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April 2012 SDR – Voice for the Defense Vol. 41, No. 3

Voice for the Defense Volume 41, No. 3 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Petitioner police officers did not violate the Fourth Amendment by entering respondent parents’ home without a warrant; the circumstances led the officers to believe that there could have been weapons inside the house. Ryburn v. Huff, 132 S. Ct. 987 (2012)

        The Court affirmed a judgment for the officers that was based on qualified immunity due to the mother’s odd behavior combined with information the officers had regarding threats against a school by the son. No Supreme Court decision “has found a Fourth Amendment violation on facts even roughly comparable to those in this present case.” Judged from the proper perspective of a reasonable officer forced to make a split-second decision in response to a rapidly unfolding chain of events that culminated with the mother turning and running into the house after refusing to answer a question about guns, the officers’ belief that entry was necessary to avoid injury to themselves or others was imminently reasonable.

The Government’s installation of a GPS device on D’s vehicle, and its use of that device to monitor the vehicle’s movements, constituted a “search.” United States v. Jones, 132 S. Ct. 945 (2012)

        The admission of the evidence obtained by warrantless use of the global-positioning-system device violated the Fourth Amendment. Agents installed the device on the undercarriage of a vehicle registered to D’s wife while it was parked in a public lot because D was under suspicion of trafficking narcotics. Over the next 28 days, the Government used the device to track the vehicle. The Government conceded noncompliance with a warrant that had been obtained. Under the common-law trespassory test, the Government physically occupied private property for the purpose of obtaining information. Such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted. D possessed the vehicle at the time the Government trespassorily inserted the information-gathering device. The Government forfeited its alternative argument that the officers had reasonable suspicion and probable cause because this argument was not raised below.

Without affirmative action by the AG, pre-SORNA offenders would not be bound by the registration requirements. Reynolds v. United States, 132 S. Ct. 975 (2012)

        In February 2007, the Attorney General promulgated an Interim Rule specifying that the federal Sex Offender Registration and Notification Act applies to pre-Act offenders. D, a pre-Act offender, registered in Missouri in 2005 but moved to Pennsylvania in September 2007 without updating the Missouri registration or registering in Pennsylvania. D was indicted for failing to meet SORNA’s registration requirements in September and October 2007. The district court rejected on the merits D’s legal attack on the Interim Rule, but the Third Circuit rejected his argument without reaching the merits, concluding that the Act’s registration requirements applied to pre-Act offenders even in the absence of a rule by the AG.

        The U.S. Supreme Court held that the Act did not require D to register before the AG validly specified that the Act’s registration provisions applied to pre-Act offenders. SORNA defines “sex offender” to include offenders who were convicted before the Act’s effective date. SORNA also states, however, that the AG has the authority to specify the applicability of SORNA with respect to sex offenders convicted prior to SORNA’s enactment. The Court noted Congress’ use of the word “applicability” as opposed to “nonapplicability,” inferring that Congress wanted to give the AG discretion to apply SORNA to pre-Act offenders, not the authority to make exceptions to SORNA. The Court therefore reversed the Third Circuit and remanded the case to determine if the AG’s Interim Rule is valid.

Undisclosed notations on a police activity sheet were ambiguous and not exculpatory or impeaching so as to warrant retrial. Wetzel v. Lambert, 132 S. Ct. 1195 (2012)

        Pennsylvania death row inmate sought habeas relief under 28 U.S.C.S. § 2254 on a Brady claim, arguing that the State failed to disclose a police activity sheet noting a co-defendant had identified a fourth person as a co-defendant and bearing other information associating the sheet with the robbery and murder charges. COA reversed the denial of relief. The Supreme Court vacated COA’s judgment and remanded for further proceedings.

        COA improperly rejected the state courts’ reasonable con­clu­sion about the contents of the document. Section 2254 precludes a federal court from granting a writ of habeas corpus to a state prisoner unless the adjudication of his claim by state courts involved an unreasonable application of federal law. COA overlooked the determination of the state courts that the documents were entirely ambiguous; COA focused solely on the state courts’ statements on the impeachment value of the evidence. The state court ruling might have been reasonable, since (1) the activity sheet did not explicitly link the fourth person to the murder-robbery, (2) the co-defendant had committed a dozen other such robberies, (3) he was being held on several charges when the activity sheet was prepared, (4) the fourth person’s name appeared nowhere else in the files, and (5) two witnesses who were shown the fourth person’s photo did not identify him as involved in that crime. The daunting difficulties for the prosecution in a retrial 30 years later were not to be imposed unless each ground supporting the state court decision was examined and found unreasonable under § 2254(d)(1).

The Court has expressly declined to adopt a bright-line rule for the applicability of Miranda in prisons; the determination depends upon whether incarceration exerts the danger of coercion that results from the interaction of custody and official interrogation. Howes v. Fields, 132 S. Ct. 1181 (2012)

        COA affirmed the grant of habeas relief under 28 U.S.C.S. § 2254(d)(1), holding that respondent inmate’s interrogation was a “custodial interrogation” under Miranda because removal to a prison conference room and questioning about conduct occurring outside the prison made any such interrogation custodial per se.

        The Supreme Court reversed COA. Standard prison conditions and restrictions did not necessarily implicate the same interests Miranda sought to protect. Thus, being in prison, without more, was not enough to constitute Miranda custody. Taking the inmate to a conference room, as opposed to questioning him in the presence of fellow inmates, did not necessarily convert a noncustodial situation to one in which Miranda applied. Factors that leaned toward finding the inmate’s questioning was custodial were offset by others: He was told at the outset, and reminded thereafter, that he could leave and go back to his cell whenever he wanted, he was not physically restrained or threatened and was not uncomfortable, was offered food and water, and the door to the conference room was sometimes left open. Those objective facts were consistent with an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave. Being told if he did not cooperate he would be returned to his cell was not coercion by threatening harsher conditions.

Fifth Circuit

District court did not err in denying D’s motion to suppress based upon the warrantless insertion of a GPS device on the undercarriage of D’s brother’s truck. United States v. Hernandez, 647 F.3d 216 (5th Cir. 2011)

        D did not have “standing” to challenge the placement of the GPS device on his brother’s truck, as he failed to demonstrate that he had a legitimate expectation of privacy in the invaded place; he did have “standing” to challenge the use of the GPS device to follow the truck’s path, since he had his brother’s permission to drive the truck. On the merits, however, the Fifth Circuit found that the use of the hidden GPS was not an unconstitutional warrantless search; this one-off use of GPS monitoring was not a search governed by the Fourth Amendment. The Fifth Circuit put off for another day the more troubling question of whether extensive GPS monitoring over a lengthier course of time might rise to the level of a Fourth Amendment search. NOTE: This latter issue was affirmed in United States v. Jones, No. 10-1259 (U.S. Jan 23, 2012). See above.

There was no basis for D’s federal habeas corpus relief from his conviction for sexual abuse of a child—although the victim, as an adult, approached the DA and voluntarily recanted her testimony under oath—
especially under the stringent standard for a successive habeas corpus petition. Kinsel v. Cain, 647 F.3d 265 (5th Cir. 2011)

        There was no evidence that the prosecutor knew the victim was going to provide perjured testimony at trial; nor did the subsequent recantation mean that D was deprived of either his right to confrontation or his right to a fair trial. The Fifth Circuit further held that a federal habeas court could not take cognizance of any alleged misapplication of Louisiana’s postconviction procedural law; infirmities in state habeas proceedings do not constitute grounds for relief in federal court. Accordingly, although finding it “beyond regrettable that a possible innocent man will not receive a new trial in the face of the preposterously unreliable testimony of the victim and sole eyewitness to the crime of which he was convicted,” the Fifth Circuit affirmed the district court’s denial of habeas relief.

Upon revocation of supervised release, a district court may impose a longer prison sentence to address the re­habilitative needs of the defendant. United States v. Breland, 647 F.3d 284 (5th Cir. 2011)

        The Fifth Circuit reinforced United States v. Giddings, 37 F.3d 1091 (5th Cir. 1994); although the Supreme Court held in Tapia v. United States, 131 S. Ct. 2382 (2011), that courts may not impose or lengthen a prison term to promote an offender’s rehabilitation, that holding is limited only to initial sentencings, not revocation sentencings. The statute governing supervised release, 18 U.S.C. § 3583, specifically requires courts to consider rehabilitation when revoking a defendant’s supervised release and sentencing him thereon. Therefore, the district court did not err in imposing a 35-month revocation sentence based, in part, on the desire to make sure that D could participate in the Federal Bureau of Prisons’ 500-hour drug-treatment program. NOTE: The First Circuit held to the contrary in United States v. Molignaro, 649 F.3d 1 (1st Cir. Mass. 2011), an opinion authored by former Justice Souter, sitting by designation.

There was no plain ex post facto error in applying the November 2001 version of the Sentencing Guidelines even though D’s conduct was concluded before that version of the Guidelines took effect. United States v. Murray, 648 F.3d 251 (5th Cir. 2011)

        The Fifth Circuit once again held that United States v. Booker, 543 U.S. 220 (2005), rendered the Sentencing Guidelines merely advisory. Also, district court did not err in calculating the Guideline loss figure applicable to D’s loan fraud case. The testimony of an accountant who studied the loan accounts provided a suf­ficiently reliable basis for the loss figure used by the court. Moreover, the Guidelines do not require sentencing courts to consider extrinsic factors that affect the value of collateral when using the collateral to discount the amount of loss. The loss should be discounted by the fair market of collateral, not by the value the collateral could have had in better economic conditions. Nor did the district court plainly err in applying a four-level leader/organizer enhancement under USSG § 3B1.1(a). The Government need not produce direct evidence demonstrating that a defendant directed or controlled other participants; rather, the district court may infer from available facts, including circumstantial evidence, that a defendant exercised a leader/organizer role. Here, the circumstantial evidence provided a sufficient basis for the enhancement such that there was no plain error in its application.

For a non-Guidelines sentence, just as for a Guidelines sentence, it is error for a district court to consider a defendant’s “bare arrest record” at sentencing. United States v. Johnson, 648 F.3d 273 (5th Cir. 2011)

        District court erred in imposing a 63-month upward variance sentence (from a Guideline range of 37 to 46 months) in part on the basis of a bare arrest record without any underlying facts of the circumstances prompting the arrests. Because the error was preserved, the burden was on the Government to convincingly demonstrate that the sentence would have been the same absent the error. The Fifth Circuit was uncertain whether the district court would have imposed the same sentence absent the arrests; therefore, the error was not harmless. The Fifth Circuit vacated the sentence and remanded for resentencing.

The Guideline enhancement for “crime of violence” covers offenses where consent to sexual activity is involuntary or cannot be given. United States v. Diaz-Corado, 648 F.3d 290 (5th Cir. 2011)

        District court did not err in applying a 16-level “crime of violence” enhancement under USSG § 2L1.2(b)(1)(A)(ii); D’s Colorado state conviction for unlawful sexual contact (in violation of Col. Rev. Stat. § 18-3-4(a)) was one for a “forcible sex offense” under the Guideline, considering Amendment 722.

The state court conclusion that defense counsel was not ineffective for failing to call an alibi witness was not unreasonable, because the state-court record did not show that the witness was willing and able to testify. Rabe v. Thaler, 649 F.3d 305 (5th Cir. 2011)

        Under Cullen v. Pinholster, 131 S. Ct. 1388 (2011), a federal habeas court is limited to considering only the evidence in the state-court record underlying the state-court decision whose reasonableness is being reviewed.

Court of Criminal Appeals

D’s conviction for unlawful possession of a firearm was valid because he had the status of a felon at the time he possessed the firearm. Ex parte Jimenez, No. 76,575 (Tex.Crim.App. Feb 8, 2012)

        In 1982, D was convicted of felony rape. Nine years later, D was convicted of unlawful possession of a firearm by a felon. To prove D was a felon at the time he possessed the weapon, the State introduced proof of D’s prior felony conviction. No appeal was perfected challenging either conviction.

        In 1998, D filed a habeas corpus application challenging his rape conviction. CCA granted relief and set aside D’s conviction. Subsequently, the State dismissed the charge due to a missing witness. In this habeas corpus application, D argued that his conviction for unlawful possession of a firearm is now void because the predicate felony supporting his conviction has been set aside and the charge dismissed. The reviewing court held that D was not entitled to relief because he had the status of a felon when he possessed the firearm that led to the new charges; CCA agreed.

Under the routine booking question exception, a trial court must examine whether, under the totality of the circumstances, a question was reasonably related to a legitimate administrative concern. Alford v. State, 358 S.W.3d 647 (Tex.Crim.App. 2012)

        D argued that the trial court erred in admitting his statements to officers under the routine booking question exception to Miranda and U.S. Const. amend. V. CCA disagreed. If a question lacked a legitimate administrative purpose, the appellate court should apply the Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997), bifurcated standard of review to determine the admissibility of the response under the general should-have-known test for custodial interrogation. The record here undisputedly showed that as D was being booked into jail, the officer asked D if the non-contraband item discovered in the patrol car belonged to him. Upon confirming that it did, the officer gave the item to facility personnel, who placed it with D’s personal property. The totality of the circumstances objectively showed that the officer’s questions were reasonably related to a legitimate administrative concern. The government has a legitimate interest in identification and storage of an inmate’s property.

The trial court properly admitted printouts from a so­cial networking website because there was sufficient circumstantial evidence to support a finding that the exhibits were what they purported to be—web pages the contents of which D was responsible for. Tienda v. State, 358 S.W.3d 633 (Tex.Crim.App. 2012)

        D appealed his murder conviction and argued that the trial court erred in admitting into evidence the electronic content from a website during both the guilt/innocence and punishment phases of his trial because the State failed to properly authenticate, under Tex. R. Evid. 901, the evidence printed from the website. CCA disagreed. There was sufficient circumstantial evidence to support a finding that the exhibits were what they purported to be. There were numerous photographs of D with his unique arm, body, and neck tattoos, as well as his distinctive eyeglasses and earring. There was a reference to the victim’s death and the music from his funeral. There were references to D’s gang and messages referring to a shooting. That evidence was sufficient to support a finding that the web pages offered into evidence were created by D. There was ample circumstantial evidence—taken as a whole with all of the individual, particular details considered in combination—to support a finding that the web pages belonged to D and that he created and maintained them.

