Sunday, February 28, 2010

Supreme Court to Hear Oral Argument in Miranda Case on Monday 3/1/10

Tomorrow, the Supreme Court will hear oral argument in Berghuis v. Thompkins (See SCOTUS Wiki page HERE).  In short, the Court will consider whether a criminal defendant waives his Fifth Amendment rights when he is given a Miranda warning and verbally acknowledges that he understands his rights, but he neither invokes nor waives them explicitly.

This is much like the issue recently considered by the Texas Court of Criminal Appeals in Joseph (see my post HERE).

The oral arguments should be available on OYEZ tomorrow.

Are all circumstances "Exigent" these days?

The 4th Amendment and the person rights is secures have a long history.  At the very core [of the 4th amendment] stands the right of a man to retreat into his own home and there be free from unreasonable government instrusion.
Justice Potter Stewart

I just read a case out of the 4th Court of Appeals (San Antonio) - Wisenbaker v. State, No. 04-09-00364-CR.  The sole issue on appeal was whether the trial court erred in denying Wisenbaker's motion to suppress a warrantless search of his residence that led to the seizure of marijuana.  While the holding was not surprising (especially under the abuse of discretion standard), this case reflects the eroding nature of our 4th amendment rights.  It was once said that a man's home is his castle.  Well, I guess today's castles do not have moats and the drawbridge is always down.

Wisenbaker:  Appellant's neighbor called the police to report that appellant and friends were smoking marijuana on the premises.  The neighbor informed the police that the appellant "constantly" smoked marijuana (i.e. that was not an uncommon occurrence).  The officer peered through the neighbor's fence and viewed appellant holding what appeared to be a marijuana pipe.  Upon seeing this, the officer contacted his supervisor about obtaining a warrant and when he was told that it would take "a couple of hours," he decided to conduct a "knock and talk."  Appellant, however, had a sign on his front door directing visitors to "Go around, use other door."  Following that instruction, the officer went around to the door through which he had previously viewed appellant.  Before he had the chance to knock, he locked eyes with appellant, who appeared startled.  The officer then proceeded into the house and found several items of drug paraphernalia along with a usable quantity of marijuana.  The Court upheld the search, reasoning that "exigent circumstances" existed because appellant would have likely destroyed the evidence.

These facts, I'm sure, are pretty common throughout Texas.  No big surprises here.  My main concern is this:  If the neighbor told the police that the appellant "constantly" had people visiting and that they were "always" smoking marijuana, why then could the officer not wait to obtain a warrant before entering the house?  I realize that once appellant saw the officer, he was likely to destroy the evidence (wouldn't you), but why did the officer even need to confront appellant at that time.  The officer created an exigent circumstance where one otherwise did not exist.  It would have been perfectly reasonable for the officer to obtain a warrant and, based on the tip from the neighbor, he would not have been at any risk of being too late.

Many would even say that the 4th amendment died long ago.  I'm not so sure that I don't agree.

Thursday, February 25, 2010

Quit Being Coy - Just Ask the Suspect if He is Willing to Waive His Rights?

The Texas Court of Criminal Appeals released its opinion in State v. Joseph, regarding the voluntariness of a statement.  In Joseph, the appellant argued that although he signed the rights warning card provided him by the San Antonio police officer, he did not waive his rights and, even if he did waive his rights, the waiver was not voluntary.

The Court went into considerable detail regarding Miranda and its relation to the Texas Code of Criminal Procedure - particularly regarding when a statement is knowingly, intelligently, and voluntarily made.  In fact, if you are in need of a refresher on the law in this area, this case would be a good read.

However, the interesting portion I pulled from the case came in the second concurring opinion authored by Judge Cochran, which Judges Price, Johnson, and Holcomb joined, wherein they suggest a better practice for law enforcement in the area of Miranda warnings.
I write separately to note a rising trend in which Texas law-enforcement officers fail to explicitly ask a suspect if he is willing to give up his Miranda rights and speak to them. This question, if answered affirmatively, results in an express waiver. The failure to ask one additional, simple question has dramatically increased trial and appellate litigation and needlessly jeopardizes the admissibility of a suspect’s subsequently obtained statement.
Maybe officers don't want to know the answer to the additional question?  I doubt this plea from the Court results in any changes across the law enforcement community throughout the State.  We'll see.

Read majority opinion HERE.  Concurring opinion #1 (Keller) HERE.  Concurring opinion #2 (Cochran) HERE.

Wednesday, February 24, 2010

SCOTUS Decides Maryland v. Shatzer, limiting Edwards v. Arizona - Police May Resume Questioning After 2 Week Break

A case of great significance to criminal law practicioners. The Supreme Court of the United States released its opinion in Maryland v. Shatzer today - limiting its 1981 holding in Edwards v. Arizona, 451 U.S. 477, that police terminate questioning after a suspect asks for an attorney.

Held: "Because Shatzer experienced a break in Miranda custody lasting more than two weeks between the first and second attempts at inter-rogation, Edwards does not mandate suppression of his 2006 statements." Pp. 4-18

Read full opinion HERE.

Reasonable Suspicion Standard is Alive and Well in the 7th Court of Appeals - Whew!

The 7th District Court of Appeals just reversed and remanded the case of Gonzalez-Gilando v. State, NO. 07-09-0290-CR, because the officers lacked reasonable suspicion to make the stop (wherein the drugs were discovered) and it is easy to see why.

The troopers testified that they grew suspicious because:

  1. The vehicle was clean (lacked road grime);
  2. The young occupants did not "fit" the year and model of the vehicle ('99 Lumina);
  3. The occupants should have been in a sportier car;
  4. Both occupants looked away as the vehicles met and passed;
  5. The occupants turned their hats around after the cars passed;
  6. The car slowed to almost a complete stop at a blinking caution light adjacent to an intersection;
  7. The driver drove within the speed limit.
Can you believe that!  That was the best "reasonable suspicion" that they could come up with!  You would think that with time to prepare, they could have come up with something better than that!

