bloom
Rankin, Upton Co., TX, Stephen Dodd
Richmond, Fort Bend Co., TX, Paul Tu
Rio Grande City, Starr Co., TX, Gema Lopez
Rockport, Aransas Co., TX, James Teague
Rockwall, Rockwall Co., TX, Justin Hall
San Angelo, Tom Green Co., TX, Tip Hargrove
San Antonio, Bexar Co., TX, Adam Kobs, Warren Wolf
San Augustine, San Augustin Co., TX, Sean Hightower & Tim James
San Marcos, Hays County, TX, Charmaine Wilde, Chevo Pastrano, Scott Co., Matthew Maldonado
Seguin, Guadalupe Co., TX, Joshua Maseda
Seminole, Gaines Co., TX, Paul Mansur
Sinton, San Patricio Co., TX, Joel Thomas
Stanton, Martin Co., TX, Chris DeAnda
Stratford, Sherman Co., TX, Rick Russwurm
Suphur Springs, Hopkins Co., TX, Brent McQueen
Sweetwater, Nolan Co., TX, Chuck Lanehart, Lindsey Craig
Tyler, Smith Co., TX, Brian Rollings, Edward Estrada
Uvalde, Uvalde Co., TX, Emmett Harris
Vernon, Wilbarger Co., TX, Dustin Nimz
Waco, McLennan Co., TX, David Bass
Waxahachie, Ellis Co., TX, Chad Hughes & Theresa Peel
Weatherford, Parker Co., TX, G. Thomas Vick , Dan Carney
Wichita Falls, Wichita, James Rasmussen
McAllen*, Hidalgo Co., TX, Lucia Regalado, Joseph Connors
Texarkana, TX*, Bowie Co., TX, Brent McQueen & Mac Cobb
Texarkana, AR*, Miller Co., Arkansas, Brent McQueen& Mac Cobb
San Diego*, California, Knut Johnson
Robstown*, Nueces Co., TX, Sheldon Weisfeld
Polebridge*, Flathead Co., Montana, Danny Hurley
Olney*, Flathead Co., Montana, Danny Hurley
Banff*, Alberta, Canada, Tyler Flood
Galapagos Island*, Ecuador, Robert Miller
Shreveport*, Caddo Parish, Louisianna, Brian Alexander
Montell*, Uvalde Co., TX, Liz Rogers
Horseshoe Bay*, Llano Co., TX, Tom Stansbury & Chuck Lanehart

*not Texas county seat

How often does this happen: you have a defendant charged with felony possession of a controlled substance and misdemeanor possession of marijuana. The misdemeanor, of course, has a different court setting than the felony. The defendant wants to plead to the misdemeanor with an unresolved felony pending. What do you do? Common practice is to reset the misdemeanor until the felony is resolved. You can’t go wrong with that strategy. However, are there times when you should resolve the misdemeanor while the felony is still pending? The answer is “maybe,” “hell no,” and “maybe!” Below are some common scenarios most of us have run into that explain this in greater detail.

Scenario #1: A client has a prior felony conviction, but they offer probation on the misdemeanor. The prosecutor is not offering probation on the felony. Should you plead out the misdemeanor? Maybe. If the State has a good case, without suppression issues or material problems, it could be a good strategy for the client to plead out on the misdemeanor and get a good track record on probation. Then, a few months down the road, you can argue to the prosecutor that they have turned their life around and can be successful on probation. This works best if you also have a judge that may give probation to defendants who are not eligible for probation from a jury. A good track record on misdemeanor probation could be a solid argument for felony probation before the judge.

Scenario #2: The defendant has one lawyer on his misdemeanor and a different lawyer on his felony. The misdemeanor lawyer gets an offer from the misdemeanor prosecutor that the defendant wants to take. Should the misdemeanor lawyer advise the Defendant to plead to the misdemeanor without thinking about the felony consequences? Hell no! This is setting everyone up for a fall. The only exception might be if the client and both attorneys are in the loop about the adverse consequences of the plea, and the client understands this but still wishes to plead with everyone telling him not to! Get those admonitions about the dangers of that plea in writing or on the record. But this is clearly a situation in which you should not plead out the misdemeanor with a pending felony still open unless the defendant insists.

Scenario #3: A defendant has a pending misdemeanor with a time served offer. However, the labs are still out on the pending felony, so it can’t be resolved with the misdemeanor. The two offenses didn’t happen simultaneously, so one can’t be used in guilt/ innocence in the felony. The State makes an offer that the Defendant wants to take to get out of jail and stop missing work to come to court. Should the Defendant plead? Maybe. The misdemeanor conviction could be used at punishment for the felony when it goes around. However, a defendant is sometimes good for one charge but not the other. It can be a powerful argument when a defendant admits guilt on one charge at trial but not on the other if the facts and circumstances support it. So, with the proper admonitions, and so the Defendant can make an informed choice, this one is a maybe.

These issues are something we run into all the time in our practice. Most of us just set off the misdemeanor until the felony is resolved, which is usually the best practice. However, there can be thoughtful exceptions to this rule, which can benefit defendants in the long run. The critical term is “thoughtful exceptions!” As always, take care, good luck, and have fun!

The opinions expressed in our published works are those of the author(s) and do not necessarily reflect the opinions of TCDLA and/or its editors.

We all dread that one infamous line in an offense report: “I detected what I know through my training and experience to be the odor of marijuana.” This one sentence has stymied innumerable motions to suppress. Prior to 2018, Texas courts consistently held that the odor of marijuana alone provided reasonable suspicion to conduct an investigative detention and provided probable cause for a warrantless search of a vehicle or its occupants during a traffic stop.

Two recent pieces of legislation have radically altered the cannabis regulatory framework. For criminal defense practitioners, understanding these regulatory changes is critical to advancing the novel legal challenges to push back on “odor of marijuana” traffic stops and detentions.

Regulatory Changes

The federal “Farm Bill,” signed in 2018, and the Texas “Hemp Bill,” signed in 2019, both altered the definition of cannabis, a type of flowering plant in the Cannabaceae family. Prior to the passage of the Farm Bill, all cannabis plants were generally considered illegal substances under the federal Controlled Substances Act. The Hemp Bill amended the definition of “marihuana” in the Texas Health and Safety Code to exclude “hemp.” Hemp is defined as cannabis with a THC concentration at or below .3%. The possession of any usable quantity of marijuana—now defined as cannabis with a THC concentration higher than .3%‑‑remains a criminal offense.¹ Possession of hemp is not.

What might at first glance read like a trivial definitional change has significant ramifications for criminal defense attorneys and our clients. “Hemp” and “marijuana” are functionally made‑up labels for different uses of the same plant. They are differentiated legally only by THC concentration. Determining the THC concentration of either substance requires lab testing. It is impossible to distinguish hemp from marijuana by human sight or by odor alone. More on this below, but dogs can’t smell the difference either.

As a result of the reforms to cannabis law, criminal defendants nationwide have begun challenging the “odor of marijuana” as a standalone basis for a reasonable suspicion or probable cause finding. Following passage of the Farm Bill and Hemp Bill, Texas courts have yet to clarify whether the “odor of marijuana” alone still provides reasonable suspicion or probable cause.

This is just beginning in Texas

The issue has been raised recently in at least one Texas court of appeals. In McAfee-Jackson v. State, the officer conducted a vehicle search after smelling the odor of marijuana coming from the vehicle during a traffic stop. A small amount of marijuana was located during the search. The appellant filed a motion to suppress, arguing that odor of marijuana alone did not provide probable cause for the search because the officer could have smelled legal hemp. At the suppression hearing, the trooper testified that he had probable cause to search the vehicle due to the odor of marijuana, but he conceded that he could not distinguish marijuana from hemp by either appearance or smell. The appellant was found guilty of possession of marijuana. On appeal, the appellant challenged the trial court’s denial of her motion to suppress. Unfortunately, the court declined to rule on the substantive issue because it was not properly preserved.

It will likely not be long before a Texas court of appeals is again confronted with the question of whether the odor of marijuana alone still provides reasonable suspicion or probable cause.

Looking for guidance outside Texas

Courts in other jurisdictions with more liberal cannabis laws provide a useful point of comparison. In states that have legalized cannabis, courts are consistently holding that the odor of marijuana alone cannot justify a detention or search.

