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First Blood

Navy blue suit. Close-toed heels. Hair neatly coiffed. I look the part, but will this facade prove to provide me with the skills to convince these jurors that I am a competent lawyer? Even more importantly, will this material persona help to relay the truth about my client and the fact that he has been wrongly accused?

I’ve given this client a lot of thought. When I first met with him and his wife at the IHOP Saturday morning, I learned that he had been charged with terroristic threat. Wow, that sounds pretty bad, I thought. He sits across the table from me with his small 5’5”, 130-pound frame, his calloused hands from hard labor, and his Mickey Mouse T-shirt. To his left sat his gap-toothed, red (almost pink) haired wife, who had a smile that could light up a room and a laugh that was so contagious, you couldn’t help but chuckle even though you might not understand a word she’s saying. I thought, We’ll they’re sweet. He doesn’t seem like a “terrorist.”

The time has come. As I sit in this courtroom as a lawyer about to embark on my first actual trial, I feel the panic set in. I’ve written the opening statement. I’ve practiced it in front of my mirror with my not-so-forgiving audience at least a dozen times. I attempt to block out the fear of failure by positive reinforcements that seem to do nothing more then intensify my dread of collapse. Legs shaking, I somehow manage to stand up with my trusty cheat sheet in hand and complete my very first journey ten feet up to the podium. “May it please the court?” Oh my gosh, these are either great acoustics, or the middle of the courtroom is microphoned. That was unexpected. I continue. “Ladies and gentlemen, things aren’t always what they seem.” I am visibly shaking. Pull yourself together, I think to myself. “Let me tell you the story of a man poorly misunderstood.”

As I begin to tell his story, the doubt and fear somehow seem to slowly seep from my body. I put down that cheat sheet. Maybe it was the dozen times I practiced in front of the mirror. Maybe it was the attentive faces of those six jurors. Maybe it was the heels. Or maybe, just maybe, it was that a part of me, regardless of how different I may be from this man accused of a terroristic threat, was able to find a similarity that connected us on a different level. We are both humans whose liberty is priceless.

The trial took place over two long days. I manage to survive a few direct and cross examinations. We rest. The state rests. Closings. Now we wait.

The prosecution is texting his buddies back in the office, confidently awaiting his victory like a farmer who has not only counted his chickens, but has proudly announced their arrival to the market before they have actually hatched. I sit there wondering, When the jury foreman says “guilty” will my client understand what that means or will the interpreter sitting behind him have to clear it up in Spanish. What seems like an eternity of waiting turns out to be about only three hours. The clerk pokes her head into the courtroom: “We have a verdict.”

Well, this is it. The foreman stands. We stand. I make sure to have a pen in my hand to divert my nervousness from a gri­mace on my face to a death grip on the pen. A one-word verdict could change this man’s life, take away his liberty, curse his name, damn his future. I hold my breath.

“Not guilty.”

I exhale. The prosecution scowls. Our poorly misunderstood man walks through the courtroom threshold a free and unmarked man.

I realize that the world would not have ceased to rotate in the event of a guilty verdict. The birds would continue to sing. The rains would continue to fall. But, the quality of a man’s life would have been severely diminished. His small stature might not stand as proudly and his wife’s smile might not shine as brightly. If for nothing more than that, I now know that this is what being a lawyer is all about.

FAQs about 46B Competency

When should you ask for a competency evaluation?

Competency should be addressed at the earliest possible stage of the proceedings where there is evidence1 to “suggest” that competency might be lacking.2 If not suggested by defense counsel, a competency examination may be requested by the prosecution or the court on its own motion.3 Once the request has been made, the court will conduct an informal inquiry to determine if there is “some evidence” the defendant is incompetent to stand trial.4

If the issue of competency was not apparent before trial, it may nonetheless be raised subsequent to the trial on the merits.5 More specifically, it may be raised at any time before the “sentence is pronounced.”6 If raised after the return of the verdict, “the court shall make the determination as soon as reasonably possible after the return.”7 However, the issue of competency is moot if a verdict of not guilty is returned.8

It is advantageous to defense counsel and the client to raise the competency issue as soon as possible. First, the prosecution may dismiss the charges against the defendant, regardless of a finding of incompetency.9 Once dismissed, if the court feels there is evidence to support a finding of incompetency, the court may transfer the defendant to civil commitment proceedings (more in-depth discussion to follow).10 Second, a client deemed incompetent might be more likely to take medication in order to become competent and not continue to languish in jail.

Furthermore, once the suggestion of incompetency is made by either party and an informal inquiry has been held by the court supporting incompetency, the court orders an expert examination to make the final determination as to the defendant’s competency to stand trial.11 While a jury trial, to determine a defendant’s incompetency to stand trial is not required; it may nevertheless be requested by either party or the court upon its own motion.12 However, an interlocutory appeal, as to the defendant’s incompetency to stand trial is barred by the rules.13

Who can perform a competency evaluation?

The court may appoint an expert when there has been a suggestion as to the defendant’s incompetency, either to examine the defendant or testify.14 However, if there is evidence to support a finding of incompetency, the court must appoint an expert to examine or testify as to the defendant’s incompetence.15 This expert may not also be involved in the defendant’s treatment.16 If there exists evidence to support a finding of incompetency, the court must appoint an expert, whether it be a psychologist or psychiatrist employed by the local mental health or retardation authority;17 an expert chosen by the defendant;18 or another appointed by the court.19

The code specifically delineates the qualifications the aforementioned experts must have.20 They include being a physician or psychologist with a doctoral degree, licensed in this state, and certification by the American Board of Psychiatry and Neurology “with added or special qualifications in forensic psychiatry” or American Board of Professional Psychology in forensic psychology.21 If the expert is not board certified, then he or she must have “at least 24 hours of specialized forensic training relating to incompetency or insanity evaluations” or at least 5 years’ experience before January 1, 2004, in performing criminal forensic evaluations for courts and at least 8 hours of continuing education relating to forensic evaluations (completed in the 12 months preceding the appointment).22 In addition, regardless of any board certification, the expert must have completed at least 6 hours of continuing education courses in forensic psychiatry or psychology in the preceding 24 months.23 If an expert does not fit into the criteria above, as long as there are some exigent circumstances based on the expert’s specialized training or experience he may qualify.24 As a practical matter, most counties have an approved list of PhD psychologists and MD psychiatrists that they will appoint to do a competency examination.

How is competency different from Not Guilty by Reason of Insanity (NGRI)?

Competency is a determination as to the defendant’s ability to stand trial. This evaluation focuses on the defendant’s present ability to consult with their attorney and understand the proceedings against them.25 Competency is not a defense or excuse for the crime committed; however, it acts as a stay to the proceedings.26

Insanity is an affirmative defense that acts as an acquittal for the defendant.27 The defense is focused on the mental state of the defendant at the time of the incident.28 In addition, the insanity defense uses the term “mental disease or defect” and “does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”29

Where will my client go if found incompetent?

Once a determination of incompetency has been made by the expert, assuming the determination is uncontested,30 the code lists two options: commitment to a facility or release on bail to an outpatient facility.

Release on bail is subject to many conditions and focuses on ensuring safety for the community and effective mental health treatment for the defendant, with the specific objective that the client regain competency (and not necessarily be cured of the mental illness).31 Bail is available for felony cases, but is mandated for misdemeanor cases—where the defendant “may be safely treated on an outpatient basis and there is room available at an outpatient facility.”32 The treatment at the outpatient facility will not exceed 120 days.33

The court will not rest on counsel or defendant’s word alone as to the defendant’s ability and willingness to complete an outpatient treatment program. The court must receive a “comprehensive treatment plan” that represents the treatment for competency restoration and identifies the treatment provider.34 In addition, the court can require the defendant’s outpatient treatment to be administered by a community center or any other entity that provides outpatient restoration treatment.35 Also, the court can prescribe the care or treatment to be utilized, including medication.36

While outpatient treatment is desirable, there is limited space, and many persons who are incompetent to be tried will probably not fit the criteria for outpatient care. Also, if the defendant is unsuccessful at an outpatient treatment facility, it only delays an admission into a hospital. As the outpatient treatment order of the court will not exceed 120 days, neither will the commitment to a facility.37 However, there is a one-time extension of 60 days for a committed defendant who has not regained competency.38

Can they go to any psychiatric hospital?

No. The defendant will be ordered to a forensic facility based on his or her offense. For non-violent offenses,39 including assault, and offenses where an “affirmative finding” of the use or exhibit of a deadly weapon40 has not been made, the defendant will be committed to a “mental health facility or residential care facility determined to be appropriate by the local mental health authority or local mental retardation authority.41

Violent offenses and any offense in which a deadly weapon was used or exhibited will see the defendant being committed to a “maximum security unit of any facility designated by the Department” of State Health Services, “agency of the United States operating a mental hospital, or to a Department of Veterans Affairs hospital.”42 For instance, the North Texas State Hospital, Vernon campus, currently serves as the main mental health facility in Texas for violent offenders.

Can any doctor treat them?

The facility in which the defendant was committed or the outpatient treatment program, if the defendant was released on bail, will treat the defendant.43 Other treatment providers are not necessarily provided for in the code, but remain an option.44

Can my client bond out of jail if there is a writ pending?

The writ pending would be the order of commitment to a mental health facility or residential care facility based upon the determination that the defendant is incompetent to stand trial.45 Given the limited space of state hospitals, writs can remain pending for up to 120 days or more. The simplest answer is that your client cannot bond out of jail if there is a writ pending. The code only presents two options upon a finding of incompetency: commitment or release on bail.46 Once the court has gone the route of commitment, release on bail is no longer an option. In any event, it would behoove counsel in any county to inquire into their local policy respecting this issue.

How long will they wait in jail?

Texas is the second most populous state in the country, but almost dead last in terms of mental health funding—49th.47 In 2005, there were 12.1 psychiatric beds per 100,000 people.48 To meet the minimum standards of treatment, there would need to be more than 11,000 additional beds.49 The Texas State Department of Health Services intends to cut an additional 183 psychiatric beds, or 12 percent of total capacity, when the legislature convenes in 2011.50 Therefore, depending on your county, the wait could be anywhere from 30 days to 120 days or more.

Are any outpatient programs available?

If your client is released on bail based upon a determination that he or she is incompetent to stand trial, the court will require the defendant to participate in an outpatient treatment program.51 The code authorizes the outpatient treatment program to be administered by either a community center or any other entity “that provides outpatient competency restoration services.”52

Most likely, the outpatient treatment program will be administered by the local mental health/mental retardation authority. For instance, in Austin the authority is Austin Travis County Integral Care, and they operate a Community Competency Restoration Program (CCRP).53

What if my client “clears up” while waiting for a bed at a forensic hospital?

Due to the long wait for a state hospital bed in any county in Texas, and the lack of outpatient programs that will fit most client’s needs, it is possible that a defendant will have regained competency while in jail. However, this result is extremely unlikely if the defendant is incarcerated and not receiving or taking medication. The code allows for the redetermination of competency at any time.54 The defense, prosecution, or the court on its own motion may make an inquiry into restoration,55 as well as moving the court to determine that the defendant has been restored to competency.56 Affidavits may accompany the restoration motion,57 in addition to a request to appoint a “disinterested” expert.58

In addition to the parties and the court making an inquiry into restoration, a mental health or residential care facility and an outpatient treatment provider may do the same.59 They may also request the court to determine that the defendant has been restored to competency, along with an accompanying written statement of their opinion of the defendant’s competency.60

If both parties and the court agree that the defendant has been restored to competency, the criminal court proceedings will resume.61 However, if contested, the court will hold a hearing, either on the request of the head of a facility or outpatient treatment provider,62 and on its own motion or on motion by either party if “any supporting material establishes good reason to believe the defendant may have been restored to competency.”63 In addition, the court or either counsel may make a motion to have a jury determine the outcome of the hearing.64 Lastly, incompetency is presumed at the hearing,65 unless the head of the facility or outpatient treatment provider has provided an opinion that the defendant has regained competency.66

Thereafter, if the redetermination of the defendant’s competency has been successful, the criminal proceedings are resumed.67 However, if a defendant remains incompetent to stand trial, he or she will continue their commitment at a facility or outpatient treatment program.68 Once a redetermination of competency has been made and the defendant remains incompetent, any subsequent redetermination of competency motion or request filed before the 91st day after the date of a previous redetermination must be accompanied by an explanation supporting the belief that the defendant has regained competency.69

What if my client will not take medication while in jail or in commitment?

Often, depending on the severity of your client’s mental illness, your client will not regain competency without medication. You will have a difficult time seeking an order for a re-evaluation if your client refuses medication. Those clients who have been required to take psychoactive medications as a result of their continuity of care plan with an inpatient or outpatient treatment provider, and have been found to not meet the criteria of court-ordered administration of psychoactive medications under the Health and Safety Code,70 may be eligible for court-ordered medications under the Criminal Code.71 Although, a client released on bail would not be required to have the hearing under the aforementioned Health & Safety Code.72

Once a hearing under the Health & Safety Code has found the client to not be a danger to self or others, then the court will make its own findings, by clear and convincing evidence, that the medication is medically appropriate (weighing harm versus benefit); the state has a clear and compelling interest in defendant obtaining competency; no other less-invasive means is available; and the prescribed medication will not undermine defendant’s use of defensive theories at trial.73 Lastly, the court will require the testimony of two physicians—one who prescribed the medication (either correctional facility or outpatient treatment program) and another who is not involved in the proceedings against the defendant.74

What if my client remains incompetent throughout the proceedings against them?

If your client remains incompetent, whether they have been committed or released on bail to an outpatient treatment provider, he or she cannot be ordered to participate in either of those two options for a period that exceeds the maximum term provided by law for the offense charged.75 Any additional period of confinement must be pursuant to civil commitment proceedings.76 Civil commitment proceedings depend on whether the charges have been dismissed.77

If your client is a person with a mental illness, the court must conduct a hearing to determine whether court-ordered mental health services are appropriate.78 The criminal court where the charges remain pending will conduct the civil commitment proceedings pursuant to the Health and Safety Code.79 To receive mental health services by court order, the court must find by clear and convincing evidence: that your client is mentally ill; and that as a result of their mental illness is likely to cause serious harm to self or others, or “is suffering severe and abnormal mental, emotional, or physical distress” that prevents the person from living independently and making a rational decision for treatment.80

If court-ordered mental health services are appropriate, the court will either make a temporary81 or extended82 mental health services determination. Temporary mental health services will only be ordered if there is clear and convincing evidence that mental health services are available for the client; the illness is “severe and persistent”; the client will continue to suffer abnormal stress if not treated; the client shows an inability to function independently without court-ordered mental health services; and the client is unable “to participate in outpatient treatment services effectively and voluntarily.”83 The temporary court-ordered mental health services may be inpatient or outpatient, and will not exceed 90 days.84

While temporary court-ordered mental health services seem arduous, extended is that much more. In addition to meeting the basic criteria established in paragraph two and three of this section, the client’s condition must be expected to continue for more than 90 days and the client has received court-ordered inpatient mental health services “for at least 60 consecutive days during the preceding 12 months.”85 But, this should often be the case under 46B, given that the defendant has likely just received 180 days of inpatient treatment, yet remains incompetent to stand trial.

An extended civil commitment will not last longer or shorter than 12 months.86

Finally, if the charges have been dismissed and there is evidence to support a finding of your client’s mental illness or retardation, the court must “enter an order transferring the defendant to the appropriate court for civil commitment proceedings.”87

Special thanks to Ryan Mosler Esq. and Brian D. Shannon, Professor of Law, Texas Tech.

For more information on any of the issues raised in this article, please consult, Brian D. Shannon & Daniel H. Benson, Texas Criminal Procedure and the Offender with Mental Illness: An Analysis and Guide (2008), available at http://www.namitexas.org/resources/nami_tcp_guide2008.pdf.

Notes

1. Tex. Code of Crim. Proc. § 46B.003 (a) (2010), evidence that the person cannot consult with attorney or understand the proceedings against them.

