Auction house due diligence: What diligence is due?

Bonhams in London just removed a collection of Roman sculptures from its auction when Christos Tsirogiannis and Dr David Gill questioned the provenance surrounding lot 137, a marble sculpture of a youth. David Gill published a photograph persuasively suggesting that the stone figure was linked with a looted item once in Giacomo Medici's possession. Medici was the target of one of the largest modern day efforts by law enforcement to uncover illegal antiquities trafficking.

The statue's appearance at auction raises the question of due diligence. Why was not better diligence used by Bonhams? It is acknowledged that conducting a title history for a large number of objects appearing at auction is labor intensive. However, due diligence to discover the provenance of an antiquity cannot be left to a simple search of the Art Loss Register. Such a register can never produce the history surrounding where an ancient object came from. Attorneys (few that they are) who investigate provenance employ a systematic methodology that covers the bases as best as possible. Auction houses should strive to do the same. Indeed, the diligence due must be meaningful, not superficial.

Those auction houses that employ compliance officers are to be commended for improving their due diligence. While we still have more to do with regard to developing an accepted framework that details what diligence is exactly due, the introduction of a functioning and competent compliance officer inside an auction house can help.

Death Penalty Set Aside for Roy Gene Smith

BLUF:  "Becuase there was consitutional error in the punishment phase of the applicant's trial by which he was egregiously harmed, we remand this case to the trial court for new punishment."

As the saying goes, "if at first you don't succeed, try, try again."  In his second post-conviction application for writ of habeas corpus, Roy Gene Smith got the relief he was looking for.  His death sentence was set aside due to fundamental error during sentencing.  Smith claimed that he was entitled to relief from his death sentence "because he presented significant mitigating evidence related to his moral culpability and the appropriateness of a death sentence that could not be given full effect by the sentencing jury."

The United State Supreme Court has instructed that juries must be "provided a vehicle by which to fully consider and give effect to mitigating evidence of the character and record of the individual offender."  In this case, to determine whether a death sentence was appropriate, the jury was required to answer special issues of:

• Deliberateness
• Future dangerousness, and
• Provocation (if raised by the evidence)

But if the defendant, such as was the case here, presented relevant mitigating evidence that was outside the scope of the special issues, the special issues were a constitutionally inadequate vehicle for the jury to fully consider and give effect to the mitigating evidence.  Furthermore, a "nullification instruction" to the jury is also insufficient to cure the consitutional inadequacy of the special issues.

What are we really talking about here?  The defendant had no real way of telling his story to the jury in a way where they could consider it in his favor in deciding whether to give him the death penalty.  Under the State's sentencing scheme, the jury was unable to adequately consider Smith's evidence of poverty, a crime-ridden neighborhood, and drug addiction. 

In setting aside the death sentence, the Court of Criminal Appeals, in a unanimous opinion, stated:

His evidence of drug addiction, poverty, and crime-ridden neighborhood was at the heart of his mitigation theory.  While we cannot say what credibility or weight the jurors might have given it, since it wne to the heart of the applicant's defensive theory, such mitigating evidence was nonetheless relevant and outside the scope of the special issues.  Therefore, the trial court was required to provide a constiutionally adequate vehicle for the jury to fully consider and give effect to it.  The trial court's failure to do so went to the very basis of the case and vitally affected the applicant's defensive theory at the punishment phase.

See the Court's full opinion HERE.

Alternative Testing May Not be Substituted for IQ Testing in the Mental Retardation Claim of Death Row Inmate

Yokamon Laneal Hearn was sentenced to death for the carjacking and fatal shooting of a Dallas-area stockbroker in 1998.  His initial execution date was set for March 4th, 2004, but it was stayed due to his claim of mental retardation.  In an application for Writ of Habeas Corpus to the Texas Court of Criminal Appeals, Hearn asserts that he is mentally retarded and, pursuant to the Supreme Court holding in Atkins v. Virginia, 536 U.S. 304 (2002), constitutionally exempt from execution.

According to Texas statutes and caselaw, mental retardation is defined by:

(1) significantly subaverage general intellectual functioning; (2) accompanied by related limitation in adaptive functioning; (3) the onset of which occurs prior to the age of 18.

Under the DSM-IV, the first prong (significantly subaverage general intellectual functioning) is defined as an IQ of about 70 or below (with a 5 point margin of error).  In this case, Hearn was administered several IQ tests, both by the State and the defense.  His scores ranged from 74 to 93, and it could not be clearly established that his IQ was about 70 or below.  As such, he searched for an alternative in order to establish subaverage intellectual functioning.

