Wednesday, March 31, 2010

Defendant Must Admit Both the Act and the Culpable Mental State for Necessity Defense

Today the Texas Court of Criminal Appeals clarified what is required of a defendant under the doctrine of confession and avoidance in order to claim the defense of necessity and thereby be entitled to a defensive instruction. The Court's admittedly inconsistent prior opinions on the issue could be what led the 12th District (Tyler) to its incorrect statement of the law in the lower case.

The lower court held that admitting only the act and not the mens rea is enough to invoke the defense of necessity. The CCA disagreed stating that the "confession and avoidance" doctrine "requires an admission to the conduct, which includes both the act and the requisite mental state."

The case is called Juarez.  See opinion HERE.

Sorry about the appearance id this post. I tries writing it from my smartphone, but it appears that the phone is nor so smart after all. I will try to clean it up later.

Tuesday, March 30, 2010

Cops Have No Duty to Clarify Suspect's "Vague" Request for an Attorney

Officer:  "I want you to write out a statement regarding what you know about the robberies."

Suspect:  "Maybe I should get an attorney for this."

Officer: ...(nothing spoken, but likely thinking to himself - "Hmm, if I don't say anything, maybe he'll forget about the attorney and give us the statement" - according to me).

Well, the Government Agent was right.  The suspect entered a written confession and his statements were later used against him in his trial (and conviction) for multiple counts of bank robbery in United States District Court for the Northern District of Texas.  On 26 March, the 5th Circuit upheld the admissibility of his written confession and affirmed the conviction.  See U.S. v. Montes.

In a concise statement of law, the 5th Circuit ensured law enforcement officers that they have no duty other than to give the minimum warnings required by Miranda:

It is black letter law that when a suspect who is subject to custodial interrogation exercises his right to counsel, law enforcement officers must cease questioning until counsel is made available to him, unless the accused himself initiates further communication, exchanges or conversations with the officers. Edwards v. Arizona, 451 U.S. 477, 485-86 (1981). Generally, an invocation by a suspect of his right to counsel that is ignored by law enforcement officers requires that the suspect’s statements made after the request be excluded by the trial court. Id. If a suspect, however, makes an ambiguous or equivocal reference to an attorney there is no requirement that law enforcement cease questioning. See Davis v. United States, 512 U.S. 452, 459 (1994) (holding that an ambiguous reference to counsel does not invoke the right to an attorney); see also United States v. Scurlock, 52 F.3d 531, 535-37 (5th Cir. 1995). Further, the investigator conducting the questioning has no obligation to attempt to clarify the ambiguous comment of the accused. Davis, 512 U.S. at 461. Thus, “law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.” Id.
I guess if you really think about it - why would we ever want a suspect to really know what his rights are or how he can invoke them? (Insert sarcasm here).  I understand that law enforcement officers are out to catch the bad guys, so naturally I would not expect them to want to assist a suspect in this area, but couldn't it be a sign that the prior Miranda warnings were not given effectively if the suspect indicates a lack of understanding?  

The officers in this case testified unequivocally that the request for an attorney was “vague” and “wasn’t a demand;” [the suspect] never “affirmatively sa[id] he wanted an attorney.” Despite the suspect's contrary testimony, the district court found that since he did not clearly invoke his right to counsel, as required, his post-arrest statements made after his ambiguous request for an attorney were admissible.

Seriously, how hard would it have been for the officers to clarify whether the suspect was asking for an attorney?  If you'll indulge me, let's see:

Officer:  When you say that 'Maybe you need an attorney,' are you asking for an attorney?

Suspect:  No (probably).

Wow, that didn't take long.  After that exchange, there would be no issue at trial (or on appeal).  In my mind the government should not only seek justice, but it should seek to maintain the appearance of justice.  Allowing officers to simply disregard a comment by a suspect about his right to an attorney because (in the officer's mind) the statement is "vague" misses the mark on the appearance of justice.

Monday, March 29, 2010

Back from the Forensic Science Conference

I just returned from the NACDL 3rd Annual Forensic Evidence Conference in Las Vegas.  The program was a 2-day event featuring various presentations regarding the use of forensic evidence by criminal defense lawyers.  If you get the chance next year, I would definitely recommend attending - it will be in Las Vegas again and hopefully the craps tables will be just as hot!

One of the most interesting presentations (for me) was on the use of graphics in the courtroom.  G. Christopher Ritter, who wrote the book Creating Winning Trial Strategies and Graphics, gave an excellent lecture with several graphical examples on how to appeal to juries through the use of graphics.

The other presentation that was particularly appealing, was given by the lead defense attorney for the Michael Peterson murder trial where he showed several intriguing clips from the documentary "The Staircase."  The focus of the lecture was on "junk science" and how to expose it to the jury.  "The Staircase" will be my next rental from the video store - it is a documentary that no criminal defense attorney should miss.

Now it's time to get back to blawgging.

Wednesday, March 24, 2010

Forensic Science Seminar

I will be away from my desk for the next few days - in Las Vegas attending the NACDL Forensic Science Seminar.  Maybe I will pick up some helpful tips or maybe I will win big at the craps table (or maybe neither).

I'll be reading cases on the trip and we'll see if I get a chance to post anything worthwhile.

Oyez, Oyez, Oyez...

This morning I was admitted to the Bar of the U.S. Supreme Court by oral motion of one of my colleagues in DC. Although I do not anticipate being involved in any Supreme Court action anytime soon, I now stand ready.

After being admitted, I remained for oral argument of the first case of the day - a terribly dry civil case regarding liability for damages to a railroad shipment. While the case may have been a yawner, the interaction of the court was quite interesting. As I expected, Justices Thomas and Alito asked no questions. I actually thought Justice Thomas was asleep for a little while, but he became much more lively when an aide appeared with his coffee. The junior member of the Court, Justice Sotomayor, however, did not even allow the petitioner to complete his first sentence before she began with her barrage of questions. On 2 occasions she even interrupted Chief Justice Roberts to ask a question. The Chief Justice did not appear very pleased on one occasion, but calmly waited for the attorney to answer Justice Sotomayor's question before stating: "Perhaps you can answer my question now."