2. Id. § 46B.004 (a).

3. Id. at (b).

4. Id. at (c).

5. Id., § 46B.005 (d).

6. Id.

7. Id.

8. Id.

9. Id., § 46B.004 (e).

10. Id. See Tex. Code of Crim. Proc. § 46B.151 (2010) for civil commitment proceedings.

11. Id., § 46B.005 (a).

12. Id., § 46B.005 (c).

13. Id., § 46B.011.

14. Id., § 46B.021 (a).

15. Id. at (b).

16. Id. at (c).

17. Id. at (e).

18. Id. at (f).

19. Id. at (a).

20. Id. § 46B.022

21. Tex. Code of Crim. Proc. § 46B.022(a) (2010).

22. Id.

23. Id. at (b).

24. Id. at (c).

25. Id., § 46B.003(a).

26. Id., § 46B.004(d).

27. Tex. Code of Crim. Proc. § 46C.155(a) (2010).

28. Tex. Penal Code § 8.01(a) (2010).

29. Id. at (b).

30. Id., § 46B.054.

31. Id., § 46B.072(a).

32. Id. at (1) & (2).

33. Id. at (b).

34. Id. at (c).

35. Id. at (d).

36. Id.

37. Id., § 46B.073(b).

38. Id. § 46B.080.

39. Any offense not listed in Tex. Code of Crim. Proc. § 17.032(a) (2010) except (a)(6).

40. Tex. Code of Crim. Proc. § 42.12 3g(a)(2) (2010).

41. Tex. Code of Crim. Proc. § 46B.073(d) (2010).

42. Id. at (c).

43. Id., § 46B.077.

44. Id., § 46B.111, for the appointment of disinterested experts; and id., § 46B.086 (d), for testimony of a physician not involved in the defendant’s proceedings for use in the determination of court-ordered medications.

45. Id., § 46B.073.

46. Id., § 46B.071.

47. L. Aron, R. Honberg, K. Duckworth et al., Grading the States 2009: A Report on America’s Health Care System for Adults with Serious Mental Illness 143 (2009), available at http://www.nami.org (follow “Grading the States” hyperlink, then follow “Full Report” hyperlink).

48. E. Torrey, K. Entsminger, J. Geller et al., The Shortage of Public Hospital Beds for Mentally Ill Persons 16 (2006) http://nami.beardog.net/AdvHTML_Upload/TACShortageofBedsStudywithtables.pdf .

49. See supra note 47, at 18.

50. Lillian Ortiz, “Mental health cuts could be disastrous,” Houston Chronicle, http://www.chron.com/disp/story.mpl/editorial/outlook/7123337.html (last visited Oct. 11, 2010).

51. Tex. Code of Crim. Proc. § 46B.072 (2010).

52. Id. at (d)(1).

53. Austin Travis County Integral Care, http://www.integralcare.org/?nd=ccrp (last visited Oct. 11, 2010).

54. Tex. Code of Crim. Proc. § 46B.108(a) (2010).

55. Id. at (b).

56. Id § 46B.110.

57. Id. at (b).

58. Id § 46B.111.

59. Id § 46B.108(b).

60. Id., § 46B.109.

61. Id., § 46B.112.

62. Id., § 46B.113 (a).

63. Id. at (b).

64. Id. at (c).

65. Id. at (e) and thereafter, incompetency is presumed at the hearing unless refuted by a preponderance of the evidence.

66. Id. at (d) and thereafter, competency is presumed at the hearing unless refuted by a preponderance of the evidence.

67. Id., § 46B.116.

68. Id., § 46B.117.

69. Id., § 46B.115 (a).

70. Tex. Health & Safety Code § 574.106 (a) (2010); and id. at (a-1), is under court order to receive inpatient mental health services, and clear and convincing evidence, that the patient lacks capacity to make own decision regarding medication and the proposed medication is in the best interest of the patient; and the patient presents a danger to self or others in the inpatient mental health or correctional facility.

71. Id., § 46B.086.

72. Id. at (a)(4).

73. Id. at (e).

74. Id. at (d); see, generally, Brian D. Shannon, Prescribing a Balance: The Texas Legislative Responses to Sell v. United States St. Mary’s L.J. (2010), http://www.stmaryslawjournal.org/pdfs/Shannon_II.pdf (discussing the evolution of Texas’ approach to court-ordered medications).

75. Id., § 46B.0095, except if charged with a misdemeanor and ordered to participate in an outpatient treatment program, the maximum period is two years.

76. Id. at (b).

77. Id., § 46B.102, where charges remain pending; and id., § 46B.151, where charges have been dismissed.

78. Id., § 46B.102(a).

79. Tex. Health & Safety Code § 574.034–574.035 (2010).

80. Id., § 574.034(a); and id., § 574.035 (a).

81. Id. § 574.034.

82. Id., § 574.035.

83. Id., § 574.034(b).

84. Id. at (g).

85. Id., § 574.035(3) & (4).

86. Id. at (h).

87. Id., § 574.151(b).

Jeanette Kinard is Director of the Travis County Mental Health Public Defender Office in Austin, Texas. Jeanette has a Bachelor’s Degree from the University of Texas at Austin and a Law Degree from the University of Houston in Houston. A frequent speaker, statewide, on the topic of the mentally ill in the criminal justice system, Jeanette is a member of the State Bar of Texas, Austin Criminal Defense Lawyers Association (President, 1994–95 and 2004–5), Texas Criminal Defense Lawyers Association (Board of Directors, 1996–2000), National Criminal Defense Lawyers Association, and the National Legal Aid and Defender Association. She serves on the Mayor’s Mental Health Task Force, the Texas Continuity of Care Task Force, and Travis County MH Jail Diversion Committee and is a Board Member for Capacity for Justice. Jeanette, a partner at Kinard & Kinard in Austin for 17 years, is editor of Kinard’s DWI Manual. She served six years on the District 9 Grievance Committee (1992–98) and was formerly a prosecutor in Harris, Bell, and Travis counties. Jeanette is a frequent contributor to Voice for the Defense magazine.

A History Mystery: 
Who Shot J.W.?

J. W. Jarrott was a trail-blazing lawyer and a courageous advocate. As a tragic consequence, he became the first person murdered in the recorded history of the South Plains of Texas.1 In the tradition of Stephen F. Austin, Jarrott brought some of the first waves of settlers to a vast wasteland once known as the Great American Desert, becoming a hero to his friends and clients, and then a martyr. Yet his death remains an unsolved mystery, and it is a shame that Jarrott’s name has been all but forgotten.

James William Jarrott was born in 1861, the year Abraham Lincoln was inaugurated as president of the United States. He was commonly referred to in contemporary documents by his initials, “J. W.,” but he was affectionately called “Jim” by friends and family. A native of Hood County, Texas, he was formally educated at Add-Ran College.2 Jim was described as a man who showed “a commendable degree of cultivation, and is refined in his manners, small in stature, and of light figure; his action is quick, and his speech rather rapid.”

The single existing photograph of a young Jim Jarrott depicts him as rather plain, with odd features, but some historians have written that he was handsome. In 1886, he married 20-year-old Mollie D. Wylie of Thorp Spring, the daughter of a prominent pioneer ranching family in the Hood County area. She was a beautiful young lady, with high cheekbones and dark features. The Jarrotts first lived in Hood County, and then Parker County, where Jim was elected to the Texas Legislature at the age of 24.

But he spent just a short time as a lawmaker, moving on to Stephenville. There, Jim studied law, was admitted to the bar, and became Erath County Attorney. The wandering Jarrott family next made a brief attempt at ranching in Arizona before other opportunities beckoned. Meanwhile, Jim befriended a fellow former county attorney and state legislator named Charles Rogan, the new Texas Land Commissioner.

The Move to Lubbock

With land speculation in mind, the ambitious young attorney made an exploratory journey to the South Plains, and in early 1901 he decided to bring his wife and children to Lubbock, almost 300 miles west of their Hood County roots. The Jarrott family delayed their move until June, when school was out for their four young children, and took up temporary residence in the Nicolette Hotel on the courthouse square, as they began establishing themselves in Lubbock. It was a tiny community with fewer than 300 residents, but the area was booming with real estate deals happening everywhere.

In official documents, J. W. is first mentioned as one of the lawyers who elected H. C. Randolph of Hale County as “special judge” of the 64th District Court on September 1, 1901, along with pioneer Lubbock lawyers John R. McGee, J. J. Dillard, George R. Bean, and others. He also attended a March 31, 1902, Lubbock bar association meeting where a resolution was adopted lamenting the death of 50th District Court Judge S. I. Newton of Baylor County.

In just a few short months, the same association of lawyers would hold a memorial service in remembrance of a younger member of the bar, J. W. Jarrott.3

Opportunity Arises on the Llano Estacado

The flat, treeless plain Jim sought to develop was part of the Llano Estacado, so named by Spanish explorer Francisco Coronado some three centuries earlier. This semi-arid plateau was later described as the Great American Desert, wholly unfit for human habitation or cultivation. Today it is part of a region called the Great Plains, a land offering fertile soil and known as one of the finest agricultural regions anywhere in the world.

Though early settlers found little water in lakes or rivers here, the region sat atop the Ogallala Aquifer, one of the world’s largest underground water resources. Here, tall wooden windmills began dotting these windswept plains, drawing water from the earth for cattle and cattlemen. Farmers would soon draw from the same source to irrigate crops of fiber and grain.

At the beginning of the 20th century, this grassland could sell for less than a dollar an acre, and town lots in the village of Lubbock were trading hands for three bucks each. So, the South Plains of Texas was ripe for discovery by opportunists and colonists looking for cheap, abundant land. It was common for lawyers of the era to invest in real estate and to solicit clients for land deals.

But Jim had an angle, and a distinct advantage over others in the business of South Plains real estate speculation. With the encouragement of his friend, Land Commissioner Rogan, he paid to re-survey the area west of the unincorporated hamlet called Lubbock. Much of the land had been previously claimed or leased by nonresident cattle baron corporations from Chicago and elsewhere. Huge, unfenced ranches dominated the landscape, populated by corporate employees with job descriptions like cowboy, wrangler, and foreman.

The new survey revealed there was prairie land to be had from the State of Texas for 50 cents an acre, with four years to pay the debt, in the almost vacant, unorganized Texas counties of Hockley, Terry, and Cochran. Rogan proclaimed that the person who financed the survey, Jarrott, was to be given first claim to the land. This meant the existing ranchers in the area who were required to remove their cattle from the property could easily identify a young Lubbock lawyer, J. W. Jarrott, as an enemy.

Trouble was brewing on the broad West Texas horizon.

The Struggle to Settle the Land

In 1901, the Jarrotts filed for themselves and 24 other families under the 1895 Four-Section Act on a 100-section strip of public land extending from the western boundary of Lubbock County almost to the border of the Territory of New Mexico, a huge expanse of real estate. A hundred sections is roughly equivalent to a hundred square miles of land, an area greater than five times the size of the island of Manhattan. So, the diminutive nickname bestowed on the property, “The Strip,” was a bit of a misnomer.

The Strip did, however, properly describe the shape of the property, which extended some 60 miles in length, and less than two miles to five miles in width. The tent the Jarrott family pitched on their Hockley County claim was the only human habitation within a 30-mile radius, but friends from the east—Parker, Erath, and Hood counties—would soon follow.

The law required settlers to occupy and make improvements to the land. So, with small landowners feverishly stretching canvas and digging dugouts—and certain to soon build fences— the hostile ranching conglomerates became alarmed. Lined up against what they called “The Jarrott Gang” were ranchers from spreads with colorful names: the Mallet, Slaughter, L7, Jumbo, J. Cross, Osxheer, DOV, QIV, YellowHouse, XIT, K, Spade, TFW, Lazy S, Cros C, Flying D, 9R, and Fish.

Ranching interests labeled the newcomers “nesters” and took action. Their attorneys filed lawsuits and complaints against Jim and the other settlers. An Illinois corporation, the Lake-Tomb Cattle Company, spearheaded the ranchers’ litigation.

Jim zealously defended his clients’ rights to The Strip in far-flung South Plains courthouses and in the Texas Capitol at Austin, with Land Commissioner Rogan steadfastly taking the settlers’ side in the bitter litigation. By the summer of 1902, Jim had firmly established all of his clients and their families on the land.

But the controversy was about to get uglier, and bloody.

According to legend, when Jim filed his family claim on land in Hockley County, a man named Painthorse Hamilton complained that he had been cheated. Hamilton threatened Jim more than once, but there was no violence.4

An Ill-Fated Journey

On Wednesday, August 27, 1902,5 Jim departed from Lubbock in a wagon with provisions for John Doyle, an employee who was camping on the proposed site of the Jarrott residence, some 30 miles southwest of Lubbock. Jim had a choice of two roads to his destination. He chose the southern route, which midway through his journey offered a spot with two windmills for watering—known as the “Twin Sisters”—near present-day Ropesville, Texas.6

The journey would take the unarmed lawyer through the L7 Ranch, owned by his chief adversary, the Lake-Tomb Cattle Company.

Doyle expected his grocery delivery by Thursday, but when Jim failed to show, the hungry Doyle traveled by horse to Lubbock, taking the northern route. He arrived Friday night and went directly to the Nicolette Hotel to inform Mrs. Jarrott that his food and her husband were both missing.

She panicked, immediately fearing the worst. “Oh, he has been murdered!” she cried. Mollie Jarrott was right.

Saturday morning, Doyle and Lubbock pioneer merchant J. D. Caldwell traveled the southern road in search of Jim. At the Twin Sisters, the lawyer’s lifeless body was found lying in a stock tank on the L7 Ranch, property of the Lake-Tomb Cattle Company. He had been shot to death, probably on Wednesday, and scavengers had gnawed on the remains.7 Jim’s wagon was nearby, his harness was hanging in a windmill tower, and his horses were found hobbled, grazing on the prairie grass.

Jim Jarrott was only 41 years old.

Investigation and Indictments

Lubbock County Sheriff Barrett Penny’s investigation was hampered because of rain on Thursday. Nevertheless, the lawman made notes in an attempt to reconstruct the crime:

A man standing by the tower shot him with a Winchester rifle. This shot seems to have caused the team to whirl suddenly to the left as shown by wagon tracks. Blood was found on the right rear wheel and Mr. Jarrott was either thrown or jumped out at the first shot. Traces of blood and tracks were found leading to the lake in which he was found. Two empty shells were found near the water tower and two near the lake, indicating that at least four shots were fired, the last and perhaps the fatal one, taking effect in the small of his back. It is believed Mr. Jarrott ran into the lake and was chased by the assassin . . . A reward of $1000 has been offered for the arrest and conviction of the assassin or assassins.

The murder polarized the West Texas community. Townsfolk and farmers in the area blamed the ranchers, accusing them of hiring a professional gunman to kill Jim in order to frighten away The Strip’s settlers. The ranching interests claimed to be appalled at the deed, but rumors were soon spread that Jim’s wife Mollie may have been involved.

The widow was summoned to testify before a grand jury investigating the murder. She hired a lawyer from her Hood County hometown, but she did not stand on any legal privilege, and gave the grand jurors a blistering lecture on her bleak situation and the unfairness of the inquisition. However, the offended Mollie was unable to shed much light on the case. The murder became the South Plains’ major unsolved mystery.

Prime suspect Painthorse Hamilton had an airtight alibi. He was in Portales, New Mexico, on the Wednesday Jim left Lubbock, well beyond traveling distance to have committed the crime within the supposed time frame.

The case went cold for more than a year.

Finally, in late 1903, murder indictments were handed down against four men with ties to Jim’s adversary, the Lake-Tomb Cattle Company: Ben Glaser, Morgan Bellows, B. F. Nix, and William Barrington. Barrington was accused as the shooter and the others as accomplices. In addition, Nix was charged with perjury.8 All were quickly released on bail supplied by prominent area ranchers Frank Wheelock, Van Sanders, W. T. Petty, and M. V. Brownfield.