To support his claim of mental retardation, Hearn attempts to use neuropsychological measures to wholly replace full-scale IQ scores in measuring intellectual functioning.  The doctor who performed the testing testified that:

Neuropsychological testing, together with the diagnosis of fetal alcohol syndrome, has demonstrated that the significant limitations I have identified in Mr. Hearn's adaptive behavior are, nevertheless, a product of intellectual deficits...I am satisfied that Mr. Hearn has mental retardation.

The Court of Criminal Appeals, however, is not yet willing to accept new testing measures for mental retardation:

We hold that alternative assessment measures can not be substituted for full-scale IQ scores.

The Court notes in its opinion that its guidelines are judicially created because the Texas Legislature has yet to enact guidelines for enforcing the Supreme Court's Atkins mandate.  So, unless and until, the legislature decides to take up the issue, a full-scale IQ score of about 70 (give or take 5) is what will get your foot in the door.  Anything less, regardless of what other testing may reveal, and the application will be dismissed.

There is no news yet about a future execution date for Hearn.

See CCA opinion HERE.

CCA Affirms Death Penalties for Chanthakoummane and Mays

Sorry, no time to read the 54-page and 48-page opinions right now, but I thought I'd pass the news (and links) on anyway.

In October 2007, Kosoul Chanthakoummane was convicted of murdering Sarah Walker, a Frisco real-estate agent, during the course of a robbery in one of her model homes.  Evidence from the medical examiner revealed blunt force trauma to Walker's head consistent with being struck with a plant stand.  Conviction and death penalty affirmed.  See opinion HERE.

 In May 2008, a jury convicted Randall Wayne Mays of capital murder for the shooting death of Henderson County Deputy Sheriff Tony Ogburn.  Conviction and death penalty affirmed.  See opinion HERE.

Cell Phone Video Falls Under "Plain View" Exception

Can a cell phone video (e.g. Child Pornography) fall under the "plain view" exception to the 4th Amendment prohibition against unreasonable searches and seizures?  Maybe.  Well, what if the defendant voluntarily hands his phone over to the police officer?  Still maybe.  Just like every other 4th Amendment case, if the officer plainly views the evidence from a lawful vantage point, there is no search.  But what if the officer has to push a few buttons on the cell phone?  Search? Well...

Last week, the 2nd District Court of Appeals (Fort Worth), held in Deaver v. State, that under the "plain view" doctrine, an officer's viewing of a child pornography video on a defendant's cell phone was not a search. 

The State asserts, in part, that the record does not provide sufficient evidence that Offier Shipp searched Deaver's phone.  We agree with the State.  A "search" occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.  If an item is in plain view, neither its observation nor its seizure involves any invasion of privacy.  An object is seized in plain view if three requirements are met.  First, law enforcement officials must lawfully be where the object can be "plainly viewed."  Second, the "incriminating character" of the object in plain view must be "immediately apparent" to the officials.  Third, the official must have the right to access the object.

How the State satisfied those 3 requirements in this case, I know not.  In this case, while the defendant was searching through his phone for a person's contact information to give to the officer, the officer snatched his phone out of his hands.  Yes, the defendant was about to voluntarily give the officer his phone, but by snatching the phone, the officer may have jumped the gun.  Requirement 1 - Lawful vantage point?  Perhaps, but I would argue no. 

Next, as the computer experts pointed out in the case, "there is no pornography on the first frame of the video at issue, so the pornographic nature of the video would not be immediately discernable if someone was just scrolling through the various videos on Deaver's phone.  In other words, to find that the video contains pornography, it must actively be played."  Requirement 2 - Immdeiately apparent? No way! (Unless, of course, you engage in the kind of mental gymnastics performed by the court and say that perhaps the defendant began playing the video (with the cop standing right there!) and when the cop retrieved the phone, the porn was on the screen.)

Lastly, the defendant only gave the officer access (arguable access, that is) to the phone so that he could retrieve a phone number listed therein - not to access any other media.  Requirement 3 - Right to access?  Nope.

But it really doesn't matter what I say, as I am not an elected appellate justice - here's what the Court held:

If Officer Shipp was initially justified in gaining control over Deaver’s phone forsafety reasons (Deaver has not argued that he was not), and if Officer Shippimmediately saw the pornographic video upon controlling the phone (as may or may not have happened based on the limited, unclear record), then a motion tosuppress would not have succeeded because the video was in plain view, no invasion of Deaver’s privacy could be shown, and no search could have therefore occurred.  Because Deaver therefore cannot demonstrate, on this ambiguous record, that his counsel’s motion to suppress would have been successful, we overrule his sole issue of ineffective assistance.

