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Children Charged with Homicide

My Kids [These are fiction but derived from scenarios in cases I have defended.]

Story 1

Sherri, a 15-year-old high school student, drove a car filled with her teammates to an awards ceremony. Her soccer team had won a championship.  The car belonged to the parents of a 16-year-old in the car.  The parents had watched without saying anything as six teenagers in a celebratory mood piled into the car with their 16-year-old taking the driver’s seat. When the girls got out of sight from the house, however, the 16-year-old let Sherri drive.

The girls were laughing, texting, listening to music, and kidding around. Sherri ran a stop sign going about 50 in a 35-mph zone and T-boned a sedan driven by an elderly woman. The elderly woman was injured but survived and recovered fully. All of the girls in the car driven by Sherri were taken to a hospital. One of them died. She had been in the front seat and had undone her seatbelt to turn around and talk to a teammate in the back.  Sherri and that girl were co-captains of the soccer team and best friends forever. The girl was also an honors student. Her mother was the court coordinator for a local district judge. Sherri was a star at the high school and had come from a low-income family.

When Sherri was taken to the hospital in the ambulance, the two law enforcement officers that responded to the call on the accident followed behind.  Once the attending medical personnel determined she had no serious injuries, they allowed the officers to go into the room where Sherri was. The officers questioned Sherri, telling her that she wasn’t under arrest, but that she might not be able to go home with her parents when they got there if she didn’t answer some questions first. When her parents showed up at the hospital, the officers arrested Sherri.

Claiming he was under a lot of political pressure, the district attorney said he couldn’t handle the matter as an ordinary delinquency case. He decided to charge the case as manslaughter, but wouldn’t handle it as a determinate sentence case. He was afraid a jury might return a verdict of guilt on the lesser included offense of criminally negligent homicide. Doing so would kick the disposition back into the ordinary delinquency category. See Tex. Fam. Code Ann. §§ 53.045 & 54.04(d)(2). He petitioned for discretionary transfer of the case to criminal district court to try Sherri as an adult pursuant to § 54.02 of the Texas Family Code. She was old enough. The transfer would solve the prosecutor’s problem of ending up with a progressive sanctions disposition under Texas Family Code § 59.003.

The prosecutor gathered the materials necessary for his presentation, including the complete diagnostic study, social evaluation, and full investigation required by Texas Family Code § 54.02(d). He got an expert to opine on the four factors set out in Texas Family Code § 54.02(f). Sherri’s lawyer got an expert to dispute the opinions of the State’s expert, including, among other things, that (1) Sherri had the appropriate maturity and sophistication to try her as an adult, and (2) that the resources available in the juvenile justice system were not adequate to protect the public and rehabilitate. Sherri’s statements to the police and written statements from the other girls in the car came into evidence during the hearing. The judged reasoned that guilt/innocence was not the issue in the hearing on discretionary transfer. Discretionary transfer of jurisdiction was. Neither the Fifth Amendment protection against coercive interrogation nor the Sixth Amendment right to confrontation of witnesses applied. See e.g., B. L. C. v. State, 543 S.W.2d 151 (Tex. Civ. App.—Houston [14th Dist.]1976, writ ref’d n.r.e.) and Matter of P. A. C., 562 S.W.2d 913 (Tex. Civ. App.—Amarillo 1978, no writ).

The judge made the required findings of probable cause that Sherri committed manslaughter as alleged and that adult criminal proceedings were necessary to protect the community due to either the seriousness of the offense or Sherri’s background as required by Texas Family Code § 54.02(a)(3).  The judge kicked the case to the criminal district court pursuant to Texas Family Code § 54.02(h). Sherri’s family made bond for her as allowed under Texas Family Code § 54.02(h-1) . The case proceeded in district court while appeal of discretionary transfer was pending because said appeals do not stay the proceedings under Texas Family Code § 56.01 (g-1). A year later, the appellate court delivered an unfavorable ruling on the challenge to discretionary transfer. By then, the case had already been tried in district court.

At the district court, in a pretrial hearing on a Motion to Suppress, the judge ruled that the interrogation of Sherri at the hospital was not custodial. He ruled that there had been no violation of the statutes upon which Sherri’s lawyer relied in the Motion to Suppress, Texas Family Code §§ 51.095, 52.01, and 52.02. Her statements could be admitted before the jury. Settlement negotiations didn’t succeed, and the case went to trial. A Jury rejected the manslaughter charge, convicted on the lesser of criminally negligent homicide, and gave Sherri the maximum sentence of two years in a state jail facility. Sherri Appealed. The trial judge let her stay out on bond during the appeal. Sherri finished high school while the appeals were pending. When the appellate process played out against her, Sherri surrendered to begin her sentence. After 75 days, she applied for Shock Probation under Texas Code of Criminal Procedure Article 42A.558. The trial judge granted the application.

Story 2

Wendell was a 13-year-old chess whiz. He was also a victim of bullying at school, particularly harassed by a fellow named Max that came from a wealthy family and was probably the best football player ever to attend the small-town high school. Wendell had a crush on the girl that Max considered his girlfriend. She was a cheerleader, but like Wendell, she came from a low-income family. Max found out that the girl and Wendell had been talking after school. He caught Wendell after school and beat him silly. When asked who beat him up, Wendell wouldn’t snitch.  Then, Max slapped the girl around and neither the school nor the cops did anything about it. Wendell got himself a shotgun and lay in wait for Max. When Wendell caught Max in a secluded spot, he blew his head off. 

Since Wendell was only 13, he couldn’t be certified as an adult under Texas Family Code § 54.02(a)(2)(A). The district attorney sought and gained approval from a grand jury for prosecution under the determinate sentence statute, Texas Family Code § 53.045. A juvenile determinate sentence case could be tried in a county court at law, a district court, a criminal district court, or family district court. See Tex. Fam. Code Ann. §§ 51.04 (b) and (c). In Wendell’s small hometown, it would be the district court.

Wendell was entitled to a trial by a jury both at the guilt/innocence stage and at the disposition, should the State convince a jury beyond a reasonable doubt that Wendell had engaged in delinquent conduct or conduct indicating a need for supervision and that the allegation against him was true. See Tex. Fam. Code. Ann. §§ 54.03(f) and (h). A jury [or judge should he prefer] could sentence him up to 40 years. See Tex. Fam. Code Ann. § 54.04(d)(3)(A)(ii). Eventually, he agreed to a plea bargain for a determinate sentence of 20 years and the trial judge accepted the plea pursuant to Texas Family Code  § 54.03(j).

Unless a sentence is probated (See Tex. Fam. Code 54.04(q)), determinate sentencing requires a minimum stay in a secure facility operated or approved by the Texas Juvenile Justice Department (hereinafter TJJD). See Tex Hum. Res. Code § 245.051(c). After that, TJJD may release the juvenile into an accepted setting of supervision. Wendell served his 3-year minimum sentence at TJJD. See Tex. Hum. Res. Code §245.051(c)(2). He participated in rehabilitation programs, started a chess club, and otherwise behaved impeccably. He was never referred to the juvenile court for a review under Texas Human Resources Code § 244.014. An unfavorable ruling from the court in such a hearing would have sent Wendell to prison to complete his sentence. See Tex. Fam. Code. §54.11(i)(2). When Wendell turned 18, the TJJD did an assessment according to Texas Human Resources Code § 244.015. Then, the Department referred Wendell to the juvenile court for a hearing under Texas Human Resources Code § 245.051(d) and Texas Family Code § 54.11.  Having the options of either sending Wendell back to TJJD with approval for release or without such approval, the judge chose the latter, saying that the severity of the offense overrode the positive reports of Wendell’s behavior while in the TJJD facility. See Tex. Fam. Code §54.11(j)(2). On his 19th birthday, Wendell was transferred to the custody of the Texas Department of Criminal Justice to serve the remainder of his sentence on parole as provided by Texas Government Code § 508.156 and Texas Human Resources Code § 245.151(e).

Story 3

Warren came from a very affluent family. Big fish in a small pond. Very powerful locally. He had no criminal history at age 16. He had decent grades in high school and was generally well-liked by students and teachers. He was a decent football player.

But Warren chafed at the image of unearned privilege that came with his family’s affluence. He aspired to be a Hip Hop rapper. He started drinking alcohol and smoking marijuana. He took up with some other wannabees. One of them fancied himself to be some sort of gangster. He had started accumulating an increasingly violent juvenile criminal history.

Warren got in a car with that kid. The kid told Warren that they were going to go smoke some weed. They stopped at a smoke shop to get some smoking paraphernalia. While in the store the other kid tried to shoplift some stuff. When the shop-owner saw him, he yelled and pulled out his cell phone. The kid pulled a gun out of from a jacket pocket and shot the shop-owner dead. The two boys ran out of the shop to the car and sped away. Within a few days, they had left a sufficient trail of school yard chatter and social media allusions to lead law enforcement to them.  Both were arrested.

The district attorney came to Warren’s attorney and made an offer. If Warren testified against the shooter, who had just turned 17 when the shooting occurred, the State would not seek a determinate sentence or discretionary transfer. They would let him plead true to the allegation of murder in juvenile court without grand jury approval of a determinate sentence request. The agreed disposition, subject to the Court’s approval, would be to serve time in a secure facility of the Texas Juvenile Justice Department for a period of time to be determined by the Department. See Tex. Fam. Code § 54.04013; Tex. Hum. Res. Code §§ 243.002 & 245.101.  By using a copy of a TJJD form CCF-040, Warren’s attorney determined that Warren would probably be assessed for a minimum of 24 months in custody. The alternative would be to take his chances of either a determinate sentence of up to 40 years, or certification as an adult, a capital murder conviction, and life with possibility of parole. Warren accepted the deal. The juvenile court judge indicated approval of the arrangement and, by agreement of all parties, stayed the adjudication and disposition proceedings until after Warren fulfilled his obligation as a witness against the adult defendant.

Children Charged with Homicide – Part Two
Selected Cites with Scant Commentary

This outline maps some places of interest that one may want to visit when touring the world of Texas Criminal Jurisprudence in juvenile homicide cases. It is not detailed topography.

I. Elements Common to Juvenile Homicide Cases

A. Pretrial Detention – Unless jurisdiction over the Child has been relinquished by the juvenile court under Tex. Fam. Code  §54.02, the detention provisions under Tex. Fam. Code §§51.12 & 54.01 govern:

      1. Ordinary Delinquency Proceedings,
      2. Determinate Sentence,
      3. Discretionary Transfer; unless and until transfer is ordered, at which time the child gets treated like a grownup. Tex. Fam. Code Ann. §54.02(h-1)

B. Interrogation

      1. Tex. Fam. Code
        1. §51.095 Admissibility of a Statement of a Child [This is the foundational statute by which custodial interrogation of a juvenile should be scrutinized.]
        2. §§52.02 and 52.025 [regarding law enforcement handling of detained juveniles, generally.]
      2. Tex. Code Crim. Proc. Art. 38.22 & 38.23
      3. United States and Texas Constitutions

C. Procedure at the Time of Arrest – For scrutinizing and litigating propriety of detention, arrest, and interrogation of a child, one should familiarize the self with §§51.09, 51.095, 52.01,52.02, 52.025, and 52.04 of the Tex. Fam. Code. These statutes and the case law interpreting them address the way law enforcement should conduct detention, arrest, and interrogation, where they should be doing it, what efforts should be made to involve parents, and what the role of a magistrate should be.

D. Constitutional Protection against illegally obtained evidence. Tex. Fam. Code §54.03(d) & (e)

E. Burden of Proof for State at Trial Beyond a Reasonable Doubt. Tex. Fam. Code §54.03(f)

F. Procedural Rules and Rules of Evidence. Tex. Fam. Code Ann. § 51.17 [the general rule unless and until discretionary transfer occurs]. Generally, the Rules of Civil Procedure apply, but this statute states exceptions. The rules of criminal evidence and criminal discovery apply. The burden of proof regarding guilt is beyond a reasonable doubt. The statutes pertaining to determinate sentence proceedings incorporate other rules from the Texas Code of Criminal Procedure. If a court waives jurisdiction and exercises discretionary transfer of a case, procedural and evidentiary rules are generally those from the Texas Code of Criminal Procedure and the Texas Rules of Evidence. An important exception is that “The admissibility of a statement made by a juvenile is governed by section 51.095 of the Texas Family Code.” Meadoux v. State, 307 S.W.3d 401, 408 (Tex. App.– San Antonio 2009), aff’d, 325 S.W.3d 189 (Tex. Crim. App. 2010).

Note that federal and state constitutional rights traditionally afforded adults in criminal cases are generally considered also available to juveniles. “Even though a juvenile does not have a right to a jury under the federal constitution and may not have such a right under the state constitution, the legislature has given a right to jury trials to juveniles; because Texas has chosen to grant that right, it must also act in accordance with due process.” In re C.H., 412 S.W.3d 67, 75 (Tex. App.—Fort Worth 2013, pet. denied).