Bail bondsman Wheelock would later become the first mayor of the City of Lubbock, in 1909,9 and a school in Lubbock was also named in his honor. Bail bondsman Sanders was a cousin of George Wolffarth, who would be the namesake of the misspelled City of Wolfforth, just west of Lubbock. And the City of Brownfield, 35 miles southwest of Lubbock in Terry County, was to be named in honor of bail bondsman M. V. Brownfield. Known as “Pap,” M. V. Brownfield would assume a much larger role in the Jarrott than that of a surety for a poor cowpoke.

During the grand jury investigation, Glaser testified that he had unharnessed Jim’s rig at the Twin Sisters that fateful Wednesday, hung the harness on the windmill, and then watered his horse. But he claimed he did not see the body.10 The four ranch hands indicted for Jim’s murder did not face trial in Lubbock County or elsewhere. Their cases were moved to Floyd County, 55 miles northeast of Lubbock, on a change of venue, and each case was eventually dismissed for lack of evidence.11

Again, the case went cold—this time for decades.

The Settlers, the Widow Jarrott, and Monroe Abernathy

Jim’s assassination failed to scare settlers off The Strip. “We became more intent and closely allied in our fight for survival,” wrote Mary Blankenship, who with her husband had staked a claim. “The name Jim Jarrott became a legend among us, and his martyrdom served to spur us on. We were determined not to pull up stakes and retreat back to the East.”

In years to come, Jim’s settlers and their descendants prospered. Some raised small herds of cattle, and others became farmers. They soon learned to grow valuable crops of cotton on this inhospitable prairie. The South Plains of Texas would become the largest contiguous cotton-growing region in the world.

Burdened with four children less than 15 years of age, Jim’s 36-year-old widow Mollie successfully developed the land that had cost her husband his life. She expanded the original Jarrott claim from 4 to 16 sections, naming the spread the Swastika Ranch,12 where she raised a prime herd of registered Hereford cattle.

In 1905, Mollie was remarried to Monroe G. Abernathy, a local real estate developer. The city of Abernathy was later named in honor of Mollie’s new husband.13 She began investing in business property in the fledgling town of Lubbock, eventually financing the construction of the J. C. Penney building, one of the largest of downtown commercial structures.

The couple led the promotion of the construction of the Santa Fe Railroad into Lubbock. The arrival of the railroad in 1909 immediately began to transform the small village into a thriving city. Mollie’s astute management of ranch and business holdings led to her reputation as Lubbock’s first pioneer businesswoman. In 1960, she died in Lubbock at the age of 94.

Mollie never lost her love for Jim Jarrott, and always honored his memory. Shortly before her death, she said in an interview: “I tell you the way I’ve always felt . . . [No person has] done as much for this country as Mr. Jarrott . . . He did more for the settlement of this country than anybody else who ever came here, and he lost his life for it.”

Deacon Jim Miller and the First Suspicious Confession

In 1909, an infamous outlaw and professional killer named James B. Miller was lynched along with three members of his gang by a mob of perhaps 40 men in Ada, Oklahoma. “Deacon Jim” Miller earned his nickname because he usually dressed the part, wearing a black hat and a long black frock coat. He pretended to be a pious, church-going man.

For 29 years, there seemed to be no connection between the 1909 Miller lynching and the 1902 Jarrott murder. Then in 1931, Lubbock lawyer and writer Max Coleman wrote a colorful yarn that tied Deacon Jim to Lawyer Jim, in the Frontier Times magazine.

In 1909 . . . Jim Miller was hanged by a mob. Just before being swung up he told Gib Abernathy, a cousin of [Monroe Abernathy] that he killed Jarrott, being paid the sum of $500 for so doing. He refused to say who paid him. He stated that in all his killings Jarrott was the only man he ever hated to kill. He said he was hid in the windmill tower when Jarrott drove up. He shot him twice, but not fatally. Jarrott plead with him to spare his life, but he told him that he was paid to do that deed, and that he would not fall down of his employer.

Among the problems with Miller’s supposed confession is that Gib Abernathy somehow forgot to tell anyone about it until 1914, five years after the fact. Coleman wrote that none of the Lubbock oldtimers ever believed the tale about Miller’s confession. There is no evidence that Monroe Abernathy had a relative known as “Gib,” but the Palo Pinto County Sheriff between 1914 and 1931 was named Gib Abernathy.

Another problem with the confession is that no one named Abernathy can be connected to the Miller lynching in news accounts of the era. No contemporary evidence exists that Miller made a confession related to Jim Jarrott or any other individual victim prior to his death, though the supposed confession has spawned much speculation among historians over the years. The story is probably a legend recounted by Max Coleman—or pure fiction invented by Coleman.

Deacon Jim Miller and the Second Suspicious Confession

Seemingly out of the blue, in March of 1933, John “Jack” Abernathy wrote a letter to his cousin Monroe Abernathy, who had married Jim’s widow, Mollie.14 In Jack’s startling message, he informed his family members of the Miller confession.15 Jack Abernathy, a hunting buddy of iconic United States President Theodore Roosevelt, was the U.S. Marshall for Oklahoma at the time of the Miller lynching. He wrote that he had arrested Miller and transported him to Ada shortly before the outlaw was hanged. On the train ride to Ada, Miller discussed his life as a hired gun, and the marshal asked the deacon which of his many victims16 was the hardest to kill.

“I had to shoot Jarrott five times before I ever killed him,” Miller answered. The outlaw confirmed his victim was J. W. Jarrott of Lubbock, and recounted his memory of the attack. Jack’s account of Miller’s confession is similar to Coleman’s published article written two years earlier, though in Coleman’s account it is clear that Miller said he regretted killing Jim, and not just because he was “the hardest to kill.”

On March 27, 1933—four days after Jack’s letter was dated—Monroe Abernathy wrote a letter to a San Antonio judge, and the letter supported his cousin’s account of Miller’s confession. Monroe claimed to have been involved in the discovery of Jim’s body, and wrote that he took part in the 1902 investigation of the original murder scene, which he said matched Miller’s description of the crime, as confessed to Jack Abernathy. Yet there is no evidence that Monroe Abernathy—the 1903 Lubbock County Justice of the Peace—participated in the Jarrott case except to set bail for the four original murder suspects.

Mollie was asked about the Miller connection to her husband’s murder shortly before her death. She said she believed Miller to be the killer, but it seems her allusion to Miller’s involvement originated from Wild West pulp magazines like those featuring Max Coleman’s stories.

Questions Abound

Why would a respected lawman like Jack Abernathy wait 24 years—much less a day, a week, or five years—to tell anyone of Deacon Jim Miller’s blockbuster confession, especially if the murder victim was related to his own family members? Maybe he didn’t need the $1,000 reward for Jim Jarrott’s killer. Maybe he was just lazy or forgetful. Or, could it be that he needed to establish some credibility for his soon-to-be-published autobiography, Catch ’em Alive Jack: the Life and Adventures of an American Pioneer?

Why were the 1902 investigative notes of an obscure Texas sheriff and the 1903 grand jury testimony of a forgotten cowboy transformed into dramatic, colorful accounts in Wild West literature by Max Coleman, known teller of tall tales, almost three decades later? How could Coleman have known about the Miller confession two years before Jack Abernathy first disclosed the confession to Monroe? Are Gib Abernathy, the man Coleman says obtained Miller’s confession, and Jack Abernathy actually the same person?

Was Jack Abernathy’s tale true, or was he just trying to get his book published? Or was he attempting to collect the 1902 reward offered “for the arrest . . . of the assassin”? Did Jack and Monroe create the Miller confession, perhaps with help from Max Coleman, in order to squelch lingering suspicion that Mollie was involved in Jim’s murder?

Jack’s memoirs were finally published in 1936. It seems strange that Abernathy did not mention Miller’s confession of Jim’s murder anywhere in his book. In fact, he wrote only three short paragraphs about his arrest of Deacon Jim, one of the most notorious outlaws of the era. But Abernathy did write: “A reward of one thousand dollars had been offered for the capture of Miller. I never did receive that reward, but I still have hopes.” Jack did not tell his readers that the $1,000 reward related in any way to slain Lubbock lawyer Jim Jarrott, whose name does not appear in his memoirs.

Land Deal Connects Miller to Cattle Barons

The confession stories may have just been a convenient way to wrap up a cold case in a way easily understood by the folks still interested in the case decades later. But the fact that Deacon Jim Miller probably did not confess to the murder of Jim Jarrott does not mean he did not commit the crime. Miller was probably the killer. Circumstantial evidence and direct evidence indicates he was well connected to the ranching interests suspected of paying to assassinate Jarrott.

In 1903, less than six months after the Jarrott murder, one “J. B. Miller”17 participated in a sinister real estate transaction in Terry County, which borders both Hockley and Lubbock counties.18 Four sections of land near The Strip were flipped in just a few months, and a careful look at the complicated deal reveals a suspiciously close relationship between Miller and the enemies of Jim Jarrott.

On January 23, D. J. Howard conveyed 2,560 acres of land to Miller for $3,900, which the outlaw promised to pay in the form of a promissory note secured by land in East Texas. A week later, Miller sold the land to W. H. Fisher for $4,100, which looked like a nice $200 profit. But the notes securing Miller’s debt to Howard turned out to be worthless, so it seems Miller made out like a bandit with the whole $4,100 he received from Fisher. In less than six weeks, Fisher dumped the four sections on A. M. “Dick” Brownfield for $800, apparently incurring a $3,300 loss. Then Dick made a huge profit when he sold the property, creating another layer of intrigue to the Jarrott legend.

The cheated Howard should have looked to Miller to cover the bad debt, it seems, but instead he chose to sue Dick Brownfield. Howard claimed Dick was involved in a conspiracy with Miller and Fisher to swindle him out of his four sections of grassland. Miller testified on behalf of Dick, and Howard lost his lawsuit and his land.

Howard was a settler in the area who early on partnered in cattle deals with Dick Brownfield’s ranching family, but later often feuded with them. W. H. Fisher, another player in the land flip, was a Fort Worth banker. His connection with Miller and Dick Brownfield is not clear, but it is clear Fisher sold the land to Dick for substantially less than fair market value. It is rare indeed to find a banker so unwilling to make a profit. If Howard’s allegation of a conspiracy is true, it would make sense that Miller and Fisher may have divided a profit on the deal, and Dick Brownfield wound up with four sections of land for less than 31 cents per acre, which had sold a few weeks earlier for $1.52 an acre. Then, just three months later, Dick Brownfield sold the property again, this time for $3 an acre.

It is quite interesting that the shady transaction involved Dick, who was the son of M. V. “Pap” Brownfield, a rancher who was connected to the Lake-Tomb Cattle Company, Jim Jarrott’s main enemy. Pap Brownfield, less than a year earlier, had helped post bail for the four L7 Ranch cowboys who were originally accused of conspiracy to murder the Lubbock lawyer.

In a strange twist, the land likely used to compensate Deacon Jim Miller for murdering Jim Jarrott became a town named after one of the ranchers who should have been investigated for arranging the killing.19 Dick sold the four sections to real estate developers, who transformed the open prairie into a town that would be named Brownfield in honor of his father, Pap.

So, there is compelling circumstantial evidence that Deacon Jim Miller was near the scene of the Jarrott murder within five months of the commission of the crime, that he was doing business with ranchers who had been aligned against Jarrott, and that the business he conducted with the ranchers resulted in Miller reaping a windfall profit.

But there is other evidence that directly connects contract killer Miller to M. V. Brownfield, bail bondsman for the Lake-Tomb Cattle Company cowboys.

Miller’s Convenient Witnesses

In 1904, Miller was arrested for killing detective Frank Fore at Fort Worth. One of the witnesses he called in his defense was Pap Brownfield, who claimed that he was in the hotel washroom with Miller and Fore, and that Fore drew his pistol first. Miller was acquitted on the testimony of Pap, the father of Dick Brownfield, who only a year before apparently profited on a crooked land deal brokered by Miller.20 This is further evidence that contract killer Deacon Jim Miller well knew Pap, a prominent rancher connected to cattle barons aligned against Jim Jarrott.

Miller also knew a man by the name of Tom Morrison. As early as 1897, Morrison was called as a character witness for Miller in his Eastland County trial for the murder of Bud Frazier at Pecos. Miller was tried twice, and acquitted. In what seems a bizarre coincidence, the same Tom Morrison appeared on the list of witnesses subpoenaed some six years later for the four L7 Ranch cowboys indicted for conspiring to kill Jim Jarrott. Did Deacon Jim Miller offer up his favorite magic character witness in order to keep the cowboys quiet about Miller’s involvement in Jim Jarrott’s murder?

The answer to this question, and all the others surrounding the Jim Jarrott assassination, will probably be forever lost in the lore of the Llano Estacado.

Jarrott or Brownfield?

The Deacon Jim Miller confession legend is an “O. Henry” type ending to the Jim Jarrott story. It probably created more questions than answers to the mystery.

It is likely that Jarrott was killed at the behest of powerful South Plains ranching interests. Whether the actual shooter was the infamous Miller or some poor ranch hand is interesting, but the real inquiry should always have been, “Who ordered Jim Jarrott’s assassination?” The official investigators of the 1902 crime were unable or unwilling to trace the origins of the killing, and they were probably afraid to probe into the influential ranchers’ affairs. Some of those who should have been prime suspects are now regarded as South Plains pioneer heroes, with towns and schools bearing their names.

Any evidence tending to positively connect anyone to the crime is likely long gone. Over the years, authors and historians intrigued by the case have chosen not to raise many questions about the cattle baron connection to the murder or the unlikely Miller confession. They have concentrated on the colorful and romantic nature of the story—the Twin Sisters, the four cowboys, the poor widow who made good, the contract killer who pretended to be a deacon—instead of posing perhaps a better question.

The better question is this: Shouldn’t the South Plains City of Brownfield be renamed “Jarrott”?

Sources: “Who Killed This Man?” by Max Coleman, Frontier Times magazine, Volume 8, No. 12, September 1931; “Courts of the Panhandle,” by Max Coleman, Frontier Times magazine, Volume 9, No. 8, May 1932; From Mustanger to Lawyer, Part A, by Max Coleman, Carleton Printing Company, 1952; From Mustanger to Lawyer, Part B, by Max Coleman, Carleton Printing Company, 1953; Texas State Historical Association Handbook of Texas Online; the Southwest Collection of Texas Tech University; Death on the Plains: The Murder of Jim Jarrott, by Yvonne Perkins and Judy Womack, self-published, 2010; Catch ?em Alive Jack: the Life and Adventures of an American Pioneer, by John R. Abernathy, Bison Books, 2006 (originally published in 1936 by the Association Press of New York); Personnel of the Texas State Government, compiled and published by Lewis E. Daniell, Austin: Press of the City Printing Company, 1887; Archives of the Lubbock County District Clerk; Archives of the Floyd County District Clerk; Archives of the Terry County Clerk.

Dan Kim, Texas Tech MBA candidate, assisted in researching this article. Lubbock County Court-at-Law Number 3 Judge Paula Lanehart (retired) contributed to this article, as did Waco historian Ellis Lindsey.

Notes

1. An earlier killing in Dickens County resulted in a murder trial. However, the jury ruled that the killing was not a murder, and the defendant was acquitted. Getting Away with Murder on the Texas Frontier, by Bill Neal, Texas Tech University Press, 2006.

2. Add-Ran College, established at Thorp Spring, eventually found its way to Fort Worth, where it is now known as Texas Christian University.

3. This was the first of hundreds of similar memorial services, the most honored and unique tradition of the Lubbock County Bar Association. The Lubbock County Bar Association is believed to be the only organization in the State of Texas that memorializes each local departed attorney with a special meeting of the bar, usually at the courthouse.

4. The Painthorse Hamilton story is based on the writings of Lubbock lawyer Max Coleman, an early chronicler of South Plains legal history. Unfortunately, Coleman admitted he often embellished his memoirs, books, and magazine articles with tall tales, and he rarely provided source references.

5. Max Coleman’s account of the Jarrott case dates the murder “Wednesday, August 7, 1902.” But August 7 of that year was a Thursday. Jarrott was last seen alive on Wednesday, August 27, 1902. His gravestone in the City of Lubbock Cemetery was engraved with his date of death as August 28, 1902.