Caveat:  This was an IAC case, so the standard of review was much more deferential to upholding the search than it would have been had the trial defense counsel moved to suppress the evidence during trial.

Move Over Sheriff Joe. Texas Town Enters the Immigration Fray.

Farmers Branch is a town of law and order ... a patriotic, American-loving town.

In Famer's Branch, Texas it remains against the law to rent a home to illegal immigrants despite a court ruling striking down the ordinance as unconstitutional.  But the city plans to fight back.  For more, check out this Fort Worth Start Telegram article.

Some Tuesday Levity

Sit back, take a break, and check out these two hilarious websites. 

America seems to have a fascination with the People of Wal-Mart and those who have Mullets (although many times they are one in the same).  Cell-phone cameras and instant internet uploads can provide a wealth of entertainment.

I've added these 2 sites to my list of "Fun Sites" just in case you ever need some amusement.

A Probation Officer Can't Do That!

Of course, in Texas, we call our probation officers "Community Supervision Officers" and last week, the 2nd District Court of Appeals (Fort Worth) explained that community supervision officers CANNOT unilaterally modify the conditions of a person's community supervision (probation).

In Witkovsky v. State, the State tried to revoke appellant's community supervision for failure to complete a sex offender treatment program.  The problem with this was that appellant had already completed a treatment program as required by the Court.  The community supervision officer, however, was dissatisfied with appellant's "progress" as a reformed sex offender and unilaterally ordered that he attend a 2nd treatment program.  When appellant failed to complete the 2nd program, the State moved to revoke his community supervision.  Ala Lee Corso from College Gameday - "Not so fast my fiend" - the Court explained that under Aricle 42.12, Section 10(a) of the Texas Code of Criminal Procedure:

only the judge may alter condiditions of community supervision.  Where there is no showing that the terms or conditions of community supervision were modified, a person's community supervision cannot be revoked for failure to meet the modified terms. 

There are exceptions, whereby a Community Supervision officer can modify the terms of the "community supervision by transferring the defendent to different programs within the community supervision continuum of programs," but that was not the case here where the officer tried to impose an additional treatment program on the defendant.

Must the State Prove the Identity of the Victim in a Theft Case?

The 4th District Court of Appeal (San Antonio) delivered a sharply divided en banc opinion yesterday in Byrd v. State.  The issue in the case was whether, in a theft case, that State is required to prove the person named as owner in the charging instrument was the actual owner of the property?  In a 4-3 decision the majority held that because the owner’s name is not a statutory element of the offense of theft, the State need not prove the name of the property owner as charged.

In her dissent, Justice Simmons did not mince words:

Although this misdemeanor case seems small, the ramification of the majority opinion is large. In this case the jury was charged to find the defendant guilty if the State proved, beyond a reasonable doubt, that Lavonne Byrd:

“with the intent to deprive the owner, Mike Morales, of property, . . . did unlawfully, without the effective consent of the owner, Mike Morales, appropriate said property by acquiring and otherwise exercising control over said property . . .

Without any evidence in the record identifying Mike Morales or linking Mike Morales to the property at issue, the jury returned a guilty verdict.  This is an astonishing result. T he consequence of the majority opinion is to permit the conviction of a defendant for theft without regard to the identity of the owner.  I must respectfully dissent because I believe the case reflects a failure of proof rather than a variance. But even if the case is analyzed under variance parameters, the variance is material.  The majority opinion reaches its conclusion that the variance is immaterial by misinterpreting the Court of Criminal Appeals’ opinion in Bailey v. State, 87 S.W.3d 122 (Tex. Crim. App. 2002).  In no recorded case has a court ever held a defendant guilty of theft absent proof of ownership as alleged and charged.  There are plenty of cases to the contrary pointing out that failure to establish ownership in the person or entity alleged as owner results in a failure of proof.  But whether the error in this case is characterized as a material variance or a failure of proof, the case should be reversed.

Consent to Search Vehicle Includes the Inside of a Speaker Compartment

Last week, I read United States v. Garcia, a case in which the U.S. Court of Appeals for the 5th Circuit considered the limitations of general consent to search a vehicle under the 4th Amendment.  In Garcia, Texas DPS officers requested and received permission to search Garcia's truck after he exhibited unusual behavior.  While conducting the consent search, the officers noticed that the screws on the speaker cover in the truck's cab looked as if they had recently been removed and replaced.  They proceeded to removed the speaker cover and find a large amount of cocaine hidden behind.  As you can see, the Garcia case was clearly blawgworthy.  I waited too long, however, and the 4th Amendment blog scooped me.  I therefore tip my hat to the victor and direct you to their post for more info.