The Superior Court of Pennsylvania held that the odor of marijuana does not “always” establish probable cause for a search but rather may be “a factor” when assessing probable cause in a totality‑of‑the‑ circumstances test. In Commonwealth v. Grooms, an officer conducted a vehicle search based solely on the odor of fresh marijuana coming from the vehicle. Two months prior to the search, Pennsylvania legalized dry‑ leaf marijuana for medical purposes. The driver of the vehicle filed a suppression motion, which the trial court denied. On appeal, the appellant argued that the mere odor of marijuana is not alone suggestive of criminal activity in Pennsylvania. The Court agreed: “[T]he odor of marijuana alone, absent any other circumstances, cannot provide individualized suspicion of criminal activity,” due to the fact that “the police cannot discern lawful from unlawful conduct by the odor of marijuana alone.”

The Court of Special Appeals of Maryland recently addressed the question of whether the odor of marijuana alone may justify an investigative detention, or Terry stop. In In re D.D., police conducted a “stop and frisk” of a juvenile after an officer claimed he smelled the odor of marijuana coming from the juvenile. Defense counsel filed a motion to suppress the initial detention.

The trial court denied the motion. On appeal, the juvenile argued that the odor of marijuana alone is not an indicator of criminal activity. Important in the court’s analysis was the fact that in 2014 the Maryland legislature had decriminalized possession of less than 10 grams of marijuana. In the court’s reasoning, because possession of less than 10 grams of marijuana was no longer a crime, and odor alone cannot indicate the quantity of marijuana in someone’s possession, the odor of marijuana “cannot, by itself, provide reasonable suspicion that the person is in possession if a criminal amount of marijuana or otherwise involved in criminal activity.”

Other courts in states that have decriminalized small quantities of marijuana have held that the odor of marijuana alone no longer provides reasonable suspicion of criminal activity. The Supreme Court of New Hampshire concluded that following the passage of a marijuana decriminalization statute, the odor of marijuana alone does not, per se, support a reasonable, articulable suspicion of criminal activity. However, the Court left open the possibility that the odor of marijuana “remains a relevant factor” in a reasonable suspicion analysis, if additional factors of potential criminality are present.

Similarly, the Supreme Judicial Court of Massachusetts held that following the passage of a marijuana decriminalization statute, the odor of marijuana alone does not provide reasonable suspicion of criminal activity.

Don’t forget the dogs

Legal reforms of marijuana law also have implications for probable cause searches supported by dog sniff “alerts.” The Fifth Circuit previously held that a dog alerting to the presence of narcotics inside a vehicle establishes probable cause to search the vehicle. As explained by the Supreme Court, open‑air dog sniffs that could only reveal the presence of contraband are not “searches” and do not implicate the Fourth Amendment.

Dogs that are trained to alert to marijuana could alert to a substance that is legal to possess. Dogs cannot distinguish between marijuana and hemp when making an alert, and a dog will alert the same if it has detected marijuana, methamphetamine, cocaine, or any substance it is trained to detect. In Texas, the Austin Police Department have reportedly directed officers to use a positive alert as only one piece in establishing probable cause for a search. Following the passage of the Hemp Bill, no Texas appellate court has directly addressed the question of whether a positive alert from a canine that is trained to detect the presence of marijuana—which could be easily confused by the canine for legal hemp—still establishes probable cause for a search. However, if a narcotics dog could alert to a perfectly legal substance, such as hemp, it cannot be assumed that the dog could only alert to contraband. Therefore, the dog’s “sniff ” is now a search implicating Fourth Amendment rights, and the “alert” would not, on its own, provide probable cause of criminal activity.

Takeaways

Many Texas counties continue to prosecute the possession of even small amounts of marijuana, despite the practical reality that state laboratories still appear to have challenges with determining the concentration of THC in a substance. Local law enforcement in many counties will use the odor of marijuana as the sole basis for conducting a probable cause search of a vehicle. Despite changes in the law which legalize the possession of low‑ level THC cannabis (hemp), no Texas court to date has addressed the issue of whether the odor of marijuana alone still provides reasonable suspicion or probable cause, or whether a positive canine “alert” to cannabis provides probable cause to search. If Texas follows the reasoning of other state courts in similar predicaments, Texas is likely to modify its bright‑line rule regarding the odor of marijuana and probable cause. The odor of marijuana—which is indistinguishable from that of legal hemp—cannot alone provide reasonable suspicion of criminal activity since the police cannot distinguish lawful from unlawful conduct based on odor alone. When it comes to the human (or canine) nose, cannabis is cannabis, regardless of its THC concentration.

END NOTES

1. Taylor State, 20 S.W.3d 51, 55-56 (Tex. App.— Texarkana 2000, pet. ref’d).
2. Razo State, 577 S.W.2d 709, 711 (Tex. Crim. App. [Panel Op.] 1979).
3. Jordan State, 394 S.W.3d 58, 64-65 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).
4. Agriculture Improvement Act of 2018, L. No. 115‑ 661, § 10113 (codified at 7 U.S.C. §§ 1639o—1639s).
5. H. B. 1325,86th Leg., (Tex. 2019), https://capitol.texas.gov/tlodocs/86R/billtext/pdf/HB01325F.pdf#navpanes=0.
6. Rupasinghe, H., Davis, A., Kumar, S. K., Murray, B., & Zheljazkov, V. D. (2020).“Industrial Hemp (Cannabissativa subsp. sativa) as an Emerging Source for Value‑Added Functional Food Ingredients and Nutraceuticals.” Molecules (Basel, Switzerland), 25(18), 4078. https://doi.org/10.3390/molecules25184078.
7. Molitor v. City of Scranton, CV 3:20‑1266, 2021 WL 3884463, at *5 (M.D. Pa. Aug. 31, 2021).
8. Tex. Health & Safety Code Ann. § 481.002(26).
9. Tex. Agric. Code § 121.001.
10. Tex. Health & Safety Code § 481.121(a).
11. Evaluating the Impact of Hemp Food Consumption on Workplace Drug Tests, (“The primary difference is that marijuana has a higher concentration of the psychoactive compound cannabinoid delta 9tetrahydrocannabinol, more commonly known as THC”).
12. McAfee-Jackson State, No. 09‑19‑00430‑CR, 2021 Tex. App. LEXIS 7297, at *1 (Tex. App.—Beaumont Sep. 1, 2021, no pet.).
13. Commonwealth v. Grooms, 247 A.3d 31, 41 (Pa. Super. Ct. 2021).
14. In re D.D., 250 A.3d 284, 286 (Md. Ct. Spec. App. 2021) cert. granted, 257 A.3d 1162 (2021).
15. State v. Francisco Perez , 239 A.3d 975, 985 (2020).
16. United States v. Sanchez-Pena, 336 F.3d 431, 444 (5th Cir. 2003).
17. Illinois v. Caballes, 543 U.S. 405, 408 (2005).
18. Mark Wilson, Law and Odor: Police Hazy on How to Use Drug-Sniffing Dogs Under Texas Hemp Law, STATESMAN (Jul. 12, 2019), https://www.statesman.com/news/20190712/law‑and‑odor‑police‑hazy‑on‑how‑to‑use‑drug‑sniffing‑dogs‑under‑texas‑hemplaw [https://perma.cc/9C8J‑GWNX].
19. Law, STATESMAN (Jul. 12, 2019), https://www.statesman.com/news/20190712/law‑and‑odor‑police‑hazy‑on‑how‑to‑use‑drug‑sniffing‑dogs‑under‑texas‑hemplaw [https://perma.cc/9C8J‑GWNX].
20. Michael Barajas, Texas (Kinda, Sorta) Accidentally Decriminalized Weed. Now What?, TEX. OBSERVER (Aug. 20, 2019), https://www.texasobserver.org/texas‑kinda‑sortaaccidentally‑decriminalized‑weed‑now‑what/ [https://perma.cc/WE9G‑JTE3].

I’m going to be blunt from the start: If you are not using a trained, qualified, experienced and knowledgeable analyst for cellular records analysis (i.e., historical cell site location), then you are doing your client a large disservice, regardless of the side you’re representing. Furthermore, if you’re taking what the other side tells you as 100% truth, you’re already behind the curve.