The Court summed it up best:
It is not a crime in this State to drive a clean car, look away from passing police officers, drive a vehicle of one's choice, obey traffic warnings, and abide by posted speed limits.

Tuesday, February 23, 2010

To Catch (and Release) a Predator: Defending the Internet Sex Sting Case

Defending the Internet Sex Sting Case - Jan/Feb 2010 issue of GP Solo.

Recently ran across an interesting article in the GP Solo magazine from the ABA.  In it, Anthony J. Colleluori, presents several helpful pointers on how to "Defend[] the Internet Sex Sting Case."  The article is available on the ABA website HERE.  The tips he provides are worth a read when you have the time.

Monday, February 22, 2010

Miss Judge Buchmeyer?

If you are like me and you miss the Judge Buchmeyer portion of the Texas Bar Journal, you'll be excited to learn that a new website has been created to carry the torch in his memory. At Overheard in Court, lawyers, court reporters, judges, and others in the legal business have already begun submitting testimony and other stories that they find amusing.  I have linked the site on the left side of this page for easy access.  

Sunday, February 21, 2010

BAC Test Results Admissible without Extrapolation Testimony

In 2004, the Texas Court of Criminal Appeals held, in Stewart v. State, 129 S.W.3d 93 (Tex. Crim. App. 2004), that an intoxilyzer test taken approximately 80 minutes after the defendant had been driving, was admissible as it "tended to make it more probable that she was intoxicated at the time she drove under [both the per se and impairment] definition[s] of intoxication."  Id. at 96.  The Court so held despite the fact that the State failed to offer retrograde extrapolation testimony to show what the BAC may have been at the time of driving.  And so it was written: BAC results are admissible without extrapolation evidence.  See also State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005).  (*Obviously, the court must consider other factors, such as, the time the test was taken and whether the defendant's submission to the test was voluntary, before finding a BAC test results relevant and admissible.)

I write about this issue because on 10 Feb 2010, the Court reported a case that piqued my interest. In Kirsch v. State, the Court reaffirmed the above holding.  Read majority opinion HERE.   The case was particularly interesting, because when the trial court admitted the BAC test results it gave the following limiting instruction:
Members of the jury, I'm going to tell you now that the result is off...will be received by the Court for the limited purpose of showing that the individual who was tested had ingested alcohol only at some point before the time of the test.  That is the only purpose that will be offered and the only purpose for which you should receive it at this time in this trial.
On appeal, Appellant argued that the limiting instruction precluded the Court from then submitting jury instructions on the per se definition of intoxication.  The First District Court of Appeals (Houston) held that the jury charge was proper, but the limiting instruction was not and reversed.  See Kirsch v. State, 276 S.W.3d 579, 589 (Tex. App.-Houston [1st Dist.] 2008).  The CCA agreed that the limiting instruction was improper, but nevertheless affirmed the conviction, holding that "the totality of the evidence sufficed to permit the jury to conclude that appellant had an alcohol concentration of 0.08 or more at the time he was driving.   Judge Price dissented.  Read dissent HERE

Thursday, February 18, 2010

A Waste of the Appellate Court's Time, Perhaps?

Yesterday, the 7th District Court of Appeals (Amarillo) reported Lawrence v. Texas (yes, a different Lawrence), wherein the appellant, who had been convicted in accordance with his pleas, complained on appeal that the trial judge failed to admonish him of the possibility of deportation if he was not a United States citizen. The problem is...He is a citizen! Born in Texas!

Okay, it is true that under article 26.13(a)(4) of the Texas Code of Criminal Procedure, the trial court must make such an admonishment and that it was technically error for him omit a required warning. But come on! This is the kind of stuff that make lawyers look bad.

Having known Justice Quinn in law school, I can only imagine what he thought of this ridiculous argument. I'm sure his patience was thin when counsel presented this issue during oral argument. In his opinion, which is quite flip (not even 4 pages), Justice Quinn spends only one paragraph dismissing the claim:
Regarding the failure to admonish about deportation, the omission is harmless if the record shows that the defendant is a United States citizen and, therefore, not subject to deportation. VanNortrick v. State, 227 S.W.3d 706, 709 (Tex. Crim. App. 2007). That is the situation here. According to a pen packet admitted into evidence, appellant was born in Texas. Since Texas remains part of the United States, appellant was born a United States citizen and is not subject to deportation. Thus, this particular error was harmless.
Why did the Court designate that such an opinion be published? Could it be so that no other creative appellate defense counsel try the same argument and other justices could be saved from writing opinions on such frivolous matter? Perhaps.

Waco Man Hoping for Probation Gets 20 Years in Prison After Oversleeping Court Date

You can't make this stuff up folks.

So long as the defendant showed up to his sentencing hearing, the State was going to recommend 8 years probation and a $500 fine for his plea of guilty to burglary of a habitation, but if he failed to show, his prior plea would simply be considered and open plea to the court. The defendant overslept and the judge sentenced him to 20 years in prison (he'll be eligible for parole in 5).

See the entire article HERE.

Wednesday, February 17, 2010

Can an Accomplice be Prosecuted for "Aiding & Abetting" if the Principal is Acquitted?

YES. In Texas, "collateral estoppel" does not bar an accomplice's trial. Simply put, "collateral estoppel" means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated by the same parties in any future lawsuit arising from the same event or condition. In the criminal arena, collateral estoppel is embodied within the double-jeopardy clause of the 5th Amendment and only concerns the relitigation of specific factual determinations between the same parties.