II.Three Options in Juvenile Homicide Case

A. Proceeding With Petition in Juvenile Court

      1. Juvenile Court Jurisdiction Generally- Tex. Fam. Code §51.04

The court of juvenile justice jurisdiction is designated by a Juvenile Board. It may be a District Court, County Court at Law, Constitutional County Court, Domestic Relations Court [Family], or Statutory Juvenile Court. Tex. Fam. Code Ann §51.04(b)

      1. Pleadings – Tex. Fam. Code § 53.04
      2. Jury in Juvenile Court ordinary Delinquency Proceeding – Tex. Fam. Code §54.03(c) and Tex. Code Crim. Proc. Art. 33.01; For felonies 6 if county court, 12 if district court
      3. Jury Verdict on Guilt/Innocence Regarding guilt or innocence, the finding initially is whether the child did engage in delinquent conduct or conduct indicating a need for            supervision. If the verdict return reads, “We the jury find that the child,_________ did not engage in delinquent conduct or conduct indicating a need for supervision”, then the jury has done its work and the judge must dismiss the case with prejudice. Tex. Fam. Code §54.03(g)

        If the verdict signed read’s “We the jury find that the child,_________ did engage in delinquent conduct or conduct indicating a need for supervision”, then the jury should enter a verdict of “True” or “Not True” on each offense presented to the jury. Tex. Fam. Code §54.03(h)

        If the finding is that the child did engage in delinquent conduct or conduct indicating a need for supervision and the jury has stated which of the allegations in the petition were found to be established by the evidence, the court sets a date and time for the disposition hearing. Tex. Fam. Code §54.03 (h)

      4. Disposition and Punishment If Verdict of True on Offense(s).
        1. In ordinary delinquency proceeding, on for which the prosecutor has not submitted to a grand jury for approval of a determinate sentencing proceeding, the Judge does the disposition hearing. Tex. Fam. Code §54.04(a)
        2. Look at Progressive Sanctions statutes Sanction Level Assignment Model, Tex. Fam. Code 59.003(a)(3) [state jail felony] through (a)(7) [capital]
        3. Commitment to TJJD, See § 54.04013, also 29 Tex. Prac., Juvenile Law and Practice § 22:3 (3d ed.)
        4. Minimum Time TJJD, Establishment of Minimum Length of Stay, Tex. Hum. Res. Code § 243.002, Check out sample TJJD Minimum Stay Worksheet CCF-040
      5. Right to Appeal- It is generally governed as a civil case. There is a list of specific decisions that may be appealed. Tex. Fam. Code § 56.01

B. Determinate Sentence

      1. Laundry List of Eligible Offenses at Tex. Fam. Code Ann. § 53.045(b)
      2. Adjudication Proceeding with a Jury
        1. Court of Jurisdiction –county court at law, district court, criminal Tex. Fam. Code 51.04(b)
        2. Jury size 12. Tex. Fam. Code §54.03(c),Same number of peremptory strikes as afforded in district court under Tex. Code Crim. Proc. Art. 35.15(b).
        3. Verdict – Initially, the question is whether or not there is delinquent behavior in need of supervision, same as in ordinary delinquency proceeding. If any of the findings of true are on offense approved by the grand jury for determinate sentencing, the disposition proceeding is to the court or the jury. If the jury finds delinquent behavior but only on an offense not approved by the grand jury, the disposition statute says that the court proceeds without the jury to a disposition hearing as would occur in an ordinary delinquency proceeding. Tex. Code Ann.§54.04(a)
      3. Disposition – The child has a right to jury if notice given before voir dire. The child may change his [her] mind later if there is finding of delinquent conduct. Permission from State must be gotten. Tex Fam. Code §54.04(a). However, as stated above, there is no right to jury on disposition if no finding on covered offense in multi-count petition.
      4. Range of punishment for Homicide case Capital Murder under Tex. Penal Code §19.02 and, 1st degree felony murder under Tex. Penal Code §19.03 = up to 40 years 2nd degree felony murder under Tex. Penal Code §19.02(d) and Manslaughter under Tex. Penal Code Ann. §19.04 = up to 20 years Tex. Fam. Code 54.04(d)(3)
      5. Probation if the sentence is 10 years or less. Tex. Code §54.04(q) suspension of sentence, §54.05 modification or revocation of probation.
      6. Right to Appeal
        1. Respondent Appeal in determinate case is the same as an ordinary delinquency case. Tex. Fam. Code §56.01 (c)(1)(C)
        2. The State’s right to appeal is covered by Tex. Fam. Code §56.03(b), same as Tex. Code Crim. Proc. Art. 44.01

C. Discretionary Transfer to District Court

Waiver of Jurisdiction and Discretionary Transfer to Criminal Court Tex. Fam. Code §54.02

      1. Criteria for eligibility:
        There must be a Felony allegation Tex. Fam, Code Ann. §54.02(a)(1)
        The Juvenile’s minimum age is 14 if the alleged offense is capital or 1st degree;
        15 if the alleged offense is for 2d, 3rd, or state jail felony, Tex. Fam, Code Ann. §54.02(a)(2) A & B
        There must be a full investigation and a hearing. To waive jurisdiction and transfer the case the juvenile judge must find:

        1. “there is probable cause to believe that the child before the court the offense alleged” and
        2. “that because of the seriousness of the offense alleged or the background of the child, the welfare of the community requires criminal proceedings. Tex. Fam, Code §54.02(a)(3)
      2. Procedure of discretionary transfer hearing for a juvenile under 17 at time of the hearing is covered by Tex. Fam. Code §§54.02 (b) – (h).

Highlights

  1. No Jury for Discretionary Transfer Hearing, Tex. Fam. Code § 54.02 (c)
  2. The judge will order what is described as “a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.” Tex. Fam. Code § 54.02(d)
  3. The list of material that the judge will review and the issues the judge will consider for making a decision are explained in Tex. Fam. Code §54.02(e) & (f).
  4. The judge must retain or transfer jurisdiction on all charges included from the petition based on a particular criminal episode. The statute uses the word “transaction”. There is an exception that seems to refer to a situation where a transaction has already been ruled on and someone’s death later provides the missing element for a homicide charge. Tex. Fam. Code § 54.02 (g) & (g-1). However, a case jiggles the apple cart. It states that what the judge transfers is not necessarily the offenses identified in the petition, but rather the conduct encompassed. Livar v. State, 929 S.W.2d 573 (Tex. App.—Fort Worth 1996, pet. ref’d). There is also Tatum v. State, 534 S.W.2d 678, 680 (Tex. Crim. App. 1976), stating the juvenile court’s transfer order needn’t apprise appellant of the specific crimes for which he might be charged in criminal court. If the “transaction” is a complicated one, it might be good practice to get the State to specify the scope of conduct in the “transaction” and the judge likewise as to what he or she transfers.
  5. The judge should deliver specific written reasoning for a decision to waive jurisdiction and transfer a case.

Tex. Fam. Code § 54.02(h), but this law has been heinously watered down. Ex parte Thomas, 623 S.W.3d 370, 372 (Tex. Crim. App. 2021), reh’g denied (June 23, 2021); overruling Moon v. State, 451 S.W.3d 28, 31 (Tex. Crim. App. 2014).

  1. Discretionary Transfer Punishment Ranges
    1. Capital – Life with parole possibility after 40 years. Tex. Pen. Code § 12.31
    2. Murder – 5 to 99 with possibility of parole Tex. Penal Code §12.32
    3. Manslaughter – 2 to 20 Tex. Penal Code §12.32
    4. Crim Neg homicide – 6 months to 2 years State Jail Facility Tex. Penal Code §12.35

There are lawyers versed and experienced in juvenile justice law and lawyers versed and experienced in criminal defense of homicide cases.  When considering the representation of a child charged with homicide, those lawyers fitting in one category should seek the guidance of a lawyer fitting in the other.

Blue Dot Marks the Spot? Questioning Location Service Data in Legal Cases

FBI search warrants for Google Location Service and Geofence data in the U.S. Capitol Hill siege investigation have attracted significant legal and media attention in recent months1. Less well known, however, is the fact that U.S. Government agency subpoenas and search warrants issued to Google have increased more than ten-fold in the past decade2. See Exhibit 1 below.

Exhibit 1. Requests by U.S. Government agencies to Google

In this article, we discuss the use of data from Google Location Services and other proprietary location services in court. The geographical location data provided by these services can be based on cell towers, Wi-Fi, global positioning systems (GPS), or any combination of these sources. Each of these technologies provide a valid source of location data; however, as with any data, it is important to understand the theory and technology upon which the ultimate conclusions are based, including model assumptions and the way the data is stored and subsequently retrieved. Furthermore, when such data is used in legal proceedings, we must adhere to existing standards for the admissibility of scientific evidence.

In 1993, the Supreme Court set the standard for expert testimony in the seminal case (Daubert v. Merrell Dow Pharmaceuticals, Inc., 1993)3.Under the Daubert standard, factors considered in determining whether scientific evidence is admissible now include4:

  1. whether the theory or technique in question can be and has been tested
  2. whether it has been subjected to peer review and publication
  3. its known or potential error rate
  4. the existence and maintenance of standards controlling its operation, and
  5. whether it has attracted widespread acceptance within a relevant scientific community

A key issue when using location services data is that the technology and algorithms involved are often proprietary, so clear and transparent responses to Daubert standards are not forthcoming. When a Government Agency obtains location history records from Google in response to a subpoena, the first line of the received document states “Google Confidential & Proprietary”. Right underneath, it describes the “Display Radius” value as “depend[ing] on a great many factors and is an approximation sufficient for its intended product uses.” The “Display Radius” is a critical parameter when assessing the potential error in Google location data: it is the uncertainty of the Blue Dot, a circular area that expands with uncertainty. Because of the proprietary nature of the software, it is not clear how this number is calculated, nor what the “intended product uses” are.

Proprietary issues relating to location services data are not confined to Google. Another location data source that is frequently subpoenaed by government agencies is Network Event Location System (NELOS) from AT&T, which goes beyond standard fixed cell tower records. Standard fixed cell tower records show the cell tower that a particular cellular phone connected to at a particular time. In most circumstances, this will be the cell tower with the strongest signal, not necessarily the closest proximity. Such data can be used to determine the general direction a cellular device is moving using a standard process that is well-known, well-tested, and has been subject to extensive peer-review.5

NELOS, in comparison, adds additional sources of information to explicitly estimate the location of the cellular device at a singular moment.  “Possible sources of information relied upon to create NELOS reports include GPS, Wi-Fi signals, single cell towers, or cell tower triangulation. But there is no indication within a NELOS record which of these sources provided any one location, or what database it was derived from and who controls that database. And even if the specific database and the locational source were known, it is not possible to verify the location of the source on the date in question over one year ago. Thus, it is impossible to verify the reliability, accuracy, or authenticity of the data”.6 Recognizing reliability issues in its own NELOS records, AT&T adds the following disclaimer to the top of its document “The results provided are AT&T’s best estimate of the location of the target number. Please exercise caution in using these records for investigative purposes as location data is sourced from various databases which may cause location results to be less than exact”. In a recent Daubert hearing7, some of these NELOS issues were raised. In this hearing the proprietary nature of the estimation algorithm was addressed more explicitly, with particular focus on the black box nature of the location estimation and the absence of scholarly review and evaluation of the technology.

Similar legal concerns should be raised with Google Location Services data. Many of the pertinent issues involved with Google location data are discussed in the academic paper “Google timeline accuracy assessment and error prediction”8, which is the only peer-reviewed journal paper to investigate Google Location Services data that we are aware of. The authors discuss the proprietary nature of the data: “Google withholds information about its algorithms on how the location estimation is computed, and which variables and parameters influence it.” This, like the NELOS algorithm, warrants careful consideration under the Daubert standard.

The researchers tested Google Location Services data because “In order to be able to harness this information in court or for justice purposes, an assessment of the accuracy has to be performed”. Unfortunately, any testing process is complicated by the fact that Google does not reveal its estimates of your location in real time on your device. This is a subtle but important point – we should be able to check that Google’s estimates on a specific device, at a specific time, match the data that is stored and subsequently retrieved from Google Location Services. By contrast, we can do independent real time field tests on cell tower, Wi-Fi, and GPS data. The researchers overcame this issue by time-stamping real time measurements from dedicated GPS devices, their “ground truth” measurements, and comparing them with Google Timeline data that they downloaded later. This absence of real time Google location data complicates testing limits peer review and publication, and raises questions over the existence and maintenance of standards controlling its operation.

The Dutch authors provide a very detailed and statistical account of their experiments, concluding that “Google locations and their accuracies should not be used in a definite way to determine the location of a mobile device”. With GPS, device accuracy was within Google’s “Display Radius” 52% of the time, and with Wi-Fi only that fell dramatically to 7%. As discussed earlier, we don’t know exactly how the “Display Radius” is calculated, but the Dutch research indicates the device was outside of Google’s own radius of uncertainty in 93% of measurements when Wi-Fi was the location source. This isn’t just a speculative concern-in a recent case, a recent case, the defendant’s location history was sourced from Wi-Fi approximately half the time, which obviously raises serious concerns.

Google responds to Government Agency subpoenas with a location history spreadsheet that contains a “Source”, which can switch between “GPS”, “CELL” or “WIFI” at different times, as well as a “Timestamp”, “Latitude”, “Longitude”, “Display Radius”, “Device Tag” and “Platform”. However, it is not clear if the “Source” is a raw value, e.g., GPS only, or a blend of cellular, Wi-Fi, and GPS data that is most heavily weighted toward GPS. Ideally, we would have separate data for each of the raw location sources, as well as the final Google estimate. Without specific details it is hard to know how the “Latitude”, “Longitude”, and “Display Radius” data are calculated, as well as why and how the data switches between “Sources”. These are all black box functions of the Google Location Services algorithm.

In addition to issues relating to the proprietary nature of the technology and algorithms used to estimate location, there are also unknowns relating to data storage and retrieval. Google Location Services data is based on a Google account username rather than internationally recognized identifiers for electronic equipment. A Google user could log into Google Location Services on multiple devices and have multiple location histories in their account. By contrast, call detail records are based on a unique MSISDN, or cell number, and a unique IMEI, or international mobile equipment identifier, so at each timestamp we can be confident we know a specific device connected to a cell tower. In Google location data the latitude and longitude estimates are associated with a “Device Tag”, which appears to be Google’s proprietary device identifier. Mapping a “Device Tag” to a more conventional IMEI should return the device data, though it is not clear why such tags are used or whether mapping errors can occur.

After being subpoenaed by a Government Agency, location data is typically plotted in mapping software and used as evidence in court proceedings – a blue dot that marks the spot can be very compelling to a jury. As such, a proprietary spreadsheet from Google or AT&T can become pivotal evidence in legal proceedings. Careful consideration of the data, its limitations, and whether it even meets existing standards for the admissibility of scientific evidence is required. A common theme amongst all these technologies is that they are proprietary and have not been subject to extensive independent scholarly review and evaluation. We believe that cell tower, Wi-Fi, and GPS are very important sources of location data, and we welcome more transparent details from the location service providers, as well as further independent research and evaluation. We believe that the Daubert standard provides a logical starting point for discussions of location services data in legal cases – it is established, methodical, and scientific.

A Great Criminal Defense Attorney is a Zealot, Despite its Negative Connotation

The defense attorney-client relationship is like no other. It’s a tie that binds two very different people caught up in a high stakes battle—over money, custody, liability, freedom—even life. A client tells defense counsel sacred secrets carried to the grave.

The relationship also defies categorization. It isn’t familial or grounded in friendship. It isn’t sexual. And yet, it is inherently romantic; propelled by ardent need, it is at times surprisingly intimate. The bond asserts primacy, often to the detriment of others.

In law school, students are taught that a good defense attorney is a “zealous advocate.”

The noun version of zealous is zealot, defined as a fanatical believer in a greater calling. A zealot, with all of its negative connotations, is not what law students are told to be. A zealot is an extremist consumed by blind fervor who does dangerous and terrible things.

But after 20 years of practicing criminal law, I have come to believe that any defense lawyer who aspires to excellence is by necessity a zealot. A lawyer with the fire in the brain.

The fire drives the lawyer to take the hard cases. Up against the law, the facts and power of the state, the defense lawyer gets punched in the face, pinned to the mat and pulverized by a foe endowed with endless resources. There is vanishingly little they would not do for a client in dire straits, even at the expense of people and institutions they love dearly.