Why do I say this? Because I’m coming off the likely second murder acquittal in about a year where the government used analysts to try and pinpoint their suspect’s location using historical cell site location data to illustrate that the Defendant was in or around a relevant location (i.e., crime scene) at or around the incident being investigated and prosecuted. Both of these analysts were from federal 3‑letter agencies and had allegedly analyzed the same records I was provided. I’ll get more into the specifics later. Do I have your attention?

Historical Cell Site Analysis at a Glance

Before we get into specific case examples, we should define and discuss briefly what historical cell site location records are and are not. There are volumes of articles and at least one book written on the topic, but I’ll try to trim the fat off the conversation to a simple explanation:

Cellular companies keep records of activity on their network. This activity often involves the phone’s use (calls, texts and data) and listing of particular cell sites (i.e., towers) used for these events, which are most commonly divided into three sectors in a 360‑degree radius. This means that each sector on most cell sites covers an area of roughly 120‑degrees. Please note, there are exceptions to this. However, with the data that is acquired in the investigation and litigation process from the cellular provider, we can map these cell sites, using their verified GPS coordinates, and use the sector‑ specific information contained in the records to map generalized location of a cell phone that is allegedly tied to a Defendant or litigant.

Depending on the timing of the request to the cellular provider, we can also potentially receive and map what are commonly referred to as “specialized location records,” which attempt to estimate the GPS (longitude & latitude) coordinate estimates of the phone itself, within a certain confidence level detailed in the records. These records can be problematic when used as evidence, but this is where the knowledge and competence level of the analyst also becomes crucial.

It should be noted that these records were never intended to be used in litigation. They are held by the cellular providers to help increase the user experience and efficiency on the cellular network. It just so happens that the ubiquitous nature of cell phones in daily life has led to the location of a cell phone (and potentially the person carrying it) translating to valuable data in criminal and civil litigation when analyzed and presented competently.

Not All Analysts Are Created Equal

Just like in the practice of law, medicine, auto mechanics, etc., it is a truism in cellular analysis that not all analysts possess the same work ethic, knowledge, training, capability or level of competence. The vast majority of historical cell site data analysts work for the government, and as such, can present their data and analysis with an air of confidence and authority. But I have seen multiple cases where this simply is not the case. Consider the following examples:

Case study #1: A homicide where data records were used to try and tie the Defendant to the phone. Defendant’s primary phone in use was not in question, but the government attempted to illustrate that the “burner” or “drop” phone with which the victim last communicated also belonged to the Defendant by correlating the location of the two phones (known phone and burner phone) together over time, as well as attempting to tie the burner phone and defendant to the area where the victim’s body was located.

Defense Counsel hired a private‑sector analyst (me) to conduct an independent analysis of the records and confirm or refute the assertions of the government with regard to this analysis. The problem was obvious ‑ the 3‑letter agency’s analysis contradicted itself without explanation See the below image that was entered into evidence as part of the larger initial analysis:

Pretty map, isn’t it? The problem, as is highlighted in the red boxes (upper left and lower right), is that this map puts the burner phone (events cited in the red boxes and wedges) miles apart at virtually the same time. No explanation was provided in the report for this. When this was brought forth in cross‑examination of the government’s analyst, they testified that their agency calls this “teleportation.” And no, sadly, that’s not a joke. There’s actually a very reasonable explanation for this, which was not relayed to the jury until the analyst was called back to the stand in rebuttal of my testimony and, as coincidence would have it, produced a much more detailed map. Regardless, the Defendant was acquitted of the murder charge. Was it because of this? I have no idea. But I’m sure this didn’t help the jury’s confusion about this data… Nor did the “teleportation!”

Case Study #2: A homicide where the Defendant was accused of the murder by assisting the shooter (who was found guilty prior to our Defendant’s trial) in getting away from the crime scene. The 3‑letter agency analyst produced a very short report/analysis, which lacked many things. Take a look at one of the images and I’ll explain what’s lacking:

Another beautiful map! But what’s missing? First, the crime scene is barely visible amongst the other noise on the map. The map is hard to decipher. Second, two crucial pieces are missing – the illustration of other cell sites in the area as well as any other potentially other relevant locations. And not simply alibi locations either – basic things like the Defendant’s home, which is actually within this map view, but you’d never know it because it wasn’t included in the illustration. Simply put, this is an incomplete analysis. It seeks to prove a theory and disregards the context.

What are the cell sites and why is that important? There are dozens of cell sites in the area of the above map (#2), some of which are closer to the crime scene. And while I cannot emphasize strongly enough that it is not 100% true that the phone always connects to the closest cell site, without the illustration of where the other cell sites are located, we don’t even have enough information to scrutinize. It’s an analysis in a bubble. The green and red dots on map #1 ‑‑ Those are the cell sites in a fairly populated metropolitan area, similar to the area in the map #2. Here’s the same event from map #2 in the same area from the same case, but with the context added (and easier to decipher).

Those orange dots are all cell sites for this cellular carrier in the area not used for this event. The other potentially relevant locations, as well as the crime scene, have also been added to this map. The final potentially relevant piece is the terrain of the area. While not a large issue in this particular example, geographical features like terrain can have an effect on which cell site the cellular device chooses to use. For further context, this usage event was 4 minutes after the shooting (as verified by surveillance video time stamp). As you can see, there are several cell sites in between this event and the crime scene, but again, the cell phone will NOT always connect to the closest cell site, rather the cell site with the best signal. That said, the cell site in use is over 2 miles away from the crime scene in a fairly densely populated area.

This map was generated as a more complete view of the relevant data and presented in comparison to map #2 for presentation to the Jury. The exclusion of this information in map #2 is inexplicable.

Why is Any of this an Issue?

I have been engaged in historical cell site records analysis in litigation for approximately 6 years, and in the practice of forensic data analysis (computers, cell phones, etc.) for 13 years. In that time, I’ve conducted dozens of analyses of carriers of all types, cases spanning from  insurance  investigations  to  divorce/custody disputes to criminal prosecution and defense. The practice of historical cell site analysis is not “junk science”, no matter what snake‑oil salesman “defense expert” may try to tell you. It works in most cases, if done properly. And if it didn’t work, no one would use it. Further, location of the phone is but one use of these records. There are multiple applications for these records related to behavior and activity of the user of the phone.

That said, the problem I’ve seen repeatedly with criminal investigations utilizing historical cell site analysis is that Defense Counsel may be misinformed or lacking in their knowledge about what is presented to them by the government’s analyst. When a client is charged with a serious crime and the government gets the historical cell site location records and requests the [insert 3-letter law enforcement agency name here] to conduct an analysis and produce pretty maps showing that your guy was likely there at the wrong time, it tends to force a plea bargain because it looks good and it’s relatively technical. This happens regularly and can often not be in the best interest of the client.

So, what can help your client? A thoughtful and informed conversation with an independent, experienced historical cell records analysis expert who can look at the records and provide a practical assessment. To be clear, you do not want a “defense expert”. You want an independent expert who will take in all of the available data and conduct as thorough analysis as possible, given what is available through discovery. And there’s more to “available data” than simply the records in most cases.

A Few Tips from Experience

I’m not perfect, and I don’t know everything. On top of that, I’m not a lawyer. However, I have worked many large litigation cases with these types of records and I’ve learned a few tips along the way that could help the process along more smoothly:

• Consider obtaining the records allegedly associated with the target of the investigation independent of discovery. This assists in the ability for you to introduce the records and your expert’s analysis at trial, even if the government chooses not to do so. If the government never enters the records into evidence, it may not be possible for the hard work of your analyst to be presented to the judge or Obtaining these records can be done via Court Order and should be done as soon as possible and in consultation with your independent expert for proper terminology of the request. Some carriers don’t retain certain records for a long period of time, so obtaining the records in a timely manner is crucial.
• The value of illustrating these usage events on a map can be compelling evidence, but static maps don’t always tell the whole story. Consider using an expert who has access to tools that will help animate the movement in the usage to help paint an overall clearer picture of the cellular location evidence in your case. To date, I’ve not seen a government analyst use animations to illustrate the records. I have, however, conducted analysis for the government using animations.
• Be careful with your stipulations prior to trial. Stipulating to the authenticity of the records is probably Anything beyond that, including stipulating to the other analyst’s credentials, may cause issues down the road during trial testimony and presentation of evidence.
• Don’t forget that there is probably relevant data in more than one place. While it’s true the government has likely tried to cover all of their bases on this – particularly in a major criminal case – that doesn’t mean that there won’t be information to help confirm or refute alibis, alternate location data, etc. that is stored on the cell phone itself or potentially in cloud data sources. If your cellular analyst doesn’t also have experience with analysis of these items, I’d suggest finding someone who has the ability to conduct this “holistic” type of analysis incorporating all potentially relevant pieces of data.
• Look closely at what isn’t provided. I’ve learned that there is almost as much (if not more) value in looking at the evidence that ISN’T presented than there is at looking at evidence that IS If something obvious – like data from the Defendant’s cell phone (i.e., the device itself) was obtained, analyzed and not presented as evidence, that probably means there may be something on that phone that is not favorable to the other side’s case. Look at this closely.

