Accomodating Public Attendance at a Prison Trial

Lilly v. State

The Sixth Amendment of the United States Constitution guarantees an accused the right to a public trial in all criminal prosecutions.

Appellant Conrad Lilly, was charged with two counts of assault on a public servant while he was in prison.  The trial court sua sponte convened his trial in the prison-chapel courtroom in lieu of the local courthouse.  Appellant objected to his case being tried in the prison chapel and moved for a change of venue, arguing that his 6th Amendment right to a public trial was violated because "prisons are not open to the public and are more like military zones than public places."  The trial court denied his change of venue request and the 11th Court of Appeals (Eastland) affirmed.

To support his claim, appellant pointed out the following facts to show that, as applied in his case, the prison chapel trial violated his constitutional rights:

1. The prison is protected by double razor fences, locked metal doors, and high-security procedures;
2. Only people listed on an inmate-defendant's approved visitor list could enter the branch courthouse to attend proceedings (only 10 names can appear on that list and the names can only be modified once every 6 months);
3. Media and other members of the public would be prohibited from entering unless TDCJ officials in Huntsville preapproved the media's request;
4. People attempting to attend the proceeding could be denied entrance if they wore offensive clothing; and
5. Unaccompanied minors and people released from confinement within the last two years are prohibited from entering the prison at all.

In this case, "the court of appeals held that Appellant's trial was not closed to the public because there was no evidence that anyone was 'dissuaded from attempting' to attend, and no one was actually prohibited from attending his trial."  The Texas Court of Criminal Appeals disagreed with this analysis.  The focus of the inquiry, the CCA explained, "is not whether the defendant can show that someone was actually excluded.  Rather, a reviewing court must look to the totality of the evidence and determine whether the trial court fulfilled its obligation 'to take every reasonable measure to accommodate public attendance at criminal trial.'"

[E]ven though many of the individual admittance policies in this case would not, standing alone, necessarily amount to a per se closure, the cumulative effect of the Unit's policies undermines our confidence that every reasonable measure was taken to accommodate public attendance at Appellant's trial.

Having found that Appellant's trial was indeed closed to the public, the CCA further held that the trial court failed to make findings of fact on the record that justified closing Appellant's trial.  Because Appellant's 6th Amendment right to a public trial was violated, the CCA reversed the judgments of the court of appeals and the trial court, and remanded the case for a new trial.

The CCA refrained from considering or commentin on whether prison trials are inherently violative of the 6th Amendment, noting that there could be occasions where a "public trial" is held in a prison.

Videotaped Testimony of Child Sexual Abuse Victims Held Unconstitutional

Last week, the Texas Court of Criminal Appeals issued its opinion in Coronado v. State. 

[The CCA] granted review of the case to determine whether the videotape procedures set out in [the Texas Code of Criminal Procedure] Article 38.071, Section 2, including the use of written interrogatories in lieu of live testimony and cross-examination, satisfy the Sixth Amendment rights of confrontation...

The case involved a six year-old victim (who was three years-old when the abuse began) that the trial court determined was "unavailable" to testify in court because of the likelihood that she would suffer severe emotional trauma upon seeing the defendant.  Accordingly, the trial court allowed a neutral child interviewer to videotape an interview pursuant to Article 38.071, Section 2.  The defense counsel agreed to this procedure and propounded numerous questions for the interviewer to ask.  The defense counsel also agreed to allow the interviewer to ask follow-up questions that she deemed appropriate.  At trial, the video of the interview was played to the jury in lieu of any live testimony by the victim.

The videotape procedures of Article 38.071, Section 2, were enacted prior to the Supreme Court's decision in Crawford v. Washington.  Since that time, there has been a marked shift in confrontation clause jurisprudence in favor of a strict requirement of face-to-face live confrontation.  The lower appellate court, however, failed to cite (or even mention) the Crawford line of cases in its analysis.  The CCA, on the other hand, explained:

We are unable to find any post-Crawford precedent from any jurisdiction that states, or even suggests, that a list of written interrogatories, posed by a forensic examiner to a child in an ex parte interview, is a constitutional substitute for live cross-examination and confrontation...There was no "rigorous adversarial testing" of [the child victim's] testimonial statements by that greatest legal engine for uncovering the truth: contemporaneous cross-examination.  The written-interrogatories procedure used in this case does not pass muster under our English common-law adversarial system or our United States Constitution.