COA did not err by ordering that D’s sentences on his two convictions for injury to a child run concurrently rather than consecutively because Tex. Penal Code § 3.03(b)(2)(B) does not authorize a trial judge to order consecutive sentences when the defendant was originally charged with sexual offenses but pleads guilty to nonsexual offenses. Nguyen v. State, Nos. 0260-11 & PD 0261-11 (Tex.Crim.App. Feb 8, 2012)

        D was charged with aggravated sexual assault and sexual assault of his two daughters, but he pleaded guilty to two counts of injury to a child, which was not a sex offense. The trial court revoked D’s community supervision based on his violation of a no contact order and sentenced him to 10 years’ confinement for each of his two cases, to run consecutively. COA reformed the judgment to order the two sentences to be served concurrently. The State petitioned for review. CCA affirmed the judgment.

        Section 3.03(b)(2)(B) ensures that defendants who, pursuant to a plea bargain, are placed on deferred adjudication for certain sex offenses are subject to the same requirements, disabilities, and punishments that had previously been applied only to those formally “convicted” of a sex offense. Section 3.03(b)(2)(B) does not apply in cases where sexual offense charges are formally dropped or never pursued.

CCA disavowed prior decisions that (1) require parole-eligibility misinformation to be an essential part of the plea agreement to prove an involuntary plea resulting from ineffective assistance of counsel based upon such misinformation and (2) fail to distinguish between parole eligibility and parole attainment. Ex parte Moussazadeh, Nos. 76,439 & 74,185 (Tex.Crim.App. Feb 15, 2012)

        D pleaded guilty to murder and was sentenced to 75 years’ incarceration. He filed a second habeas corpus application claiming that counsel’s misadvice regarding parole eligibility rendered his plea involuntary. CCA denied relief. He filed a subsequent application and a suggestion for reconsideration of the second application.

        CCA granted relief and dismissed the subsequent application. Ex parte Moussazadeh, 64 S.W.3d 404 (Tex.Crim.App. 2001), and Ex parte Evans, 690 S.W.2d 274 (Tex.Crim.App. 1985), were incorrect. There are considerable distinctions between parole attainment and parole eligibility. Parole attainment is highly speculative, due to various factors associated with an individual’s parole application. The question of parole eligibility, however, elicits a straightforward answer because parole eligibility is determined by the law in effect on the date of the offense. When a serious consequence is clear, counsel has a duty to give correct advice. Both failure to provide correct information and providing incorrect information violate that duty.

        D sufficiently proved that his counsel was deficient. D’s counsel could have easily determined the parole-eligibility requirements by reading the statute. Instead, counsel failed to inform D of changes in the parole-eligibility statutes that doubled the time he must serve before becoming eligible for parole. The fact that the amendments took effect only 11 days before the offense is of no consequence. CCA also concluded, based on D’s 1997 affidavit, that D would not have pled guilty if he had known the actual time he would have to serve, and thus prejudice is shown.

D was entitled to a new trial on his Brady claim because undisclosed police reports contained favorable evidence material to D’s case and the State failed to disclose such evidence. Ex parte Miles, Nos. 54687-S(B) & 54688-S(B) (Tex.Crim.App. Feb 15, 2012)

        Applicant inmate was convicted of murder and attempted murder. COA recommended that his subsequent application for habeas corpus relief be granted. CCA granted the application and held that the inmate’s actual innocence and Brady claims met the requirements of Tex. Code Crim. Proc. art. 11.07, § 4(c) because they relied on the new evidence of two undisclosed police reports, a witness’ recantation of his in-court identification of the inmate as the shooter, the identification of the source of a previously unknown fingerprint, and a second witness’ affidavit stating that her trial testimony was incorrect—none of which was available or ascertainable on or before the date the inmate filed his first applications. The two undisclosed police reports contained favorable evidence material to D’s case, and the State failed to disclose such evidence. The reports were exculpatory and could have constituted impeachment evidence because they identified other potential suspects for the crime, and subsequent investigation of those allegations could have led to other exculpatory evidence.

A trial court has the authority to reopen a suppression hearing, even mid-trial, to allow the State to present additional evidence in support of the trial court’s initial, interlocutory ruling to deny the motion. Black v. State, No. 1551-10 (Tex.Crim.App. Feb 15, 2012).

        D was convicted of possession with intent to deliver meth. The trial court had denied D’s motion to suppress. COA affirmed. CCA granted D’s PDR to decide whether the trial court erred in reopening the hearing on the motion to suppress. CCA affirmed.

        It was within the trial court’s discretion to reopen the suppression hearing and to entertain new testimony. Furthermore, COA did not err in going beyond the face of the warrant and relying on the new testimony to establish probable cause to issue D’s arrest warrant.

        In cases in which the trial court is never asked, or is asked but declines, to exercise its discretionary authority to reopen the suppression hearing, appellate review of its ruling on the motion to suppress is ordinarily limited to that evidence presented at the pretrial hearing—the evidence that was before the court at the time of its decision. There is an exception: If the parties consensually broach the suppression issue again before the fact-finder at trial, the reviewing court should also consider the evidence adduced before the fact-finder at trial in gauging the propriety of the trial court’s ruling on the motion to suppress. The corollary rule is that if the trial court should exercise its authority to reopen the suppression hearing, the reviewing court should also consider whatever additional evidence may be spread on the record bearing on the propriety of the trial court’s ruling on the motion to suppress.

In the Tex. Health & Safety Code, “prescription form” refers to a pre-printed form designed to have prescription information written on it; the legislature intended for there to be a legal distinction between prescription forms and completed prescriptions. Avery v. State, No. 0864-11 (Tex.Crim.App. Feb 29, 2012)

        Before attempting to fill a prescription for Lortab, D scribbled out “2.5” and made it look like “7.5.” D was convicted of attempting to obtain a controlled substance through the use of a fraudulent prescription form, in violation of Tex. Health & Safety Code § 481.129(a)(5)(B). COA acquitted D because it found no evidence that she used a fraudulent prescription form. CCA affirmed COA’s judgment but disagreed with COA’s reasoning and interpretation of the record.

        The fact that subsections of Section 481.129 overlap somewhat does not change the State’s burden of proving the statutory manner and means that it actually charged. While subsection (A) is broad enough to encompass most fraudulent attempts to obtain controlled substances, the other subsections allow the State to draft a more specific charge for a better jury instruction and to provide more notice to the defendant. An appellate court’s belief that a defendant’s actions more closely resemble an uncharged offense than the offense actually charged is not a legitimate basis for acquittal. Sufficiency of evidence is reviewed by comparing the evidence adduced at trial to the elements of the offense actually charged. Because D fraudulently altered information that was handwritten on a legitimate prescription form, the evidence did not support a conviction for the offense charged.

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

Ordering a driver to perform field sobriety tests does not, without more, escalate a traffic stop into a custodial detention, despite officer’s admission that driver was not free to leave. State v. Chupik, No. 03-09-00356-CR (Tex.App.—Austin Sep 15, 2011)

Officer lacked RS to justify investigatory stop of vehicle, despite officer’s observation of D’s vehicle crossing high­way’s center stripe coupled with anonymous caller’s tip reporting dangerous driving by a vehicle matching D’s vehicle. State v. Sanders, No. 04-11-00392-CR (Tex.App.—San Antonio Oct 12, 2011)

        “Law enforcement ‘generally cannot rely alone on a police broadcast of an anonymous phone call to establish reasonable suspicion.’ . . . Although [officer] testified [D’s] pickup straddled the white center stripe multiple times, he stated he agreed with defense counsel that the video recording only shows the pickup straddle the line once. The video recording does not show [D’s] pickup drift completely into the left lane, but rather only shows the pickup’s left tires cross the center stripe. Therefore, there is evidence in the record to support the trial court’s finding that the ‘single movement whereby the left wheels of [D]’s vehicle drifted into an adjacent lane of traffic is insufficient to show that [D] “changed lanes” or had an intent to change lanes which would require the use of a turn signal.’”

Evidence of flight alone, even upon a showing of authority, is insufficient to establish reasonable suspicion. Castillo v. State, No. 04-10-00893-CR (Tex.App.—San Antonio Oct 12, 2011)

        COA reversed D’s conviction because although there was evidence officers were going to a location where they believed individuals would be present who would try to flee, there was no evidence to establish officers’ purpose for going to the location. Flight alone is insufficient to justify an investigatory detention.

The presence of persons other than D in the residence provided sufficient evidence to support officers’ belief that D would be in the residence when they attempted to execute the arrest warrant. Walker v. State, Nos. 09-10-00434-CR, 09-10-00435-CR, 09-10-00436-CR, 09-10-00437-CR (Tex.App.—Beaumont Oct 12, 2011)

        D relied on Green v. State, 78 S.W.3d 604 (Tex.App.—Fort Worth 2002, no pet.). The Green court reasoned that the officer knew nothing of Green’s habits, employment status, or the make or model of Green’s car to determine whether he was in the apartment. Additionally, officer’s testimony was devoid of any suggestion that he saw lights on in the apartment or that he had detected any movement within. The court explained that nervous behavior by the person answering the door must be coupled with some other indicia, however minor, that the suspect is present to generate a reasonable belief the suspect is home.

        The instant court distinguished Green on the following grounds. Here, the officers identified at least two persons in D’s residence after announcing their presence—one who looked out the window and another who answered the door (neither of whom were D). “When one [of them] made a sudden move toward the rear of the home upon seeing the police officer at the door, [officer] believed that [D] was present and that the lady may be attempting to warn him of the officers’ presence. Further, the record does not indicate that the officers had any information to suggest conclusively that [D] was not at home. . . . [T]he trial court could reasonably conclude that the officer had formed a reasonable belief that [D] was within the residence.”

PC existed to obtain warrant to search residence where confidential informant (CI) bought cocaine despite brief period of time during which officer could not see CI while CI was conducting controlled buy. State v. Griggs, 352 S.W.3d 297 (Tex.App.—Houston [14th Dist] Oct 25, 2011)

        D also argued (unsuccessfully) that the affidavit in support of the warrant provided, at most, PC to believe cocaine would be found on the person of the suspected party but not in the residence. Rejecting said argument, COA wrote: “The suspected party was present at [the residence] when the informant arrived to purchase narcotics, conversing with the informant at the front door of the residence and retreating into the residence to retrieve the requested cocaine[.]”

Bystander’s statement to officer, “there they are,” did not give rise to RS that driver of vehicle driving away was involved in any criminal activity, in the absence of any evidence indicating whether bystander was the same person who had originally called police. State v. Kerwick, 353 S.W.3d 911 (Tex.App.—Fort Worth Nov 3, 2011)

        In addition, assuming “enhanced reliability of the statement, ‘There they are right there. There they are, there they are,’ based on the fact that the statement was made face-to-face between a bystander and [officer], the substance of the information provided—at least as elicited from [officer] in the record before us—does not indicate any unusual activity, does not connect [D] to any unusual activity, and does not indicate that any unusual activity is related to crime.”

Exigent circumstances did not justify warrantless entry into D’s apartment, and the taint therefrom had not dis­sipated by the time D gave consent to search bag that contained marijuana—even though D was no longer in handcuffs—because officer had removed his Taser gun from his belt and was holding it in his hand. Turrubiate v. State, No. 04-10-00744-CR (Tex.App.—San Antonio Nov 9, 2011)

        Nothing in the record suggested that destruction of marijuana evidence was at risk; D willingly answered door and made no movement as if he were about to destroy evidence, and officer stood away from D’s peephole while CPS investigator knocked on the door such that D would not have been aware of police involvement. As to search of the bag, COA also noted that it is unclear whether D had been made fully aware that he could decline consent to search.

D lacked standing to challenge search of hotel room; D was merely there to visit another occupant (who paid for the room) and D did not intend to spend the night. State v. Valdez, No. 08-10-00260-CR (Tex.App.—El Paso Nov 9, 2011)

        In addition, “neither [D] nor the other members of the group took any precautions to ensure privacy prior to [officer’s] arrival.”

Testimony regarding insurance company’s determination of fault was admissible in prosecution for manslaughter where D claimed she was not at fault for the collision between her vehicle and motorcycle. Mitchell v. State, No. 10-10-00307-CR (Tex.App.—Waco Nov 9, 2011)

        “Although this type of evidence could have a tendency to suggest a decision on an improper basis in a criminal case, the trial court could have reasonably concluded that in this case, it did not.”

Sufficiency Review in Texas Criminal Cases: Abandon All Hope, Ye Who Enter Here

Malik review is unconstitutional. Malik is unconstitutional because it violates the basic protections of Due Process under the Fourteenth Amendment of the United States Constitution and violates United States Supreme Court precedent. Sufficiency review under Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997), is an independent state ground review. Malik is not congruent with United States Supreme Court’s review standard spelled out in Jackson v. Virginia, 443 U.S. 307 (1979).

Due Process review under Jackson does not permit Texas appellate courts to find there is legally sufficient proof to sustain a conviction on a theory never submitted to a jury.1 However, Malik review does just that. Malik review allows theories to be included in sufficiency review that were never reviewed by a jury for proof beyond a reasonable doubt. For the reasons listed below, Malik review should be disavowed.

I. Federal Due Process Protections Guaranteed Under the Fourteenth Amendment Apply to the States

First things first. The United States Supreme Court has abandoned the notion that the Fourteenth Amendment applies to the states only a watered-down, subjective version of the individual guarantees of the Bill of Rights. It would be incongruous to apply different standards depending on whether the claim was asserted in a state or federal court. Instead, incorporated Bill of Rights protections are all to be enforced against the states under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment. See McDonald v. City of Chicago, 130 S. Ct. 3020, 3035 (2010). The Fourteenth Amendment of the United States Constitution applies to Texas, even when reviewing legal sufficiency claims. Malik’s evidentiary sufficiency standard is a purely state law standard that is foreign to federal constitutional norms. See Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002) (hereinafter “Fuller”). Malik does not in any meaningful way apply to federal constitutional evidentiary sufficiency claims, despite the challenged Malik opinion’s claim to the contrary.