Fourth Amendment Blog - CA5: General consent to search a car means containers and hidden compartments

Privacy of Electronic Communications?

With oral argument in City of Ontario v. Quon in the U.S. Supreme Court yesterday, the implications of the 4th Amendment in the digital age has been a widely discussed topic in the blawgosphere lately. 

• WSJ Blog
• Scott Greenfield's Simple Justice
• Volokh Conspiracy
• New York Times (not a blog, but a good link about the Quon case)

For me, I've been more focused on the way in which the Quon decision will affect the military, if at all. 

Currently, the privacy of government computer information and government e-mail messages is a fluid notion.  The general rule for the military is that users of government computers do not enjoy a reasonable expectation of privacy in anything related to that computer.  The military requires that all users sign a detailed information letter which explains that their computer and e-mail may be searched at any time and for any reason, and that the user may be subject to disciplinary action for what is found.  Further, every time a user logs-on to a military copmuter, a banner explaining the lack of privacy is boldly displayed on the screen, requiring the user to hit "enter" before they may gain access (not that anyone actually reads such boiler-plate messages when they log-on, but it's there anyway).

Complications have arisen in the past, however, because military commands engaged in practices which created a reasonable expectation of privacy (at least a subjective one) by adopting unwritten policies requiring search authorizations (warrants) before searching the contents of any computer.  Further, some commands, those on ships in particular, do not have access to civilian compters for their troops and thus, troops must use their government computer to contact family, perform online banking, etc.  Of course, we would hope that our troops would not be engaging in illegal activity while on ship, but in the military, even adultery is a chargeable offense. 

Enter the Quon case.  Quon fell victim to a system which was similar to the military system.  He was issued a texting pager and told (officially) that the pager was not for personal use. He was then, however, issued a limited exception to the general rule by his immediate supervisor, allowing him to send limited personal messages so long as he paid for the overages.  Resonable expectation of privacy?  (Members of the military do not pay for any of thier computer use, so the analysis differs a bit, but Quon could still be instructive.)

Hopefully, our learned Supreme Court will craft a workable rule for such a nuanced and progressive area of consitutional law.  But then again, maybe not:

“I just don’t know how you tell what is reasonable,” Chief Justice John G. Roberts Jr. said. “I suspect it might change with how old people are and how comfortable they are with the technology.”

Either way, I eagerly and anxiously await the Court's opinion. 

Jeopardy Does not Attach to a Mistrial for Lack of Jurisdiction

Sometimes, when I’m in a more peculiar mood, I think it’s fun to title a post in an ambiguous and intriguing fashion, hoping that out of pure curiosity, readers will click to see what I’m writing about. Other times, it’s easier just to give the BLUF (bottom line up front). Today is the latter.

The 2nd District Court of Appeals (Fort Worth) released its opinion in Gallemore v. State last week and designated the opinion for publication because it “present[ed] important questions of Texas law.” One of those questions was: Does the Double Jeopardy Clause of the United States Constitution prohibit a second prosecution of an accused after he has entered his plea in a bench trial where the judge declares a mistrial due to the court’s lack of jurisdiction?

Okay, so here’s the BLUF: No. The Double Jeopardy clause does not prohibit a retrial in a case in which the accused has entered a plea but the judge later determines that the court lacks jurisdiction and declares a mistrial.

The Double Jeopardy Clause of the United States Constitution provides that no person shall be subjected to twice having life or limb in jeopardy for the same offense. Generally, this clause protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Further, double jeopardy principles do not forbid multiple trials of a single criminal charge if the first trial resulted in a mistrial that: (1) was justified under the manifest necessity doctrine; or (2) was requested or consented to by the defense, absent prosecutorial misconduct which forced the mistrial. A mistrial declared because of a jurisdictional defect in the indictment is one example of manifest necessity. (citations omitted)

Just Answer the Question, But You Can Lie if You Want

The 11th District Court of Appeals (Eastland) released an opinion yesterday regarding whether the results of polygraph examinations can be used as evidence to revoke community supervision.

Here are some highlights:

This case presents an interesting paradox: courts routinely require sex offenders on community supervision to take and pass polygraph exams - even though their mere existence, let alone results, is inadmissible. But Texas law is clear that the existence and results of a polygraph examination are inadmissible for all purposes.