When multiple actors (a principal and his accomplices) are tried in separate trials for the same offense(s), double jeopardy and collateral estoppel are not implicated. This is primarily because the parties to each case are different. While it seems illogical that the law allows an accomplice to stand trial after a jury has acquitted the principal actor, it can (and does) happen. I mean, how can someone be prosecuted for aiding and abetting a person who is found "not guilty" of the ultimate crime? A silly question is seems. Here's what the 8th District Court of Appeals (El Paso) recently put together on the subject:

Does Collateral Estoppel Bar Accomplice's Trial?
Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980), is the controlling case on whether an accomplice may be tried for the same offense after the principal was acquitted. In that case, Standefer was accused of aiding and abetting a revenue official in accepting compensation beyond that authorized by law. Id. at 11-12. After the revenue official was acquitted of accepting unlawful payments, Standefer moved to dismiss the charges, arguing, on principles of collateral estoppel, that because the principal was acquitted, he could not be convicted of aiding and abetting that principal. Id. at 13. In rejecting this argument, the Supreme Court traced the origins of aiding and abetting, and found that there was "a clear intent to permit the conviction of accessories to federal criminal offenses despite the prior acquittal of the actual perpetrator of the offense." Id. at 19. The Court further noted that collateral estoppel would not bar the accomplice's trial because through lenity, compromise, or mistake the jury might have reached an irrational result in the prior trial, which was not subject to review at the government's instigation. Id. at 21-23. Although "symmetry of results may be intellectually satisfying, it is not required;" thus, the acquittal of a principal does not bar the conviction of an accomplice. Id. at 25.
The Court of Criminal Appeals likewise rejected a similar complaint in Ex parte Thompson, 179 S.W.3d 549 (Tex. Crim. App. 2005). There, Thompson contended that he was factually innocent of capital murder when a different jury found the principal guilty of only felony murder. Id. at 551-52. In rejecting the argument, the Court noted that it "is well-established that one accomplice may be found guilty of a different, more serious offense than other accomplices," and that the acquittal of the principal does not prevent conviction of his accomplice, regardless of whether the acquittal of the principal occurs before or after the accomplice's trial. Id. at 553-54.

See full text of State v. Cotto, (29 Jan 2010) HERE.

Monday, February 15, 2010

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.

Saturday, February 13, 2010

How Does a Juvenile Get Tried as an Adult in Texas?

In Texas, juveniles (persons under 17) who commit criminal offenses are processed by the Juvenile Court of the appropriate jurisdiction under the Juvenile Justice Code . However, on petition of a prosecuting attorney, if a juvenile has committed certain offenses under the Penal Code, the Juvenile Court may waive its exclusive original jurisdiction and allow the child to be tried as an adult in criminal court. This area of law is governed by the Texas Family Code Section 54.02 and I always recommend that you always consult the code sections rather than relying on my simplified recitation below, but here it is.

Practically speaking, there are several steps in the process before a juvenile may be transferred to criminal court to be tried as an adult.

1. The offense that the child is alleged to have committed must be a Felony. If the child was 14 years old at the time of the alleged offense, the offense must have been no less than a 1st Degree Felony. If the child was at least 15 years old when the alleged offense was committed, any Felony will do. Children UNDER 14 years of age may not be transferred to criminal court until they reach the age of 18 (and if several other provisions are met).

2. The Juvenile Court must conduct a full investigation and a hearing, to determine whether probable cause exists to believe that the child committed the offense alleged. Probable Cause consists of sufficient facts and circumstances to warrant a prudent person to believe that the juvenile committed the offense. The court must also determine, based on the seriousness of the offense alleged or the background of the child, whether the welfare of the community requires criminal proceedings.

3. Prior to the hearing, the Juvenile Court must obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense. This study and any other written material to be considered by the Court in making its transfer decision, must be provided to the attorney for the child at least five days before the hearing. (If the Court decides to transfer the case to criminal court, this material will also be provided to the prosecuting attorney for the state--but it is inadmissible as evidence).

4. During the hearing, the Court can consider just about anything--hearsay statements, written assertions, oral testimony, police reports... anything that will help the Court in considering the following four factors:
  • whether the alleged offense was against person or property (more likely to be transferred if the offense is against the person);
  • the sophistication and maturity of the child;
  • the record and previous history of the child; and
  • whether the child can be rehabilitated and the public adequately protected if the Court does not transfer the case and rather uses only those procedures, services, and facilities currently available to juvenile offenders.
 5. If, after receiving all of the information stated above, the Juvenile Court decides to waive its jurisdiction, it must state (in the transfer order) specifically its reasons for the waiver and transfer.

6. The decision of the Juvenile Court to transfer a case to criminal court cannot be immediately appealed as it is a criminal matter. Under Article 44.47 of the Texas Code of Criminal Procedure, a challenge to the certification and transfer order can be made only in conjunction with the appeal of a conviction of or an order of deferred adjudication for the offense for which the child (now adult) was transferred to criminal court.

That is, in a nutshell, how a Juvenile may be tried as an Adult. Okay, maybe it wasn't such a nutshell, but in this area of law it is difficult to be succinct.

For more juvenile justice matters see also: The State Bar of Texas Citizen's Guide to the Texas Criminal Justice Process, HERE.

Friday, February 12, 2010

Blood Antiques - Watch online

Over the years, more books and documentary films have appeared to describe a once unreported problem--the looting of cultural heritage. Journeyman Pictures produced the documentary Blood Antiques, which is now airing online on Link TV.  Using hidden cameras inside the antiquities market in Belgium and Afghanistan, the filmmakers uncover raw evidence of the underground illegal antiquities trade and advance the important argument of its connection with terror funding.