Texas Courts are free to provide more protection than the Fourteenth Amendment Federal Due Process Clause (hereinafter “Due Process”). But they cannot provide less. Pertaining to the legal sufficiency review standard, when compared to that used by federal reviewing courts, Malik provides “only a watered-down, subjective version of the individual guarantees of the Bill of Rights.”2

II. Due Process and Jury Instructions: “Buy the Ticket, Take the Ride”
(Hunter S. Thompson)

It is bedrock federal constitutional law that “[A]ppellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial.” Dunn v. United States, 442 U.S. 100, 107 (1979). Dunn tells reviewing courts that Due Process prevents reviewing courts from inventing new and novel methods of review.3

In Dunn the defendant was indicted, tried, and convicted on the theory that he had lied under oath in a judicial proceeding. The judicial proceeding was alleged to have taken place in September 1976. However, it was shown at trial that the lie did not occur in September 1976, but in October 1976.4 On appeal, the Tenth Circuit affirmed the conviction, reasoning that Dunn, the appellant, had “adopted his September statement,” so it made no difference whether he lied in September or October. The variance between the pleading and the evidence was construed by the Tenth Circuit to be a mere “misstep”5 by the prosecution, and therefore was merely “nonprejudical variance between indictment and proof at trial.” Id at 104–105. The United States Supreme Court squarely rejected the Tenth Circuit’s reasoning, holding: “[I]t is as much a violation of due process to send an accused to prison following a conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.” Id at 197.

The problem created here is that under Malik, Texas courts are free to apprise the validity of convictions based on a hypothetical jury charge on which a Defendant was never tried, and which includes and/or excludes essential factual elements of the offenses or theories of prosecution that were never assessed by a jury as having been proven beyond a reasonable doubt, as long as the hypothetically correct jury charge can be substantiated by evidence from trial. But see Cole v. Arkansas, 333 U.S. 196, 201 (1948).

How does Hunter S. Thompson apply here? In Dunn, the Government bought their ticket when they charged Mr. Dunn with committing perjury on September 30, put Mr. Dunn on trial alleging he committed the perjury on September 30, brought forth evidence establishing he perjured himself on September 30, and forced Mr. Dunn to defend against charges he committed perjury on September 30. It was not a hypothetical trial. In Dunn the Government bought the September 30 ticket. They were obligated at that point to take the September 30 ride on appeal. Fortunately for Due Process, the United States Supreme Court was punching the tickets, not the Tenth Circuit.

III. A Hypothetical Review of Mr. Dunn’s Case Using Malik

Consider the following hypothetical exercise for review. Texas Penal Code sections 37.02 and 37.03 govern perjury in Texas. There is no statutory requirement that a specific date be pled and proven at trial. Rather, the variation in Dunn would be found immaterial under Malik, the jury charge adjusted to fit the hypothetical model, and Dunn’s conviction sustained.

How do we know this? Because of Fuller. Using Malik review, Fuller held that failure to prove the correct name of the victim is not a fatal variance in an assault case. If there is no need to correctly identify the victim in an assault case, would there really be a need to identify the exact date a lie allegedly occurred? Under Malik, the answer is no. So long as the State proved at trial that: (1) a person (2) with the intent to deceive or with knowledge of the statement’s meaning (3) made a false statement under oath or swears to the truth of a false statement previously made, and (4) the statement is required or authorized by law to be made under oath, then the State proves their case under Malik. This is regardless of whether the State can prove the exact date or not as alleged in the indictment or information. Under Malik, Dunn’s conviction would likely have stood based on the hypothetical jury charge. If Malik would overrule Dunn, then the incongruity of applying different standards so lamented in McDonald is precisely what the Malik court created. Texas sufficiency review under Malik is watered-down Due Process.

Like in Dunn, the State buys its ticket when they charge a Defendant, put him on trial, force him to defend his liberty, agree to the jury charge submitted to the jury, and ask the jury to return a guilty verdict based on that charge. Malik review rewards the State by letting them off the ride. It is precisely what the holding in Dunn stands against.

IV. “Do or Do Not. There Is No Try”
(Jedi Master Yoda)

The holding in Dunn was predicated on Cole v. Arkansas, 333 U.S. 196 (1948). In Cole, the Defendants were tried in Arkansas state court under an information alleging a violation of section 2 of a particular state statute. Section 2 made it a crime to use force and violence to prevent a person from engaging in a lawful vocation. See Id at 198. At the request of the prosecuting attorney, the trial judge read section 2 to the jury (under current Texas law, this request to read section 2 could be viewed as a mere “misstep” by the prosecutor). See Id. at 199. The jury convicted the appellants. On appeal with the Arkansas Supreme Court, it was recognized that the information (the charging instrument) as drawn did not include a charge that the petitioners violated section 2, as read to the jury.

This was not a problem for the Arkansas Supreme Court though. The convictions were simply upheld on appeal by invoking section 1 of the same statute and finding the evidence was legally sufficient to support a finding of guilt under section 1.6 Id. at 200. The Arkansas Supreme Court found nothing inconsistent with sustaining convictions under section 1 when charged, tried, and convicted under section 2 at trial. This is tantamount to a reviewing court saying, “The evidence at trial showed they did something wrong, now let’s find that statute.”7

The question presented to the United States Supreme Court in Cole was this: “Were the Defendants denied due process of law . . . in violation of the Fourteenth Amendment by the circumstance that their convictions were affirmed under a criminal statute for violation of which they had not been charged?” See Id. at 197. Answer: unquestionably yes.

The Cole Court held: “To conform to due process of law, petitioners were entitled to have the validity of their convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court” (emphasis added). Id at 648. Nothing in Cole, its progeny, or any other United States Supreme Court case law grants state appellate courts the right to assess the validity of a conviction by judicially creating nuances like Malik that allow those state reviewing courts to consider issues never submitted to the jury. The Cole court held that appellate review like that used by the Arkansas Supreme Court to uphold the Cole’s conviction “denied safeguards guaranteed by due process of law—safeguards essential to liberty in government dedicated to justice under law.”

The Cole court found the Arkansas Supreme Court’s antics repugnant to Due Process. “That court (the Arkansas Supreme Court) refused to pass upon petitioner’s federal constitutional challenges to section 2. It later denied a petition for rehearing in which petitioners argued: ‘To sustain a conviction on grounds not charged in the information and which the jury had no opportunity to pass upon, deprives the defendants of a fair trial and a trial by jury, and denies the defendants that due process of law guaranteed by the 14th Amendment to the United States Constitution’” [emphasis added]. Id. 200. The Cole court found petitioners’ argument to be persuasive. The United States Supreme Court found the Arkansas Supreme Court’s judicial gerrymandering of the information, evidence, and the jury charge to be simply unconstitutional. Cole teaches us that prosecutors either bring forth legally sufficient evidence to convict under the charging instrument submitted to the jury and criminal statute charged or they do not. There is no “try.” Jedi Master Yoda was correct.(See “The Empire Strikes Back” movie.)

V. Coles’ Application to Sufficiency Review in Texas

Sustaining convictions on grounds “the jury had no opportunity to pass on” is what Malik allows appellate courts to do. Malik authorizes that Due Process infraction to occur. More precisely, Malik mandates it.

Malik-style appellate review cannot in any meaningful, intellectually honest way, be squared with the holdings in Jackson, Dunn or Cole. See also Presnell v. Georgia, 439 U.S. 14 (1978), and Rabe v. Washington, 405 U.S. 313 (1972). Malik-style review simply allows too many appellate-created variables to be introduced in order to fix any “missteps” by the prosecution. Malik removes the incentive for state prosecutors and trial courts to go the extra mile to get it right, because in the end, appellate courts are instructed to fix those “missteps”8 under Malik9 by creating the hypothetically correct jury charge the prosecutor should have hypothetically fought to be actually submitted to the jury during the trial.10 Under Malik, the prosecutor’s error in Cole of requesting that section 2 be read to the jury is not relevant in any way. The hypothetical jury charge controls. Texas appellate courts are denying defendants of their guaranteed safeguards by refusing to review cases under federal Due Process, and instead review it under a hypothetical jury charge—hypothetically providing very little watered-down Due Process. This hypothetical appellate review violates a defendant’s Due Process rights vis-à-vis Jackson, Dunn, Cole, and the Sixth Amendment rights under the United States Constitution. When it comes to jury charges at trial: “Do or do not. There is no try.”

VI. The Law of Due Process as It Relates to Jury Charge Review on Appeal

What’s good for the goose . . .”

It is a violation of the federal constitution for a reviewing court to measure sufficiency of the evidence against a standard different than all the applicable law in the charging instrument and the court’s charge, using a hypothetical jury charge containing and/or excluding prosecution theories of liability and/or essential elements that no jury assessed for proof beyond a reasonable doubt. See McCormick v. U.S., 500 U.S. 257 at 269–270 (1991). Under McCormick, if the instructions were good enough for the trial court, they are good enough for appellate review. What’s good for the goose is good for the gander.

McCormick dealt with jury instructions (real, not hypothetical) given in the court’s jury charge explaining to the jury that campaign contributions could be proscribed by the Hobbs Act, even where there was no expectation of benefit by the contributor. The Tenth Circuit disagreed with those jury instructions, holding that the Hobbs Act required a showing of quid pro quo and providing a seven-factor test for such an arrangement. Despite the erroneous instructions to the jury at trial, the court of appeals affirmed the conviction on this new seven-factor test first spelled out by the Tenth Circuit—a seven-factor test that should have been submitted to the jury in the first place. See Id. at 269–270.

The Tenth Circuit’s erroneous decision to create factors not submitted to the jury to sustain a wrongful conviction was quickly felled. The United States Supreme Court found this sort of reverse engineering of jury instructions to support a conviction to be offensive. The United States Supreme Court held the following in McCormick: “This Court has never held that the right to a jury trial is satisfied when an appellate court retries a case on appeal under different instructions11 and on a different theory than was ever presented to the jury. Appellate courts are not permitted to affirm convictions on any theory they please simply because the facts necessary to support the theory were presented to the jury” [emphasis added]. The Texas Court of Criminal Appeals Court recognized this legal truism in its holding of Wooley v. State, 273 S.W.3d 260 (Tex. Crim. App. 2008).

By creating hypothetically correct jury charges and using those charges as the starting point to analyze the legal sufficiency of the evidence against defendants, Texas appellate courts are using different instructions and theories than were ever submitted to the jury to sustain a defendant’s conviction.

VII. The Fifth Circuit and Malik

As discussed by this Court in Fuller, the United States 5th Circuit reviewed Malik. See Bledsue v. Johnson, 188 F. 3d 250 (Cir. 1999). The Bledsue court held, “A Texas habeas court reviewing under Malik must develop a hypothetically correct jury charge” that both “accurately sets out the law” and “is authorized by the indictment.” Malik, 953 S.W.2d at 240. In this case, a hypothetically correct jury charge that “accurately sets out the law” would have included the phrase “adulterants and dilutants” but would not be “authorized by the indictment.” See Bledsue at 260. Bledsue went on to say: “Perhaps, to meet Malik, a Texas court simply would require the hypothetically correct jury charge to be based on a hypothetically correct indictment.12 At the very least, when the indictment raises ambiguities as to what the hypothetically correct jury charge should be, the Malik approach does not resolve a federal habeas court’s inquiry into what are the essential elements of state law we should use to review Bledsue’s conviction.” Id at 260. This is not a glowing review of Malik by the oft-quoted United States Fifth Circuit.

VIII. Malik and Jackson Are Separate and Not Equal

The Texas Court of Criminal Appeals recognized that the Malik standard of measuring evidentiary sufficiency against the “elements of the offense as defined by the hypothetically correct jury charge for the case” clearly is not the same as the Jackson v. Virginia standard of measuring evidentiary sufficiency against the “substantive elements of the criminal offense as defined by state law.” See Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001). Compare Jackson, 99 S. Ct. at 2792 fn 16, with Gollihar, 46 S.W.3d at 255. This Court’s own body of law acknowledges that Malik is a Texas state sufficiency standard. It is not congruent with federal sufficiency standards.13

In Wooley, this Court wrote, “to uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process.” This Court’s holding in Woolely, the United States Supreme Court’s holdings in Jackson, Dunn, Cole, & McCormick, and the Fifth Circuit’s holding in Bledsue fly squarely in the face of the Malik review.

Allowing reviewing courts to re-try cases on theories, in­structions, and/or elements never submitted to the jury is a frontal assault on Due Process and United States Supreme Court precedent. That is beyond honest debate. No less than venerated legal scholar, legal historian, and Supreme Court Justice Antonin Scalia has held this to be true.

IX. Malik Is Unconstitutional Under the Current Federal Due Process Interpretation

You don’t need a weatherman to know which way the wind blows” —Bob Dylan, “Subterranean Homesick Blues”

Justice Scalia’s dissent in Neder v. United States, 527 U.S. 1 (1999), is at once instructive and illustrative of the current Malik conundrum for two reasons: First, Neder provides a wonderfully terse historic recap of the right to a jury trial, and how judges, especially appellate judges, can and do impinge mightily on that precious right. Second, as this Court noted in Wooley at 272, Justice Scalia’s dissent in Neder is now the prevailing view held by the majority of the United State’s Supreme Court relating to Sixth Amendment Constitutional jury trial rights and the application of those constitutional rights to the States vis-à-vis Due Process.

Neder dealt with improper jury instructions being given and whether those improper instructions were subject to harmless error analysis.14 Harmless error analysis won the day in Neder, but barely. And it has since paid a heavy toll at the hands of Justice Scalia’s dissent along with the new majority.

Even though Neder is a relatively Johnny-come-lately to the legal case law scene, the United States Supreme Court has seen fit to overrule the line of logic leading to its conclusion (though not the case itself just yet), while adopting the more reasoned and historically appropriate approach of Justice Scalia’s Neder dissent.15 Neder appears ripe for overruling.

Justice Scalia’s dissent/new majority rationale in Neder reads:16 “Article III, § 2, cl. 3 of the Constitution provides: ‘The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . .’ The Sixth Amendment provides: ‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . .’ When this Court deals with the content of this guarantee—the only one to appear in both the body of the Constitution and the Bill of Rights—it is operating upon the spinal column of American democracy.17 William Blackstone, the Framers’ accepted authority on English law and the English Constitution, described the right to trial by jury in criminal prosecutions as ‘the grand bulwark of [the Englishman’s] liberties . . . secured to him by the great charter.’ 4 W. Blackstone, Commentaries at 349. One of the indictments of the Declaration of Independence against King George III was that he had ‘subjected us to a Jurisdiction foreign to our Constitution, and unacknowledged by our Laws’ in approving legislation ‘for depriving us, in many Cases, of the Benefits of Trial by Jury.’ Alexander Hamilton wrote that ‘the friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury: Or if there is any difference between them, it consists in this, the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government.’” Neder dissent at 30.

