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Surviving the Practice of Law

Stress and Resiliency

The adversarial system places litigators in conflict with another lawyer, a judge, and often, a client and his family. This basic nature of law practice is one of the things that makes our profession so different and so much more stressful than other challenging professions. Doubtless, the challenge of “representing” another person and effecting the consequences of the decisions made by a court with our work are as stress‑inducing as any other profession. Doctors certainly have significant stress in administering to the medical needs of their patients, but they don’t face another doctor challenging every decision made in the treatment. Statistics show that lawyers abuse alcohol and other substances more than other professions, suffer from anxiety and depression more often than other professions, and die by suicide more often than other professions.

In order to survive the practice of law, we must realize what stress is, what it does for and to us, how to safely respond to it, and how to respond if we don’t do well when we first face it. Not all stress is bad. Both physical and mental stress can improve our performance so long as the stress is of an appropriate duration and intensity. An appropriate stress response comprises introduction of a stressor, resistance (including mobilizing to withstand the stress), exhaustion (depletion of body’s resources), recovery (return to homeostasis). In their appropriate form the resistance and exhaustion develop strength. When this isn’t the pattern and the stressor continues such that there is stress beyond exhaustion, chronic stress is the result.

Even under chronic physical stress conditions there comes a time that our bodies quit responding and struggling against the resistance. We may develop a cramp in a muscle or run into some other wall that stops the physical activity. This isn’t the case with mental and emotional stress. There is no protective response that stops our attempts to respond to the incoming stress. Human beings are, therefore, capable of “stressing” beyond the breaking point. Chronic stress, not handled appropriately, can result in burnout. The choices, therefore are avoiding stress where we can, limiting stress when we can, taking time to engage in activities that help us recover from stress when it can’t be helped, and avoiding excessive use of substances or processes which might become addictive.

Though there is no universal “right way” to accomplish the results listed above, there are processes which can mitigate stress and accelerate recovery. The first step toward surviving the stress of law practice is recognizing what stress is and being aware when it overtakes us. In order to identify the stress, we become aware of what is likely to cause stress in our life and practice. Thereafter, we learn skills to manage the stress to the degree possible, learn and use skills to recover from stress and learn and practice skills to avoid or recover from burnout.

First Things First

If there are two words that we would choose to live by, we could be far less stressed than we commonly are. SLOW DOWN! That’s all, move slower, and think more. To borrow lyrics from the Hamilton Broadway show, “talk less, smile more. . .” or, for the more mature lawyers, from Simon and Garfunkel, “Slow down, you move too fast.” When we research wellness we regularly read about mindfulness. One can’t be mindful while moving at warp speed like we often do.

Causes of Stress in Lawyers

The sources of stress for lawyers are legion. In addition to the stresses listed above, we have the human challenges common to marital relationships, familial relationships, financial challenges, and health issues. We are confronted by secondary trauma from dealing with anger, frustration, and the emotions of our clients; we usually have a sense of perfectionism, we act as if everything has to be done exactly right or we risk absolute failure; we never feel that our clients are truly pleased with our work; we sometimes act in a way that isn’t aligned with our core values; and, we are often working long hours which aren’t physically, mentally or emotionally sustainable.

Avoidance of Stressors

There are stresses that we have the capacity to avoid or to limit. The most prevalent stressor that we have the opportunity to avoid is anger. Our work often leads to heated discussions about the facts we are dealing with, the law applicable to them or the appropriate disposition of a case. We are likely to feel our blood pressure rise and a throbbing in our temples.

Other changes, which we often don’t notice, include our vision becoming more constricted and our decision‑making becoming “split‑second.” These are the common symptoms of the “fight or flight” response. One of the things these changes signal is that our brain is changing the decision‑ making locus from the pre‑frontal cortex to the amygdala ‑ from the large, advanced, human brain to the reptile brain. This part of the brain is extremely fast and quite narrow in its capability. When it is engaged, it always acts as if we are being threatened with serious injury or death. The reptile brain made us able to evolve from reptiles to the higher species, but it is a dangerous place to be making decisions that will have long‑term consequences.

Hurriedness is another stressor that we have power over. Over the years, thousands of “time saving” applications and devices have been marketed. There is no way to save or create more time; there are only so many hours in a day and only so much can be done in any given hour. Far from giving us more time for ourselves, reliance on the new technology complicates “down time” by providing entertainment or accessibility 24 hours a day. We seldom schedule time to think or to meditate. Since this is a self‑imposed stressor, we can integrate it to the degree and with the effectiveness we commit to. Most of us have considered meditation and the majority of those that have, have quit after a short time because their mind wouldn’t slow down and let them be. It is difficult! The good news is that one needn’t be a “perfect” meditator to benefit from the effort. Research has shown that only minutes a day yield significant benefits. Experience also shows that staying with small successes builds to large successes.

Realize Limitations

Know yourself and listen to your body. J.K. Rowling, of Harry Potter fame, has said, “It is impossible to live without failing at something, unless you live so cautiously that you might as well not have lived at all.” One of my favorite Alcoholics Anonymous speakers pointed out in a recorded talk that “the only thing a perfectionist is ever going to be is a failure.” Research has shown that it is possible to grow from failure. When we reach our limit, we need to learn to stop and either choose a different route or come back when we are in better shape. We can improve our “conditioning” by a course of study in a fashion similar to the way we improve our physical condition by exercise. If the end we reach is a real end, though, we need to recognize it and stop the battle. Chronic stress brings burnout and all the potential bad consequences.

Optimism is the Key

“Deadlines and commitments, what to leave in and what to leave out, against the wind . . .” Bob Seger and the Silver Bullet Band described the plight of the lawyer well in their 1980 hit. For most of us, a positive attitude doesn’t come easily. Part of that is likely because we have to analyze every fact and its probable effect in every case. We end up doing comparisons of everything in our life. We sometimes find ourselves “comparing our insides to someone else’s outsides” in AA parlance. There are times when every other lawyer at the courthouse looks more content, competent, and successful than we feel. We can develop doubts of our skills and our value. Our work is being judged, sometimes fairly and sometimes unfairly by judges, other lawyers, clients, clients’ families, and the reading public if you or your case end up in the news. Our responses, especially when we aren’t successful in our undertaking, make the difference between what one writer calls learned helplessness and resilience. Research has shown that one way we can improve our optimism is to be grateful. Making a gratitude list daily and really digging down to the emotion while we do so can support an outlook of optimism. I have found myself doing a perfunctory gratitude list, just scraping off the top, and my experience is that that type of list is much less effective. We can benefit from taking the time to fully engage our gratitude and realize the gifts we have received in the past 24 hours.

Prioritize

Prioritize and then set reasonable goals. My wife accuses me of thinking that I can arrive at one location at the same time I leave another. I am notorious for working to within five minutes of a meeting and leaving for the meeting, which is a 10‑minute drive, and not believing that I arrived late. This is a small thing, but it moves me from my rational, thinking brain into my fear‑based fight or flight brain. That change narrows my vision and limits alternatives and builds suspected adverse results. If I will take the time to plan and prioritize my day, I can avoid “running around like a chicken with my head cut off.” One of my favorite excuses for not planning and prioritizing is that it takes time. While it is true that planning is work and it does take time, its net result is often that we are more efficient and end up not causing stress for ourselves.

Exercise

Exercise in moderation. This is easily said to an attorney but hard to practice if you are one like me. Competition probably fueled our desire to be admitted to law school. It certainly drove us during law school, and it isn’t likely that it is diminished when we started practice. Often our “driven” nature makes it difficult for people to get near us or understand us when they do. If we take the competitive nature that got us through law school into our exercise program, there is a real likelihood that we will end up injured. This is especially true for the more mature lawyers like me. I was never going to be satisfied that I was a cyclist until I finished the Hotter ‘N Hell Hundred in Wichita Falls. Then one completion of the test wasn’t enough. I hadn’t ridden fast enough, so I did it each year for the next couple. I broke my hip in April of this year when I fell on my bicycle. My most fervent hope is that I can complete the H‘NH next year. I tell you this so you know that I have a hard time following my own suggestions. The truth is that most everything I know about stress management, I learned by doing it wrong. So, do as I say, not as I do! The goal should be activity rather than perfection.

Take Vacations

This is the “smile more” from the Hamilton song. We need to take real vacations, not “working vacations” where we take our computers and check in with the office in the morning and again in the afternoon. Many of the vacations I took with my kids may have been vacations for them but they wouldn’t have qualified as “an extended period of leisure and recreation, especially one spent away from home,” a vacation according to the Oxford Dictionary, for me. Over the years, it has seemed to me that there was always more to do than I had time to do it. In response, I would combine things that seemed to nearly fit together. Time with children and time away from the office were closely related but I fowled both of them by taking work along with me. We need to truly vacate when we take vacation if we want to feel the benefits that they can provide. The benefits aren’t a luxury, they are necessary. Similar to sleep, we can’t do without a break.

Share Feelings with a Trusted Person

It is probably best to have a friend who isn’t a lawyer to talk to. Even when we lawyers understand stress, we accept way more than we should. The problem of venting with a colleague may be that they hear you and either think or say, “I’m having it much tougher than he is. . . ” Sharing with a “civilian” can give another perspective. It is appropriate to consider, too, whether the civilian is a spouse or significant other. It is often a good idea to share with these people but sometimes consider sharing with them after talking with an unrelated person. Spouses are likely to be affected similarly by the consequences of the issue shared as we are so their response may not be much more objective than our own. A member of a church congregation or a social group or, as in my case, another member of Alcoholics Anonymous, is more likely to give the dispassionate consideration of your controversy and bounce more creative responses back to us than another who is affected by the same events which affect us.

Seek Help

I was in therapy for years just before and during my early sobriety. My therapist was fabulous and one thing that she told me that personalized her to me was her belief that any therapist needed to be in counseling with another professional. I didn’t really understand referred trauma and emotional fatigue at that time, but it still made intuitive sense and made me trust her even more. What I know today is that it isn’t crazy people who go to counselors, but it is often the few who stay sane. Life is complex, especially for people who serve the public. In the same fashion that we expect a person who tries to defend himself in a DWI case to crash and burn, we are likely to suffer the same result when we try to diagnose and treat our own stress.

Burnout

You might be burning out if:

  • You end each workday highly stressed;
  • Feel a knot in your stomach on Sunday night;
  • Find yourself disengaging from work, family, friends, and health; or
  • Have ulcers, upset stomach, headaches, backaches, colitis, lack of concentration, rage, and even potentially a heart

Burnout is characterized by physical and emotional exhaustion, feelings of cynicism and detachment, and a sense that nothing you do makes a difference. Mindtool.com suggests 5 responses to burnout: (1) thinking about the “why,” (2) focus on the basics, (3) taking a vacation or leave of absence, (4) say “no,” and (5) practice positive thinking. You can see that some of these are extensions of or more imperative applications of some of the suggestions made above. A couple of these suggestions, though, need further development.

What is the “why?” Are there specifics about your work or your life that leave you with resentments? Sometimes the cause of the resentment is a person and other times they are circumstances or governmental entities (IRS included). When you come to an understanding of what you resent, it becomes possible to address removing it. Sometimes we can remove the object of the resentment and other times, we have to change the way we feel about it. This takes focus and commitment. Vague feelings of “I’ll do better. . .” aren’t going to work, and it may take a therapist’s assistance to dig the right hole.