Thursday, February 11, 2010

The Final 3 Rules for Pretrial Negotiations with Texas Prosecutors

Below are the last of the rules offered for posting by a Texas prosecutor:

"At this point, you may view these rules as a PRO-prosecution rant.  That is not my goal.  These are simply some recommendations which are ignored by defense attorneys on a daily basis, thereby destroying any chance they have of being successful in negotiations with the prosecutor. 

Here are the final 3 Rules.  If nothing else, I hope these rules have given you a little insight in one prosecutor's mind.

#3        R-E-S-P-E-C-T

#2        No Personal Favors

#1        Don’t Lie

#3        R-E-S-P-E-C-T

Rule #3 is one that cannot be overlooked.  And it’s one that might take some open-mindedness on your behalf.

Prosecutors don’t do the job for $$$.  They don’t do it for the power.  They do it because they have a passion for civic duty (at least that’s why I do it).  They have a passion for upholding the law and being the voice of victims and the community.  There is a great sense of pride that comes with being a criminal prosecutor.  It’s because the job is hard, relentlessly stressful, and incredibly rewarding.  And why do they do it?  Why does anyone work in the criminal justice field?  To see that justice is done.  Sure there may be those prosecutors that come along seeking trial experience so they can land that big firm job they didn’t get out of law school. But for the most part, prosecutors knew they were going to be prosecutors in law school.  Most of them view it as a calling.  And you, as the defense attorney, must find a way to respect this. 

Respect the prosecutor?  That’s right.  Appreciate what it is she does for a living.  She is your adversary, but not your enemy.  The two are not mutually exclusive.  I’m NOT telling you to be her biggest fan, just to respect her as an attorney.  She should also respect you, if you are a zealous and ethical advocate for your clients.  Make it real, don’t fake it.  Why?  Why do I have to respect her?!

Because she’ll recognize it.  She’ll recognize your respect and that produce a much smoother process for your current and future clients.  If you can build your relationship with the prosecution on the cornerstone of respect, communications will swing wide open as will your potential for success in negotiations.

#2        No Personal Favors

This is one where I’m going to get right to the point.  Do NOT ever ask for a personal favor on a case.  Never ever.  Not only is it ethically wrong, but prosecutors hate it.  It doesn’t matter that your client is:

            - Your nephew
            - The best man in your wedding
            - Your legal assistant’s wife
            - Your best friend’s son or daughter
            - An old best friend from college

And so on and so on.  In the event you find yourself representing someone with close ties, tread very, very lightly at the PNC.  I’m not telling you to refrain from relaying the relationship to the prosecutor, but never use it in a way that makes the prosecutor feel like your asking for a personal favor.

It’s a quick and fast way to lose credibility on the case and damage your reputation with the DA’s office.  And it appears very slimy.  Present it in the same way you would any other case.  Do your homework and be prepared.  Show the prosecutor why a lesser punishment is the right punishment and so on.  The situation where this will get you in trouble is the one where you have created a good working relationship with the prosecutor only to watch it dissolve in an instant because you have now put that relationship in a most awkward position.

#1        Don’t Lie

And we arrive at number one.  If you ask them, most prosecutors and give you a list a mile long of criminal defense attorneys whom they know have lied to them on occasion.  You should avoid this legacy at all costs.  For what ever reason, somewhere along the way, defense attorneys accepted lying as an acceptable way of zealously representing the client.  I do not mean to say that all defense attorneys are liars, because I have certainly tried cases against many ethical, honest, and scrupulous defense attorney for whom I have the upmost respect.

The bottom line is that being anything less than truthful doesn’t work.  Plain and simple.  It doesn’t work because once you find yourself telling that one little lie to a prosecutor, the habit of lying will follow.  And when you become a lying defense attorney your reputation ensues as a lying defense attorney.  Every prosecutor will know you’re a liar and you’ll be labeled. 

It  might only take that one little white lie.  Prosecutors talk.  They share one office and they share everything with each other.  When a prosecutor catches a defense attorney lying, it’s almost like winning a trial.  They immediately tell every other prosecutor and overnight you become a liar.  And for what?  For a few less months probation for your client?  So that you can get the prosecutor to waive the enhancement?  Maybe you lied in your motion or you lied about what a victim did or did not say.  Maybe you just told a little one about your client “trying” to get into the Army (he did say he had thought about it once.) 

It is never, ever worth it.  Sure, you may get one client a little better deal on his case or get a prosecutor to agree to suppress some evidence.  The problem is every client after that one is jeopardized because he’s being represented by the lying defense attorney.  You’ll have no credibility when you sit down at that negotiation table.  You’ll have no credibility when you sit at defense table during trial.  And why is that so important?  Your credibility is everything in order to be successful in criminal practice.

Be honest.  Don’t lie.  Your duty is not to create a fairytale defense.  Your job is to represent your client to the best of your ability based on the information you gather.  And, just like respect, prosecutors recognize honest defense attorneys.  The reason is because, unfortunately, they are so few and far between the dishonest ones.  You’ll produce that great working relationship with the prosecutor that will harvest future success at PNC’s.


All right, I’m done.  You’re thinking I’m na├»ve, right?  You’re thinking “yeah, in a perfect world where the prosecutors played by the rules, too…”  Maybe you see this as an ineffective method because it’s opposite of what the masses of criminal defense attorneys do everyday.  And it seems to work.

No guarantees here.  But here’s why I tell you it works.  I know defense attorneys that follow these rules.  Several of them.  And they are the most successful, respected defense attorneys I know.  And they’re not pushovers.  These are the guys the prosecution hate trying cases against.  Because they’re credible.  They’re credible in front of the jury.  They’re credible in front of the jury because they’re credible in their legal habits.  And they relate in an amazing way with the jury. 

At PNC’s, they relate with the prosecutors.  They are those people who try and do things for the right reasons.  Prosecutors recognize it in these defense attorneys and at the negotiation table, the debate, although very spirited at times, is usually left in an agreement.  An agreement where everybody leaves happy, including your client."