Justice Scalia continues: “The right to be tried by a jury in criminal cases obviously means the right to have a jury determine whether the defendant has been proved guilty of the crime charged. And since all crimes require proof of more than one element to establish guilt (involuntary manslaughter, for example, requires (1) the killing (2) of a human being (3) negligently), it follows that trial by jury means determination by a jury that all elements were proved.”18 Id. at 31.

Justice Scalia’s continues in his Neder dissent arguing the new majority view: “[T]he Constitution does not trust judges to make determinations of criminal guilt.” See Id at 32. Nothing encapsulates the harm caused to defendants by Malik like that statement. Nothing this author could say more succinctly crystalizes how and why defendants’ Due Process rights are violated every time a Texas Court of Appeals uses a hypothetical jury charge containing and/or excluding elements which no jury assessed for proof beyond a reasonable doubt. Justice Scalia reminds us that trial by jury has never been efficient, but it has always been free. Formal requirements are often scorned when they stand in the way of expediency (or simply re-labeled as “missteps”). The Supreme Court, and this Court, have an obligation to take a longer view of Due Process. See Neder at 40.

Justice Thomas agrees with Justice Scalia’s Neder dissent views. Justice Thomas’ concurring opinion in Apprendi makes clear that a jury, not a judge, should decide all the elements of a crime beyond reasonable doubt:19 “Further, the United States Supreme Court has held that due process requires that the jury find beyond a reasonable doubt every fact necessary to constitute the crime. In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970).” This Court acknowledged in Wooley the prevailing constitutional winds discussed above in Justice Scalia’s Neder dissent. Wooley stated: “We [the Texas Court of Criminal Appeals] also note that an Illinois appellate court has even stated that it ‘seems increasingly clear that the views expressed by Justice Scalia in Neder v. United States are now beliefs shared by’ a majority of the Supreme Court. See State v. Nitz,20 353 Ill. App. 3d 978, 820 N.E.2d 536, 554–58, Dec. 760 (Ill.App.Ct. 2004).”

X. “In My End Is My Beginning” (T. S. Eliot)

Conclusion

Justice Scalia warned we are fast moving into a new phase in law where judges are substituting their judgment for that of a jury. A fear for the future of Due Process conceived in Justice Scalia’s Neder dissent has been born in Malik and its progeny.

“[H]ow many elements can be taken away from the jury with impunity, so long as appellate judges are persuaded that the defendant is surely guilty? Answer: We know that all elements cannot be taken from the jury, and that one can.” See Neder at 33. After more than a decade of Malik review, trial judges now know appellate courts operate as a safety net to provide the correct charge on review. There is no more threat of additional court time expended on retrial for fallacious jury charges. All “missteps” are cured in our hypothetically fueled quest for judicial expediency. The proverbial Sword of Damocles hanging over the trial judge’s head has been replaced by a gentle pat on the back with warm affirmations from the pending Malik reviewing court saying: “You did your best, trial judge. Now let us do it right.” State prosecutors and trial courts are relieved of these burdens at the expense of Due Process. With Due Process safely shackled, a more streamlined method of affirming findings of guilt has emerged. The record need only reasonably assure the reviewing court the convicted was really a bad man deserving of punishment. This was the kind of Due Process the courts of appeals are giving defendants. But this is far less than the Due Process demanded by Jackson and the United States Supreme Court.

The Bludsue court astutely opined: “This quandary [Malik review] teaches us, on habeas review, to maintain our own notions of constitutional sufficiency that are not overly dependent on state law doctrines such as that enunciated in Malik. Rather, federal habeas courts should independently analyze the governing statute, the indictment, and the jury charge21 to measure the constitutional sufficiency of the evidence and determine what are the essential elements required by the Jackson sufficiency inquiry. Therefore, while we decline to adopt the Malik rule as a measure of constitutional sufficiency . . .” Id. at 260. The Texas Court of Criminal Appeals should decline the continued adoption of the Malik rule as a measure of Texas constitutional sufficiency. Malik should be disavowed.

NOTES

1. Malik review says that an appellate court must measure the sufficiency of the evidence against a hypothetically correct jury charge. Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)

2. Malik instructs reviewing courts to use a “hypothetically correct” jury charge to assess the sufficiency of the evidence. Compare William Osler’s wisdom: “To confess ignorance is often wiser than to beat about the bush with a hypothetical diagnosis.”

3. See Chiarella v. United States, 445 U.S. 222 (1980) at 236, where the court said, “[W]e cannot affirm a criminal conviction on the basis of a theory not presented to the jury” (quoting Dunn). See also Rewis v. United States, 401 U.S. 808 at 814 (1971), holding the Supreme Court cannot affirm a criminal conviction by a jury on the basis of a theory not presented to the jury. This would seem to exclude assessing the evidence to sustain convictions on the basis of hypothetical jury charges that include law of parties’ theoretical instructions never submitted to the jury. More on that later.

4. There was no doubt that a lie was told. The only question was when it was told.

5. “Missteps” is the phrase coined in Winfrey v. State, 323 S.W.3d 875 (Tex.Crim.App. 2010), to describe error on the part of prosecutors in failing to obtain proper instructions. It was held in Winfrey: “We should not be concerned in the legal-sufficiency context with missteps made by the State regarding what is included in the jury charge. A misstep in the jury charge can be remedied by means other than an acquittal, such as a new trial on the lesser-included offense.”

6. This has tinges of Bushell’s Case to it, where the judge told the jurors who tried to acquit William Penn, “[You] shall not be dismissed until we have a verdict that the court will accept.”

7. For full effect, this quote should be read with a thick West Texas accent like the cowboys of old.

8. Remember that in Cole, the prosecutor asked the judge to instruct the jury regarding section 2. Had the prosecutor asked the judge to instruct the jury under section 1, there would have been nothing to complain about on review.

9. See Justice Scalia’s dissenting opinion, in which he discusses appellate review protecting “against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.” Neder v. United States, 527 U.S. 1 at 36. See also State v. Myers, 158 Wis.2d 356, 367, 461 N.W.2d 777, 782 (1990), where Malik-style review was rejected as saving the prosecution “from a trial strategy that went awry,” much like saving the State from “missteps.”

10. It seems a wholly sounder practice to rid Texas law of hypotheticals and deal only in concretes—i.e., actual jury charges. If the law of jury charges is simplified so the hypothetically correct jury charge could be readily discernible in reality, Due Process would be better serviced and satisfied. This would provide defendants non-hypothetical Due Process as guaranteed under Jackson.

11. McCormick does not allow a reviewing court to create new jury charge instructions on review. How can a jury receive and pass judgment beyond a reasonable doubt on a hypothetical jury charge? How can creating a hypothetical instruction be anything other than “retr[ying] a case on appeal under different instructions” than presented to and used by the jury? Quid pro quo was an element of a Hobbs Act offense, according to the Tenth Circuit. The Tenth Circuit essentially created its own “hypothetically correct jury” charge setting out the elements of a Hobbs Act violation, and then assessed the evidence to support McCormick’s guilt under that make-believe appellate court charge. This sounds too much like Malik. And the Supreme Court rejected it. When will this court so see Malik?

12. Bledsue identifies the slippery slope of Malik: hypothetical, upon hypothetical until the desired result is achieved in the light most favorable to be able to sustain the jury’s verdict of guilt. That is the future Bledsue foresaw from Malik-style Texas justice. Perhaps a prophetic prediction given the recent holding in Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010), abolishing factual sufficiency review in favor of more hypothetical Malik review. Texas is now one opinion away from hypothetical indictment or notice review, first available for all to see, only after the jury convicts. Is such a “save every conviction doctrine” compatible with the “fair notice pretrial and trial” envisioned in the right to a fair and impartial jury by the Founding Fathers?

13. Malik sufficiency review is accompanied with an implicit warning: Lasciate ogne speranza, voi ch’intrate (“Abandon all hope ye who enter here”).

14. Justice Scalia’s Neder response addressed whether appellate courts should view faulty jury instructions under a harmless error standard. Justice Scalia took the view that jury charge error is always harmful.

15. The Texas Court of Criminal Appeals held in Malik, “When, as in the present case, our precedents appear to require us to stray far afield from the holding that originated a constitutional doctrine, we should reexamine those precedents to determine their continuing validity . . .” The new majority in the United States Supreme Court has telegraphed their position on Sixth Amendment and Fourteenth Amendment Due Process issues. Malik and its progeny are not in line with the new majority’s view and will likely not withstand a federal constitutional challenge for long. The Court of Criminal Appeals must decide whether to right the ship that is Malik review or run aground, convinced the Court’s constitutional sextant has found true north.

16. See Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004) (hereinafter “Apprendi” and “Blakely”), for further detailed discussion on Due Process rights and its relation to Sixth Amendment rights, along with an enlightening discussion on the correct role of judges under both those Constitutional amendments. These two cases represent the adoption of the logic in Justice Scalia’s Neder dissent by the new majority.

17. When the Texas Court of Criminal Appeals creates judicial nuances like Malik, allowing review contrary to Due Process and Supreme Court precedent, it is actively undermining the surgical efficiency the United States Supreme Court has articulated as necessary to ensure Due Process and safeguard liberty, yet ensuring proper respect for jury verdicts. We as Texans once had a proud lineage of protecting first and finding guilt second—until recently. Due Process should not find itself being quietly shuffled away to maintain convictions and deny “windfalls” and “the greatest form of relief in the criminal justice system.” See Malik at 239. Further, this notion that acquittal is a “windfall” or “the greatest form of relief in the criminal justice system” is simply wrong spirited. William Blackstone stated, “When the prisoner has thus put himself upon his trial the clerk answers in the humane language of the law which always hopes that the party’s innocence rather than his guilt may appear ‘God send thee a good deliverance.’” See 4 Blackstone, Commentaries at 402 commentaries. It does not appear that Texas law “always hopes for a party’s innocence.”

18. Another hypothetical for the readers’s consideration based on Justice Scalia’s example of the manslaughter elements that need to be proven at trial to satisfy Due Process: Imagine a jury trial in a Texas district court for manslaughter. The jury is not properly charged with one of Justice Scalia’s three listed elements of manslaughter because of a “misstep” by the state. For this hypothetical, we will assume the jury is never instructed nor properly charged on element (3) listed by Justice Scalia—negligence in causing the death. Based on that faulty charge, and without ever being instructed on the negligence element, the jury convicts. The Defendant appeals, alleging the jury was not correctly instructed since they were not told they must find beyond a reasonable doubt the accused committed the murder negligently. In other words, no mens rea was submitted to the jury and judged as having been proven beyond a reasonable doubt. The defendant in our hypothetical appeals his conviction, alleging a depravation of Due Process and Sixth Amendment rights. Under Malik, it is of little consequence the jury did not find beyond a reasonable doubt this hypothetical defendant committed the murder negligently. Why? Because a Malik reviewing court can cure that “misstep” by creating a hypothetically correct jury charge containing the needed language to describe killing through negligence. Once the hypothetically correct jury charge is constructed, the record is perused to see if the evidence will sustain a showing of negligence on the part of the convicted in (1) killing (2) the human being, as listed in the hypothetically correct jury charge. Looking at the evidence in a light most favorable to the verdict, based on the hypothetical jury charge and “trusting appellate judge[s] to make determinations of guilt,” this hypothetical defendant could be convicted without one of the three elements listed by Justice Scalia. Malik ensures there will be no “windfall” for the Defendant simply because of the state’s “misstep.” And the appellate court conducting the Malik review will be relieved of the possibility of delivering “the greatest form of relief in the criminal justice system.” Justice Scalia would have serious problem with this scenario, as would the new majority.

19. If trial judges are forbidden from passing judgment on matters constitutionally left to juries, it is no less a Due Process violation for appellate judges to pass judgment on matters never submitted to the jury, and then make a determination as to those matters of judicial fantasy applying an amorphous appellate standard. This would be the equivalent of saying a defendant is simply too guilty to have or deserve a trial.

20. The right of jury trial is no mere procedural formality, but a fundamental reservation of power in the constitutional structure. Apprendi carries out this design by ensuring that the judge’s authority to sentence derives wholly from the jury’s verdict. Every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to enhance the applicable punishment statute. See Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004).

21. It should be pointed out that Bledsue stated “the jury charge,” not a hypothetically correct jury charge.

Falsely Elevated Ethanol Results Using Hospital Enzymatic Assay Blood Testing

BRAKES, SQUEAL, SMOKE, SCREAM, CRASH!!

Whether it is an ambulance with emergency medical services (EMS) or a Life Flight team, saving the client’s life is all that matters after an accident. However, after recovery, many clients face serious criminal charges which rely on forensically unacceptable evidence. This article aims to expose a forensically unacceptable method of testing blood for alcohol performed by hospitals through enzymatic assay testing.

Before examining the problems with hospital enzymatic assay blood testing, the science and the process involved must be understood. Whole blood is drawn from the arm via (1) a syringe and then injected into a test tube; or (2) a Vacutainer, which allows the needle to draw directly into the test tube. Whole blood is great for gas chromatography, which is usually the preferred testing method in forensic laboratories.1 However, if a hospital tests your blood for alcohol, it is normally not for prosecution, but rather to determine any reactions with necessary medicine or procedures. The hospital only provides the District Attorney’s office with the blood alcohol results pursuant to a subpoena.

In hospital enzymatic assay blood testing, the test tube does not contain sodium fluoride (preservative) or potassium oxalate (anti-coagulant) required in the grey-topped test tubes used in forensic samples.2 The test tube only contains your client’s whole blood. Hospitals do not test whole blood for alcohol using enzymatic assay testing.3 Only plasma or serum is used.4 In order to obtain plasma or serum, the test tube is centrifuged to separate the plasma or serum from the cellular material.5 A centrifuge spins a test tube at an angle at a high rate of speed so that all the cellular material collects at the bottom of the tube and the plasma is left at the top.6 The plasma appears as a viscous, yellowish liquid at the top of the tube.7 Serum is the whole blood without the cellular material or the clotting element.8 Serum appears as a clearer, yellow liquid that surfaces above the clotted, red, cellular material.9 Serum is rarely used because the whole blood must be allowed to stand and clot before being centrifuged.10 Time being a luxury when the client has serious injuries, the hospital usually prefers plasma over serum to avoid waiting for the blood to clot.11

In more detail, a deproteinizing agent, Trichloroacetic Acid (TCA), which strips the protein from the whole blood, is added to the whole blood and then the tube is centrifuged.12 That leaves you with: (1) supernate—top stuff (plasma) and alcohol, and (2) precipitate—red corpuscles, white corpuscles, platelets, TCA protein pellet, and red blood cells.13 The supernate is then poured or pipetted off, which is also called aspirating, and the precipitate is thrown out.14 Now, the hospital is ready to test for alcohol using the plasma/supernate.