Nancy Reagan wanted us to “Just say no” in her anti‑drug campaign back in the day. While I have reservations about how successful that campaign was, I absolutely know that a well‑placed “no” goes a long way toward freedom from many resentments. People will make requests of us so long as we agree to take on the burden they offer. Once the challenge is “our problem” the referring party can move on, free from the burden and the responsibility it carried. We have to choose what we can and want to do. We need to reserve a little time in our life in case a new and wonderful opportunity comes. Every time we say no to someone else, we are saying yes to ourselves!

Addiction

The effect of a drink or use of a recreational drug is relatively immediate and the sensation of stress changes. The feeling we end up with may not be any better than the stress we were feeling, but it is different, and sometimes that is enough. Litigators must take note of how and when we drink or use prescription medications. It isn’t unusual to notice a pattern of heavier use in times of stress. Not everyone who drinks is, or is likely to become, an alcoholic, even if they drink more than they should at times. Neither is everyone who uses drugs likely to become addicted. There are other consequences of use though, both physical and emotional. When use becomes addiction, the consequences multiply and become more complicated. Addiction is defined as a chronic, relapsing disease, and recovery may be a long and winding road. Recovery from addiction is supported by the State Bar and the Lawyers Assistance Program. It is also supported by individual counseling and numerous 12‑step meetings. The first step toward recovery is “to quit digging” the hole of despair, fear, and remorse for just long enough to engage another person and then to lean on the other person until we can walk on our own.

The foregoing list of challenges and responses are in no way lists of everything which could populate these categories. Hopefully, they can give a toehold on the challenge you face. The TCDLA Attorney Wellness Committee is composed of a group of criminal defense litigators who have an interest in, and a commitment to, helping other lawyers with issues such as those listed above. These lawyers and their email addresses are listed below. The Texas Lawyers Assistance Program also provides confidential assistance and referral. They can be reached at: tlaphelps.org or (800)343‑TLAP (8527).

Rick Wardroup |
Andrew Herreth |
William Stith |
Coretta Graham |
Savannah Gonzalez |
Amy Blalock |
Mark Griffith |
Amy Boylan |
Shana Stein‑Faulhaber |

Don’t Leave Exculpatory Digital Evidence on the (Lab) Table

It is common in today’s criminal law practice for the State to possess cell phone data that they claim inculpates our client. Many times, it does actually implicate our client. We all know that one of the first steps a law enforcement agency takes per their investigation is to locate and seize relevant mobile devices and computers. We can then expect to see in the discovery materials a search warrant for the mobile device or computer, and/or a search warrant to obtain additional digital devices. This first round of search warrants is often followed up with search warrants to cell phone service providers and social media sites such as Facebook, Instagram, etc., for relevant digital information in the possession of these entities.

This article will discuss the steps that a criminal defense attorney may have to take to receive complete discovery of the data recovered by a digital forensic extraction from a cell phone, tablet, or computer.

Data is forensically copied from a cell phone or other mobile device in a process called an extraction. There are three types of cell phone extractions seen in the industry: a file system extraction, a physical extraction, and a logical extraction. The principles discussed in this article apply to all three types of extractions. In fact, the logical extraction which directly outputs limited data to a ready‑to‑review .html web page is particularly problematic for discovery purposes because it is often used in a pinch by untrained law enforcement to quickly (but not thoroughly) identify information on a cell phone.

Numerous software providers make cell phone extraction and analytics software. The most common and state‑of‑the‑art software is manufactured by Cellebrite, an Israeli digital intelligence company. Cellebrite software is used by most law enforcement agencies. There are also private digital labs that perform cell phone extractions using Cellebrite software.

To conduct a cell phone extraction, the cell phone is connected to forensic hardware which could be a computer or a standalone device such as a Universal Forensic Extraction Device (UFED) that runs the extraction software. The files from the cell phone are then copied to the computer or a target drive connected to the UFED. The extraction software stores cell phone data into a container file or files with an extension of .zip, .bin, .tar, etc. These file types contain many raw folders and files such as database files that contain the digital information on the cell phone. Special forensic software is needed to open these files. These files cannot be opened in a way that can be understood by most attorneys. It takes specialized training and knowledge to understand their contents. A trained and qualified examiner uses the extraction software to examine the cell phone data. An especially important file type created by an extraction is .pas files which are project session files used by Cellebrite to store the work performed by the examiner (i.e., the “bench notes” of a forensic extraction). Another example of a propriety storage file type that may be encountered is .xfc files created by X‑ways which is a computer forensic program in widespread use in the industry.

Most lawyers do not have a background in digital forensics. Therefore, lawyers may not intuitively understand the many forms of digital forensic data that may present in our cases. Since lawyers may not understand the nature of the data, we also may not understand that there is often more extracted evidence in possession of law enforcement than we receive from the State via typical discovery disclosures.

In many cases, the State still provides discovery of cell phone extraction data in the form of a .pdf, Excel, or Word document. A document in one of these formats may or may not contain active links that take the reader to further information about the cell phone extraction. If the document does contain active links, the active link often does not work or links to a page that reads “file not found.” These .pdf, Excel, and Word documents are typically prepared by the law enforcement agency that conducts the cell phone extraction.

When the State turns over cell phone reports in .pdf, Excel, or Word format, they are only providing a fraction of the data in law enforcement possession. Due to the limitations of these formats, the State is not providing a valuable trove of files containing potentially exculpatory information. When the State provides discovery in this limited format, they are potentially violating C.C.P. art. 39.14 and Brady. This is because many of the formats used by the State to provide digital discovery omit valuable categories of digital files.

Due to the limited knowledge of most lawyers of file types generated by a cell phone extraction, it is likely that prosecutors do not know they are not turning over all of the data generated by law enforcement. Since the relevant law enforcement agency is using a format for providing the data that seems to satisfy the State, it may not occur to the law enforcement agency that they are not putting the prosecutors in a position of being able to provide full discovery.

As defense attorneys, we have the task of educating the prosecution, law enforcement, and the courts as to the existence of this additional data. We have the task of demanding that the prosecutor seeks this data from law enforcement; or more commonly, the task of petitioning the court to order the State to inquire of law enforcement as to the existence of this additional data.

Other ways that a complete set of data from a device is not provided to the defense attorney arises where law enforcement has not performed a complete extraction of the device (i.e. their original extraction criteria only sought certain file types and omitted others) and where law enforcement used out‑of‑date extraction software to perform the extraction. There are many different methods for extracting data from digital devices such as cell phones and computers. Law enforcement agencies and individual forensic examiners conduct different levels of extraction and also employ extraction software that may not be completely updated in their extraction capabilities. Even if a forensic examiner uses up‑to‑date extraction software at the time of the original extraction, later versions of the extraction software often make it possible to retrieve more date from the device via an extraction performed with the updated extraction software.

Thus, a subsequent forensic examiner can discover more data from an earlier extraction by analyzing file types that were not previously extracted. It is also possible to perform a “re‑extraction” of the original device with fully updated extraction software to reveal additional files and data. (If a cell phone extraction was performed as little as a year ago, the extraction software used by the law enforcement agency has likely been updated 12‑15 times by the manufacturer.) This additional data may contain exculpatory or mitigating information.

This same scenario occurs with the extraction of data from a computer. Not only are the formats used by the State to provide discovery limited in their ability to provide a complete set of data; but subsequent extraction software updates make a more complete extraction possible.

Defense counsel should engage a trained and qualified digital forensic expert to assist in evaluating any discovery received from the State. The expert can determine from the discovery provided whether file types and data have been omitted. Expert assistance will enable defense counsel to obtain and evaluate additional data.

To obtain this data, defense counsel will likely need to make an additional discovery request of the State and/ or request to take possession of the device in question to perform another extraction. Although the State has a duty to provide all of the potentially exculpatory, mitigating, and impeaching evidence in the possession of law enforcement, they often do not understand how this evidence could have been omitted from discovery.

Defense counsel should make their filing in the form of a request for additional discovery which puts the onus directly on the State to comply. Filing a motion that requires court intervention may be necessary in the event that the State does not voluntarily comply with the request. Counsel can also file a joint request and motion seeking further evidence.

Another facet of cell phone forensics that is becoming more prevalent is law enforcement’s use of a device called GrayKey. GrayKey is a forensic access tool that extracts encrypted or inaccessible data from mobile devices. GrayKey is currently only available to law enforcement. By employing GrayKey, law enforcement officers are able to access locked mobile devices. These writers are aware of a couple of North Texas law enforcement agencies that are employing GrayKey. The use of GrayKey to access a locked or encrypted mobile device should be attacked on Fourth and Fifth Amendment grounds. In discovery motions, defense attorneys should request and move for discovery revealing and detailing the use of GrayKey.

An additional discovery request should ask for:

  1. First instance copies of all files and data produced during any method of extraction of any mobile digital device, cell phone or SD card; including but not limited to any .tar files, .zip files, and any .bin files.
  2. The request or motion should also ask for .pas files and any project session files used to store the work performed by the examiner (i.e., the “bench notes” of a forensic extraction).
  3. First  instance copies of all forensic image files generated from a computer extraction; including but not limited to .E01, .EX01, .AD1, .DD, .001, .AFF, .CTR formats of any device that may have been imaged into these formats such as computer hard drives, thumb drives, or memory cards.
  4. First instance copies of any and all information, files, and first instance and/or original metadata about the use of “GrayKey” or any other spyware program employed by law enforcement to access any digital device in the case.
  5. Any and all other evidence and information held by law enforcement in connection with this case that has not previously been provided to the defense through discovery.

“First instance” means the original extraction file or files generated by the original examiner or exact copies thereof. Later copies of an extraction file or files could be altered by file compression or by the limitations of a subsequent proprietary viewer.

“Metadata” is simply data about data. For example, an image file will contain metadata that describes how large the file is, the color depth, the image resolution, and when the image was created. Metadata is important in the forensic realm because it is often how a digital file can be authenticated.

Third Chair Digital Forensics LLC has drafted a subsequent discovery motion carefully setting out the above requests in formal discovery language. A copy of the motion appears at the end of this article and will be available in the TCDLA motions bank.

Endnotes

  1. The individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police. Kyles v. Whitley, 514 U.S. 419, 437–38, 115 S.Ct. 1555, 1567, 131 L.Ed.2d 490 (1995); Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006).

NO. _______

THE STATE OF TEXAS                            IN THE             JUDICIAL

VS.                                                                 DISTRICT COURT OF

_______________                                              ______ COUNTY, TEXAS

DEFENDANT’S REQUEST AND MOTION FOR ADDITIONAL DISCOVERY AND PRESERVATION OF EVIDENCE

TO THE CRIMINAL DISTRICT ATTORNEY OF                               COUNTY, TEXAS; AND TO THE HONORABLE JUDGE OF SAID COURT (IN THE EVENT THE STATE FAILS TO COMPLY):

Undersigned Counsel for Defendant having been provided some discovery in this case under Texas Code of Criminal Procedure art. 39.14, requests further compliance with said article from the State of Texas.

Counsel’s review of the materials provided thus far reveals that several additional items are likely in possession, custody, or control of the State of Texas or a law enforcement agency and are, therefore, discoverable under art. 39.14, but have not yet been provided to Defendant by the State of Texas. Article 39.14 specifies that the Defendant shall be allowed to inspect, electronically duplicate, copy and photograph said items; and that the State may provide electronic duplicates of said items to Defendant. The State of Texas has an on-going obligation to timely furnish discovery under this article.

The individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police. Kyles v. Whitley, 514 U.S. 419, 437–38, 115 S.Ct. 1555, 1567, 131 L.Ed.2d 490 (1995); Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006). It is irrelevant whether suppression of favorable evi- dence was done willfully or inadvertently. Harm, 183 S.W.3d at 406.

Similarly, under the Texas Disciplinary Rules of Professional Conduct Rule 3.09(d) a prosecutor in a criminal case is required to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense . . .” Rule 3.09(d) is broader than Brady because the materiality element of the Brady line of cases does not apply to Rule 3.09(d). Schultz v. Comm’n for Lawyer Discipline, 2015 WL 9855916 at *2 (Texas Bd. Disp. App. 55649, December 17, 2015). A failure of a prosecutor to disclose evidence under Rule 3.09(d) is a vio- lation of Texas Disciplinary Rules of Professional Conduct Rule 3.04(a) which makes it a disciplinary violation to unlawfully obstruct another party’s access to evidence. Id. at *4.

The State of Texas can only except requested items from discovery under the “work product” rule when the requested item contains only comments by the attorney concerning his trial strategy or opinions of the strengths and weaknesses of the case. The United States Supreme Court has described the work product doctrine as sheltering “[a]t its core … the mental processes of the attorney, providing a privileged area within which [an attorney] can analyze and prepare his client’s case.” Washington v. State, 856 S.W.2d 184, 187 (Tex.Crim.App.1993)(quoting United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141 (1975)). Material that reflects the attorney’s personal thought processes is “core work product” and receives absolute protection, while other materials, such as documents, reports, or memoranda compiled by the attorney or his agents and communications made in anticipation of litigation or trial are “other work product” and receive qualified protection. While the work-product doctrine protects the communications of parties, attorneys, and agents, the underly- ing factual information is not protected. For example, descriptions of potential witnesses and statements that would reveal whether the party had spoken to potential witnesses are not work product and are discoverable. Pope v. State, 207 S.W.3d 352, 358 (Tex. Crim. App. 2006). If counsel’s efforts do not create or enhance the substantive information, that information— or the form in which it is preserved—does not become protected work product. That is, facts that are divulged or exist inde- pendent of the attorney or his agents are not protected, but statements or documents that set out their thoughts concerning the significance of these facts or the strategic conclusions that the attorney or his agents draw from them may well be protected. Pope, 207 S.W.3d at 358-9. For example, a recording of a statement made by a witness is discoverable unless it contains only comments by the attorney concerning his trial strategy or opinions of the strengths and weaknesses of the case. Cullen v. State, 719 S.W.2d 195, 198 (Tex.Crim.App.1986).

Additionally, the government is constitutionally required to preserve evidence that might be expected to play a signifi- cant role in the suspect’s defense. Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999).

Undersigned counsel knows from experience and through consultation with experts in the field that there are many different methods for extracting data from digital devices such as cell phones and computers. Different law enforcement agencies and different forensic examiners conduct different types of extractions and also employ extraction devices that may or may not be completely up to date in their extraction capabilities.

Due to these variations, it is possible for another expert to extract more data from a device than by another, earlier ex- traction. It is also possible for a subsequent examination of the original data to reveal additional data and information. These later examinations may discover exculpatory and/or mitigating information not discovered in an analysis of the original extraction.

In order to perform a subsequent analysis of the extraction, a forensic expert needs access to first instance copies of the files created during the extraction.

For purposes of this request and motion “first instance” means the original extraction file or files generated by the original examiner or exact copies thereof. Later copies of an extraction file or files could be altered by file compression or by the limitations of a subsequent proprietary viewer.

The Scientific Working Group on Digital Evidence defines “metadata” as “data, frequently embedded within a file, that describes a file or directory, which can include the locations where the content is stored, dates and times, application specific information, and permissions.” For example, an image file will contain metadata which describes how large the file is, the color depth, the image resolution and when the image was created. Metadata is important in the forensic realm because it is often the means by which a digital file can be authenticated.

The original data, information and evidence sought to be discovered and/or preserved consists of:

  1. First instance copies of all files and data produced during any method of extraction of any mobile digital device, cell phone or SD card; including but not limited to any .tar files, .zip files, .bin files, and any .pas files (project session files used by Cellebrite to store the work performed by the examiner).
  2. First instance copies of all .E01, .EX01, .AD1, .DD, .001, .AFF, .CTR acquisition files generated during any method of extraction or imaging of any computer hard drive or thumb drive;
  3. First instance copies of any and all information, files and first instance and / or original metadata pertaining to the use of “GrayKey” or any other spyware program employed by law enforcement to access any digital device in this case;
  4. Any and all “case notes” whether written or electronic created by any law enforcement agent whether or not included in any supplemental report; and
  5. Any and all other evidence and information held by law enforcement in connection with this case that has not previously been provided to the defense through discovery.

WHEREFORE, PREMISES CONSIDERED, the Defendant hereby requests that the Court grant a hearing on this Re- quest and Motion in the instant cause; and that subsequent to the hearing of said Request and Motion that the Court ORDER that the State of Texas provide the individualized items to the Defendant.

Respectfully submitted,

S.B.O.T. No.                                  

Law Offices of                               
(Not a Partnership)

Address
City, Texas
Zip Code
Phone
Facsimile
Email

ATTORNEY FOR DEFENDANT

Trial by Pandemic: Getting a Jury of Your Peers in the Age of COVID-19

Many lawyers have focused on a defendant’s right to a speedy trial given the moratorium on jury trials amidst the COVID‑19 pandemic. This, of course, makes sense as we consider our clients in custody or those on bond awaiting their day in court so that their lives may regain a semblance of normalcy. Clients behind bars are essentially sitting ducks during the spread of this potentially deadly disease and clients on bond often must subject themselves to risk of exposure while appearing in court or attending pre‑trial supervision appointments.

While the right to a speedy trial is a critical and ever important one, another right deserves consideration: the right to a fair trial before a jury of one’s peers. As the supreme court of Texas has made special exceptions to the suspension of jury trials and as some small counties are conducting trial business as usual, the impact of COVID‑19 on the venire panel cannot be disregarded. Like so many things, the populations most effected by the spread of the virus are minorities, which are already woefully absent from most jury panels.

Empaneling a jury of the defendant’s peers is not a novel problem. Nearly any defense attorney can tell you that you might see some people of color on a jury panel, but it won’t be very often. In trial preparation, we must always be cognizant of how the facts and circumstances of the case will be perceived through the lens of a jury that we know will more than likely be older, richer, and whiter than our clients.

A jury of one’s “peers” is one that consists of members that look like the defendant or, at least, represents the makeup of the community in which the trial is held. This is critically important because diversity in the jury panel allows for people with different ideas and experiences to evaluate the evidence for proof beyond a reasonable doubt. In places where the turnout of potential jurors is already low and trends wealthy and white, achieving a representative jury on a good day can be a monumental task. In the COVID‑19 era, that monumental task becomes Herculean.

The heightened impact of COVID‑19 on the makeup of jury panels is twofold: (1) the virus’ impacts are greater in minority communities; and (2) the economic challenges that exist due to the virus create barriers to participation for some citizens, but not others.

To the first point, people who identify as Hispanic or Latino make up an estimated 39.7% of the population of Texas and around 39.9% of the diagnosed COVID‑19 cases. However, this demographic group represents more than half (56.1%) of COVID‑19 deaths.1 With more than 16,000 Texans dead from the virus, this number represents several thousands of potential jurors of color lost without factoring in the deaths of potential jurors from other groups of color. The collateral consequences of this imbalance are important too, as citizens who are responsible for the care of sick relatives may not be available to secure alternate care for their loved ones and, more importantly, those caring for sick relatives pose a risk to the whole panel, courthouse staff, judges, and counsel due to their exposure to the virus. To   the   second   point,   citizens   that    would    likely bring the sought‑after diversity to the venire are more unavailable than their wealthier and older counterparts.2 This characterization goes beyond race and limits the number of citizens available for jury duty within different socioeconomic strata. 44% of all workers aged 18 to 64 are considered low‑wage workers. Black and Hispanic/Latino workers are overrepresented in this population, and low‑wage workers are also disproportionately female. By definition, these workers are in a precarious financial situation than mid‑ or high‑wage workers. Many workers in this type of category are the primary breadwinners in their homes and the loss of wages to participate in jury duty would be catastrophic.

The COVID‑19 crisis has exacerbated the risks associated with being a low‑wage worker. The number of people who have lost their jobs have skyrocketed at the same time many low‑wage workers have been deemed essential. Parents with children are now trying to juggle virtual learning and childcare whilst also trying harder than ever to figure out how to pay the bills. They cannot afford to miss a single day that is not moving toward that end.

These issues are only a few of the many intersectional ways this crisis has impacted the makeup of jury pools as well as our community at large.

So, what can we do?

Of course, the entire system needs work. It is typical in some counties for somewhere around 70% of potential jurors summoned to fail to appear for jury service.3 One of the easiest ways to increase the diversity of the jury pool is to increase the size of the pool itself and gain attendance from potential jurors from underrepresented populations. On a practical level, there are things that defense attorneys can do in both these times and in times where there is no pandemic.

The first thing to remember is to always make note of how the jurisdiction picks juries. Each county is different and, chances are, that each court in each county is a little different, too. The way Harris county numbers jurors for selection and the way Hays county numbers jurors is vastly different and relying on what you know from one county or another can result in favorable jurors ending up on the chopping block rather than in the jury box. In my practice, we make an effort to go by the court where trial is going to be held to get a seating chart and speak to the staff about how the particular judge goes about picking a jury. If an in‑ person visit is not available, we try to reach out to the staff via phone or email or will try to find local counsel to speak with and gather information on the procedure.

The next tool that attorneys can use is the jury shuffle. Often when picking a jury, there are people of color there, though they are notably underrepresented in the pool, and often are seated in unfavorable positions. A shuffle can give a defendant a chance at getting someone who looks like them or shares similar life experiences.

Third, lawyers can add an argument about a defendant having the right to a jury of the defendant’s peers to their motions for continuance. Many defense attorneys have been filing motions to continue on the basis of the pandemic’s effect on a defendant’s ability to have a fair trial. Defense counsel should, however, make sure to note these demographic challenges in addition to the concerns regarding safety, attorney‑client communications, evidentiary challenges, etc.

Finally, counsel should always remember that the characteristics that result in a jury that more closely resembles the defendant are intersectional. This means that there are often multiple things to look for in a juror that will allow for them to more closely relate to your client or be representative of the community as a whole. If there are no potential jurors of the same race on the panel, then root out those of similar socioeconomic status or life experience. While the pandemic rages on, it is obviously not safe to gather a large group of potential jurors right now and trials are still suspended until the infection rates are more under control. We can only hope that once it is deemed safe to hold trials again, many of these exacerbating factors will be alleviated and our clients can all be on the receiving end of the true justice they deserve.

Transportation Code 709.001 DWI Superfines

History

Effective September 1st, 2019, the Texas Driver Responsibility Program (“DRP”) was repealed and replaced by Transportation Code 709.001. Previously under the DRP, those convicted of a DWI in Texas were required to pay a surcharge. The surcharge amount was $1,000 per year with the exceptions of the surcharge being $1,500 per year for a second or subsequent conviction within 36 months; and $2,000 for a first or subsequent conviction if it was shown that the blood alcohol content of the person was .15 or more at the time of analysis. This surcharge was not to be assessed for more than three years.