Conclusion

I was in law enforcement for nearly 15 years, and I still travel the country teaching cops in any number of different subjects, including this one. Many of my former (and current) law enforcement compatriots may read this article and conclude that I’m trying to give the defense a “leg up” or reveal some trade secrets. Nothing could be further from the truth. My goal in relaying this information is simply to do my part to ensure the right people go to prison and the innocent people do not. This involves hard work, no matter who the victim is or what the circumstances of their death or attack may have been. I work many cases for the prosecution. I work many cases for the defense. The truth is always the ultimate goal, and should be for everyone involved in this process.

On March 21, 22 and 23 of this year, over 9 million viewers tuned in to Fox News, MSNBC or CNN to watch the confirmation hearings of Judge Ketanji Brown Jackson, a nominee for the office of Associate Justice of the Supreme Court.¹ After being confirmed by a vote of 53-47, she and Justice Sotomayor will be the only members of the Court with experience as federal trial judges.²  From the moment that Judge Jackson was nominated, it was almost foreordained that her nomination would be confirmed.  In the absence of an unforced error, the votes for her confirmation were there – and there were no unforced errors.  It helped, of course, that Judge Jackson was imminently qualified: 

The U.S. Senate has already confirmed Judge Jackson three times with bipartisan support on each occasion.  Since June 2021, Judge Jackson has served with distinction on the U.S., Court of Appeals for the D.C. Circuit.  Prior to her elevation to the D.C. Circuit, she spent eight years as a district court judge on the U.S. District Court for the District of Columbia.  Before her judicial service, she served as vice chair of the U.S. Sentencing Commission from 2010 to 2014.  Judge Jackson worked as an assistant federal public defender in the Office of the Federal Public Defender in the District of Columbia and as assistant special counsel at the U.S. Sentencing Commission.  She has also worked in private practice as of counsel at Morrison & Foerster and as an associate at the Feinberg Group, Goodwin Proctor, and Miller, Cassidy, Larocca & Lewin.  She also helped train future lawyers, teaching classes on trial advocacy and federal sentencing at Harvard Law School and George Washington School of Law, respectively.  A graduate of Harvard University and Harvard Law School, she clerked for Judge Patti Saris of the U.S., District Court for the District of Massachusetts.  Judge Bruce Selya of the U.S. Court of Appeals for the First Circuit, and Associate Justice Stephen Breyer of the Supreme Court.³

As a former federal defender, she will join a small number of other federal defenders who have been appointed to serve as federal judges and will be the first to serve on the Supreme Court.

According to a study by the libertarian think tank Cato Institute, prosecutors dominate the ranks of the judiciary.  As of April 2021, 318 former prosecutors were sitting as federal judges, more than one-third of the 880 total across the country.  This was followed by 243 lawyers who had represented the government as ‘noncriminal courtroom advocates.’  Among the smallest fractions of those who became federal judges were former criminal defense attorneys – about 76 total – and former public defenders, who numbered only 58, less than 7 percent of all judges.⁴

Judge Jackson, as anticipated, showed patience and grace in the face of inane or posturing questions, personal attacks, misstatements of what she had said and written as a judge and the less than courteous treatment of her by some of the senators.

Their first attack on Judge Jackson was for her service as a federal defender; e.g.,

• ‘Sen. Ted Cruz… cast Jackson’s work as a public defender as revealing a character flaw.

‘People go and do that because their heart is with criminal defendants, their heart is with the murderers, with the criminals, and that’s who they are rooting for,’ Cruz said on Fox News last weekend.  He added that ‘public defenders often have a natural inclination in the direction of the criminal’ and claims Jackson ‘carried it onto the bench when she became a criminal judge.’⁵

• Senator Mitch McConnell,… the minority leader, has doubled down on his suggestion that Judge Jackson’s experience as a public defender could influence her view of the law and lead her to favor criminal defendants.

‘Her supporters look at her resume’ and deduce a special empathy for criminals,’ Mr. McConnell said in a lengthy floor speech in which he argued that her work on behalf of the accused was a blot on her record.  ‘I guess that means that government prosecutor and innocent crime victims start each trial at a disadvantage.’⁶

• On Tuesday, Sen. Tom Cotton… went so far as to liken Jackson’s representation of Guantanamo detainees to representing Nazis in the Nuremberg Trials.

‘You know, the last Justice Jackson’ – Robert H. Jackson – ‘left the Supreme Court to go to Nuremberg and prosecute the case against the Nazis,’ Cotton said. ‘This Judge Jackson might have gone there to defend them.’

Cotton took care to note not only the cases Jackson was assigned as a public defender, but also briefs she filed while in private practice.  One was on behalf of 20 former federal judges who wanted to make a point about the admissibility of evidence gained via torture.  Another was on behalf of outside groups, including the libertarian Cato Institute.  In her hearings, Jackson said she was assigned the case while working for a big law firm, which had itself been assigned the case.⁷

If Senator Cotton had done even the slightest bit of research on Justice Jackson, he might not have spoken of the former Associate Justice.

It’s true the justice left the court temporarily to prosecute Nazis at Nuremberg after World War II.  But here’s the thing:  Jackson not only supported the Nuremberg defendants’ right to counsel, he was a key part of the governing body that enshrined it into international law.

On May 2, 1945, President Harry S. Truman appointed Jackson to lead an American delegation to prepare and prosecute war crimes charges against European Axis powers.  The appointment of such a high-ranking official prompted the other Allied powers to take the trials seriously, according to St. John’s University law professor and Jackson scholar John Q. Barrett.

But before trials could even start, the international delegation had to agree on a framework.

* * *

The constitution of the Nuremberg trials was a constitution [Jackson] wrote. ‘He believed in it seriously.’

Section Four, Article 16 concerned safeguards for a fair trial, including that a ‘Defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of Counsel.’

Not only were defense attorneys guaranteed, ‘they were on the U.S. payroll,’ Barrett said.  Most of the defense attorneys were German professionals, and ‘the U.S. gave them housing and mess privileges.  Germany was in rubble, so it was a good deal to be one of those defense attorneys.’

* * *

‘Justice Jackson believed everyone has the right to a fair trial, which includes a vigorous defense,’ said Kristan McMahon, president of the nonprofit Robert H. Jackson Center, adding, ‘And without that, a trial would not be fair.’⁸

Although I was surprised at these attacks on Judge Jackson as a federal defender, both she and her handlers should have anticipated them.