Sir Henry Brougham, a Scotsman, member of the House of Commons and a very able attorney, made this point to a dubious British Parliament in 1820. That year, George IV ascended the throne, becoming king of England. Almost immediately, he sought to strip his wife, Caroline, of her title as queen. King George despised his wife, and when she would not be bribed into leaving quietly, he pressed his allies in Parliament to introduce a Bill of Pains and Penalties to exile her from the monarchy because she had consorted with “a foreigner of low station” while living abroad. It was Brougham’s job to defend the queen.

Witness after witness came forward with titillating details of Caroline’s purported perfidy, all second- or third-hand reports. This testimony, elicited by the solicitor general for England and Wales, went on for days in the House of Lords. Caroline’s reputation was in tatters, her claim to the throne increasingly tenuous.

What no one had counted on, however, was Brougham’s savvy and ferocity. A supporter of the abolitionist movement and of reforms to the legal system that perpetuated unfairness and inequity, Brougham fought back. The real culprit, Brougham told Parliament, was the king himself, a man of few scruples and excessive appetites, who had not only cheated on his wife with numerous women but had secretly married one of them.

When the prosecution rested and Brougham prepared to introduce these revelations, many prevailed upon him to hold his tongue. Disgracing the king in this way could imperil the monarchy. Better to stay silent than pose this existential threat. Refusing, he explained:

“An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, among them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.”

I often reflect on Brougham’s words. In my 20s and early 30s, when I was a deputy federal public defender living in Los Angeles, I spent most of my time at work. I thought about my clients’ problems constantly. When I left my job in 2008 to follow my then-boyfriend north, I transitioned into clinical teaching in a law school setting. That meant fewer clients and less time in court. I married my boyfriend, and we had two children. I assumed that these life changes and the greater domesticity associated with them would loosen my clients’ claim on my time and attention; that the fires they lit in my brain would be reduced to embers.

But that’s not what happened. In 2013, my law students and I fought to free a man who had been wrongfully convicted of murder. He spent 34 years in prison for a crime he did not commit. The weeks-long retrial took a year of preparation. The case was in Los Angeles; I lived with my husband in San Francisco, our children were 4 and 2. But I, like Brougham, knew only one person in the world. I left my family for long periods of time.

Today my client, who was exonerated, is home.

That client’s success story, however, is an anomaly. I’ve represented hundreds of people. Often, those cases end in abject failure: convictions, lengthy sentences, unsuccessful appeals to indifferent courts. That is what it means to represent people on the wrong side of the facts, on the wrong side of the law. That is what it means when, inside and outside of the legal system, your clients are viewed as disposable. For every falsely accused, wrongfully convicted, or excessively sentenced client who prevailed against long odds, there are hundreds more languishing. Some will never get out.

A few of the clients I did manage to help, got into worse trouble later on or died early. The endless frustration and mounting exhaustion, the rage and despair I feel when I look at this bigger picture is at times incapacitating. And yet, all these years later, there is still a fire in my brain. Sometimes, I wish it would die out.

Brougham’s defense of Queen Caroline drove public opinion toward his client. Faced with a tidal wave of outrage on her behalf, the prime minister withdrew the bill. Though King George refused to let his wife attend the coronation, he could not deprive her of her title. But she held it for a scant three weeks before falling ill and dying. Brougham’s great victory, like so many legal battles, proved to be a Pyrrhic one.

Why choose to be this kind of lawyer, the one who fights for a stranger without regard “to the alarm, the torments, the destruction” it visits upon others, who may be friends, family, loved ones or the victims of what your client is accused to have done? You will lose and lose and lose, and even when you win, sometimes you will lose anyway.

Defending a client is less a job than a siren call: “To save that client by all means and expedients, and at all hazards and costs to other persons, and, among them, to himself, is his first and only duty,” said Brougham.

Great lawyers believe this.

Sometimes, I picture a different life. In this life, I step back, step away. I create inviolable boundaries. But then I think of Brougham’s words and their wounding truth. To aspire to greatness as a lawyer is to be afflicted by a single-minded ruthlessness and overriding sense of obligation in pursuit of a victory that is, at best, unlikely and fleeting.

That is the only kind of lawyer I know how to be. A zealot.

“Out the Window”

Raymond Townsend, a handsome young prosecutor stands before twelve jurors. Raymond’s suit fits him perfectly, and his white shirt and blue tie accentuate his pearly white teeth and sparkling blue eyes. 

“So ladies and gentlemen, when you look at the evidence in this case, with the Defendant being caught with almost four pounds of ecstasy.”

Raymond points to his table, where four square shaped bundles lay.

“And these drugs are physically strapped to his body, and he’s caught at customs returning from his trip to Amsterdam…”

Enthralled, the Jurors look glassy eyed at Raymond, almost as if he were a God.

“Then you must find him guilty.”

Raymond points to Stan Bladsill, a tattoo ridden, grungy looking middle-aged Defendant. Sitting next to him is Peter Baggett, known as “Pistol Pete” to his friends, few though they are. Baggett looks like a shot out middle-aged criminal defense attorney barely hanging on to life. The Jury stares at both of them angrily.

“To do anything else would be simply throwing the law, the evidence, and any sense of justice out the window.”

Raymond walks back to the prosecution table and sits down.  Judge Bill Anderson, a silver haired, distinguished looking judge, peers down sternly at Pistol Pete.

“Mr. Brewster, you may present your closing argument.”

“Yes sir, just one moment.”

Pistol Pete whispers in Bladsill’s ear.

“I think we should ask for a recess.”

“No way man. I want this to be over with.”

Pistol Pete looks worried. “I’m just saying, I could talk to the prosecutor about a plea bargain for less than ten.”

“I can’t go to prison, you feel me?”

“I know but that jury’s gonna’ hang us. Look at ‘em.”

They look at the Jury, who look like angry villagers with torches. Bladsill looks at Pistol Pete.

“You said if I gave you five hundred bucks, you’d make sure I wasn’t convicted.” “But-”

“If you don’t get me outta’ this, I’m goin’ to the bar and complain!”

Pistol Pete looks horrified.

“But one more client complaint and I’ll be disbarred.”

“Then earn your money.”

The Judge looks at him impatiently.

“Come on counsel. The Jury’s waiting.”

Pistol Pete looks up at him.

“Yes sir.”

Pistol Pete looks around and sees the Court Reporter giving him a smug look. Pistol Pete thinks a beat, then rises. He walks over to the Prosecutor’s table and picks up a bundle of drugs. He walks over to the jury, casually tossing it back and forth between his hands.

“Ladies and Gentlemen, the most important thing to remember about this case is that ecstasy, though illegal, is a harmless drug.”

Pistol Pete tosses the bundle from his right hand to his left hand sharply. He deliberately misses it and it flies hard into the eye of the Court Reporter. It hits him with a loud THUNK!

The Court reporter screams “Ahhh” and bends over in pain.

The Jury looks at Pistol Pete with a toxic brew of disgust and outrage. Infuriated, the Judge looks at Pistol Pete.

“Ladies and Gentlemen, we need to take a short recess while we attend to this sudden medical crisis caused by Defense Counsel.”

Pistol Pete shrugs his shoulders innocently and looks around.

Later that day…

The Court Reporter sits in his chair with his fingers on his stenotype. He has a bandage over one eye. He looks very pissed off. So does everyone else except Pistol Pete and Bladsill, who hunker over to each other and whisper.

“I thought that would work.”

“What?”

“Taking out the court reporter.”

“What would that accomplish?”

“No court reporter, no trial.”

“But I want a not guilty!”

“I promised you wouldn’t be convicted. I never promised you an acquital.”

“What?”

“You always gotta’ read the fine print.”

“We never even had a contract.”

“It’s a figure of speech.”

“Well, whatever you’ve got in mind, do it fast.”

The Judge looks down at them impatiently.

“Counsel, continue your closing argument, now!”

Pistol Pete looks at the Judge.

“Yes sir.”

Pistol Pete gets up and walks over towards the jury. He picks up a bundle of drugs. The Jury winces slightly and they lean back. He looks at them and smiles innocently. He thinks for a moment, then sets the drugs back down. The Jury relaxes.

“What I was trying to say, ladies and gentlemen is that ecstasy is not a dangerous drug.”

 Raymond whispers under his breath, but loud enough for the jury to hear “Unless you’re holding it.”

The Jurors snicker and look approvingly at Raymond. He winks at them and looks back at Pistol Pete smugly. Pistol Pete looks around anxiously.

“I mean, really, what’s the difference between ecstasy and say, marijuana, or alcohol?”

Raymond covers his mouth and coughs “Twenty years”.

The Jury looks at Raymond and chuckles. Pistol Pete looks at the Judge to see if he’ll take any remedial action. The Judge smiles and condescendingly motions for him to continue.

“I mean, shouldn’t it be up to the individual to decide what to put into their own body?”

Pistol Pete walks over and grabs the American flag out of its stand. He picks it up and waives it around vigorously. Jurors lean back and shield their faces.

“When you think about it, it’s downright un-American to prosecute someone for pursing life, liberty, and the pursuit of happiness.”

Pistol Pete waives the American flag at Raymond and lacerates his arm with the sharp, pointy end. Raymond collapses in agony.

“Ahhhh!”

Raymond grabs his arm in pain. Blood spills out from his blue suit. His now red face contorts in pain. The Jury gasps and several jump down to help him. The Judge looks like he could leap off the bench and strangle Pistol Pete.

“What in the hell do you think you’re doing?”

“It was an accident!”

Raymond looks painfully at Pistol Pete.

“You did that on purpose!”

“I swear Judge, I was just trying to make a point.”

The Judge looks menacingly at Pistol Pete.

“The court will stand in recess, yet again.”

Pistol Pete looks at him innocently.  The Judge’s eyes narrow. Pistol Pete looks at him and smiles casually.

 

Later that afternoon…

Raymond sits with his arm in a sling. He looks incensed. So does the Jury. So does the Court Reporter, who glares at Pistol Pete with his one unbandaged eye. The Judge stares daggers at Pistol Pete and Bladsill, who sit conspiring at counsel table. Pistol Pete shakes his head in disbelief.

“Damn these government employees are tough.”

“So what are we gonna’ do now? Take out somebody else?”

“I think the Judge is wise to that bit. We’re gonna’ have to think outside the box.”

Pistol Pete looks around. He looks at the Court Reporter’s stenotype. He thinks for a moment. He looks at Bladsill.

“How fast are you?”

“Pretty fast. If cops are chasing me. Why?”

“Because when I say the word pomegranate, I want you to jump up and take that stenotype. Then throw it through the window.”

“Huh?”

“We’re thirty feet off the ground. That thing ‘ll be demolished.”

“What’s a stenotype?”

“That thing the court reporter’s typing on.”

“Who’s the court reporter?”

“The one typing on the stenotype.”

Bladsill looks at him blankly.

“The one I hit in the eye with your dope. We can get a mistrial”

“But I don’t want a mistrial. I want an acquital.”

Pistol Pete looks at him. He thinks for a moment, then snaps his fingers.

“Then grab all that dope and throw it out the window too.”

“Won’t I get in trouble?”

“We’ll worry about that later. But you’ll get twenty years if we finish this trial.”

The Judge bangs his gavel with a SMACK!

“Counsel finish your closing argument right now!

Pistol Pete stands up and smiles.

“Yes sir. And just for the record, I sincerely apologize for the unfortunate incidents with the court reporter and the prosecutor.”

Pistol Pete looks at the Jury

“I just hope that each of you good citizens will not take this out on my client.”

The Jury looks at him as if he were half rat, half cockroach.

“Now, in summation of the state’s case I submit to you that there simply is too much circumstantial evidence to find probable cause that my client even remotely did a writ of habeas corpus. It’s simply all hearsay.”

The Judge, Prosecutor, and Jury all look at each other confused.

“You could no more convict my client than a pomegranate.”

Pistol Pete looks at Bladsill anxiously. Bladsill looks tranquil and smiles at him.

“I say, you could no more convict my client than you could a pomegranate!”

Pistol Pete looks at Bladsill, who smiles and nods.

“Pomegranate! Pomegranate!”

Bladsill stops smiling, looks at Pistol Pete, then the Prosecutor, then the Court Reporter, then back to Pistol Pete. Bladsill jumps up, runs to Raymond’s table and grabs the drugs.

Raymond looks at Bladsill in horror. “Hey, you can’t touch that!”

Bladsill turns and runs over to the court reporter, and grabs his stenotype. The Judge jumps up and bangs his gavel. “Stop that man!”

Two Bailiffs rush in with guns drawn. They fire a barrage of  shots. After a dozen misses, one finally hits Bladsill as he clears the window. Bladsill, the drugs, and the stenotype all crash out the window. The room is filled with smoke from the volley of gunfire.

There is a huge CRASH! and a car alarm goes off. The Judge, Raymond, the Bailiff, and several jurors rush over and look out the window. The Bailiff looks at Raymond.

“Counselor, isn’t that your BMW?”

Raymond exhales and looks at the ceiling.

“It sure broke that guy’s fall.”

Pistol Pete sits innocently at counsel table looking at papers. As the smoke from the gunfire drifts to the ceiling a fire alarm turns on, followed by the ceiling sprinklers. The Judge, Raymond, the Bailiff, and the Jurors look at Pistol Pete, who still sits innocently at counsel table reading a file as the water falls on him from the ceiling.

 

Much later that day…

The Judge sits wet and angry on the bench. The Court Reporter sits wet and angry in his chair, without the absent stenotype. Raymond sits wet and angry with his arm in a sling. The irate, wet Jurors stare at Pistol Pete.

“Ladies and Gentlemen, grudgingly I am going to declare a mistrial and a judgment of acquital in this case.”

Pistol Pete beams. Raymond looks incensed.

“If I could think of anyway around it, I would. But we have no evidence, no record of the trial, and now, no Defendant.”

Pistol Pete looks triumphant.

“However, the good news is that the Defendant did survive the fall and the gunshot wound to his shoulder.”

The Jury murmurs.

“And I assure each of you that he will be prosecuted to the fullest extent of the law.”

Pistol Pete rises.

“And Judge, I will let the court know if the Defendant chooses to retain me for any future charges.”

The Judge looks at him, infuriated beyond description. He looks at the Court Reporter.

“Let’s go off the record.”

The Court Reporter looks at the empty space once occupied by his stenotype.

“The record’s all over Main Street, Your Honor.”

The Judge looks at Pistol Pete.

“Listen you son of bitch, if it’s the last thing I do, I’ll have you disbarred, tried, convicted, and sent to prison.”

Pistol Pete looks at him calmly.