6. There is no record of a place known as Twin Sisters in Lubbock or Hockley County records, though there is no question that the murder was committed at a windmill. Max Coleman probably invented the name of this colorful setting.

7. Max Coleman wrote that wolves had feasted on Jarrott’s carcass. But the last gray wolf (a “loafer wolf” or ‘buffalo wolf”—canis lupus nubilus) in the area was reported to have been killed before the turn of the century by Lubbock pioneer rancher, farmer, and civic leader George C. Wolffarth (namesake of the town misspelled Wolfforth), so it is unlikely wolves molested Jarrott’s corpse, though other critters may have participated in this dastardly deed.

8. The indictments were handed down by a Lubbock County grand jury, though the murder had taken place in Hockley County, an unorganized Texas county. Only 44 people lived there at the time of the 1900 census. Therefore, Hockley County was attached to Lubbock County for judicial purposes until it was organized in 1921.

9. Wheelock also distinguished himself by being the first person in the history of Lubbock County to be indicted for a felony crime, fence-cutting, and cattle theft, in 1891. The charges were dismissed.

10. There is no existing transcript of Glaser’s grand jury testimony, and there is no reference to this account except in Max Coleman’s writings, so this information is suspicious.

11. Archives of the Floyd County District Clerk, Cause Nos. 250 and 251.

12. The swastika was a popular symbol of luck in Western culture until the German Nazis adopted the swastika as an icon for the repressive regime in the 1930s.

13. Perhaps by coincidence, Abernathy was the Lubbock County Justice of the Peace who arraigned the original four murder suspects in 1903. And his name, along with Mollie’s, appears on a defense subpoena application filed in the perjury case of B. F. Nix, one of the four L7 Ranch men accused of conspiring to kill Jarrott.

14. Just as there is no evidence that Monroe Abernathy was related to Gib Abernathy, there is no verifiable evidence that Monroe Abernathy was related to Jack Abernathy, other than the fact that the men claimed to be cousins.

15. A copy of Jack Abernathy’s letter to Monroe Abernathy is among the papers in the James William Jarrott reference file at the Southwest Collection, Texas Tech University.

16. Some accounts claim Miller killed as many as 51 men, among them Pat Garrett, the lawman who took the life of Billy the Kid. But the story of Miller’s assassination of Garrett is the subject of much historical debate.

17. Terry County deed records indicate the transactions involved “J. B. Miller and wife S. B. Miller.” Tarrant County records show that Deacon Jim Miller, a native of Tarrant County, was married to Sarah B. Miller. So there is little question that Deacon Jim Miller was the same person as the J. B. Miller involved in the Terry County transactions.

18. Terry County deed records, 1903.

19. It is noteworthy that Pap Brownfield “counted little on law enforcement, believing himself fully capable of handling his own problems.” Unpublished paper “Three Major Crises in the Life of Terry County,” by Glen H. Mitchell, 1957, Southwest Collection of Texas Tech University.

20. Miller was represented by Texas lawyer Moman Pruitt. Pruitt was a legend, a dynamic litigator who never had a client executed, winning acquittals in 304 of his 342 murder cases.

Chuck Lanehart is a shareholder in the Lubbock firm of Chappell, Lanehart & Stangl, PC, where he has practiced law since 1977. A 1977 graduate of Texas Tech University School of Law, he is board certified in the field of Criminal Law by the Texas Board of Legal Specialization. Chuck served as director of the State Bar of Texas, District 16, and as president of the Lubbock County Bar Association. He was the founding editor in 1987 of LCBA’s monthly publication, The Lubbock Law Notes. A former director of the Texas Criminal Defense Lawyers Association, Chuck received the President’s Commendation for “Outstanding Service to the Citizen Accused” in 1990 from TCDLA. In 1993, TCDLA honored him with the President’s Award for his service to the TCDLA Strike Force. Chuck is a charter member and former president of the Lubbock Criminal Defense Lawyers Association. Texas Monthly magazine has named him a “Super Lawyer” in the field of criminal law. He is a Fellow of the Texas Bar Foundation. In 2008, Chuck was named among the “200 Most Influential People in the History of Lubbock” by the Lubbock Avalanche-Journal.

Trial By Numbers – Uncertainty in the Quest for Truth and Justice

All results for every forensic science method should indicate the
uncertainty in the measurements that are made, and studies must be
conducted that enable the estimation of those values.1

On August 5th, 2010, prosecution expert Rod Gullberg was handed a breath alcohol test ticket with the values 0.081 and 0.080 printed on it. Assuming proper quality assurance procedures and testing protocols were followed, all parties agreed that these were the results of an accurate and reliable test. Mr. Gullberg was then asked, given these results and the fact that this was an accurate and reliable test, could he state beyond a reasonable doubt that this individual’s breath alcohol concentration (BAC) exceeded a 0.080 (the per se limit in Washington state). Mr. Gullberg responded, “I would have to say yes based on these results here.”

Similar evidence and testimony, concerning a range of forensic measurements, is introduced in courtrooms around the country every day. And based on such evidence and testimony, citizens accused of all manner of crimes are found guilty. In the context of a prosecution for driving under the influence of alcohol, where guilt may be based on a number alone and the only way to know what an individual’s breath or blood alcohol concentration is comes from a machine, many simply plead guilty in the face of such evidence. But what if the results from an accurate and reliable test don’t actually mean what most of us presume?

Despite the fact that the test under consideration was agreed to be accurate and reliable, within 10 minutes of the testimony above, Mr. Gullberg reversed himself, stating that he could not conclude based on the test results that this individual’s BAC was in excess of a 0.080. In fact, he conceded that despite the fact that the test was accurate and reliable, there was actually a 44% likelihood that this individual’s BAC was below a 0.080! Far more than a reasonable doubt, these “accurate and reliable” test results barely established the conclusion as more likely than not! Absent those critical 10 minutes, an innocent citizen could have been convicted based on evidence that meant something very different from what the State presented it to establish.

So what happened in those 10 minutes to change Mr. Gullberg’s opinion? Did Mr. Gullberg lie? Were the wrong values printed on the breath test ticket? Was there something wrong with the test?

Measurement Uncertainty

To many, the result of a measurement represents a singular, well-defined property of a thing being measured (the “measurand”). In such a world, a breath test result of 0.080 would be interpreted as representing an individual’s true and specific breath alcohol concentration.2 (See Figure 1.)

Unfortunately, reality is not quite so simple. For even the most carefully performed measurement, the value of a thing being measured can never be known exactly; all that can ever be given is an estimated value.3 In fact:

. . . for a given measurand and a given result of measurement of it, there is not one value but an infinite number of values dispersed about the result that are consistent with all of the observations and data and one’s knowledge of the physical world, and that with varying degrees of credibility can be attributed to the measurand.4

Thus, in the real world, a breath test result of 0.080 is more appropriately represented as a packet of values, any of which could actually be attributed to an individual’s BAC. (See Figure 2.)

If this illustration reminds you of the familiar Bell-Curve, it is no coincidence. The information obtained from a measurement, which we call its result, is actually a probability distribution that characterizes our knowledge of the measured quantity.5 That we can never know the singular true value of the thing being measured is due to many factors, including “measurement error” and imperfect information concerning the measuring system and thing to be measured.

Measurement uncertainty “reflects the lack of exact knowledge of the value of the measurand.”6 It provides a quantitative statement characterizing the dispersion of values that can actually and “reasonably be attributed to the measurand.”7 It is well recognized that “the result of a measurement is only an approximation or estimate of the value of the specific quantity sub­ject to measurement and thus the result is complete only when accompanied by a quantitative statement of its uncertainty.”8 For example, “[n]umerical data reported in a scientific paper include not just a single value (point estimate) but also a range of plausible values (e.g., a confidence interval, or interval of uncertainty).”9

The most common way of expressing measurement uncertainty is as a coverage interval. It consists of range of values that can be attributed to the measurand as well as a level of confidence, probability, that the “true” value is contained within that range. Assuming a measured value of y and an expanded uncertainty U determined to have a 95 percent likelihood of containing the true value of a measurand, a complete measurement result X and the accompanying coverage interval would be expressed as follows:

Measurement Result = Value ± Uncertainty

X = y ± U (95%)

Coverage Interval

y UX y + U

Returning to the example of a breath test result of 0.080, then, and assuming an uncertainty of ±0.010 with a 95 percent level of confidence, the right and wrong way to conceive of and report the result of the BAC measurement is shown in Figure 3.

Thus, despite the fact that the value reported is a 0.080, all we can really say is that the values that can actually be attributed to the BAC in question range from .070 to .090 with a 95 per­cent level of confidence. This applies to all forensic measurements. Whether it’s measuring the level of blood alcohol in an individual, the heroin content of a sample, or any other quantity subject to measurement, the quantities of interest can be determined “only within a confidence interval of possible values.”10

Although there are different approaches for determining uncertainty,11 the same general principles and tools utilized are applicable to all measurements.12 First, all sources of uncertainty which may affect the use to which the result is put must be taken into account.13 A common way to document sources of measurement uncertainty, as well as their relationship to each other and the final result, is a cause and effect diagram. (See Figure 4.)

Once the relevant sources of uncertainty have been identified, the amount of uncertainty contributed by each must be determined.14 These values are then added together to yield the combined uncertainty, μc.15 Multiplying the combined uncertainty by an appropriate coverage factor, k, generates the expanded uncertainty, U = kμc, discussed above.16 This information is commonly documented in an uncertainty budget.17 (See Figure 5.)

The coverage factor, shown in Figure 6, is important because it determines how large the coverage interval will be and the level of confidence associated with it. The actual level of confidence associated with a given a coverage factor depends upon the probability distribution associated with our measurement. For most real world situations, the underlying distribution will be approximately normal18 so that k = 2 yields a level of confidence of approximately 95 percent and k = 2.576 gives a level of confidence of approximately 99 percent.

Coverage Interval19

y kμc X y + kμc

One important thing to note is that the uncertainty associated with a measurement is likely to differ when the measurement comes from two different sources. Accordingly, even where two measurements from distinct entities report identical values, the results may have very different meanings. For example, assume that two individuals submit to a breath test but on different breath test machines, and that each test yields a value of 0.095.20 Given that the uncertainties associated with each test are likely different, the values reported may give a clear indication that one of these individual’s BAC is over a 0.08 while revealing that the values that could actually and reasonably be attributed to the other’s BAC include those under the per se threshold. (See Figure 7.)

Here, identical test values but with different uncertainties yield different results21 and different interpretations. Depending on which circumstance applies, a jury may come to a very different conclusion. Clearly, “considering or not the uncertainty of a critical result can make the difference between acquittal and a guilty sentence.”22 Again, the same thing applies to all measurements, not just those pertaining to forensic alcohol analysis.

Knowledge of the uncertainty associated with measurement results is essential to the interpretation of the results. Without quantitative assessments of uncertainty, it is impossible to decide whether observed differences between results reflect more than experimental variability, whether test items comply with specifications, or whether laws based on limits have been broken. Without information on uncertainty, there is a risk of misinterpretation of results. Incorrect decisions taken on such a basis may result in unnecessary expenditure in industry, incorrect prosecution in law, or adverse health or social consequences.23

Measurement uncertainty is “fundamental to the interpretation and reporting of results.”24 Absent a statement of uncertainty, a result “lacks worth [and] credibility”25 and may be considered “meaningless.”26 In particular, “[a]ll results for every forensic science method should indicate the uncertainty in the measurements that are made.”27 When the result of a forensic measurement is reported simply as “‘a number,’ it does not reflect the accuracy of the measurement and cannot be properly interpreted.”28 “Estimating and reporting measurement uncertainty with the number completes the picture and allows us to properly use the result to make reliable and defensible decisions.”29

Some Answers

So what happened in those critical 10 minutes to change Mr. Gullberg’s opinion? Well, when he was initially presented with the “results” of the breath test in question, they were incomplete as they did not include any information concerning their uncertainty. (See Figure 8.) As we have seen, the picture created by such incomplete results is rather simplistic. (See Figure 9.)

Without more information, the breath test ticket clearly seems to communicate that the BAC of the individual in question exceeded the legal limit.

It was only after Mr. Gullberg had declared that he could conclude that this individual’s BAC exceeded a 0.080 beyond a reasonable doubt that he was provided with the test’s uncertainty. To a 99 percent level of confidence, the coverage interval was defined as 0.0731 ↔ 0.0877. That means that the values which could actually and reasonably be attributed to the BAC in question ranged from 0.0731 to 0.0877 with a 99 percent level of confidence. This creates a very different picture indeed.

In fact, by visual inspection alone we can determine that it is almost as likely that this individual’s actual BAC is under the legal limit as it is over. (See Figures 10 and 11.)

And given the coverage interval, Mr. Gullberg was easily able to confirm that the likelihood that this individual’s true BAC was under a 0.080 was 44 percent.30 To understand how this could be determined from the coverage interval, remember that our test result, and hence the coverage interval itself, is characterized by a Gaussian probability distribution, i.e., the Bell Curve. (See Figure 12.)

If the total area under the Bell Curve is defined so as to equal 1, the probability that the result lies within any range of values is simply given by the area under the curve contained within that range. Hence, the probability that this particular BAC was actually less than the legal limit is given by the area under the curve within the range from 0.0 to 0.079. (See Figure 13.)

At this point it should be recognized that the inclusion of uncertainty is not a “get out of jail free” card for those charged with DUI or any other crime. Just as the uncertainty may demonstrate a high likelihood that an individual with test values above the legal limit is actually below that limit, it can go the other way as well. It may show that there is a high likelihood that an individual with test values below the limit is actually above that limit. In general, the uncertainty favors neither party. It simply facilitates the discovery of truth by enabling proper interpretation of the evidence. Moreover, except in those cases where the evidence of guilt consists solely of a measurement result, measurement uncertainty does not dictate a particular outcome. Although necessary for the proper interpretation of a measurement result, it is simply another piece of the evidence for the jury to consider and weigh with the rest of the evidence in arriving at a verdict.

Rod Gullberg had not lied. The wrong values were not printed on the breath test ticket. There was nothing wrong with the test. Gullberg simply had not been provided sufficient information upon which to base a reliable and defensible opinion. State Toxicologist Fiona Couper and Quality Assurance Manager Jason Sklerov faced similar lines of questions. Predictably, they were also unable to properly interpret the State’s breath test results absent information concerning each test’s measurement uncertainty. Each of the state of Washington’s top three experts had been asked to interpret the results of breath tests obtained by their own program. And each was unable to do so absent information concerning each test’s uncertainty.

Uncertainty in the Quest for Truth and Justice

The aforementioned testimony was obtained during a week-long evidentiary hearing before a panel of three King County District Court judges.31 The primary subject of the hearings was whether the State could offer breath test results as evidence in prosecutions for DUI without providing both the defendant and jury the uncertainty associated with those results.

Six months earlier, a similar question was raised before Commissioner Paul Moon of the Snohomish County District Court with respect to the admissibility of a blood test result absent its uncertainty. The commissioner found the blood test inadmissible under Washington Rules of Evidence 702 and 403. With respect to the first evidentiary provision, the Court found the following:

If an expert testifies that a particular blood alcohol content measurement is value A, without stating a confidence level, it is this court’s opinion that the evidence is being represented as an exact value to the trier of fact . . . [and] that presenting to the trier of fact the result of a blood test as an exact numerical value without stating a confidence level, is not generally acceptable in the scientific community and misrepresents the facts to the trier of fact. . . . [T]his court holds that the result of the blood test in this case is not admissible under ER 702 in the absence of a scientifically determined confidence level because it misrepresents the facts and therefore cannot be helpful to the trier of fact.32

Addressing Evidentiary Rule 403, the Court explained:

It has been this court’s experience since 1983 that juries it has presided over place heavy emphasis on the numerical value of blood alcohol tests. To allow the test value into evidence without stating a confidence level violates ER 403. The probative value of this evidence is substantially outweighed by its prejudicial value. Therefore this court holds that the result of the blood test in this case is not admissible under ER 403 in the absence of a scientifically determined confidence level.33

The prosecution chose not to present any witnesses at this earlier proceeding.34 With this as prologue, however, the prosecution presented testimony from the State’s three top breath test experts at the King County hearings.35 These experts proved of little benefit to the prosecution.