A regular listener to Supreme Court arguments, this was my first time to observe oral arguments in person. I truly enjoyed the experience and hope to go back soon - preferably, when the Court has a hot criminal law issue on the docket.

B.W. Barnett

Tuesday, March 23, 2010

"But He Started It!" - Self-Defense Instruction Doesn't Always Apply

"The dog ate my homework."

"I only had two beers."

"I did not have sexual relations with that woman."

"Okay, even if I did, it was consensual."

"But he started it!" - Self-defense is one of the most commonly used defenses in criminal law.  Many times, this defense has merit, but sometimes (especially in homicide cases) it is a lame attempt to shift the attention of the jury from the acts of the obviously culpable defendant to the victim (who is usually a questionable character himself).  Can any defendant claim self-defense?  Sure, if the issue is raised by the evidence.  Are there limits to a defendant's right to a self-defense jury instruction?  You bet.

One of those limitations is found in section 9.31(b)(5) of the Texas Penal Code, which provides:
The use of force against another is not justified if the actor sought an explanation from or a discussion with the other person concerning the actor's differences with the other person while the actor was... [unlawfully] carrying a weapon.
What exactly does "concerning the actor's differences with the other person" mean in the legal sense?  This issue was recently addressed by the 14th District Court of Appeals (Houston) in Hernandez v. State, in which the court dusted off the ole' Webster's dictionary and explained:
The term "differences" is not defined in the statute. Under the canons of statutory construction, we are to construe a statute according to its plain language. Edwards v. State, 273 S.W.3d 919, 921 (Tex. App.—Houston [14th Dist.] 2009, no pet.). In determining the plain meaning of the language of a statute, "[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage." Tex. Gov’t Code Ann. § 311.011(a) (Vernon 2005). The plain meaning of "differences" is a "disagreement of opinion," or "an instance of disagreement or a point upon which there is disagreement." Webster’s Third Int’l Dictionary 629 (1993) (third definition of "difference").
In Hernandez, because the defendant, while unlawfully carrying a weapon, sought out the victim to discuss a contentious matter ("differences"), the defendant was not entitled to a jury instruction on self-defense when he was later charged with the murder of the victim.  Murder conviction and life sentence affirmed.

Monday, March 22, 2010

Lawyers Convicted of Theft by Deception in Dramatic Sex Scandal

Many times while reading appellate case law, I find myself searching for that legal wrinkle that makes the case worth reading (or blawging about).  Sometimes, the significance of the appellate decision is more obvious.  Other times (like today), I read a case, the facts of which are just so darn compelling, I don't even pay attention to the legal arguments.  Here's a good one for you:

Wife finds out that husband is cheating on her and that he has been perusing an adult internet site.  Eager to "catch him in the act" she signs up for an online profile and describes herself as a sex-starved housewife, looking for the kind of pleasure that only a strong man can provide.  He never takes the bait, but several other gentlemen (all very prominent, well-to-do, gentlemen) cash-in on her offer (all on separate occasions and without knowledge of the others).  Husband gets wind of her indiscretions and confronts her at an Austin hotel on the very eve of one such encounter.  Rather than fight, or pursue a divorce, they hatch a plan.  (It's somewhat possible that this plan was hatched before she met the 4 gentlemen, but it isn't clear from the record).

Husband, a Texas lawyer, drafts Rule 202 petitions under the Texas Rules of Civil Procedure seeking testimony and evidence relevant to potential claims (bogus claims) against the 4 gentlemen and his wife.  Wife, also an attorney (not sure if she is licensed in TX), helps him by editing his drafts.  She then contacts each of the men, tells them that her husband found out about the affair and would like to speak with them.  Each ultimately agrees to meet with the husband and at the meeting he serves the Rule 202 petitions, along with a not-so-subtle letter "suggesting" that they pay him a large sum of money (checks payable to him or a sham charity).  Husband collects a total of $115,000 from the 4 gentlemen in exchange for letters of non-disclosure.  Husband and Wife magically reconcile their rocky relationship and use the money as a down-payment on a new $625,000 home.

It isn't clear how this ordeal was ultimately discovered, but Husband and Wife are eventually charged with Theft by Deception for the shakedowns.  Not sure of the final outcome of Husband's trial (please fill me in if you know), but Wife is convicted of 5 counts and awarded ten years' confinement for each count, to run concurrently (suspended and placed on 10 years community supervision).

Wow!  That is the stuff of soap operas!  If you want to find out more about this story and see if you know the attorneys involved (forgot to mention, one of the gentlemen callers was also a Texas attorney), see the opinion of the 4th District Court of Appeals (San Antonio) in Roberts v. State, 17 March 2010, HERE.

Sunday, March 21, 2010

180-Day Speedy Indictment Rule is Merely Procedural

What happens when the State drags its feet in presenting an indictment or information against a person who is incarcerated or otherwise in custody?  Can that person have his case dismissed with prejudice when the State fails to move quickly in charging?  Unfortunately, th best he can hope for is to buy some time by having the case dismissed thereby releasing him from custody while the State pursues its indictment.  The State will then be forced to re-arrest the defendant once it finally obtains an indictment or drafts an information.