Unless and until, the Court of Criminal Appeals lifts its ban on polygraph test results, trial courts lack the discretion to revoke an individual's community supervision for failing an exam.

We do not hold that polygraph exams cannot be imposed as a condition of community supervision or used as part of a sex-offender treatment program.  Even though the test results are inadmissible, polygraph exams allow treatment providers to monitor compliance, and they can serve as a catalyst for further investigation.  Nor do we hold that failure to take a test is inadmissible or that trial courts lack the discretion to revoke community supervision for failing or refusing to take a court-ordered polygraph.

So, to summarize the summary, Courts may impose polygraph exams as a condition of community supervision and the inidividual must submit to the exam, but they can completely fail the exam by totally lying throughout and their community supervision cannot be revoked.  That's an interesting loophole.

See the full opinion in Leonard v. State HERE.

Breaking CCA Case Regarding Crawford's Application to Sentencing

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

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

Held:

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

Forcible Resistance/Assault of a Federal Officer Includes Non-Assaultive Conduct

The 5th Circuit handed this case down a few weeks ago.  U.S. v. Williams, 2010 U.S. App. LEXIS 5997, March 24, 2010.

Looking at this issue for the first time, the court decides:

Title 18 U.S.C. § 111(a)(1) provides that

(a) In general—Whoever—
(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any [federal officer] while engaged in or on account of the performance of official duties;
. . .
shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both,….

The statute contains two ambiguities. First, it distinguishes between misdemeanor and felony conduct by use of the undefined term “simple assault.” Second, and central to this case, the statute appears to outlaw several forms of conduct directed against federal officers, only one of which is assault, but then distinguishes between misdemeanors and felonies by reference to the crime of assault.

Simple assault as an attempted or threatened battery.

Section 111(a)(1) prohibits more than assault, simple or otherwise. A misdemeanor conviction under § 111(a)(1) does not require underlying assaultive conduct. The dual purpose of the statute is not simply to protect federal officers by punishing assault, but also to deter interference with federal law enforcement activities and ensure the integrity of federal operations by punishing obstruction and other forms of resistance.

The 6th Circuit agrees (cite omitted).

The 9th and D.C. circuits disagree (cites omitted).

Click HERE for the court's opinion.

Ignorance of the Law - a Defense for Cops

So we all know that a person can (for the most part) be arrested for, charged with, and convicted under a law he didn't even know existed.  We've heard the unapologetic phrase since our first criminal law course in law school - "Ignorance of the law is no defense."  If we, as a society, accept this precept of criminal law as it relates to defendants, what then should we expect from our law enforcement officers?

To be more specific, should we expect cops to be knowledgeable of the law? Can we allow our police officers to make arrests or detain citizens for laws that do not exist or laws that have been repealed?  I should hope not! Unfortunately, however, as the 11th District Court of Appeals (Eastland) explained last week in State v. Clark:

There need only be an objective basis for the stop; the subjective intent of the officer conducting the stop is irrelevant.

Here's what happened.  At 3:20 AM near a residential area of Abilene, an officer observed a vehicle performing "an exhibition of acceleration."  You know, revving the engine, spinning the tires, but going nowhere - the sort of thing that makes a lot of racket.  The officer stopped the vehicle on account of the "exhibition of acceleration" and ultimately arrested the driver for DWI.

The driver moved to suppress the evidence of DWI by challenging the reasonableness of the stop under section 545.420 of the Texas Transportation Code.  This section  prohibits excessive exhibitions of acceleration, but only when the driver is engaged in a street race against another vehicle.  So, essentially, the cop got it wrong.  Finding that the officer erroneously "stopped the vehicle for exhibition of acceleration" and finding that the "vehicle was not in competition or racing any other vehicle," the trial judge suppressed the evidence.

On appeal, the State urged a new theory to justify the stop - Abilene Municipal Code Sectoin 18-153, which prohibits disturbances by a motor vehicle.  Although, from the record, the officer was completely unaware of this provision when he formed "reasonable suspicion" to execute the stop, why should that hinder the State?  After all, the ends justify the means, right?  Holding that "[t]here need only be an objective basis for the stop; the subjective intent of the officer conducting the stop is irrelevant," the 11th Court reversed the ruling of the trial court. 