There are only two ways to measure amounts: (1) the direct way—for example, stand on a scale and measure your weight; or (2) the indirect way—jump on someone’s back, then weigh both of you and subtract the other person’s weight.15 Hospital enzymatic assay blood testing measures the alcohol in the blood through an indirect method of seeing how much of a substance is produced as a reaction with alcohol.16 Then this substance is measured using a color chart.17

More specifically, spectrometry is a colorimetric response used to analyze light going in versus light coming out, also known as Beer-Lambert Law.18 This is also the same law used in the Intoxilyzer 5000 breath testing machine. A spectrophotometer is a device that measures the light intensity (photometer) as a function of a color or a wavelength of light.19 So, the analyst will place a sample of the plasma on a slide and into the analytical device or autoanalyzer machine.20 However, in order to get ethanol (ETOH) to react and produce a measurable response, a known quantity of an enzyme, Nicotinamide Adenine Dinucleotide (NAD+), and Alcohol Dehydrogenase (ADH) is added to the plasma on the slide, which catalyzes the metabolism of alcohol to acetaldehyde.21 ADH oxidizes ETOH to Acetaldehyde using the coenzyme NAD, which is concurrently reduced to form NADH (2,3).22

ETOH + NAD+ — (ADH) → Acetaldehyde + NADH + H+

Depending on what substance is being measured, it is essential to know the spectral bandwidth and linear range of absorption measurement of the spectrophotometer. A light source shines light/energy into the monochromator, which determines the particular wavelength and that wavelength is beamed at the sample.23 When testing for levels of NADH, the specific wavelength is 340 nanometers.24 The sample absorbs the energy and the photodetector on the other end measures how much energy actually made it through.25 If the analyte, NADH, is present then it interferes with the energy emitted and the photodetector detects less energy.26 Then a comparison is made between what was expected and measured and a colormetric response is produced, which is lighter or darker based upon the concentrate of the NADH.27

Enzymatic assay testing does not actually test the ethanol in the blood, like GC does.28 Instead, the machine measures the amount of NADH produced, which should be directly proportionate to the amount of ethanol present. However, NADH is not specific for ethanol to the exclusion of others.29 Remember the client was rushed to the hospital with traumatic injuries. In the course of making his condition stable or saving his life, EMS or hospital staff will administer whatever is necessary and the body will produce natural compounds in an effort to preserve and save the organs.

In cases with trauma, Lactated Ringers Solution is a common substance administered intravenously to combat acidosis, which is a chemical imbalance as a result of acute fluid loss or renal failure.30 Additionally, lactate is a compound formed by the body as a result of trauma and hypoxia where the tissue is deprived of oxygen.31 Furthermore, Lactate Dehydrogenase (LDH) is naturally in the muscle cells to breakdown lactate formed after anaerobic exercise, but is also released into the blood­stream after trauma or a car crash.32

Problems arise after a car crash or a traumatic injury when the hospital tests the blood for ethanol using enzymatic assay testing. LDH oxidizes Lactate, whether it is produced naturally or introduced through a solution, to Pyruvate using the coenzyme NAD, which is concurrently reduced to form NADH (2,3).33

ETOH + NAD+ + Ringer, Lactate, LDH — (ADH/LDH)
→ Acetaldehyde + NADH (but way more) + H+

A higher NADH concentration will result in a higher ethanol result.34 Why is the client’s alcohol result so high? Simple: Look at how much NADH is now produced. Similar to ethanol oxidizing to acetaldehyde and producing NADH, lactate oxidizes to pyruvate, also producing NADH.35 The photodetector is simply measuring the amount of energy that makes it through and is not absorbed by NADH. However, it cannot differentiate between the energy absorbed by NADH from the oxidation of ethanol or lactate.36 Just like when you stand on a scale and the scale doesn’t know if you are naked or wearing shorts with gold bars in your pockets.37 The machine may be “accurate” in the measurement, but the measurement is always relative to the individual, the environment, and any unique circumstances.

Since NADH is not specific to ethanol, there is no way to determine what level of NADH is a result of ethanol and what level is due to Lactate Ringer’s Solution, Lactate, or LDH.38 Ethanol combined with any of these additions will produce a falsely elevated ethanol result with undeterminable error.39 Additionally, there is no way to convert this method of testing to a whole blood measurement, which is required under the definition of intoxication. Tex. Penal Code § 49.01(1)(b).40 In the end, hospital enzymatic assay testing is not specific for ethanol, not forensically acceptable under the Kelly test, and ultimately does not belong in a courtroom.

Endnotes

1. See Nine, Jeffrey S., Serum-Ethanol Determination: Comparison of Lactate and Lactate Dehydrogenase Interference in Three Enzymatic Assays, 19 J. Analytical Toxicology 192, 192 (1995).

2. Hospitals may sometimes use these grey-topped tubes or may use red-topped tubes with clot activators or nothing. Always request and examine which type of tube was used and whether anything was in it. Special thanks to Justin McShane (http://www.themcshanefirm.com) for his edits. See also Citron, Joseph, Hospital Laboratory Testing Lacks Forensic Reliability, 20 J. of Legal Nurse Consulting 1, 3–4 (2009).

3. See Garriott, James C., Medicolegal Aspects of Alcohol, Fifth Edition, p. 258 (2008). See also Citron at 4; Courtney, Max, Utilizing Results of Various Blood Alcohol Determination Methodologies in Predicting Intoxication, Forensic Consultant Services, p. 2.

4. Id.

5. Id. See also Courtney at p. 2.

6. http://www.differencebetween.net/science/health/difference-between-plasma-and-serum/ ; http://www.buzzle.com/articles/serum-vs-plasma.html.

7. http://www.differencebetween.net/science/health/difference-between-plasma-and-serum/ ; http://www.buzzle.com/articles/serum-vs-plasma.html. Thanks to Justin McShane for this edit.

8. See Citron at 4. See also http://www.differencebetween.net/science/health/difference-between-plasma-and-serum/ ; http://www.buzzle.com/articles/serum-vs-plasma.html.

9. http://www.differencebetween.net/science/health/difference-between-plasma-and-serum/ ; http://www.buzzle.com/articles/serum-vs-plasma.html.

10. See Courtney, Max, Utilizing Results of Various Blood Alcohol Determination Methodologies in Predicting Intoxication, Forensic Consultant Services, p. 1–2.

11. Id.

12.See McShane, Justin, Hospital Blood Testing in Enzymatic Assay in a Nutshell, 2009, page 6, available, among other places, at http://www.bobkeeferlaw.com/library/Hospital_Blood_Testing_by_Enzymatic_Assay_in_a_Nutshell.pdf.

13. Id.

14. Id.

15. Id. See also Citron at 4.

16. See Citron at 4.

17. See Courtney at p. 1–2.

18. See the Beer-Lambert Law and http://www.rrcap.unep.org/male/manual/national/11Chapter11.pdf, page 67.

19. See http://en.wikipedia.org/wiki/Spectrophotometry.

20. See Courtney at p. 2.

21. See Courtney at p. 2. See also Rose, Stefan M.D., How False Positive Serum Ethanol Results Occur Using Enzyme-Assay Hospital Tests, p.1; University Medical and Forensic Consultants, Inc. 10130 Northlake Boulevard, Suite 214-300, West Palm Beach, Florida 33412.

22. Id.

23. See http://en.wikipedia.org/wiki/Monochromator.

24. See Nine at p. 192.

25. See http://www.chemistrybyscott.org/Worksheets%20&%20Handouts/AP%20Chem/Notes/Spectrophotometer-What_Goes_On_Inside.pdf.

26. See Garriott’s at 256–58.

27. See Citron at 4.

28. Id.

29. Id.

30. See Rose at p.1.

31. Id. See also Powers, Robert H., Evaluation of Potential Lactate/Lactate Dehydrogenase Interference with an Enzymatic Alcohol Analysis, 33 J. of Analytical Toxicology 561, 561 (2009).

32. Id.

33. Id.

34. See Nine at 193–194.

35. See Rose at p.1.

36. Id.

37. Thanks to Justin McShane for this analogy.

38. See Rose p. 1.

39. See Nine at 196; Rose at p. 1.

40. See Citron at p. 5.

2012 TCDLA Long-Range Planning Committee

TCDLA Long Range Planning Committee Members:
Sam Bassett (Chair), Gary Trichter, Bobby Lerma, William Harris, Rick Hagen, John Convery, David Moore, Grant Scheiner, Philip Wischkaemper, Michael Gross, Constance Luedicke

TCDLA Long Range Planning Committee Staff:
Joseph Martinez, Melissa Schank

Preamble

This Long Range Plan is the institutional guide for TCDLA during the next five years. The goals of the Long Range Plan are intended to fulfill the purpose of TCDLA, which is to protect and ensure by rule of law those individual rights guaranteed by the Texas and Federal Constitutions in criminal cases; to resist the constant efforts which are now being made to curtail such rights; to encourage cooperation between lawyers engaged in the furtherance of such objectives through educational programs and other assistance; and through such cooperation, education, and assistance to promote justice and the common good.

Committee Findings and Recommendations

The Committee has identified the following areas of particularized long-range concern for TCDLA. The Committee believes these areas should be thoroughly discussed and addressed by the Board. Where appropriate, the Committee has recommended specific actions to implement the stated goals.

Goal—Work to increase diversity among the membership of TCDLA, including both speakers and organizational leadership.

TCDLA recognizes the importance of the participation and involvement of women and minorities in all aspects of the organization—such as, but not limited to, seminar speakers, course directors, committee chairs, and top leadership positions in TCDLA. The association will make a concerted effort to encourage the participation of women and minorities for these positions and to encourage women and minorities to join and participate in TCDLA. Some members have expressed concerns about diversity issues within the TCDLA leadership, and an objective analysis of such issues should be considered in the short term, along with coordinating such efforts with the existing committees within TCDLA to implement any necessary changes.

Goal—Strive to increase TCDLA’s presence on law school campuses across the State.

The majority of future TCDLA members will attend and graduate from a Texas law school. As the statewide organization for criminal defense lawyers in the State of Texas, TCDLA must continue to encourage law student interest in the study of criminal law. TCDLA needs to create and support law school trial advocacy programs, internships, and other criminal law courses and programs that prepare law students to become professional criminal defense lawyers. The TCDLA organization involvement with law schools and law students is sporadic, well meaning, but not at all well organized. TCDLA should consider and create an institutional framework and create and designate specific programs for law student participation in the TCDLA. Will a TCDLA Law Student Division, Section, or Committee work best for TCDLA? Should a law student be a regular or ex officio member of the TCDLA Board of Directors? If so, should the law student member be elected by other TCDLA law student members? Or, should selection of a law student Board Member position rotate yearly between the Texas law schools, with the President or Chair of the law school criminal law organization affiliated with TCDLA filling the position for a year? Should TCDLA encourage existing law school criminal law associations to affiliate with TCDLA to create a law student division or section? Would this be best accomplished with TCDLA and the local affiliate closest to the law school? TCDLA should create a committee, and consider whether the committee should become a standing committee to address the framework for future law student participation in TCDLA. The committee should investigate and report on current and future law student programs for law student participation in the TCDLA, including trial advocacy programs and TCDLA sponsored internships.

Goal—Keep TCDLA at the forefront of breakthroughs in technology to provide the most current advance to our membership.

TCDLA has a Technology Committee currently involved in the following six projects:

1.  Organizational App—TCDLA plans to build an organizational app for smartphones and other mobile devices. The app will be distinguishable from the TCDLA Legal App, which contains federal and state criminal codes, rules, and statutes. The organizational app may include an online directory of TCDLA members, a system for registering for CLE, a method for purchasing publications and merchandise, a system for renewing TCDLA membership, plus an Amazon-type “suggestions” feature for suggesting additional CLE and purchases to TCDLA members. The Technology Committee estimates that TCDLA has budgeted up to $15,000 for an organizational app. (It may be possible to use CDLP grant money to offset as much as 40–67 percent of the cost.) Additional maintenance fees would be expected in the years ahead. The Technology Committee is in the process of securing bids for developing the app, then will study the bids and report back to TCDLA leadership. The Technology Committee hopes to have the construction well underway, if not completed, by June 2012.

2.  Online CLE—TCDLA is exploring offering “Online CLE.” Many organizations, including TCDLA’s competitors for CLE, offer online “streaming” of live or archived lectures. The streaming may include audio or video with audio. The Technology Committee estimates that TCDLA has budgeted approximately $1,000 for implementing a system. Additional funding from CDLP may be possible. TCDLA is considering two basic options. The first option is to develop our own system, which would allow TCDLA members to register online and pay through a service such as PayPal. Upon payment, members would be emailed “viewing links” to allow immediate access to CLE. A second option would be to contract out the entire process. Some services may be available, which would handle payment collection and online storage of audio and video lectures. The service would presumably take a portion of the proceeds of each CLE sale. All TCDLA would need to do is digitally recorded CLE lectures to the service. The Technology Committee will meet with counterparts at the State Bar of Texas and ask which system(s) the State Bar uses. TCDLA’s goal is to have a system in place by spring 2012.

3.  E-Books for Publications—TCDLA is exploring offering select publications in “e-book” 1 format, for use on reader devices and tablet devices, such as Kindle, Nook, and iPad. TCDLA does not currently have a budget for this project. However, it is clear to the Technology Committee that it is only a matter of time before the majority of TCDLA’s publications will be offered in e-book or similar format. In fact, TCDLA may one day dispense with most or all of its paper publications. In wading into this project, TCDLA could begin by offering three to five of its best-selling publications on Amazon. The Technology Committee believes that Amazon may charge as little as $39.99 per month, per publication. (Amazon also takes approximately 15% of the proceeds for each sale.) Supplying digital material to Amazon would not likely be a problem, because TCDLA already offers many publications in PDF format on CD-ROM. (Although our CD-ROMs contain digital material in suitable formats, CD-ROMs cannot be played on Kindles, Nooks, iPads, or any of the most popular mobile devices.) TCDLA does not have a target date for completion of this project.