Tuesday, February 9, 2010

Deadly Weapon Enhancement for Homicide Cases is a Joke!

Back in December, I wrote about the Texas Court of Criminal Appeals' decision in Crumpton v. State.  See my post HERE.  In Crumpton, the Court held that a "deadly weapon" finding is implied when a defendant is convicted of criminally negligent homicide.  No longer does the jury have to actually return an affirmative finding in order for the State to "enhance" the punishment range.

The infection in our criminal justice system regarding the deadly weapon finding has already begun, as we see the 4th District Court of Appeals (San Antonio) following the CCA's lead.  In McCallum v. State, the judge implied a deadly weapon finding from the jury's verdict convicting the defendant of the LIO of criminally negligent homicide (by striking a victim with his hand).  On appeal, McCallum argued that the jury is the proper body to make the deadly weapon finding, not the judge.  But, relying on Crumpton the Court held that the deadly weapon finding was implicit.

How did we get here?  This is legislating from the bench if I've ever seen it.  Why did the legislature create a punishment range for homicide offenses, if the State can summarily enhance them.  The definition of "deadly weapon" is "anything that in the manner if its capable of causing death."  That means everything.  There have been cases where the ground was a deadly weapon.

So my questions is...If the victim in every homicide is dead (obviously), and a verdict of guilty for any homicide offense (including LIOs) implies the use of a deadly weapon, has enhancement simply become a matter of course in every homicide case?

Why do we even need a legislature when we have judges?

Rules #5 and 4 for Negotiating with Prosecutors

A note from the prosecutor who wrote these rules:  "I expect nothing from a defense attorney that I do not also expect from a prosecutor and (where it makes sense) these rules apply to both sides.  Prosecutors should be ethical and professional in all their dealings and should have a singleminded focus toward Justice."

With that in mind, rules #5 and 4 for pretrial negotiations are:

#5 Be Passionate but Professional


#4 Past Cases Don't Matter

5.         Be Passionate but Professional

The criminal area of the law is a very adversarial one.  Everyone knows and expects that.  As mentioned earlier, prosecutors and defense attorneys deal in the negotiation of liberties and freedoms.  It’s easy to see how negotiations can get heated and out of control.  Just as the defense attorney expects the prosecutor to be hard-nosed, the prosecutor, in turn, expects a passionate defense from the defense attorney.  However, she doesn’t expect to deal with someone who cannot maintain a level of professionalism.

There will be countless times where the defense attorney deals with a prosecutor who is stubborn to the bone.  She’ll refuse to budge or even slightly consider mitigating evidence.  It happens.  But you have the opportunity to “kill her with kindness.”  Getting overly angry and losing your temper will get you absolutely nowhere.  The same goes for whining.  Your job is to zealously defend your client’s rights, not to try and win an oscar in a courtroom during the PNC.

The prosecutor will always expect a debate.  If she doesn’t want to negotiate, then she won’t make an offer.  She’ll just tell you to set it for pretrial hearings.  Keep this in mind.  If she’s made an offer and you show up at PNC and he begins discussing the case with you, then you know she’s willing to move.  Maybe she won’t move as much as you would like.  In a professional way, debate the case.  You can be passionate without being childish.  Yelling, screaming, and whining (and, yes, it does happen all the time) by the defense won’t gain you any ground with the prosecutor.

I am NOT telling you to suck up by any means.  But pounding the table with your fist or whining because “you’re not being fair” is taking it too far.  It seems many defense attorneys think there are no bounds to a zealous defense.  They may be right.  I guess, in all reality, you can do what you want.  It’s just flat out an ineffective way to negotiate with the prosecutor. 

Ultimately, you will gain respect from the prosecutor and he’ll gladly welcome you to the negotiation table.  Your relationship with prosecutors cannot be thrown away because you’re not getting what you want a particular case.  I cannot stress enough how important it is to maintain this relationship. 
#4         Past Cases Don’t Matter

Two months ago, you reached a great agreement with the prosecutor on a case that left you, the client, and his parents happy.  It was a bad case and the letters of recommendation and proof of enrollment in summer classes were enough to get the prosecutor to agree to a deferred class C probation.  Today, your scheduled PNC with the same prosecutor on a very similar case isn’t going in the same direction.  She refuses the same deal on this case.  The facts are different and, in her mind, so should be the punishment. 

Do you say it?  Do you bring up how he agreed to this two months ago on that other case?  No, no, no.  It is IRRELEVANT.  Prosecutors don’t have blanket deals they give on similar cases.  Why?  Remember, the law gives crimes a punishment range because every situation is different.  Determining the proper punishment on any given case?  Well, the prosecutor views that as her job.  And she’s not going to agree to something just because she’s done it before. 

It is your job to present evidence or points of law that weaken the prosecutor’s case thereby enabling her to agree to reduce his offer.  I’m not asking you to forget about what happened on the case two months ago.  Use that to your advantage.  You know she’ll make that offer if you do your job.  Do your job and don’t just ask her to do it because “you did it on that other case.”

*I’d like to point out, part of this does and does not apply to co-defendant’s cases.  It’s always important to know what the co-defendant is getting.  The prosecutor will, of course, take co-defendant’s offers into consideration when making an offer for your client.  But, as above, don’t tell the prosecutor she HAS to offer your client the same deal being offered to the co-defendant.  That is false.  She has the discretion to offer whatever she feels necessary.  Maybe she sees a different prosecutor made the offer on the other case and he’s “way too soft on crime.”  Or your client’s criminal history is much worse than her co-defendant’s.  Present it in a way that will enable the prosecutor to reduce her offer to something similar to the other. 

“I understand the co-defendant has been offered this (offer X.)  And based on this information (insert pertinent mitigation,) I feel my client should be a candidate for the same offer.”  