The CCA's reluctance to overturn this case was apparent.  On page 2 of the opinion, Judge Cochran writes, "On federal constitutional matters, we are obliged to follow the dictates of the United States Supreme Court regardless of our own notions."

Judge Hervey concurred.  While she agreed with the majority that the procedure used in this case was unconstitutional, she wrote separately to express her opinion that the defendant's right to confrontation should be balanced with the societal interest in protecting child victims.  She would not foreclose the possibility of allowing testimony via closed circuit television where the witness would testify in a separate room, but where the victim could still see the defendant and the jury.

Presiding Judge Keller dissented.  In a well-reasoned opinion, she explains why she believes that the confrontation clause was not violated in this case.  She calls this a "close case," but she would have affirmed.

The Supremes Do Not Shy Away From Confrontation

Sorry for the delay in posting.  I've been enjoying beautiful Lake Whitney for the past week.  Now I'm back in the office and have been catching up on the recent cases. 

Most interesting to me, was the Supreme Court opinion in Bullcoming v. New Mexico.  I was fortunate enough to watch the oral arguments in that case and the opinion seems to track the tenor of the justices' questions during the arguments.  Seeing as how I've missed the boat (while on the boat) on the Bullcoming recap, see ScotusBlog's excellent coverage HERE.

In the wake of the Bullcoming decision, and continuing in the pursuit of Confrontation Clause clarity, the Supreme Court granted certiorari this week in Williams v. Illinois (#10-8505) on the following question:

Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause.

This interests me greatly because this is the standard procedure for the military's urinalysis testing (and testifying).  The outcome of this case (when combined with Bullcoming and Melendez-Diaz) could create quite a shift in military courts-martial procedure.

HERE is the opinion from the Supreme Court of Illinois.

CCA Allows Defense Lawyer to Continue Representing Capital Defendants Despite Apparent Conflict of Interest

Yesterday, the Texas Court of Criminal Appeals released a published opinion (In Re Bowen) in an original mandamus proceeding. The relators (i.e. petitioners), two capital murder defendants, requested that the CCA direct the trial judge to rescind his order disqualifying the relators’ mutually retained counsel of choice. The State had moved that the counsel be disqualified due to the fact that he would be called to cross-examine another one of his clients (a witness that the State intended to call).

The two defendants and the other client had all signed waivers regarding the actual or apparent conflict, but that did not satisfy the trial judge. In granting the State’s motion to disqualify the counsel, the trial judge stated:

It’s really about the integrity of the judicial process and the public’s perception of the judicial process and what it would look like to go to a trial on a capital murder case where the same attorney representing both defendants is also representing one of the prosecution’s witnesses.

He went on:

I know how these things play out. I’m telling you I can see some reporter that doesn’t understand diddly about what’s going on in the trial but, you know, can pick up an issue like this and make a story out of it.

Surely he doesn’t mean me. I’m confident that I at least know diddly about the system, if not more.

In the mandamus proceeding, the CCA was called upon to overturn the trial court’s order. Citing the U.S. Supreme Court case, Wheat v. United States, 486 U.S. 153 (1988), the CCA explained that trial courts “must recognize a presumption in favor of a defendant’s counsel of choice.” The CCA also noted that “when a trial court unreasonably or arbitrarily interferes with the defendant’s right to choose counsel, its actions rise to the level of a constitutional (6th Amendment) violation.”

The CCA emphasized that cases of this nature really turn on the facts found by the trial court. In this case, the trial defense counsel offered a sealed affidavit explaining why his mutual representation would not amount to a conflict. He did not share his reasoning in open court for fear that the State would then know what he had up his sleeve. Once the CCA examined the defense counsel’s affidavit, it was convinced that there was no conflict (especially since all parties waived any potential conflict). Accordingly, the CCA held that the trial judge had violated the defendants' 6th Amendment right to counsel and directed that the judge rescind his order.