Shortly after her nomination was announced, the Republican National Committee issued a statement criticizing her public defender experience, specifically citing her work representing detainees being held at Guantanamo Bay.⁹

Also, at the earlier confirmation hearings for district court nominees Nina Morrison and Adriana Freeman, Senators Cotton, Hawley and Cruz made comments similar to those made at Judge Jackson’s hearings; e.g.,

• Last month, Sen. Tom Cotton… asked Biden judicial nominee Nina Morrison, who worked for decades on the Innocence Project, which seeks to appeal convictions, ‘Are you proud that you encouraged such defiance in convicted murders?’
• And just a few weeks ago, Sen. Josh Hawley … asked another nominee, Arianna Freeman, about having represented a convicted murderer and getting him off death row: ‘Do you regret trying to prevent this individual who committed these heinous crimes from having justice served upon him?’ 
• Ted Cruz … told Freeman that she had ‘devoted your entire professional career to representing murderers, to representing rapists, representing child molesters.’¹⁰

Their second attack on Judge Jackson was for the sentences that she had imposed in child pornography cases; e.g.,

• Senate Judiciary Committee member Ted Cruz expanded on his questioning of Supreme Court nominee Ketanji Brown Jackson’s rulings Tuesday on ‘Hannity.’ Cruz, R-Texas, told host Sean Hannity that in nearly every sex offender case she was involved in, she handed down ‘substantially’ weaker sentences that the guidelines provided.  Cruz said that Jackson’s average sentencing was 48% less than what prosecutors asked for in all cases allowing judicial discretion, referencing one case where she sentenced the offender to three months in jail, when the federal sentencing guidelines said 10 years.¹¹
• Senator McConnell said, ‘In the specific area of child exploitation crimes, the nominee was lenient to the extreme.’¹²
• Senator Graham attacked Jackson as she outlined her concerns with the federal sentencing guidelines for child pornography possession and distribution. When Jackson explained that the guidelines could result in 50 years of confinement for 15 minutes spent on a computer, Graham shot back, ‘Good! Good.  Absolutely, good.  I hope you go to jail for 50 years if you are on the Internet trolling for images of children…’¹³

and

‘Every judge who does what you are doing is making it easier for the children to be exploited,’ said Senator Lindsey Graham,…picking up the line of attack.¹⁴

• Senator Josh Hawley…said he would not consider a below-guidelines child porn sentence ‘acceptable’ from a nominee…¹⁵

and

‘In fact, in every case for which I can find records and Judge Jackson had discretion, she gave child porn offenders sentences below the guidelines and below what the prosecutors were requesting,’ Hawley wrote.  ‘This isn’t a one-off.  It’s a pattern.’¹⁶  (emphasis added)

and

Hawley maintained her sentences were not long enough.  When Jackson gently reminded him her sentences were consistent with those imposed by other judges, Hawley ultimately responded that what Congress really wanted was the restoration of mandatory guidelines.¹⁷

Senator Hawley’s comments are disturbing for they constitute an attack on our independent judiciary.  It has been 17 years since the Supreme Court held that the United States Sentencing Guidelines are advisory rather than mandatory.¹⁸  Judges are, in fact, required to impose a sentence sufficient, but not greater than necessary rather than to impose a Guidelines sentence.¹⁹

If Senator Hawley had reviewed the annual report of the United States Sentencing Commission,²⁰ he would have learned that Judge Jackson’s sentencing record was in the mainstream in comparison with the records of other United States District Judges in these cases.

The U. S. Sentencing Commission, the bipartisan body created by Congress to set federal sentencing rules, explained in its 2021 report that suggested prison terms for defendants convicted of possessing child pornography – as opposed to producing the materials – have ‘been subject to longstanding criticism from stakeholders and has one of the lowest rates of within-guideline range sentences each year.’

‘Less than one-third (30.0%) of non-production child pornography offenders received a sentence within the guideline range in fiscal year 2019,’ the reporter said.

If and when we properly contextualize Judge Jackson’s sentencing record in federal child porn cases, it looks pretty mainstream,’ wrote Doug Berman, a leading expert on sentencing law and policy at The Ohio State University School of Law.

‘Federal judges nationwide typically sentence below the [child porn] guideline in roughly 2 out of 3 cases,’ Berman noted on his blog, and ‘when deciding to go below the [child porn] guideline, typically impose sentences around 54 months below the calculated guideline minimum.’

Berman also points out that government prosecutors often request below-range sentences, including in most of the Jackson cases that Hawley cited.²¹

Although Senator Hawley earlier said that he would not consider a below-guidelines sentence from a nominee to be “acceptable,” he and his colleagues had, in fact, raised no such issues during the confirmation hearings of judges nominated by then President Donald J. Trump or in the earlier confirmation hearings for Judge Jackson when she was nominated to serve as a judge on the D.C. Circuit.

An ABC News review of federal judges appointed and confirmed during the Trump administration found nearly a dozen had handed down below guideline sentences in cases of defendants viewing, possessing, transporting or distributing child pornography.²²

…Mr. Hawley, Mr. Graham, Mr. Cotton and Mr. Cruz all voted to confirm judges nominated by President Donald J. Trump to appeals courts even though those nominees had given out sentences lighter than prosecutor recommendations in cases involving images of child sex abuse.  Mr. Graham had also voted to confirm Judge Jackson to the U.S. Court of Appeals for the District of Columbia Circuit in 2021 in spite of the sentencing decisions she had made as a district judge. (emphasis added)

In 2017, Judge Ralph R. Erickson was confirmed by a 95-1 vote to the U.S. Court of Appeals for the Eighth Circuit, with Mr. Cotton, Mr. Cruz and Mr. Graham voting in the affirmative.  (Mr. Hawley was not yet a senator.)

Judge Amy J. St. Eve was confirmed by 91-0 vote in 2018 to the U.S. Court of Appeals for the Seventh Circuit.

Most recently, Mr. Cotton, Mr. Cruz and Mr. Hawley voted to confirm Judge Andrew L. Brasher to the U.S. Court of Appeals for the 11^th Circuit in 2020.  (Mr. Graham was not present for the vote.)²³

The questions of Senators Hawley and Graham, in particular, and their comments to the media cause me to be concerned that there could be a rush to pass legislation that would provide for a mandatory minimum sentence for the offense of possession of child pornography.  Currently, the punishment provision for that offense does not provide for a mandatory minimum sentence.²⁴

This would be a tragedy.  Anyone who possesses child pornography has received it and anyone who receives child pornography has possessed it.  Currently, the punishment provision for the offense of the receipt of child pornography provides for a mandatory minimum sentence of 5 years.²⁵

Because possession cases currently do not have a mandatory minimum and receipt cases do, Assistant United States Attorneys have the ability to limit a district judge’s sentencing discretion in these cases by their charging decisions.  What should be a possession case to one Assistant United States Attorney might be a receipt case to another and there is often no consistency within a United States Attorney’s office. At the present, we can at least try, during plea negotiations in these cases, to avoid a mandatory minimum sentence for our clients by seeking a possession count rather than a receipt count.

The current climate in Congress during this election year, perhaps exacerbated by Judge Jackson’s confirmation hearings, has doomed the passage of the Equal Act which would eliminate the current 18-1 disparity in sentencing for crack cocaine versus powder.  That will also deny significant relief to more than 7,600 inmates.  This will come as a disappointment to those of us who have followed the progress of this legislation.

Washington — The Equal Act would appear to be a slam dunk even in a badly divided Congress.

The legislation, which aims to end a longstanding racial disparity in federal prison sentences for drug possession, passed the House overwhelmingly last year with more than 360 votes.

* * *

But with control of Congress at stake and Republicans weaponizing a law-and-order message against Democrats in their midterm election campaigns, the fate of the measure is in doubt.

* * *

The legislation would eliminate the current 18-1 disparity in sentencing for crack cocaine versus powder.  The policy that can be traced to the ‘war on drugs’ mind-set of the 1980s, which treated those trafficking in crack cocaine more harshly.  It resulted in a disproportionate number of Black Americans facing longer sentences for drug offenses that white Americans, who were usually arrested with the powder version.

* * *

The United States Sentencing Commission has said that passage of the legislation could reduce the sentences of more than 7,600 federal prisoners.  The average 14-year sentence would be cut by about six years, it estimated.

* * *

Senator Tom Cotton, the Arkansas Republican who led the opposition to the First Step Act, said he was in no mood to let the Equal Act sail through.  He has said that if the disparity is to be erased, penalties for powder cocaine should be increased.

‘My opposition to the Equal Act will be as strong as my opposition to the First Step Act,’ Mr. Cotton said.²⁶

* * *

I understand the senators’ attacks on Judge Jackson for her sentences in child pornography cases.  Child pornography is so repugnant that there is a knee jerk response even to the mention of the words.  From their perspective, it was just good politics. 

In their attacks on criminal defense lawyers, the senators were simply exploiting a truth that we often ignore.  Many – including our friends – do not understand what we do or why we do it.  They can applaud our representation of the young or previously virtuous in cases that do not involve violence, but they cannot understand how, for example, we can raise an insanity defense when it is so obvious that our client committed the offense or how we can represent the defendant in a capital murder case when what our client is alleged to have done is so horrible.  We are an easy target.  So, what do we do in response to their attacks?  We can ignore their slings and arrows or we can recharge our batteries.