Article 32.01 of the Texas Code of Criminal Procedure provides:
When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant on or before the last day of the next term of the court which is held after his commitment or admission to bail on of before the 180th day after the date of commitment or admission to bail, whichever date is later.
Jeffrey Paul Schroeder argued on appeal that his indictment was defective because it was not presented within this 180-day time frame.  In a concise and pointed opinion (HERE) upholding the conviction for intoxication manslaughter, the 9th District Court of Appeals (Beaumont) explained why Mr. Schroeder's claim failed:
[A]rticle 32.01 does not create a substantive right that frees a person from prosecution for the commission of an offense. See Ex parte Seidel, 39 S.W.3d 221, 224 (Tex. Crim. App. 2001). Instead, article 32.01 creates a procedural right to be dismissed from custody under certain circumstances until the grand jury has been presented with an indictment. After the presentment to the grand jury of an indictment on the offense at issue, article 32.01 is no longer applicable. Brooks v. State, 990 S.W.2d 278, 285 (Tex. Crim. App. 1999). In most cases, “the defendant may be rearrested for the same criminal conduct alleged in the dismissed prosecution . . . .” TEX. CODE CRIM. PROC. ANN. art. 15.14 (Vernon 2005).
In this case, Schroeder did not obtain a ruling on his motion to dismiss before the grand jury returned its indictment. Therefore, when the trial court ruled on Schroeder‟s motion, and because the grand jury had at that point returned an indictment, the trial court was no longer required to release Schroeder from custody. See Ex parte Countryman, 226 S.W.3d 435, 436-39 (Tex. Crim. App. 2007) (in a habeas proceeding, holding that a “speedy-indictment claim” was moot when the indictment had been returned before the trial court heard the motion to dismiss the indictment). Because Schroeder had already been indicted by the grand jury when the trial court denied his motion to dismiss the indictment, a dismissal of his indictment was no longer required. Id.

Friday, March 19, 2010

Expunctions: The Magic Eraser?

This just in from one of the LJ4Y co-conspirators:

There is a misconception among clients (and the general public for that matter) that somewhere within the confines of an attorney’s office exists a magic eraser that can clear criminal records. Unfortunately, this is far from true.  In an earlier post (HERE), I wrote about the general process and purpose of Article 55.01 of the Texas Code of Criminal Procedure – Expunction of Criminal Records.  I’d like to break down – as much as possible – the specific situations that will entitle a person to an expunction of their criminal records.

The first thing you must convey to a client is that the magic eraser for their criminal record is only available in very limited circumstances.  Actually, there are only six circumstances that allows for a person to be entitled to an expunction. The first three are easy:

(1)    A person is arrested and acquitted by the trial court
(2)    A person is arrested, convicted, and subsequently pardoned
(3)    A person is arrested, convicted, and then acquitted by the Court of Criminal Appeals

The other two are what I call “screwy” (you won’t find that in Black’s Law Dictionary). We find the two screwy circumstances under Article 55.01 (a) (2) of the Code of Criminal Procedure.  Article 55.01 (a) (2) is the one section of the expunction statute that is most commonly misunderstood and misapplied.  It’s also one of the most poorly worded statutes in the Texas Code of Criminal Procedure (Coincidence? I don’t think so).  This section states that a person is entitled to an expunction if:

(2) each of the following conditions exist:
     (A)   An indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:
           (i) The limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or
           (ii)  The court finds that the indictment or information was dismissed or quashed because the person completed a pretrial intervention program authorized under section 76.011, Government Code, or because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense because it was void
Whew!!! Now, do you see why I call it screwy?  To break it down, this section basically states the last two circumstances that allow for a person to be entitled to an expunction:

(4)    After being arrested, the person was never charged or indicted
(5)    After being arrested, the person was charged or indicted and the information or indictment was dismissed because of mistake, false information, or other similar reason indicating lack of probable cause, or the person completed a pretrial intervention program under 76.011 of the Government Code.

This section also places some qualifiers on these last two circumstances. 55.01 (2) (B) states that a person is entitled under our last two circumstances if the charge has not resulted in a final conviction (the person may have plead to another offense arising out of the same charge), the charge is no longer be pending, and the person wasn’t put on deferred adjudication (unless it was a class C offense, in which case they would be entitled to the expunction).  55.01 (C) states that a person is entitled under our last two circumstances if the person has not been convicted of a felony in the five years preceding the date of arrest.

Without going into too much (more) detail, there is one caveat I have to throw in. Article 55.01 (2) (A) (i) says that the statute of limitations must have expired before you file your expunction. The Texas Supreme Court ruled in The State of Texas v. Judy Beam, that this section applies to both misdemeanors and felonies.

We've covered five situations a person will be entitled to an expunction under Article 55.01. We find one final instance where a person may be entitled to an expunction:

(6)    Section 106.12 of the Texas Alcoholic Beverage Code allows for the expunction of one TABC offense once a person turns 21 as long as they only committed one offense under the TABC code when they were a minor.

It’s important to make sure that when clients come into an attorney’s office wanting to “clear their record” that they know just how limited the circumstances are for that to happen.  The magic erasure exists but it may not be quite as big as some people perceive.

Look for more expunction fun in the future….next up, my comments on where the language of this statute went wrong! 

Thursday, March 18, 2010

Trial Court has No Duty to Sua Sponte Instruct on Lesser-Included Offenses

Yesterday the Texas Court of Criminal Appeals released it opinion in Tolbert v. State (majority opinion HERE).  In Tolbert, the Court considered "whether the trial court was required to sua sponte instruct the jury on the lesser-included offense of murder in appellant's capital murder prosecution." It held that no such instruction is required.

At trial, the government proceeded under a felony-murder theory, alleging that Appellant committed the murder in the course of a robbery.  However, some evidence was presented that Appellant did not decide to rob the victim until after she killed him, which would make it murder and not capital murder.  Accordingly, the State requested a jury instruction on the LIO of murder, a request which the trial judge denied.  When asked, Appellant stated "no objection" to charging the jury on capital murder only - otherwise known as the "all-or-nothing" tactic.  The jury found Appellant guilty of capital murder and she was sentenced to life. (State did not seek the death penalty).

On appeal to the 5th District Court of Appeals, Appellant apparently changed her mind regarding whether the trial judge should have charged the jury on the LIO of murder.  Irrespective of the State's request for the LIO instruction, the 5th Court held that by not sua sponte instructing the jury on the LIO, Appellant was "egregiously harmed" under the Almanza (686 S.W.2d 157) factors and reversed (5th Ct. opinion HERE).  