4.  Video Conferencing—TCDLA is exploring video conferencing for TCDLA meetings. This project has great potential for improving the quality of communication among and between TCDLA staff, officers, board members, and general members. It also has the potential to save the organization significant money in travel costs. The Technology Committee estimates that $2,400 could be budgeted for a video conferencing project during 2011–12. However, at this point, TCDLA is facing several hurdles to implementing a system. The first hurdle is deciding which type of video conferencing method to use, as well as when and how to use it. Video conferencing can either be “one way” or “two way.” One-way video conferencing is a fairly straightforward system in which a meeting location has a video camera and a microphone. The speaker stands in front of the camera and talks into the microphone. A digital signal is uploaded to the internet. Viewers can tune in from their desktop computers and (in the not-too-distant future) their mobile devices. Remote viewers who do not attend meetings can only participate via telephone. Two-way video requires a video camera and microphone at the meeting location, as well as the locations for every remote viewer. Usually, two-way video participants in remote locations have small video cameras and microphones mounted to their desktop computers. The quality of the video can vary, depending on the sophistication of the system and the speed of the internet connection. Although live, two-way video is a superior method for communication among participants, very few (if any) systems allow more than several users in several different locations at a time. Such limited systems would be impractical for large TCDLA committee meetings or board meetings. Additionally, it could prove initially difficult to teach the participants how to install and use their systems. Because the price for video conferencing systems is supposed to drop over time—while the quality and ease-of-use are supposed to increase—the Technology Committee recommends that it continue to study this issue as a long-term project with no current target date for completion. The Technology Committee believes a patient approach may yield the best result for this important project in the long run.

5.  Imus—The Technology Committee has overseen updates to the “Imus” software tasking system for TCDLA. The Imus system performs many automated tasks, such as sending TCDLA membership renewal notices and discount coupons on members’ birthdays. According to the Technology Committee, TCDLA purchased the software, with a 67% offset of the purchase price by CDLP. This project is essentially completed.

6.  Facebook & Twitter—TCDLA is considering recruiting volunteers to send “gossipy” and fun information and material to our members via Facebook and Twitter social networking. TCDLA needs people who are somewhat computer literate and who have discretion and common sense when it comes to knowing what to post and what not to post. The Technology Committee believes that social networking will become a vital tool in attracting and retaining younger lawyers to TCDLA.

Goal—Develop alternative methods of fundraising to help insure the long term financial stability of the organization.

Numerous opportunities exist to raise funds in a strategic fashion for TCDLEI or any other entity that may come into existence to handle the strategic funding of TCDLA. Most of these are tried-and-true fundraising methods that foundations, large and small, use to raise funds. TCDLA would require the employment of a full-time person for successful strategic fundraising. The following comprise areas of strategic fundraising which could be pursued by TCDLA.

Planned Giving could be used for strategic fund­raising. Planned giving includes several avenues for a benefactor to leave a legacy. The downside with this approach is that it will require a dedicated fundraiser to make the initial contacts with the benefactors and see that the gift comes to fruition. The upside is that a good fundraiser, within a couple of years, will more than pay for itself. First and perhaps easiest are stocks and bonds that someone has purchased in the past and do not plan on using for retirement. This usually will include smaller amounts of stock that may have been purchased over the years that the person may have even forgotten they had purchased. The stocks or bonds are simply turned over to TCDLA and sold, placing the funds in the foundation. The idea is not to play the stock market, but to liquidate immediately and realize the benefits for the entity. In the same vein, old parcels of real estate can be donated and liquidated for the proceeds. Again, someone has to be in charge of acquiring these properties and liquidating them as well. Although they may not be worth a great deal, the person may be happy to get rid of them so they can stop paying taxes on them. A common fundraising plan is to get members to purchase insurance policies naming the entity as the beneficiary. The gift can be in any increment depending on how much of a gift the donor wants to leave. This, again, requires a full time fundraiser to coordinate on following through with these donors. Again, the gift in the will can be cash, stocks, bonds, real property, or anything of worth that can be liquidated.

Grants could be used for strategic fundraising. There are private law firms across the country (Texas Defender Service is an example) who depend almost entirely on private grants for their funding. In addition, the Innocence Project receives grants for its operations outside the state grant it has received in the past. The TCDLA forensics program could be billed as an innocence-based project and could readily tap into grant funding. It still makes sense to utilize any outside funding as TCDLA seeks to grow its strategic funds.

Other fundraisers include a golf tournament such as the annual golf tournament at Rusty Duncan. Sponsors for each hole allow all (or most of the) entry fees to be turned over to the entity. The fact that it is a fundraiser could increase the attendance to that event. The Pachanga party could be used as the membership party and the Friday night party could be a black-tie affair again, turning it into a fundraiser. These Galas usually include a silent auction and perhaps a gambling night in addition to the food, drink, and dancing. Sponsors (Lexis, West, etc.) are usually utilized to offset the costs of the party so all proceeds from sales of tickets can go to the fund. This would be a good opportunity for “older” lawyers to purchase extra tickets and invite younger lawyers to introduce them to the “club.” Since this party has a history, the conversion to it as a fundraiser will be made less difficult.

Nonprofit fund raising professionals are today every bit as much a profession as are attorneys. They have a professional organization and a code of ethics. TCDLA should employ a development officer who can widen our financial base.

Goal—Increase dialogue with other sections of the Bar, identify areas of common interest, and collaborate with those other sections to promote the interest of TCDLA and its members.

Criminal defense lawyers have often been unaware and/or unwilling to seriously consider the impact of other practice areas. Other areas of practice are increasingly influencing policy and practice of criminal defense. From a policy standpoint, the criminalization of conduct that used to be considered “civil” in nature has increased. As this has occurred, it is critical for a criminal defense lawyer to be educated and aware of developments in areas of the law that could impact the representation of those accused, both in the investigative and litigation phases of criminal defense practice.

The strategic planning committee has identified three areas of practice where TCDLA should consider collaborative continuing education events. It is important to have increased communication with leadership for purposes of informing and influencing policy, as well as keeping lawyers up to date on changes in the law. The committee felt that the areas of Family Law, Immigration Law, and Bankruptcy Law are areas TCDLA should specifically target for collaboration over the next five years. The following is an example of why an area such as Family Law should be the subject of collaboration.

Family Law and Criminal Law are areas where coordination between TCDLA and the leaders of the Family Law Bar is a necessity. Many attorneys only practice in one of the above areas and yet are consistently involved in litigation that can impact each area of any given case. For instance, many family law practitioners are making decisions to conduct hearings on a protective order application following their clients’ arrest for assault in the context of a pending or potentially pending divorce case. Another example of this scenario occurs when a child abuse allegation has been made and there are civil proceedings relating to the termination of the parent-child relationship, in which hearings are being held and discovery is being instituted. In these and other situations, it is critical for the civil/family law attorney handling the matter to be educated on at least some of the basic principles of criminal defense so that the client may be properly advised. In many instances, the best advice is to decline to participate in the process altogether. The strategic planning committee has made initial contact with leaders of the Family Law Bar, and there is definitely an interest in a potential continuing education event taught by both criminal and family law practitioners. Such an interdisciplinary seminar may open the eyes from “both sides of the aisle” when it comes to handling cases with both criminal and family law aspects. It is hoped that TCDLA will work with the leadership of the Family Law Bar to institute an initial continuing education event in 2012 or 2013. Another arena for linkage between criminal and family law is in the area of policy influence. Both areas of practice are governed largely by “code.” Thus, it is critical that communication and potential collaboration in the area of lobbying the Legislature be strongly considered.

The practices of many TCDLA members include both criminal and family law. It is important to remember that TCDLA should assist those members as much as those who have more specialized practices. Regardless of this factor, even a specialized criminal defense lawyer who handles cases involving child or spousal abuse allegations should be educated to a certain extent on the family law perspective of such situations. Further, the impact on policy cannot be underestimated either. After all, the family law lobby may carry more weight with certain legislators than TCDLA. Teaming together may help to produce optimal results in any given situation.

Recent Supreme Court decisions relative to the impact of convictions for certain crimes on a person’s immigration status in the U.S. have made it imperative for most criminal defense attorneys to at least have a rudimentary understanding of immigration issues in criminal cases. A regular effort should be made to keep criminal defense attorneys up to date on developments in immigration law. These impacts are constantly changing and being revised. It will be a continuing project and should be a regularly scheduled continuing education component for TCDLA.

Reprieve

Does your client have ties to foreign countries? Could they have a claim to foreign nationality? If so, Reprieve can help…

Reprieve is a group of international charities dedicated to assisting in the provision of effective legal representation and humanitarian assistance to impoverished people facing the death penalty at the hands of the state; to producing and publishing information about the use of the death penalty and to raising awareness more generally concerning human rights.

Neil Revill was born in County Durham, in the northern part of the UK, in August 1972. He spent his school years traveling between Royal Air Force bases in Germany and England, where his father was stationed. By 1988, he was living in Los Angeles. In October 2001, a small-time drug dealer named Arthur Davodian and his girlfriend, Kimberly Crayton, were stabbed to death. Davodian was found decapitated. According to the prosecution, Neil was the last person to be seen with the couple; as such, he was charged with their murder. Neil has always maintained his innocence.

Reprieve, a nonprofit capital defense organization, became involved in Neil’s case. Reprieve worked closely with the British government and Neil’s public defenders to secure an agreement from the prosecution that they would not seek the death penalty. In March 2011, after six days of deliberation, Neil was convicted and sentenced to life imprisonment without the possibility of parole. Reprieve continues to assist on Neil’s case in the course of his appeals.

Could Your Client Be Entitled to Foreign Nationality?

ABA Guideline 10.6A provides that “Counsel at every stage of the case should make appropriate efforts to determine whether any foreign country might consider the client to be one of its nationals,” urging counsel to investigate fully the possibility that some country might be willing to assist the defendant.

Indeed, the determination of nationality may require some effort by counsel. Foreign citizenship legislation can be surprisingly flexible, sometimes allowing a person whose overseas connections go back generations—even to grandparents or great-grandparents—to have their nationality recognized. Some countries have “right of return” clauses to facilitate the reunion of a diaspora. For example, descendants of German nationals who were deprived of their citizenship on political, racial, or religious grounds between 1933 and 1945 can have their German citizenship recognized. Residents of former colonies may be entitled to recognition as a national of the colonizing nation. Linda Carty, for instance, is a British woman on death row in Texas. She was born on the Caribbean island of St. Kitts and Nevis, and her mother was born on the neighboring island of Anguilla, a former British protectorate. Because of this, Linda is a British national, and she has been receiving substantial assistance from the British government.

Opportunities Arising from Foreign Nationality

Foreign nationality brings with it a whole range of unique opportunities for effectively representing your client. Engaging the weight of a foreign government in your client’s case can facilitate access to extremely persuasive mitigation evidence, as well as other resources that can be utilized by the defense team to great advantage.

Many countries place an extremely high priority on their right to provide consular services to their detained nationals, particularly where the individual is facing a death sentence. Consuls have the power to provide a wide range of humanitarian and other assistance. This can include facilitating funds to the defense team, assisting with records collection and investigation abroad, identifying expert witnesses, enlisting the diplomatic assistance of their country to communicate with the State Department and international and domestic tribunals (e.g., through amicus curiae briefs), providing culturally appropriate resources to explain the legal procedures of the detaining country, providing interpreters, arranging for contact with family and friends, and generally acting as a cultural bridge between the detainee and their defense team.

This assistance can bring critical resources to bear on the penalty phase of trial by humanizing the defendant in front of the jury in a culturally sensitive way. Consular officials may also make representations to the prosecutor, asserting the country’s interests in avoiding the death penalty for its national and providing reasons why a death sentence is not appropriate in that particular case. Engaging the consulate can make the difference between a foreign national facing death or a lesser sentence.

The Vienna Convention on Consular Relations

The right to consular assistance is contained in Article 36 of the Vienna Convention on Consular Relations (the “VCCR”), a multilateral treaty ratified unconditionally by the United States in 1969. Under its provisions, an obligation rests on local authorities to promptly inform detained or arrested foreign nationals of their right to communicate with their consulate. At the request of the foreign national, local authorities must contact the consulate and permit consular communication and access.

However, law enforcement authorities frequently fail to comply with their obligations under the VCCR. Any such failure is likely to have both practical and legal implications for a detained foreign national. As a legal matter, a breach of the VCCR can give rise to a claim on behalf of your client. Reprieve can assist counsel in drafting motions that raise these violations. It is also worth noting that diplomatic conflict over international law violations can be a factor the prosecution considers in determining whether to agree to a non-death resolution of a case.

How Reprieve Can Help

In 1999, Clive Stafford Smith, a British-American capital defense attorney who has represented over 300 prisoners facing the death penalty in the southern U.S., moved back to the U.K. and founded Reprieve. Since then, Reprieve has acquired over ten years’ experience providing pro bono assistance to British nationals facing death sentences around the world, helping to coordinate timely and effective intervention by the British government from the pretrial stage to clemency.

Reprieve has since expanded its work to include assisting nationals from other countries. In 2009, Reprieve launched a project, largely funded by the European Commission, to identify and assist individuals facing death sentences in the U.S. with overseas ties: the “EC Project.” As part of the Project, Reprieve is reviewing the entire American death row population for individuals with foreign ties in order to determine whether Reprieve can provide pro bono assistance on their cases. The role that Reprieve plays is decided on a case-by-case basis and is always guided by U.S. counsel.

Some examples of what Reprieve has done in the past include overseas records collection and investigation, applying for formal recognition of foreign nationality, locating cultural experts and other expert witnesses, assisting with international law motions and amicus curiae briefs, and facilitating high-level diplomatic representations by foreign governments and international organizations. As a cost-free resource for U.S. attorneys, Reprieve helps defense teams take advantage of the opportunities arising from representing a foreign national client.

To establish how Reprieve can help in your client’s case, please contact Kate Higham (/ 504.569.8199).