For me, I began with the Texas Lawyer’s Creed.  One of the first sentences in the creed reads, “I am passionately proud of my profession.”  I would hope that we can all say that.

Next, I reminded myself of my duty to each of my clients.  Our current Texas Disciplinary Rules of Professional Conduct gives us this guidance:  “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”  Paraphrasing the quote of former vice president John Nance Garner, that is about as exciting as warm spit.²⁷

I prefer the charge of old Canon 5 which stated: “A lawyer who undertakes the defense of a criminal case shall raise every defense under the law in order that no man may be deprived of life or liberty without due process of law.”²⁸  That was the Canon in effect when I was admitted to the practice of law in 1963 and it has guided me since that date.

Lastly, I looked for some inspiration and found it in the legal work of John Adams.  In his review of the new book John Adams Under Fire:  The Founding Father’s Fight for Justice in the Boston Massacre Murder Trial, Christopher Klein, writes,

The blood remained fresh on the snow outside Boston’s Custom House on the morning of March 6, 1770.  Hours earlier, rising tensions between British troops and colonists had exploded into violence when a band of Redcoats opened fire on a crowd that had pelted them with not just taunts, but ice, oyster shells and broken glass.  Although the soldiers claimed to have acted in self-defense, patriot propaganda referred to the incident as the Boston Massacre.  Eight British soldiers and their officer in charge, Captain Thomas Preston, faced charges for murdering five colonists.

Not far from the Custom House, a 34-year-old Boston attorney sat in his office and made a difficult decision.  Although a devout patriot, John Adams agreed to risk his family’s livelihood and defend the British soldiers and their commander in a Boston courtroom.  At stake was not just the fate of nine men, but the relationship between the motherland and her colonies on the eve of American Revolution.²⁹

Dan Abrams and coauthor David Fisher detail what they call the ‘most important case in colonial American history’ and an important landmark in the development of American jurisprudence.

MM Nussbaum relates the conclusion of the case and the pride that Adams had in his representation of those British soldiers.

In the trial that ensued, Adams argued that Captain Preston had never issued the order for his soldiers to ‘fire,’ and that those who had shot into the crowd did so entirely in self-defense.  Adams called those within the mob that provoked the soldiers ‘outlandish Jack tars,’ among other things.  Adams’ persuasion won the day, and Preston and six of his soldiers were acquitted of all charges.  Two soldiers were found guilty of manslaughter and were punished by having their thumbs branded.

Ultimately, Adams was proud of his service to the British soldiers.  Later in his life he wrote:

The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough.  It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country.  Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently.  As the Evidence was, the Verdict of the Jury was exactly right.  This however is no Reason why the Town should not call the Action of that Night a Massacre, nor is it any Argument in favour of the Governor or Minister, who caused them to be sent here.  But it is the strongest Proofs of the Danger of Standing Armies.³⁰

If there had been a Colonial Criminal Defense Lawyers Association, John Adams would surely have been one of its leaders.  Now, I am inspired.  It is time to put the attacks aside and to go back to representing our clients.

In 2019, TCDLA first requested information on the sophisticated scam known as Business Email Compromise/Email Account Compromise, (BEC/EAC), for short. Now, in 2022, it is unfortunate to report that the situation has only grown worse.

The BEC swindle is aimed at organizations and individuals who execute wire transfers. These cyber criminals utilize compromised email addresses and abuse virtual meeting platforms in order to advise victims to provide information that will allow them access to funds.

These cunning cons often use email platforms to manipulate company executives who approve wire transfers into transmitting fraudulent, large dollar amounts. Once the money is transferred overseas, it is exceedingly difficult to recover or prosecute. The best way to avoid being scammed is to learn about BEC/EAC, to spread awareness and to implement employee training.

Now, in the third year of the pandemic, virtual meeting platform usage in the workplace is the norm. The advent of these virtual meeting platforms came along with a rapid increase in BEC/ EAC attacks. The platforms used by so many businesspeople today were immediately recognized and targeted by the criminal world as a primary tool to advance their invasion. I would direct all readers to view the FBI Public Service Announcement at the following URL for full and complete details concerning how they, and others, may be at risk: https://www.ic3.gov/Media/Y2022/PSA220216.

It will point out that between the first alert in 2019, and until the end of 2021, there had been an increase in BEC/EAC complaints. Trend Micro has determined the five types of BEC/EAC frauds: the Bogus Invoice Scheme, the CEO Fraud, the Account Compromise, Attorney Impersonation, and Data Theft. You can find definitions here: https://www.trendmicro.com/vinfo/us/security/definition/business‑email‑compromise‑(bec).

The use of cryptocurrency, which is a form of virtual funds, is currently rising within these scams. The FBI PSA alert number I ‑041321 states that cryptocurrency “…is popular among illicit actors due to the high degree of anonymity associated with it and the speed which transactions occur.” You can find more information at:

https://www.ic3.gov/Media/Y2021/PSA210413

The BEC/ESA exploitation has undoubtedly spread due to the COVID‑19 epidemic, which launched the advent of virtual meeting platforms, and caused the separation of offices and employees, making individuals more susceptible to these digital deceivers.

It is truly incumbent upon the honest and initiative‑taking businesspeople in our global society to educate their staff and key personnel, while awareness at an all time high.

If you find that you are the victim of a fraudulent activity, contact your financial institution immediately to request a recall of funds. Regardless of the amount lost, file a complaint with www.ic3.gov or, for BEC/EAC victims, BEC.ic3.gov, as soon as possible.

M. “Mike” Adams, EnCE, TX DPS # A17351
TALI, TACDL, NACDL
www.pfforensics.com

Every year we gather together, across the State of Texas and beyond, to read the Declaration of Independence on the courthouse steps in order to remind those that seek to do injustice that we are here to defiantly stand in their way. This symbolic gesture probably means something different to each of the folks that read. However, regardless of our political and social backgrounds, we all read to protect the rights and liberties that we hold dear and that we fight to defend each and every day. The founder of this wonderful 13‑year‑old tradition—Robert Fickman of Houston—will join me in coordinating statewide readings again this year. Those of you who have been involved in the past—you know who you are—will soon be contacted with information about the 2022 readings.

If you are not familiar with the TCDLA Declaration readings, you have not been paying attention. Patriotic criminal defense lawyers across Texas gather at the local courthouse and simply read the Declaration of Independence. (Our readings have inspired similar events in other states and in foreign countries.) Sometimes, it means just one lawyer reading to an audience of none on a small town square. Sometimes, it means a dozen or more lawyers reading to large crowds on expansive courthouse lawns as flags fly and children play, and with everyone singing patriotic songs. We hope those who witness or participate in a reading come away with an appreciation of what Independence Day truly means.

The 2022 readings will take place on July 1 or on whatever date works best for your community around Independence Day. If you  have been involved as an organizer of a local Declaration reading in the past, we would appreciate you confirming with us you will organize again this year. If you have not been involved in a Declaration reading in years past but want to get involved this year, please contact us: Robert Fickman of Houston, 713‑655‑7400 (), or Chuck Lanehart of Lubbock, 806‑535‑2689 (chuck@lubbockcriminaldefense.com).

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

Claim your Community!

This article was first published in the State Bar of Texas Journal in October of 2020.
Submitted by: Keith Hampton

Question Presented

Does a lawyer who represents a defendant in a criminal matter violate the Texas Disciplinary Rules of Professional Conduct if, after receiving tangible evidence from the lawyer’s client, the lawyer does not reveal the existence of the evidence until trial and refuses to allow the prosecuting attorney to inspect the evidence until the court orders the lawyer to do so?

Statement of Facts

A lawyer represents a client who is in jail awaiting trial in a felony domestic violence case. While in jail, the defendant receives several letters from a victim in the case that contain relevant information. The defendant gives those letters to the lawyer, who takes the letters to his office for safekeeping. The lawyer does not reveal the existence of the letters until trial. The prosecuting attorney informally asks to inspect the letters, but the lawyer refuses. The lawyer continues to refuse to allow inspection of the letters until ordered to do so by the court after a hearing.