REVERSING the 5th Court's decision, the CCA stated:
Because of the strategic nature of the decision, it is appropriate for the trial court to defer to the implied strategic decisions of the parties by refraining from submitting lesser offense instructions without a party’s request. It is clear that the defense may not claim error successfully on appeal due to the omission of a lesser included offense if the defense refrained from requesting one.
We, therefore, decide that the trial court had no duty to sua sponte instruct the jury on the lesser-included offense of murder and that a jury instruction on this lesser-included offense was not 'applicable to the case' absent a request by the defense for its inclusion in the jury charge.
Judges Johnson and Holcomb dissented, believing that the instruction on the LIO was not an issue that must be requested by the defense, but was part of the "law applicable to the case" which would require a corresponding jury instruction.  Judge Price dissented without opinion.

My thoughts:  Our trial judges are supposed to instruct the jury on the "law applicable to the case." With this decision, the Court departs from years of precedent and would require the defense to specifically request instructions on a LIO.  So now, this is a "defensive issue."  There are definite tactical advantages that can be gained by using the "all-or-nothing" technique of not requesting an LIO instruction, namely the fact that you force a jury of average citizens to make a tough decision on whether to convict for the greater offense rather than letting them essentially "split the baby" with an LIO.  In this case, it simply didn't work and the CCA was not going to correct Appellant's "tactical error" after it proved unwise. (I say "tactical error" simply because it didn't work in this case, not because it should never be done).

Wednesday, March 17, 2010

No Prejudice When Government Delays Indictment for Over 40 Years

U.S. Court of Appeals for the Fifth Circuit - U.S. v. Seale, No. 07-60732

A kidnapping was committed in 1964, back when death was an authorized punishment for kidnapping and there was no statute of limitations (SOL). Having insufficient evidence to seek an indictment the State decided to wait on it. Over 43 years later, in 2007, a co-conspirator came forward and the Government secured an indictment (the Feds this time) against Appellant for kidnapping and conspiracy. In 2007, however, death was no longer an authorized punishment and kidnapping falls under the 5-year SOL for offenses not capital.

During trial, Appellant moved to dismiss the case under 18 U.S.C. 3282, which states "[e]xcept as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed." The judge denied the motion, holding that the new 5-year SOL did not apply retroactively and the unlimited SOL which was in place at the time of the offense should govern. Appellant was subsequently convicted in federal district court of 2 counts of kidnapping and one count of conspiracy to commit kidnapping under federal law and sentenced to life in prison.

In his first appeal, the 5th Circuit held that the 5-year SOL applied retroactively and dismissed the case for violation of the SOL. See 542 F.3d 1033 (5th Cir. 2008). The 5th Circuit, however, later decided to hear the case en banc, thus vacating the holding of the first panel. The en banc hearing resulted in a split court, which is, by default, an affirmance of the trial court's holding. See 570 F.3d 650 (5th Cir. 2008). The 5th Circuit certified the issue to the Supreme Court, but cert was denied (although Justices Scalia and Stevens would have granted). See 130 S.Ct. 12 (2009).

Having conclusively (although not convincingly) settled the SOL issue, the 5th Circuit now considered other issues raised, chief among them being that the 43-year pre-indictment delay prejudiced the appellant and/or was a tactical or bad faith delay by the Government.

Highlighting Appellant's inability to establish a due process violation, the 5th Circuit affirmed the conviction and sentence. Notable portions of the opinion are provided below:
Although more than forty years elapsed from the date of the alleged crime to Seale's indictment, this fact alone does not establish a due process violation. The mere passage of time is insufficient to support a due process claim, even if the time lapse prejudiced the defense. Dickerson v. Guste, 932 F.2d 1142, 1144 (5th Cir. 1991). To show an unconstitutional pre-indictment delay, a party must establish two elements: 1) the Government intended to delay obtaining an indictment for the purpose of gaining some tactical advantage over the accused in the contemplated prosecution or for some other bad faith purpose, and 2) that the improper delay caused actual, substantial prejudice to his defense. United States v. Crouch, 84 F.3d 1497, 1523 (5th Cir. 1996) (en banc). The burden is on the defendant to establish both prongs. United States v. Jimenez, 256 F.3d 330, 345 (5th Cir. 2001).
In United States v. Lovasco, 431 U.S. 783 (1977), the Supreme Court distinguished between investigative delay and tactical or bad faith delay. In distinguishing between the two, the Court stated: Investigative delay is fundamentally unlike delay undertaken by the Government solely "to gain tactical advantage over the accused" precisely because investigative delay is not so one-sided. Rather than deviating from elementary standards of "fair play and decency," a prosecutor abides by them if he refuses to seek indictments until he is completely satisfied that he should prosecute and will be able promptly to establish guilt beyond a reasonable doubt. Id. at 795 (internal citations and quotations omitted). Applying the Court's analysis in Lovasco to this case, we are satisfied that the district court did not err in concluding that the delay preceding Seale's indictment was investigative rather than tactical.
Since the defendant bears the burden to show both the Government's bad faith and prejudice to the defendant in order to establish a due process violation based on undue delay, it is not necessary to inquire whether the prosecution's delay caused actual, substantial prejudice to Seale's defense.
My thoughts: While the Government may not have intended a "tactical" delay, the delay certainly worked to a considerable advantage. Back when the State was considering seeking the original indictment, a note was placed in the file instructing them to wait for better timing. What time could be better than 43 years later when a co-conspirator decides to come forward and implicate the Appellant and ample amounts of evidence favorable to the defense are long gone? The country we live in and the sentiments of the potential jurors are substantially different. Heck, even the jury pool from which the potential jurors will be selected must be substantially different from what it would have been in 1964. This delay certainly prejudiced the Appellant and was advantageous to the Government.

Tuesday, March 16, 2010

Another Questionable DWI Case Affirmed in the 2nd District Court of Appeals

It seems like just yesterday I just wrote a post about the 2nd Court of Appeals affirming a DWI case despite legal or factual flaws.  No, it was today.