“I’m sure once the dust settles, you’ll find this was all just a big misunderstanding.”

The Judge throws his gavel at Pistol Pete, who ducks. It flies past him and hits a framed oil painting of a statesman-like Judge hanging on the wall. The painting falls to the ground and breaks.

“You…I…”

The Judge hesitates for a moment as Pistol Pete looks at him calmly. After a few beats, the Judge storms off the bench in disgust. The Jury starts to file out. Pistol Pete watches them as they stroll past him.

“Thank you for your service.”

The Jurors ignore him and angrily walk away. Raymond collects his books and files, all of which are soaking wet. Pistol Pete walks over to him.

“Better luck next time, Raymond.”

“Don’t talk to me.”

“Come on, don’t be a sore loser.”

Pistol Pete puts his hand on Raymond’s shoulder. Raymond winces in pain.

“You ever touch me again, and-”

Pistol Pete raises his eyebrows, anticipating a possible criminal threat.

“Never touch me again.”

Raymond storms off. Pistol Pete watches him leave. When he’s out of sight, Pistol Pete walks over to the broken window. He looks down and shakes his head. He reaches in his coat pocket and pulls out his cell phone. He dials and listens.

“Honey, guess what? I won my trial.”

He listens.

“No, I really did. I thought maybe we’d go to Arby’s and celebrate.”

Pistol Pete picks up his soaking wet file.

“Yeah, it was a really tough case.”

He listens.

“No, the law was against us.”

He listens.

“No, the facts were against us too.”

He listens.

“Nah, the Defendant was a total scumbag.”

He listens.

“What happened?”

Pistol Pete looks down through the broken window.

“In the end, it all went out the window.”

He picks at the broken glass as he listens.

“Okay, see you at eight.”

Pistol Pete closes his cell phone. He looks at his file folder. He thinks for a beat, shrugs his shoulders, then tosses the file out the window. He watches it fall for a moment, then smiles and walks off.

The End

The Law of Jury Selection – Qualification & Disqualification in the Art of Voir Dire

“The Right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.”

-Texas Constitution Article I Section 15

It goes without saying that the right to trial by jury is a cornerstone of fundamental rights in this country. It was among the grievances cited in the Declaration of Independence and ensconced in both the Sixth Amendment to the United States Constitution and Article I of the Texas Constitution.

But how is that jury selected?  There are as many opinions on the correct style and art to conduct voir dire (I won’t insult you by pointing out this is French for “To Speak the Truth”) as there are attorneys selecting juries. There are, however, specific rules on the qualification and disqualification of the persons who will be deciding our client’s fate. “The voir dire process is designed to insure – to the fullest extent possible – that an intelligent, alert and impartial jury will perform the duty assigned to it by our judicial system.” DeLaRosa vs. State, 414 S.W.2d 668, 671 (Tex. Crim. App. 1967).

No matter how you decide to talk to your venire, the attorney that knows the rules has the upper hand.

Qualifying the Juror

Qualifications for jurors are governed both by the Texas Government Code Chapter 62 as well as the Texas Code of Criminal Procedure Chapter 35. While the two can appear redundant, look back at the Government Code qualifications in conjunction with the Code of Criminal Procedure for additional authority to support your arguments. 

Basic Qualifications

The goal of jury selection is to select a jury of twelve persons in a felony case and six persons in a misdemeanor.  Tex. Code Crim. Pro. §33.01.  The Government Code lays out the general qualifications for a juror, while the Code of Criminal Procedure provides the mechanism to reject a juror who does not meet those qualifications.  Tex. Gov’t. Code §62.102 & Tex. Code Crim. Proc. §35.16.  General  requirements for a juror are:

  1. At least 18 years of age;
  2. A citizen of the United States;
  3. Is a resident of this state and the county in which the person is to serve as a juror;
  4. Is qualified under the constitution and laws to vote in the county in which the person is to serve as a juror;
  5. is of sound mind and good moral character;
  6. is able to read and write;
  7. Has not served as a juror for six days during the preceding three months in the county court or during the preceding six months in the district court;
  8. Has not been convicted of a misdemeanor theft or of a felony; and
  9. Is not under indictment or other legal accusation for a misdemeanor theft or felony.

Tex. Gov’t. Code §62.102.

Three of those standards are absolute: if convicted of or under indictment for a misdemeanor theft or felony, or if they are insane, they cannot serve. Tex. Code Crim. Proc. §35.19.  Every other qualification can be waived by the parties. Id. Yup, if everyone agreed, you could have a six-year-old on your jury.

Disqualifications

Some things which you might assume would disqualify a juror are actually not disqualifications. A juror is not required to be registered to vote. Tex. Gov’t. Code §62.1031.  Blindness and deafness are not a bar to jury service, unless a judge finds specifically that the disability renders them unfit to serve.  Tex. Gov’t. Code §62.104 & §62.1041. Section 1041 even specifically requires reasonable accommodation for a deaf or hard of hearing juror, allowing an interpreter to accompany a juror during all proceedings and deliberations in a case.  Id.

Other disqualifications to a specific case include if the potential juror:

  1. Is a witness in the case;
  2. Is interested, directly or indirectly, in the subject matter of the case;
  3. Is related by consanguinity or affinity within the third degree, as determined by Texas Government Code Section 573, to a party in the case;
  4. Has a bias or prejudice in favor of or against a party in the case; or
  5. Has served as a petit juror in a former trial of the same case or in another case involving the same questions of fact.

Tex. Gov’t. Code §62.105.

Exemptions

Aside from disqualifications, there are also exemptions from serving on a jury. A person who is otherwise qualified may establish an exemption if the person is:

  1. over 70 years of age;
  2. has legal custody of a child younger than 12 that cannot find adequate supervision of;
  3. is a student at a public or private secondary school;
  4. is enrolled in and in attendance at an institution of higher education;
  5. is elected to or employed by the legislative branch of state government;
  6. has served on a jury in the last 24 months in a county with a population of at least 200,0000;
  7. is the primary caretaker of a person unable to care for themselves;
  8. has served on a jury in the last three years in a county with a population over 250,000; or
  9. is a member of the US Military on active duty and deployed out of their county of residence.

Tex. Gov’t. Code §62.106.

A person can also establish a temporary or permanent exemption based on physical or mental impairment or an inability to understand English.  Tex. Gov’t. Code §62.109.

Excuses

Everyone wants to do jury service, right?  No.  And if you haven’t already, you will hear some amazing excuses at times.  The court is allowed to excuse a juror with a sufficient excuse. Tex. Gov’t. Code §62.110.  While these can be claims of exemption or lack of qualification discussed previously, they don’t have to be. The court or their designee may, for any reason except an economic reason, excuse or reschedule any juror who submits a statement of the exemption, lack of qualification, or excuse.  Id.  Prospective jurors can be excused for economic reasons, but only if each party of record is present and approves the release.  Tex. Gov’t. Code §62.110(c).

Challenging the Array

What do you do if the entire panel was summoned against your client? “Either party may challenge the array only on the ground that the officer summoning the jury has willfully summoned jurors with a view to securing a conviction or an acquittal.” Tex. Code Crim. Proc. §35.06.  A challenge to the array must be in writing and, if filed by the Defendant, must be supported by affidavit. Id. A challenge to the array is heard before any other qualification determinations.  Tex. Code Crim. Proc. §35.06.  If sustained, a new array is summoned.  Tex. Code Crim. Proc. §35.09.

Seating & Shuffling your Venire

All of these qualification determinations are before we even get to talk to our venire. The disqualifications or exemptions are filed with the court or their designee or tested under oath by the court or their designee.  Tex. Gov’t. Code §62.110 & Tex. Code Crim. Proc. §35.10.  Depending on how your jurisdiction manages their jury summons, these qualifications may be done in the courtroom by the judge, in a central jury room, or even online before your potential juror even reports to the courthouse.  Tex. Code Crim. Proc. §35.03.

After qualification questions by the Judge, but before the attorney’s questioning of the venire, either party can request that the jury panel be “shuffled”.  The “Jury Shuffle” is not clear from the statute, but very well established in Texas jurisprudence.  See Tex. Code Crim. Proc. §35.11; Alexander v. State, 523 S.W.2d 720, 721 (Tex. Crim. App. 1975)  citing Woerner v. State, 523 S.W.2d 717 (Tex. Crim. App. 1975) “The right to have a jury panel assigned to a case redrawn is clearly provided for in Art. 35.11.”  A “Jury Shuffle” may be demanded by either the State or Defense, but only one shuffle is required.  Jones v. State, 833 S.W.2d 146, 148 (Tex. Crim. App. 1992 En Banc.).  Failure to grant a motion to shuffle is reversible error, and no harm need be found.  Id. 

Once the venire is qualified, the disqualifications, exemptions, and excuses filed, your jury shuffled and is seated, and assuming there is no challenge to array, you may now begin your voir dire.

Conducting the Voir Dire

“The paramount concerns of jury selection and the laws governing is the ability for a defendant to exercise their preemptory challenges intelligently.”  See Wappler v. State, 183 S.W.3d 765, 772 (Court of Appeals of Texas, Houston 1st Dist.) citing Smith v. State, 703 S.W.2d 641, 643 (Tex. Crim. App. 1985).  “The right to question venire members to exercise preemptory challenges intelligently is an essential part of that Sixth Amendment guarantee.”  Id. citing Franklin v. State, 138 S.W.3d 351, 354 (Tex. Crim. App. 2004); see also Gonzales v. State, 994 S.W.2d 170, 171 (Tex. Crim. App. 1999) (“[T]he right to pose proper questions during voir-dire examination is included within the right counsel under Article I §10 of the Texas Constitution”). 

That does not mean there are no limitations on how voir dire is conducted. “Texas trial courts have broad discretion over the jury-selection process.”  Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App 2002). Both the trial court’s discretion and established case law will limit what and how you can question your venire.

Time Limitations

The first hurdle you may have to get over is how much time you will have to question your venire. Although it is unclear why anyone would need more than thirty minutes to question eighty-five people regarding guilt and innocence and punishment in a case involving sexual abuse, DNA, co-defendants, and police misconduct, some attorneys may find they want more time.

Time limits on jury selection deal with two competing rights: the constitutional right to question prospective jurors and a trial judge’s right to impose reasonable restrictions.  McCarter v. State, 837 S.W.2d 117 (Tex. Crim. App. 1992) citing  Naugle v. State, 40 S.W.2d 92, 94 (Tex. Crim. App. 1931); McManus v. State, 591 S.W.2d 505, 520 (Tex. Crim. App. 1979). 

It’s well established that a trial court can impose reasonable limits on questioning and time. Id. citing McManus v. State, 591 S.W.2d 505, 520 (Tex. Crim. App 1980) (not abuse of discretion to disallow duplicitous question); Clark v. State¸608 S.W.2d 667, 669 (Tex. Crim. App. 1980) (trial court can set reasonable time limits); Abron v. State, 523 S.W.2d 405, 408 (Tex. Crim. App. 1975) (trial court can set reasonable time limits, restrict repetitious or vexatious questions, restrict questions asked in improper form, restrict questions directed at personal habits of jurors). Because it is a balancing of two rights, a trial court’s decision to limit voir dire is reviewed for abuse of discretion. Id. citing Smith, 703 S.W.2d 641, 643 (Tex. Crim. App. 1985).

Some time limits are too much. See E.g. Morris v. State, 1 S.W.3d 336 (Tex. App – Austin 1999) (45 minute time limit in Aggravated Assault case inappropriate); Cartmell v. State, 784 S.W.2d 183 (Tex. App – Fort Worth 1990) (20 minute time limit in DWI unreasonable).  The central question is did counsel have enough time to intelligently question the venire? Look a little later in the paper for how to preserve error if your time is cut short.

Question Limitations

In addition to the trial court’s discretion, the Court of Criminal Appeals has defined limits of what questions may be asked during Voir Dire. “A question is proper if it seeks to discover a juror’s views on an issue applicable to a case.”  Barajas,93 S.W.3d at 39, citing Smith v. State, 703 S.W.2d 641, 643 (Tex.Crim.App. 1987). Questions which would be appropriate can become objectionable when they are either too vague or too specific. 

Overly Broad

With the touchstone of attempting to intelligently strike jurors, either preemptively or for cause, we need to make our voir dire questions specific enough to touch on the issues of our case.  “[A] trial judge can exercise his discretion to prevent an improperly phrased question from being asked when it threatens to duplicate earlier questions, or presents so broad a question as to constitute a global fishing expedition.” Smith v. State, 703 S.W.2d 641,645 (Tex. Crim. App. 1985 overruled on other grounds).

The Smith case provides great examples of asking too broad or too narrow of questions. Mr. Smith’s attorney was relying entirely on the insanity defense at trial. Counsel’s question of the jurors about “their thoughts” on the insanity defense was found to be too broad. The Court found that to be a “general topic for discussion” and did not attempt a more restrictive question or direct the question to specific jurors based on prior answers.  See Id. However, counsel’s question to the jury panel of “their idea of punishment” and “what they think its purpose should be” where his client was charged with murder and had filed for probation was proper.  See Id.

Unfortunately, Smith was overruled by Easley v. State, which relegated limitations on juror questioning to non-constitutional harm analysis. Easley v. State, 424 S.W.3d 535 (Tex. Crim. App. 2014). Nonetheless, craft your questions to the theme and points in your case and object when the other side does not.

Commitment Questions

Too tight of a scope of question can draw and objection just as quickly as one that is too broad. Trying to nail a juror down to a specific answer may draw that terrible and confusing objection: a commitment question.

What is a commitment question? “Commitment questions are those that commit a prospective juror to resolve, or refrain from resolving, an issue a certain way after learning a particular fact.” Standfer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001). Not all commitment questions are objectionable.  Id. at 182. To be objectionable, a commitment question must either (1) ask a commitment where the law does not require one or (2) provide facts in addition to what is needed to establish a challenge for cause. Id.

The Inappropriate Commitment

In the first scenario the problem is asking the juror to commit when it’s not appropriate. The question “Can you consider the entire punishment range in a murder case?” is a proper commitment question. However, the question “Can you consider my clients age in mitigation?” is not. A juror cannot be challenged for cause for failure to consider specific mitigation evidence. Raby v. State, 970 S.W.2d 1, 3 (Tex. Crim. App. 1998), cert. denied, U.S., 525 U.S. 1003 (1998).

The key is does a possible answer to the question lead to a valid challenge for cause? See Id. In the example above, no matter what the answer is considering your clients age, you cannot challenge the juror for cause.