Confrontation of an Available Witness That Cannot Remember

What happens when a witness cannot remember facts to which she previously testified before the grand jury? Can the State simply read her grand jury testimony into evidence as past recollection recorded even though the Defendant was not present to cross-examine her during that hearing? Normally, I would say yes, but I’m not talking about a witness that cannot remember one fact or another.  I'm talking about a witness that cannot remember ANYTHING about which she testified before the grand jury.  To me, that changes the game a bit.

The CCA recently considered this issue in Woodall v. State. I say they “considered" it – actually the Court was careful not to provide a definite holding on the matter. Instead, it punted the case on procedural (waiver) grounds. Nonetheless, the CCA did provide some dicta that is a helpful insight into its thinking.

We believe that, under the facts of this case, memory loss did not render [the witness] “absent” for Confrontation Clause purposes…The Supreme Court has generally rejected the notion that a present and testifying witness is nevertheless absent for confrontation purposes if the witness suffer from memory loss.

Curiously, the CCA cites only pre-Crawford cases. For example, citing a 1970 Supreme Court case, the CCA quoted the concurring opinion of Justice Harlan, in which he opined that

a witness’s lack of memory should have no Sixth Amendment Consequence.

However, the legal landscape has drastically changed since the time of Justice Harlan’s opinion. I doubt Scalia would agree with such reasoning today. Then again, as a strict constructionist, maybe he would.  If the witness is available at trial, even if she cannot remember anything, is that enough to satisfy the 6th Amendment? I would argue NO, but perhaps I’m wrong. Either way, we will not find out with the Woodall case, because the CCA passed on the ultimate issue.

Fencing the Confrontation Clause

As the Court of Criminal Appeals aptly recognized, "the constitutional right of confrontation includes the right to cross-examine the witnesses and the opportunity to show that a witness is biased or that his testimony is exaggerated or unbelievable."  In the 1974 Supreme Court case Davis v. Alaska, the Court held that evidence that a witness with a juvenile record might be testifying because of a need to "curry favor" with the State or shift suspicion away from himself is constitutionally relevant and admissible under the Confrontation Clause.  However, rather than view this holding as one of inclusion, the CCA decided last week, in Irby v. State, that rather it was one of exclusion.  This recent holding by the CCA stands to significantly hamper the right to confrontation in Texas.

Regarding the right to confrontation of a witness with a prior juvenile record, the CCA held:

the confrontation clause may require the admission of such evidence if the cross-examination is reasonably calculated to expose a motive, bias, or interest for the witness to testify.  But the mere fact that a juvenile had been placed on probation or had some other vulnerable relationship with the State is not enough to establish bias or prejudice; the cross-examiner must show some causal connection between the witness’s vulnerable relationship and the witness’s testimony.

 Recognizing the potential implications of such a holding, Judge Holcomb dissented (joined by Judges Womack and Hervey), stating:

I believe that we cast a dark shadow on the constitutional right of confrontation by requiring a defendant to establish the kind of “logical relationship” the majority requires before allowing cross examination of a juvenile witness on his pending probationary record to show his possible bias or motive in testifying for the same prosecutorial authority which also supervises his probation. The majority, in my view, misapplies Davis v. Alaska, which clearly held that the constitutional right to question a juvenile witness regarding his pending probationary status trumps any State interest in protecting such juvenile offenders. Denying the defendant any opportunity to cross-examine a critical juvenile witness regarding his possible bias stemming from his probationary relationship with the State constitutes a denial of the right to effective cross-examination.

Breaking CCA Case Regarding Crawford's Application to Sentencing

Stringer v. State, ___ S.W.3d ___ (Tex. Crim. App. 2010) Delivered April 14, 2010 (Designated for publication).

Question Presented:  Whether the Sixth Amendment Confrontation Clause and the Supreme Court holding in Crawford v. Washington were violated when the trial court in assessing punishment considered statements regarding an unadjudicated felony where those declarants were unavailable for cross examination and the Appellant had no prior opportunity to question them?