In the Tarrant County war against DWI, the Court affirmed Reed v. State, a case in which Appellant pled guilty after the trial court denied her motion to suppress evidence obtained from the traffic stop based on lack of reasonable suspicion for the stop.  In its findings of fact supporting the denial of the motion, the trial court noted:
  • There was no traffic violation under Section545.060(a) [of the] Transportation Code. 
  • There is no evidence that the Defendant’s failure to drive in a single lane was unsafe. 
  • The use of the turn signal was not done in an illegal manner. 
  • Defendant was not weaving within the lane.
  • There was very light traffic on the highway.
  • The driver made no erratic speed changes.
  • Driver stayed within the speed limit.
Sounds like anyone could be stopped for DWI if an officer has reasonable suspicion based on this.  Once again Justice Dauphinot, the lone dissenter, is the voice of logic and reason.  While praising the professionalism of the officer, Justice Dauphinot states:
Officer Miller testified that he pulled Appellant over because he saw her commit a traffic violation. But he was mistaken. What he observed was not a violation of the law. As this court has previously explained, reasonable suspicion of an alleged traffic violation cannot be based on a police officer’s mistaken understanding of traffic laws.The detention cannot be justified by the fruits of the detention. 
This case is a quick read (HERE) if you have the time, and there are many more interesting nuances that I have not included.  A troubling case indeed for the rights of Tarrant County drivers.

Contradicted Police Testimony, Faulty Recording, and Unreliable BAC Results - DWI Conviction Upheld

In Williams v. State, (released 4 March) the honorable justices of the 2nd District Court of Appeals (Fort Worth) assured the citizens of Tarrant County that DWI (whether apparent or perceived) will not be tolerated in their voting district. I encourage you to read the dissent of Justice Dauphinot (at the conclusion of the majority opinion HERE) to understand what I mean. Below are some excerpts in case you don't have the time to read the whole thing.

For some context, the appellant was convicted after officers testified that he failed a field sobriety test (including slurring speech), that the he passed out in the back seat of the patrol car, and that he registered a .097 on the breath test.  The majority, however, glosses over the facts that:

  • The officers failed to properly record the sobriety tests administered on appellant, by making sure that there was enough tape or that the microphones were turned on;
  • The audio recording that was made contradicts the idea that appellant was asleep or "passed out" in the backseat of the patrol car, because it contains appellant speaking to the officers in a quite lucid manner without any slurring of speech;
  • Appellant had vomited (from bad sushi he claims) minutes before the breath test, which render any results unreliable.

Here's what the dissent had to say:
Repeatedly, we are asked to review records of DWI stops during which there is no audio or video record of the event. Why do I believe there should be audio or audio and video record of the DWI stops? Because the law requires, and did so at the time of this stop, either an audio or audio and video record or the filing of a racial profiling report for each stop. See Tex Code Crim. Proc. art. 2.133-.135.  The City of Fort Worth has conscientiously provided the means for complying with this law.
An appellate court should give no weight to testimony that is disproved by the objective record of the actual events. And I believe that the majority should address the issue of an officer’s intentionally disabling the audio recorder and testifying directly contrary to the audio record.
At some point, courts must address the repeated failure of officers to use the recording equipment and their repeated inability to remember whether the car they were driving on patrol or to a DWI stop contained the video equipment the City of Fort Worth has been paying for. If the law requires recording to qualify for the exception to filing racial profiling reports, then is the officer not obligated to make sure that there is tape in a traditional video camera or that a digital camera is activated? When the actual recording conflicts with the officer’s testimony, the defendant’s testimony, or another witness’s testimony, a court cannot pretend that the emperor is wearing new clothes just because someone testifies that he is.

Monday, March 15, 2010

Does Your Client Deserve Special Treatment?

Another post from one of our friendly Texas prosecutors:

The following post is anecdotal and may not apply to all prosecutors across the State.  It's just how I see things.

Justice is blind, or at least it’s supposed to be.  But let's face facts - prosecutors give special consideration to defendants whom they feel deserve it.  Special consideration may be in the form of a pretrial diversion, deferred adjudication, class C offer, or maybe even a dismissal upon the completion of certain requirements.  Is there is way you can help the prosecutor see that your client deserves special consideration?  Absolutely.

Now, keep in mind, this doesn’t apply to all of your clients.  Like it or not, the defendant who has been to state jail is not going to get the same open-mindedness from the prosecutor as the first time offender.  That should be obvious.  Maybe your client does have some history, but has really turned her life around.  This was just a stupid mistake.  Is the fact that your client is a first-time offender always going to get that special deal or is the fact that your client has a criminal history always going to preclude such a deal?  Nope.  What you need to do is…

Go the extra mile. Prepare a folder with mitigating information.  Yes, a folder.  Prepare it as if you were turning it in to a professor.  Why?  Can’t you just tell the prosecutor the information?  You may think that he probably wouldn’t have time to really look at a folder anyway…  Wrong.  Remember, you, the defense attorney, portray the image of your client to the prosecution.  Portray it in a professional manner.  And a folder full of mitigating information about your client will grab his attention.

What do you put in the folder?  Anything that demonstrates your client’s redeeming qualities: letters of recommendation, transcripts, proof of employment, recent accomplishments, anything.  The sky is the limit.  For the purpose of this post, I’ll focus specifically on these four:

 1)  Letters of Recommendation

If you recall, one of the important parts of the law school application was submitting letters of recommendation.  Not the “I know this person and she’s awesome” type.  Rather, the “Here’s who I am and here’s how I know this person and here’s a specific instance of character” type of letters.  Prosecutors see the former on a regular basis and the effect is usually minimal.  However, the latter is rare and much more effective.

2)  Transcripts

Prosecutors aren’t admission boards.  Grades aren’t really that important.  Of course, solid F’s won’t get you anywhere, but any records showing your client progressing through higher education is a plus.  Same goes if you have a client who is still in high school.  Proof of someone trying to obtain their GED should also be included.*

*I would like to point out if you ever have a client who has not completed their GED or is showing interest in college, have them do it.  The criminal process takes months.  During your first meeting early on, steer them in the right direction.  It is always a handy tool during PNC and the long term benefits for your client are clear.