Remember that as long as you’re not seeking commitment, you are not prohibited from exploring any number of issues. Consider these two questions: “Do you believe age can influences a person’s choices and actions?” vs. “Can you consider my client’s age when looking at his actions?” The first question is a information gathering question. It does not demand a commitment. Question two however…

Committing To Too Much

The second scenario is when the question adds too much to your commitment question. Look at a permutation of our appropriate commitment question on a range of punishment: “Can you consider the entire range of punishment in a murder case when the victim was a clown?” Now we have an additional fact:  the identity of the victim.

“To be proper, then, a commitment question must contain only those facts necessary to test whether a prospective juror is challengeable for cause.” Standfer, 59 S.W.3d at 182.  The Court in Standfer uses the example of the decision in Atkins v. State. There, the prosecutor asked prospective jurors if they could convict a person of possession of a controlled substance if the crack pipe in their pocket during arrest had residual amount of cocaine in it. Atkins v. State, 951 S.W.2d 787, 789

(Tex.Crim.App.1997).The additional facts of the arrest, the crack pipe, and the fact that it was in defendant’s pocket “rendered improper what otherwise would have been a proper question designated to assess whether a prospective juror was challengeable for cause.” Id.

To keep it in perspective, then, remember it’s ok to ask a juror to commit, as long as the law requires them to.

Juror Questionnaire

Not all examination of the venire has to be done orally.  A well-crafted juror questionnaire can not only help with identifying specific jurors you want to zero in on and challenge for cause, but frequently will give you some information on that juror in the back you never got to while you’re doing your strikes.

There is no requirement that a judge allow or include the use of any questionnaire or a specific questionnaire. Remember that the trial court has very broad discretion in conducting voir dire that trial courts are given. Barajas, 93 S.W.3d at 38 (Tex.Crim.App 2002). If you get shut down, make your record as to how your inability to use the questionnaire inhibits your ability to effectively question the venire and exercise your preemptory challenges. Also make the case to your judge that the questionnaire will make voir dire go faster, since you’ll have to ask all those questions in person if you can’t do it on paper.

Even if a questionnaire is allowed BEWARE! You cannot rely on a questionnaire alone to challenge for cause. Gonzales v. State, 3 S.W.3d 915 (Tex. Crim. App. 1999). You must follow up with oral questions to establish a jurors answer. “[W]ritten questionnaires, while often helpful tools in conducting voir dire, do not constitute a formal part of the voir dire proceeding.” Garza v. State, 7 S.W.3d 164, 166 (Tex. Crim. App. 1999). A questionnaire can be an amazing tool for jury selection but can only go so far.

Preserving Error

What do you do if you feel like your questions were inappropriately excluded, either by time or direct objection? To preserve error concerning the manner of voir dire, the record must reflect a question which the trial court has not allowed to be answered. Caldwell v. State, 818 S.W. 29d 790, 794 (Tex. Crim. App. 1991). It has to more than just a general question. “A question that is so vague or broad as to constitute a global fishing expedition is not proper, and fails to preserve error because it is impossible for a reviewing court to determine if the question is relevant and property phrased.”Id.

The abuse of discretion test for voir dire is three pronged:  (1) whether the party attempted to prolong the voir dire; (2) whether the questions that the party was not permitted to ask were proper voir dire questions, and; (3) whether the party was not permitted to examine prospective jurors who actually served on the jury. Ratfill v. State, 690 S.W.2d 597, 600 (Tex. Crim. App. 1985). To preserve the error, the reviewing court will need enough information to answer those questions.

As a practical matter, to do this you will need to identify the person or persons you were unable to question, the specific questions that would have been asked, and that these persons actually served on the jury. This can be done either by dictating that information to the court reporter or by filling a bill of exceptions. But be careful! The timeliness requirement of objections requires that the trial court is made aware of objections or complaints at a time when there is an opportunity to cure or respond to the complaints. The “contemporaneous objection rule” is that an objection must be made at the first opportunity to do so. Tex. R. App. Proc. 33.1; Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997). Filing your bill of exception or dictating objections after a Jury is sworn will probably be too late. Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991).

Challenging the Juror

Let’s step back and remember why we are asking these questions: to intelligently exercise our peremptory challenges. See Smith, supra. There are three ways a prospective juror may be dismissed. The first is by agreement of the parties. Tex. Code Crim. Proc. §35.05. Second is to establish for the court that a potential juror is not qualified. Tex. Code Crim. Proc. §35.16. Finally, is to use one of the limited number of preemptory challenges afforded each side.

Challenges for Cause

A challenge for cause is established from a juror not meeting the basic qualifications discussed above or by showing some objectionable level of bias or prejudice. The sole finder of fact on the disqualification of jurors is the Judge.  “The court is the judge, after proper examination, of the qualifications of a juror, and shall decide all challenges without delay and without argument thereupon.” Tex. Code Crim. Proc. §35.21.

Basic Qualifications

Any juror may be dismissed for failing to meet one or more of the basic qualifications from the Texas Government Code or Code of Criminal Procedure noted above. “A challenge for cause is an objection made to a particular juror, alleging some fact which renders the juror incapable or unfit to serve on the jury.” Tex. Code Crim. Proc. §35.16(a). Additionally, the State may dismiss any juror within the third degree of consanguinity or affinity of the Defendant. Tex. Code Crim. Proc. §35.16(b). The Defendant may do the same for any person injured by the alleged offense, or to any prosecutor in the case. Tex. Code Crim. Proc. §35.16(c).

Remember that with the exception of having a pending misdemeanor theft or felony, being convicted of theft or felony, or being insane, any juror disqualification can be waived.  Tex. Code Crim. Proc. §35.19; Mayo v. State, 4 S.W.3d 9, 12 (Tex. Crim. App. 1999). And even past insanity may not be enough!  See Carter v. State 278 S.W.840 (Tex. Crim. App. 1925). In Carter, the Defendant found out after the trial that one of his jurors “had been duly adjudged a lunatic and confined in the insane asylum at Terrell…” Id. However, because there was no objection, and because the court did not clearly abuse its discretion in judging the juror sound of mind, there was no error.  Id. You must lodge an objection to preserve an error for appeal. 

Bias or Prejudice

In addition to the qualification issues for each juror “a prospective juror is challengeable for cause if he or she has a bias or prejudice against the defendant or against the law upon which either the State or the defense is entitled to rely.”  Buntion v. State, 382 S.W.3d 58, 83 (Tex. Crim. App 2016), citing  Tex. Code Crim. Proc. §35.16(a)(9) & (c)(2); Gardrner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009).  A prospective juror is disqualified if their bias or prejudice would substantially impair their ability to follow their oath to uphold the law. Id., citing Wainwright v. Witt, 469 U.S.412, 424 (1985).

Bias does not have to be proven with unmistakable clarity. Id. For a prospective juror to be excused for cause, the law must be explained to them, they must understand the requirements of the law, and they cannot overcome their prejudice well enough to follow the law. Davis v. State, 329 S.W.3d 789, 807 (Tex. Crim. App. 2010). The proponent for the challenge for cause has the burden to show their challenge is proper. See, e.g., Howard v. state, 941 S.W.2d 102, 128 (Tex. Crim. App. 1996); Harris v. State, 784 S.W.2d 5, 25 (Tex. Crim. App. 1989).

The flip side of a direct answer establishing bias is an evasive or vacillating venireman. Getting different answers or having a juror who is unable or unwilling to say that they can follow the law is a basis for cause. Riley v. State, 889 S.W.2d 290, 300 (Tex. Crim. App. 1993).

The central test for juror bias isn’t whether a person is influenced by their background or pre-conceived notions. If a prospective juror is consistent that they can put aside bias, even if it would be difficult or “violate their moral conscious”’, they are not challengeable for cause. See Id. The test if they are unwilling or unable to follow the law. See Id.

Remember the foundation of who is making the final decision. The trial court is given extreme deference since they are “in the best position to evaluate a venire member’s demeanor and responses.” Colburn v. State, 966 S.W.2d 511, 517 (Tex. Crim. App. 1998). An appeals court will review all the evidence for a challenge for cause, and only reverse on a clear abuse of discretion.  Davis, 329 S.W.3d at 808.

Rehabilitating Jurors

Once a potential juror reveals a bias or prejudice, can they be brought back from being caused? The answer is maybe.  The general rule is that once a bias or prejudice is established, the juror must be dismissed. Tex. Gov’t. Code §62.105(4); Tex. Code Crim. Proc. §35.16(a)(9). It is not discretionary. 

The previous rule was once established, a juror could not be rehabilitated. Sullemon v. U.S. Fidelity & Guaranty Co., 734 S.W.2d 10, 14 (Tex. App – Dallas 1987, no writ). Even if a juror is “rehabilitated through the efforts of counsel or the court by stating that he would decide the case on the evidence and could be fair to both sides, the trial court must excuse the juror.” White v. Dennison, 752 S.W.2d 714 (Tex. App. – Dallas 1988), citing Gum v. Schaefer, 683 S.W.2d 803, 808 (Tex. App. – Corpus Christi 1984, no writ).

While not specifically overruling that standard, the Texas Supreme Court in 2005 essentially left the determination with the trial court’s discretion. Cortez ex rel. Estate of Puentes v. HCCI – San Antonio, Inc. 159 S.W3d 87 (Tex. 2005).  In disapproving of the hard and fast rule of no rehabilitation, the Supreme Court in Cortez held that “trial courts exercise discretion in deciding whether to strike venire members for cause when bias or prejudice is not established as a mater of law, and there is error only if that discretion is abused.”  Id. at 92. “If the initial apparent bias is genuine, further questioning should only reinforce that perception…”Id.at 93

Preserving Error

So what to do if the Judge denies your perfect challenge for cause? “To establish harm for an erroneous denial of a challenge for cause, the defendant must show on the record that he used a preemptory strike to remove the venireperson and thereafter suffered a detriment from the loss of the strike.” Buntion v. State, 482 S.W.3d 58 (Tex. Crim. App. 2016). Preserving error in jury selection is a five step process: 1) make a clear  and specific challenge for cause; (2) use a preemptory challenge on the complained of venire; (3) exhaust your preemptory challenges; (4) request and be denied additional strikes; and (5) identify an objectionable juror you were forced to accept. Id., citing Chambers v. State, 866 S.W.2d 9, 22 (Tex. Crim. App. 1993). Make a cheat sheet.  Check your list. Don’t skip your steps.

Peremptory Challenges

Juror number twelve is giving your client the stink eye, but knows how to answer all of your brilliant cause questions and not get kicked. What to do? Bring out the peremptory challenge. “A peremptory challenge is made to a juror without assigning any reason therefor.”   Tex. Code Crim. Proc. §35.14. These are your strikes to dismiss jurors who are not otherwise disqualified.

How Many You Get and How To Get More

The number of challenges given to each side is governed by level of offense being tried. A capital case receives fifteen strikes, non-capital felonies ten, misdemeanors tried in District Court five, and misdemeanors tried in the County Court, or County Court at Law, three. Tex. Code Crim. Proc. §35.15. If two or more co-defendants are tried together, a capital defendant receives eight strikes, non-capital felony six, and misdemeanors three each. Id. The State then receives equal strikes (e.g. two defendants with three strikes each equals six strikes for the State). Id.

If alternate jurors are to be used, both the State and Defense get one additional peremptory challenge if one or two alternates are to be used, two additional peremptory challenges if three or four alternates are used. Tex. Code Crim. Proc. §35.15(d). Those additional strikes can only be used on alternates, and your other strikes cannot be used on alternates. Id.

Additional peremptory strikes are discussed above with challenges for cause. An additional peremptory strike is granted to allow the judge “the opportunity to correct his error by granting additional peremptory strike to make up for the one that was wrongfully denied.” Comeaux v. State, 445 S.W.3d 745, 751 (Tex. Crim. App. 2014). Rule of thumb, you’ll never get more if you don’t ask.

Discriminatory Use (Batson)

Peremptory challenges are used any way one wants to, within limits. Either party “may strike any member of the venire panel for any reason (except a prohibited reason such as race or sex) or no reason at all.” Id. at 749. Strikes based on gender or race violate the equal protection clause of the fourteenth amendment. Batson v. Kentucky, 476 U.S. 79 (1986); Ladd v. State, 3. S.W.3d 547, 563 (Tex. Crim. App. 1999 overruled on other grounds).

To establish a Batson challenge, the party objecting must make a prima facie showing of discriminatory motives behind peremptory strikes. Herron v. State, 86, S.W.3d 621, 630 (Tex. Crim. App. 2002). Strikes in a pattern against a specific race or gender, along with statements during voir dire, may support or refute the inference of a discriminatory purpose.  Batson, 476 U.S. at 97.

If the court determines a prima facie showing of discriminatory use of peremptory challenges, the burden shifts to the other party to provide a discriminatory neutral explanation for the use of their challenge. Id. The trial court will then make a determination if intentional discrimination has been shown. Id. The trial court must consider the entire record. Watkins v. State, 245 S.W3d 444 (Tex. Crim. App. 2008).  The final determination is a fact question, and the trial court is given extreme deference in their findings. Id.

In addition to race, gender cannot be the basis for exclusion from jury service. JEB v. Alabama, 511 US 127 (1994); Fritz v. State, 946 S.W.2d 844 (Tex. Crim. App. 1997). Not all classes are protected from a biased peremptory strike.  Batson’s foundation is equal protection analysis. Harkening back to law school days, some classes and groups receive more protection than others. “A violation of the Equal Protection Clause may occur when the government discriminates against the members of a class of individuals who have historically suffered discrimination, i.e., a “suspect” class, or when the government impairs the members of a class from exercising a fundamental right.” Casarez v. State, 913 S.W.2d 468, 473 (Tex. Crim. App. 1995).

Equal protection analysis does not apply to peremptory challenges of prospective jurors on the basis of religion. Id. at 472-74.Striking a juror for age is not prohibited.  See Gerber v. State, 845 S.W.2d 460, 465 Tex. App.—Houston [14th Dist.] 1993, pet. ref’d.) While a juror may not be dismissible simply because of their disability, a rational explanation stemming from a disability is not prohibited. U.S. v. Harris, 197 F.3d 870 (7th Cir. 1999) (Dismissal of a juror with multiple sclerosis was proper due to medication making her tired).

The prohibition against peremptory challenges based on race is codified at Tex. Code Crim. Proc. §35.261.  But don’t stop just at race. Batson does not apply to a challenge for cause. When a potential juror cannot follow they law, they can be precluded from jury service. See Staley v. State, 887 S.W.2d 885 (Tex. Crim. App. 1994). If, however, there is a discriminatory purpose behind the use of preemptory challenges it must be rationally related to a legitimate governmental interest.  Casarez, 913 S.W.2d at 474. Watch how voir dire is conducted and preserve that discriminatory challenge if it appears to be harming your client.