President’s Message: Roy Benavidez: An Inspiring American Hero—A Reminder for the Defense Lawyer to have Faith, Determination, and a Positive Attitude – By J. Gary Trichter

Texan Roy Benavidez was born near Quero, Texas, in 1935. His parents were of Mexican and Yaqui Indian descent. Roy lost his father when he was but two years old and his mother when he was but seven years old—both to tuberculosis. He was then raised by his grandfather, uncle, and aunt in El Campo, Texas.

Roy dropped out of school at age 15 to help support his family. He worked at picking cotton, selling newspapers, shining shoes, and at a tire shop. Roy soon learned the need for education and looked for a place to get it. He chose the United States Army.

In 1952 Roy Benavidez enlisted in the Army and became a member of the famed 82nd Airborne Division and later became a Green Beret. He went to Vietnam twice—1965 and 1968. The following is from Wikipedia:

Military Career

In 1952, during the Korean War, Benavidez enlisted in the Texas Army National Guard. In June 1955, he enlisted in the regular United States Army. He married Hilaria Coy in 1959, the year he completed his airborne training and was assigned to the 82nd Airborne Division at Fort Bragg. In 1965 he was sent to South Vietnam as an advisor to an ARVN infantry regiment. He stepped on a land mine during a patrol and was evacuated to the United States, where doctors at Brooke Army Medical Center (BAMC) thought he would never walk again. Despite serious injury to his spine, Benavidez walked out of the hospital in July 1966, his wife at his side. [citation needed]

Benavidez returned to Fort Bragg to begin training for the elite Studies and Observations Group (SOG). Despite continuing pain from his wounds, he became a member of the 5th Special Forces Group and returned to South Vietnam in January 1968. On May 2, 1968, a 12-man Special Forces team was surrounded by an NVA battalion. Benavidez heard the radio appeal for help and boarded a helicopter to respond. Armed only with a knife, he jumped from the helicopter carrying a medical bag and rushed to join the trapped team. Benavidez “distinguished himself by a series of daring and extremely glorious actions . . . and because of his gallant choice to join voluntarily his comrades who were in critical straits, to expose himself constantly to withering enemy fire, and his refusal to be stopped despite numerous severe wounds, saved the lives of at least eight men.” He was believed dead after finally being evacuated and was being zipped up in a body bag when he mustered the last of his strength and spit in the face of a medic, thereby alerting nearby medical personnel that he was still alive. . . .

Nearly dead from a total of 37 separate bayonet, bullet and shrapnel wounds received on multiple occasions over the course of the six-hour fight between the 13 men and an enemy battalion,[1] Benavidez was evacuated once again to Brooke Army Medical Center, where he eventually recovered. For his heroism, the Army awarded him the Distinguished Service Cross.

In 1973, after more detailed accounts became available, Special Forces Lieutenant Colonel Ralph R. Drake insisted that Benavidez receive the Medal of Honor. By then, however, the time limit on the medal had expired. An appeal to Congress resulted in an exemption for Benavidez, but the Army Decorations Board still denied him the Medal of Honor. The board required an eyewitness account from someone present during the action, but Benavidez thought that no others were alive who had been at the “Six Hours in Hell.”[citation needed]

In 1980, however, Brian O’Connor, a radioman in the attacked Special Forces team, provided a ten-page report of the engagement. O’Connor had been severely wounded (Benavidez had believed him dead), and was evacuated to the United States before his superiors could fully debrief him. O’Connor learned that Benavidez was alive by chance. He had been living in the Fiji Islands and was on holiday in Australia when he read a newspaper account of Benavidez from an El Campo newspaper. It had been picked up by the international press and reprinted in Australia. O’Connor soon contacted his old friend and submitted his report, confirming the accounts already provided by others and providing the missing eyewitness.

On February 24, 1981, President Ronald Reagan presented Roy Benavidez the Medal of Honor. Reagan reportedly turned to the press and said: “If the story of his heroism were a movie script, you would not believe it.” He then read the official award citation.[citation needed]

Medal of Honor citation

BENAVIDEZ, ROY P.

Rank and organization: Master Sergeant. Organization: Detachment B-56, 5th Special Forces Group, Republic of Vietnam

Place and date: West of Loc Ninh on May 2, 1968

Entered service at: Houston, Texas June 1955

Born: August 5, 1935, DeWitt County, Cuero, Texas.

Citation:

Master Sergeant (then Staff Sergeant) Roy P. Benavidez, United States Army, who distinguished himself by a series of daring and extremely valorous actions on 2 May 1968 while assigned to Detachment B56, 5th Special Forces Group (Airborne), 1st Special Forces, Republic of Vietnam. On the morning of 2 May 1968, a 12-man Special Forces Reconnaissance Team was inserted by helicopters in a dense jungle area west of Loc Ninh, Vietnam, to gather intelligence information about confirmed large-scale enemy activity. This area was controlled and routinely patrolled by the North Vietnamese Army. After a short period of time on the ground, the team met heavy enemy resistance, and requested emergency extraction. Three helicopters attempted extraction, but were unable to land due to intense enemy small arms and anti-aircraft fire. Sergeant Benavidez was at the Forward Operating Base in Loc Ninh monitoring the operation by radio when these helicopters returned to off-load wounded crewmembers and to assess aircraft damage. Sergeant Benavidez voluntarily boarded a returning aircraft to assist in another extraction attempt. Realizing that all the team members were either dead or wounded and unable to move to the pickup zone, he directed the aircraft to a nearby clearing where he jumped from the hovering helicopter, and ran approximately 75 meters under withering small arms fire to the crippled team. Prior to reaching the team’s position he was wounded in his right leg, face, and head. Despite these painful injuries, he took charge, repositioning the team members and directing their fire to facilitate the landing of an extraction aircraft, and the loading of wounded and dead team members. He then threw smoke canisters to direct the aircraft to the team’s position. Despite his severe wounds and under intense enemy fire, he carried and dragged half of the wounded team members to the awaiting aircraft. He then provided protective fire by running alongside the aircraft as it moved to pick up the remaining team members. As the enemy’s fire intensified, he hurried to recover the body and classified documents on the dead team leader. When he reached the leader’s body, Sergeant Benavidez was severely wounded by small arms fire in the abdomen and grenade fragments in his back. At nearly the same moment, the aircraft pilot was mortally wounded, and his helicopter crashed. Although in extremely critical condition due to his multiple wounds, Sergeant Benavidez secured the classified documents and made his way back to the wreckage, where he aided the wounded out of the overturned aircraft, and gathered the stunned survivors into a defensive perimeter. Under increasing enemy automatic weapons and grenade fire, he moved around the perimeter distributing water and ammunition to his weary men, reinstilling in them a will to live and fight. Facing a buildup of enemy opposition with a beleaguered team, Sergeant Benavidez mustered his strength, began calling in tactical air strikes and directed the fire from supporting gunships to suppress the enemy’s fire and so permit another extraction attempt. He was wounded again in his thigh by small arms fire while administering first aid to a wounded team member just before another extraction helicopter was able to land. His indomitable spirit kept him going as he began to ferry his comrades to the craft. On his second trip with the wounded, he was clubbed with additional wounds to his head and arms before killing his adversary. He then continued under devastating fire to carry the wounded to the helicopter. Upon reaching the aircraft, he spotted and killed two enemy soldiers who were rushing the craft from an angle that prevented the aircraft door gunner from firing upon them. With little strength remaining, he made one last trip to the perimeter to ensure that all classified material had been collected or destroyed, and to bring in the remaining wounded. Only then, in extremely serious condition from numerous wounds and loss of blood, did he allow himself to be pulled into the extraction aircraft. Sergeant Benavidez’ gallant choice to join voluntarily his comrades who were in critical straits, to expose himself constantly to withering enemy fire, and his refusal to be stopped despite numerous severe wounds, saved the lives of at least eight men. His fearless personal leadership, tenacious devotion to duty, and extremely valorous actions in the face of overwhelming odds were in keeping with the highest traditions of the military service, and reflect the utmost credit on him and the United States Army.

Quitters Never Win and Winners Never Quit

We are fortunate to live in a time where we have so much technology. We are fortunate that we can actually hear from Sergeant Roy Benavidez himself on You Tube at http://www.youtube.com/watch?v=_oUtJxE4sjs&feature=related. I highly recommend that each of you go to this link and listen to this hero. Without question, Roy was a great American and an inspiring patriot, he died in 1998.

We defense lawyers ought to have the same “love of country” as Roy did. We need to remember that our work gives meaning to the sacrifices he and our other military men and women have made for us—the American People. Indeed, we also need to remember that no one is shooting at us when we do our work, meaning that we have to have courage to do the right thing!

TCDLA is an Association of constitutional heroes. We are an Association of freedom fighters. We are an Association that cares about Unalienable Rights. Although we do not face the same dangers that Roy and our military do, we do stand as a bastion against those who would attack our God given rights. I am very proud to stand with each of you in our work as constitutional defenders. Thank you for doing what you do!

Your President,
J. Gary Trichter

Executive Director’s Perspective: By the Numbers – By Joseph A. Martinez

Special thanks to John Convery (San Antonio) and Henry Bemporad (San Antonio), our course directors for the Federal Law seminar held in New Orleans in March. Thanks to their efforts we had an outstanding lineup of speakers.

The TCDLA Board met in New Orleans on March 10. The following motions passed at the board meeting:

  • MOTION: TCLDA Membership Directory
    Keep the format and process the same as current year for the 2012–2013 TCDLA Membership Directory
  • MOTION: Change 401(k) retirement plan for TCDLA staff by Lowering Age Coverage to 18 Years
  • MOTION: Approve Hall of Fame 2012 Recipients Charles McDonald and Roland Dahlin II
  • By Acclimation, Troy McKinney as Lawyer of the Year for 2012
  • MOTION: Approve John Raley as a TCDLA Honorary Member

The Board wants to inform members about the SBOT Texas Lawyers Assistance Program (TLAP). The Board recognizes we need to help each other. We need to be supportive of our sisters and brothers who may need our help. TLAP is a confidential 24 hour-a-day service. Please go to the SBOT or TCDLA websites for more information.

Through six months of the 2012 fiscal year, here are several performance items:

Number of Seminars held:
TCDLA         6
CDLP           18
Number of Lawyers Trained:
TCDLA         574
CDLP           1,939
TCDLA Membership:
Current members      3,201
New members             167
Dropped members    266
TCDLA website hits   1,340,000
Voice Online hits       400,000

Very special thanks to Lydia Clay-Jackson (Conroe), Dean of Students, and Tim Evans (Fort Worth), Dean of Faculty, for the 36th Annual Texas Criminal Trial College held in Huntsville. We also thank the 37 faculty for participating in this year’s college. We had 79 students from all across Texas. We have a list of the faculty and graduates from this year’s college on page 21. Please join us in congratulating these lawyers.

Special thanks to the National College for DUI Defense (NCDD) and their Dean, Mr. George A. Stein, for allowing TCDLA to co-sponsor the Mastering Scientific Evidence in DUI/DWI Cases seminar held in New Orleans. Special thanks to Troy McKinney (Houston), who also serves as Assistant Dean of NCDD, Gary Trichter (Bandera), and Mimi Coffey (Fort Worth), course directors for this year’s seminar. Special thanks to Rhea Kirk, Executive Director. Thanks to all of their efforts, we had 180 attendees from all across the USA.

This year marks the seventh year of this unique working relationship between NCDD and TCDLA. We recognize Troy McKinney, Assistant Dean of NCDD and past TCDLA board member, who conceived the idea and became its champion.

Special thanks to the San Antonio Bar and their President, Gary Hutton, for allowing Criminal Defense Lawyers Project (CDLP) to co-sponsor the 49th Annual AA Semaan Seminar. Special thanks to their Executive Director, Jimmy Allison. John Convery (San Antonio) was course director. This event was the first CLE for criminal law in the state.

The Texas Criminal Defense Lawyers Educational Institute (TCDLEI) Board has approved funds for this year’s 25th Annual Rusty Duncan Advanced Criminal Law Course. TCDLA thanks TCDLEI for its support.

Are you interested in forming a local criminal defense bar? Need help getting organized? Please contact Bobby Mims, Chair of the TCDLA Affiliate Committee ().

Please save the date to join us at the 25th Annual Rusty Duncan Advanced Criminal Law Course, June 7–9, 2012. Our course directors will be Troy McKinney, Stephanie Stevens, and Doug Murphy, with our associate course directors Sharon Curtis, Sarah Roland, and Marjorie Bachman. The theme will be “Ridin’ for Justice—Celebrating 25 Years,” a cowboy theme. A fun run and bike ride will be part of the healthy lifestyle options that will be available.

Good verdicts to all.

Editor’s Comment: Why I Think the Death Penalty Will Die – By Greg Westfall

“From this day forward I shall no longer tinker with the machinery of death.”

Justice Harry Blackmun (dissenting to denial of cert.)
Callins v. Collins, 510 U.S. 1141 (1994)

I just tried what I am sure will be my last death penalty case. It is a decision I made a year and a half ago—to stop doing capital work. It has just taken this long to be finished with them. State of Texas v. Mark Anthony Soliz was the last one that came in before I took my name off the list at the end of 2010. I tried my first death penalty case at the beginning of April, 1999. My last ended at the end of March, 2012. Thirteen years is enough for me.

I have had the good fortune, though, to be doing this during a watershed time for the death penalty. And from where I stand, it looks to me like the death penalty’s days are numbered. Here’s why.

On the one hand, we have Wiggins v. Smith, 539 U.S. 510 (2003), and the ABA and Texas guidelines for the defense of capital cases and all their requirements that mitigating evidence in a death penalty case be exhaustively investigated and presented to the jury. These documents not only provide the initial impetus for capital defenders to undertake an investigation “from the point of a defendant’s conception” (actually stated in the ABA Guidelines), but they also put the onus on the courts to pay for such an investigation. What’s more, it’s not just the Supreme Court, but the death penalty-consuming public who demands this. The part of the public that supports the death penalty is not going to support a death penalty administered without this type of work, both for guilt-innocence and mitigation.1 They need this to feel comfortable with the death penalty. They need to feel like it’s fair.