Sunday, February 7, 2010

Rules #7 and 6 for Defense Attorneys to Remember

Continuing on, here are rules #7 and 6 from our friendly neighborhood prosecutor.

#7         The Prosecutor Didn’t Do It

Here’s an example, you’ve got a DWI case you’re handling where the client’s parents have hired you to represent their 17 year old son.  It was a dumb mistake and they’re seeking your help to plead for mercy from the prosecution.  During the PNC, you bring to the prosecutor’s attention that she, too, was once a young, dumb teenager.  The questions follow:  “Don’t you remember what it was like to be that age?” “Come on.  Didn’t you ever do anything stupid when you were that age?”  “Do you really want to ruin this kid’s life by making him take a conviction on something we’ve all done when we were young?” 

Prosecutors are very good at separating their personal lives from the job they do.  They have to.  A defense attorney asking them to do anything contrary (like above) is an extremely ineffective way to open the lines of communication.  It doesn’t matter what the prosecutor did or didn’t do.  It only matters what your client did and what the appropriate way to handle it will be.  Ultimately, it can be viewed as a personal attack on the prosecutor that creates a very powerful animosity.  When a prosecutor walks into the courthouse everyday, the first thing he does is put on his prosecutor hat.  He’s not going to take it off simply because you ask him to.

#6         Don’t Downplay.

Your client stole a six-pack of cokes and two bags of chips from the convenience store.  The offer?  5 years in the pen.  What?  You’ve got to be kidding, right?  Wrong.  The prosecutor has reviewed the case and seen your client’s criminal records.  He’s seen the 8 prior theft convictions, 2 of which were penitentiary trips.  Sure, it may have been 18 years ago, but it’s clear to the prosecutor your client has not learned his lesson.  His case is worthy of enhancement and the prosecutor is taking advantage of the opportunity. 

You have the mitigating information.  You know your client really has changed.  He’s had the same job for the past twelve years (kept it since getting out) and is happily married and up-to-date on his child support.  He’s even helping coach a little league baseball team.  He just screwed up.  He was having a bad day, and for some reason, decided to act out.  Another trip to the pen will ruin his life.

You sit across from the prosecutor about to fly out of your seat.  He needs to hear this information.  And besides, it was only $10 worth of stuff.  Come on prosecutor!  Are you serious?  IT’S NOT A BIG DEAL…  Wrong!  Remember, to the prosecutor it appears, on paper, to be a big deal.  Don’t downplay the crime.  The prosecutor’s response to your “it’s not a big deal” comment is going to be one of immediate defense.  Defense of the law in their minds.  You don’t want to put the prosecutor in the position of feeling like he has to defend the law because your client is refusing to accept responsibility.

Rather, remain patient and calmly explain the situation.  Show the prosecutor deference for his offer and kindly and mildly reject it.  Not because “it’s not a big deal,” but rather because the punishment doesn’t fit the crime.  Openly reveal your client’s desire to accept responsibility for what he did.  That, above everything else in many cases, is what the prosecutor is looking for.  If you can show him your client isn’t trying to fight responsibility, but merely pleading for mercy, you’re much more likely to receive an open response from the other side of the table.

Spring semester's Historic Preservation courses begin soon

Spring semester's Historic Preservation courses begin soon

Plymouth State University's Certificate in Historic Preservation program is offering four courses this spring semester, one in Plymouth and three at its Concord campus.

At a time when many adults are returning to the classroom to enhance their professional skills, this graduate-level program seeks to instill a fundamental understanding of preservation issues and challenges while providing basic skills and training for those who work for community preservation organizations and agencies, or in aligned fields such as planning, law or architecture.

Spring 2010's courses are:

Preservation Planning and Management: Now seen as integral to the definition and protection of cultural landscapes, historic preservation planning and cultural resource management (CRM) are accomplished through the identification, evaluation, documentation, registration, treatment and ongoing stewardship of historic properties. This course examines the tools of preservation planning and management and illustrates their application at the federal, state and local levels. Guest speakers share their real-world experiences. Includes one required field trip on March 20. Taught in Concord by Elizabeth H. Muzzey, State Historic Preservation Officer. 3 credits. Begins March 1.

Archaeological Methods: Students will be exposed to archaeological field and laboratory techniques, and will learn the types of research questions that archaeologists ask while reconstructing past cultures. The course draws upon prehistoric and historic examples, there will be many opportunities to handle artifacts in the classroom, and both terrestrial and underwater sites will be featured. There will be required field trip to archaeological sites to demonstrate equipment and techniques in the field. Taught in Plymouth by David Starbuck, associate professor of Anthropology/Sociology at PSU. 3 credits. Begins March 2.

Cultural Property Law: Antiquities Trafficking, War and Stolen Heritage: Archaeological site looting, transnational antiquities trafficking and armed conflicts threaten global cultural heritage. This course examines the international, national and state legal frameworks for the protection and movement of cultural property. Topics for discussion include the 1954 Hague Convention, the 1970 UNESCO Convention, the ICOM Code of Ethics, the National Stolen Property Act and the Cultural Property Implementation Act. The course also introduces students to important national heritage laws such as the Archaeological Resources Protection Act and the rules governing shipwrecks. State statutes and the common law regulating cultural property are also reviewed. Includes on required field trip on March 19. Taught in Concord by Ricardo A. St. Hilaire, Esq. 3 credits. Begins March 3.

Principles of Historic Preservation: This course provides a foundation to historic preservation, focusing on principles and theories pertaining to preservation and restoration practices; recognition of architectural periods, styles, and construction methods in context of the evolution of cultural landscapes; the definition of significance and integrity in buildings and districts; strategies by which buildings and their settings have been preserved and used; and methods of reading and interpreting the cultural environment. Three required field trips: March 6, April 10, May 1. Taught in Concord by Christopher W. Closs, planning/preservation consultant. 3 credits. Begins March 4.