Conclusion

So how do you do this? That is a question of style and far beyond my area to lecture on. If by the Colorado Method or psychodrama, rhetorical or scaled questions, lecture or looping, every person has their own style. If I have learned anything, it’s that while you can learn from every attorney you watch, you cannot be any of them. You need to find your style.

But while you’re doing that, keep the central tenants in mind: 1) The trial court is going to make the ultimate determination with wide deference; 2) The exclusion of a juror isn’t because they have a bias or prejudice, but because they cannot put it aside; and 3) harm for appeal only comes about if you have an objectionable juror on your case either because you had to waste a peremptory on anther, or got cut off and didn’t get to question that objectionable juror.

The rules of voir dire are not short and sweet. And every voir dire should be different for every case. Set your theme, convey your foundations, and seek out the jurors sympathetic to your case. It is the court’s job to find a neutral and unbiased jury. It is ours to advocate for our clients.

Pre-Trial Investigations

Why Investigate?

Competent advice requires that an attorney conduct independent legal and factual investigations sufficient to enable him to have a firm command of the case and the relationship between the facts and each element of the offense.  Strickland v. Washington, 466 U.S. 668, 691, (1984), Ex Parte Briggs, 187 S.W.3d. 458, 467 (Tex.Crim.App. 2005).

Linear or Theory Based Investigation

It is clear our mandate is to be zealous advocates for our clients.  Further, our role within the framework of the criminal justice system requires us to conduct competent and thorough investigations. But your investigation ought to have a goal or a point.

The whole point of investigating is not merely to retrace the State’s steps or affirm our own client’s guilt.  The point is to test alternate theories and see which, if any of them, are viable defenses.  Often thorough investigations as to alternate theories may only confirm the State’s theory of the case.  In this event it assists you still in allowing your client to make an informed decision.

Investigations can either be 360 degree and all-encompassing or linear calculated to prove a single point or theory.  When the state proves up a shoplifting case, for instance, the investigation is usually linear – that is they merely check the box for each element toward the one viable theory.  Murder or sexual assault, by contrast ought to be more comprehensive, thorough, or ‘rounded’ and thus are a “360 degree” investigation.

In a perfect world, we ought to do a 360 investigation as defense lawyers.  In reality our resources and other constraints make linear investigations towards alternate theories more practical. Don’t investigate for the sake of investigating. Develop a theory or theories and hone your investigation.

Developing Your Theory

The Jury Charge

Your theory of the case begins with the jury charge.  It ought to go without saying but you need to be able to make a straight faced argument for acquittal based on the law and the evidence. The Texas Pattern Jury Charges are sold by the Texas State Bar and are an excellent resource. Always consider applicable defenses.

Interview Your Client First

Always interview your client to get their story. The real world is often stranger than fiction and interviewing your client first tells you where to look in your investigation. Your client doesn’t know the elements of the offense nor are they typically aware of the law on defenses. Even if your client provides you nothing but a detailed confession – it can still provide you with insight into what, if any, avenues for investigation remain or were unchecked by the State that remail plausible alternate theories.  Keep an eye on mitigation as well and be sure to lay the groundwork for character witnesses, mental health mitigation, or other mitigatory angles.

Review the Discovery

Based on your jury charge and your client’s interview hopefully you’ve been able to identify some avenues of attack.  Does the written discovery or the media provided in the case eliminate your potential theories? What, if any, defensive theories remain?

The Fire Hose of Resources

Sources you can use are seemingly endless. Here are as many of them as I can think of or have seen cited in other similar papers:

Internet and web pages

General Reference

Public Records

Other online resources:

  • TCDLA’s web page – the greatest compilation of resources on the planet: www.tcdla.com;
  • Texas District & County Attorney’s Association: www.tdcaa.com;

Paid web pages:

Pursuing Your Theory

Now that you’ve narrowed your case down to hopefully a few defensive theories it’s time to investigate your theories and find evidence which corroborates it. 

Investigative Techniques

Experts

Many defensive theories will hinge on something highly technical or complex to the degree it might require an expert to assist in resolving the issue.  Examples might include computer forensics, toxicology, psychology, or DNA.

Experts can be invaluable in guiding your investigation and pointing you to resources which can help them help you.  It’s also important to bring an expert on as early as possible because they can also talk you out of bad theories before you’ve wasted too many resources on them.

Indigent defendants are legally entitled to funding for expert witnesses!  Not having money is not an excuse not to get expert assistance. Even on cases where you might be retained – your client can still attempt to make a showing of indigency. See Tex. Code Crim. Proc. Art. 26.05(d) and  Ake v. Oklahoma, 470 U.S. 68 (1985). Attached are model motions for appointments of experts. Those pleadings are ex parte – because the State is not entitled to see what defenses, if any, you’re contemplating.

Investigators

Indigent defendants are also legally entitled to funding for investigators in addition to experts.

An investigator can be crucial for the reasons they can go into the field just like law enforcement. Reluctant or hostile witnesses will often not return phone calls or emails – but may very well give detailed statements to someone who knocks on their door.  It’s important to give your investigator guidance as to your theory so they know what they’re looking for. Interviewing witnesses and not asking them critical questions can be frustrating.

At a minimum your investigator should always attempt to interview the complaining witness even if it seems a fool’s errand. Sending an investigator into the field to interview a child witness may often seem daunting but a practice tip is to always make sure your investigator respects the child’s parent or guardian and asks for permission or for the parent/ guardian to be present during the interview.

Documents

Documents and other public records can be invaluable as well.  Documents can be attained a number of different ways depending on their nature and who has them. Public records such as court documents and death certificates can be easy to find. Some records can be subject to strict privacy controls such as hospital records or CPS records. Below I will discuss how to attain some of those.  Public documents can be imputed to the State’s possession and practitioners can try and get the State to attain and produce them under Tex.Code.Crim.Proc.Art. 39.14.

Here’s a quick list of possible documents or records which may be attainable:

  • Employment records
  • Offense reports of other relevant cases
  • Medical records
  • Probation records
  • Social security
  • IRS records
  • Property records
  • Appraisal records
  • Court documents and files
  • CPS records
  • Attorney General records
  • Prison Records (TDCJ)
  • County Jails
  • Police officer records (TCOLE)
  • Military records
  • Medical examiner or autopsy reports
  • Social media

Subpoenas

Compulsory process – or the ability to use the court’s authority to attain evidence for your defense – is a valuable tool or weapon which can often be over-looked. Counsel has the ability to subpoena records such as cellular data or actual physical items such as cell phones or other property.  Subpoenas and compulsory process are governed by Tex.Code.Crim.Proc.Art. 24.02.

The Bottom Line

Can a zealous and effective investigation into alternate theories put our clients on the same ground as the State of Texas and equalize their vast advantage in resources? If done diligently, strategically and with surgical precision – then yes. But remember your investigation may be the only chance they’ve got to a truly level battlefield as the framers of the Constitution envisioned.

Operation Lone Star

The Premise

In March, 2021, Governor Greg Abbott announced Operation Lone Star, (OLS) a law enforcement initiative aimed at arresting single males for Class B criminal trespass upon their entry upon private property along the Texas-Mexico Border. At the same time, he declared 42 counties as disaster areas. The Department of Public Safety was charged with sending between 500 and 1000 State Troopers to the border to enforce state trespass laws at a cost of approximately 2.5 million dollars per week. The DPS executed memoranda of understanding with private landowners along the border so they could enter the property and arrest anyone they saw on the property without permission. Initial arrest rates were projected at 200 arrests per day. According to Governor Abbott, from the outset, the purpose of the initiative was to stem the tide of dangerous human and drug traffickers crossing the border. See: CNN’s @RosaFlores reports https://t.co/UPtF19o9NZ.

Enter the Lubbock Private Defender Office

In July, 2021, the Texas Indigent Defense Commission approached the Lubbock Private Defender Office (LPDO) to act as the central hub for providing defense services to those arrested under OLS. LPDO agreed and virtually overnight became the central authority to receive requests for attorneys and assign those cases to attorneys. Texas RioGrande Legal Aid (TRLA) took over 560 of the first round of cases. Private counsel and other private defender organizations were recruited to handle the remainder of the cases flowing in. Thankfully, the projected 200 arrests per day has yet to be realized, but currently, over 1,500 cases have flowed through LPDO to various defender organizations and private counsel. Thirty-Seven (2.4%) have been felonies with the majority of those being American citizens, not foreign nationals.

While the majority of clients have been Mexican Citizens, we have seen clients from Venezuela, Guyana, Haiti, Honduras, Columbia, Cuba, and various other countries of origin.

In order to implement these measures, the Texas Supreme Court issued an Emergency Order suspending various provisions of the Code of Criminal Procedure to allow for LPDO to act as the appointing and payment authority for OLS cases. The Court modified 26.04 to allow TIDC to approve procedures that differ from the Indigent Defense Plans of the various counties involved and authorize alternative methods of appointing counsel. It also allows, contrary to 26.04, for appointment of any counsel from any county in Texas to represent an OLS client on a felony charge. In short, TIDC tapped LPDO to provide indigent defense services for all OLS cases and is fully funding that effort.

A special process has been established to handle the magistration and processing of all OLS cases. Once arrested, all OLS arrestees are taken to “The Tent” in Del Rio where they are magistrated remotely by retired judges recruited by the Office of Court Administration. Once magistrated, LPDO receives a referral for appointment of counsel, and the arrestee is transferred to the Briscoe Unit of TDCJ in Dilley Texas or the Segovia Unit in deep South Texas to be held in one of these repurposed prisons until disposition of their case.

The prison units are having to be air conditioned and up-staffed to meet jail standards and accommodations for Zoom conferences and Zoom hearings are being increased to handle the additional requests for attorney-client meetings as most of the attorneys involved are dozens if not hundreds of miles from the unit. LPDO has had to contract with interpreters to handle interpretative duties, as most of the attorneys recruited do not speak Spanish, the primary language of those arrested.

For those attorneys not a part of an organization, LPDO has contracted with investigators to assist in the necessary investigations in some cases. Also, TIDC has increased funding for myPadilla to offer immigration consults on all cases under the OLS umbrella.

Most of the cases have been from Val Verde and Kinney Counties, overwhelming the capabilities of local clerks, judges and prosecutors. Most of the cases, over 97%, have been misdemeanors, and most of those have been criminal trespass.  With the involved counties being declared a “disaster area,” the cases are all enhanced to class A punishments. (Interestingly, Throckmorton County, north of Abilene is counted as one of the 42 Counties in the Disaster Declaration.)

Because of the overwhelming numbers, TRLA and other defenders have been successful in securing the release of hundreds of clients under Article 17.151 of the CCP. The prosecuting authority has been unable to meet the 15 and 30 day deadlines of 17.151 for filing cases.

Going Forward

I have told the media that, like Pearl Harbor, this initiative came as a complete surprise to us. The difference in 1941 and now is, it was as much a surprise to the other side as it was to us. Fortunately, we have been able to build capacity quickly to stem the tide of casualties. Between TRLA, Restoring Justice out of Houston, and the many private counsel and small firms who have stepped up to assist, we have been able to assign counsel in a reasonable time in nearly all cases.

Going forward, we are contracting with at least one additional public defender office. A recently signed contract will bring a team of 19 lawyers, social workers, investigators, and paralegals to San Antonio to work exclusively on OLS cases. Salaries will be competitive, and they will be looking for courtroom-ready, Texas-licensed lawyers to fill those slots.  You can send your resume to me if interested in applying. I will forward it to that office.

Additionally, we are looking for a resource attorney to help oversee and serve the attorneys working OLS cases. The application and job description for that position can be found at www.LPDO.org

We are passionate about ensuring every individual arrested under the OLS umbrella has access to quality counsel who will aggressively represent them in these charges. If you want to be one of those lawyers, please let us know.

HIPAA in the Age of COVID

Most of us are familiar with the Health Insurance Portability and Accountability Act of 1996, better known as HIPAA. While digital discovery and electronic transfer of records is no new thing, COVID stomped on the accelerator pushing lawyers into technology and e-practice. A lot of us are stumbling into the digital realm and safeguarding the Protected Health Information (PHI) we have in our possession probably isn’t the first thing on our to do list. Unless you want to risk the potential of fines between $119 and $59,522 per violation, you’re going to want to pay attention. 

To understand if your practice falls under the regulations of HIPAA, you first need to look at the Texas Medical Records Privacy Act (TMRPA). The TMRPA’s definition of a covered entity is broader than the Federal Law. If you create, receive, store, or work for someone that creates, receives, or stores PHI, you fall under TMRPA. Texas Health and Safety Code §181.001(b)(2)(A-D) Essentially, if you come into contact with PHI, you’re a covered entity and will need to comply with the requirements protecting that information.

What is Protected Health Information (PHI)?  PHI is information, including demographic information, which relates to an individual’s past, present, or future physical or mental health condition, healthcare, or payment for the healthcare information that identifies the individual.  45 C.F.R. §160.103 This includes information transmitted by electronic media, maintained in electronic media, or “Transmitted or maintained in any other form or medium.”  Id.  So, if it’s medical information that can be tied to a specific person, it’s probably PHI.

As criminal defense attorneys there is a really good chance we’ll end up being covered entities regulated by HIPAA and TMRPA because of the information that we come to possess regarding our clients: from the mental health records we receive for a mitigation packet or for a grand jury presentation, to the TDCJ records that include infirmary trips, to the SAFPF records that include counseling information, to the UA results for a pre-trial check in, or to the discovery with EMT or blood draw records, the potentials are pretty limitless. Remember too that it does not have to just be our client’s PHI. Records we receive on third parties like witnesses or family members still fall under HIPAA and TMPRA regulations.

What does it mean then that we are covered entities maintaining confidentiality of PHI?  Obviously secondary possessors of PHI like attorneys were not the main focus of HIPAA or the TMRPA. PHI is not our main focus, but we are still required to protect medical privacy. Big picture is two things: 1) We cannot release PHI without a proper release; and 2) we have to comply with other provisions of HIPAA and TMRPA for safeguarding, training, and notice requirements. 

Under what circumstances can a party re-disclose PHI that we have received? The first is to have a valid court release such as a subpoena signed by the Judge, a Grand Jury subpoena, or an administrative subpoena that authorizes a covered entity to re-disclose PHI in their possession.  However, that is not the most likely scenario for when we will re-disclose PHI. Usually,  those subpoenas are going to go to the people creating the PHI. We will need a valid release to re-disclose PHI.