Held:

[W]hen a PSI is used in a non-capital case in which the defendant has elected to have the judge determine sentencing, Crawford does not apply. For us to conclude in Appellant’s favor would require a trial judge to hold a mini-trial for sentencing and would thwart the purpose of the PSI as a tool for the court to use in determining punishment. This holding is limited to a sentencing hearing in which the judge assesses punishment. We need not address here whether Crawford applies when a jury determines the sentence in a non-capital case.

Defendant's Right to Subpoena Witnesses for Trial

Believe it or not, every defendant has the right to subpoena witnesses to appear at trial on his behalf, whether they want to appear or not.

What follows is a quick summary of the compulsory process for Texas defendants, taken from Clark v. Texas, 14th District Court of Appeals (Houston):

Under both the United States Constitution and the Texas Constitution, a defendant has a right to compulsory process in order to call witnesses to testify on his behalf. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; Etheridge v. State, 903 S.W.2d 1, 7 (Tex. Crim. App. 1994). The Texas Code of Criminal Procedure, however, requires a defendant to file an application for a subpoena with the trial court‘s clerk if the defendant wants to ensure the witness‘s presence. Tex. Crim. Proc. Code Ann. § 24.03(a) (Vernon 2009). The defendant must then properly serve the witness. Id. § 24.04(a) (Vernon 2009). If the witness ignores the ―duly served subpoena, the requesting party shall be entitled to a writ of attachment ―commanding some peace officer to take the body of a witness and bring him before such court . . . on the day named . . . to testify in behalf of the State or of the defendant . . . . Id. § 24.11 (Vernon 2009); see id. § 24.12 (Vernon 2009); see also Rodela v. State, 829 S.W.2d 845, 848 (Tex. App.—Houston [1st Dist.] 1992, pet. ref‘d).

A defendant is not entitled to a writ of attachment if he fails to properly serve the subpoena on the witness. Ford v. State, 14 S.W.3d 382, 391−92 (Tex. App.—Houston [14th Dist.] 2000, no pet.); see Erwin v. State, 729 S.W.2d 709, 713−14 (Tex. Crim. App. 1987), overruled on other grounds, Burks v. State, 876 S.W.2d 877 (Tex. Crim. App. 1994). If a party duly subpoenas a witness and the witness does not appear, the party must follow a three-step process to preserve error—the Erwin procedure. Sturgeon v. State, 106 S.W.3d 81, 85 (Tex. Crim. App. 2003). The Erwin procedure includes: (1) seeking a writ of attachment, which the trial court must deny; (2) showing the court what the witness would have testified to; and (3) demonstrating that the witness‘s testimony would have been relevant and material. Sturgeon, 106 S.W.3d at 85 (citing Erwin, 729 S.W.2d at 714). 

As a practical matter, I would argue that you should serve subpoenas on all of your critical witnesses.  That way, the State is in charge of seeing to it that they appear for trial.  Once you've served your subpoenas be careful to follow the proper procedure to preserve error, because the appellate courts will be all too willing to find waiver where possible.

Confrontation Clause and Lab Reports???

Well I was hoping that the Supreme Court might take the opportunity in Briscoe v. Virginia to clarify its opinion from last term in Melendez-Diaz v. Massachusetts, but it passed.  Instead of articulating what exactly the confrontation clause requires of the State when offering lab reports into evidence, the Court merely stated, in a per curiam opinion,

"We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009)."

Hopefully, the Court will seize its next opporutunity to answer the question when it hears, City of Ontario v. Quon this term, but from the looks of it, I doubt it will.  So in the wake of Crawford and Melendez-Diaz, and now Briscoe, we still don't know...

• What parts of a lab report are "testimonial" triggering Crawford and the Sixth Amendment?
• If a lab report is testimonial, who from the lab must testify in order to satisfy the CC?
• Would the Supreme Court require all lab technicians who took part in operating the machinery which led to the creation of the report testify?  
• Does it satisfy the CC if a supervisor of the lab testifies alone?

These are the burning questions with which we are left.  In fact, these are questions that many of the justices asked of the counsel in both Melendez-Diaz and Briscoe.  I guess we will have to wait while the justices figure out the answers for themselves.  Much like Crawford, the law provides more questions than answers.