For more information about the Certificate in Historic Preservation program, visit or contact Dr. Stacey Yap, program coordinator, 603-535-2333,

New Hampshire's Division of Historical Resources, the “State Historic Preservation Office,” was established in 1974. The historical, archeological, architectural, engineering and cultural resources of New Hampshire are among the most important environmental assets of the state. Historic preservation promotes the use, understanding and conservation of such resources for the education, inspiration, pleasure and enrichment of New Hampshire’s citizens. For more information, visit us online at or by calling (603) 271-3483.

Friday, February 5, 2010

Rules #9 and #8 for Negotiating with Prosecutors

More from our Texas prosecutor friend.  Picking up where we left off yesterday, here are rules 9 and 8 for defense counsel to remember when negotiating a criminal case with a Texas prosecutor.

#9        Make Sure to Relay the Plea Offer to Your Client.

One of two things will happen when you get your first setting for a plea negotiation conference (PNC): (1) either the prosecutor will relay the offer to you ahead of time or (2) she will have it ready when you show up at the PNC.  (There might be third option where you show up for the PNC and the prosecutor doesn’t have an offer.  Not your fault.  Be courteous and polite if she doesn’t.  Don’t force her into making an offer on the spot!)  

Regardless of when you get the offer, the first thing you do before beginning negotiations is relay it to your client.  It may be an absurd offer for 50 years in the pen - relay it to your client.  It may be very close to being acceptable, needing a simple alteration of this or that – relay it to your client.  You have an obligation to relay any and all offers to your client.  The prosecutor expects that.  Don’t show up ready to negotiate first.

You may have all the information you need for a dismissal or mitigating facts the prosecutor must hear about.  In fact, you know as soon as she hears this information she will immediately lower her offer.  Wait anway.  Go talk to your client.  It’s a great opportunity to look good in front of your client by showing the client how you are going to tell that prosecutor to take that deal and and shove it.  The client will appreciate seeing your gameplan and the prosecutor will appreciate you involving your client in this important aspect of the case.  Discuss the offer with your client and then come back and begin negotiating.  Or, of course, discuss the offer ahead of time if you receive the offer before the PNC (this is ideal because it saves everybody time.)

#8        Come to the PNC Prepared.

Since the PNC is your special one-on-one time with the prosecutor, this one should seem obvious.  However, this rule is often taken for granted.  The average criminal case is going to have multiple PNC settings.  It is inevitable.  Believe me, the prosecutor hates it.  She hates seeing a case for the 6th time.  How did it get to the 6th PNC?  The answer?  Somebody along the way was unprepared.  The prosecutor is not going to care about the time she was unprepared (remember, in her mind she’s busier than you and gets more slack because of that).  She remembers all those times you showed up without relaying the offer first (“Can we just reset it?”) or didn’t have the affidavit you needed (“Can we just reset it?”) or needed to look over some of the evidence (“I need to watch the video. Can we just reset it?”) and so on.

Generally, prosecutors will let the defense slide on the first and maybe second PNC.  She’ll understand you still need time to review discovery, talk to your client, and find mitigating information.  When that second or third PNC rolls around, however, it is time to really negotiate the case.  Be prepared.  Do your homework.  Don’t show up arguing this fact or that point of law on a whim.  Although the prosecutor does have a thousand cases, it doesn’t mean she’s not very familiar with your case.  Don’t take that chance.  You may be the best defense attorney around, with a mastery of criminal law, but he first time you try argue something on the fly, the prosecutor will see your lack of preparation.   What happens?  Usually, you’ll lose ground on your case, as well as credibility with the prosecutor.

Know the facts and areas of law applicable to the case.  Show the prosecution you know what it is you’re arguing and thereby gain credibility in the argument.  I can’t stress how much it will open up the negotiations.  If you’ve found a case that applies to your client’s case, have a copy ready for the prosecutor.  If the indictment can be quashed, bring your copy of the code and show the prosecutor where it’s lacking.  Don’t just throw out, “Well, there’s a case that says law enforcement can’t do this!” or “I don’t think the elements are there for the crime…”  Know exactly what it is you’re going to argue before you approach the negotiating table and be prepared to back up your argument with the specific case or provision in the law.  A little preparation is not too much to ask, and it's what you client expects.

Thursday, February 4, 2010

10 Rules for Negotiating with Prosecutors: #10

Today we will begin a series that a prosecutor friend of mine was kind enough to provide. From the outset, please understand that these rules are simply her ideas on the subject and are not intended to apply globally.

Let's begin with #10:

When a defendant on TV or in a movie settles his criminal case, we hear that he accepted a "plea bargain." However, most jurisdictions don't use the term "bargain." Rather, as practitioners of criminal law, we use "negotiation." Plea negotiation. Why do I point out the difference? Because The term "negotiation" is a more accurate portrayal of what actually occurs in courthouses across Texas everyday - a process where two parties become involved in the negotiation of liberty and justice (for y'all). One side represents the State and the other the defendant, but both parties are equally interested in justice. We "bargain" for a good deal on used cars. We "negotiate" the penalties for crimes.

Now, if we negotiate criminal cases, what is needed to effectively defend your client's rights? Well, negotiation skills, of course. Some have a knack for negotiating while others learn the art of negotiation in law school. There are, however, essential rules to follow when negotiating with Texas prosecutors criminal cases. I've compiled a top ten list of the ones I feel most important. They might, at first glance, seem obvious and elementary. But often, it's the most obvious and elementary things we overlook by becoming accustomed to our own, unique practice of law. Basically, lawyers are naturally inclined to become creatures of habit. Consider making a habit of the following.