Discussion

“Unlawful” obstruction or concealment in general. Rule 3.04(a) of the Texas Disciplinary Rules of Professional Conduct prohibits the unlawful obstruction, concealment, alteration or destruction of evidence. Rule 3.04(a) provides:

“A lawyer shall not… unlawfully obstruct another party’s access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act.”

To constitute a violation of Rule  3.04(a),  the  obstruction or concealment must be done “unlawfully.” The term “unlawfully” is not defined in the Rules.

Nevertheless, as discussed below, the term “unlawfully” is generally understood to refer to conduct that violates a statute, court order, or other mandatory disclosure obligation.

Any obstruction or concealment that violates criminal law would clearly be “unlawful” and therefore would violate Rule 3.04(a). Criminal conduct related to obstruction or concealment could also likely violate subsections (2), (3), (4), or (12) of Rule 8.04(a):

“A lawyer shall not:”

(2) commit a serious crime or commit any other criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(4) engage in conduct constituting obstruction of justice; . . . [or]

(12) violate any other laws of this state relating to the professional conduct of lawyers and to the practice of law.”

Whether particular conduct violates a criminal obstruction statute is a question of substantive law that is outside the Committee’s purview. The Committee is not aware of any authority holding that it is a crime for a lawyer to accept and retain ordinary tangible evidence from a client accused of a crime.

Obstruction or concealment of evidence is also “unlawful” if it violates a court order. For example, a lawyer in possession of tangible evidence may violate Rule 3.04(a) by knowingly failing to obey a court order requiring production of the evidence. Such conduct could also violate Rule 3.04(d), which provides:

“A lawyer shall not… knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a tribunal except for an open refusal based either on an assertion that no valid obligation exists or on the client’s willingness to accept any sanctions arising from such disobedience.”

Finally, a lawyer acts “unlawfully” for purposes of Rule 3.04(a) if the lawyer knowingly fails to provide evidence when disclosure is mandated by the rules of the tribunal, a subpoena, a discovery obligation, a cooperation agreement, or the like (hereafter, a “Mandatory Disclosure Obligation”). It is not unlawful, however, for an attorney to withhold ordinary tangible evidence pending a ruling on a good faith, legally available objection, motion for protection, or other procedurally legitimate challenge to a Mandatory Disclosure Obligation.

Mandatory Disclosure Obligations of criminal defense counsel. There is no traditional discovery process in Texas that allows the State to obtain evidence from a criminal defendant. Absent a court order, therefore, a lawyer who receives ordinary tangible evidence from a client generally does not have an obligation to turn over the evidence to the prosecuting authority. In such a situation, the lawyer does not act unlawfully, and consequently does not violate Rule 3.04(a), merely by maintaining non‑destructive custody of such evidence.

Special Criminal Evidence. It is generally accepted that a lawyer has a self‑executing obligation to turn over some special types of tangible evidence. This opinion will refer to such evidence as “Special Criminal Evidence,” as opposed to “ordinary evidence.” The definition of Special Criminal Evidence varies by jurisdiction, but generally includes contraband, the instrumentalities of a crime, or the fruits of a crime. Common examples are illegal narcotics, a murder weapon, and stolen jewelry. Depending on the jurisdiction, the definition of Special Criminal Evidence may also include documents and records directly involved in the perpetration of a crime, such as book‑making receipts or falsified records, as well as other direct evidence of the client’s involvement in the crime (such as a bloody glove). The rationales offered to support the obligation to turn over Special Criminal Evidence are that (1) possession of such evidence—by anyone—is usually illegal, (2) preparing the client’s defense does not require counsel to possess the evidence, and any evanescent evidence (such as fingerprints) could degrade while in the lawyer’s possession.

Most United States courts that have considered the issue have held that a lawyer who comes into possession of Special Criminal Evidence—however defined in that jurisdiction—has a self‑executing obligation to turn over the evidence to police or other law enforcement authorities. See Rubin v. State, 602 A.2d 677,  686  (Md.  1992) (collecting cases); see also Hitch v. Pima County Superior Court, 708 P.2d 72, 75 (Ariz. 1985); In re Ryder, 381 F.2d 713, 714 (4th Cir. 1967) (“It is an abuse of a lawyer’s professional responsibility knowingly to take possession of and secrete the fruits and instrumentalities of a crime”); see generally Restatement (Third) of the Law Governing Lawyers § 119 (2000) (lawyer must notify prosecuting authorities or turn over the evidence after reasonable time for non‑destructive testing); Gregory C. Sisk, The Legal Ethics of Real Evidence: Of Child Porn on the Choirmaster’s Computer and Bloody Knives under the Stairs; 89 Wash. L. Rev. 819 (2014); Stephen Gillers, Guns, Fruits, Drugs, and Documents: A Criminal Defense Lawyer’s Responsibility for Real Evidence, 63 Stan. L. Rev. 813 (2011).

It appears to be the general rule that, before turning over Special Criminal Evidence to law enforcement authorities, a lawyer may be allowed to examine the evidence and subject it to tests that do not alter or destroy material characteristics of the evidence. Restatement (Third) of the Law Governing Lawyers § 119 (2000). It also appears to be the general rule that if a lawyer turns over Special Criminal Evidence acquired from a client, the trial court should not allow the jury to learn the source of the evidence. See Rubin v. State, 602 A.2d at 688 (collecting cases); see also Henderson v. State, 962 S.W.2d 544, 556 (Tex. Crim. App. 1997) (holding that trial court properly compelled lawyer to turn over maps received from client when kidnapping victim was possibly still alive, but noting that neither the client’s communications to the attorney nor the attorney’s communications to law enforcement could be admitted at trial); Sanford v. State, 21 S.W.3d 337, 344 (Tex. App.—El Paso 2000, no pet.), abrogated on other grounds by Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) (“[b]y allowing the State to recover the evidence, the public interest is served, and by refusing the State an opportunity to disclose the source of the evidence, the attorney‑ client privilege is preserved”). At least one jurisdiction has endorsed a procedure designed to avoid disclosing the source of the evidence to the prosecution. See District of Columbia Rules of Professional Conduct, Rule 3.4, Comment 5 (D.C. Office of Bar Counsel may accept evidence and turn it over to proper authorities without revealing its source, thereby preserving the defense lawyer’s obligation of confidentiality).

At present, the scope of a lawyer’s self‑executing obligation to turn over Special Criminal Evidence has not been well‑defined in reported Texas law. E.g., Sanford v. State, 21 S.W.3d at 344, n. 6 (declining to decide question of whether attorney had an obligation to reveal to law enforcement the location of an instrumentality of the crime, which the lawyer had learned from client); Henderson v. State, 962 S.W.2d at 556 (referring 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”). For purposes of this opinion it is sufficient to note that a Texas court might recognize a self‑executing obligation to produce Special Criminal Evidence. If so, a violation of that obligation would be “unlawful” for purposes of Rule 3.04.

Application to assumed facts. The Committee now turns to the specific statement of facts presented at the start of this opinion. The assumed facts involve an incarcerated client who, during a jailhouse visit, gives tangible evidence (letters) to his lawyer. At the time of receipt, the lawyer is not subject to any order or agreement that mandates producing the evidence to the State. The lawyer declines to produce the letters in response to an informal request from the prosecuting attorney but produces the letters when ordered to do so by the trial court.

The lawyer is not subject to a self‑executing obligation of production by virtue of the special character of the evidence. A letter from a victim does not qualify as Special Criminal Evidence, even if the letter might be incriminating or exculpatory. Specifically, such a letter is “ordinary evidence”— it is not contraband, a fruit or instrumentality of the alleged crime, a document directly involved in the perpetration of a crime, or other direct evidence of the client’s involvement in the crime (such as a bloody glove). A Texas criminal defense attorney has no obligation to turn over ordinary tangible evidence to the prosecuting attorney. That the lawyer receives the ordinary tangible evidence from an incarcerated client does not change the result, assuming the lawyer does not violate the law in the process.