The New Code

However, under the Transportation Code 709.001, a new ‘superfine’ was to be imposed. The code states:

TRAFFIC FINE FOR CONVICTION OF CERTAIN

INTOXICATED DRIVER OFFENSES. (a) In this section, “offense relating to the operating of a motor vehicle while intoxicated” has the meaning assigned by Section 49.09, Penal Code.

(b) Except as provided by Subsection (c), in addition to the fine prescribed for the specific offense, a person who has been finally convicted of an offense relating to the operating of a motor vehicle while intoxicated shall pay a fine of:

(1) $3,000 for the first conviction within a 36‑month period;
(2) $4,500 for a second or subsequent conviction within a 36‑month period; and
(3) $6,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.

(c) If the court having jurisdiction over an offense that is the basis for a fine imposed under this section makes a finding that the person is indigent, the court shall waive all fines and costs imposed on the person under this section.

(d) A person must provide information to the court in which the person is convicted of the offense that is the basis for the fine to establish that the person is The following documentation may be used as proof:

(1) a copy of the person’s most recent federal income tax return that shows that the person’s income or the person’s household income does not exceed 125 percent of the applicable income level established by the federal poverty guidelines;
(2) a copy of the person’s most recent statement of wages that shows that the person’s income or the person’s household income does not exceed 125 percent of the applicable income level established by the federal poverty guidelines; or
(3) documentation from a federal agency, state agency, or school district that indicates that the person or, if the person is a dependent as defined by Section 152, Internal Revenue Code of 1986, the taxpayer claiming the person as a dependent, receives assistance from:

(A) the food stamp program or the financial assistance program established under Chapter 31, Human Resources Code;
(B) the federal special supplemental nutrition program for women, infants, and children authorized by 42 U.S.C. Section 1786;
(C) the medical assistance program under Chapter 32, Human Resources Code;
(D) the child health plan program under Chapter 62, Health and Safety Code; or
(E) the national free or reduced‑price lunch program established under 42 S.C. Section 1751 et seq.

Added by Acts 2019, 86th Leg., R.S., Ch. 1094 (H.B. 2048), Sec. 14, eff. September 1, 2019.

A Change, Not a Change

At first glance, this Code seems to mimic the previous DRP as far as an additional financial requirement on DWI cases. However, there are some significant differences and legal issues. First, the law does not have any transition language that would extend the DRP. Therefore, those charged with a DWI before the September 1st, 2019 date would no longer be affected by the repealed DRP.

Additionally, there is a strong argument that the new transportation code would not be applied to any DWI charged before the September 1st, 2019 due to a violation of Ex Post Facto laws prohibited by the Texas and United States Constitution. An ex post facto law is one that: (1) punishes as a crime an act previously committed that was innocent when done; (2) aggravates a crime, or makes it greater than it was, when committed; (3) changes the punishment and inflicts greater punishment than the law attached to the criminal offense when committed; or (4) deprives a person charged with a crime of any defense available at the time the act was committed. Peugh v. United States, 569 U.S. 530, 538‑39, 133 S. Ct. 2072, 186 L. Ed. 2d 84 (2013); Collins v. Youngblood, 497 U.S. 37, 41‑44, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990); Rodriguez v. State, 93 S.W.3d 60, 66 (Tex. Crim. App. 2002); Ex parte Davis, 947 S.W.2d 216, 219‑20 (Tex. Crim. App. 1996); Grimes v. State, 807 S.W.2d 582, 583‑84, 586‑87 (Tex. Crim. App. 1991).

Confusion in the Courts

Initially there was quite a bit of confusion within the courts on the application of the repeal of the DRP and the implementation of Code 709.001. However, in most jurisdictions, this is now settled that any DWI charged before September 1st, 2019 would have fallen under the now repealed DRP and no surcharge would be assessed. All DWIs charged after the September 1st, 2019 date would fall under the new code.

Interpretation of the New Code 709.001: Final Convictions

There are significant differences with the Transportation Code from the DRP that are invaluable to the defense. First, examine under section (b), “a person who has been finally convicted of an offense relating to the operating of a motor vehicle while intoxicated.” For many years under Texas law, “finally convicted” meant:

[I]t is . . . well established that a conviction is not final for enhancement purposes where the imposition of sentence has been suspended and probation granted. A successfully served probation is not available for enhancement purposes. The imposition of a sentence is required to establish the finality of a conviction. However, a probated sentence can turn into a final conviction if probation is revoked.

Ex parte  Pue, 552 S.W.3d 226, 230–31 (Tex. Crim. App. 2018).

Under Tex. Gov. Code § 311.023 and Arteaga v. State, 521 S.W.3d 329, 334 (Tex. Crim. App. 2017), extratextual factors that may be considered in interpreting a statute include: (1) the object sought to be attained by the Legislature; (2) the circumstances under which the statute was enacted; (3) the legislative history; (4) the common law or former statutory provisions, including laws on the same or similar subjects; (5) the consequences of a particular construction; (6) the administrative construction of the statute; and (7) the title or caption, preamble, and any emergency provision.

When “finally convicted” language was added to Chapter 49 of the Penal code, it is presumed the legislature is aware of Pue, as well as other areas of the law using the same phrase.

“We presume the Legislature is aware of relevant case law when it enacts or modifies statutes. A statute is presumed to have been enacted by the legislature with complete knowledge of the existing law and with reference to it. Language in a statute is presumed to have been selected and used with care, and every word or phrase in a statute is presumed to have been intentionally used with a meaning and a purpose.” In re Allen, 366 S.W.3d 696, 706 (Tex. 2012).

Therefore, only a “probated sentence [that] turn[s] into a final conviction [by] probation [being] revoked” is a “final conviction” subject to the mandatory fines.

This interpretation of a final conviction is in line with the Texas District and County Attorney’s Association’s reading of the statute. Hence, most jurisdictions appear to be following suit with this interpretation and only applying the ‘superfine’ to cases with jail/prison sentences and not for probation. Probation only being a final conviction if the probated sentence is revoked.

Interpretation of the New Code 709.001: Section (c) Findings of Indigency

According to Section (c), if the court having jurisdiction over an offense that is the basis for a fine imposed under this section makes a finding that the person is indigent, the court SHALL waive all fines and costs imposed on the person under this section.

Section (d) of the code clearly defines the requirements that MUST be provided to the court to establish that the person is indigent. These conditions are included in the article above. Following is a standardized motion to waive the fine imposed by the code due to indigency.

Conclusion

We have seen the end of the DRP. Any DWI case that occurred prior to September 1st, 2019 will not be affected by Transportation Code 709.001 ‘superfines.’ Moving forward, ‘superfines’ should only be imposed on those whose DWI convictions are found to be final either through a jail/prison sentence or through the revocation of their probation.

If a ‘superfine’ is to be imposed, the defense may be able to meet the requirements to be found indigent. The defense must provide documentation to the court under section (d) of 709.001. If the court finds the defendant indigent, then the court must waive the fine imposed by the statute.


CAUSE NO.                                            

STATE OF TEXAS

§

 

§

IN THE COUNTY CRIMINAL

vs.

§

COURT NO.              

§

CLIENT

§

DALLAS COUNTY, TEXAS

 

MOTION TO WAIVE IMPOSITION OF FINE FOR CONVICTION OF CERTAIN INTOXICATED DRIVER OFFENSES UNDER TEXAS TRANSPORTATION CODE 709.001

COMES NOW DEFENDANT, in the above-styled and numbered cause and moves the Court to waive any and all fines under Texas Transportation Code 709.001. Under Section (c), if the court having jurisdiction over an offense that is the basis for a fine imposed under this section makes a finding that the person is indigent, the court shall waive all fines and costs imposed on the person under this section.

The Defendant offers as proof of their indigency the following information for this Court: (INSERT FACTS HERE)

           The Court has made an affirmative finding that Defendant is indigent.

(1) a copy of the person’s most recent federal income tax return that shows that the person’s income or the person’s household income does not exceed 125 percent of the applicable income level established by the federal poverty guidelines;
(2) a copy of the person’s most recent statement of wages that shows that the person’s income or the per- son’s household income does not exceed 125 percent of the applicable income level established by the federal poverty guidelines; or
(3) documentation from a federal agency, state agency, or school district that indicates that the person or, if the person is a dependent as defined by Section 152, Internal Revenue Code of 1986, the taxpayer claiming the person as a dependent, receives assistance from:

(A) the food stamp program or the financial assistance program established under Chapter 31, Human Resources Code;
(B) the federal special supplemental nutrition program for women, infants, and children autho- rized by 42 U.S.C. Section 1786;
(C) the medical assistance program under Chapter 32, Human Resources Code;
(D) the child health plan program under Chapter 62, Health and Safety Code; or
(E) the national free or reduced-price lunch program established under 42 S.C. Section 1751 et seq.

Other documentation presented to this Court. (See attached Affidavit of Defendant)

WHEREFORE, PREMISES CONSIDERED, Defendant prays that this Court, after consideration of the attached documentation, grant Defendant’s Motion and waive all fines and costs imposed on the person under this section of Texas Transportation Code 709.001.

Respectfully submitted,

Attorney for Defendant

Be Sure to Pencil Yourself In

My first jury trial as a defense attorney was in January of 2010. I remember feeling tired and nervous walking into it and figured it was all just par for the course. But by the time we had picked the jury and broke for lunch, I found myself limping. I looked down at my ankle and discovered that it was swollen up like the size of a softball. How odd, I thought. Paranoia was slipping in because I had not twisted it or done anything to cause that type of injury.

I ate my sandwich and went back for opening statement. But I was hobbling badly and now in a good bit of pain, so on the next break I went and looked at my legs again. All the blood vessels in both legs had broken, and from ankles to knees I was covered completely in little blood blisters. To say I was freaked out would have been an understatement.

But I hobbled back into the courtroom and tried the rest of the case. By the time the trial had ended, I felt completely sick and whipped – not to mention scared out of my mind, considering I had absolutely no idea what on Earth was going on with me. So, I drove myself straight from the courthouse to the emergency room.

The emergency room proved a worthless experience, and they sent me home with little more than a suggestion that I see a dermatologist. I continued to get progressively worse and wound up seeing five specialists over the course of three weeks before being diagnosed with an extreme auto-immune reaction to a virus. A virus that either my body would clear in time or that had the power to take me out completely.

During those weeks and the weeks that followed, I became completely bedridden. I couldn’t really walk or use my hands or do much of anything at all. Except pray and meditate. Every day I would slink down to the floor and rest my back against my bed. I would bargain with God as I understood Him.

I prayed that if God would restore my health, I would change my ways. I wouldn’t be so hard on myself. I wouldn’t risk it all as I had for a single case. I would work to make the world a better place. And I would start with myself.

Eventually, I began to improve and within a few more weeks was back at work. When I went back before the judge I’d tried that case in front of he asked where I had been. Funny thing, I told him. I drove myself to the emergency room right after the verdict in our trial and had been sick in bed ever since. The Judge looked at me in horror.

“WHAT?!” the Judge exclaimed. “Why didn’t you say something if you got sick during trial? We would have stopped so that you could have taken care of yourself.”

Now I was the one who was shocked. That thought literally hadn’t even entered my mind. As a young attorney, it hadn’t even entered my brain that the wheels of justice could be halted on behalf of little old me.

I’d come up through the ranks with the attitude that you have to “be the job” and that being the job meant that the case and client come first always and no matter what. Even to my own demise.