3)  Proof of Employment

Working is key.  Someone who appears unemployed and lazy is never appealing to a prosecutor.  Provide proof of employment through either a letter from the boss (same rules as a letter of recommendation above) or payroll stubs.  Make sure payroll stubs are the most recent.  One from six months ago isn’t going to have much impact.  Again, if you have a client who isn’t working or going to school, encourage them to do so.

4)  Proof of Accomplishments

You may have a client who is a regular volunteer at the Salvation Army.  Get a letter and add it to the folder.  Maybe he was an eagle scout or former military.  Add it, too.  Any of your client's achievements or accomplishments can do nothing but separate them from the rest of the prosecutor’s caseload.  As before, if your client has no notable accomplishments, you should encourage her to go do something to help out the community.  Taking proof of the completion of 40 hours of community service by your client who has been charged with shoplifting shows the prosecutor your client is already accepting responsibility for his actions.  It will help her distinguish your client as being truly deserving of a favorable offer.

By now you get my point -  Provide hard copies of mitigation to the prosecutor.  And, if you’re going to do that, do it right.  Don’t throw a bunch of letters together into a 33 cent folder.  Do it right.  Keep that mindset of a college project that’s going to be graded.  After all, your client is, in some way, being graded.  Go for the A+!

Sunday, March 14, 2010

Pre-Trial Motion to Quash Indictment is a Facial Challenge

When a defendant challenges the indictment at a pretrial hearing, the only inquiry may be into whether the indictment, on its face, met the pleading requirements.A trial court may not determine the sufficiency of evidence to support or defeat any of the elements of the charged crime alleged in the indictment at a pretrial hearing.
State v. Reyes, 8th District Court of Appeals (El Paso), reported 24 Feb 2010.

Saturday, March 13, 2010

Great Reading for Defense Attorneys

About a year ago, a colleague of mine recommended that I read Vincent Bugliosi's novel "And the Sea Will Tell."  Of course, I recognized the author as being the prosecutor of the Manson murder conspiracy trial about which he later wrote the book "Helter Skelter," but I was unaware of any other books he had written  So I read it.

I have to say, it was simply amazing.  The background story before the criminal trial is compelling in itself, but to read about the way Mr. Buglisoi researched and prepared for the trial (as a defense attorney) was truly remarkable.  His closing argument in the case was the work of a legend.  In my opinion every criminal trial lawyer (especially defense attorneys) should read this book.  I plan on reading it again soon.

Just thought I'd pass this along for what it's worth.  I read at least 3 books a month, so if you have any recommendations, leave them for me in the comments.  I'll read anything.  Thanks.

Friday, March 12, 2010

It's Official, We Have a Reader!

I think we (myself and other contributors) would write this blog even if no one was reading it.  Blogging about recently published cases allows us to keep our fingers on the pulse of Texas criminal law and widen our breadth of knowledge in the area.  But it is good to know that we have a reader out there.  See Grits post HERE.

Thanks Grits.  I'm glad you enjoy our posts.  We'll keep working to provide more.

State Doesn't Follow the Rules - Juvenile Case Reversed and Remanded

Last month I wrote How Does a Juvenile Get Tried as an Adult in Texas, outlining the requirements under the Texas Family Code whereby a juvenile is transferred to district court to be tried as an adult.

The requirements to transfer a juvenile case to district court are specific and the State must follow them.  See what happens the State doesn't follow those requirements HERE.

Thursday, March 11, 2010

Shackle that Defendant - Because I Said So!

Nothing was more frustrating to me when I was a child than when I would ask my parents "Why?" and they would respond "because I said so." That's not even an answer! "You're getting a spanking because you put sill-putty in your sister's hair and we had to cut it out with scissors" is an answer.

For the U.S. Court of Appeals for the Fifth Circuit, a similarly unacceptable answer to the question "why" is: "because that's how we always do it." "Because that's how we always do it" was the trial judge's response when asked why the defendant had to be shackled during trial. U.S. v. Banegas, No. 08-10915.

Shackling a defendant during trial in "inherently prejudicial" and "undermines the presumption of innocence and the related fairness of the proceedings." U.S. v. Joseph, 333 F.3d 598 (5th Cir. 2003). "The law has long forbidden routine use of visible shackles during the guilt phase; it permits a State to shackle a criminal defendant only in the presence of a special need." Deck v. Missouri, 544 U.S. 622 (2007). Accordingly, the trial court must state its reasons for shackling outside the presence of the jury.

In Banegas, the court's stated reason for shackling the defendant was that "everyone in this court who has tried a case pro se that's incarcerated" gets shackled. Nothing more was offered. Was it because the defendant was a safety threat ? A flight risk? An involuntary break-dancer? The record doesn't reflect - it's just how the court always does it.

In Deck, the Supreme Court took a look at the issue of shackling and identified several historical factors that should be considered in determining whether a defendant should be visibly shackled: 1) past escape, 2) prior convictions, 3) that nature of the crime for which the defendant was on trial, 4) conduct prior to trial while in prison, 5) any prior disposition toward violence, and 6) physical attributes of the defendant like size, strength, and age.

Despite whether the trial court uses these factors or other factors tailored to the particular case, it MUST state its reasoning on the record so that the issue may be resolved by the appellate court. When the appellate court is left to guess at the reason for shackling, it has no choice but to find a due process violation and vacate the conviction.

(It should be noted that the record did not demonstrate whether Banegas' shackles were visible to the jury, therefore the Fifth Circuit had to assume that they were visible. The holding was premised on that assumption.)

Wednesday, March 10, 2010

How can you attack the enforcement of a judgment in federal court?

The Writ of Audita Querela.

(WARNING:  The following post is not exactly riveting, but you never know when you might need it)

What exactly is a writ of Audita Querela? A writ of audita querela is a process whereby a convicted person may collaterally attack the enforcement of the judgment (but not the judgment itself) due to matters that arise after the judgment is issued. But rather than try to explain it, I'll just let the 5th Circuit Court of Appeals tell you about it:
The writ of audita querela is a common law writ dating from the reign of Edward III that constitutes the initial process in an action brought by a judgment defendant to obtain relief against the consequences of the judgment on the ground that some defense or discharge has arisen since its rendition that could not be taken advantage of otherwise. Audita querela is distinguished from coram nobis in that coram nobis attacks the judgment itself, whereas audita querela is directed against the enforcement, or further enforcement, of a judgment which, when rendered, was just and unimpeachable. In other words, a writ of coram nobis attacks a judgment that was infirm at the time it was rendered for reasons that later came to light, while a writ of audita querela is used to challenge a judgment that was correct at the time it was rendered but which is made infirm by matters that arose after its rendition.