Thanks to the Austin Criminal Defense Lawyer Blog for alerting me to the release of the Briscoe opinion.

Waco Court of Appeals Gets One Wrong!

If you will indulge me, this post is a bit of a rant.

In a recent case, In the Matter of J.W., a Juvenile, the 10^th Court of Appeals (Waco) appears to have made a critical blunder in its reasoning and application of Texas Rule of Evidence 803(5) – the hearsay exception for past recollection recorded.

I missed this case when the opinion was handed down on Dec 30, 2009, but was alerted to it here.  I usually only monitor the criminal decisions and this one (being reported on the civil side) slipped through the cracks.

The case involved the written and signed statement of a witness to a law enforcement officer.  The witness implicates the defendant in her statement, providing an eye-witness account of the crime.  As she signed the statement the officer asked if the statement was true and the witnesses responded affirmatively.

However, between the time that the witness gave the statement and the date of trial, the witness was in a bad car accident which caused amnesia. As a result, she could not recall the events contained in the statement and could not even recall making a statement at all.  She could, however, identify her signature at the conclusion of the statement.

At trial the government sought to read into evidence the written statement of the eye-witness to the officer under Texas Rule of Evidence 803(5) as past recollection recorded.  TRE 803(5) provides:

A memorandum or record concerning a matter about which a witness once had personal knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly, unless the circumstances of preparation cast doubt on the document’s trustworthiness.  If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.   

The trial court allowed the statement to be read into evidence over defense objection and the juvenile defendant was convicted.  On appeal, the 10^th Court of Appeals properly identified the four predicate elements for the use of a recorded recollection:
     

1. the witness must have firsthand knowledge of the event,
2. the written statement must be an original memorandum made at or near the time of the event while the witness had a clear and accurate memory of it,
3. the witness must lack a present recollection of the event, and
4. the witness must vouch for the accuracy of the written memorandum.

 Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1996).  From the nature of the written statement and the testimony of the officer who took the statement, the first 3 prongs were clearly satisfied. However, the 4^th prong is the substance of the question presented to the appellate court.  In order to satisfy the 4^th prong, the State relied on the officer's testimony that the eye-witness declarant told him the statement was true when she wrote it.  While realizing that “ideally this evidence (voucher of the accuracy of the statement) would come from the declarant,” the Court held that “under the circumstances of this case (where the declarant cannot remember anything due to amnesia), we cannot say the trial court abused its discretion.” My question to the Court, the counsel involved, and anyone who reads this case is: 

WHAT ABOUT THE 6^TH AMENDMENT?  Does this juvenile defendant not have the right to confront the witness against her?  This eye-witness statement implicating the defendant is surely “testimonial” under Crawford.  And as a testimonial statement, the defendant has a right to cross-examine the declarant.  This declarant, while physically present at trial, was “unavailable” in a legal sense because she could not provide testimony about the facts and circumstances surrounding her statement.  More importantly, her statement could not be subjected to the “crucible of cross-examination.” 

To illustrate the critical error in this case – assume for a moment that the declarant was actually the one who committed the offense and in an effort to shift the blame, she gave a completely false statement implicating the defendant.  Normally that is something that will come to light during cross-examination (if not sooner).  However, in this case, the declarant does not remember anything about the incident, much less whether she gave an accurate account of the incident.   

In reaching its erroneous conclusion, the Waco Court of Appeals relied heavily on Johnson v. State, a case which was decided before the Supreme Court decision in Crawford v. Washington changed the landscape for confrontation clause analysis.  Before Crawford, courts used the Ohio v. Roberts (indicia of reliability) framework when considering the admissibility of hearsay statements.  I believe that a fair reading of Johnson alone dictates that this case be overturned, but had the Court considered both Crawford and Johnson in its analysis, it would have surely reached a different conclusion. 

I sincerely hope that the Supreme Court of Texas takes a look at this case.  Maybe it is ultimately a “waiver” issue because it doesn’t appear that the 6^th amendment argument was made during trial.  I hope not, because in my opinion the Waco Court of Appeals got it wrong and this case should be overturned.