King County prosecutors36 were forced to acknowledge that their own experts were unable to properly interpret the breath test results presented, absent information concerning each test’s uncertainty. They also acknowledged that it was unlikely that the typical defendant or juror would fare any better and may be misled by such results as easily as the prosecution’s experts were. Nonetheless, the State argued that it had no duty to provide the uncertainty of breath test results to either the defendant or jury, and that the Court had no power to require it to do so. It maintained that even though it knew that its evidence was incomplete and subject to being misleading and misinterpreted when unaccompanied by measurement uncertainty, the justice system was intended to permit whatever results such evidence might engender—even if it meant that innocent citizens would be deprived of their liberty and guilty individuals set free as a result.

Washington prosecutors are not alone in this mindset. Although a few forensic labs properly account for uncertainty in the results they report, “most [forensic] reports do not discuss measurement uncertainties or confidence limits.”37 Yet it is exactly this type of incomplete and often misleading evidence that is offered by prosecutors around the country every day. What’s more alarming is that courts around the country permit this very evidence to form the basis for depriving citizens of their liberty on a daily basis as well. Such practices not only threaten individual liberty, but also strike at the integrity of the justice system itself by hindering its ultimate mission of determining the truth. As the King County Court noted:

A prosecutor is a participant in a system of criminal justice which is, by design, adversarial. Yet, a good prosecutor will never let the desire to “win” overcome his or her sense of justice. A trial court will follow precedent when it rules on matters before the court, but precedent will never be allowed to overcome the determination of a good judge to do justice in each and every case. What was trustworthy and reliable yesterday may not be today. As concepts of justice advance through each generation of police, criminal justice practitioners, attorneys, and judges, we aim to provide better justice than was provided by those before us. As concepts of science change, we also need to be ready to move forward with those new, better practices. Nor should the court allow an instrument or a machine to determine an element of a criminal offense—unless there are appropriate safeguards to ensure that the evidence provided by the machine is what it purports to be. It bears repeating that—these safeguards are foundational to our criminal justice system.38

In the end, what this issue boils down to is plain and simple truth. The defense in this hearing was not asking for something that would derail prosecutions or preclude convictions. It was simply asking the court to require the state to report the results of its forensic measurements in a complete and accurate manner so that both defendants and jurors could properly interpret that evidence and would not be misled by it. The court saw the issue the same way writing:

When a witness is sworn in, he or she most often swears to “tell the truth, the whole truth, and nothing but the truth.” In other words, a witness may make a statement that is true, as far as it goes. Yet there is often more information known to the witness, which if provided, would tend to change the impact of the information already provided. Such is the case when the State presents a breath-alcohol reading without revealing the whole truth about it. That whole truth, of course, is that the reading is only a “best estimate” of a defendant’s breath-alcohol content. The true measurement is always the measurement coupled with its uncertainty.39

The Court subsequently recognized that “a breath-alcohol measurement without a confidence interval is inherently misleading.”40

Neither the Lab nor the prosecution provided the court with any reason why uncertainty either was not or could not be provided with the result of every test.41 In Washington, the uncertainty of every breath test that will be conducted on an instrument over the course of a year can be determined in five minutes at the time of the instrument’s annual calibration using an excel spreadsheet. Thus, whether it’s one test, a hundred tests, a thousand, or tens of thousands, the uncertainty of all these tests together can be determined in five minutes, once a year, and then printed up in a table to be supplied to every defendant and jury along with the test results. Given the ease with which the uncertainty can be determined and supplied, one is left wondering why the state wouldn’t want to supply this information.

The Panel concluded that for breath test results to be admissible in prosecutions for DUI, both the defendant and jury must be provided with the uncertainty associated with those results. First, under principles of Due Process and the rules governing discovery, it stated:

[W]e now place the state on notice that every discovery packet supplied to defendants must contain the confidence interval for any breath-alcohol measurement the state intends to offer into evidence in that case. Should the state fail to comply with this discovery order, then upon objection, such breath-alcohol measurement will not be admitted at trial.42

Then, under Evidentiary Rule 702, the Court found:

Once a person is able to see a confidence interval along with a breath-alcohol measurement, it becomes clear that all breath-alcohol tests (without a confidence interval) are only presumptive tests. The presumption, of course, is that a breath-alcohol reading is the mean of two breath samples. This answer, however, is obviously incomplete. (Put another way, a breath-alcohol measurement without an uncertainty measurement does not tell the “whole truth.” RCW 5.28.020.) As discussed above, a breath test reading is only a “best estimate” of an individual’s breath-alcohol level. The determination of a confidence interval completes the evidence. Therefore, upon objection, a breath-alcohol measurement will not be admitted absent its uncertainty level, presented as a confidence interval.43

Thomas Bohan, immediate past president of the American Academy of Forensic Sciences, hailed the King County Court opinion as a landmark decision, engendering a huge advance toward rationality in our justice system and a victory for both forensic science and the pursuit of truth.

Conclusion

“The ultimate mission of the system upon which we rely to protect the liberty of the accused as well as the welfare of society is to ascertain the factual truth.”44 “Complete, competent, and impartial forensic-science investigations can be that ‘touchstone of truth’ in a judicial process that works to see that the guilty are punished and the innocent are exonerated.”45 Given the potential consequences to individuals and society alike, though, reliance upon forensic science “is not a matter to take lightly, nor to trust to luck.”46 Accordingly, “[i]n this age of science we must build legal foundations that are sound in science as well as in law.”47 This can be achieved “only by requiring scientific evidence to conform to the standards and criteria to which scientists themselves adhere.”48 If we are to follow this path, then we must understand that science can never tell us what is and is not true: “It is scientific only to say what is more likely and what is less likely.”49

Notes

1. National Academy of Sciences (NAS hereinafter), Strengthening Forensic Science in the United States: A Path Forward, 184 (2009).

2. All graphic illustrations were creates utilizing ProStat Software.

3. BIPM, Evaluation of measurement data—Guide to the expression of uncertainty in measurement (GUM), §3.1.2, Appendix D.4 (2008); Kirkup, An Introduction to Uncertainty in Measurement 33 (Cambridge University Press 2006); NIST, Guidelines for Evaluating and Expressing the Uncertainty of NIST Measurement Results, NIST TN 1297 § 2.1 (1994); Kristiansen, An Uncertainty Budget for the Measurement of Ethanol in Blood by Headspace Gas Chromatography, 28(6) J. Anal. Tox. 456 (2004).

4. BIPM, Evaluation of measurement data—Guide to the expression of uncertainty in measurement (GUM), § 5.2 (2008); BIPM, International Vocabulary of Metrology—Basic and General Concepts and Associated Terms (VIM), § 0.1 (2008); Ehrlich, Evolution of philosophy and description of measurement 12 Accred. Qual. Assur. 201, 208 (2007).

5. Estler, Measurement as Inference: Fundamental Ideas 48(2) Annals CIRP 611, 623 (1999).

6. BIPM, Evaluation of measurement data—Guide to the expression of uncertainty in measurement (GUM), § 3.3.1 (2008).

7. BIPM, Evaluation of measurement data—Guide to the expression of uncertainty in measurement (GUM), § 2.2.3 (2008); BIPM, International Vocabulary of Metrology—Basic and General Concepts and Associated Terms (VIM), §2.26 (2008); EURACHEM, Quantifying Uncertainty in Analytical Measurement CG-4, § 2.1.1 (2000); Hofmann, Common Sources of Error in Measurement, Handbook Of Measuring System Design V.1, p. 289, 293 (Sydenham & Thorn ed., 2005).

8. NIST, Guidelines for Evaluating and Expressing the Uncertainty of NIST Measurement Results, NIST TN 1297 § 2.1 (1994); JCGM, Evaluation of measurement data—Guide to the expression of uncertainty in measurement (GUM), § 3.1.2 (2008).

9. NAS, Strengthening Forensic Science in the United States: A Path Forward, 116 (2009).

10. NAS, Strengthening Forensic Science in the United States: A Path Forward, 116–117 (2009).

11. These include the top-down, bottom-up, and total-error approaches. EURACHEM, Measurement uncertainty arising from sampling: A guide to methods and approaches §§ 6.1, 9.1.1, 10.1.1, 12.1 (2007); Gullberg, Statistical Applications in Forensic Toxicology, Medical-Legal Aspects of Alcohol, p. 490 (James Garriott ed., 5th ed. 2009).

12. BIPM, Evaluation of measurement data—Guide to the expression of uncertainty in measurement (GUM) (2008); EURACHEM, Measurement uncertainty arising from sampling: A guide to methods and ap­proaches §§ 6.1, 9.1.1, 10.1.1, 12.1 (2007); ISO, General requirements for the competence of testing and calibration laboratories, ISO 17025 § 5.4.6.3 Note 3 (2005); NIST Guidelines for Evaluating and Expressing the Uncertainty of NIST Measurement Results, NIST TN 1297 §§ 1.2, 1.3 (1994); EURACHEM, Quantifying Uncertainty in Analytical Measurement CG-4, § 1.1 (2000); A2LA, Guide for Estimation of Measurement Uncertainty in Testing, § 1.0 (2002); UKAS, The Expression of Uncertainty and Confidence in Measurement, M3003 (2007); ILAC Introducing the Concept of Uncertainty of Measurement in Testing in Association with the Application of the Standard ISO/IEC 17025, ILAC G-17 §5.2 (2002); NIST, National Voluntary Laboratory Accreditation Program: Procedures and General Requirements, NIST Handbook 150 § 5.4.6.3 (2006); NATA, Assessment of Uncertainties of Measurement for Calibration and Testing Laboratories 8 (2nd ed. 2002).

13. ISO, General requirements for the competence of testing and calibration laboratories, ISO 17025 § 5.4.6.3 (2005).

14. The Metrology Handbook 306 (Bucher Ed., 2004).

15. For reasons beyond the scope of this article, uncertainties don’t add like normal numbers. Instead, they are combined in the same manner standard deviations are combined: Each value is squared, the squares are added, and then the square root of the sum is determined. The result is the measurement’s combined uncertainty:

16. Expanded uncertainty:

U = kμc

With this information, a complete result and coverage interval can be expressed as:

Result:

X = y ± U (95%) = y ± kμc (95%)

Coverage interval:

yU X y + U ykμc X y + kμc

17. The Metrology Handbook 311–315 (Jay Bucher ed., ASQ Quality Press 2004).

18. This is due to the Central Limit Theorem. BIPM, Evaluation of measurement data—Guide to the expression of uncertainty in measurement (GUM), App. G.2 (2008); Kirkup, An Introduction to Uncertainty in Measurement 143–150 (Cambridge University Press 2006); Rabinovich, Measurement Errors and Uncertainties: Theory and Practice 68 (Springer 2005); Estler, Measurement as Inference: Fundamental Ideas 48(2) Annals CIRP 611, 623 (1999); Halaj, General Charicterization of Systematic and Stochastic Errors, Handbook of Measuring System Design V.1, p. 295, 297–8 (Sydenham & Thorn ed., 2005).

19. See endnote 15.

20. Example adapted from: Gullberg, Estimating the Measurement Uncertainty in Forensic Breath Alcohol Analysis, 11 Accred. Qual. Assur. 562, 562 (2006); Gullberg, Common Legal Challenges and Responses in Forensic Breath Alcohol determination, 16(2) Forens. Sci. Rev., 92, 93 (2004).

21. Remember, a test result consists of both the test value and its associated uncertainty.

22. Bich, Interdependence between measurement uncertainty and metrological traceability 14 Accred. Qual. Assur. 581, 581 (2009).

23. ISO, Guidance for the use of repeatability, reproducibility and trueness estimates in measurement uncertainty estimation, ISO/TS 21748 Draft Revision, v (2009); ISO, Guidance for the use of repeatability, reproducibility and trueness estimates in measurement uncertainty estimation, ISO/TS 21748, v (2004).

24. SWGDRUG, Recommendations, Part IV-C § 1.1 (5th Ed.—Jan. 2010).

25. NATA, Assessment of Uncertainties of Measurement for calibration & testing laboratories 8 (2002).

26. A2LA, Guide for Estimation of Measurement Uncertainty in Testing, § 1.0 (2002).

27. NAS, Strengthening Forensic Science in the United States: A Path Forward, 184 (2009).

28. Bono, ISO/IEC 17025:2005: Section 5.4.6: Estimation of Uncertainty—Is Anyone Certain What This Means? p.7, Presentation at the 61st Annual Meeting of the American Academy of Forensic Sciences (2/17/2009)(emphasis added).

29. Bono, ISO/IEC 17025:2005: Section 5.4.6: Estimation of Uncertainty—Is Anyone Certain What This Means? p.7, Presentation at the 61st Annual Meeting of the American Academy of Forensic Sciences (2/17/2009).

30. The determination is based upon the assumption that the underlying distribution is Gaussian (i.e., normal, a bell curve).

The use of this particular example should not be taken as an indication that the uncertainty can only impact the outcome at values very near a critical limit. The evidence showed that when uncertainty was included, results with mean values of 0.030 greater than a particular limit could actually be shown to include values below the limit in question. Moreover, these values were shown to be conservative so that even results in excess of these may be found to include values below a particular limit contained within their associated coverage interval.

31. King County District Court judges David Steiner, Darrell Phillipson, and Mark Chow.

32. State v. Weimer, No. 7036A-09D at 3 (Snohomish Co. Dist. Ct. March 23, 2010). Decision available at: <http://www.waduicenter.com/wp-content/uploads/2010/04/Snohomish-County-District-Court-Cascade-Decision-Moon-032710.pdf>.

33. State v. Weimer, No. 7036A-09D at 4 (Snohomish Co. Dist. Ct. March 23, 2010).

34. The only testimony was that of University of Washington Metrologist Dr. Ashley Emery.

35. The State’s experts were the former head of the Washington State Breath Test Section Rod Gullberg, State Toxicologist Fiona Couper, and State Toxicology Lab Quality Assurance Manager Jason Sklerov.

36. The King County Prosecutor’s Office is headed by prosecutor Dan Satterberg.

37. NAS, Strengthening Forensic Science in the United States: A Path Forward, 186 (2009).

38. State v. Fausto, No. C076949 at 22–23 (King Co. Dist. Ct. Sept. 21, 2010). Decision available at: <http://www.waduicenter.com/wp-content/uploads/2010/09/Ahmach-II-3-Judge-Panel-Ruling-012210
.pdf>.

39. State v. Fausto, No. C076949 at 23 (King Co. Dist. Ct. Sept. 21, 2010).

40. State v. Fausto, No. C076949 at 28 (King Co. Dist. Ct. Sept. 21, 2010).

41. State v. Fausto, No. C076949 at 17 (King Co. Dist. Ct. Sept. 21, 2010).

42. State v. Fausto, No. C076949 at 26 (King Co. Dist. Ct. Sept. 21, 2010).

43. State v. Fausto, No. C076949 at 28–29 (King Co. Dist. Ct. Sept. 21, 2010).

44. Commonwealth of Northern Mariana Islands v. Bowie, 243 F.3d 1109, 1114 (9th Cir. 2001).

45. Peterson, The Evolution of Forensic Science: Progress Amid the Pitfalls 36, Stetson Law Rev. 621, 660 (2007).

46. P. Kirk, The Ontogeny of Criminalistics, 54 J. Crim. Law & Police Science 235, 238 (1963).

47. Justice Stephen Breyer in Reference Manual on Scientific Evidence 4–8 (2nd ed. 2000).

48. Black, Evolving Legal Standards for the Admissibility of Scientific Evidence, 239 Science 1508, 1512 (1988).

49. Feynman, The Character of Physical Law 165–166 (MIT Press 1965).

Copyright © Ted Vosk. This article first appeared in the November 2010 issue of The Champion.