Rule 60(b) of the Federal Rules of Civil Procedure expressly abolished the application of the writ of audita querela to civil judgments in 1948. However, the reasoning of the Supreme Court's opinion in United States v. Morgan, 74 S.Ct. 247 (1954), may allow the writ to be used to attack a criminal judgment. In Morgan, the Court held that the writ of coram nobis, which Rule 60(b) also had abolished in civil cases, was still available in criminal proceedings under the All Writs Act, 28 U.S.C. § 1651(a), where it was needed to fill a gap in the federal post-conviction remedial scheme. Accordingly, we have, as have several other circuits, acknowledged, with some reservation, that the writ of audita querela might also survive in criminal adjudications, if there is a gap for it to fill. We have yet to encounter a case that has required us to decide squarely whether or not the writ of audita querela survives in criminal cases.
Nevertheless, we have held that, if the writ survives, it can only be available where there is a legal objection to a judgment which has arisen subsequent to that judgment. Purely equitable grounds for relief do not justify the issuance of a writ of audita querela. Furthermore, the writ is only available where the legal objection raised cannot be brought pursuant to any other post-conviction remedy. This limitation follows from the reasoning of Morgan, which allows relief pursuant to a writ of audita querela only where a gap exists in the system of federal post-conviction remedies.

Taken from U.S. v. Miller, No. 08-11186, filed March 8, 2010.

Tuesday, March 9, 2010

Undetected College Rapists

HERE is the link to an intersting article about college men who commit sexual assaults and go undetected and unprosecuted. The article, which mentions one student from a Texas university, is an eye-opener.

Sunday, March 7, 2010

What are the Odds of Getting the Death Penalty in Texas?

From the Houston Chronicle:
The death penalty is more likely to be imposed on convicted murderers who kill whites or Hispanics who have college degrees, are married and have no criminal records, according to a new study that examines 504 Harris County capital murder cases that occurred between 1992 and 1999.

Convicted capital murderers also were more likely to get the death penalty in Harris County when defended by court-appointed lawyers, while those who hired attorneys to represent them for the entire case were never sentenced to death, according to a separate brief written by the same professor.
Read full article HERE.

Saturday, March 6, 2010

Prosecuting Intellectual Property Crimes

If you ever find yourself defending an intellectual property crime in federal court, see the DOJ's playbook HERE.

Friday, March 5, 2010

The Poisonous Tree Beareth No Fruit: Officers Unlawfully Seize Property, Find Drugs, But CCA Refuses to Suppress

If you enjoy reading interesting opinions from the Texas Court of Criminal Appeals (as do I), State v. Powell will not disappoint. See majority opinion HERE.

Powell involved a lawful search of two safes preceded by a warrantless seizure of these safes.
The police obtained a warrant to search appellee’s home and to seize, among other things, “checks and materials to make forged checks.” While executing this search warrant at appellee’s home, the police found two safes which no one disputes the police could have lawfully searched since the safes could have contained “checks and materials for making forged checks.”  The police seized these two safes and took them to the police station where they searched them the next day and found in one of the safes the methamphetamine that is the subject of this prosecution. The trial court and the court of appeals decided that the seizure of these two safes violated appellee’s Fourth Amendment rights because these safes were not “particularly described” in the search warrant as items to be seized.
Relying on the Supreme Court's holding in Hudson v. Michigan, 547 U.S. 586 (2006), which emphasized the difference between a "privacy" interest and a "possessory" interest under the 4th amendment, the CCA reversed the 2nd Court of Appeals (and the trial court), stating:
We believe that this record, viewed in the light most favorable to the trial court’s ruling in favor of appellee, fairly demonstrates that the police would have searched the safes whether or not they took them to the police station ... We also note that the invasion of appellee’s privacy interests in the safes by the police search of the safes was exactly the same whether the police searched these safes at the home or at the police station (Footnote 17) ... This otherwise lawful search of the safes was “wholly unrelated” to any prior unlawful seizure of these safes.
The CCA ultimately held that the "massive" remedy of exclusion of the methamphetamine is not required.  In a more shocking note (and a slap in the face of the appellee, in my opinion) the court closed with this:
We believe that, as the defendant’s remedy in Hudson was a civil suit for damages for his broken door, any remedy that appellee might have is also a civil suit for damages for his alleged unlawfully seized safes. See Hudson, 547 U.S. at 596-99.
Judge Price dissented (see HERE) because, in his view, the warrant DID authorize the seizure of the safes (albeit implicitly).

Thursday, March 4, 2010

CCA Holds: Out-of-Court Statements by Confidential Informant Violate Crawford and Confrontation Clause

In a big case for the 6th Amendment and the ever-expanding Crawford jurisprudence, the Texas Court of Criminal Appeals released its opinion in Langham v. State yesterday.

Langham v. State, NO. PD-1780-08

In Langham, the Texas Court of Criminal Appeals reversed the 11th Court of Appeals, which previously upheld the admissibility of out-of-court statements made to a detective by a confidential informant. In so doing, the 11th Court of Appeals reasoned that "[h]ere, the primary purpose behind the [out-of-court] statements of the confidential informant was not to provide testimony but to provide information to Detective Smith in order that he could obtain a search warrant." The testimony was later offered at trial through the Detective and used substantively in the State's case.

The CCA reversed, citing the 11th Court's "flawed understanding of what the Supreme Court meant" in Crawford v. Washington. Writing for the majority (6-3), Judge Price stated, "[w]e conclude that the court of appeals erred to hold that Smith's testimony recounting the statements of the out-of-court confidential informant did not violate the Confrontation Clause." "[I]t is manifest that the 'primary purpose' of Detective Smith's communication with his confidential informant was to pave the way for a potential criminal prosecution."