I learned a valuable lesson that day that I’ve held dear ever since. We can’t give from an empty cup. If we don’t take care of ourselves, eventually we won’t be able to take care of our cases or clients either.

We must establish boundaries and protocol so that we don’t burn out or fade away. Our legal practices are only as sustainable as our life practices.

What that looks like has continued to evolve for me over the decade since that trial. But for starters, I no longer leap out of bed and head to Westlaw in the middle of the night when a thought pops in my brain about a research wormhole that I hadn’t gone down yet. Instead, I get a piece of paper, jot down the idea to save for later, and go back to sleep.

I no longer work for weeks on end without a day off. Now every week contains at least one day for me to remain completely work free. Even God took the seventh day off, I rationalized. And the Jewish faith observes a weekly Shabbat or Sabbath.

My mental, emotional, physical, and spiritual health now deserve space on the calendar alongside the bills and dishes and clients and cases. Sometimes that looks like carving out an hour or two of my day for formal self-care activities. But other times it looks like stopping what I’m doing, if only for a brief moment, just to ground and collect myself. You, too, can do that if you so choose.

On several occasions, I’ve been blessed to speak with rooms full of attorneys on this very subject. One of my favorite things to do is to ask them to raise their hands if they feel as though they’re free to care for themselves throughout their workday. Very few hands go up.

“Really,” I ask. So, you aren’t able to head to the restroom if need be to use the facilities? Giggles. Of course, we can go to the bathroom. Ok, so put your hands up if you have the time to take a break when you need to during your workday.

Now, most everybody’s hands go up. Why then do you deprive yourself the opportunity to stop and take a few deep breaths when you need to periodically throughout the day? Of course, you can do it! You just need to make sure to pencil yourself into your own day.

Home-Rule City Ordinances vs. Texas Penal Code

Texas has a unique form of local government known as home-rule that allows for broad powers of self government within that home-rule city.  The Texas Constitution was amended in 1912 to grant cities with over 5,000 citizens the power to self-govern. See 22 David B. Brooks, Texas Practice: Municipal Law & Practice § 1.17; Tex. Const. art. XI, § 5.  These cities are referred to as home-rule cities.  State v. DeLoach, 458 S.W.3d 696, 698 (Tex. App. – San Antonio 2015, pet. ref’d.)  Prior to the adoption of this constitutional amendment, a city had to specifically seek the authority to act from the legislature or the city would be powerless to act.  Ex parte Heidleberg, 51 Tex. Crim. 581, 103 S.W.395 ( 1907).  But, as the Texas Court of Criminal Appeals noted in a case decided not long after the constitutional amendment, this approach was ineffectual.   Le Gois v. State, 80 Tex. Crim. 356, 360; 190 S.W. 724 (1916).  The legislature only meets once every two years and “as new evils arose to require the different cities and towns to rush to it and ask and secure a grant of authority and power to suppress the evil,” seeking and gaining permission to act was unduly slow and burdensome.  Id.  Accordingly, the constitutional amendment granted and conferred on the cities all the power that is not prohibited by the Constitution and the general laws of the state.  Id. at 726. 

The home rule doctrine applies in all cities that have a population of over 5,000 in which its citizens have adopted a home-rule charter.  This translates to more than 352 cities in Texas with home-rule authority (https://ballotpedia.org/Cities_in_Texas).  Thus, it can be helpful to look at some of the ordinances passed within your city to determine whether a currently charged offense could or should have been charged only as a Class C misdemeanor under the home-rule doctrine.

One example of this came up recently in one of our cases in San Antonio.  Our client was charged under the penal code provision for discharging a firearm inside the corporate limits of a municipality having a population of 100,000 or more, namely the municipality of San Antonio.  Interestingly, Texas Penal Code § 42.12(d) states that “[s]ubsection (a) does not affect the authority of a municipality to enact an ordinance which prohibits the discharge of a firearm.” 

This caused us to search the San Antonio city ordinances and find that our municipality had indeed enacted an ordinance prohibiting the discharge of a firearm.1  The elements of both provisions, Texas Penal Code 42.12 and the San Antonio City Ordinance are the same.  That is:  it is an offense to recklessly discharge a firearm inside the corporate city limits of a municipality having a population of 100,000 or more.  “[I]t is a fundamental tenet of criminal jurisprudence that, when courts must choose between two reasonable readings of a statute to determine what conduct the legislature intended to punish, courts apply the policy of lenity and adopt the less harsh meaning.”  Cuellar v. State, 70 S.W.3d 815, 821-22(Tex. Crim. App. 2002), concurrence Cochran, J.  The rule of lenity is a doctrine dating back to at least 1886 requiring that if any doubt exists on the statute to proceed under, the doubt must be resolved in favor of the accused.  Id.

As a home-rule city, San Antonio derives its powers from the Texas Constitution, not from the legislature. State v. DeLoach, 458 S.W.3d at 698.  A home-rule city has all the powers of the State as long as the powers are not inconsistent with the Texas Constitution, the general laws, or the city’s charter. Id. Further, a home-rule municipality has the power to enforce ordinances “necessary to protect health, life and property and to preserve good government, order and security of the municipality and its inhabitants.” Tex. Loc. Gov’t. Code Ann. § 54.044 (West 2018).   As such, home-rule city ordinances are given a presumption of validity. State v. DeLoach, 458 S.W.3d at 698.

“The mere fact that the legislature has enacted a law addressing a subject does not mean that the subject matter is completely preempted.”  City of Richardson v. Responsible Dog Owners of Tex., 794 S.W. 2d 17, 19 (Tex. 1990). For example, the Fourth Court of Appeals held that a home-rule city ordinance requiring licensing for operators of taxicabs was not preempted by state laws governing issuance and revocation of licenses.  Ex parte Heine, 158 Tex. Crim. 248, 250; 254 S.W.2d 790 (1952).  Likewise, the El Paso Court of Appeals found that although general state laws regulate the operation of bicycles and motorcycles, the home-rule city ordinance requiring a cyclist to wear a helmet was not preempted.  State v. Portillo, 314 S.W.3d 210, 216 (Tex. App. – El Paso 2010, no pet.).

Far from expressing an intent to limit San Antonio’s, or any other city’s, right to pass ordinances regarding discharging firearms, the legislature manifestly allowed for such local governance.  Texas Penal Code § 42.12 (d).

Because San Antonio is a home-rule city, it has broad powers to enact laws, unless the legislature clearly expresses an intent to limit that regulatory power. City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007).  “Such limits exist only when a statute speaks with ‘unmistakable clarity.'” Id

In re Sanchez, 81 S.W.3d 794 (Tex. 2002), required the Texas Supreme Court to determine whether a home-rule city provision for election filing deadlines was preempted by the Texas Election Code.  Id. at 796.  The Election Code provision, §143.007(a), specifically acknowledged other code sections may provide exceptions to the state law deadline.  The Supreme Court thus found that no intent to preempt was clearly manifested by the legislature.  Id. at 797.  Indeed, the Texas Supreme Court found that the Election Code expressly allows home-rule cities to establish their own requirements in municipal elections.  Id.  Having so concluded, the Court found the city’s provision regarding election deadlines is the provision that must be applied.  Id. at 798.

We filed a motion to set aside the information (attached to this article) and the trial court granted our motion. Our motion to set aside contained the home-rule city argument as well as an in pari materia argument.  The State appealed the trial court’s decision.  The lower court ruled against us, but only addressed the in pari materia argument.  State v. Musa-Valle, 2018 WL 3264831 (Tex. App. – San Antonio 2018).  Initially, the Court of Criminal Appeals granted petition for discretionary review, but then found the petition was  improvidently granted. State v. Musa-Valle,  2019 WL 2518103 (Tex. Crim. App. 2019).  Therefore, this is still an open issue before the courts.


NO. ___________________

STATE OF TEXAS IN THE COUNTY COURT AT LAW

VS. NUMBER ____

BEXAR COUNTY, TEXAS

DEFENDANT’S MOTION TO SET ASIDE THE INFORMATION

TO THE HONORABLE JUDGE OF SAID COURT:

Now comes, Defendant, in the above-styled and numbered cause, and, prior to announcing ready, moves that the information filed in this case be set aside by virtue of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, Article I §§ 10 and 19 of the Texas Constitution, and Articles 1.05, 21.01, 21.02, 21.03, 21.04, and 21.11 of the Texas Code of Criminal Procedure for the following reasons:

I.

Defendant is currently charged with discharging a firearm in a municipality over 100,000 pursuant to Texas Penal Code 42.12.  The information in this case should be set aside as the conduct described within should be punishable as a Class C misdemeanor pursuant to a San Antonio Municipal Ordinance.   San Antonio Municipal Ordinance § 21-152 and Texas Penal Code § 42.12 both attempt to criminalize and punish for the offense of discharging a firearm in certain municipalities in Texas. Each of these provisions are attached to this motion.  § 42.12 of the Penal Code classifies the offense as a Class A misdemeanor, while § 21-152 classifies it is a Class C misdemeanor.  The elements of both provisions are the same.  That is: it is an offense to recklessly discharge a firearm inside the corporate city limits of a municipality having a population of 100,000 or more (§42.12) and it is unlawful to discharge a firearm within the city limits of the City of San Antonio (§ 21-152).  “[I]t is a fundamental tenet of criminal jurisprudence that, when courts must choose between two reasonable readings of a statute to determine what conduct the legislature intended to punish, courts apply the policy of lenity and adopt the less harsh meaning.”  Cuellar v. State, 70 S.W.3d 815, 821-22(Tex. Crim. App. 2002), concurrence Cochran, J.  The rule of lenity is a doctrine dating back to at least 1886 requiring that if any doubt exists on the statute to proceed under, the doubt must be resolved in favor of the accused.  Id.

II.

Moreover, in 1912, Texas adopted a constitutional amendment providing for home rule in cities with populations over 5,000. Tex. Const. art. XI § 5.  Home rule cities therefore derive their powers not from the legislature, but from the Texas Constitution. See interpretive commentary, Tex. Const. art. XI § 5.  San Antonio is a home rule city.  Tex. River Barges v. City of San Antonio, 21 S.W.3d 347, 352 (Tex. App. – San Antonio 2000, pet. denied).  Thus, San Antonio has broad powers of self government – provided that any ordinance enacted does not conflict with the state constitution or laws enacted by the state.  Tex. Const. art XI, § 5.  This ordinance, §21-152,  is not prohibited by the legislature.  In fact, the legislature made clear in § 42.12 of the Texas Penal Code that municipalities are allowed to proscribe this conduct by city ordinances. 

“Subsection (a) does not affect the authority of a municipality to enact an ordinance which prohibits the discharge of a firearm.” 

Tex. Penal Code § 42.12 (d).  To insist on prosecution under §42.12, would be an unconstitutional restriction on San Antonio’s autonomy.

This case should be filed in municipal court because San Antonio is a home rule city and therefore San Antonio Ordinance § 21-152 is the controlling provision.   Art. 4.14 of the Texas Code of Criminal Procedure states that a municipal court shall have exclusive original jurisdiction in all criminal cases that arise under the ordinances of the municipality. Tex. Code Crim. Pro. art. 4.14 (emphasis added).

The appropriate remedy is for this Court to set aside the information, and rule that, pursuant to the rule of lenity and the autonomy of home rule cities, the proper venue for this alleged offense is in municipal court as a Class C Misdemeanor, not a Class A Misdemeanor.