No obligation to accept custody of evidence tendered by client accused of a crime. The Committee also notes that a lawyer is under no obligation to accept or act as custodian of tangible evidence tendered by a client accused of a crime. Assuming the lawyer does not believe the client will destroy the evidence if the lawyer refuses to accept it, and assuming the lawyer counsels the client as to the applicable laws regarding evidence preservation, the most prudent course is often to decline a client’s request to accept custody of evidence related to an alleged crime. See generally “What Do I Do with the Porn on My Computer”: How a Lawyer Should Counsel Clients About Physical Evidence, 54 Am. Crim. L. Rev. 751 (2017) (comprehensive discussion of advice that lawyers should give clients if lawyer declines to take possession of tangible evidence).

Unaddressed issues. This opinion does not address (a) the destruction or alteration of evidence, (b) a lawyer’s obligation with respect to mere information received from a client related to tangible evidence (e.g., the location of a corpse or murder weapon), (c) a lawyer’s obligation with respect to tangible evidence independently discovered by the lawyer or the lawyer’s agents, (d) evidence that is not provided directly to the lawyer by the client, or (e) evidence that might exonerate a co‑defendant or third‑party. The Committee also cautions that it offers no opinion regarding the application of criminal obstruction statutes and that prosecuting authorities may take a broad view on what conduct constitutes criminal obstruction or concealment.

Conclusion

A lawyer who elects to take possession of tangible evidence from a client in a criminal matter may not conceal that evidence from a prosecuting attorney or obstruct access to that evidence if doing so would be “unlawful.” A lawyer’s conduct with regard to potentially relevant evidence is unlawful if it is prohibited by statute, court order, or Mandatory Disclosure Obligation, as defined above. In general, however, a Texas lawyer is not required to disclose ordinary tangible evidence in a criminal matter in the absence of a court order or agreement. The common law may impose a self‑executing obligation of disclosure if a lawyer takes possession of Special Criminal Evidence , such as contraband, instrumentalities of a crime, or fruits of a crime. The precise scope of such an obligation is a question of substantive Texas law to be addressed by the courts. The failure to comply with a judicially recognized obligation of disclosure would be considered “unlawful” and would violate Rule 3.04(a).

Under the facts stated in this opinion, a lawyer who obtains ordinary tangible evidence from an incarcerated client does not violate the Texas Disciplinary Rules of Professional Conduct by refusing to produce the evidence to the prosecuting attorney until ordered to do so.

A lawyer is under no obligation to accept tangible evidence from a client charged with a crime. Assuming the lawyer does not believe the client will destroy the evidence if the lawyer refuses to accept it, and counsels the client regarding evidence preservation, the most prudent course may be to decline a client’s request to accept custody of evidence related to an alleged crime.

There can be brilliant artistry in good lawyering. Everything that arises from nothing – say, progressing from an initial client meeting to charting a thorough defense strategy – has required at least one person in one moment to stand in front of something blank and wonder: what is the most right thing to do next?

The art lies in the repeated conquests of uncertainty, or perhaps, the ability to share space with that uncertainty yet find a way forward. The examples are many, but the one that comes strongest to mind is the anxiety we feel in those moments where trial creeps closer and closer and we find ourselves in that continual, turbulent swirl where we think we have the right words and questions and then, suddenly, on a late night drive back from a jail‑visit, wonder if anything we have done is remotely adequate. We are, in those moments, artists, and regardless of how self‑ critically we assess our own ability to create, that’s precisely what we must do. Because, no matter how we get there – through logic or invention or some combination of the two – the time will come when we must stand and show our slew of audiences what we have prepared. And it’s those moments that Gus from Lonesome Dove describes best: “Well, here’s where we all find out if we was meant to be cowboys.” Art and creation are at my perpetual forefront because I am the Chief Public Defender for an office that is barely three‑months old. On December 5, 2021, there was officially no such thing as the Concho Valley Public Defender’s Office. The next day there it was: grant‑funded with a seven‑county coverage area (centered in San Angelo), with no real playbook.¹ But there it was and there I was, and in that long drive to the part of Texas that really should have some significant portion named for Tip Hargrove, I began my own wondering about what it means to create.

As the year unfolds, I plan to write more about what it means to build a Public Defender’s Office – successes and failures alike – but for now, I want to focus on the three areas that have been most important to our foundation.

Figuring out who we are and what we stand for

In many ways, this will be an ongoing,  ever‑evolving  process – as it should be. But our leadership team has spent a great deal of time huddling, sharing and editing ideas and drafts, and zeroing in on the essence of our who we are. What does it actually mean to be our office? What our governing why is? What principles encompass all that we say and do? Being frank is a repeated exercise in radical self‑disclosure as is being candid about fears and hopes along with allowing room for what arises. The process itself has been unifying and revealing.

The gravest mistake, I believe, is to rush past this into court. Appointments are easy for a Public Defender’s Office to come by. What is not easy to come by is building a team of people that aspires to be more than “relevant” in court in the long‑run. It takes patience, and commitment to the idea that a few months of foundation‑cementing will not only pay perennial dividends, but will ward off any sort of hasty entrance into a world that existed long before you were there.

The significance here, I believe, is that an initial goal should be the development of an authentic, clearly defined set of values that becomes a constant reference point for every decision we make. This ranges from what we consider important when we hire and how we set clear internal expectations, to drawing lines and setting boundaries – that is, creating parameters of accountability.

These critical values are ones we want our early staff to assist in creating. The values are empty words if they are thrust upon an unaccepting audience, but are powerful unifiers if they are the product of like minds working towards a shared goal. What is staggering, though, is how bonding the actual art of creating this internal pledge is. Each of us brings to the table a great deal of history that informs what we want this office to stand for. It is fascinating to see just how overlapping and simple the asks of humility, aspiration for excellence, shared passion, some combination of a kind and caring and supportive workspace are. The list is not surprising, but the act of building it has been one of the best things we have done as a young office.

Finding, appreciating, and celebrating your people

In these early days, there are two leadership principles I feel lucky to have discovered. The first is striving to be the humble choreographer of everybody else’s brilliance. At its most basic, it means that at any given moment, on any given subject, delighting in not being the most qualified subject‑matter expert in the room. And, as importantly, feeling privileged that you have that heightened level of excellence and thoughtfulness down the hall.

Choreographing this includes focusing on creating the environment encouraging the person who knows the intricacies of how to fight court costs better. It includes encouraging the person who knows how to prepare bond writs better and the person who knows how to automate repetitive motion  creation  better. It is finding and attracting this eclectic combination of spectacular minds and unleash them on the world, not to hire and stifle and ensnare.

The second principle was one that John Cage taught me when I first discovered the beautiful silence of 4:33 – let the words and questions and concerns of others be the soundtrack to your silence; gather them all. Harvest them. Explore them, pay attention to them, and let them inform what’s missing, what to adjust. Anyone can walk into a room with a megaphone – sometimes, I believe, the art lies in finding comfort in listening.

Both of these principles, soft‑ spoken as they may appear, are active behaviors. To conflate curiosity and quietude with weakness or inaction is to misread the power of what it means to encourage the people around you to reach – endlessly, endlessly – towards their own exceptionalism, and give them the space to do so. Choreography, after all, is a noiseless practice.

The privilege of collaboration

When I think of the people outside any office I have worked in who have taught me the most, I think of three: Clay Steadman, James McDermott, and Lisa Greenberg. This is not to ego‑stroke, it is to acknowledge at critical moments in my career, I have been more than fortunate to be able to talk with people whose experience adds meaningful weight to their words.

I have realized I am a phone‑ call away from the most whip‑smart people in the State. We are building a semi‑enclosed entity in San Angelo, yes, but that is more a function of geography than anything else. To be able to call Paul Chambers to discuss automation, Michelle Ochoa to hone a contested MTR practice, or Jani Maselli for any reason – it makes me tap my heart in appreciation. It is impossible to imagine laying any sort of foundation without appreciating the exceptional resources across the State that continue to redefine what it means to be generous with time and wisdom.

That brings me to a line from a book called Complexity, one that dives into the chaotic brilliance of complex organizations (of which, I believe, Public Defender Offices are very much a part): “The edge of chaos is the constantly shifting battle zone between stagnation and anarchy, the one place where a complex system can be spontaneous, adaptive, and alive.”

My hope is that our office thrives on this precipice – a sense of aliveness pervading all that we do, a space of controlled disarray allowing for the nonstop collision of ideas, and the solidarity that lets us smile at the acknowledgement that we are all in it together.

My thesis is that none of this happens without the time spent up front getting things right. Time will tell.