The truly disturbing part of this case, aside from the reaffirmation that cops need not be informed of the law and that, in Texas, the ends justify the means, was the bait and switch that the appellate court pulled on the defendant.  After finding that the Abiliene Municipal Code section (of which the officer was unaware) justified the stop, the court refused to entertain a challenge by the defendant to the constiutionality of the section, stating:

He did not present this challenge to the constitutionality of Section 18-153 at the trial court level.  Because section 18-153 of the Abilene Municipal Code constitutes the objective basis for the stop of Clark, not the basis for his prosecution, his claim to its constitutionality was not preserved and may not be presented for the first time on appeal.

Seriously?  How could we expect him to present his challenge at the lower level when the municipal code section was not in issue? 

It's truly a scary notion that our law enforcement officers can simply stop us for virtually anything so long as our prosecutors can later justify the stop.  They say, "ignorance of the law is no defense."  That phrase has no application for cops.

5th Circuit Reasoning Unchanged by Supreme Court Precedent Regarding Violent Felony Enhancement under the ACCA

Under the Armed Career Criminal Act (ACCA) (18 U.S.C. § 924(e)(1)), a person who violates federal felon-in-possession-of-a-firearm statute (18 U.S.C. § 922(g)) and who has three prior convictions of a “violent felony” or “serious drug offense” must be sentenced to no less than 15 years in prison.

The obvious question follows – What exactly is a “violent felony?”

ACCA provides that a violent felony is:

Any crime punishable by imprisonment for a term exceeding one year…that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. (emphasis added).

You’ll notice the ubiquitous residual clause there at the end. It was this catchall portion that the U.S. Court of Appeals for the 5th Circuit was recently called upon to examine (or reexamine). See United States v. Hughes, HERE.

David Earl Hughes was charged and convicted as being a felon-in-possession under § 922(g). Hughes also had three prior felony convictions (two of which he did not challenge as being “violent felonies”). His third prior felony, however, a violation of the federal escape statute, 18 U.S.C. § 751, he argued, was not a “violent felony” despite an explicit 5th Circuit holding to the contrary. See United States v. Ruiz, 180 F.3d 675 (5th Cir. 1999). Hughes pointed to two recent Supreme Court cases, which, he claimed, required that the court reevaluate its prior conclusion.

First, in United States v. Begay, 128 S.Ct. 1581 (2008), the Supreme Court limited the scope of the residual clause, explaining that:

only crimes similar to the enumerated offense qualified, not ‘every crime that presents a serious potential risk if physical injury to another.’

Hughes additionally emphasized the Court’s decision last term in Chambers v United States, 129 S.Ct. 687 (2009), wherein it held that the Illinois crime of failure to report to prison was not a violent felony.

Rejecting the Government’s argument that failure to report showed ‘the offender’s, special, strong aversion to penal custody’ as ‘beside the point,’ the Court reiterated that the core inquiry is ‘whether such an offender is significantly more likely than others to attach, or physically resist, an apprehender, thereby producing a serious potential risk of physical injury.’

So it there a real difference in failing to report and escape from custody? According to a panel of 5th Circuit judges, YES.

In upholding the trial court’s determination that Hughes’ felony conviction for escape was a “violent felony,” the 5th Circuit reasoned:

unlike failure to report, escape is typically committed in a purposeful manner, and when these escapes cause injuries, those injuries typically result from intentional action, not negligence of even recklessness.

The Court went on to state that the act of escape is “typically aggressive insofar as one who escapes prison is no doubt aware that armed law enforcement will seek him out, potentially ending in a violent confrontation.” No case-by-case inquiry needed – escape is a violent felony for the purposes of enhancement under ACCA. Period.

The Practical Implications of Padilla v. Kentucky

Addressing the question that we've all been thinking - What does Padilla actually mean for criminal defense attorneys? - Scott Greenfield provides some good commentary (complete with links to others in the community who have also considered the issue) over on his blawg, Simple Justice.  Rather than copy his content, I'll just direct you to his post HERE.

Man Charged with Child (Mental) Endangerment for Watching Online Porn

I have been terribly busy this week - working that is, not watching online porn.  A man in Amarillo, however, has been doing the latter, and now he's been charged with endangering his 8 and 9 year-old children.

Amarillo.com reports HERE that the Randall County District Attorney has filed child endangerment charges against a man for showing pornography to his daughters.