A valid release is more than just a set of initials on your intake contract saying you can use a client’s medical records for anything we need. Texas Health and Safety Code 181.154(d) tasked the Attorney General with creating a standardized form to comply with signed releases to comply with TMRPA and HIPAA. The 2013 form has some specific requirements like designating who the documents are being released to (not just “anyone who wants them”), the purpose of the release, a description of the information to be used or disclosed, and a specific expiration date. Additionally, there must be a separate statement for release of mental health records, drug or alcohol information, or HIV records that are to be released. The Attorney General’s standardized form is available at https://www.texasattorneygeneral.gov/sites/default/files/files/divisions/consumer-protection/hb300-Authorization-Disclose-Health-Info.pdf. Your releases are allowed to be in written or electronic format, or even orally given as long as properly documented. Tex. Health &Safety Code 181.154(b) Best practices though: GET IT IN WRITING.

What constitutes a valid signature? It’s easy enough when a client is in person with a State ID to verify who is signing your release. But gone are the days of ink and pen, and an electronic signature is acceptable as long as it is valid under applicable law. The touchstone is the ability to verify that the signature is valid, and the person signing has the authority to do so. There are some programs, SIGNiX, eSignLive by Vasco, and Adobe Sign have been found to comply with HIPAA requirements of verification.

What about just safeguarding the records in our file? Is your USB drive encrypted? Can you use your Hotmail account to e-mail the records to another attorney or the Judge? How complex is your password? These are all things that HIPAA and through it the TMRPA expect you to have considered and made a plan for. The TMRPA adopts the standards of HIPAA at Texas Health and Safety Code 181.004.  HIPAA lays out standards to ensure confidentiality, protect against reasonably anticipated threats, protect against reasonably anticipated non-permitted uses or disclosures, and ensure compliancy by your workforce. 45 C.F.R. §164.306 It does not make a list of “do this and don’t do that” but requires that any covered entity assess the level of risk to accidental disclosure, make a plan, and justify what choices were made and why.  The goal is that if there ever is a breach, we can show we did everything we could to avoid it.  Here are some highlights of best practices:

Encryption

Encryption renders PHI unreadable and undecipherable. The data can only be read if a key or code is applied to decrypt the data.  While encryption is not required for all ePHI data, HIPAA-covered entities should conduct a risk analysis to determine the level of risk and if encryption is not used what other safeguards are used in its place.  There are many options for encryption programs out there, both free and paid. Before you go drop off that USB for the District Attorney, take a look at https://www.techradar.com/best/best-encryption-software for some ideas.

Passwords

Even though passwords are usually the front line to prevent unauthorized access to data, the only requirement in HIPAA is that covered entities create “Procedures for creating, changing, and safeguarding passwords.” The National Institute of Standards and Technology (NIST) recommends a password be between 8 – 64 characters, using passphrases instead of previously recommended complex passwords that people forget or write down to remember.  So instead of using a complex sequence of numbers, letters, and symbols, use something only you would know as a passphrase like “Mywifesbirthday!JanuaryFirst1980”.

Third Party Storage

Are you using another company to maintain your files? If so you’re going to need a business associates agreement. 45 CFR §164.308(b) A business associates agreement is simply a written agreement that the third party you are paying is going to take all of the necessary steps to protect your data instead of you doing it yourself.

E-mail

Not all e-mail is created equal. Using your 45 hours of free AOL access to send ePHI documents to your expert or the judge is not secure. If you’re e-mailing ePHI you need to make sure your e-mail is HIPAA compliant. To do that you need a few things: 1) End to end encryption; 2)  a business associates agreement with your email provider; 3) make sure to configure your e-mail correctly; and 4) have policies and training for your staff for e-mailing ePHI. Talk to your e-mail provider about making your e-mail HIPAA compliant on how to set up your account to send HIPAA compliant e-mails.

If you’re not a solo practitioner, you have to make sure that you’re training your associates too. Texas Health and Safety Code 181.101 requires training of employees on both State and Federal law regarding any PHI they may come into contact with. That training must be done within 90 days of hire, and the employee is required to sign a statement verifying the training. Tex. Health &Safety Code 181.101(a) & (d) 

And why are we doing all of this? Because we want to avoid the enforcement arm of HIPAA and the TMRPA.  The TMRPA in addition to injunctive relief provides for civil penalties: $5,000 per violation for negligent violations and $25,000 per violation for intentional or knowing violations up to $1.5 MILLION per year. Texas Health and Safety Code §181.201. As noted above, the Department of Health and Human Services published a final rule increasing the civil penalties for 2020.  For violations the covered entity did not know about, fines can be between $119 and $59,522 per violation.  If the violation is due to willful neglect the penalty jumps to between $11,904 and $59,522 per violation. 

These are not nebulous threats.  In May 2017 HHS levied a $2.4 million civil penalty against Texas Health Systems after they released the name of a patient who had presented fraudulent identification and was subsequently arrested.    Concentra Health Services in Addison, Texas was fined $1.7 million after an unencrypted laptop was stolen from its facilities. The largest HIPAA fine to date has been against Anthem Health in 2019 for $16 million dollars for failing to protect patient data.

So what do we take away from this? It is to remember that as we implement new technology and new ways of doing business into our practices we be aware of steps to make sure private client information stays private. A lot of us may be old hat to encrypted transfers and two step verification, but there are lot of lawyers (and their staff) who are not. Take the time to learn about the new technology you’re using, and how to use it better to comply with privacy of all kinds.

Texas Forensic Science Commission Update

George Rodriguez spent nearly two decades behind bars before a panel of forensic scientists determined that the analyst who testified at his trial was either incompetent or knowingly perjured himself. This revelation led to a 2004 audit of the Houston Police Crime Laboratory, which exposed a systemic pattern of poor training, data misinterpretation, and sample storage violations. In response, the Texas Legislature imposed an accreditation requirement onto Texas forensic science laboratories and created the Texas Forensic Science Commission (TFSC) to investigate allegations of negligence and misconduct.

The Commission is made of nine members appointed by the Governor of Texas – seven scientists, one prosecutor, and one defense attorney. The Commission, including TCDLA’s own Mark Daniel, are still today engaged in various forensic development initiatives, working collaboratively with stakeholders in the criminal justice system to improve education and training in forensic science and the law. Over time, the Texas Legislature has expanded and clarified the role ascribed to TFSC under TCCP 38.01. Currently, the Commission serves four main purposes: (1) investigate complaints of misconduct, (2) accredit crime laboratories, (3) adopt administrative rules for the use of certain disciplines in the courtroom, and, (4) as of 2019, license individual forensic analysts. 

1. Licensing Requirement

Prior to 2019, the accreditation requirement was already implemented for laboratories conducting forensic testing in Texas. The new Forensic Analyst Licensing Program now requires each individual acting as a forensic analyst to have their own individual license on top of the already existing requirement that the laboratory for which they work be accredited. The statute lays out which disciplines are subject to the licensing requirement:

License Required:

  • Drug sample testing
  • Toxicology
  • Forensic Biology (DNA)
  • Firearm & Toolmarks (ballistics)
  • Document comparison
  • Trace comparison (gunshot residue, footprints)

No License Required:

  • Latent fingerprint examination
  • Intoxilyzer breath test
  • Digital examination
  • Text excluded under Article 38.01
  • Presumptive tests (for parole or probation violations)
  • Text done primarily for scientific research or medical practice
  • Forensic Pathology
  • SANE examination
  • Forensic anthropology, entomology, or botany
  • Environmental Testing
  • Accident reconstruction
  • Serial number restoration
  • Polygraph examination
  • Voice recognition
  • Statement analysis
  • Forensic odontology
  • STI testing
  • Arson investigation
  • Forensic photography
  • Non-criminal paternity testing and tissue testing
  • Forensic Psychology

The new forensic licensing program brings with it a number of benefits to defendants and defense attorneys. One benefit is the ability of the Commission to reprimand individuals after a determination that misconduct has occurred. TFSC now has the authority to revoke or suspend such a person’s license, or refuse to renew their license once it expires. If an analyst’s license is suspended under this provision, the Commission can put that individual on probation, and impose conditions on that probation such as requiring they report regularly to TFSC or take classes to improve the areas that are the basis of the discipline. Additionally, this licensing requirement leaves open a new vehicle by which we can exclude expert testimony. Going forward, we must always check the license requirements and status for each expert noticed by the State.

2. Public Database

Given its vast regulatory functions involving forensic sciences, TFSC maintains a wealth of information and data on forensic laboratories and laboratory personnel, including applications and materials on accreditation of forensic laboratories, as well as records relating to complaints, disclosures, serial number discrepancies, mistakes, errors, spills, misplaced or lost samples, misconduct, false entries and other laboratory noncompliance issues.  Texas law requires that all of these matters be reported to the Commission.

Much of this data and information has historically been available to the public through public information requests, which often involved a cumbersome and time-consuming process. However, TFSC announced this past April that it will be making all of this invaluable public information readily available through a public database hosted on its website. The database, which launched in June, is scheduled to be made accessible in November 2021. This database will be a vital resource for criminal defense attorneys across the state.

3. New Disciplines

The field of forensic science is ever evolving and growing, with new specialties and testing being developed continuously. Sometimes, this may lead to unreliable sciences being offered as proof in court. Some of the previously admitted sciences now determined to be unreliable include forensic odontology, hair microscopy, retrograde extrapolation, and arson investigation. There are two new areas that Texas criminal defense attorney must be aware of in the coming years: Rapid DNA Testing and Marijuana Testing.

Rapid DNA Testing: In 2018, the FBI approved Rapid DNA Identification – a DNA analysis developed by ANDE corporation which provides results in less than two hours. Such rapid testing would allow suspects to be swabbed at booking and their samples run through the database immediately. However, none of the entities performing this test are accredited by TFSC. Additionally, Rapid DNA Identification use at crime scenes also comes with its own limitations: crime scene DNA samples may be mixtures, or they may contain low quantity or quality DNA. Even if a quality sample is collected, there are currently no approved expert systems for crime scene samples, and law enforcement collecting crime scene samples do not have the education, training or experience necessary to assess the crime scene evidence and determine the type of testing to achieve the optimal results. As currently marketed, Rapid DNA analysis will become a law enforcement database with no restrictions, quality controls, or standards, making it largely unreliable.

Marijuana Testing: In December of 2018, the Texas Legislature passed the Agriculture Improvement Act, which legalized the industrial production of hemp. With the new law, THC concentrations under .3% are considered legal hemp, but the laboratories do not have the instrumentation to quantitate the amount of THC in a sample. In order to compensate for this lack of quantitation, some Texas laboratories have modified the DEA approach to cannabinoid testing, adding a visual examination for “cystolithic” or unicellular hairs. If the sample contains THC but the analyst cannot observe any hairs, the substance is reported as simply THC. If the sample contains THC and the analyst does observe hairs, the substance is reported as marijuana.

However, this method is tenuous under Texas law, which distinguishes between legal and illegal Cannabis products by the part of the plant the product is derived from. Since Texas law groups the derivatives of the plant with the portion of the plant it was derived from, the visual inspection component does not provide any meaningful information. This leaves the THC detection alone, without proper quantitation, as an insufficient method to distinguish between products originating from the stems and seeds; flowers and leaves; or preferentially extracted from cystolithic hairs.

Mark Daniel’s term as the TCDLA representative to the Commission ended on September 1, 2021. Mark was appointed to the Commission in November 2016. The Commission wouldn’t have been what is has been during his term and what it has grown to be without his participation and leadership. Mark has done an amazing job representing citizens accused, their counsel and thereby, all citizens of the State of Texas on the Commission. He used his special talents to move between the scientists and the representatives of legal interests to secure the implementation of many practices which make forensics in Texas more transparent than any other state in the union. Maybe the crowning jewel in Mark’s work at the Commission is the public data portal which is in the final days of beta-testing and modification. This portal will give practitioners access to the records of each licensed lab and lab worker along with any complaints self-disclosed or otherwise against a lab or an employee or associate thereof. The portal will also provide access to the disposition of the complaint. Counsel will have the information at her hand to confront witnesses who claim special forensic expertise in an efficient and effective fashion like never before. We couldn’t have been better served or more grateful as an association! Thank you, Mark!

Thank you to Bill Hines of Austin for serving us so well on the licensing advisory committee of the Texas Forensic Science Commission for the past three years. We are appreciative and grateful that he selflessly devoted his time in the pursuit of justice. He will be stepping away in January 2022, and will be replaced by Angelica Cogliano of Austin.

Court Appointed Attorneys are “Cop Out” Attorneys

In my fifty plus years of practicing criminal defense, I have heard the above title more times than I can count. And, to a certain extent, I agree, for several reasons. Let me begin by explaining that in State appointments, the attorney is faced with very marginal, and in many instances, well below adequate compensation for the time required in representing a court appointed client, due to the fees that are allowed by the judges and county commissioners. This is especially true in the smaller and more rural counties.  What is striking in this resolve is that the judges make their normal salaries for their work, the prosecutors make their normal salaries for their efforts, the bailiffs make their normal salaries for their employment, the court reporters make their normal salaries plus payment for their work on appeals, and the law enforcement officers make their normal salaries for their investigation and testimony. However, the defense attorney is required to perform his or her duties with substandard compensation, limited sources of funding, and often having said compensation/funding reduced by the judge when the case is disposed by trial or plea regardless of the amount of time an attorney has had to put into his representation.  Often times the court appointed attorney does not put the time and effort that should be devoted to a particular case, as a result of overhead costs, family expense, and in today’s society, repayment of student loans. However, I have seen some court appointed attorneys who “padded their vouchers,” others who do not even set up files, others who try to convince their client to plead guilty to keep from going to trial, and some who have no business proceeding to a jury trial due to lack of experience or fear of jury trials. This is not to say all court appointed attorneys fall into these categories. I have known many very fine and competent court appointed attorneys who are without any of these faults. I am writing this article to provide attorneys, who accept court appointments (State or Federal) with practical tips that will aid in practice and dispel the title of this article. I would encourage you as a defender of the “citizen accused,” to at least try them out.