Ted Vosk is a criminal defense attorney and legal/forensic con­sultant. A Goldwater Scholar, he graduated with honors in Theoretical Physics and Mathematics from Eastern Michigan University. Thereafter, he studied in the PhD program for physics at Cornell University before earning a JD from Harvard Law School. A member of the American Academy of Forensic Sciences and Mensa, he has written, broadcast, presented, and taught around the country on topics ranging from string theory to the doctrine of constitutional separation of powers. He has been part of the most significant DUI cases in Washington state over the past decade and led the fight against substandard science in the State’s Toxicology Lab, which resulted in suppression of evidence statewide and significant scientific reforms in the lab. For this work, he received the President’s Award from the Washington Association of Criminal Defense Lawyers and the Certificate of Distinction from the Washington Foundation for Criminal Justice. He lives in Washington with his wife, Kris.

2011 Texas Criminal Trial College Faculty

Deans

Lydia Clay-Jackson, Conroe
Tim Evans, Fort Worth

Faculty

Susan E. Anderson, Dallas
Samuel E. Bassett, Austin
Stephen W. Brittain, Austin
Brent John Cahill, Navasota
John A. Convery, San Antonio
Mark G. Daniel, Fort Worth
Emily Muñoz Detoto, Houston
Danny Easterling, Houston
Lance Evans, Fort Worth
Michael C. Gross, San Antonio
Ronald P. Guyer, San Antonio
H. F. “Rick” Hagen, Denton
Keith S. Hampton, Austin
Emmett Harris, Uvalde
Michael Head, Athens
Michael P. Heiskell, Fort Worth
Jo Ellen Hewins, Corpus Christi
Daniel W. Hurley, Lubbock
Craig Jett, Dallas
Robert Alton Jones, Houston
Jeff Kearney, Fort Worth
Joetta Keene, Arlington
Vivian R. King, Houston
Constance A. Luedicke, Corpus Christi
Bobby D. Mims, Tyler
Tyrone C. Moncriffe, Houston
David E. Moore, Longview
David P. O’Neil, Huntsville
Kelly Pace, Tyler
Tom Pappas, Dallas
Don Richard, Big Spring
Grant M. Scheiner, Houston
Stanley G. Schneider, Houston
Richard J. Segura Jr., Austin
Pheobe S. Smith, Houston
Mark S. Snodgrass, Lubbock
Ronald T. Spriggs, Amarillo
Greg Westfall, Arlington
Randy Wilson, Abilene
Russell Wilson II, Dallas
Wm. Reagan Wynn, Fort Worth
Terri R. Zimmermann, Houston
Jack B. Zimmermann, Houston

2011 Texas Criminal Trial College Students

Chad Christopher Allman, Forth Worth
Andrew Anderson, Lubbock
Joshua Andor, McKinney
Joseph D. Batson, Amarillo
Eric Joe Benavides, Houston
Terry Bentley Hill, Dallas
John Edward Bonilla, Corpus Christi
Katherine L. Borras, Dallas
Tiffany N. Branson, Weatherford
Karen Bretzke, Tyler
Mark R. Briley, Abilene
Nancy Bunin, Houston
Joan Cain, Sugar Land
Melisa Canales, Edinburg
Cynthia Cantu-Del Bosque, Edinburg
Thomas Daniel Carter IV, El Paso
Aaron R. Carter, Lubbock
Adrian Castillo, Amarillo
Jose Ceja, Houston
Kimberly C. Clark, Huntsville
Cheryl A. Cooper-Sammons, Longview
Robert R. Cowie, Lubbock
Michael J. Crawford, Kerens
Jeremy Crew, Lufkin
Gabriel De Vega, San Antonio
Jennifer M. Ebrom, New Braunfels
Amber D. F. Elliott, Austin
Cynthia A. Fitch, Haltom City
Lindsay Gilland, Fort Worth
Stefanie M. Gonzalez, Lubbock
Coretta Graham, Corpus Christi
Lisa Greenberg, Corpus Christi
Francisco Guerrero II, Edinburg
Angie Emery Hadley, De Leon
Christie Lee Hancock-Jones, Livingston
Ryan Hardy, Fort Worth
Joshua J. Herrera, El Paso
F. Brice Hersom, Spring
Heather Kay Hines, Seguin
Martin Hunt, Nacogdoches
Paul Damian Hyde, Granbury
Robert Kersey, Granbury
Keaton D. Kirkwood, Liberty
Charles M. Kroscher, Longview
Jessica A. Kroscher, Longview
Michael C. Lactson, Houston
Randy L. Langford, Austin
Tot Kim Le, Houston
David Allen Levine, San Antonio
Larry McCotter, Conroe
Richard McCracken, Fort Worth
Carolyn F. McDaniel, Richmond
Larry Prater McDougal Jr., Richmond
Ira Miller, Corpus Christi
Paula Maria Miller, Houston
Dean Miyazono, Corinth
Sarah Molzow, Lubbock
Baharan Muse, Huntsville
Joshua Peacock, Hurst
Shane Phelps, Bryan
Alberto G. Salceda, Houston
Dave Sanchez Jr., San Antonio
William Lloyd Savoie, Houston
Sergio J. Selvera, Houston
Michel LaNett Simer, Axtell
Joseph A. Sindon, Pearsall
J. Ricardo Soliz, Houston
Joshua Cody Spencer, El Paso
Courtney Griffin Stamper, Houston
Sara Stapleton, Brownsville
John D. Talley, Amarillo
Donald R. Taylor, Jr., Brownwood
Russell Thorum, Dumas
Courtney Tracy, Newton
Michelle Simpson Tuegel, Waco
Daniel Vargas, Edinburg
Joel Vazquez, Beaumont
John E. Wells III, Livingston
Andrew A. Wright, Houston
Robin W. Wright, Highland Village

Reactive Attachment Disorder – By John Niland

This article addresses the mental health issue of Reactive Attachment Disorder a defense counsel might encounter when representing the person charged with a serious crime, particularly a capital crime. Reactive Attachment Disorder is a major personality disorder and a condition that impacts many of those in the criminal justice system. Suggestions will include how to challenge a diagnosis that is damaging to your client, how to develop mental health evidence and present that evidence effectively.

 

Prosecutors like to categorize symptoms as personality disorders because such disorders are more likely to put the client in the worst possible light and scare the jury. While some personality disorders will “age out”1 such that the disorder will become less of an influence on behavior, there is a belief that a personality disorder cannot be treated. As noted in the DSM, counsel may be able to avoid the stigma of an Axis II personality disorder if the pattern of behavior is better accounted for as a manifestation or consequence of another mental disorder or the symptoms are due to the direct physiological effects of a substance (e.g., drug abuse or medication) or a general medical condition such as head trauma.2 In other words, counsel will need to learn as much as possible about the client’s bio-psycho-social history so that the explanation for the behavior is something other than a personality disorder.

The Major Personality Disorders

Major Personality Disorders are set out in the DSM.3 These are characterized as “an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual’s culture, is pervasive and inflexible; has an onset in adolescence or early adulthood, is stable over time, and leads to distress or impairment.” This definition seems to suggest that anything the client has been doing for a long time that the mental health professional finds to be irritating is a personality disorder.

The DSM lists the ten disorders as: (1) Paranoid Personality Disorder; (2) Schizoid Personality Disorder; (3) Schizotypal Personality Disorder; (4) Antisocial Personality Disorder; (5) Bor­derline Personality Disorder; (6) Histrionic Personality Dis­order; (7) Narcissistic Personality Disorder; (8) Avoidant Personality Disorder; (9) Dependent Personality Disorder; (10) Obsessive-Compulsive Personality Disorder, and a “catch all” “Personality Disorder Not Otherwise Specified” (NOS). This essentially means that the client has been irritating for a long time, but science does not know what to call it.

These ten specific disorders are grouped into three clusters based on “descriptive similarities.” These clusters include Cluster A, which includes the Paranoid, Schizoid, and Schizotypal Personality Disorders. Cluster B includes the Antisocial, Borderline, Histrionic, and Narcissistic Personality Disorders. Cluster C includes the Avoidant, Dependant, and Obsessive-Compulsive Personality Disorders. The writer believes that the Cluster A and B disorders are those that the defense will most often encounter in the criminal justice system. Those disorders falling into the Cluster B category are likely the most challenging for defense counsel. Accordingly, this article will focus on the disorders within that cluster and will discuss methods to challenge a prejudicial diagnosis that has no basis in fact, or to humanize a diagnosis that is accurate.

As the behavior that underlies the disorder is required to be “enduring,” the diagnosis of Personality Disorders requires an evaluation of the client’s long-term patterns of functioning back to childhood. While the DSM suggests says it is possible to make the diagnosis after one interview, “it is often necessary to conduct more than one interview and to space these over time.”4 The importance of a thorough psycho-social history in making an accurate diagnosis of personality and mental disorders is discussed later in this article.

Reactive Attachment Disorder

The major personality disorders will certainly be seen in many clients charged with serious crimes. Counsel must do everything possible to challenge the unwarranted diagnosis attributed to the client. However, there will be situations where no matter how hard the defense challenges the diagnosis of APD, it may be an accurate one. How can we humanize the client that the state will describe to the jury as a remorseless criminal without a conscience?

The prosecution will often tell the jury that the client “had a choice,” and that his choice was to commit a violent crime. One way to humanize the client in this situation is to acknowledge that certain choices were in fact made by the client. However, those conditions and life experiences that shaped the client and made him who he was at the time of the crime were more than likely made by genetics, parents, caregivers, siblings, and others over whom the client had no control. The explanation for the client’s behavior may be found in the condition known as Reactive Attachment Disorder, or simply Attachment Disorder.

This disorder is briefly described in the DSM-IV-TR.5 The Diagnostic Features state that “[T]he essential feature of Reactive Attachment Disorder is markedly disturbed and developmentally inappropriate social relatedness in most contexts that begins before age 5 years and is associated with grossly pathological care.”6 Unfortunately, the Diagnostic Features as outlined by the DSM are not adequate to alert the criminal defense practitioner to the significance of this disorder. Reactive Attachment Disorder is another example of the expression that is often heard “Childhood matters.” How our clients are treated before, during, and after birth has a significant impact on the development of their brains and personalities. “It is the experiences of childhood that express the potential of the brain.” Bruce D. Perry, M.D., www.childtrauma.org.

During the first 36 months of life, humans learn to trust others and feel a sense of security in their world. This feeling will customarily arise from the bonding that the infant has with the caregiver (usually the mother) and the love that the caregiver feels and exhibits for the child. This interaction tells the infant that he or she is safe and the caregivers can be trusted to meet the child’s needs when they arise. When the infant expresses a need (usually by crying), the caregiver satisfies the need (feeding, holding, diaper-changing), and a sense of trust and reliance (healthy attachment) is created by that interaction. As the needs of the child are routinely met, the health attachment becomes a secure attachment and the infant’s development can take on a normal course. Kate Allen, Ph.D., “Attachment Disorder,” Capital Mitigation Seminar, Center for American and International Law, (August 26, 2006).

However, when the needs are not met, often because of parental abuse or neglect, the necessary attachment to the caregiver is not formed and the message to the child is that he (or she) is on his own, he cannot rely on anyone else to meet his needs, he can trust only himself, and he must be in control in order to meet the needs. The sense of trust is replaced by anger and rage, and his very survival depends on his ability to control and meet his needs.

Some of the causes of attachment disorder include:

  • Neglect;
  • Abuse;
  • Separation from the primary caregiver;
  • Changes in the primary caregiver;
  • Frequent moves and/or placements;
  • Traumatic Experiences;
  • Maternal depression;
  • Maternal addiction to drugs or alcohol;
  • Undiagnosed, painful illness such as colic, ear infections, etc.
  • Lack of attunement between mother and child;
  • Young or inexperienced mother with poor parenting skills

Counsel has likely represented clients who could not trust the trial team, exhibited an unreasonable level of anger, was hyper-vigilant to minor or misperceived threats, had difficulty telling the truth even when the truth would serve them better, appeared to have no conscience about their criminal behavior and no empathy for those who were harmed. Reactive Attachment Disorder may provide an explanation, and while it is not termed a “Major Personality Disorder,” it can be the cause of an antisocial personality, the borderline personality, or the narcissistic personality. These are among the most difficult of clients to represent. In order to fully understand who the client is, counsel must seek a thorough bio-psycho-social history developed by a competent mitigation specialist.

Counsel might ask, “Why are those charged in the criminal justice system so often victims of attachment disorder?” A bulletin from the Office of Juvenile Justice and Delinquency Prevention’s Study Group on Serious and Violent Juvenile Offenders devoted two years to analyzing the research on risk and protective factors for serious and violent juvenile offending, including predictor of juvenile violence derived from the findings of long-term studies. Hawkins, J.D., et al. (April 2000), “Predictors of Youth Violence,” Juvenile Justice Bulletin, U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention. The predictors of juvenile violence were arranged in five domains: individual, family, school, peer-related, and community and neighborhood factors. It has been shown that attachment disorder is most commonly caused by abuse, neglect, or disinterest by the caregiver, usually the mother.

The family sector risk factors are:

  • Parental criminality;
  • Child maltreatment;
  • Poor family management practices;
  • Low levels of parental involvement;
  • Poor family bonding and family conflict;
  • Parental attitudes favorable to substance use and violence;
  • Parent-Child separation.

If one were to compare the common causes of Reactive Attachment Disorder with those Family Factors identified in the OJJDP Bulletin, the similarities are striking.

Performing the thorough bio-psycho-social history that will allow the defense to identify conditions that might lead to a conclusion that the client suffers from Reactive Attachment Disorder is critical. However, realizing that the disorder can form the basis of those personality disorders that can be so damaging, it is important for counsel to again focus on the concept that the diagnosis is not what is important. What is important is an explanation for the behavior and the behavior can be explained through the genetics, pre-natal, peri-natal, and life experiences of the client.

Notes

1. American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revised (Washington, D.C), at 704.

2. DSM-IV-TR at 688–689.

3. Id. at 685.

4. Id. at 686. DSM-IV-TR at 127–130.

5. DSM-IV 313.89.

A 1971 UT Law School graduate, John initially practiced in El Paso, where he was President of the El Paso Young Lawyers Association and chosen Outstanding Young Lawyer. He served as a member of the Board of Directors of the Texas Young Lawyers and past Director of the Texas Criminal Defense Lawyers Association. From 1992 until February of 2000, John practiced law in Kentucky, during which time he was contract manager for Kentucky’s Department of Public Advocacy (DPA). He also served as directing attorney of the Warren County public defender office and was one of five regional managers for DPA. The recipient of countless awards for his work, John has been Director of the Texas Defender Service (TDS) Capital Trial Project since May 2000. There he consults with, and provides training to, lawyers across the country on death penalty issues.

Tell Me a Story: 60 Minutes-Style Opening Statement – By Doug Murphy

After the jury is selected, trial lawyers must began telling their client’s story in opening statement. During voir dire, lawyers ask prospective jurors questions to see which jurors will be the most and least receptive to our trial theme and our client’s story. Those questions also help plant the seeds of our trial theme and client’s story early on. A University of Chicago study concluded that 80% of jurors decide a case after opening statements.

Legendary trial lawyer Gerry Spence believes you win your case in voir dire and opening statement. My experience leads me to the same conclusion. One of the main challenges we face as lawyers is jurors rushing to judgment faster than some police officers who arrest our clients. Despite understanding how quickly jurors make up their minds with their first impression, many lawyers dedicate the least amount of trial preparation towards constructing a persuasive opening statement, and instead focus more on cross-examination and closing argument. Most of us have been guilty of this practice too.

Good lawyers know that there is no unimportant phase of a bench or jury trial. In terms of jurors and/or judges forming early opinions, voir dire and opening statements are the best op­por­tunity to jump out of the gate with the jury on your side before jurors hear any evidence. Legendary trial lawyer Michael Tigar once joked that the lawyer’s job is to talk, and the jurors job is to listen—and the key is to make sure that the jurors do not finish listening before the lawyer stops talking. This illustrates the point that lawyers need to quickly score points so that the jurors will be receptive to our side of the story and see the evidence from our perspective, or our vantage point. As the old saying goes, there are two sides to every pancake.