This case appears very fact dependant, so I'm not positive that a bright-line rule has emerged. From my point of view, however, the State is going to have an uphill battle if it wants to introduce any statements by confidential informants.

Presiding Judge Keller dissented. While she did not denounce the rule that statements from a CI would violate the CC, she would affirm this case because the substance of the statements from the CI was slight. Judges Hervey (Keller, Keasler joined) also dissented due to "reservations" regarding whether the statements of the CI were "testimonial."

Wednesday, March 3, 2010

Officer Falsified Report to Induce Confession: CCA Reverses Conviction

Wilson v. State, NO. PD-0307-09.

In an issue of first impression (so says the majority - dissenters not convinced), the Texas Court of Criminal Appeals considered whether article 38.23 of the Code of Criminal Procedure bars the admissibility of a confession (to murder) if the interrogating officer fabricates documentary evidence in violation of the Texas Penal Code section 37.09 and uses it to persuade a suspect to confess.

In Wilson, a detective “knowingly creat[ed] the false document (a fingerprint test result) with the intention that defendant would consider the document as genuine and confess to shooting the victim.”  Writing for the slim majority (5-4), Judge Cochran reasoned that...
The purpose of section 37.09 is to maintain the honesty, integrity, and reliability of the justice system and prohibiting anyone–including members of the government–from creating, destroying, forging, altering, or otherwise tampering with evidence that may be used in an official investigation or judicial proceeding. Obstruction-of-justice offenses, such as tampering with evidence or government documents, address “the harm that comes from the [actor’s] disobedience of the law–damage to the authority of the government; a lessening of the public’s confidence in our institutions; public cynicism, fear, and uncertainty; and a social climate that is likely to lead to even greater disobedience."
Accordingly, the Court affirmed the decision of the "San Antonio Court of Appeals, which held that (1) the interrogating officer violated the law by fabricating a forensic report falsely stating that appellant’s fingerprints were found on the magazine clip of the murder weapon; and (2) the trial judge erred in denying appellant’s motion to suppress."

See majority opinion HERE.

The dissenters (Meyers, J., and Keller, P.J., Keasler, J., and Hervery, J.) would have reversed.

Meyers (HERE) would reverse because the officer did not, in his view, violate section 37.09, because the latent fingerprints could have very well been the suspect's (and in hindsight were).

Keasler, Keller, and Hervey would reverse because the appellant did not preserve error (HERE) and because he had no standing to challenge the officer's violation of section 37.09 (HERE).

Who's Your Daddy? Father's Conviction for Punching Son Reversed

Parents out there can attest that sometimes it is difficult raising children - even more so if your child is an 18 year-old, 210-pound football player. George Miller can certainly attest.

Miller was convicted of assaulting a family member under section 22.01 of the Texas Penal Code.  The assault arose out a verbal altercation between Miller and his son that turned physical when his son began hitting Miller.  During the altercation, Miller's son challenged his father: "You going to hit me, man?  Are you going to hit me?" He went on to say, "Come on, hit me, go ahead and hit me."  So Miller hit him - bloodying hit face and loosening a few of his teeth.

During Miller's trial for assault of his son, the trial court refused to include the defense of consent or mistake of fact as to consent in the jury charge.  For this, the 14th Court of Appeals (Houston) reversed, holding:
The evidence supporting a consent defense may be presented by the State or defense counsel. See Granger, 3 S.W.3d at 38 n.2; Woodfox, 742 S.W.2d at 409. When considering whether an instruction was warranted, we are concerned only with whether the evidence supports the defense of consent, not whether the evidence is believable. See Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984). If the evidence, viewed in a light favorable to the appellant, supports the defense of consent, then an instruction is required.
Did Miller's son consent to a knuckle sandwich?  I don't know and neither does the appellate court - that's the problem.  The jury - the factfinder - should have had the opportunity to answer the question.  I guess we'll see what the jury has to say on remand (if it's worth another trial).

Tuesday, March 2, 2010

"Seizure" of Computer Data: When Does is Implicate the 4th Amendment?

I'll try to come up with an original thought soon.  Until then, HERE's another good article not written by me.

Yale Law Journal

Abstract: What does it mean to “seize” computer data for Fourth Amendment purposes? Does copying data amount to a seizure, and if so, when? This Article argues that copying data “seizes” it under the Fourth Amendment when copying occurs without human observation and interrupts the stream of possession or transmission. It offers this position by reaching back to the general purposes of regulating seizures in Fourth Amendment law and then applying those functions to the new environment of computers. The test prevents the government from copying data without regulation and yet also meets and answers the objections that have puzzled scholars and made it difficult to apply the old definition of seizures in the new computer environment.

Monday, March 1, 2010

Knowing “Consent” means “Knowing Consent”

I recently came across an excellent 4th Amendment article from Texas Tech School of Law professor Arnold Loewy published in the Mississippi Law Journal.

Abstract: This Article argues that the majority opinion in the Supreme Court’s decision in Schneckloth v. Bustamonte, 412 U.S. 218 (1973), has led to a burgeoning jurisprudence of placing a premium on citizens’ ignorance of their Fourth Amendment rights. Police who have stopped a vehicle for a minor infraction, or for no infraction whatsoever, may simply ask the driver if they can search the car. Police do not have to inform the driver that he or she has a right to decline the search. While the majority would argue that such a warning would break the informality of the interaction between police and driver, the dissent states that the police could casually state that the driver can refuse. The police could use the following illustration: “Joe, I’d like you to let me search your car. You don’t have to if you don’t want to, but I’d sure appreciate it if you did.” No one need fear that informality will be broken. The Article puts forward Justice Thurgood Marshall’s Schneckloth dissent as a wise corrective measure to police valuing citizen ignorance. Justice Marshall clearly saw what the decision would do to the innocent, as well as the guilty, and perhaps most importantly to the Constitution that we are all supposed to live under.

You can download the full article HERE.