State Appointments

  1. Go and see your new client in custody or have the client come to your office if they are on bond. In this regard, I suggest that you do so at times when it does not take away from your “paying clients” (i.e., on your way home at the end of the day; on your way to the office in early morning; on weekends, when it is less crowded, or at vacancies during your office hours).
  2. If you are unable to meet with your client in person, quickly send a letter to the client telling them when you will be there to visit or setting an appointment in your office at a “lax time”. Try not use “Zoom” or “phone” – you need to see your client in person and let them see you. You need to make your visit personal.
  3. At the initial visit, advise your client of the following:
    1. You are appointed but not to worry, you will do your best for them;
    2. You will go over the discovery with the client after you receive same and review it with the client. Also, explain that under Art. 39.14, you are unable to provide the client with copies of the discovery, but you can make sure they see all discovery, whether in custody or in your office;
    3. Explain the “attorney client privilege,” advising the client that you cannot discuss the case with anyone other than the client without written permission granted by the client;
    4. Have a good interview form to get the basics, and a brief description of the facts and advise the client that you will get more facts from them after you review the discovery;
    5. Make sure to get information about and contact information for your client’s family, employers, and possible witnesses. Let your client know that you are interested in taking care of them as your client, so this information may be helpful later;
    6. Advise your client of the particular charge(s) brought and the range of punishment facing the client. Back this up with a letter to your client, advising them of the charge(s) faced and the range of punishment for each charge;
    7. Inform the client that you do not accept collect phone calls from the jail due to the likelihood of the conversation being recorded. As a matter of fact, I routinely inform the client that I never use jail phones during visitation. I have, on several occasions, had something come up during representation that was discussed “privately” on a jail phone;
    8. Make sure to take the time to build trust between you and your client using your personality to instill assurance;
    9. Explain to the client that your staff will not discuss the case with a client or members of the client’s family. Explain that the client should only discuss the case with you or when you are present;
    10. Advise your client, if in custody, that you do not have time to come out to the jail “to hold their hand” and to see how they are doing. Explain that doing so would take away from the time that you need to spend on the case. If the client needs to talk to you about something, tell them to have a family member or friend call and let you know the client needs to talk to you and you will be out as soon as you can. I also usually take a postage paid envelope or two addressed to me and leave with the client, so the client can send me a message if necessary;
    11. If the client is not in custody advise the client to keep in touch with you about changes in reference to address, phone number, employment, or new charges filed that you may not be aware of, to ask you questions, and let you know about any new evidence that the client may discover;
    12. Let the client know that you care about them and the outcome of their case, using your own method of doing so;
    13. Advise your client that they will be sent copies of every document filed in the case and follow through by sending it to them (mail from an attorney is a “status symbol” with inmates. And, other inmates will often tell your client, “I don’t get these from my court appointed attorney, and I only see my attorney when I get to court”). If the client is not in custody, send them to their mailing address or email address;
    14. I also recommend that in the first visit you express the seriousness of the offense and that you do not have a “magic wand” to make everything go away. Explain that criminal cases are based on facts. An attorney cannot change facts, but in some instances the attorney can manipulate these facts to benefit the client but you are not in a position yet to make an evaluation of what the ultimate result may be at this time. Also, explain that you may or may not be able to manipulate them (i.e., you may be limited to damage control);
    15. Explain that after you review the discovery, and investigate the facts provided by both your client and the prosecution, you should be able to advise them on what options are available. Advise the client that they will have to make a decision on what option they decide to take. As long as a client is willing to accept the risks involved in any option, you are ready, willing, and able to give your very best to try to make it happen. But facts are facts, and the client’s criminal history always plays a part in the ultimate result in the client’s case so be sure to explain any risks that there may be.
  1. When you get a copy of the indictment or complaint and information make sure to send a copy of the same to your client and tell them to make sure that these papers, along with any other papers you send the client, are important and the client should keep them;
  2. Another situation that will help you offset your time is to file a motion for appointment of an investigator. The investigator can perform many tasks for you. If you prepare your motion properly most judges will allow you some funds to do so. If you need more funding, file a motion for it. In this regard, make sure your client knows you have hired an investigator and introduce them to your client;
  3. While your client is sitting in jail waiting for things to happen, or out on bond, I suggest that you use a form letter, and advise them either the present status of the case OR inform the client that you are still working on the case but have nothing of any importance to tell them at this time. I recommend that you do this at least once per month;
  4. Review the discovery as quickly as you can. It’s often very difficult for me to do it during the day at the office, so I do it early in the morning or after 5 p.m. when not faced with the interruptions by phone, secretaries, or “drop-in clients”. Take notes, highlight important issues while reviewing, and keep them in your file;
  5. As quickly as possible, meet with the prosecutor and get a recommendation for a plea. I have learned there is a lot of psychology involved in dealing with prosecutors, so you have to know how to deal with a particular district attorney or their assistant. Often times, the first offer is just a starting place with your client’s case. Tell the prosecutor that you will present it to your client but don’t know how your client will respond as you just started on this case. Don’t put all your cards on the table at this point;
  6. After reviewing the discovery, getting the facts, witnesses for the client’s defense, and going over the discovery with the client, including the criminal history, then give the offer to your client, and back it up with a letter confirming that this is the “present offer” and advise the client that you will continue to negotiate if they so desire. Then the psychology aspect comes in. You have to know your prosecutor and how to negotiate at this point. Only lay your “cards” out as a last resort, and even then, be very careful using intimation rather than hard facts, which can give the prosecutor time to prepare and fix any problems;
  7. Do not overlook preparing for “punishment”. So many times, in my past 50 plus years of practice, there was no way to win the battle over guilt and innocence. However, I have been able to win the war with community supervision or a much lower sentence than the plea-offer. Too often, lawyers focus just on guilt or innocence and put punishment on the back burner. Prosecutors generally do not focus on punishment, and you can use that to your advantage. Even to the point, don’t advise the prosecution or the court until after the indictment or complaint and information are read before the jury or judge, that you are entering a “guilty” plea and going to the jury or the court only for punishment. There are two advantages to doing this: (1) The prosecution still has to put on evidence to meet their burden of proof. But, it often times shortens or softens the facts, and (2) you are ready with your case in chief, “punishment”. If your client wants a trial, as long as they are willing to accept the risks, which you must set out for the client, you will have to go to trial and explain you will do your very best, but don’t expect a miracle. In this situation, always back your client’s decision up with a correspondence confirming their decision and setting out the risks involved. When a final offer is made, and your client accepts or rejects same you should confirm this in correspondence to your client stating the offer, their acceptance and/or rejection and if rejected, make sure you point out the risks to the client in this correspondence;
  8. You should also check the jail records to see if there are any “detainers” from other counties, states, parole, probation, and even Federal detainers as they have to be taken into consideration in your negotiations even to the point of contacting the prosecuting authority to find out what they are going to do and possibly even convince them make them go away and dismiss if your client is going to receive time or probation elsewhere;
  9. JAIL CHAINS: I am very opposed to this court dictated “docket clearing practice”. Too often, especially in misdemeanors, your clients will have detainers, parole violations, or pending felonies that could be affected by a conviction in misdemeanor court on any one or more of the aforementioned pending matters. The Courts want to reduce their docket and are not concerned with those other matters not in their court which generally affect your client adversely. It is not “justice.” I call it “house cleaning” by the Court. Your responsibility is to the client, not to the Court. I refuse to be a part of this process. You must look at all aspects. It is unfair to your client and the system to plead a client for time or probation if it will have a detrimental effect on another case facing them. You should not worry about the Judge not liking it at this point. Your client is more important than the court’s crowded docket;
  10. I also suggest in entering a plea, that you get your plea papers before the date the plea is going to be taken by the Court. Don’t go over this paperwork in the hall on the date of the plea hearing if possible. You should take the papers to your client, and go over each detail with them. I always have my client initial each item we discuss in “red ink” and have them sign each document in “red ink”. The judges love it, because no one else does this and you have proof that it was covered at the time it was signed.

These are just a few suggestions that will assist you in your client relationship and the Court and rebut the public’s concept of “court appointed attorneys are cop out attorneys.”  You are documenting your services and communicating with your client. In many instances, the family and your client will aid in establishing trust in you, too.  I have even had clients at the plea hearing thank the Court for appointing me to represent them. I have found that when you do these things, it will result in future referrals from the client and their family and friends. The compensation paid for your services will be offset by your efforts for the client and satisfaction that you have done your very best.

A final “caveat,” if you are afraid of a jury trial, or if you are worried about making a particular judge angry, don’t take court appointments. You are an advocate for your client, and you have a duty to them. You should not worry that if you make a judge angry you will not get more appointments. Your responsibility is to your client, not to the judge.

Federal Appointments

The foregoing also applies in most Federal court appointments. Many attorneys express a fear or hesitation in taking Federal appointments. Those fears and reservations are not well founded. There is a learning curve, but it is not difficult and through the “CJA” there is unlimited assistance from the Public Defenders Offices as well as webinars, forms, and manuals available to you. In addition, the fees paid by Federal appointments far surpass those paid for State appointments. You will be paid at an hourly rate for your time and reimbursed for expenses at a reasonable rate. Talk with other attorneys who take Federal appointments including the Public Defenders. They are especially helpful. You have to get “acclimated” to Federal practice. It is not difficult but it can actually be profitable. Your voucher is kept online, and when you complete your representation, you literally punch a few buttons and submit your voucher to the Court. It is rare that a Federal Judge cuts your fees, and the Federal judge will almost never will cut your reasonable expenses, even postage. In non-capital cases in the Northern and Western Districts where I practice, the budget amounts have a limit which exceeds for services $10,000.00 on a case not including expenses. In revocations of “supervised release” the budget limit is approximately $2,500.00. If you are not taking Federal appointments, they are definitely worth considering.

For those of you who do accept Federal appointments, here are some additional tips which I believe will assist you:

  1. Unlike in state court, “jail chains” do not apply. Often, in Federal appointments your client is not in the same city or town as your office. You will have to travel to visit your client. The initial visit should be “in person”. You have to instill trust with you by the client. I have heard numerous complaints by clients that the only time they are able to visit in person with their attorney is at the courthouse. The rest of the time is by phone or “Zoom”. You need to be “face to face” for both you and your client, and be able to make eye contact with them;
  2. Obviously, you can’t go to the jury for punishment in a Federal case. However, you should start working on punishment from the very beginning by getting information from your client on family, friends, employers, religion, and the community in which your client lives;
  3. In that regard, it has been my experience that you have to deal with U.S. Probation Officers who compose the Presentence Report (PSR). I got a form from one Pretrial Release Officer, which is very helpful in representing the client. One would think that the officers would be fair and even in the report. This is generally not true. Most of the time the “bad” is emphasized and the “good” is merely mentioned, or the report says information requested “No reply”. Remember, they get their information from the Government, and all relevant conduct is used in computing the “Base Offense Level” to increase the “guidelines”. The officers will go to great lengths to emphasize the bad conduct and the “ghost dope” when they can. I have also found on more than one occasion when the PSR reveals “No reply”, that the person, employer, or character reference were never contacted. I always recommend filing objections to the PSR when any of this occurs;
  4. Another matter along these same lines has to do with what I call “character letters” and also psychological or psychiatric evaluations. The officers will tell you that these will not be attached to the PSR. When I respond to the PSR I object and attach them as exhibits that the Court should take into consideration. Additionally, I always file a Sentencing Memorandum and again attach them as Exhibits knowing that at least I have provided them for the Court and his “briefing clerk” to consider;
  5. Always prepare your client for the PSR interview. I do this by requesting the PSR Interview Form from the Probation Officer well before the interview. I then take it to my client and we fill it out as best we can. I then forward the form to the Probation Officer before the interview. There are three reasons to do this: (1) it shortens the interview because the Probation Officer just has to fill in the blanks (2) you learn many things when filling it out which may be useful, and (3) you are giving a preview to your client of the interview and instructing the client on when and how to respond to the questions posed by the Probation Officer;
  6. THE PSR INTERVIEW: Always advise the Probation Officer that you want and will be physically present at the time of the interview. Don’t just be in on a “3-way call”. You need to be present and follow along with the form you have helped your client fill out. This too, will make your client trust you even more, and you are controlling the interview, not the Probation Officer;
  7. I have found that the Judges in Federal Court (U.S. Magistrates and U.S. District Court Judges) for the most part appreciate the time and effort that you put into a case. In my personal experience, I have even been complimented by some judges for my efforts in the case by the Court.
  8. In the Northern and Western Districts where I practice, we are allowed $900.00 for an expert or an investigator without first gaining permission of the Court. If additional funds are needed, you can apply “ex parte” for additional funds for an investigator or expert by filling out the proper CJA form, articulating the need, the cost, and the name of the expert or investigator. I have never been turned down by the Court. This should be utilized by you. It can reduce the amount of time or travel that you have to spend “behind the windshield” or waiting at the jail. And the judges appreciate the “cost saving”. Take your investigator with you to visit your client, introduce them, and explain that they now have two people working on the case and the client should treat them as if it were you in their dealings;
  9. Document all your meetings, discussions, and communications with the prosecutors, the courtroom deputies, the holding facilities, and the Court and place that document in your file. This is easily done through emails, correspondence, and documenting your voucher;
  10. Discovery in Federal cases is often lengthy and detailed. I have had several cases with more than 1TB of printed data, videos, photographs, recordings, etc. I presently have a case that involves 5 six-inch binders plus flash drives of videos, photos, and recordings. You have a duty to go through it all. I suggest that you do so outside of office hours, and take notes. It can be tedious and time consuming, but in order to properly represent your client you need to have all the knowledge available concerning your client. Be sure to charge for your time on the voucher;
  11. Keep a good working relationship and communication with the Courtroom Deputy. These individuals can save you time and expense. Always thank them for their assistance whether in person or by email. They are quite busy, but I have found that they understand matters such as conflicts in scheduling, appointments, and general assistance. I have even sent letters to their supervisors telling how much I appreciate their hard work and assistance. You would be amazed at the cooperation and consideration you can achieve by doing so;

I could go on and on with several other matters but I consider most of the foregoing are interchangeable between Federal and State appointments. The bottom line here is that you have an obligation to represent your client to the best of your ability. If you are not comfortable trying cases in federal court, then get some experience by sitting second chair. You need to see the prosecution you will be facing in the courtroom, the judge in the courtroom, and the particular way that voir dire is conducted by that particular Court. If you were a coach of a football or baseball team you would want to know how the opposing team members perform. The same concept should be followed if you are proceeding to trial whether before a jury or the bench and whether in state or federal court. Talk to other attorneys who practice before that Court, ask questions and insight of them to help you prepare for the trial. Scouting in such a manner has proven invaluable to assist me in preparing for trial.

Conclusion

I firmly believe that if you are going to take court appointments you should be ready, willing, and able to go to trial if that’s what your client wants. Advise your client of the risks involved, and if the client persists, it is their liberty that is at risk. In my experience, I have been involved in representing clients, I have tried cases that were absolute losers, and had so advised my client prior to trial. I have documented this for post-conviction attacks. Every once in a while, “you catch lightening in a jar” and win one or even get a lesser sentence than was involved in the plea offer. These kind of cases allow you to think outside the box and try new approaches or arguments which makes the trial exciting to you and your client. I actually got a two-word verdict in a Possession of Methamphetamine case involving a client who had more than 50 prior arrests. My motto is:  “I try to treat a client the way I would want to be treated were I the client and not the attorney.”

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