Trial lawyers and television news producers and television reporters share a similar dilemma—our audiences have short attention spans, and we have limited time to get information across. All the great trial lawyers know how to tell a story. Trial lawyers can learn a lot from television news producers when it comes to telling a story. The pioneer of how modern television news reporting is credited to the late Don Hewitt, the creator in 1968 of the most popular television show in history: 60 Minutes.

The format of 60 Minutes is three investigative stories of no more than 15 minutes each (the rest of the time allotment is for commercials and Andy Rooney’s musings), which copied the similar approach of magazine journalism. Don Hewitt had a simple four-word mandate: “Tell me a story!” Mr. Hewitt did not want his journalists citing and reporting facts as if they were competing in a debate; he wanted to hear a story about how people’s lives were affected by the facts they were reporting. This deceptively simple motto sometimes becomes an incredibly difficult task in breaking down a complicated legal and factual scenario into a story that can be easily understood by either a jury, or a television audience, in a short period of time.

Television reporters utilize many of the same concepts in storytelling that we do as trial lawyers to captivate our audience.

Theme

The first step in telling the story is developing the theme of the trial. There is an old maxim that if you allow your client to be the one on trial, your client is going to lose. Use of a persuasive theme in opening statement can re-frame the issue and take the focus off your client and damaging evidence the jury will later see and hear. Having a power statement to identify your theme is helpful so that when the jurors finally see and hear the evidence, they will give less or no weight to that evidence due to your theme in your opening statement because of the unfairness, improper administration, medical history, injury, etc. The theme can help empower the jury to see the evidence in the correct light and make the right decision. It is true that a sense of injustice drives people, but empowerment gives them the will to bring justice to your client. The theme helps also provide the jury with understanding, thus empowering jurors to want to help your client. If the DWI case involves an accident, your power statement could simply be that “this is an accident case, not a DWI case.” The theme needs to be simple to be understood. It needs to be short, just like a “sound bite” a reporter leads with to begin a news story.

In terms of trial preparation and creating the trial theme, I prefer to begin my trial preparation backwards. I start first with preparing my closing arguments I intend to make based upon the evidence. My theme is based on these arguments. I then prepare my cross-examination with the intent of repetitiously weaving my theme throughout my questions. My opening statement comprises the power statement, theory, and client’s story to enable the jury to assemble the pieces of the puzzle they receive from our vantage point.

Let the Jury Know How Much You
Care About Your Client in Your Delivery

The courtroom is the theater where a trial lawyer performs. The manner in which a lawyer delivers his/her opening statement will affect the jurors’ attitudes toward the information to be conveyed. Jurors will rarely, if ever, be impressed with how smart a lawyer is, but jurors can be, and often are, impressed with how much a lawyer cares. The classic gesture of just putting your hands on your client’s shoulders during trial is not enough. It has to be real, not staged. I once heard a funny cigar-chomping cowboy named Kinky Friedman say: “Money can buy you a fine dog, but only love will make its tail wag.”

If a lawyer does not care for his client and demonstrate it to a jury, how can he/she expect the jury to care about the client? Jurors can see right through lawyers who are not genuine. Credibility and confidence are key factors in your delivery. Do not try to imitate another lawyer you respect and admire. Be your­self. Be professional. One of the best ways to be a persuasive lawyer is to not talk like a lawyer. Speak from your heart, not your lawyer brain. Speak with confidence, use good eye contact and pauses when speaking with—not to—the jury. Cicero taught that what reaches the mind also moves the heart. Use passion, reason, and commonsense logic. Communicate your passion and logic in words the jury will understand. Above all, humanize your client by referring to him/her by first name and last name throughout the trial (not “my client”), and tell their story so that they know your client as someone they can relate to.

A powerful and persuasive opening statement does not just provide a road map for the jury before they see and hear the evidence; your opening also sets up your closing argument. In this regard, consider using rhetorical questions. “Is that fair?” you ask after describing the scene where the officer had your client perform roadside gymnastics, or describe the drill sergeant-like manner the officer treated your client. “Is that how we would want our loved one to be treated?” Rhetorical questions suggest the answer and your arguments without you having to make them. They also plant the seed of unfairness—i.e., reasonable doubt. Above all, you might be surprised by the head nods, or even verbal responses, you might receive from jurors. Posing rhetorical questions to jurors is equally persuasive in closing arguments as well. They are also fun in cross-examination too.

Make Concessions

There are going to be unfavorable facts in every trial case. If there were no unfavorable facts, our clients would not need us. Do not run or hide from ugly facts. Embrace them up front. It is imperative that you disclose and concede certain unfavorable facts. The jury is going to hear about them anyway, so they might as well hear about them from you. If the prosecutor already dis­closed the facts, use those facts in your client’s story so that they are neutralized or mitigated, or at least presented from a different point of view. By disclosing them and mitigating them, you draw the sting and minimize the pain they cause to your case. You also gain credibility in the eyes of the jury. You cannot win every battle in a trial, but by conceding certain things or facts and focusing on other things and facts, you can put yourself in a credible position to win the war.

Things to Avoid in an Opening Statement

Never overstate, embellish, or exaggerate any fact or statement you make in your opening statement. Doing so will undermine your credibility and do irreparable damage. The trial could be over for you before it even begins. Your relationship with the jury is the same as your personal relationships—trust and credibility that are lost can never be regained. You will be deemed untrustworthy by jurors, and your arguments will be summarily rejected, even if they are meritorious arguments. A jury will not buy into your client’s story unless they trust you.

Never respond and answer the prosecution’s opening statement. Present your story, and let the jury understand the other side of the pancake.

Do not promise something that you cannot, or will not, deliver. Jurors will hold you accountable and responsible for most everything you say. One important exception is in telling your client’s background in opening. Do not tell the jury your client will testify and you will hear this and I will prove it to you—unless you intend to do just that. The client’s background needs to be introduced or prefaced with other facts you refer to in your opening statement, even if you don’t know whether your client will testify. Jurors are mostly forgiving of defense counsel who does not bring in evidence to prove the client’s background so long they are continually reminded that the State always has burden of proof. Understand the risk of presenting good information about your client in your opening without presenting evidence during trial and proceed with caution, or at the very least tactfully present the client’s background information. Choose your words carefully.

Never assume a burden of proof you do not have. Let the focus be on what the State has to prove.

Never tell jurors that what you say is not evidence. A lawyer who prefaces his opening statement with such a statement totally undermines the effectiveness of a good opening statement and shoots him/herself in the foot. Such a statement is also a waste of time and breath. Also, do not waste time talking about trial procedure. Leave that for the prosecutor and judge. If the prosecutor wants to bore the jury with talking about how a trial takes place, let it be. Focus on your client’s story, not the state’s allegations against your client. Focus on your theme: The officer rushed to judgment, or failed to thoroughly investigate, etc. If you allow the state to frame the issue and put your client on trial, you will likely lose. Having a theme with a story to back the theme will help the jury focus on the unfairness of how your client was treated, or whatever theme you determine. You want the jurors to view the evidence from your client’s perspective, not the state’s or the arresting officer’s perspective.

Avoid personal attacks on the prosecutor, police officers, and opposing witnesses. You can attack their arguments all day long without attacking them personally. Jurors will more easily believe an officer is mistaken than the officer is a liar. Even when I feel the evidence proves an officer is lying, I try to avoid calling the officer a liar because not all jurors may agree. You can infer the officer is lying by simply saying: “I know where I grew up we had a name for people like that, and I’m quite sure you do too.”

Primacy and Recency

Psychology and human experience tell us that a listener tends to remember the first and last words the listener hears. Jurors are no different. Jurors will tend to remember what is said to them first and last. Have a plan. What is it that you want the jurors to talk about in the jury room? Choose the first and last thing you want them to hear and communicate it to them in understandable terms. If you want them to focus on reasonable doubt, consider some of these approaches:

As I talked about at the beginning of this trial, the burden of proof is on the government to prove each and every element of the crime that is charged beyond a reasonable doubt. What is reasonable doubt? I expect the judge to tell you that it means what it sounds like: a doubt for which you can give a reason. As this list of reasons for doubt will show, the State has failed to meet their burden (then use a visual aid to list “reasons for doubt”).

Ladies and Gentlemen, I have tried my share of cases over the years, but I still can’t get over the butterflies I feel when I stand before a jury and am charged with speaking to you about the fate of Mr. Smith. I fear that some jurors might decide this case on how much they dislike drunk drivers rather than making sure that the State has presented enough evidence in this case to prove Mr. Smith is guilty beyond a reasonable doubt.

This is not a contest, there are no winners and losers. Surely the State of Texas comes out a winner when one of its citizens avoids a wrongful conviction. The officer told you that it’s not going to have an impact on his job if Mr. Smith is found not guilty. He told you that he arrested Mr. Smith on suspicion of driving under the influence. And that’s OK. The night of January 25th was the time to act on suspicion, today is the time to serve justice. The prosecutor will call in the next case for trial, she is going to go on doing her job, and Mr. Smith? Well, he’s been through quite a bit with being arrested and put on trial—he can go on with the rest of his life as you can go on with yours.

If you’re in the jury room and are having a hard time deciding this case, don’t fight it! You have already reached a conclusion. It is okay to say at that point, “my mind is unsatisfied.” That is the doubt of the law, and I expect the judge will instruct you that under those circumstances, it would be your duty to acquit the defendant and find him not guilty.

Use of Trilogies

Literature and history have taught us that there is a dramatic benefit to communicating in sets of three. Roger Dodd and Larry Pozner devote an entire chapter to “trilogies” in their Cross-Examination: Science and Techniques book that no trial lawyer should be without. Trilogy is a technique of finesse, not force. The power of trilogy stems from its content. Its form makes it memorable, and it is therefore a more likely topic of conversation in the jury room. Here are a few examples:

He walked normally, talked normally, and stood normally on the videotape.

Without a check for calibration with each test, this machine is inaccurate, unreliable, and unscientific.

I expect the judge to tell you that reasonable doubt may come from the evidence, a lack of evidence, or a conflict in the evidence. (Then consider using a chart where you can list facts in each category.)

If your minds are wavering, unsettled, or unsatisfied, then that is the doubt of the law, and in that event you should acquit the defendant.

You must start strong with your sound bite or power statement. You must also finish strong, tying your story back to your power statement and theme. Research by marketing experts determined that repetition sells cigarettes. Repetition—by way of using trilogies—also helps persuade a jury.

Visual Aids

We have become an increasingly visual society. A lawyer who takes the time to develop effective visual aids when it is time to advocate for his client will be light years ahead of his opponent. We form our opinions about the world around us based upon our senses. The more senses we can reach in closing argument, the better our chances are that our point will get across.

Some lawyers have attempted to re-create in the courtroom the experience of being stopped by the police and asked to perform field sobriety tests. The limits on re-creating any scene in a courtroom environment are limited only by the imagination (and, of course, the trial judge). We have found that creating reusable exhibits helps not only in communicating our point to the jurors, but also in helping us develop and organize our closing. When you are freed from your notepad and your preparation is centered around the use of exhibits, you are free to express more emotion, and to feel more confident that you will say everything that needs to be said.

Conclusion

The above ideas and suggestions successfully persuade jurors every week in courtrooms throughout America. These ideas also help captivate television audiences each and every day. It is my hope that these approaches will inspire criminal defense lawyers to apply their creative abilities as much to opening statement as they apply to other areas of a criminal trial. As trial lawyers, we must personally work on new and different ways of persuading a jury of finding reasonable doubt in our cases.

Credits: Special thanks and credit go to Mike Hawkins of Atlanta, Georgia, for his assistance and sharing his examples of primacy and recency, plus his use of trilogies and visual aids. Mike “Hawk” Hawkins is a gifted and persuasive storytelling trial lawyer. A regent with the National College for DUI Defense, Mike has been Board Certified by NCDD since 2001. He is certified to operate the Intoxilyzer 5000, and is a frequent lecturer on DUI issues in Georgia and across the country. He is AV-rated by Martindale Hubbell and has been named to the Best Lawyers in America, named a Georgia “Super Lawyer” in DUI Defense by his peers, and is one of “Georgia’s Best Lawyers,” named by the Atlanta Journal-Constitution. Hawkins presently serves as Vice-Chair of NACDL’s DUI Committee. Although “Hawk” roots for the Alabama Crimson Tide every weekend in the fall, deep down “Hawk” wants to be a Texan, as he is usually found barbecuing for his friends and family on those weekends.

Doug Murphy is a partner with Trichter & Murphy, P.C., based in Houston, Texas. Doug is a nationally recognized legal seminar lecturer and author of numerous published legal articles. Doug is a Regent with the National College for DUI Defense. He is a co-chair of the DWI program with the Texas Criminal Defense Lawyers Association (TCDLA), in addition to serving his second term on the Board of Directors. Doug is board certified in DUI/DWI Defense by the National College for DUI Defense, and is also board certified in criminal law by the Texas Board of Legal Specialization. Doug has been recognized as a Texas Super Lawyer Rising Star by Texas Monthly magazine every year since the recognition began in 2004, and as a Texas Super Lawyer in 2009. Doug was also recognized as a Top Lawyer for the People for being one of the best DWI lawyers in Texas by H-Texas magazine. Frequently sought after as a news commentator on DWI and other criminal law issues, Doug was referred to as the “Drinking Driver’s Best Friend” by the Houston Press.

Dealing with ICE Holds – By Fernando Dubove

You’re responding to a 2:00 a.m. jail call. Your client’s at the county jail charged with DWI, possession of marihuana, and unlawful carrying of a weapon. Luckily you’re able to get a reasonable bond set, BUT . . . by the time you get to the jail to post your client’s bond, immigration has placed a detainer. Your case is shot. Or is it? And your client is going to be deported. Or is he?

 

Two years ago, Immigration and Customs Enforcement (ICE), the immigration enforcement division of the Department of Homeland Security, began emphasizing the removal of criminal aliens from the United States. ICE began working with local law enforcement to help them identify all non-U.S. citizens arrested. The number of immigration detainers multiplied for persons arrested for even minor traffic violations like driving without a license and misdemeanor offenses. Misconceptions have grown over what rights persons with immigration holds have.

The purpose of this article is to guide criminal defense attorneys on how to handle incarcerated clients with immigration holds.

Legal Authority for Immigration Holds

The Department of Homeland Security can place a detainer advising a state prison, or another law enforcement agency, that ICE seeks custody of an alien presently in their custody. 8 CFR Sec. 287.7(b). The law enforcement agency shall hold the person for up to 48 hours, excluding Saturdays, Sundays, and holidays, to allow ICE to assume custody. 8CFR Sec. 287.7(d). The regulations empower the Department of Homeland Security to issue detainers “for the purpose of arresting and removing the alien.” 8 CFR Sec. 287.7(a) These regulations create three ground rules necessary to understand when dealing with an Immigration hold.

First, an immigration detainer does NOT give ICE immediate custody of your client. A detainer is like a lien. ICE will not take custody of your client until the law enforcement agency detaining him is set to release him. In other words, ICE will not move him, consider the particulars of the case, or (in a worst-case scenario) deport him until he bonds out, the charges are dropped, or he’s completed his sentence. This gives the family and the criminal defense attorney time to map out a plan for dealing with ICE and the Immigration Judge once they get custody of your client. It also gives the criminal defense attorney the chance to explore ways to tailor a plea or sentence to mitigate the client’s immigration exposure.

Second, pending charges cannot be the basis for the detainer. The only legal basis for an immigration detainer is either your client is illegally in the United States, or he is legally in the United States, perhaps as a Lawful Permanent Resident, but has been convicted in the past of a deportable offense.

Third, just because your client is in jail and has an immigration hold does not mean he will be deported or that he will not be released once he is transferred to immigration’s custody. Unless your client has a conviction that subjects him to the mandatory detention or has been previously deported, he is eligible for an immigration bond, to be set initially by the ICE officer who reviews his case once he transferred to their custody. If the ICE officer does not set a bond amount, or sets too high a bond amount, an Immigration Judge can hold a Bond Redetermination Hearing to reconsider your client’s bond amount.