WHEREFORE, premises considered, the Defendant prays that the Court set aside the Information in the above-numbered and entitled cause.

Respectfully submitted:

CERTIFICATE OF SERVICE

I hereby certify that a copy of Defendant’s Motion To Set Aside The Information has been delivered to the District Attorney’s Office,                  County, on this the            day of                   ,2020 .

Get What You Need for the Indigent Non-Citizen Client With an ICE Hold During COVID-19

I. Introduction

When you speak Spanish and have an indigent defense practice, it will consist of many Spanish speaking non-citizen clients who have immigration holds due to entering the US without inspection, i.e., no documentation. Much to the chagrin of many, these clients will be in removal proceedings after the criminal case is completed. Many of these clients have no funds to retain an Immigration lawyer.  In Austin, Travis County lawyers vetted to accept appointed cases are managed by a Managed Assigned Counsel group. Fortunately, the group provides an Immigration attorney to help us meet our obligations to the client as mandated by the Supreme Court case of Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010). The holding in Padilla essentially states that a lawyer who has a non-citizen client charged with a criminal offense has a constitutional obligation to inform the client whether a guilty plea will result in deportation for the client.

However, the goal is not only to properly advise the client regarding deportation, but to craft a plea bargain that will give the client the best chance of: (1) being released on an immigration bond while removal proceedings are pending; (2) of remaining in the US; and/or (3) preserving the eligibility to apply for (a) Lawful Permanent Resident(LPR) status, commonly referred to as a ‘Green Card’ or (b) eligibility for US citizenship in the future.

II. Immigration Consultation

The Immigration consultation is key to the strategy for attaining an acceptable disposition on the criminal case. One of the first things to do with a non-citizen client is to make a referral to the Immigration lawyer, hereinafter referred to as ‘IL’. The next step is to prepare the client for the consultation. 

The IL will need to know the following from your client: criminal history; date of entry into the US; immigration status, i.e., (a) LPR, (b) Refugee1 or (c) granted  Asylum2; entered with a visa or entered without documentation; any immigration action including the date of action, i.e., (a) removed from US, (b) actual deportation, or (c) denial of admission into US; previous settings in immigration court; previously filed for immigration relief; any contact with an immigration officer; the immigration status of all family members including spouse, partner, children and their ages, the client’s parents, siblings and even grandparents; if client enrolled in High School, has a High School diploma, or a GED; has the client been a victim of crime that was report to law enforcement; and has the client been a victim of domestic violence or trafficking.

The IL will work up the case and prepare a legal memo. The memo will contain what forms of relief, if any, the client has from removal proceedings from the US and recommendations for the type of plea bargains that will support the client’s goals of bond eligibility and of remaining in the US or preserve eligibility for future LPR status or citizenship. This is where the work on the criminal case really begins.

III. Putting the Immigration Advice and Criminal Case Into Perspective

After all the necessary investigation, and of course, the discovery process, plea bargaining can begin with the option of setting the case on the jury docket…because of COVID-19 most of us have not had the benefit of a jury docket.  In my experience, my non-citizen clients tend to be reluctant to participate in any criminal trial proceeding out of fear of ICE agents appearing to remove and detain them in immigration custody. Regardless of the reason for not going to trial – COVID-19 or client fear – the fact remains that you as the criminal defense lawyer have the task of handling your client’s criminal cases in a manner that meets your client’s immigration goals.

Here is an example of an actual case with a non-citizen client where we got what we needed without the specter of a jury trial. Mr. Garcia (not actual name) was charged with a DWI 1st (.12 blood test) and Evading Arrest on Foot.

The client was prepped for the immigration consultation. The consultation revealed that he had entered the US without inspection in 2008, was detained by ICE after his arrest for two Robbery cases that were dismissed, was placed in Removal Proceedings3, and was granted Voluntary Departure4, meaning that he was allowed to leave the US without an Order of Deportation. However, he re-entered the US in 2011 without inspection. He was arrested for the DWI and Evading Detention on Foot in 2020.  An ICE hold was thereafter lodged against him. This client is not eligible for relief in the form of Cancellation of Removal for Non-LRP’s5 as he has no qualifying relatives such as an LRP or US citizen spouse, child, or parent. Cancellation of Removal would have allowed the client to apply to the immigration judge to adjust his status from deportable to one lawfully admitted for Permanent Residence. Assuming he has a credible fear of returning to his home country, his only remedies are to apply for Asylum, Withholding of Removal6, and Relief under the Convention Against Torture (CAT)7. It was further revealed that the client’s criminal history only consisted of a Juvenile Deferred Prosecution for Evading Arrest and the two dismissed robbery cases mentioned above.

Per the IL, a conviction for the DWI 1st charge under TPC §49.04 will not make the client ineligible for any relief for which he is otherwise eligible at this time. However, a single DWI conviction will reflect negatively on his request for bond from ICE custody. Many immigration Judges consider a DWI conviction as evidence that the client is a danger to public safety. If the Judge is so inclined, they can deny bond or set an exorbitantly high bond.

Per the IL, a conviction for the Evading Detention on Foot under TPC §38.04(a) is not considered to be a Crime Involving Moral Turpitude. This offense would place Mr. Garcia under discretionary detention. Therefore, he could be released from custody on bond if he is not a flight or security risk. Nonetheless, a conviction for the Evading on Foot may also cause the request for bond to be denied as he may be considered a flight risk.

IV. Immigration Lawyer Recommendations

The IL’s recommendation for resolution of the DWI case under TPC §49.04 is to negotiate the case to a non-DWI disposition in which the DWI is dismissed and  the client pleads to TPC 1§42.03(a) Obstructing Highway or Passageway. Although a conviction for a single DWI 1st offense will not prevent the client from seeking Asylum, Withholding of Removal, and relief under the Convention Against Torture at this time, it could in the future. The Department of Homeland Security and the Department of Justice have issued a ‘Notice of Proposed Rulemaking’ which would make an individual ineligible for Asylum if convicted of operating a motor vehicle while intoxicated. In addition, a non-DWI disposition will improve the client’s chances of being granted bond by the immigration Court. Immigration Judges view individuals with DWI convictions as a danger to the community.

The IL’s recommendation for the Evading on Foot is to try to negotiate a dismissal. A conviction for Evading can negatively affect the client’s chances for bond. The immigration Court may consider an individual with such a conviction to be a flight risk.

V. Working the Criminal Case

Now the criminal defense lawyer has been tasked to negotiate the DWI to the reduced charge of Obstructing a Highway or Passageway and a dismissal for the Evading on Foot charge. No problem, right?

My strategy is to work the case up as though preparing for a Jury Trial. Comb through all the discovery. In these cases, there were 15,188,376 KB of discovery in the Discovery Portal, including 14 Body Cams, 1 DMAV (in-patrol car video) and the Blood Draw video. Locate and interview the lone witness. Investigate the scene of the alleged crimes, etc., etc. After this, I email the prosecutor in charge to give a heads-up regarding what I am seeking and why. I write a detailed fact-based memo explaining the vast weaknesses in the State’s cases. As we know there are usually many. Be specific and direct in pointing out the deficiencies in the State’s case if you believe doing so will help accomplish the desired plea bargain. It is helpful to include video references and times in the memo to support your position. Remember, too, in a case like Mr. Garcia’s with so much discovery, it is unlikely that the prosecutors will have reviewed it all thoroughly before receiving your memo and request. This gives the defense lawyer the advantage.

VI. Plea Bargaining

  1. Begins with what the harsh Immigration consequences are for Mr. Garcia. I explain what my tasks and obligations are to the client. I will elaborate on how I can accomplish them with their cooperation.
  2. Always obtain and tender to the prosecutor a letter from the IL explaining the immigration consequences and recommendations. I use this letter to bolster the arguments for the disposition that is needed.
  3. Numerous offers will be made that don’t quite meet my objectives, i.e., dismiss the Evading with a plea to the DWI, plead to Evading and Reduce the DWI, etc. Don’t despair and carry on.
  4. On occasion I will have to involve the upper chain of command. As in these cases, when the trial Court chief told me that the DWI case was not a reduction worthy case and we were at an impasse. I will remind the State that we cannot set the cases for Jury Trial because of COVID19.
  5. In the end, we prevailed. Mr. Garcia was elated with the result: Obstructing Highway or Passageway was filed to which Mr. Garcia plead to back time and the DWI and the Evading on Foot were dismissed.

 

What is Computer Vision and How Does Law Enforcement Use It?

What Is Computer Vision And How Does Law Enforcement Use It?

Computer vision is the art of training computers to understand visual data like photographs and videos. Computer vision is part of familiar technologies, such as UPC bar code readers, and exotic technologies, like self-driving cars. Government agencies and law enforcement are adapting computer vision technologies for their purposes. Automated license plate readers, social media dragnets, and mass surveillance operations all use computer vision. Integrating information from computer vision with private and government databases allows an unprecedented level of surveillance. Although there are other forms of computer vision used by law enforcement for forensic purposes, such as AFIS or NIBIN, this article focuses on the use of deep-learning computer vision software to detect and identify people or objects in videos or images.

How do computers recognize images and video?1

Computers require software to perform any useful task. Traditionally, developers explicitly programmed software to interpret input, meaning programmers had to understand the important relationships within the data. Machine learning is an incredibly powerful set of artificial intelligence tools that help computers uncover relationships in data without explicit instructions. A real estate software developer knows that a house’s sale price relates to the house’s zip code, square footage, schools, and the year of the home’s construction, but might be unsure exactly how to predict a house’s value. Machine learning can determine the relationship between the relevant factors and predict a house’s value, using only historical sales data.

Machine Learning and Deep Learning

Machine learning requires a person to identify the important factors (features) needed to understand the relationships in a set of data. For example, if a medical software developer wanted to understand which patients were at the greatest risk of a heart attack, the developer might need an understanding of what factors (features) might increase the risk of a heart attack. Deep learning is a refinement of machine learning that allows the computer to not only understand relationships between the important factors (features) but also to determine what factors (features) are important to the relationship. A person might understand that a stop sign is a red octagon with a white border and white lettering that says “STOP”, but computers do not understand language or images like a human being. A deep learning system can train itself using many different pre-categorized images, creating a method to recognize a stop sign after comparing the images that contain stop signs to images that do not contain stop signs. The deep learning system continues to improve its ability to detect stop signs without any human input by repeating the training process.

Figure 1: How the terms Artificial Intelligence, Machine Learning, Deep Learning, Neural Network, and Convolutional Neural Network relate.

How Information Flows Through a Neural Network

To design software capable of unassisted learning, researchers used nerve cells (neurons) as an inspiration. A neural network is an interconnected network of individual units called neurons or perceptrons (See Figure 2).  Neurons receive input, produce output, and can communicate with other neurons. Neurons are organized into distinct layers. Each input, whether it comes from the outside world or another neuron, can have its own weight. A neuron does not treat all inputs equally and may ignore some inputs entirely. The output of each neuron is decided by an activation function. Typically, the input connects with the first layer of neurons, the first layer of neurons sends output to the second layer of neurons, and data typically flows from layer to layer in the same direction through the network, until the last layer of neurons provides the final output.

Figure 2: A single neuron/perceptron.

Figure 3: A simple neural network.