4th Amendment Blog Calls Texas Out

When it comes to criminal law and procedure, I've always been intrigued by 4th Amendment law.  Naturally, I'm a big fan of the 4th Amendment blog whose posts keep us well-informed regarding breaking 4th Amendment law from jurisdictions across the country.  Not exactly laudatory in appraoch, they typically point out the percieved 4th Amendment failings of trial and appellate judges as they arise.  Yesterday, they came knocking on Texas' front door with a critique of an appellate opinion from the 2nd District Court (Fort Worth).  Here's a blurb from the post:

How can a court put the burden on the defendant to show that a warrantless arrest is invalid when Fourth Amendment puts the burden on the government? Bumper v. North Carolina, 391 U.S. 543, 548 (1968). This court seems to conflate the burden of going forward and the burden of proof. The burden of going forward is satisfied by one sentence in a motion to suppress: "The defendant was subjected to a warrantless search (or arrest)."

See the full post HERE. 

"Got Anything Under that Pantleg?" Defendant Required to Show Identifying Tattoos to Jury

Since 1960, the Texas Court of Criminal Appeals has repeatedly explained that a defendant may be compelled to diclose identifying markers about himself to the jury, such as eye color, hair color, and the sound of his voice. See Whitlock v. State, 170 Tex. Crim. 153 (1960). Moreover, it has been repeatedly held that the display of the defendant’s tattoos to the jury is likewise not a violation of the right against self-incrimination.

Unfortunately for criminal law practicioners, the Court has provided little or no explanation on the issue.  See Canales v. State, 98 S.W.3d 690 (Tex. Crim. App. 2003).  Most recently, in Garza v. State, 213 S.W.3d 338 (Tex. Crim. App. 2007), the Court stated,

"the tattoos were admissible to prove the 'criminal street gang' element of the offense and their probative value was not outweighed by the danger of unfair prejudice. Also, requiring the appellant to display the tattoos did not violate the Fifth Amendment."

Again, no real analysis or explanation - just a conclusion (one paragraph in a 17-page opinion).

Following the Court's precedent that a defendant may be compelled to disclose his tatoos to the jury, the 7th District Court of Appeals (Amarillo) recently reaffirmed the issue in Saucedo v. State. Kudos to Justice Quinn, however, because, unlike prior Texas appellate court jurists who have considered the issue, he at least provides a nugget of analysis on the issue:

Body art consisting of dragons, skulls, symbols, flowers, or the like are also communicative in nature. They too convey a message of some idea, belief, or expression selected by the person wearing it. But, in each case the message is pre-existing and unlikely to incriminate in the same sense as compelling a confession. And, until the right against self-incrimination is said to insulate a defendant from showing the color of his eyes, providing a writing sample, or even displaying tattoos in general, it did not prevent the trial court from requiring appellant to raise a pant leg to show the jury the name stenciled on his leg. Simply put, the trial court did not abuse its discretion.

Confrontation of Child Victim-Witnesses - A Constitutional Alternative?

So we all know that the 6th Amendment guarantees the accused, in every criminal prosecution, the right to be "confronted with the witnesses against him," and to have "meaningful and effective cross-examination."  Building on this principle, the Supreme Court more recently emphasized in Crawford that "testimonial statements" of a witness who did not appear at trial should NOT be admitted unless the witness is unavailable and the defendant has had a prior opportunity for cross-examination.  541 U.S. 36 (2004).

But do the prohibitions of Crawford apply equally to the testimony of child victims in Texas?  Well, it's hard to say.  The short answer is Yes, but there are exceptions provided for in Article 38.071 of the Texas Code of Criminal Procedure.  These exceptions are an effort to balance the defendant's right to constitutionally-required confrontation with the State's policy of protecting child witnesses in sexual assault cases (for instance) from further potential trauma that could be wrought by testifying in open court and coming face to face with the defendant.

In summary, Art. 38.071, which was drafted prior to Crawford, provides child victims (in certain cases) two alternatives to courtroom testimony (if the court makes a finding that they are "unavailable") by allowing them to testify:

• Pursuant to Section 2(b) - to a "neutral" third party (usually a child psychologist or social worker) outside the presence of a courtroom, the defendant, or the attorneys involved, so long as the testimony is videotaped.  The defendant is then allowed to submit interrogatories to be asked the child victim in the same manner as the previously recorded testimony.  Neither the defendant nor his attorney is allowed to be present when the questions are asked.  

     OR

• Pursuant to Section 3(a) - in a room other than the courtroom (outside the presence of the defendant) through the use of a closed-circuit television.

While the Supreme Court has recognized that the constitution does not guarantee the absolute right to face-to-face confrontation (see Maryland v. Craig, 497 U.S. 836 (1990)), I have to wonder if this "interrogatory"  alternative (Section 2(b) above) to cross-examination is what the Supreme Court meant by "meaningful and effective cross-examination."  While it is a way of recording testimony, it isn't really cross-examination at all.