Once the immigration bond is paid, your client will be released pending a future hearing date with an immigration judge. Even persons illegally in the U.S. are eligible for bonds. If an immigration bond is set and paid, the client will have several months before his hearing with an immigration judge. Even if he is ordered to return to his country, it can often be under a voluntary return order, giving your client up to 120 days to leave the U.S. on his own without the penalty of a deportation order.

What to Ask Clients Detained with Immigration Holds

You’ve made the trip to the jail to bond your client out, only to find out he’s got an immigration hold. Before returning to the office, ask your client these questions:

What is his immigration status? Does he have legal status in the U.S.? If he is illegally in the U.S., check if he has an application pending (usually an I-130 petition) through a family member (spouse, parent, sibling). If he has a pending petition, does he have a copy of the receipt or approval notice sent by immigration? Someone without legal status in the U.S., but with a pending petition through a family member, is in better position to secure an immigration bond with ICE and an Immigration Judge.

Has he been deported before? If your client has been deported before, his immigration rights to a bond are severely harmed. Even if your client has a lawful permanent resident card (the “green card”), make sure he has not been previously deported.

What was he arrested for? Does he have any priors? Prior convictions will affect his bond setting by both an ICE officer and an Immigration Judge.

What family with lawful status do they have in the U.S.? Family ties will affect bond settings.

Preparing for Immigration

Let’s go back to the opening scenario. Your client is arrested for DWI, possession of marihuana, and unlawful carrying of a weapon. By the time you try to pay the bond, your client has an immigration hold because your client is illegally in the U.S.—or he is a Lawful Permanent Resident (he has his “green card”) but was previously convicted of a deportable offense. Remember that immigration will not take custody of your client until the state is ready to release your client. This gives you time to address the immigration aspects of his case, pursuant to Padilla vs Kentucky, with your client, his family, and an immigration attorney.

Remember, there are ways of ways of tailoring a sentence or conviction (like pleading to a lesser included offense) that can decrease or eliminate your non-U.S. citizen client’s exposure to deportation. As Justice Stevens wrote in Padilla vs Kentucky, “Counsels who possess the most rudimentary understanding of the deportation consequences of particular criminal offenses may be able to plea bargain creatively with the prosecutor to craft a conviction and sentence that reduce the likelihood of deportation, avoiding a conviction for an offense that automatically triggers removal consequences.”

Once the criminal bond is posted, he will be moved to ICE within 48 hours. There will be two chances at getting the detainee an immigration bond, first with the ICE officer who makes the initial bond setting and, if that doesn’t go so well, a second chance before an immigration judge. A hearing with an Immigration Judge can be scheduled usually within less than one week after filing a Motion for a Bond Redetermination Hearing with the Immigration Court. If the client is in the U.S. illegally—but has a visa petition pending through a family member and lives with family members with legal status in the U.S.—having copies of the visa receipt and proof of the family’s legal status ready to give the ICE officer when the client is transferred to ICE can help secure an immigration bond immediately upon being transferred to ICE custody.

If an immigration bond is set and paid, even under a worst-case scenario, the client will be free for typically 8–10 months by ICE while awaiting a hearing with the immigration judge and complying with any voluntary return order issued. This can give the criminal defense attorney time to resolve the criminal charges in a way that minimize the client’s immigration exposure and leaves the door open for him to stay in the U.S.—or legally return to the U.S. at some future time.

Fernando Dubove received his B.A. and J.D. from the University of Texas at Austin. In 1987, he served as Assistant Director in Texas for a Washington, D.C.,-based immigrant and refugee rights organization. He served as the staff trial attorney for the Diocesan Migrant and Refugee Services in El Paso. He is now in private practice with offices in Dallas and Tyler. Fernando is the author of “Immigration Implications for Crim­inal Convictions,” published in the Voice of the Defense, and co-author of “The North American Free Trade Agreement: Immigration and Labor Considerations,” published in the Texas Bar Journal. He is a member of the American Immigration Lawyers Association. The Dallas Observer named him the best Immigration Attorney in Dallas. Born in Argentina, Fernando is fluent in Spanish and English.

Characters – By Judge Larry Gist

Nobody who has been in any type of business or profession for any length of time hasn’t run into some “characters.” I am certainly no exception, and after working in the criminal justice system for over 36 years, I had some unforgettable people cross my path.

So I thought I might take a moment and reminisce about some of the offenders I’ve dealt with over the years. Unfortunately in so many cases, their lights were on but nobody was home.

Let’s start with Little Joe. When I first became an Assistant District Attorney, I was assigned like most new prosecutors to work in Justice of the Peace Courts. That’s where I first met Little Joe.

I was a young prosecutor and he was a young thief. I prosecuted him several times for Class C misdemeanors. Then I got promoted to County Court at Law cases, and sure enough, here came Little Joe, now stealing in Class A & B amounts.

As my career advanced, I was assigned to felony court. Who do I see there but Little Joe, now committing Third Degree Felonies. I later became the Chief of the Trial Division, and Little Joe moved up to Second Degree offenses. And as a newly elected judge, I got to sentence Little Joe to life in prison under the then-mandatory habitual offender statute.

Our careers paralleled each other. As I went up a notch, so did Little Joe.

And then there was Frank. I was prosecuting misdemeanor offenses when I first ran into him. Way back then, our jail was on the top of the courthouse building. The sheriff didn’t have funds to hire professional cooks for the jail kitchen, so inmates had to handle all of the food preparation. And an inmate who knew how to cook was very valuable.

Frank was a seaman and cooked on ships when he wasn’t in jail. And he had been in almost every jail and prison in the country at one time or another. He was at the time in our jail charged with felony forgery. Frank was so valuable to the sheriff that he asked to have the charges handled as misdemeanors so Frank could serve all of his time in our jail—and do the cooking. The judge agreed, a deal was struck, and Frank got sentences totaling several years in our jail.

About two years later and during the Vietnam War, Frank wrote the judge. He indicated that he had a chance to become a seaman on a ship under contract to the government of Vietnam. If he could get on that ship, he would be in Vietnamese waters for more than three years. He promised that if he wasn’t killed, he would never enter our jurisdiction again for the rest of his life.

All of the county criminal justice officials finally agreed to give Frank some trustee credit and cut him loose early. The ship was to leave the Port of Beaumont at 3 p.m. on Saturday. The Port is exactly one block from the jail, and the judge ordered the sheriff to release Frank at 2:50 p.m., drive him to the ship, watch him board, and watch the ship sail away.

At precisely 2:50 p.m. Frank got in the sheriff’s car for the one-block ride. Next to the only red light at that time was a small building known as “Smokey the Bar.” Frank asked the deputy sheriff if he could go in and get some cigarettes, as the ship wouldn’t get to Vietnam for three months. In a few moments Frank was back in the car, rode to the ship, and the deputy watched it sail away.

The next week I received a forgery complaint from Smokey the Bar. Seems Frank went in there·and forged a check for the cigarettes. Now that’s a criminal. Not only did he commit a new crime; he used a deputy sheriff as the get-away driver! They don’t make many like Frank anymore. By now Frank is certainly deceased and probably residing in an exceptionally hot environment. I’ll bet anything that he’s figured out a way to steal gasoline from the devil!

And finally, there was the Old Gray Fox. He was called that because he had a full head of thick gray hair, and he could break into almost anything. His specialty was safe jobs, and he was a recognized expert. Unfortunately from his standpoint, he got caught fairly often and spent a considerable portion of his life in prison.

But his reputation as a safe burglar remained strong. Let me tell you just how strong. Our police once caught two burglars and were interrogating them about other crimes they had committed. The police told them they would only file one charge against them but wanted to clear the books regarding their other offenses.

And this is the story they told. They had entered a local business one night by cutting a hole in the roof. Once inside, they attempted unsuccessfully to open the safe. Nothing they tried worked. So in desperation they picked up the phone and called the Old Gray Fox, who was at home asleep.

They described their problem, and he told them to put their punch in a particular location. But that didn’t work. So he told them to place their drill in another spot on the safe. Again, their attempts failed.

So the Old Gray Fox got dressed, drove down to the building, climbed on the roof, dropped down to the office, and opened the safe for them. Seems there was almost $40,000 in the vault, and the grateful burglars asked him what part he wanted as his share.

The Old Gray Fox told them that this was their job and he didn’t want anything, but in the future if they couldn’t handle the job, don’t call him at home when he was sleeping! Now that’s a professional.

Way back then, so many criminals were professionals in the sense that when they were caught they knew it. And all they tried to do was lower their business expense and get as little pen time as they could. None of them would think of physically hurting an officer or anybody else for that matter.

In their minds, they were crooks—but besides being thieves, not really bad people.

Things have gotten so much more dangerous throughout the years. Violence has become the overwhelming focus of our modern-day criminal justice system. So in a strange way, it’s refreshing to remember a time when most of the crooks were characters. Not killers.

Senior District Judge Larry Gist of Beaumont, a Presiding Judge at the Drug Impact Court, is also a member of the Judicial Advisory Council (JAC), which advises the director of the Community Justice Assistance Division and the Texas Board of Criminal Justice on matters of interest to the judiciary. He received his undergraduate degree from Notre Dame and graduated from the University of Texas Law School, serving initially as an assistant state’s attorney before the Texas Court of Criminal Appeals. He is a member of the adjunct faculty at South Texas College Law, Houston, teaching criminal law and criminal trial advocacy. Larry previously served as an adjunct professor in the criminal justice department and of psychology and law in the College of Graduate Studies at Lamar University, Beaumont, Texas. Besides writing for the Voice for the Defense, he is a regular contributor to the Texas Prosecutor and the Texas State Trooper.

Confrontation & Blood Tests: A Bull is Coming

“No refusal” weekends are spreading throughout Texas like a wild prairie fire. In several Texas cities, “no refusal” weekends will be conducted every weekend for the next three years due to grant money. In light of these “no refusal” weekends (and the five mandatory blood draw scenarios that do not require a warrant), there will be an even greater demand and backlog on Texas crime laboratories analyzing the blood specimens obtained in these cases. This demand and backlog will create problems as to who the State presents at trial to testify about the blood test analysis. A Bull[is]coming to answer the question of whether criminal defense lawyers are entitled to confront at trial the actual analyst who conducted the testing on the blood specimens, or any other specimen analyzed in any criminal case.

On March 2, 2011, the Supreme Court will hear oral arguments in a case styled Donald Bullcoming v. New Mexico, No. 09-10876 (below: 2010-NMSC-007, Docket No. 31,186 (NM Sup. Ct., Feb. 12, 2010))(set for argument on Tuesday, February 22, 2011). At issue is whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a non-testifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.

Bullcoming was prosecuted for DWI in the State of New Mexico. During trial, the state introduced a forensic report asserting that gas chromatograph testing had determined his blood alcohol level to have been 0.21. The State did not present live testimony from the lab analyst who conducted the blood test and wrote the report. Instead, the State presented the laboratory supervisor, a “surrogate witness,” who did not witness the testing. The State did not show that the analyst was unavailable to testify, and Bullcoming never had a prior opportunity to cross-examine the analyst. Bullcoming objected on the basis that it violated his right to confront the actual witness who performed the analysis. Bullcoming was convicted and he appealed.

While Bullcoming’s appeal was pending in the New Mexico Supreme Court, the U.S. Supreme Court held in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), that authors of forensic reports are “witnesses” under the Sixth Amendment and “are therefore subject to confrontation.” Id. at 2531–32, 2537. The New Mexico Supreme Court nonetheless rejected Bullcoming’s Confrontation Clause claim and affirmed his conviction. The U.S. Supreme Court granted certiorari.

Bullcoming’s counsel, Jeffrey Fisher of Stanford Law School Supreme Court Litigation Clinic, filed an outstanding brief. It is a must-read. A brief summary of his argument is that allowing a surrogate witness to take the stand in the place of the analyst violates the Confrontation Clause’s bar against surrogate testimony and denies an accused a meaningful opportunity to cross-examine the surrogate about the non-testifying witness’s testimonial statements. A surrogate witness who lacks personal knowledge regarding whether the analyst skipped or botched important steps in the forensic process stymies all of these inquiries. In Bullcoming, the surrogate witness conceded that “you don’t know unless you actually observe the analysis that someone else conducts, whether they followed the protocol in every instance.” A surrogate may not know anything about the analyst who wrote the report. Even if he does, the surrogate would likely be unable to speak from personal knowledge about the analyst’s training, skill, or attention to detail—or to demonstrate the analyst’s professionalism or knowledge of laboratory procedures. And the jury would be unable to observe the analyst in order to gauge those attributes for itself.

The Bullcoming case illustrates the importance of having live testimony from the analyst who wrote the report in order to probe his credibility. During the trial, the surrogate witness admitted on cross-examination that the actual analyst did not testify because the State had “very recently put [him] on unpaid leave.” These statements of the surrogate describe past events and human actions, not machine-generated data. What is more, these statements constituted powerful evidence against Bullcoming. Among the leading reasons for forensic errors are contamination of samples, switching samples, and running the wrong kinds of tests. The assertions of the surrogate witness that none of these things occurred here thus provided fodder for potentially important cross-examination. Yet because the State put a surrogate witness on the stand, the witness’ testimonial assertions were insulated from adversarial testing. This violated the Confrontation Clause under any reasonable interpretation of the provision.

Jeff Fisher summed up the confrontation problem presented in Bullcoming with a terrific analogy: “Just as substitute counsel cannot satisfy the Sixth Amendment, neither can confrontation of a substitute witness.”

The National Association of Criminal Defense Lawyers and the National College for DUI Defense joined together and filed an Amicus Curiae Brief in support of the right to confront the actual analyst. The Amicus Curiae Brief was written by Leonard Stamm of Greenbelt, Maryland; Justin McShane of Harrisburg, Pennsylvania; and Ronald Moore of Irvine, California. These lawyers did an outstanding job of simplifying the complicated methodology of gas chromatography. The Amicus Curiae Brief is also a must-read.

If the Supreme Court’s recent confrontation decisions in Crawford v. Washington, 541 U.S. 36 (2004), Davis v. Washington, 547 U.S. 813 (2006), Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), and Briscoe v. Virginia, 130 S. Ct. 1316 (2010), are any indication, the right to confront the actual analyst who performed the blood analysis should prevail. Melendez-Diaz was decided by a 5–4 vote, with Justice Scalia leading the way. Justice Scalia suggested during oral argument in Briscoe v. Virginia that the only reason certiorari was granted in that case was due to an attempt to undermine the right to confront the ac­tual analyst created in Melendez-Diaz. There is no reason to doubt that certiorari was granted in Bullcoming for any other rea­son. The justices leading the charge against confrontation will try once again with the two new justices on the Supreme Court. The outcome in Bullcoming will affect any criminal case where forensic chemical tests are conducted. Stay tuned, and re­mem­ber to wear all white and a red sash on March 2, 2011: We want to make sure that our clients do not get gored a second time.

Doug Murphy is a partner with Trichter & Murphy, P.C., based in Houston, Texas. Doug is a nationally recognized legal seminar lecturer and author of numerous published legal articles. Doug is a Regent with the National College for DUI Defense. He is a co-chair of the DWI program with the Texas Criminal Defense Lawyers Association (TCDLA), in addition to serving his second term on the Board of Directors. Doug is board certified in DUI/DWI Defense by the National College for DUI Defense, and is also board certified in criminal law by the Texas Board of Legal Specialization. Doug has been recognized as a Texas Super Lawyer Rising Star by Texas Monthly magazine every year since the recognition began in 2004, and as a Texas Super Lawyer in 2009. Doug was also recognized as a Top Lawyer for the People for being one of the best DWI lawyers in Texas by H-Texas magazine. Frequently sought after as a news commentator on DWI and other criminal law issues, Doug was referred to as the “Drinking Driver’s Best Friend” by the Houston Press.