This process works something like a Presidential election. Each voter hears the same news (the input) but gives the news a different weight. Each voter adds up pros and cons (activation function), deciding how to vote. Voters are pooled by State (this layer’s input), the votes are weighted equally, and each State’s Electoral College allots its electoral votes according to the State’s popular vote (its activation function). Electoral votes (this layer’s input) are weighted by the number of congressional delegates in the State, and the President is selected by the total number of Electoral College votes (another activation function). Just as it is impossible to predict the exact outcome of an election from the news or even the popular vote, a neural network’s behavior depends on the variety of weights and what then happens at each layer.

How Neural Networks Learn

Neural networks are greedy: they require massive amounts of pre-classified training data, for instance, pictures known to contain stop signs and known not to contain stop signs. It is possible to determine how well a neural network correctly interprets the data for a set of weights by calculating the error, but often many images are misclassified. To reduce the amount of error, the software will adjust each weight (using an optimization algorithm). One common method used to optimize the weights is called backpropagation. Backpropagation is like a “hot and cold game.”  The neural network moves towards what it calculates to be the “hot” direction (minimum error), while avoiding the “cold” direction, changing its direction when it receives feedback like “you are getting colder!” The process will usually stop when enough cycles occur or when the repeated cycles lead to only tiny differences in error.

Convolutional Neural Networks and Computer Vision

Neural networks are powerful but can grow unwieldy and unworkable when there are too many neurons and connections involved. As there are often tens of thousands or millions of pixels in a single image or frame of video, traditional neural networks do not perform well in most computer vision tasks. Convolutional neural networks transform (convolve) image data into smaller, more workable chunks and retain the spatial relationships in the picture. The software sweeps through the image or video (using a sliding window) and transforms the image (using a filter/kernel) into a form suited to a particular task. There may be several layers of transformations, and at the end of the transformation process, the data may be fed into a traditional neural network. A convolutional neural network will go through the same deep learning and training process as a traditional neural network, teaching itself how to better perform its task.

The process is akin to how a person might solve a difficult “spot the differences” puzzle. The person moves methodically through the image, comparing small segment to small segment, eventually sweeping through the picture. The person marks the differences with stars on a piece of transparent film. To a second person looking at the film and seeing only the stars, the marks may not make sense. To the person who solved the puzzle, the marks contain all the important information about the solution to the puzzle.

Figure 4: The architecture of one type of convolutional neural network.

If a computer vision system can “recognize” an image, the system can then process the image to compare the image against other relevant images or data. A license plate reader can detect and identify letters and numbers on a license plate. For example, a facial recognition system may locate a person’s pupils and measure standardized points of interest from those pupils (nodal points), correcting for the picture’s orientation. By reducing an image of a license plate into letters and numbers or a face into simple measurements, it becomes possible to search databases and share information across many different information systems quickly and efficiently.

Figure 5: Segmenting a license plate into different letters and numbers.

Figure 6: Using nodal points for facial recognition.

Limitations of Computer Vision

A major limitation of computer vision and other types of deep learning is that the “reasoning” the computer uses is opaque, meaning that the data between input and output is unreadable, even by an expert. Convolutional neural networks are fundamentally different than human vision, and computer vision will fail to recognize images that are unambiguous to a human. For example, putting a small sticker on a stop sign may cause a convolutional neural network to interpret an image incorrectly.2 It may be impossible to predict what sort of conditions will cause the computer vision system to fail.3 The term used to describe the potential failure to cope with scenarios outside the training data is brittleness. Artificial intelligence is shallow, meaning it does not have a robust understanding of what it means to be a stop sign. Whereas a human being might understand that leaves, stickers, paint, or damage may obscure parts of a stop sign, a computer only “understands” what it has been trained to “know.”

Using unsuitable training data may negatively influence computer vision even during normal conditions. If a facial recognition database does not contain enough training data from different types of people, the system may perform poorly on underrepresented groups. The system might not contain enough nighttime photos or photos from different angles and may perform poorly when fed data from untested video cameras. The training data may contain too few images to perform reliable face recognition. The term used to describe this weakness in training data is bias.

Total Surveillance

Agencies link facial recognition and vehicle license plate identification tools to public and private databases and large-scale surveillance networks, enabling mass surveillance. Computer vision applications include virtual “gateways,” monitoring who enters and leaves an area, conducting facial recognition searches against drivers’ license databases to identify people on bodycam video, and using computer-vision-aided surveillance cameras to monitor protests.4 Subject matter experts predict that in the near future, computer-vision-monitored surveillance will be ubiquitous.5

Computer Vision and the Fourth Amendment

Agencies defend mass surveillance as equivalent to traditional surveillance and only capturing public information. However, traditional surveillance is limited in both scope and duration – no agency has the resources to track each citizen every day. Unlike traditional surveillance, computer vision surveillance programs allow agencies to simultaneously monitor all traffic through a city, simultaneously tracking every person’s movement from sensor to sensor.

The Fourth Amendment imposes limitations on the use of electronic surveillance to track movement through public spaces. First, the Fourth Amendment prohibits “permeating” police surveillance6, though it is unclear how that term applies to modern technologies. Second, Fourth Amendment affords some measure of protection to what a person seeks to preserve as private, even in an area accessible to the public.7 Third, the Supreme Court has rejected lengthy, warrantless location tracking schemes (through GPS and historical cell site data) in both Jones8 and Carpenter9. The legality of law enforcement computer vision tools may depend on the scope of the surveillance, the data integration capabilities of the tool, how much historical data is retained, whether law enforcement obtains a warrant, and public sentiment regarding mass surveillance. There is not much caselaw in this particular area, and the Fourth Amendment might be a viable attack on mass surveillance, even when supported by a warrant.

Computer Vision and Equal Protection

Equal protection provides limited protection against actions that discriminate against protected classes. Computer vision systems that are poorly trained – for example, using mostly Caucasian faces or mugshots to train data – may lead to differences in how the software performs with different protected classes.10 Abroad, computer vision systems have been used to target and harm minorities.11 When combined with other information systems with systemic differences between protected classes, computer vision systems may inherit those underlying biases.12

Unfortunately, equal protection standards are unfavorable to litigants. A facially neutral state action only violates equal protection rights when the action has a racially discriminatory purpose.13 It is insufficient to demonstrate disparate impact. Issues relating to choosing poor training data is unlikely to satisfy this demanding legal standard. However, if the purpose of a computer vision surveillance system is to keep out protected classes that law enforcement deems “undesirable,” it may be possible to show an equal protection violation.

Computer Vision and the First Amendment

Law enforcement often infiltrates, surveils, and disrupts disfavored groups and protestors.14 Agencies have coupled traditional surveillance with computer vision tools, such as Clearview AI, to arrest protestors15 and it is suspected that agencies use facial recognition to conduct surveillance of protestors.16 The use of computer-vision-aided surveillance techniques provides law enforcement the ability to track and identify protestors in real-time and to associate images with social media accounts and driver’s license photos. Through purpose or effect, powerful surveillance systems may chill free speech and assembly, violating the First Amendment. There is not much caselaw in this particular area, and particularly where mass surveillance is used to intimidate or discourage public protest, it is worthwhile to challenge the constitutionality of mass surveillance.

Some suggestions for your cases

1. Routinely request whether undisclosed video surveillance, including facial recognition and automated license plate readers, were used during the investigation and request any associated warrants.

Do not assume the State will be forthcoming about the use of mass surveillance. In major cases, cases involving special taskforces, and cases where there are major gaps in the offense report, investigators likely used some undisclosed means to find your client. 

2. Obtain the resume/curriculum vitae for the State’s proposed expert and determine whether the proposed experts satisfy Rule 702 and/or the Confrontation Clause.

If your “expert” is an officer, it is unlikely that the officer understands computer vision. Cross-examination may focus on the limitations of deep learning, and a law enforcement agent is not likely to understand how the software actually works.

3. Obtain expert assistance when computer vision is important to the case. You may need an expert on computer vision and/or the ethical issues and limitations of computer vision.

An expert can analyze the computer vision technology used in the case and can serve as a stark comparison to an underqualified officer.

4. Request any data used to train or evaluate computer vision software. Request a breakdown and summary of the variables accounted for in the training and evaluation data. Request any validation studies used to support the use of the software on casework. 

The training and validation process establishes the limits of computer vision’s expected performance and is an area where poor design can have a massive negative impact.

5. Request the source code for the computer vision system so your expert can review the code.

An expert can determine whether there are obvious flaws in the software used in this case. In some cases, the prosecution will dismiss a case rather than disclose the capabilities of advanced surveillance technology.

6. Request any peer-reviewed studies documenting the methodology used in the computer vision software.

The proponent of computer vision software output must demonstrate that the software applies a reliable methodology. The designated “expert” may not understand, be willing to disclose, or may have no unbiased validation data, leading to grounds for a 702 challenge.

7. Request the data the investigators collected on your client and information about the data systems integrated with the computer vision system.

In addition to having your expert review the data for correctness, the data may contain evidence that the surveillance program collects an intrusive, unconstitutional amount of data.

8. Do not reinvent the wheel.

Request help from civil liberties organizations like the Electronic Freedom Frontier (eff.org) or the American Civil Liberties Union. These organizations collect information about law enforcement technologies and can help you understand and litigate against the use of these technologies.

9. Attack the weaknesses: brittleness, greediness, shallowness, and opacity.

Any qualified expert should understand both that computer vision can behave unpredictably and is not error-free. Interview the opposing expert and see if the expert will acknowledge the limitations of computer vision and consider challenging the expert’s qualifications and/or credibility if the expert denies the known limitations of computer vision.

Combating Y-STR DNA Analysis in Sexual Assault Cases

We all know that sinking feeling that hits when you open the discovery for that big sexual assault case and see the words “DNA Lab Results” sitting nonchalantly on the page. A giant weight suddenly curls up on your chest, and rests there waiting for you to download the document that can make or break your theory. Your client has undoubtedly told you that there is “no way” this lab report comes back against him, and yet you brace for the inevitable statistic claiming it is 600 sextillion times more likely that the incriminating DNA came from him than anyone else on the planet. As the download progress bar fills, you start reciting your touch-DNA cross examination in your head to convince yourself the case is still triable. The report finally opens… and you let out a giant sigh of relief (into your mask of course – we are in a pandemic after all). The results are inconclusive. Despite a positive male screening test, they found only the complaining witness’s DNA. You live to fight another day.

A few weeks later, the prosecutor emails. The subject line reads “DNA.”  You’re not worried. Maybe it’s a new offer, considering the lab results went your way. You open it, and that sinking feeling returns. They ran a different type of DNA test – something called “Y-STR Analysis” – and the results inculpate your client. You stare at the screen, unsure how to react. What does this mean? What do you do? Can you fight this?

Y-STR testing is being used more and more frequently in sexual assault cases when the typical testing yields no results. Often, it feels like the Y-STR results pull the rug out from under your case. But don’t worry, Y-STR analysis is not the same forensic powerhouse as the typical STR analysis – and it can be bought down by those differences. This article outlines scientific and statistical weaknesses of Y-STR DNA analysis that can be used to contest its admissibility and challenge experts on cross examination.

What is Y-STR DNA Analysis?

The human genome is comprised of long strands of DNA that are packaged into twenty-three pairs of chromosomes. All twenty-three pairs are made up of one chromosome inherited from each biological parent, but which chromosome is from which parent is a matter of random selection. This randomization creates a unique genetic fingerprint for all individuals, including siblings (other than identical twins). Forensic analysts create a DNA profile by examining specific sections of DNA called “short tandem repeat” (STR) markers that are known to vary between individuals at designated loci on the chromosome. The analyst then compares a suspect’s DNA profile to the DNA profile obtained as evidence to determine if they match. If they don’t match, that suspect is “excluded as a contributor.” If they do, the analysist calculates the “random match” probability – the likelihood that a random alternate individual, rather than the suspect, is the true donor of the DNA evidence.