The Texas Court of Criminal Appeals has not yet considered this issue.  The 2nd District Court of Appeals (Fort Worth) considered the issue in Rangel v. State, 22 S.W.3d 523, wherein it held that (1) a child victim's videotaped statement was "testimonial" and therefore governed by Crawford, and (2) by providing a defendant with the opportunity to submit written questions, section 2(b) of article 38.071 (i.e. the interrogatory section) serves as a constitutionally sufficient alternative to face-to-face confrontation of witnesses.  The CCA initially granted discretionary review to consider the constitutionality of Article 38.071, section 2(b), but later dismissed as improvidently granted.

The 7th District Court of Appeals (Amarillo) released an opinion last week consistent with the 2nd Court's holding in Rangel upholding the constitutionality of article 38.071, section 2(b).  See Coronado v. State HERE.  Maybe this will give the CCA occasion to consider this issue?

Why Prosecutors Should Not Serve as Witnesses

"A prosecutor has the responsibility of a minister of justice and not simply that of an advocate."  See Model Rules of Prof'l Conduct R. 3.8 cmt. 1.  Courts have over time consistently expressed serious concerns about prosecutors as witnesses.  Generally, when the practice has been allowed, it has been only for compelling reasons in extraordinary purposes.  What follows are 3 reasons (according to Justice Sullivan of the 14th District Court of Appeals - Houston) why prosecutors should NOT serve in the dual role of advocate and witness:

1.  Confusion of the Trier of Fact - First, the tasks are inherently inconsistent because the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.  Thus, serving in both roles in the same case could confuse the trier of fact as to whether (and when) the prosecutor is acting in the capacity of advocate, as opposed to witness.

2.  Lack of Objectivity - Second, a prosecutor may be unable to participate as a fully objective witness to the extent his interests are aligned with only one of the parties - the State.  An experienced prosecutor with an interest in the outcome would be both poised and motivated to wreak maximum strategic damage to the opposition, if permitted to testify. This concern is magnified not only by the serious liberty interests at stake, but also the widely-held perception that a prosecutor, not unlike other law-enforcement officials, may have enhanced credibility with the public.

3.  Appearance of Impropriety - Third, the prospect of a prosecutor testifying against the accused raises the appearance of impropriety. It also places a prosecutor in the presumably very uncomfortable – and optically questionable – role of advocating her own credibility or that of a colleague.

* He also lists a fourth reason (on the practical side) - It is difficult for appellate courts to gauge the full impact  of the sudden transformation of a prosecutor from advocate into witness.

This post was taken from Justice Sullivan's concurring opinion in Dreyer v. State (HERE).  See also the majority opinion here.

Any prosecutors out there disagree with Justice Sullivan's analysis?

(Sorry, no original thoughts on my part - it's been a long Easter weekend)

Be Careful What You Wish For...

...you just might get it (and you might not like it)!

The 5th Circuit recently published a case (U.S. v. Rodriguez), in which a defendant pled guilty to conspiracy, making false statements in the acquisition of firearms, selling firearms to prohibited persons, and selling firearms without a license in exchange for an agreement by the government not to seek any offense-level increases at sentencing.

The presentence investigation report (PSR), recommended a sentencing range of between 51 and 63 months (due to a base offense level of 18 and a four-level aggravating role increase). Rodriguez objected to the increase and the government conversely supported the increase (thereby breaching its plea agreement not to seek an offense-level increase at sentencing). The district judge ultimately rejected parts of the PSR, which resulted in an advisory guidelines sentencing range of 37 to 46 months. The defendant was sentenced to 37 months.

Rodriguez appealed based on the government's breach of his plea agreement. Upon the government's concession that it had indeed breached the agreement, the 5th Circuit remanded the case for resentencing and ordered that the sentencing be conducted by a different judge because of the government's breach. (Once again, be careful what you wish for!)

At resentencing, Rodriguez renewed his prior objections to the PSR; they were denied. Based upon his independent analysis, the second judge concluded, contrary to the original judge’s ruling, that the advisory guidelines sentencing range was 46 to 57 months. Rodriguez was sentenced to 47 months - 9 months more than his original sentence!!

Rodriguez challenged the greater sentence on appeal, claiming that it was either vindictive or apparently vindictive - he lost.

After reading the opinion, I cannot criticize the legal reasoning of the Court. They got it right. But, as a third-grader (and many criminal defense attorneys) would say "That's Not Fair!!!"

Texas Hiring Interrogation Consultants

Here's a video of the British interrogation consultants that have been hired to train Texas law enforcement agents.