Then, on the other hand, we have science. In particular, brain science. The state of the current research goes something like this: The brain is only partially developed at birth. Brain development after birth is driven more by experiences than genetics. A child who is abused or, worse, neglected actually sustains brain damage. This brain damage evidences itself in many of the behaviors we see in our clients—hyperactivity, poor impulse control, aggressiveness, and a disturbing lack of empathy. The cluster has been often referred to as “attachment disorder,” although the inability to make attachments is really only part of it. There is also the multitude of insults to the fetus—such as fetal alcohol syndrome—that are becoming well-understood and evidence many of the same characteristics.

These discoveries serve to explain the behaviors in our clients that in the past were attributed to being simply “evil.” In fact, I believe that these discoveries and those to come will challenge the very notion of “evilness.” I asked every potential juror in this last case if anyone was just born evil. To a person they said “no.” To the extent that biology steps up with credible explanations for bad behavior, then perhaps we as a society can depend less and less on simplistic notions like “evil.” And to the extent that such explanations are given—and, ultimately, believed—our client’s moral blameworthiness should be reduced accordingly.

It comes down to fault and choices. Is our client like he is through no fault of his own? If so, then he should be less morally blameworthy. He made a choice to kill, yes, but how much did his disability inform that “choice”? In this light, the superstition of evilness begins to give way to something like a rational explanation. Ultimately, the majority of people will accept the science of brain development and abandon the simplistic notion of “evil.” When they do, and when it is shown that even this “monster” in front of them was created through no choice of his own, then they will take this into account. Life sentences will result.

So how do these two things feed off each other? Well, through the massive Wiggins– and ABA Guidelines-driven investigations, lawyers will discover and present the scientific answers to more and more educated and accepting juries. At the same time, the science will continue to evolve, revealing still more answers and better ways to diagnose and present them. Already, brain imaging has arrived to supplement the neuropsychological testing we have grown up with. That science is relatively new and quickly evolving.

And brain imaging, like the experts who are needed to present it, is really, really expensive. Which brings me to the reason I believe the death penalty’s days are numbered.

I have always said that the death penalty is a luxury. I define a luxury as anything you want but don’t need. We don’t need the death penalty. Everyone with any sense will agree that it doesn’t offer general deterrence. Anyone who cares to really research the issue even just a little can tell you that a death sentence is way more expensive than a sentence of life without parole. And anyone who works for TDCJ and has an ounce of integrity and honesty will admit that our prison system has no problem housing even the worst capital murderers.

The death penalty, simply stated, is unnecessary. It is redundant. It is a luxury. And this luxury is getting very expensive indeed. And there is no way to stop it now.

Brain science tells us that mitigating evidence is in there; we just have to find it. The methods for doing so, and presenting what we find to a jury, are becoming more sophisticated and, yes, more expensive by the day. Wiggins and the ABA Guidelines absolutely require the defense team to explore every possible avenue of mitigation. By extension, the courts have to pay for it and they do, out of the pockets of we, the people. Over time, as the people who make up juries become more accepting of brain science, the rate of extremely expensive life sentences will only go up. It is a cycle that cannot now be undone.

So my humble prediction is that the death penalty will die, not because we all collectively decide it is wrong, but because we all collectively decide it is simply not worth the money. And while it might have been nice to see our society evolve to the point where we abandon the death penalty on more philosophical grounds, hey, whatever works.


1. Having just gone through individual voir dire for six weeks, I can tell you that jurors are really concerned about exonerations. Anyone who could articulate an argument against the death penalty was likely to cite to innocent people in prison and exonerations. This doesn’t mean I think the courts or anyone else will do away with the death penalty because of exonerations, because I don’t. But it does translate to a demand that they be shown this is the right guy, number one, and that his case was presented as fairly as possible.

Federal Corner: “What’s in Your Cell Phone?” – By F. R. Buck Files Jr.

Several years ago, I was on a cruise ship that had docked in Kusadasi, Turkey. I called the office to check in and found out that I had a crisis. Over the next four hours I made or received a number of calls as we tried to work through the issues. When you have a cell phone, you’re always in touch with your home or your office or your clients or your friends. I love my cell phone. Law enforcement officers like cell phones, too. Individuals whom they arrest often have cell phones that contain information that will help the government convict them.

The United States Court of Appeals for the Seventh Circuit recently held that looking in a cellular telephone found on a defendant’s person to identify its telephone number was a valid warrantless search incident to arrest and affirmed the defendant’s conviction. U.S. v. Flores-Lopez, ___F.3d ___ 2012-WL 652504 (7th Cir. 2012) [Panel: Circuit Judges Bauer, Posner, and Rovner (opinion authored by Posner)].

Abel Flores-Lopez and two co-defendants were caught in a sting operation by law enforcement officers who had received information that Flores-Lopez was a supplier of illegal drugs to another drug dealer. The officers who arrested Flores-Lopez seized a cell phone from his person. At the scene of the arrest, the officers searched the phone in order to obtain its telephone number. Taking this information, the government used it to subpoena three months of the call history.

At trial, Flores-Lopez’s attorney objected when the government sought to introduce the call history into evidence. [Note: There is nothing in the opinion to indicate that a motion to suppress was filed.] United States District Judge Lawrence of the Southern District of Indiana overruled the objection. Flores-Lopez was convicted of various drug related offenses; thereafter, he gave notice of appeal.

Judge Posner’s opinion includes, in part, the following:

[The Court’s Introduction]

      This appeal requires us to consider the circumstances in which the search of a cell phone is permitted by the Fourth Amendment even if the search is not authorized by a warrant. Lurking behind this issue is the question whether and when a laptop or desktop computer, tablet, or other type of computer (whether called a “computer” or not) can be searched without a warrant-for a modern cell phone is a computer.

***

[The Defendant’s Position]

      The defendant argues that the search of his cell phone was unreasonable because not conducted pursuant to a warrant. The phone number itself was not incriminating evidence, but it enabled the government to obtain such evidence from the phone company, and that evidence, the defendant argues, was the fruit of an illegal search and was therefore inadmissible.

***

[The Government’s Position]

      Building on the definition in New York v. Belton, 453 U.S. 454, 460 n. 4, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), of a container as “any object capable of holding another object,” the government responds, with support in case law, see, e.g., United States v. Murphy, 552 F.3d 405, 410–12 (4th Cir.2009); United States v. Finley, 477 F.3d 250, 259–60 (5th Cir.2007); cf. United States v. Ortiz, 84 F.3d 977, 984 (7th Cir.1996) (pager); United States v. Thomas, 114 F.3d 403, 404 n. 2 (3d Cir.1997) (dictum) (same); but see State v. Smith, 124 Ohio St.3d 163, 920 N.E.2d 949, 953–54 (Ohio 2009), that any object that can contain anything else, including data, is a container. A diary is a container—and not only of pages between which a razor blade or a sheet of LSD could be concealed, a possibility that justifies the police in turning each page. It is also a container of information, as is a cell phone or other computer. And since a container found on the person of someone who is arrested may be searched as an incident to the arrest even if the arresting officers don’t suspect that the container holds a weapon or contraband, and thus without any justification specific to that container, United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), the government urges that a cell phone seized as an incident to an arrest can likewise be freely searched.

***

[The Court’s Response to Robinson]

      This is a fair literal reading of the Robinson decision. But the Court did not reject the possibility of categorical limits to the rule laid down in it. Suppose the police stop a suspected drug dealer and find a diary, but a quick look reveals that it is a personal diary rather than a record of drug transactions, yet the officers keep on reading. A court might say that acquiring information known to be unrelated to the crime of which the person being arrested is suspected is an intrusion beyond the scope of Robinson’s rule.

[Diaries and Cell Phones]

      A modern cell phone is in one aspect a diary writ large.

***

      Judges are becoming aware that a computer (and remember that a modern cell phone is a computer) is not just another purse or address book. “[A]nalogizing computers to other physical objects when applying Fourth Amendment law is not an exact fit because computers hold so much personal and sensitive information touching on many private aspects of life. . . . [T]here is a far greater potential for the ‘intermingling’ of documents and a consequent invasion of privacy when police execute a search for evidence on a computer.” United States v. Lucas, 640 F.3d 168, 178 (6th Cir.2011); see also United States v. Walser, 275 F.3d 981, 986 (10th Cir.2001); United States v. Carey, 172 F.3d 1268, 1275 (10th Cir.1999); cf. United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1175–77 (9th Cir.2010); United States v. Otero, 563 F.3d 1127, 1132 (10th Cir.2009).

***

[What Cell Phone Do We Have?]

      A complication in this case is that, remarkably, the record does not indicate the brand, model, or year of the defendant’s cell phone, so we do not know how dumb or smart it is. But does that matter? Even the dumbest of modern cell phones gives the user access to large stores of information.

***

[The Issue of Urgency]

      But was there any urgency about searching the cell phone for its phone number? Yet even if there wasn’t, that bit of information might be so trivial that its seizure would not infringe the Fourth Amendment. In United States v. Conception, 942 F.2d 1170, 1172–73 (7th Cir.1991), police officers tested the keys of a person they had arrested on various locks to discover which door gave ingress to his residence, and this we said was a search—and any doubts on that score have been scotched by United States v. Jones, ___ U.S. ____, ____, 132 S.Ct. 945, 949, ___ L.Ed.2d ____, ____ (2011), which holds that attaching a GPS device to a vehicle is a search because “the Government physically occupied private property for the purpose of obtaining information.” But we went on to hold in Conception that a minimally invasive search may be lawful in the absence of a warrant, even if the usual reasons for excusing the failure to obtain a warrant are absent, a holding that is implied by Robinson and survives Jones, which declined to decide whether the search entailed in attaching a GPS device requires a warrant. Id. at 954.

***

[Diaries and Cell Phones, Cont’d]

      So opening the diary found on the suspect whom the police have arrested, to verify his name and address and discover whether the diary contains information relevant to the crime for which he has been arrested, clearly is permissible; and what happened in this case was similar but even less intrusive, since a cell phone’s phone number can be found without searching the phone’s contents, unless the phone is password-protected—and on some cell phones even if it is. On an iPhone without password protection two steps are required to get the number: touching the “settings” icon and then the “phone” icon. On a Blackberry only one step is required: touching the “phone” icon. Moreover, the phone company knows a phone’s number as soon as the call is connected to the telephone network; and obtaining that information from the phone company isn’t a search because by subscribing to the telephone service the user of the phone is deemed to surrender any privacy interest he may have had in his phone number. Smith v. Maryland, 442 U.S. 735, 742–43, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).

***

      It’s not even clear that we need a rule of law specific to cell phones or other computers. If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its number. If allowed to leaf through a pocket address book, as they are, United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir.1993), they should be entitled to read the address book in a cell phone.

***

[The Issue of Urgency, Cont’d]

      What we said in Ortiz about pagers is broadly applicable to cell phones: “The contents of some pagers also can be destroyed merely by turning off the power or touching a button. See, e.g., United States v. Meriwether, 917 F.2d 955, 957 (6th Cir.1990). Thus, it is imperative that law enforcement officers have the authority to immediately ‘search’ or retrieve, incident to a valid arrest, information from a pager in order to prevent its destruction as evidence.” United States v. Ortiz, supra, 84 F.3d at 984.

***

[The Fact That Made the Case Less Complex for the Court]

      [T]he police did not search the contents of the defendant’s cell phone, but were content to obtain the cell phone’s phone number.

My Thoughts

  • Flores-Lopez is worth reading in its entirety because Judge Posner discusses a number of theories that could or might support the search of a cellular telephone; however, the Court did not need to reach those issues.
  • Out of curiosity, I ran this WestLaw query: da(after 12/31/2010) & “cell phone” & “incident to arrest” & warrantless. Up popped 47 cases.
  • The most relevant of the Fifth Circuit cases was United States v. Curtis, 635 f.3d 704 (5th Cir. 2011) which held that an officer could search the defendant’s cell phone including text messages, incident to his arrest.
  • If you haven’t had a search issue involving a cell phone, be patient—it’ll be in the case that you get hired in tomorrow.

Mission Statement of the TCDLA Affiliate Committee – By Bobby Mims

“The Affiliate Criminal Defense Bar Committee seeks to promote the establishment of local county and/or city criminal defense bar associations in order to promote the mission of TCDLA at the grassroots level. This committee will also advise and assist members who seek to form and/or strengthen their organizations by providing pro forma bylaws and organization materials. Additionally, this committee will work with the Criminal Defense Lawyers Project Committee to coordinate criminal law seminars held in all areas of the state in conjunction with TCDLA affiliates which are seeking to stimulate growth of the local organizations and thereby growth to TCDLA. The Committee will advise the officers and staff of TCDLA on methods to establish clear lines of communication between TCDLA and local affiliate organizations in order to insure that the state organization is cognizant and responsive to the concerns of the local membership.”

Committee:

Mimi Coffey, Sharon Curtis, Harold Danford, John Gilmore, James Granberry, Deandra Grant, Bobby Mims, Doug Murphy, Katherine Scardino, Gary Thomas, and Christopher Tritico

Activities:

Presently TCDLA has 32 affiliates associations. Presently TCDLA members are organizing new affiliates in Corpus Christi and Texarkana. The existing organization in Corpus Christi appears to have been sub­sumed by the Nueces County Bar Association and has ceased to function as solely a criminal defense association, and meetings are attended by civil attorneys, prosecutors, and judges. Recently, two members advised that they were disenchanted and stated that “TCDLA does nothing for the lawyers in the Coastal Bend.” Joe Martinez has forwarded copies of bylaws to one of our members in Corpus. The Trail Tactics: The Art of War seminar was held on August 26, 2011, in Corpus Christi. This is a huge geographical area with a large population which presently is under-served by TCDLA. Re-establishment of an affiliate in Corpus and the Coastal Bend is a priority of this committee.

Charles Pelowski of Texarkana has volunteered to start an affiliate in Texarkana as the Bowie County Criminal Defense Lawyers Association. We have never had a significant presence in Texarkana other than our members, and this area is another demographic that is under-served by TCDLA. There are good opportunities to add membership if we can establish an active and effective affiliate in Texarkana. Charlie Pelowski is one of our brightest young members and is presently with the Bowie County Public Defender’s Office in Texarkana. We may add members who are licensed in Arkansas as well as Texas. If we plan a seminar in that area, we may even be able to have CLE approved by the Arkansas State Bar and attract participants that would otherwise not be available and realize revenues generated from out-of-state sources.

The committee asks for input from the membership on other areas that need attention, and we are looking for opportunities to expand the service to all members wherever they are located in Texas.