10. Do NOT Try to Negotiate a Plea at YOUR Convenience.

On nearly every case, you will get a notice from the court coordinator informing you that your client is set for a PNC (plea negotiation conference). During a PNC you and the prosecution come together to negotiate. It is a predetermined time at a predetermined location where both sides are set to meet and discuss the case in hopes of resolving it without a trial. 1000th District Court at 2:00pm on Jan. 1st, 2100. The prosecutor is scheduled to be there. You are scheduled to be there. It is a special time set aside for your very own personal attention from the prosecutor on the case. Most of the time, the prosecutor, knowing he is set for PNC on the case, will look over the case in advance in preparation for the negotiation. PNC's are for plea negotiations. Pretty simple, right? Not for some defense attorneys. That's why I present the following.

The following are NOT times for plea negotiations:

"Lucky me, I got to the courthouse first thing this morning and got all of my guilty pleas done. I have an extra minute or two. I think I'll swing by the DA's office and talk to the prosecutor on that one case. He's probably there."

"Dang it! I've got trial next week and am in no way ready. This stupid trial is gonna take up all my time and attention the rest of the week. It's Monday and while I've got a second, I'm gonna ring up the prosecutor on cases I have set for PNC in the 1000th District Court on Friday morning and see if we can go ahead and get that out of the way. He's probably got a sec."

"Oops. My PNC was set at 1:30pm and it's now 3:30pm. I bet she's still in court. She has to wait on me anyway. I know the court makes her stay until all attorneys have shown up. Who cares if I'm 2 hours late. She's probably been dealing with other attorneys anyway and won't even notice I'm late. Besides, I hate standing in the stinking PNC line."

Finally, my favorite:

"Woo-hoo! Vegas, baby! Can't wait to get there Wed. night. Oh wait, I've got PNC's Thursday afternoon. Eh, no biggie. I'll just swing by the DA's office tomorrow after lunch and see if the prosecutor has some free time."

Bottom line is this. The prosecutor does NOT have any free time, ever! She has a thousand cases and is working on any twenty of them at one time. If you step back from the situation, you should easily be able to see her response to your random call, tardiness, or unannounced drop-in. It's not a good one - far from it. You have been given an appointment to negotiate the case. Keep it. The prosecutor must keep it. The above examples (and similar variations) will land you straight in the doghouse. Do you see any success negotiating from a doghouse? Don't put yourself in that situation. Make it a habit to negotiate the case at the PNC at the scheduled time.

Disclaimer: There will be those emergency times when you must break this rule. Save it for emergencies! Also, keep in mind this rule does NOT apply to the prosecutor. Obviously, she's not going to just pop into your office to discuss the case. But, if she calls to discuss it, set an appointment and go and see her. She's calling you. Oblige her. There's a reason she wants to see you. It'll pay off for your client (and future clients) in the end.

Is the Art Market Gaining Traction?

Breaking the record for the sale of art at an auction, an unidentified buyer purchased "Walking Man 1" by Alberto Giacometti (see image at at a Sotheby's auction in London on February 3rd. It sold for $104,327,006. At the same auction a Klimt landscape sold for $43,208,606. The total auction yielded a record high $235.7 million. Add to that a a hearty return from Sotheby's Old Master and 19th Century European Art sale in New York last week and Christie's London sale of impressionist and surreal art totaling $149,607,659 and you have signs that the art market may be gaining traction.

Wednesday, February 3, 2010

Is the Verdict Form a Part of the Jury Charge?

It is.  Therefore, if the verdict form contains mistakes or omissions, those errors are analyzed for harm under the Almanza standards of review.  We reverse the court of appeals, which stated that a verdict form is not part of the jury charge and held that if a defendant fails to object to the omission of a 'not guilty' option on the verdict form, she fails to preserve any complaint on appeal.
See Jennings v. State, released January 27, 2010 by the Texas Court of Criminal Appeals.

Tuesday, February 2, 2010

Question Regarding Expunctions

This week we received the following question.

Question:  L & J for Y'all, In my case the DA agrees that no crime was committed. He says if I can prove my entitlement to expunction pursuant to Article 55.01. RIGHT TO EXPUNCTION (a)(2)(A)(ii) then he will agree to it. So I will not have to wait for the statute of limitations to run. But I do not know why I have to prove it since he admits I am entitled. Regardless here is my question. How do I or an attorney get at the information to prove this? Is discovery allowed in an expunction proceeding? Are there alternatives such as Texas Rules of Civil Procedure Rule 202?

Answer: Article 55.01 (a) (2) (A) (ii) states that you are entitled to an expunction if the court finds that the information or indictment against you was dismissed or quashed because the presentment had been made because of mistake, false information or other similar reason indicating absence of probable cause. Basically, that just means that you were charged with the crime but shouldn't have been because it was a mistake or based on false information. 

When you were told that you have to "prove" your entitlement to the expunction, that probably means that the prosecutor wants you to prove to him that the charge was brought against you based on a mistake or false information. This can be done in writing by what you allege in your pleading when you file your Petition to Expunge Records.  You will not need discovery and it is unlikely that any state agency will admit in a discoverable writing that it erred when it arrested or charged you.

I think all the prosecutor is looking for is language in your pleading that tracks the language of the statute. In civil court (which is where these Petitions are filed), statements made in pleadings are taken as true unless they are denied by the opponent in some way. Once you simply say, "I am entitled because the information was dismissed because of a ________ mistake" (or something to that effect-depending on the facts of your case), then the prosecutor will have to take steps to file a denial and contest the matter.

Of course, I think you should hire an attorney if you foresee any other issues arising (and I am not familiar with all of the facts of your case). If you think this issue is simple and that you and the prosecutor are on the same page on this deal then it may be enough to just file your petition with the proper language