Typical STR analysis compares DNA profiles created from loci found on the twenty-two sex-neutral, or autosomal, chromosome pairs. In contrast, Y-STR analysis studies only loci found on the Y chromosome – the male specific sex-determining chromosome. The most common application of Y-STR analysis is in sexual assault cases, where autosomal STR typing is difficult or impossible because the excess amount of female DNA masks the male DNA. Since a female victim does not have any Y-chromosomes, the Y-chromosomes found in a victim sample are presumed to have come from the perpetrator. Once the perpetrator’s Y-chromosomes are isolated, the analyst can generate a Y-STR profile to compare against the Y-STR profile of a particular suspect. Once a match is found, the statistical significance of the match is determined by how rare that profile is in the database.

Limitations of Y-STR DNA Analysis

Scientists are in agreement that Y-STR analysis is a valid and precise mechanism to exclude persons as possible contributors to DNA evidence. However, the weight of a “match” is much weaker than in typical DNA testing due to (1) the inheritance patterns of the Y-chromosome and (2) the confines of the “counting method” to determine statistical significance.

Inheritance of the Y Chromosome

Whereas every other chromosome is found in both men and women, Y-chromosomes are found only in males. A male inherits his Y-chromosome in its entirety from his father. His Y-STR profile will be genetically indistinguishable from those of all his paternally related male relatives—his father, his son, his grandfather, his uncle, his cousins, etc. Because spontaneous Y-chromosome mutation is relatively rare, Y-STR profiles are also likely to be shared by males whose biological relationships are historically remote. Men who do not know each other or recognize each other may have identical Y-STR profiles if they had a common male ancestor hundreds of years in the past. Therefore, a “match” between an evidence sample and a suspect simply creates a population of possible contributors that includes the defendant plus all patrilineal related male relatives and an unknown number of unrelated males. Both because any one person’s Y chromosome is likely to be shared by an unknowably large number of other individuals and because Y-STR testing analyzes only one of the 46 chromosomes a person possesses, the probability of a “random match” with respect to Y-STR DNA is significantly higher than the probability of a random match with respect to a complete DNA profile using typical STR analysis. For example, random match probabilities with Y-STR DNA may be as high as 1 in 30, as opposed to the 1 in several million (or greater) probabilities generated by STR analysis.

Confines of the “Counting Method”

Since Y-STR analysis is all linked to one chromosome, the method typically used to calculate the “random match” probability cannot be used. Instead, analysts must literally “count” the number of similar profiles that exist in a profile database in order to determine the statistical significance of a match. This is called the counting method, and it presumes that the frequency of a Y-STR profile within the database parallels its frequency in the location where crime occurred. Therefore, its reliability depends directly on the size and quality of the database that is being used. It is fundamentally necessary that the database comprise an appropriate representative subset of the population. Unlike autosomal DNA, Y-STR profiles cluster geographically where common ancestors followed migration and settlement patterns. Specific profiles are not likely to be evenly dispersed among distant populations. Even within local geographic regions, certain Y-STR profiles are common within certain ethnic groups but entirely absent among others.

Forensic analysts attempt to control for this kind of non-random sorting by stating profile frequencies in terms of race.  Geneticists have tended to assume that historical within-race genetic mixing is sufficient to disperse Y-STR profiles evenly among that racial group. For this reason, Y-STR probability statistics are usually expressed as the frequency at which that profile was found in the database within each racial group. However, even within discrete racial groups, there can still be statistically significant differences in the frequency of Y-STR profiles depending upon the geographic location.1 Additionally, a different racial distribution within the database as compared to the given area will skew the results, and easily over or under-represent the local regularity of a given profile. For example, a 2003 study comparing U.S. populations found that the Y-STR profiles of both European-Americans and Hispanics were much more varied within their ethnic groups than the profiles of African-Americans, and that the variation in Hispanic genotype was higher in Texas than anywhere else in the country.2 In order for the “counting method” to generate the accurate statistical significance of any profile match, the database should reflect same genotype variations as the local populations and ethnic groups. However, such databases do not yet exist; in fact, the U.S. Y-STR database was decommissioned in 2019. The profiles form the U.S. database were all transferred to the international Y-Chromosome Haplotype Reference Database (YHRD).3  YHRD includes about 3,500 total profiles from the state of Texas (which is home to over 13.6 million men), 33% from European-American men, 33% from Hispanic-American men, and 33% from African-American men. This does not reflect racial and ethnic composition of the male Texas population, which, as of 2015, was 54% European-American, 28% Hispanic, and only 9% Africa-American.4

Exploiting the Limitations

        Y-STR DNA analysis is ripe for challenge in Texas courts. Defense attorneys faced with inculpating Y-STR evidence should request a Kelly/Daubert hearing to determine if the loci tested or kits used meet threshold requirements of reliability, and that the statistical evidence is likewise supported. The first erroneous Y-STR conviction recently came to light, underscoring the need for care with regard to interpretation of these results.5 While at least one Texas Court of Appeal has held that Y-STR analysis does meet the reliability standard, it did so only after a full pretrial hearing.6 The Court of Criminal Appeals has yet to weigh in on the issue, but in a concurring opinion, Judge Johnson has expressed concern that current databases do not contain enough samples, or a proper distribution of samples by race, to support the method’s reliability in this State.7 Importantly, two organizational leaders in quality assurance standards in DNA testing have released directives creating and changing guidelines in Y-STR interpretation and database selection within the past year, exemplifying that this method is still evolving and affording litigants the opportunity to challenge testing not done in accordance with those directives.8

        Additionally, there are many circumstances in which the admission of Y-STR results may be excludable under Texas Rule of Evidence 403. For example, there is very limited probative value to Y-STR testing in cases where there are potential suspects of the same paternal line, there is already likely contamination of the DNA sample, or there is a mixture of multiple male profiles in the sample. If all else fails, Y-STR analysis affords ample fodder for cross-examination, allowing you to challenge the method directly to the jury.

Illuminating Pathways to Criminal Defense Practice: An Update from TCDLA’s Law School Committee

The TCDLA Law School Committee has begun several projects aimed at forging stronger bonds between the association and law students interested in criminal law. These students are the future of TCDLA, therefore it is imperative that we foster their career development and introduce them early to everything the association has to offer them, both now as students, and in the future. The pinnacle of support for a law student interested in criminal defense comes with TCDLA’s student membership: For $20, the student gets access to the listserve, the members’ website, with the all-new student tab that will feature clerkship and job opportunities, postings about upcoming trials the students can view and help with, copies of the Voice, free attendance at CLEs, and use of the TCDLA app. But to involve the students in this level of support, we must first meet them.

Therefore, the first goal of the committee, started last year and completed this year, was to recruit at least one criminal law faculty member from each Texas law school. This internal faculty member will serve as a liaison between TCDLA and the law school and help promote TCDLA events for students and student membership in TCDLA. Committee members split up the Texas law schools and have committed to work with the law school internal liaisons by providing information about TCDLA events. These events include scheduled seminars where law students are invited, such as the annual Innocence/Forensics seminar scheduled for October 6-8, 2021, in Fort Worth, and encourage speaker lunches or virtual presentations at the law school. We are always interested in expanding our connections within the law schools. If any of our members have connections within any of the Texas law schools, or have suggestions as to how we can better connect with students at a law school, please reach out to the respective TCDLA liaison to that law school. The TCDLA liaisons and their contact information is as follows:

The second goal of this year’s committee is to develop a student portal within the TCDLA website. With the goal of marketing what TCDLA has to offer students. It will be open to all law students, regardless of whether they are student members in TCDLA. There will be TCDLA member testimonials on key subjects that impact law students and their career development. Law students will be able to submit questions, and there will be a “frequently asked questions” section with TCDLA member answers to questions submitted by law students. TCDLA merchandise will be available for students to purchase through the website. There will be teasers to other material that is available only for TCDLA student members, with the goal of encouraging joining TCDLA. There will be job, intern and upcoming trial notices posted on the student member section. There will be resources such as trial skill simulations by TCDLA members, and practical articles on skills every new defense lawyer needs to know.

The third objective this year is to create a webinar, open to all law students, entitled Career Pathways to Criminal Defense Practice. Working with 3L law students in a criminal defense clinical program, we often hear students lament that there are so few job opportunities in criminal defense, that most defense attorneys are lone wolves and do not hire, that it is hard to get court appointments right out of law school, and if they do get court appointments, there’s no way they can survive on the fees. While there are kernels of truth in these statements, they are exaggerated and overstep the viable pathways many defense attorneys have taken to get to where they are. Our goal is to shine light on these.

The event will consist of a panel presentation of TCDLA lawyers with a moderated chat for law student questions, an hour of ethics and wellness, and conclude with virtual networking break-out rooms which will be organized by geographical practice location and practice focus areas.

The panel presentation will cover different pathways that criminal defense lawyers have taken. These include:

  • Working for a district attorney’s office, with a focus on advantages and disadvantages;
  • Working for a public defender’s office, a Texas Rural Legal Aid office working in criminal defense, or RDPO, with a focus on how to find these positions, advantages and disadvantages;
  • Starting out as a criminal defense solo practitioner with a focus on what kind of income they can expect, sources of income, how they got business and different options to consider in terms of supplementing income;
  • Building a practice seeking court appointments, with a focus on how they navigated the wheel, multiple county practice to maximize appointments, income that can be expected from appointments and tips on how they supplemented income from court appointments;
  • Working in an established criminal defense firm in an urban area, with a focus on how they obtained the position, what advice they would give to law students about making the connections to obtain such a position;
  • Working for a rural law firm that takes all cases, including criminal defense, with a focus on how they found this employment arrangement, whether they were seeking the position in order to primarily practice criminal defense or did they start practicing criminal defense as part of the firm’s case load;
  • Working for a general law firm that also handles criminal defense, with a focus on how they found the position, whether they signed on primarily for the criminal defense opportunities, or did they start practicing in criminal defense as part of the firm’s case load; and
  • Serving as a briefing or staff attorney at the Court of Criminal Appeals, an intermediate court of appeals or federal court.

Speakers will also address ethical questions and issues soon-to-be criminal defense lawyers should give thought to, and be aware of: The question of whether criminal defense work is right for you; with a focus on feelings or beliefs about representing clients in all types of cases; personal baggage that can interfere with zealously representing the client; work/life balance issues; professional stressors and triggers; worries about being subjected to vicarious trauma; resources such as TLAP and membership in supportive professional associations such as TCDLA and its affiliates; as well as ethical ways to market and set fees; and introduction to IOLTA accounts and a primer on how the grievance process works.

The event will conclude with break-out rooms where law students can meet criminal defense lawyers from the counties where they hope to practice, or who practice in specific areas of criminal defense the student is interested in, such as: indigent defense, juvenile law, appellate, post-conviction/innocence, capital murder, DWI, domestic violence and sexual assault.

To make the event successful and meaningful for the law student participants, we are seeking your help in volunteering for either the panel or break-out sessions. If you have an idea for another pathway to criminal defense work and/or wish to participate in this event, please contact us via either Melissa Schank at or Law School Committee Chair Anne Burnham at .

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